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Fair Work Act 2009                                                    






cl.48, Schedule 1 of the Fair Work Act 2009
Variation of a modern award
Telstra Award 2015







VICE PRESIDENT HATCHER:  All right, we are going to start off by dealing with the Broadcasting, Recorded Entertainment and Cinemas Award 2020.  Mr Murdoch, you seek permission to appear for the cinema employers; is that correct?


MR J MURDOCH:  Yes, thank you, Vice President.  There's a list of them that are set out in full at the commencement of our submission of 24 May, the various cinema employers, and I'm instructed by Mr Sarong, who's also in the conference.  He's with Norton Rose Fulbright.


VICE PRESIDENT HATCHER:  All right, thank you.  Mr Latham, you seek permission to appear for the Media Entertainment and Arts Alliance?


MR I LATHAM:  Sorry, your Honour, I do.


VICE PRESIDENT HATCHER:  Yes, all right.  I gather there's no objection for permission for representation.  To the extent it's even necessary, I will grant that.


We have read the written submissions.  Mr Murdoch?


MR MURDOCH:  Yes, thank you.  The position is that there are part-time employees who have previously converted in the cinema industry.  When I say 'previously converted', they have previously come across from the ranks of the casual employees.  There are other part-time employees in the industry who have been hired as such and who have not come through the route of casual employees, and there will be persons in the future who are hired direct as part-time employees.  Those employees in those three categories will be on a different suite of conditions to those who, in the future, convert from casual to part-time.


VICE PRESIDENT HATCHER:  Mr Murdoch, can you explain - I know you've said this in previous proceedings - can you explain why that is the case again.


MR MURDOCH:  Yes.  It's because the persons who are covered by the modern award provision, which was inserted last year by the Full Bench in the Modern Award Review, have more flexible conditions than those which are provided for in the NES as a result of the most recent amendments directed to conversion of casual employees to part-time.


VICE PRESIDENT HATCHER:  Let's break this down so I understand it.  The ones that have been converted already will be employed pursuant to the part-time provisions in part 10 of the award; is that correct?




VICE PRESIDENT HATCHER:  So why do you say that by reference to the Act, that's different for people who might be converted under the statutory scheme?


MR MURDOCH:  Well, because under the statutory scheme, we will be required, if that applies, to specify the hours per day and the days of the week on which they work.


VICE PRESIDENT HATCHER:  So what provision of the Act are you referring to?


MR MURDOCH:  Well, we're referring to the provision in the NES in relation to the entitlements of the casual employees who convert to part-time pursuant to the NES.


VICE PRESIDENT HATCHER:  Yes, well, I just want to follow this, so what provision are we talking about?


MR MURDOCH:  I'm just, for the moment, struggling to find the actual subclause.  We've set it out in our written submission.


MR LATHAM:  Your Honour, I think it's section 66B(2)(b)(ii).


MR MURDOCH:  That's right.


VICE PRESIDENT HATCHER:  All right, thank you, Mr Latham.  Just give me a second while I get that up.  So, 66B(2)(b)(ii), all right.  I have read that.  Mr Murdoch, if you look at 66B(1)(b), that sets out the qualifying - the relevant qualifying criterion.




VICE PRESIDENT HATCHER:  And it's a regular pattern of hours which, without significant adjustment, an employee could continue to work.  Let's say we're talking about a part-time employment here as a part-time employee.




VICE PRESIDENT HATCHER:  That, to me, in that statutory provision borrowed from the language of multiple awards, that, to me, means that in the cinema industry, if a casual employee is working a pattern of hours which they could operate as a part-time employee under part 10 of the award, that's sufficient for them to convert.


MR MURDOCH:  Yes, and that's not the issue.  The issue is when they do convert.


VICE PRESIDENT HATCHER:  So if one goes to subsection (2) and the offer, in subsection (2)(b)(ii), the offer only has to be consistent with the pattern of hours worked during that period.


MR MURDOCH:  Well, if that be the case, the award, and I'm talking about the award under clause 58.3, for example, it says that part-time employees will be required to work an agreed number of ordinary hours in a 14-day cycle, or a 28-day cycle by written agreement.




MR MURDOCH:  Now, on one view of it, that is a regular pattern of hours, but if the view of the Full Bench is that that's not, then I see your point, you're saying that that would not trigger the right to - that would not trigger the obligation to offer them conversion.


VICE PRESIDENT HATCHER:  No, I am perhaps putting it in a different way.  That seems to me that if you've got a casual employee who's working, over a six-month period, a fixed number of hours, for example, every 28 days, so, every 28 days, they are working 40 hours, averaging 10 hours a week.




VICE PRESIDENT HATCHER:  That's a pattern of hours which can be accommodated as part-time employment under the award under 58.3.




VICE PRESIDENT HATCHER:  They qualify for conversion.




VICE PRESIDENT HATCHER:  And the offer that must be made is one that is consistent with the previous pattern, that is, on my example, 40 hours over a 28-day cycle, and that's consistent with 58.3 of the award.  That is, it seems to me that the statutory scheme is not inconsistent with somebody being converted to part-time employment under the provisions of part 10 of the award.  I'm not sure whether the problem you're identifying actually exists.


MR MURDOCH:  Well, if the view of the Bench is that the problem doesn't exist, it may be that I need to get some further instructions, but perhaps, on your view, Vice President, we are being over-cautious, but what we don't want is to find that offers are made, persons are converted and then there's conflict in relation to their entitlements.


Our other concern was with the award, 59.4, where the employer is required to endeavour to provide a reasonably regular pattern of work which accommodates the fluctuating operational requirements of the employer.  So, again, if that's accommodated, we don't have a problem.


VICE PRESIDENT HATCHER:  All right.  Is - - -


MR MURDOCH:  So - I'm sorry, I didn't mean to cut you off, Vice President.


VICE PRESIDENT HATCHER:  No, I was just going to ask you if there was anything more to this issue than what you have put.  We will hear from Mr Latham as to whether he takes a different position from what I have raised with you, but I don't think he does.


MR MURDOCH:  Well, in his written submission, he points to the differences, but they are the same differences that I have identified, so that it may be that I should get some further instructions in the light of what you have said.


VICE PRESIDENT HATCHER:  All right, well, let's hear from Mr Latham and then we'll see where we are up to.  Mr Latham?


MR LATHAM:  Sorry, your Honour, we're not entirely sure what the problem raised by the cinema employers is.  We think that the scheme of the NES and also, to a large part, the scheme of the award, is to set out what are the regular pattern of hours for the employee and we don't think that there's any change made.


If my friend wants to get some instructions, that's probably worth doing now and then we can respond to whatever might be proposed, but, at the moment, our position is simply that the NES should apply for all the reasons that are set out in the submissions.


VICE PRESIDENT HATCHER:  Mr Latham, does your client accept that there's nothing in the NES provisions which prevents a casual employee converting to part-time employment in a manner consistent with the part-time provisions in part 10 of the award?


MR LATHAM:  The only difficulty, I think, is there are some of the provisions in part 10 that provide the employer with significantly more flexibility than under the NES.


VICE PRESIDENT HATCHER:  So what in the NES inhibits that flexibility?


MR LATHAM:  They are set out in the submissions, your Honour, but they are really questions as to providing an estimate of regular hours of work to the employee involved.


VICE PRESIDENT HATCHER:  What provision are we talking about?


MR LATHAM:  For example, if you go to clause 58.3, that talks only about an agreed number of ordinary hours on a 28-day cycle, and there is also the reference in 59.4 to a reasonably regular pattern of work, which is slightly different to the NES, but - - -


VICE PRESIDENT HATCHER:  What's the statutory provision that is inconsistent with that?


MR LATHAM:  The statutory provision talks about having worked a regular pattern of hours.  It's only a fairly marginal difference, your Honour.


VICE PRESIDENT HATCHER:  This is, what, 66B(2) we are talking about, is it?


MR LATHAM:  66B(b) and 66 - - -






VICE PRESIDENT HATCHER:  It's a regular pattern of hours, but it comes with the qualification that they could continue to work as a part-time employee.


MR MURDOCH:  Correct.


VICE PRESIDENT HATCHER:  But if it's sufficiently regular that you could work it under the award as part-time employment, that's enough.


MR LATHAM:  Yes, your Honour, that's correct.


VICE PRESIDENT HATCHER:  So it seems to me that if the pattern is consistent with the very provisions of the award you've just cited, that's enough for you to qualify.


MR LATHAM:  That's correct.


VICE PRESIDENT HATCHER:  But, by the same token, that means that once you've qualified and you're converted, the employer doesn't need anything more than what's provided for in the award.


MR LATHAM:  That's correct.


VICE PRESIDENT HATCHER:  All right.  Anything further, Mr Latham?


MR LATHAM:  No, your Honour.


VICE PRESIDENT HATCHER:  Well, Mr Murdoch, when do you want to come back to us?


MR MURDOCH:  Might I come back to you in about half an hour?  I know that might disrupt other parties, but that would be about the time I need.




MR MURDOCH:  It's just that we've got a diversity of clients.


VICE PRESIDENT HATCHER:  Yes, I understand that.  There's no point rushing things, Mr Murdoch, if you need to talk to a lot of people.  Would it be more convenient if we give you a special marking at mid-day?


MR MURDOCH:  Yes, it would, thank you.


VICE PRESIDENT HATCHER:  All right, we will return to this award at mid-day and we will have to interrupt any other proceedings that are happening at that time, if necessary, in order for that to occur.  Just hold on a second.


All right, if there's nothing further about this award at this stage, we will now adjourn until 10 am to start dealing with the common issue concerning the casual conversion provisions in a number of other identified Group 1, Group 2 and Group 3 awards.  We will now adjourn.

SHORT ADJOURNMENT                                                           [9.26 AM]

RESUMED                                                                                   [10.06 AM]


VICE PRESIDENT HATCHER:  All right, I will take the appearances.  Ms Miflin, you appear for the United Workers Union?


MS H MIFLIN:  Yes, thank you, your Honour.


VICE PRESIDENT HATCHER:  Mr Kemppi, you appear for the ACTU?


MR S KEMPPI:  Yes, your Honour.


VICE PRESIDENT HATCHER:  Ms Abousleiman, you appear for the CEPU?


MS Y ABOUSLEIMAN:  Yes, your Honour.


VICE PRESIDENT HATCHER:  Ms Tobin, you appear for the AMWU?


MS K TOBIN:  Yes, Vice President.


VICE PRESIDENT HATCHER:  Mr Boncardo and Ms Wiles, you appear for the CFMMEU?


MR P BONCARDO:  Yes, your Honour.


MS V WILES:  Yes, your Honour.


VICE PRESIDENT HATCHER:  Mr Crawford, you appear for the AWU?


MR S CRAWFORD:  Yes, your Honour.


VICE PRESIDENT HATCHER:  Mr Smith, you appear for the Australian Industry Group?


MR S SMITH:  Yes, thank you, your Honour.


VICE PRESIDENT HATCHER:  Mr Arndt, you appear for Australian Business Industrial and New South Wales Business Council?


MR J ARNDT:  Yes, your Honour, with Ms Lombardelli.


VICE PRESIDENT HATCHER:  Thank you.  Ms Schladetsch, if I have pronounced that correctly, you appear for Housing Industries Association?


MS A SCHLADETSCH:  Yes, your Honour.


VICE PRESIDENT HATCHER:  Ms Sostarko, you appear for the Master Builders Association?


MS R SOSTARKO:  Yes, your Honour.


VICE PRESIDENT HATCHER:  And, Mr Hodges, you appear for the Victorian Automotive Chamber of Commerce and Motor Trades Association?


MR D HODGES:  Yes, thank you, your Honour.


VICE PRESIDENT HATCHER:  All right.  To the extent that any party requires permission for legal representation, that is granted.


Now, the union parties have filed a number of witness statements.  Is there any - firstly, I understand that none of those witnesses are required for cross-examination.  Is there any objection from any of the employer parties to me admitting and marking those statements?  No?  All right, well, I will proceed to mark the statements.















Is that all of the witness statements?  All right, thank you.  I think we will start by hearing from the union parties since they are objecting to the provisional view.  Who would like to lead the way in that respect?


MS MIFLIN:  Vice President, if it pleases, we could start with the Food and Beverage and Tobacco, or are we beginning with the Construction Award?  I'm not sure if - - -


VICE PRESIDENT HATCHER:  I'm easy as to in what order we proceed with, but, Ms Miflin, you have spoken first, so you can go first.


MS MIFLIN:  All right, I'm happy to begin.  Thank you, Vice President.  We are objecting only here to the provisional views in the Food, Beverage and Tobacco Award, which I may from here refer to just as the FBT Award, if that suits.




MS MIFLIN:  So, I will take that evidence as tendered.  Thank you for that.  That was for Pareen Minhas, for Margaret Te Awa, two of our union organisers in our FBT industry.


Your Honours, you have before you our written outline of submissions.  I won't go over that content again.  However, I do want to speak to just some of the issues in the Ai Group's reply submissions, which they filed, I believe on 27 August, with respect to that award, as well as just provide a few more comments on the position of the UWU.


So, 10 per cent of our membership is in that industry, in that food and beverage manufacturing industry, and our experience in this sector, which you will see in those statements before you is that the FBT Award, it doesn't just provide the minimum safety net in this sector, it's actually set the industry standard.  Many of our EBAs in this sector, they are more or less the award, fractionally above, as opposed to, say, warehousing, which is another major industry of ours, where the industry standard is a lot higher than the award now.


We say, you know, by removing the right for casuals to convert after six months, which is the key issue here, would, in our view, do two things.  It would leave those employed under the award worse off than they currently are.  The Modern Award Objectives that need to be met, we say can't be met, that is, to create a relevant minimum safety net, if the decision is made to erode that minimum safety net in an industry where we have shown in our evidence, in those two statements, that the current six-month clause is used, and also we say it would ultimately lower the industry standard and make it harder for workers to bargain for a six-month conversion clause in their EBA, which is something that we are trying to do at the moment in what I'm calling the ready-made meals subindustry, which I have spoken to in our outline of submissions.


If I can take you just to paragraph 23 of Ai Group's reply submissions, which they filed on 2 September.  They have stated that - - -


VICE PRESIDENT HATCHER:  Just hold on a sec.


MS MIFLIN:  I'm holding, yes.


VICE PRESIDENT HATCHER:  2 September, yes, hold on.


MS MIFLIN:  Yes, paragraph 23.




MS MIFLIN:  This is the section where they have responded to the submissions made pursuant to the directions.  They have stated:


None of the unions' submissions or evidence go remotely near to establishing why the 10 conclusions of the Commission referred to at paragraph 11 -


that's the 10 conclusions with respect to the casual conversion with respect to the Manufacturing Award -


would not apply with equal force to each of the Relevant Awards.


Ai Group haven't engaged at all with the evidence from the UWU in their reply subs, and we say our evidence goes directly to the Commission's concerns that were actually raised with respect to the Manufacturing Award.


In the Full Bench decision of 16 July, it was stated - and this is at paragraph 236 of the decision from July - that there was no evidence before them of the extent to which casual employees covered by the Manufacturing Award have historically exercised the award entitlement or the extent to which the entitlement is exercised at all.


Well, our evidence with respect to the six-month use of - the utilisation of a six-month conversion in the FBT industry, it should go directly to this concern and it should persuade the Commission that it is used and it's the basis of actually a significant organising campaign aimed at fighting for more secure work in that industry, which is, you know, really particularly crucial at the moment, you know, given the COVID-19 pandemic.


I will just also take you to paragraph 15 - so just scrolling back up a little bit - of the AiG reply submissions.  I'm just going to scroll that myself.  They talk about, you know, where to from here, and they talk about the importance, they say, of the Commission in following its own previous decisions, outlining, you know, why the Commission should follow its conclusion from the Manufacturing Award and apply it to the others, saying it would be particularly remarkable for the Commission, as currently constituted, not to follow the conclusions reached by the five-member Full Bench in their July decisions, given it was about the same proceedings and essentially about the same conversion matters.


I suppose, if that's the case, then, you know, it might be that we're asking the Fair Work Commission here to do something remarkable, although I'm not sure that it would be so remarkable to treat it differently, given that it is a different industry and the evidence before you is different.  Our evidence, I think, shows two things really.  It shows that the six-month provision is used.


We have given particular examples within what we're calling the ready-made subindustry, so that's companies like Youfoodz or HelloFresh, so it is used, but our evidence also shows that there's this existing understanding among employers in that industry, you know, of that obligation and there shouldn't be any overly burdensome regulatory changes required.  They have already got the necessary structures in place to consider those requests.  Again, that's highlighted in those two statements which were marked earlier.


VICE PRESIDENT HATCHER:  Can I just ask you about Ms Te Awa's statement.


MS MIFLIN:  Sure.  I'll just open it up.


VICE PRESIDENT HATCHER:  Because your other witness doesn't mention anything about conversion after six months.


MS MIFLIN:  Sorry, no, you're right, Ms Minhas's statement, Pareen's statement, speaks to the industry broadly.  It's Ms Te Awa's statement, who's our organiser in Queensland, who speaks to that, yes.


VICE PRESIDENT HATCHER:  In the two examples of Youfoodz and Country Chef, in those two examples, she talks about the union - I'm just trying to find the reference - negotiating a casual conversion system at those companies.


MS MIFLIN:  That was done, yes.  Well - - -


VICE PRESIDENT HATCHER:  I'm struggling to understand whether this is simply the application of the award clause or whether your union has actually negotiated some separate arrangement.  I'm looking at paragraph 12, which says, 'We achieved a casual conversion system' - that's Youfoodz.


MS MIFLIN:  Yes.  So, there was a campaign undertaken at Youfoodz, which we're calling the secure jobs campaign.  All that was done there was - well, there was a back pay component, but it was about, I suppose, enforcing the award six-month conversion.  All it's done there is the application of the six-month conversion, but they've set up, I suppose, an automated system of sorts, so every time an employee ticks over six months, an email is sent out by their online - Deputy, they call it - online software platform - so, rather than employees having to come and make the requests, what was negotiated there was a system to automatically provide the right which is provided for in the award.  It was enforcing it.  It was a system to enforce it.


VICE PRESIDENT HATCHER:  I mean, for example, the Country Chef, for example, doesn't actually say that anybody who had been employed for a total period of less than 12 months was converted.  It talks about the six-month qualifying period, but that doesn't say how long they'd actually been there, does it?


MS MIFLIN:  No, it doesn't.  I will concede that.  I mean, what was done at Country Chef is not a dissimilar system that was set up at Youfoodz.  The requirement is different.  They've got that 500 hour requirement and it has to be across a six-month period.  It's done.  You know, there are - so this is up in Queensland.  Our organiser, Margaret, she was up there just last week sitting down with the company.  Essentially, what she does is she takes a list of employees that she knows have been there for six months, through surveys, meeting with workers, and sits down with the employer, they look at the list, you know, consolidate, we say, 'They've been there six months', 'So do we', match it up and that's sort of the system that's done there.


VICE PRESIDENT HATCHER:  All right, thank you.


MS MIFLIN:  So I suppose, you know, I'll just finish up by saying - sort of having a look at, well, what can we do from here, you know, what option do we have if you do, you know, weight the evidence in our favour and preserve that six-month conversion clause.


In paragraph 240 of the July decision, the Full Bench did consider this with respect to the Manufacturing Award - what other options are there - and looked at an option, I suppose, put forward by the AMWU, which we would support here on the FBT Award - this is at paragraph 240 - that the other option of incorporating the NES provisions into the award by reference, with the 12 months being read as six months, you know, the Full Bench has stated that it may be a more elegant drafting solution, but is no different in ultimate effect.


It goes on to say that the establishment of a new regime of award obligations merely for the sake of saving one element of the existing provision, namely, the six-month regular casual employment, you know, shouldn't be done just for the sake of saving this one element, but this concept is problematic.  It's not about, you know, the concept that it would be merely for the sake of saving one element.  The six-month provision shouldn't be seen merely as one element, it's the whole game.


At paragraph 218 of the July decision, the Full Bench referred to the provisional view of the Manufacturing Award and acknowledged that the six-month provision, it is more beneficial, the six months is more beneficial than 12 months, it is the principal part of the clause, the other components are ancillary.


Our view is that those things don't, even accumulatively, create for a better conversion clause because the NES, it misses the key component, which is the ability to convert after six months and ultimately the ability to obtain a secure job sooner in a fairly low paid, insecure industry.  So, it's the focus of the clause and it's the part that, you know, our workers care about.  So, we say it would be open to the Commission to apply the FBT Award - to apply one of those earlier provisional views to the FBT Award, that is, taking out 12 months and replacing it with six months, but otherwise retaining the NES clause as is.


If there's any further questions, I would be happy to answer it, but there's nothing further from me at this stage.


VICE PRESIDENT HATCHER:  All right, thank you.  Who would like to go next?


MS TOBIN:  Your Honour, it might be appropriate if the AMWU goes next?




MS TOBIN:  Thank you.  The AMWU relies on its written subs and I won't repeat the substance of those now.  However, I would just like to press that the AMWU submits that the variation that we seek, which would retain the six-month trigger to request casual conversion, is necessary to achieve the Modern Award Objective in this industry.


The evidence that we have filed demonstrates that the casual conversion provision in the Food Award is being used and is a valuable benefit to casual employees.  For example, the statement of Ms Fawke, which I believe is exhibit 5, details how achieving a conversion to permanency for her and her husband at the six-month mark under the Food Award enabled her family to refinance their home at a critical stage of their lives, and the delay of conversion for an additional six months, as would be the case if the provisional view is confirmed, in this instance would have had dire effects for her family.


The conclusion reached in respect of the Manufacturing Award that the award entitlement was less beneficial than the residual right in the Act turned on the finding by the Commission that the entitlement was not being used in the manufacturing industry and that the benefit was not of the degree of significance assumed by the union parties, but, as a result of the evidence filed by the AMWU and the UWU in this stage of the review, that finding, we would say, is not available in relation to the Food Award and a different conclusion should be reached in relation to this industry.


VICE PRESIDENT HATCHER:  Of the statements that your union filed, it's only Ms Fawke which, I think, refers to conversion at or around six months' employment; is that correct?


MS TOBIN:  Yes, we concede that the statement of Helen Fawke is the only statement that actually contains an example of conversion at the six-month mark and that all the other conversions in the other statements were later.  I can confirm that, in some of those instances, the employees weren't actually aware of their right to convert until the union informed them that they did have a right to convert, but, yes, we concede that point.


VICE PRESIDENT HATCHER:  All right, thank you.


MS TOBIN:  Just continuing on, the AMWU say that the food industry has features that make the six-month entitlement particularly beneficial to casual employees in this industry and that the Food Award is distinguishable from the Manufacturing Award on this basis, and that that is the reason why the conclusions drawn in relation to the Manufacturing Award should not apply to the Food Award.  So as described in the statements of Jason Hefford, Alby Dyminski, and Darren Bathman.  Seasonal work is a feature of the food industry.  These casual workers work for up to 11 months of each year during harvest months and as the statements of these witnesses demonstrate they may be told year after year that there is no permanent work available for them.


Under the current Food Award entitlement these workers are entitled to request conversion to permanency after six months providing that they meet the relevant requirements.  However, if the Commission confirms its provisional view these workers will never reach the 12-month threshold.  So the proposed variation will effectively disentitle an entire class of casual employees from ever being able to access casual conversion provisions.


VICE PRESIDENT HATCHER:  Well I have noted that a number of the statements refer to this issue about seasonal employment but I am struggling to understand how even under the current clause seasonal employment could be converted pursuant to the casual conversion clause.


MS TOBIN:  Well, your Honour, these workers are working regular hours.  So if they are working regular hours for six months we would say that they are entitled to be converted.  And, indeed, many of these seasonal workers have eventually obtained conversion.  Alby Dyminski was a seasonal worker and obtained conversion.  Darren Bathman is still waiting to obtain conversion but the statement of Jason Hefford have the details that many of these seasonal workers have eventually obtained conversion.




MS TOBIN:  So we say that the entitlement in the Food Award is being used by casual employees in the food industry and we agree with Ms Miflin that the Award sets the industry standard at sites where casual employees are covered by an enterprise agreement also.  The particular benefit to casual seasonal workers of a six-month, rather than a 12-month entitlement represents a significant alteration to the balancing exercise performed by the Commission in the July decision in relation to the Manufacturing Award.


The entitlement is necessary in the Food Award to ensure a fair and relevant minimum safety net of terms and conditions by preventing a class of casual employees from being permanently excluded from the benefits of casual conversion.  And we say this is especially so in circumstances where no evidence has been presented on the likely impact on business, including on productivity, employment costs and regulatory burden that would actually be occasioned by retention of the six-month entitlement in the Food Award.


And for these reasons we urge the Commission not to confirm its provisional view and, instead, make a variation that preserves the six-month entitlement for casuals in the food industry.


VICE PRESIDENT HATCHER:  Right, thank you, Ms Tobin.  Who would like to go next?


MR CRAWFORD:  Your Honour, it's Mr Crawford from the AWU.




MR CRAWFORD:  I just wanted to indicate that in relation to this award we support the submissions of the UWU and the AMWU and otherwise rely on our written submissions.


VICE PRESIDENT HATCHER:  Mr Crawford, just to be clear we're dealing with all these awards as a common issue.  So we're not dealing with these awards seriatim.  So is there any other award you want to talk about from this group?


MR CRAWFORD:  No, your Honour.  We have filed written submissions in relation to all of the awards that we have an interest in and we're content to rely on those written submissions and otherwise support the submissions of the unions for the other relevant awards.


VICE PRESIDENT HATCHER:  Thank you.  So who's next?  Mr Boncardo?  Would you like to go next?


MR BONCARDO:  Your Honour, if that's convenient.  Your Honour, I was going to deal with three issues with respect to the Construction Award.  The first two relatively briefly concerning daily hire and clause 11.7 of the Joinery Award, before turning the issue of casual conversion.  If I can commence by dealing with the question of daily hire.  The Full Bench expressed the provisional view in what's being called the July decision that daily hire provisions are under the Building and Construction General Onsite Award were not relevant terms.  That's a view we understand there is no descent from.  But we note to the extent necessary that in the four-yearly review of Modern Awards in respect of the Construction Awards at the neutral citation 2018, FWCFB, 6019 at paragraph 201 that the Full Bench there referred to clause 12 of the Building and Construction General Onsite Award in so far as it provided the daily hire employment, as a type of non-casual employment.


We are content that that puts the issue beyond any doubt that daily hire employment is not a relevant term for the purposes of clause 48 of the amending Act and therefore not subject to the review being undertaken by the Commission in these proceedings.


The Australian Industry Group has suggested that the definition of casual employee in the Building and Construction General Onsite Award be amended to include a reference to a casual employee not being a daily hire employee.


We have set out in our submissions that that is unnecessary.  There is and will be in our respectful submission no ambiguity or uncertainty in respect to what a casual employee or a daily hire employee is subsequent to this review.  And we note the terms of clause 8.2 of the Building and Construction Award which impose an obligation on an employer to inform an employee at the time of their engagement of the nature of their engagement, including as a daily hire employee.  So we oppose the suggested amendment to the definition of casual employee by the Australian Industry Group.


If I can say something now about clause 11.7 of the Joinery Award which is an anti-avoidance provision which in terms sets out that an employee must not be engaged and re-engaged to avoid any obligation under this Award.  This provision was considered by this Full Bench in its August statement at paragraphs 27 to 28 where it was noted that this was originally included in the casual conversion clause in the Joinery Award, being clause 12, and appeared to have been moved by some sort of magical administrative process to clause 11.  And the provisional view was expressed in that decision that this anti-avoidance provision should go the same way as clause 11.6 of the Manufacturing Award.  We would resist that conclusion for these reasons.  Firstly, the provision is not limited to casual conversion and avoiding the casual conversion provisions of either the NES or the present award.  It is general in nature, although we do accept the analysis at paragraphs 27 to 28 of the August statement in respect to its history.


Secondly, we submit that it's not clear that it is a relevant term for the purposes of clause 48(1)(c) of the amending Act.  It certainly doesn't define casual employment or deal with circumstances in which the employees are to be employed or the manner in which they are to be employed, in orders that provide for conversion of casual employment to another type of employment.


In any event, it's our submission that for the purposes of clause 48(3) of the amending Act there is nothing inconsistent with an anti-avoidance provision of this nature and the Act as amended.  Nor does a provision of this nature give rise to any difficulty or uncertainty in respect to the interaction between the Award and the Act as amended.  They are submissions that - - -


VICE PRESIDENT HATCHER:  Mr Boncardo, what practical work does clause 11.7 do?


MR BONCARDO:  It's a general clause, your Honour, that prohibits an employer from terminating an employee to avoid any obligation under the Award.  I can't point to any evidence that suggests that it's been effective or ineffective as the case may be but it is a term which we say has the potential, on its face, to be of benefit to employees and, in our submission, there's no necessity for it to be removed.


VICE PRESIDENT HATCHER:  So, Mr Boncardo, you're not suggesting, are you, that the clause 11.7 which is located as it is now in the casual employees clause is to be read as having application beyond casual employees are you?


MR BONCARDO:  It's framed in general terms and as a matter of context could be construed as applying only to employees but it is general in nature.  It refers to any obligation under this Award.


VICE PRESIDENT HATCHER:  Well, seeming it applies only to casual employees for the time being.




VICE PRESIDENT HATCHER:  I can't think, apart from casual conversion what actual – even a theoretical example of how it would protect an employee in respect of any obligation under the Award.


MR BONCARDO:  Well, it could for example protect an employee in relation to them being engaged and then re-engaged to avoid, for example, the requirements of – if your Honour would bear with me?  To avoid, for example, your Honour, the requirement to make payments for, amongst other things, various allowances such as annual leave which would accrue in light of the service of an employee.




MR BONCARDO:  I can't give your Honour any concrete examples.  Our submission is simply that, there's a real question as to whether it falls within the purview of the review and, in any event, there's no necessity for it to be deleted to avoid any uncertainty or inconsistency.


VICE PRESIDENT HATCHER:  All right.  Thank you.


MR BONCARDO:  In respect to the casual conversion provisions we have sent through and I apologise that these were sent through quite late this morning – an alternate proposal are put forward by my client, which in effect involves reproduction of the NES entitlements in the three awards, with modifications for the entitlements to be triggered at six, rather than 12 months.  That is in line with the suggested position by the Commission in its July statement which was not ultimately accepted by the Commission.


There is an error in those proposed variations in so far as they refer to the clauses applying in lieu of the relevant NES standards.  We have sent through correspondence indicating that that should read as supplementary to the relevant NES standards.


What the draft variations do, in substance, is reduce the periods under section 66(b)(1)(a), and 66(f)(1)(a) from 12 months to six months.  A corresponding reduction is also made to six months in respect to the equivalent clauses for section 66(c)(2)(a) and 66(h)(2)(a) which deal with the issue of reasonable grounds for an employee's position ceasing to exist in the six-month period after the making of the request or the making of the offer.  And the six-month period is advanced on two principle bases, one of which is the nature of work in the construction industry which your Honours and Commissioner will see is principally project-based, and at paragraph 60 to 61 of my client's 10 August submission your Honours will see in respect to housing, that is in relation to the cottage aspect of the industry but the houses will generally take about seven months to build.  Townhouses 10 months.  Flats, units and apartments – 19 months.  And then on a commercial construction projects of less than 30 storeys and civil construction projects of up to 400 million dollars in value, those projects are generally speaking, two years or less in nature.  Our submission is that in circumstances where jobs in this industry are project-based.  There will be very little, if any, work to do for the NES provisions if a 12-month threshold is imposed and in order to ensure that the provisions are both operable and provide a fair and relevant safety net, a six-month trigger point is required.


That is, we say, a distinguishing feature from the evidence and circumstances before the Commission when it considered the Manufacturing Award back in the July decision, there was nothing before the Commission there indicating that the industries encompassed by that award were project-based in nature and, generally, had work which concluded in a period of less than two years.  There was no suggestion in that decision that there was a risk that the casual conversion provisions under the NES would have little work to do.


The situation is, we say, distinct in the context of the Construction Award here.  Secondly, as a matter of history and distinctly from what is set out at paragraphs 242 and 243 in the July decision where the Commission traced the history of the casual conversion clause under the Manufacturing Award and set out that provision was introduced by the AIRC in 2000.  This is at paragraph 241, I should say, in circumstances where there were no restrictions on the employment of casuals in the manufacturing industry.  There has been and was prior to the insertion of the casual conversion provisions in the predecessors to the current Construction Awards a significant history of restrictions on the use of casual employment.  That is set out in the submissions of my client.  In particular, it's 10 August submissions from paragraph 51 through to – I apologise – it's not paragraph 51.  Paragraph 41, I should say.  Forty-one to 52 of the 10 August submissions and the Commission will see there that prior to the insertion of the casual conversion clauses in the predecessor awards back in the year 2000 there were restrictions on the employment of casuals.  And that is a matter of some distinction to the Manufacturing Award.  And, in particular, we would say allows for a distinction to be made in respect to the reasoning at paragraph 245 and 246 of the July decision where it's set out that the clause was inserted into the Manufacturing Award in a circumstance where there were no other restrictions or controls on the use of casual employment.


The situation is distinguishable here and for that reason the analysis in respect to the Manufacturing Award is not directly on point and combined, we contend, with the project based nature of the construction industry and employment under these awards provides a firm and we say compelling rationale for including a six-month trigger point for the casual conversion provisions under this award.


VICE PRESIDENT HATCHER:  Particularly, and I think this was raised in the Full Bench's decision is that what's being proposed is simply a whole new suite of entitlements, that is it's not, it doesn't involve retention of existing entitlement.  It's simply something new, isn't it?


MR BONCARDO:  It's something new but it is something new that we say, in practical terms, and in the real world is going to have very little impact in the construction industry, given the project nature of the work and the Commission in effecting a fair and relevant safety net would be inclined to ensure that the current six-month trigger point is maintained for casual conversion clauses.  Otherwise there might be, we say, a fair and minimum – fair and relevant, I should say, safety net for casual employees in the building and construction industry.  The new NES terms will have very little practical work to do and it is for those reasons that we contend that the clause can be substituted by a modified version of the NES to ensure that it does have work to do and it does ensure that casuals who are a significant feature of the construction industry in becoming a more significant feature as the reports attached to our 10 August submission show will be able to access the benefits of permanent employment.


VICE PRESIDENT HATCHER:  There would be nothing preventing – I mean you're asking us to deal with this in the context of the statutory review and you have made some fairly sweeping statements about the characteristics of the building industry and the casual employment in it but is there any reason why you couldn't make a separate application for cause like this outside the scope of the review and it could be dealt with on a proper merits basis in the usual way?


MR BONCARDO:  Well, that could certainly happen Vice President and I don't suggest that it couldn't occur.  However, we do maintain the submission that in the context of this review the Commission in ensuring that clause 48(4) is met can make the provisions of these awards consistent with Division 4A of the NES by modifying the provision of the NES so that a six-month trigger point is enshrined.  That would appropriately supplement the NES and ensure that these awards continued to have work to do and relevance to this particular industry.


VICE PRESIDENT HATCHER:  Right, thank you.


MR BONCARDO:  We'd also just make this point, your Honour, in relation to the contention that I think is made against us by some of the employer parties and it's also a matter that is raised by the Full Bench at paragraph 246 of the July decision that having a six-month trigger point would enhance the regulatory burden on employers.  We don't accept that in relation to the residual right but for casual conversion under section 66(f) because that is a right which the employee has the onus of triggering.


There is no notification requirement as we apprehend it equivalent to section 66(b), and section 66(f) and that is something that we have maintained in our alternate proposal.  If your Honour would pardon me?  I will just seek some instructions to make sure I put everything that I needed to put.




MR BONCARDO:  If the Commission pleases.


VICE PRESIDENT HATCHER:  All right.  Since we're dealing with builder construction would it be useful for you to go next Ms Abousleiman?


MS ABOUSELEIMAN:  Sorry about that.  Thank you, your Honour.  The CPU doesn't wish to make any further submissions beyond that of its written ones which we rely on.  We also rely on the submissions of the CFMMEU with respect to the Construction Award.


VICE PRESIDENT HATCHER:  All right, thank you.  Ms Wiles?  Do you want to go next?


MS WILES:  Thank you.  Thank you, your Honour.  Yes, I'm happy to go next.  Thank you.  We also adopt and support the submissions of the CFMMEU construction generally in relation to the Construction Awards and, in particular, the Joinery Award in which we have an interest.  But in terms of our primary submissions today they are directed at the Textile Clothing Footwear and Associated Industries Award.  We filed a detailed submission on the 26 August 2021 and in support of that submission we also filed the witness statement of Paris Nichols, which is at Exhibit 1, and also the witness statement of Elizabeth McPherson, Exhibit 2.


As outlined in our written submission, we do strongly oppose the provisional view of the Full Bench to delete the current clause 12, other than the opening paragraph which is being dealt with tomorrow and then replace it with the reference to the NES casual conversion entitlement.  We submit that if the Full Bench's positional view is ultimately confirmed significant numbers of casual workers in the TCF industry will effectively lose substantive rights to elect or convert which are currently available to them under the Award, and that includes the trigger after six months.


We say that such an outcome would affect the fundamental enabling purpose of the Award Casual Conversion Division in the TCF Award.  That is to facilitate a practical pathway to permanent employment for casual employees in the TCF industry.


We submit that there are a number of factors which do distinguish the casual conversion clause in the TCF Award from the considerations which have formed the decision in relation to the Manufacturing Award in stage one.  The first of that is the history of the inclusion of the casual award term in the TCF Award.  At paragraphs 20 to 35 of our 26 August submission we set out, firstly, the arbitral history of casual award regulation in the pre-reform and pre-simplified awards in the TCF industry.  And, secondly, the inclusion of the casual conversion clause in the TCF Award was part of the Part 10A Award Modernisation process.


We submit that the arbitral history for the TCF Award is appreciably different to that of the Manufacturing Award and to be set out at paragraphs 30 to 35 of our submission the Part 10A Award Modernisation Full Bench in its priority decision in 2008 determined, firstly, that the casual loading of 33 and a third per cent, which existed in the clothing industry would be reduced to 25 percent and that a loading of 25 percent would apply to the TCF industry generally.  And critically for present purposes that a comprehensive casual conversion clause would be inserted in the current terms, providing for a right to elect to convert after six months.


In its findings about the insertion of the casual conversion clause into the new Modern Award, the Full Bench found that the TCF sector was, 'an exceptional circumstance' and taking into account the nature of the industry and the reduction in the casual loading from 33 and a third per cent to 25 per cent.


The second consideration which we say is relevant relates to the nature and characteristics of the TCF industry and its workforce.


At paragraphs 36 to 41 and paragraphs 66 to 74 of our 26 August submission we summarised the nature and characteristics of the TCF industry including that the TCF industry is generally highly award dependent and low paid, that there is a low rate of enterprise bargaining, due to minimal bargaining collective power, that the TCF workforce is culturally and linguistically diverse with a significant portion of workers coming from a non-English background.  A language, other than English is spoken at home by a significant number of TCF industry employees, approximately 45 per cent.  The majority of workers are women – 58 per cent – and they're of an older cohort.  Fifty per cent are over 50, that there are low levels of Year 12 education attainment – around 58 per cent – that the great majority of employees in the TCF industry work for a small employer which, according to the ABS is less than 19 employees and that's a staggering 90 per cent of employers – and that non-compliance with minimum safety net wages and conditions in the TCF industry is persistent and widespread.


These characteristics of the TCF industry and its workforce are confirmed by the witness statement of Elizabeth McPherson and the witness statement of Paris Nichols.  And this evidence is unchallenged in the submissions of the AI Group to any extent or any other employer party to these proceedings.


Further, the nature and characteristics of the TCF industry have been consistently acknowledged by industrial tribunals in the determination of appropriate award regulation for the sector.  And we outline a number of examples and decisions of this at paragraph 42 of our submission.


We submit that the nature and characteristics of the TCF industry continue to be relevant matters which this Full Bench have taken into account when determining what constitutes a fair and relevant minimum safety net of terms and conditions, including with respect to casual employees.  Similarly, we say that these matters distinguish the TCF Award for the Manufacturing Award decision.


Thirdly, we also say that the findings in relation to the Manufacturing Award should not automatically been flowed on to the TCF Award.  At paragraphs 44 to 52 of our submission we set out the basis of our position as to why certain findings made in relation to the Manufacturing Award should not be flowed on to the TCF Award.


We further set out at paragraphs 57 to 64 the significant differences in rights and obligations of the NES casual conversion entitlement in Division 4A, specifically the differences between subdivision (b) employer office of casual conversion and subdivision (c) the residual right to request.


One of the main differences between subdivision (b) and (c) are founded primarily on whenever an employer is classified as a small business employer, that is, as defined under the Act less than 15.


As we know subdivision (b) places an express and substantive obligation on an employer, other than a small business employer to make an offer of casual conversion to an eligible casual employee with such offer being in writing.  No such obligation exists on an employer under subdivision (c).  The onus completely shifts to a casual employee to make requests of their employer to convert to permanent employment.


As I indicated the great bulk of TCF employers are small businesses.  Exhibit PN1 to the witness statement of Paris Nichols identifies at figure two that in 2020, 90 per cent of TCF employing businesses had between one to 19 employees.  In our view it can be reasonably concluded that a significant percentage of those businesses employ less than 15 employees and are therefore characterised as a small business under the Act.


Consequently, and this is a critical point, the great bulk of TCF casual employees will not be able to access subdivision (b) of the NES casual conversion entitlement and will only have the residual right of request.  This is significant that this is all casual employees are left with as a result of these proceedings and would represent, in our view, an unacceptable diminution of current rights for those employees.


At paragraph 65 of our submission we outline that the purported utility at the residual right to request is premised on a range of embedded assumptions which should not reflect the reality of many casual employees in the TCF industry.  These assumptions include, firstly, that a casual employee will have actual knowledge of their rights under the residual right to request.  Secondly, that even if a casual employee has such knowledge, in a general sense, they will sufficiently understand the steps required to facilitate those rights.  And, thirdly, that that employee will be able to and in power to enforce those rights.


These assumptions when applied to the TCF industry workforce fail to acknowledge the actual demographic profile of the TCF workforce.  Particularly, that is culturally and linguistically diverse with English often not being a worker's first language.


In our submission and supported by the witness evidence of Elizabeth McPherson the casual employment information sheet is unlikely to assist to any great degree in appropriately informing casual employees in the TCF industry with respect to their rights under the NES.


VICE PRESIDENT HATCHER:  Ms Wiles, in relation to the three points in paragraph 65, I mean I'm not denying its forceful but I was able to understand how the award clauses to (indistinct) in respect of those matters, that is performing the very same difficulties applied equally to the award (indistinct).


MS WILES:  Sorry, your Honour.  I actually missed the first part of what you just said.  Sorry.


VICE PRESIDENT HATCHER:  I'll lean in closer.




VICE PRESIDENT HATCHER:  The three points made in paragraph 65 of your submission made the context of the residual right to request in the NES.  Okay?  And can I acknowledge the practical force of that, but I am struggling to understand how those three propositions wouldn't equally apply to the current casual conversion clause in the Award.  That is what is there in the Award provision which overcomes any of those problems?


MS WILES:  I see what you're saying.  What we say is that the current Award clause, after six months, has a positive obligation on an employer to provide written notice.  So at the moment if an employer actually complies with that obligation they will, in fact, get a written notice.  Now the problem with the residual right to request is that the onus is completely on an employee to make the request.  And so without the written obligation, and even if they do give the notice, it's the compounding effect, I suppose, of not having the six months substantive obligation which requires written notice.


Certainly, it's an issue, generally, in the TCF industry of people understanding their rights under the Award.  But in our submission to diminish the current clause further will only compound those problems.


VICE PRESIDENT HATCHER:  So leaving aside the six-month issue you were pointing to the (indistinct) of the employer to give notice of right?


MS WILES:  Yes.  We say that is critical and given that the great majority of people of employers in the industry or employees in the industry are likely not to be able to access the NES subdivision (b) that will only leave them with the message of right of request which we say is problematic.




MS WILES:  So when considered in context of the nature and characteristics of the TCF industry and its workforce we submit that the NES casual conversion entitlement will likely be of very limited utility to many casual workers in the industry.


In the circumstances, we submit that clause 11.12 of the Award, other than the opening paragraph, cannot be considered objectively to be less beneficial than the NES overall, given the Award clause firstly contains a substantive obligation on an employer to provide written notice to an eligible casual employee regarding casual conversion and that obligation is triggered after six months.


And, thirdly – so that's the second point – and then thirdly, clause 11.12(d) requires that where an employer refuses an election to convert the reasons for doing so must be fully stated and discussed with the employee concerned, and importantly, a genuine attempt will be made to reach agreement.  And no such obligation, such as genuine attempt or (indistinct) exists under the NES casual conversion entitlement.


I just want to make a couple of points in response to the AI Group's reply submission of the 2 September.  And, specifically, in relation to the TCF Award AI Group's reply submissions are found at paragraphs 26 to 31.  At paragraph 27 – and I am summarising here – that the AI Group contends that there is clearly a policy justification for the Commission to follow previous Full Bench decisions in the absence of cogent reasons for not doing so.


In response we say that for the reasons we have outlined that there are cogent reasons relating to the nature and characteristics of the TCF industry for the stage one decision with respect to the Manufacturing Award not to be followed in the TCF Award.


And on this point we refer to the observations of the four-yearly review Full Bench and the preliminary issues decision 2014, FWCFB 1788, decision issued on 17 March 2014.  And I will just find the relevant paragraphs.  So that these relates to the observations of that Full Bench in relation to the Modern Awards objective and the considerations in section 134(1)(a) to (h).


And then at paragraph 33 of that decision the Full Bench says, 'There is a degree of tension between some of the section 134(1) considerations.  The Commission's task is to balance the competing considerations in section 134(1) and the diversity and the characteristics of the employers and employees covered by different awards means that the application of the Modern Awards objective may result in different outcomes between different Modern Awards.'


And then at paragraph 34, 'Given the broadly expressed nature of the Modern Awards objective and the range of considerations which the Commission must take into account there may be no one set of provisions in a particular award which can be said to provide a fair and relevant safety net of terms and conditions.  Different combinations or permeations of divisions may meet the Modern Award's objective.'


The second point raised in the AI Group's reply submissions is at paragraph 28.  And, again, I am summarising.  It's to the effect that casual conversion provisions when inserted into the TCF Award under a completely different statutory scheme.  And then I go on to refer to paragraphs 245 of the July 2021 statement decision.  And the findings to the effect that the NES suite of provisions taken as a whole are superior to clause 11.5 of the Manufacturing Award.


We contest that the NES suite of provisions when taken as a whole are superior to clause 11.12 of the TCF Award for the reasons we have outlined, and – well, that's on two bases, really.  One is that subdivision (b) of the NES would effectively exclude probably 80 or 90 per cent of the industry and would have very minimal application to the bulk of casual employees in the sector.


Thirdly, that paragraph 29 of the AI Group's reply submission that the contention there is that employees covered by the TCF Award will not be disadvantaged by the removal of the clause because they will have access to a scheme of entitlements which is more beneficial to them than that provided under clause 11.12.  This is obviously a similar point to paragraph 28 and we do reiterate our submissions that significant numbers of casual employees in the TCF industry will, in fact, be disadvantaged if the current clause 11.12 is deleted and replaced with a reference to the NES.


At paragraph 30 of the AI Group's reply submission that's to the effect that the views of Elizabeth McPherson that's her statement, Exhibit 1, regarding non-compliance within the TCF industry are relevant to the issue of whether clause 11.12 should remain in the award.


VICE PRESIDENT HATCHER:  Sorry.  Did you say 'relevant' or 'irrelevant'?


MS WILES:  Are irrelevant.  I will just check that it's – I am pretty sure it is irrelevant – yes.  Yes – 'irrelevant' – yes.  Again, we fundamentally disagree with that contention.  Ms McPherson's evidence is unchallenged.  The AI Group had an opportunity to cross-examine her on her evidence and declined to do so and one of the nature and characteristics of the TCF Award – and has been generally acknowledged over many decisions now, is the high rate of non-compliance generally with award terms and conditions.  And so that provisions which are designed to ameliorate or address that phenomena are relevant to the safety net.


Just on the issue of evidence we similarly say that the AI Group has not engaged in any real attempt to deal with the evidence that's been filed in relation to Elizabeth McPherson and Paris Nichols and that the Full Bench is open to draw a number of findings in relation to that evidence as a consequence.


In terms of next steps, in our submission, the 26 August in the final paragraph – paragraph 81 – we submitted there that the appropriate clause for the Full Bench is to redraft clause 11.12 of the TCF Award but only to the extent necessary to ensure consistency with the Act is amended but preserving the six-month eligibility period for casual employees and ensuring that all TCF employers of any size are subject to the casual conversion provision.


We hadn't settled to date on a proposed draft determination.  We're really just trying to deal with the principles of what we were seeking but just on my feet, if it was possible to basically modify the inclusion of the NES entitlement but to ensure that it applied to all employers and will so apply it after six months then we would think that that was a clause that could be suitably inserted, supplementary to the NES.


VICE PRESIDENT HATCHER:  But again, Ms Wiles, and I raised this with Mr Boncardo, that you're talking about a whole new regime, aren't you?  We're not talking – that's not just a little fix upon the (indistinct) clause to remove inconsistency.  It has some (indistinct).


MS WILES:  Your Honour – sorry, go on.


VICE PRESIDENT HATCHER:  Perhaps I can just elaborate on the precedent.  For example, the requirement offer which we find in the NES has no reflection in casual conversion clause here or in any of these clauses we're considering this morning.  The NES says it doesn't apply to all business employers and has the 12-month qualifying period.  So you would be talking about the creation of a whole new set of rights in the context of this would you?


MS WILES:  Your Honour, our first preference is really, as I indicated in paragraph 86 of our submission that if the existing clause can be modified to make it consistent with the Act, given whatever findings the Full Bench makes after hearing our submissions, but to ensure the preservation of the six-month eligibility period then that would probably deal with it.  I mean at the moment, you know, the existing clause – 11.12 – is not restricted in any way or qualified by only applying to employers who aren't small businesses.


So in terms of actual modification that would be our first preference but obviously if the Full Bench determines that that's too difficult or clunky to deal with actually consistencies with the NES then the second approach would also be acceptable.


I mean following on from what Mr Boncardo said that, of course, any union is able to bring a merits based application outside this review but we are dealing with the matters before us in this review and we reiterate that we think that the deletion of the current clause 11.12, other than the opening paragraph, would be an unacceptable diminution of current terms and conditions which we say are necessary to ensure that the TCF Award meets the Modern Awards objective.  Unless there's any other questions, if the Commission pleases.


VICE PRESIDENT HATCHER:  All right.  Thank you, Ms Wiles.  Now, Mr Kemppi do you want to finish for the unions?


MR KEMPPI:  Thank you Vice President.  Other than to say we support the submissions of the unions, our affiliates, I have nothing further to add to those submissions.


VICE PRESIDENT HATCHER:  All right.  Thank you.  So we will turn to the employers.  Do you want to start off, Mr Smith?


MR SMITH:  Yes, thank you, your Honour.  If the Commission pleases our position is set out in some detail in our reply submission of the 2 September.  As we have identified there, we agree with the Commission's provisional views that the casual conversion clauses in each of the 12 awards should be removed.  As we see, the union's submissions and evidence, it appears to us that largely these submissions and, indeed, the witness statements seek to recontest matters that have already been determined in Stage 1 of the review.  We accept, of course, that that was in the context of the Manufacturing Award.  But as the provisional views identify there isn't any material difference between these 12 Awards and the Manufacturing Award on the relevant points.


Now at paragraph 12 of our submission of the 2 September, we set out 10 points that we see as relevant conclusions about the casual conversion clause in the Manufacturing Award that we submit are equally relevant to the other 12 Awards.


Now the one that the unions point to in their submissions, is the second one where the Full Bench, in stage one, identified that the casual conversion clause in the Manufacturing Award is more beneficial to employees than the NES residual right.  But, importantly, as we have identified in point one, the Full Bench concluded that despite that when considers it as a whole, the NES provides a scheme of entitlements which is more beneficial to employees than clause 11.5 in the Manufacturing Award.


The Bench decided that the casual conversion provisions in the Award are inconsistent and conflict with the NES provisions, that if they remain in the Award the employers would be faced with compliance difficulties because there would be different and competing conversion requirements.  It will give rise to uncertainties and difficulties, given the interaction issues, there would be an added problem that some casual employees would not be entitled to request conversion under the Award but would be entitled to request conversion under the Act.


The clause in the Award would alter, impair, or detract from the NES the retention of a right in the Award for an employee to request casual conversion after six months.  Importantly, the Bench decided that that would not be necessary to meet the Modern Awards objective and hence that would not comply with section 138 of the Act.  The Bench even identified that the point that we made strongly in our submissions that to just keep that six-month right would be cherry-picking as we described it, and as the Full Bench described it of one entitlement when there is a whole regime in the Acts and previously a whole regime in the Manufacturing Award.


And, finally, that keeping parallel entitlements would impose a regulatory burden on employers and hence wouldn't be consistent with the elements that we have identified there of the Modern Awards objective.


Now, we submit that those 10 conclusions are equally relevant in all 12 of the Awards.  As we have also pointed out in that submission the President of the Commission determined a process or proposed a process for working through this review.  And six Awards were selected for stage one and those awards were expressly selected to identify a range of issues that were obviously going to come up in a wide variety of other Awards.


The President put out a statement, convened a conference, all parties supported that process, including the employer parties and all of the unions who are represented in these proceedings and to come along in Stage 2 and argue, really, against the outcome in Stage 1, needs to be seen in that context that this is a review of a very short timeframe as required by the Act and a very sensible and fair process which was designed to achieve consistency of decision making and also an ability to meet that timeframe – you know – has been put in place.


There were lengthy submissions made in Stage 1 by the unions, by AI Group and other employer parties about the very issues that are the subject of the proceedings today.  Those issues were thoroughly considered and the Full Bench in Stage 1 made the decision in relation to those issues in the context of the Manufacturing Award.


If I could just respond, briefly, to a couple of points that were made today in the oral submissions?  The UWU and the AMWU argued that there is something very different about the food manufacturing industry and the Food Manufacturing Award.  Now, we don't agree with that and the Food Manufacturing Award was based on the Manufacturing Award.  In fact, most of the clauses in the Food Manufacturing Award are identical to the Manufacturing Award.  There were three main pre-Modern Food Awards and neither of them or none of them form the basis of the Modern FBT Award.  It was actually the main Manufacturing Award, which in turn was based on the Metals Award as the Bench is aware.


On this issue of whether or not there's something different about casuals in the food manufacturing industry, well the ABS stats show that the manufacturing industry has a relatively low incidence of casual employment, compared to other industries like retail and hospitality, which far and away have the highest incidence of casual employment.


There is only about 15 per cent of employees in the manufacturing industry are casuals, and are well under the average across all industries.  If I can just make a few comments about Mr Boncardo's submissions on behalf of the CFMMEU.  The point was made that the construction industry is project based.  Yes, that is true, but a lot of the employment in the industry is not project based.  These days, as everyone is aware, construction workers typically are employed by subcontracting organisations, not head contractors, and they move from project to project.


Again, the construction industry is not an industry that has a high proportion of casual employees in it.  It's way under the number of casuals in the sectors, like retail and hospitality.


On the issues raised by Ms Wiles about the TCF Award.  The TCF industry is a manufacturing industry, so the ABS stats group all of the casuals in the industry together and, as I have said, there isn't a high incidence of casuals in manufacturing compared to – you know – industries, like retail, hospitality and some others.


The CFMMEU manufacturing division often talk about vulnerable workers in the TCF industry but many of those vulnerable workers are out workers.  They're not casuals.  And out workers are not the subject of this review.  So whatever the outcome of this review, as it relates to casuals, won't have an impact on out workers.


We have, in our submission, as Ms Wiles has pointed out, raised some important points about the TCF Award and the TCF industry.  The arguments are really about the importance of keeping this – well the CFMMEU's arguments are about the importance of keeping this six-month right to request.  But as the Bench in Stage 1 pointed out, that just to keep that would be cherry-picking and when considered as a whole, the regime for conversion under the NES is more favourable to employees.  So no one's being disadvantaged by keeping that regime undisturbed because it provides more advantages than the Award provisions when considered as a whole.


On the issue of compliance, as we have said in our submission, if it's accepted even that there is a compliance problem in the TCF industry, this retention of Award provisions will do nothing for any such problem, because why would it conceivably be the case that people are more inclined to comply with an award than they are to comply with NES provisions, when there's been an enormous amount of publicity about the NES provisions?  There is also the casual employment information statement.  There is a lot of work that the Fair Work Ombudsman is doing to educate employers and employer groups are doing.  So it just does not follow that keeping the provisions in the Award is going to do anything for compliance.


I might leave it there unless the Bench has any questions.  Thank you.


VICE PRESIDENT HATCHER:  Mr Smith, just two matters.  Paragraph 12 of your submission, the 10 propositions - - -




VICE PRESIDENT HATCHER:  I am not sure the second proposition is correct the way it's worded but I could check but I thought we only said that clause 11.5 was more beneficial to the extent that it had the six-month entitlement but we also identified a number of respects in which it was less beneficial.


MR SMITH:  Yes.  I may have mischaracterised it there, your Honour, but the point I was trying to make is that the six-month proposition in there, the Bench regarded as more beneficial than the residual right which is the six months – but I really – one and two are part of the same point that as a whole - - -




MR SMITH:  - - -it is more beneficial.  So one and two would have been better grouped as one point.


VICE PRESIDENT HATCHER:  All right.  And the second matter, and this, is for Mr Boncardo and Ms Wiles, you'd accept that if the union wants to – outside of the scope of the view wants to run a substantive merits case that some wider scheme of casual conversion needs to be erected because the NES provisions are ineffective for an industry for particular reasons it's their right to do so?


MR SMITH:  Yes.  Anyone that has standing to apply to vary award is free to do that at any time, yes.


VICE PRESIDENT HATCHER:  Right, thank you.  Mr Arndt?


MR ARNDT:  Thank you, Vice President.  Just some quite brief submissions from me.  ABI and the Business Chamber endorse the provisional views of the Commission.  For us it boils down to the general principle that we say the Commission should not maintain a status quo, which currently operates in these Modern Awards which involves the concurrent operation of two distinct and separate casual conversion regimes.  We say that will give rise to uncertainty and difficulty and as a broader point it's not consistent with the operation of a Modern Award system which is simple and easy to understand.


It's this concurrent operation point which is our principal focus and concern.  In terms of the union's focus this morning, it has been on the Modern Award's objective which is understandable and there was an acceptance of all parties in the preliminary proceedings to these that the Modern Awards objective is relevant to the Commission's task in the review but one must keep in mind the context of these proceedings which is the review, which the scope of which is outlined in the amending Act.  We would say the ultimate point of the review is to assess whether the casual terms of awards sit consistently and coherently alongside the new NES provisions.  That's expressed in the amending Act through the words, such as consistent difficulty and uncertainty.


We say having two concurrent casual conversion regimes will give rise to at least difficulty and uncertainty and we say the appropriate cure to this is a simple cure which is to merely retain the NES entitlement.  It's obviously not the only available approach the Full Bench could – if it wanted to – undertake a redrafting exercise of the Award clauses but we don't endorse that approach for the various reasons that have already been put this morning, being the cherry picking approach.  If a redrafting exercise is to happen I would accept the position that your Honour had just put to Mr Smith about the suitability or the preference for a full merits case be run on such a point, as opposed to running that case in the context of this review, which has been done at a very brisk pace.


In short, we say, that the Full Bench was correct in its July decision in relation to the Manufacturing Award.  On the soundness of that reasoning, as well as the fact that as a general point the Commission should follow its reasoning we say that the Manufacturing Award approach should be followed again.  And unless there's any questions those are our submissions.


VICE PRESIDENT HATCHER:  Right.  Thank you.  Do any of the other employer representatives want to add anything beyond simply supporting what's already been put?


MR SOSTARKO:  Thank you, your Honour.  It's Ms Sostarko from Master Builders.




MR SOSTARKO:  If it pleases, as you note, our submissions of the 2 September we continue to rely on those and they effectively echo those sentiments that have been expressed this morning by the other employer groups.  All I would seek to add this morning is that there's certainly no evidence that's been brought in this morning – oral submissions of the CFMMEU that would give rise to any industry-specific considerations of merit.


We would also argue that in addition that there is no evidence that has been brought either during these proceedings or again this morning that in evidence or support of the casual conversion provisions within the building and construction industry.  And, thirdly, in terms of the materials that were filed this morning by the CFMMEU we certainly have had not any time to consider those, notwithstanding, as you have noted, your Honour, they certainly – the union certainly has – there's nothing precluding them from making a separate application along those lines as filed in that draft determination.  But we would certainly strongly argue that given the scope of the review that those proposed amendments are well outside that.  And if there's nothing further, your Honour, that's our submissions.


VICE PRESIDENT HATCHER:  Thank you.  Ms Schladetsch, do you wish to add anything?


MS SCHLADETSCH:  Yes, your Honour.  I won't read today what's in our written submissions.  I just wanted to note a few things from the oral submissions of the other union parties this morning.  So just noting off in relation to clause 11.7 of the Joinery Award, I just wanted to note that there is an identical clause which sits within the casual conversion clause of the Building and Construction Award.  So, accordingly, we submit that this clause should fall within the scope of this review and there is no substantive reason for the Commission to depart from its provisional view to delete that particular clause.


In relation to the casual conversion provisions, I note that the CFMMEU has not produced any evidence of that to the six month or versus 12-month qualifying period has been utilised.  There is no substantive evidence put before the Commission to persuade the Commission to deviate from its previous decisions in relation to that particular provision.


And there has been no substantive change within the industry to warrant a change from the views of Parliament or this Commission.  We say that these matters have been well ventilated during previous and the matters raised by the contesting parties do not appear to fall within the scope of this review.  If it pleases the Commission.


VICE PRESIDENT HATCHER:  Right, thank you.  And Mr Hodges?  Do you wish to add anything?


MR HODGES:  Look, thank you, Vice President.  Just very quickly, we rely on the submissions we have already filed in regard to the equal award and we would say based on those submissions and the material before you the Commission should be satisfied that it should confirm its provisional view, provided in paragraph 55 of its statement of 11 August 2021.  Thank you.


VICE PRESIDENT HATCHER:  Right.  Thank you.  All right.  Do any of the unions wish to reply to anything that was said this morning in the oral submissions?


MR BONCARDO:  Your Honour, if I may just very briefly?  In response to Mr Smith's submission it was suggested, as I apprehended it, that the clauses that we were proposing which, in effect, are a modification of the NES entitlements under Division 4A with a reduced qualifying period to six months would somehow alter, impair and detract from the NES for the purposes of section 55(1) of the Act, that submission has no merit and is plainly wrong in our submission.


Secondly, to the extent that Mr Smith suggested that the Full Bench concluded in its July decision that overall the NES entitlements were more beneficial than those provided by clause 11.5 of the Manufacturing Award, that is not how we read paragraphs 235 and 236 of the Full Bench decision issued in July, and in our submission, it is plain as a matter of logic that an entitlement which is triggered after six months, rather than 12 months is plainly more beneficial.


Thirdly, in relation to the submissions made against the modification that we are proposing as an alternative to this morning, can I say this?  That the residual right under 66(f) and 66(g) in Part 4A of the Act is one that we contend applied in the Award with a six-month trigger point.  It will have work to do and will be, we say, more beneficial and practically available than those provided by the NES.  Unless the Commission has any questions those are the matters I wanted to raise in reply.


VICE PRESIDENT HATCHER:  Right, thank you.  Does anyone wish to reply to anything else that was said in the oral submissions this morning?  I can see your mouth moving Ms Wiles but your microphone is not on.


MS WILES:  Look, thank you, your Honour.  Just a couple of points in response to Mr Smith's submissions.  He made a point that in terms of the level of casual employment in the TCF industry by saying that the TCF industry is part of the manufacturing industry.  Look, that is correct, and that does pose a problem to some extent in drilling down into specific data in relation to the TCF industry.  But if I could take you to PN1 to the witness statement of Paris Nichols?  On page five of that statement - - -


VICE PRESIDENT HATCHER:  Just hold on while we find that.


MS WILES:  Thank you.


VICE PRESIDENT HATCHER:  Yes.  So where in the statement?


MS WILES:  So it's page five.  It's part – it's one of the – it's figure one.




MS WILES:  You'll see there that for the statistics or the data in relation to employees in the TCF industry who are full-time employed and you will see that there's – so this is in – sorry this in thousands.  So this is – sorry - - -


VICE PRESIDENT HATCHER:  You're looking at figure 2, are we?


MS WILES:  Figure 1.




MS WILES:  So this is the percentage of full-time employees out of – sorry, I will withdraw that submission.  My apologies.


VICE PRESIDENT HATCHER:  So there's – if we add up 27 and 33 to get permanent employment are we?


MS WILES:  Well, this – so the figure on top which is 40.7 is like 40,000 people.


VICE PRESIDENT HATCHER:  So there's 33 per cent part-time.


MS WILES:  That's right.  And so – but what this doesn't show – and this is the point that I wanted to make is that the difficulty in containing casual employment figures is that the census doesn't ask the question, 'Are you a casual employee?'  And so - - -


VICE PRESIDENT HATCHER:  I see.  So this is only about hours.  It's not about mode of employment?


MS WILES:  That's right.  That's right.




MS WILES:  I just wanted to clarify that.  The other issue is that – so Mr Smith's submission that, you know, the suite of NES entitlements is more beneficial than the current clause 11.12 under the Award, ignores the substantive issue about the fact that significant numbers of people who work in the industry – casual employees – would be excluded from the primary entitlements of the NES entitlement which is the subdivision (b) provisions and would only be left with the residual right to request, which we say for the range of reasons would have little utility.


And in terms of the casual Fair Work statement, I mean we make this point again.  It's not a legislative instrument. It might be a requirement for an employer to provide it but they only have to provide it once in the 12-month period.  As far as we're aware it's only in English.  And so for the reasons that we have submitted before that for many people in the industry who don't have English as the first language that document is unlikely to be very effective in informing them about their rights to access the NES entitlement.




MS WILES:  Because – well, one they won't be able to read it – assuming they even get it.  They wouldn't be able to understand it.


VICE PRESIDENT HATCHER:  Well, I think the Fair Work Ombudsman has publications in multiple languages doesn't he?


MS WILES:  Your Honour, when I looked at the time we were doing our submissions I looked on line and I couldn't see at all that it was in any other language.  And this is
- - -


VICE PRESIDENT HATCHER:  What's the difference between that and the employer's notice?  I mean is there any requirement on an employer to express the notice in any other language than English?


MS WILES:  Do you mean within the current casual conversion clause?




MS WILES:  Yes.  No, there isn't.  And like we would say that that's a problem as well.  I mean, essentially if you're using a document to inform employees of their rights to access other rights in the award then it should be in a language that they can understand.  And certainly in the TCF Award in some other provisions, such as the consultation provision, those sort of ancillary or safeguards are provided.  If the Commission pleases.


VICE PRESIDENT HATCHER:  Right, thank you.  Anybody else in reply?


MS TOBIN:  Your Honour, I - - -


MS MIFLIN:  No, Kylie, please?


MS TOBIN:  Your Honour, if I could, I would like to just briefly respond, not to an oral submission made this morning but to the reply of the Motor Trades Organisation which was filed on the 2 September which I neglected to do earlier this morning.


VICE PRESIDENT HATCHER:  Have you done that in writing yet?


MS TOBIN:  I have not.  It's very brief.  If I could have the opportunity to do that now orally I would be grateful.




MS TOBIN:  The response filed on the 2 September appears to suggest that the employees referred to by Ms Coppock in Exhibit 9 – sorry – as having been successfully converted at six months under the Vehicle Award, were in fact covered by the GPC Asia Pacific Wingfield Distribution Centre Agreement 2019, to which the SDA is a party, I'd just like to confirm that the members referred to in that statement were not converted under an EBA and were not covered by an EBA but were, in fact, converted successfully at six months under the Vehicle Award and so does represent evidence of the use of the Vehicle Award casual conversion provision at the six-month mark.  And I have nothing further.  Thank you.


VICE PRESIDENT HATCHER:  Right, thank you.  And Ms Miflin?  Did you want to say something in reply?


MS MIFLIN:  Thank you, Vice President.  It was just in reply to Mr Smith with respect to the food and beverage industry.  Just one small point similar to the point raised by Ms Wiles.  Just to distinguish that the Food and Beverage Tobacco and Manufacturing Industry is quite distinct from the manufacturing industry.  Yes, it was borne out of that award but it has – there is quite a distinct difference in terms of the make-up of casuals in that industry.  It might be the case that on retail has higher levels of casualisation compared to manufacturing but the food beverage manufacturing industry, we say, which we have evidenced in our statement from Ms Minhas, is a relatively, or it's a highly casualised industry, relatively low paid and needs to be distinguished on that.  Thank you.


VICE PRESIDENT HATCHER:  Well, finally, Mr Hodges do you want to respond to the point that Ms Tobin, just made?


MR HODGES:  Thank you, your Honour.  Just very briefly, in our submissions, we didn't state that those particular employees in question were covered by an enterprise agreement, merely that an enterprise agreement applied in regard to at least some of the employees employed by Repco in Adelaide.


VICE PRESIDENT HATCHER:  All right.  Thank you.  All right.  Well, if there's nothing further we will reserve our decision about these awards.  So parties who have attended for this part of the hearing are now excused and can leave.  Can I enquire of my associates whether Mr Murdoch and Mr Latham are back yet?


THE ASSOCIATE:  Vice-President, I can confirm that Mr Latham is on the line but we're just still waiting for Mr Murdoch but I can confirm he is returning.


VICE PRESIDENT HATCHER:  All right.  Well we'll adjourn now and we will resume at 12 midday.

SHORT ADJOURNMENT                                                         [11.47 AM]

RESUMED                                                                                   [11.59 AM]


VICE PRESIDENT HATCHER:  All right.  So Mr Murdoch, and Mr Latham what's the position?


MR MURDOCH:  Vice President, we have sent a short written summary of our position by email to the associate.  Do you have the benefit of that?




MR MURDOCH:  And that was sent, of course, to my learned friend, Mr Latham.  I would prefer on the basis of instructions simply to read that into the record with the respectful request that the terms of that statement be recorded in an appropriate fashion in the Full Bench's decision so that there's an historical record of the way the matter was dealt with.


VICE PRESIDENT HATCHER:  Right.  Go ahead, Mr Murdoch.


MR LATHAM:  Sorry, Vice President, this is not an agreed position.




MR LATHAM:  It has not been suggested.




MR MURDOCH:  I didn't suggest it was.




VICE PRESIDENT HATCHER:  Go ahead, Mr Murdoch.


MR MURDOCH:  The cinema employers having noted the views expressed today by the Commission and counsel for (indistinct) accept that the provisions as to hours of work and rosters of Part 10 of the Broadcasting Recorded Entertainment and Cinema Award will continue to apply to employees who convert to part-time employment pursuant to section 66B of the Fair Work Act.  Accordingly the cinema employers do not press for a variation of the award and request that this statement be recorded in the decision of the Full Bench.


VICE PRESIDENT HATCHER:  Mr Murdoch, can I just confirm that that means that you no longer or your clients no longer press their opposition to the provisional view which we expressed in relation to the casual conversion provision in this award?


MR MURDOCH:  That's right.


VICE PRESIDENT HATCHER:  All right.  Thank you.  Well, Mr Latham, does that leave anything else for you to deal with?


MR LATHAM:  Look, I think just this, your Honour.  There's no difficulty with a second sentence of the statement.  In relation to the first sentence of the statement I think what it's really seeking to do is to have the current award arrangements override the NES where they're inconsistent and that's not consistent with the Act.  If it's not saying and if all it's simply saying is the cinema employers accept that the provisions of the NES apply where inconsistent well then that doesn't cause a difficulty.  But there are some slight differences in the wording between the current award provisions and the Act, and they're set out at paragraph 34 of the submissions of the MEAA and the submission simply put is that where there are those conflicts between the current award provisions and the NES, the NES must prevail.


VICE PRESIDENT HATCHER:  All right.  Well we don't need to decide whether there are any such conflicts do we?  That is, the only proposition we're dealing with at the moment is whether the casual conversion clause should be deleted and replaced with a reference to the NES provisions on the basis of his statement that Mr Murdoch's clients are now withdrawing their opposition to the provisional view.  You don't oppose the provisional view so that's all we really need to deal with, isn't it?


MR MURDOCH:  Well, your Honour, our purpose in bringing the matter forward was to avoid conflict down the track and it does appear from what my learned friend has said that there's potential for conflict.  We had wished to put it beyond doubt with a simple variation of the award and regrettably we'd proceeded on the basis of what is said Vice President, but more particularly, on what appeared to be an acceptance of what you said on behalf of the union.


VICE PRESIDENT HATCHER:  Well, to make it clear, speaking for myself, I don't see what the conflict is and again speaking for myself, in my view, I'm not persuaded that – of anything other than that if someone converts on the NES provisions they will subject to any private contractual arrangement be subject to the part-time employment provisions of the award.  So I think we're at one about that.


MR MURDOCH:  And we're content with that.  We would respectfully ask that the way this is being played out be recorded in the decision.


VICE PRESIDENT HATCHER:  All right.  I mean at the end of the day, of course, our opinions can't bind any court in relation to any issue that might arise but I mean that's about as far as we can take it, isn't it?


MR MURDOCH:  Yes.  We will proceed on that basis, thank you.


VICE PRESIDENT HATCHER:  Yes, all right.  All right, well if there's nothing further we'll now adjourn.

LUNCHEON ADJOURNMENT                                                [12.06 PM]

RESUMED                                                                                      [2.06 PM]


VICE PRESIDENT HATCHER:  Can I take the appearances, please.


MR A OEHME:  Good afternoon, Vice President, Oehme, for the Australasian Meat Industry Employees Union.


VICE PRESIDENT HATCHER:  Thank you.  And, Mr Smith, are you there?


MR S SMITH:  Yes.  Thank you, your Honour, just having a few difficulties there.  If it pleases the Commission, Smith, initial S, of the Australian Industry Group.


VICE PRESIDENT HATCHER:  Thank you, Mr Smith.  Before we start, Mr Smith, in previous or during the four-yearly review I recall the Australian Meat Industry Council appeared in relation to this award, are they an affiliate of yours or are you separate from them?


MR SMITH:  They're separate, your Honour.  I haven't had any discussions with them.  We do have some substantial members in the meat industry, but ‑ ‑ ‑


VICE PRESIDENT HATCHER:  I'm not doubting that, Mr Smith, but they usually turn up.  I'm a little bit concerned that they're not here, but anyway, all right.




VICE PRESIDENT HATCHER:  There's nothing we can do about that.  Right, so who'd like to go first?


MR OEHME:  I'm happy to start off, Vice President, if that's convenient.




MR OEHME:  I might just say that we had also had some discussions with AMIC about this matter and we don't understand that they were proposing to appear or make any submissions on point.




MR OEHME:  Vice President, I might start with the headline issue that arises from clause 11 of the award, which is in essence whether daily hire employees under the award fall within the statutory definition of casual employment in section 15A.




MR OEHME:  Now, in our outline of submissions we've adverted to the historical development of daily hire employment, and in summary we say that it's a hybrid mode of permanent employment which has developed in parallel to casual employment, but is distinct and separate.


And it would be our submission that daily hire does not satisfy the statutory test under 15A.  We understand that Ai Group are on the same page that far.  Neither party has really made any detailed submissions as to what award variations are appropriate if the Commission is ultimately against us on that point, and all I can indicate is that we would seek the opportunity to be heard if the Commission ultimately finds that this is a form of casual employment, and I suspect that we and Ai Group need to have some fairly detailed discussions about how to deal with the issue thrown up by that conclusion as far as the construction of the award is concerned.


VICE PRESIDENT HATCHER:  Well, unfortunately time doesn't permit that sort of approach.  What we envisage is that we will issue a decision hopefully by the end of this week or early next week which deals with all the issues being dealt with today and tomorrow.  Any variations to the award will then be subject to a draft determination which will accompany the decision, and the parties will be given seven days to respond to that.


To be clear I don't think there's any issue about radically changing or displacing daily hire employment.  The only question is whether we can continue to proceed on the assumption that these employees receive the non-casual benefits provided for by the NES on the basis that they don't fall within the statutory definition.  Alternatively if we consider they do fall in the statutory definition or they might, whether we should vary the award to ensure that if they don't receive the NES provisions through the Act itself there's some award provision which gives them the entitlements which they currently enjoy.


So, they're really the two possibilities I think.


MR OEHME:  I understand.  Thank you, Vice President.  And I think to that extent we've addressed some of those possibilities in our written submissions to date.


So, I might start with the statutory test posed by section 15A and what we say is the correct approach to that by the Commission in the context of this matter.


It's uncontroversial that section 15A(1)(a) sets a general test that a casual employee is one with no firm advanced commitment to continue in indefinite work according to an agreed pattern of work.  And at a very general level we say that daily hire employment doesn't meet that definition, firstly, because clause 11.5 of the award confirms that the engagement of daily hire employees is continuous and as such they have a commitment to continuing indefinite work.  And, secondly, that the agreed pattern of work is set out in clause 11.9, which provides that the daily hire employee has to attend and offer employment at the employer's premises at the usual starting time on each ordinary business day.


But, we also say that it's necessary to drill a little deeper into that into the indicia set out in section 15A(2) which makes clear that really the matter isn't just to be determined on that facial analysis.  So at 15 ‑ ‑ ‑


VICE PRESIDENT HATCHER:  So before you move on, under clause 11.9 there's a requirement for the daily hire employee to attend the workplace unless notified in advance.  But their attendance is itself not a guarantee they've got work, is it?


MR OEHME:  Sorry, Vice President, you cut out in that last section.


VICE PRESIDENT HATCHER:  Yes, 11.9 provides that daily hire have an obligation to attend the place of work each working day unless notified not to attend, but their attendance doesn't guarantee they're going to get work that day, does it or does it?


MR OEHME:  They should be notified in advance if they are not required, so I think if they do actually attend on the day, having not been notified in advance, that should indicate that they're going to be provided employment that day.


VICE PRESIDENT HATCHER:  Well, it should but is that something the award provides for?


MR OEHME:  My understanding, Vice President, is that the scheme of the award is that if you aren't notified in advance of your attendance on the relevant day, then the offer of employment is required from the employer at that point.


VICE PRESIDENT HATCHER:  All right.  Anyway, so let's assume you're right, so how does that give rise to a re-pattern of work?  What's the pattern?  That is the employer can simply notify in advance in respect of any day that - on a totally intermittent or irregular basis that you are or you are not required to attend, doesn't it?


MR OEHME:  Well, with respect, Vice President, the analysis we say doesn't actually occur at that level of generality. We say that in order to reach the conclusion about whether there is the firm advanced commitment you need to specifically have regard to the criteria in section 15A(2)(a), and in fact the legislation is clear that it's only those indicia set out in that sub-placita that are relevant to the Commission's determination of the issue.


And that much is clear from both the language of the legislation, which in 15A(2) says regard must be had only to the following considerations, and that is emphasised by the explanatory memorandum, which at paragraphs 14 and 15, says that the indicia set out in 15A(2) are drawn from the Full Court decisions of Skene and Rossato, however, they are also intended to narrow the list of factors that one has regard to in determining casual employment to the common law test.


So the statutory purpose here is to set out a set of indicia which narrow the factors that the Commission would have regard to in determining whether one is a casual or not compared to the more wide ranging inquiry that we see in Skene and Rossato.




MR OEHME:  So if we then turn to those factors.  I might conveniently deal with subsections (a), (c) and (d) first, because, in our submission, those are very clear, and for daily hire employment none of these are satisfied.  The employer it must be said can elect to offer work, but the worker has no right to reject an offer of work.  They are obligated in fact by clause 11.9 to attend the employer's premises and offer employment on each day unless notified otherwise by the employer.  So they don't have their own ‑ ‑ ‑


DEPUTY PRESIDENT EASTON:  On that understanding what's the consequence if a worker doesn't attend for work?


MR OEHME:  I think we would have to say that it would be a breach of their contract of employment or the terms of the award and they'd be liable to disciplinary sanctions.


DEPUTY PRESIDENT EASTON:  See, because 11.9 says 'will attend', which is not as strong as 'must'.  But has that been applied in the industry as a requirement for employees to attend every time and is there an understood, for example, consequence if employees don't attend?


MR OEHME:  The short answer is, yes, it's always been understood as a positive requirement on the employee to attend and offer work on the day, although it's phrased as 'will' rather than 'must', but ultimately, in our submission, that doesn't change the effect of it.  The obligation is on the worker to turn up at the premises of the employer and offer to perform work unless they've been notified in advance that that's not required.  And if they were to fail to do that then no doubt they would face disciplinary sanctions.




VICE PRESIDENT HATCHER:  So (a) is in effect 50-50, isn't it?


MR OEHME:  Sorry, Vice President?


VICE PRESIDENT HATCHER:  So paragraph (a) is in effect 50-50?


MR OEHME:  Yes, that's right, 50-50 on paragraph (a).




MR OEHME:  Although we would say that paragraph (a) is really a combined statement.  It's not two separate requirements.  It's a joint requirement that there is both a freedom of the employer to offer work and the freedom of the employee to reject it, so the fact that it's 50-50 doesn't necessarily mean that the requirement is satisfied in its entirety.




MR OEHME:  Turning to 15A(2)(c) clearly daily hire is not described as a form of casual employment.  It's set out separately in the award.  Casual employees have their rights separately delineated.  It's given a different name, so they are not described as casuals in the instrument.


As far as 15A(2)(d) is concerned they're also not entitled to any casual loading.  Again, it's a separately identified entitlement that applies only to casual employees under the award.  They are entitled to a loading of 10 per cent above the ordinary wages of a full-time employee, but, in our submission, that doesn't convert that into being some form of casual loading.  The question posed by 15A(2)(d) is the entitlement identified as a casual loading or not.  And clearly there are other forms of loadings that might be applicable to employees that are not intended to be captured by that.


VICE PRESIDENT HATCHER:  There's a circularity in the sense that, for example, talks about specific rate of pay for casual employees.  They're certainly entitled to a specific rate of pay and then the casual employees of course reverts back to the definition, so they certainly receive a 10 per cent loading for what might be described as the casualness of the work in there.  That is, they don't get the 15 per cent said to be the value of the leave entitlements but they get 10 per cent which might be said to be the value of the casualness nature of their employment.


MR OEHME:  Yes.  We would have to accept that the loading is paid in recognition of a certain level of uncertainty in the working arrangements, or not in terms of the length of the engagement or the continuous nature of the employment, but rather the particular days on which work may actually be performed, and that's in light of the seasonable variations in weather and stock availability adverted to in our written submissions.




MR OEHME:  Finally, turning to 15A(2)(b) this is perhaps the criteria which arguably is facially satisfied by daily hire employment, but we have to say that the notion that a person will work as required according to the need of the employer is a slightly curious factor, because after all essentially all employees work according to the needs of the employer.  And that alone doesn't usefully discriminate between casual and permanent employment.


We say that that wording really needs to be understood in its industrial context, and again what the explanatory memorandum emphasises is that these factors are drawn from the Full Court decisions in Skene and Rossato.


In Rossato the Full Court talks about the language of working to the needs of the employer or working as required, and they refer to the earlier Full Court decision in Hamzy v Tricon International Restaurants.  Now, this discussion is set out at paragraphs 422 and 423 of the Full Court decision in Rossato, that is, the Federal Court rather than the High Court.  And I'll note that this analysis isn't really cavilled with by the High Court in the appeal judgment.


And so what the court cites from Hamzy is that the court there was considering a difference in wording between a definition of casual employment under the Workplace Relations Act and a regulation that was purportedly passed under that Act.  And what the Full Court there said is that:


Both descriptions embrace an employee who works only on demand by the employer (or perhaps only by agreement between employer and employee) over a 'short period' (whatever that may be).


And then in Rossato, paragraph 423, having just cited that, the court says:


The reasoning in Hamzy suggests that it is the as required nature of the employment or its shortness which are indications of the absence of the postulated firm advance commitment.


So, understood in that light, we would say that the daily hire, as it's set out in the Meat Award doesn't evidence that shortness of engagement, and in fact what it evidences is the contrary intention that despite whatever arrangements may occur on a day-to-day basis as far as working hours are concerned the employee does have a continuous engagement that is permanent in nature unless terminated by notice.  And in that respect they're in the same category as permanent and part-time employees.


So, that is essentially how we say the Commission has to approach the question under section 15(1).  There's a headline definition, the absence of a firm advanced commitment but that is to be determined having regard to the criteria set out in 15A(2), and for the reasons I've just given, in our submission, certainly three of those criteria are not satisfied in any way, and the fourth understood in its proper context is also not satisfied, and so the legislature, having set out that out as the ambit of the relevant inquiry as being the only indicia the Commission may take into account we say it simply doesn't get over the line as far as daily hire employment is concerned.


Now, to the extent there were any doubt about that, in our written submissions we referred to a number of authorities that have drawn the distinction between daily hire employment in the meat industry and casual employment, and, Vice President, I think I emailed a correction to a number of the citations for those authorities to your associate.  Can I just confirm if that's been received?


VICE PRESIDENT HATCHER:  We were sent two authorities.  Is that what you're talking about?


MR OEHME:  Yes, assuming that those are Hawkins and Central Queensland Meat Export Company ‑ ‑ ‑


VICE PRESIDENT HATCHER:  Yes, we've got it.


MR OEHME:  ‑ ‑ ‑then yes.




MR OEHME:  I won't read through this in detail, because it's largely referred to in our written outline, but both of these cases essentially deal with whether daily hire employees are entitled to receive severance pay or redundancy pay when an employer shuts down the meatworks for good.  It's not just a question of the weather is poor and we can't use you usefully on this particular day.  These are cases that dealt with long-term shutdowns and essentially the planned obsolescence of the facilities.


And in Hawkins at first instance Madgwick J confirms that the employees were entitled to redundancy pay.  Her Honour traces the development of the notice of termination provisions through the TCR cases and she specifically contrasts the position for daily hire employees with the position that applies to casual employees who aren't entitled to that severance pay, and her Honour quotes from two decisions of Riordan DP in the Industrial Relations Commission, the first is Re: Federal ‑ ‑ ‑


VICE PRESIDENT HATCHER:  I think Madgwick J was a he not a she, but anyway.


MR OEHME:  My apologies.  So the two decisions that Riordan DP referred to were the Re: Federal Meat Industry Award and the citation for that is print H8683, and then a second decision, re: Queensland Meatworks Industrial Agreement Award 1983, which is Print J8580.  And in both of those cases the deputy president essentially contrasted the position as it applies to daily hire employment with casual employment, and comments on the fact that there is a continuing expectation of work; that this is a continuous form of engagement, and so unlike casual employees who aren't entitled to redundancy pay or a notice in lieu of termination, these employees are.


And that position is then endorsed by the Full Court of the Industrial Relations Commission on appeal, and the - if you'll give me one moment, Vice President, that is referred to in the second decision that we outline in our written outline to the decision of Drummond J of the Federal Court in AMIEU v Central Queensland Meat Export Company, and the citation for that is [1999] FCA 775.


Essentially the same conclusion is reached in that decision by the Federal Court as was previously reached by the Industrial Relations Commission, that is that there is an entitlement to a redundancy pay for these employees, or at least notice of severance, and the Federal Court quotes with approval from the Industrial Relations Commission in the earlier decision of Madgwick J and the appeal decision.


So we - sorry, Vice President.


VICE PRESIDENT HATCHER:  Sorry.  I'm just trying to remember do daily hire - don't they have an exemption from redundancy payment (indistinct) or do they?


MR OEHME:  I couldn't tell you for certain, Vice President.  I may need to check that.




MR OEHME:  In any event these were cases that dealt with notice of termination, rather than redundancy pay.


VICE PRESIDENT HATCHER:  I see.  I think it's section 123 - hold on ‑ ‑ ‑


MR OEHME:  This is I think referred to in my friend's submissions.


VICE PRESIDENT HATCHER:  Hold on.  We'll come back to that when I find it.


MR SMITH:  It's 123(3)(d) and (e) or (d) - (e).  Sorry, (c), (c).


MR OEHME:  123 ‑ ‑ ‑


MR SMITH:  3(c).


MR OEHME:  3(c), yes.




MR OEHME:  So, in essence, Vice President, we say that both having regard to those previous authorities that have considered the point and more specifically the indicia under section 15A(2) daily hire employment doesn't fall within the statutory definition.  It's a separate mode of permanent engagement.  We accept that in some ways the Commission is faced with a bit of a square peg/round hole situation insofar as this is a mode of engagement that's developed in parallel with casual employment and has some features of both permanency and impermanency, but having regard to ‑ ‑ ‑


VICE PRESIDENT HATCHER:  I mean, there's no doubt that it used to be thought of something distinct from casual employment but that - I mean, these decisions are from the days where everyone thought that casual employment was somebody who was engaged and paid as such.  So there's no issue about what the position was in the past, but we have a new definition and it's trying to match that with the definition is the issue, isn't it?


MR OEHME:  Yes.  No, we certainly accept that.  You can't divorce those decisions from the statutory context that they were made under, and of course there was no statutory definition of casual employment at the time.  But what we say those decisions go to is the continuing - or they emphasise is the continuing nature of the engagement between the daily hire employee and the employer, and that's the most significant area of contrast between this form of engagement and casual employment and it's both traditionally understood and under the statutory definition.


VICE PRESIDENT HATCHER:  I mean, if I read the High Court decision of Rossato correctly it seems to say that unless you have a contractual entitlement to be provided with work on a given working day, you don't have the necessary firm advanced commitment.  You might have an expectation but that's not enough.


MR OEHME:  Well, what we would - I think that's generally correct, Vice President, but there is an area that isn't explored in the High Court decision, which is the distinction in the Meat Award between an employee's engagement and their employment on any particular day.  What we see in ‑ ‑ ‑


VICE PRESIDENT HATCHER:  I'm not even sure what that distinction means quite frankly, but ‑ ‑ ‑


MR OEHME:  Well, our submission is that it evidences the intention under the instrument that workers will not simply have a short-term or as needs engagement.  They'll have a relationship of permanent employment, and the decisions that we referred to in our written outline, as well as those that I've mentioned previously, all essentially go to that as the critical distinguishing feature of this mode of engagement, that, yes, it has an element of flexibility to it because just the practical necessities of the meat industry mean that you need to be able to structure your labour force around seasonable variations in work, but if that were the only issue, then employers can solve that simply by employing casual employees.


And what we see over the history of this mode of engagement is that that's not how employers have sought to structure their operations.  They've wanted a mode of engagement that provides for a much greater level of continuity and certainty than you see in casual employment as it's traditionally been understood.


VICE PRESIDENT HATCHER:  Yes, all right.  Well, on one view the risk is on your side in the sense that if we're persuaded by your submissions and they're wrong these employees turn out to have no entitlement under the Act to paid leave entitlements and that's the end of it.


MR OEHME:  That is the risk, Vice President and that's why we have to mitigate against that risk is why we've proposed an amendment to clause 11 to try and deal with that issue.




MR OEHME:  Now, I'm content to address that now.  I wasn't sure if the Commission would prefer to hear from Mr Smith on that threshold issue about daily hire employment before we go to the particular implications of that in the award.


VICE PRESIDENT HATCHER:  No, you proceed.  I mean, it might be useful to explore the alternative you're advancing and Mr Smith can reply to that.


MR OEHME:  Thank you, Vice President.  Well, what we propose in our written outline is an amendment to clause 11, and this is really a precautionary amendment that deals with the precise issue that you've just raised, Vice President, which is the union - although we say that daily hire employment doesn't fall within the statutory definition, we accept that there is an arguable view the other way, and what we don't want to see is the situation some years down the line where a court makes a contrary finding to what we're urging upon the Commission here, and daily hire employees effectively find the rug pulled out from under them and they've lost all of their statutory leave entitlements under the NES.


So to avoid that consequence what we're simply proposing is that the award be amended to confirm that daily hire employees are entitled to leave entitlements as provided for in the NES.  That's not expressly stated in the award as it currently stands.  We say it's certainly implied or else the provision setting out - confirming the continuous service of the employees would really have little work to do.  The purpose of that provision clearly is to emphasise the period of their service for the purpose of NES entitlements but what we're seeking here is, as a precautionary measure, and really one that doesn't upset the status quo at all compared to how the situation is currently approached, what we propose is to confirm in the text of the award itself leave entitlements under the NES.


VICE PRESIDENT HATCHER:  Then one way we could approach it is - I mean, because at the end of the day there may be in particular cases contractual entitlements which change the position as exposed by the award, but on one view what we could do is looking at proposed variations and say, look, a daily hire employee who falls within the definition of casual employee in section 15A of the Act is entitled under this award to the same annual leave, personal leave benefits, as provided for in the NES.  And that would cover all contingencies, wouldn't it?


MR OEHME:  I think our reservation about that approach, Vice President, is that it perhaps draws an unhelpful distinction between a daily hire employee that falls within the definition of casual employment and one that doesn't, when we say that the position for all daily hire employees is that they're entitled to those NES leave entitlements.




MR OEHME:  Now, just stepping through the other clauses that the Commission has identified, transfer of employment is dealt with in clauses 8.3 and 8.4.  I think we both and Ai Group say that these aren't relevant terms having regard to our position about daily hire employment.


The termination of casual employment is dealt with in clause 12.  Both parties, I think, agree that clause 12.1 should just be deleted and replaced with a reference to the NES.  And I think both parties are agreed that clauses 12.4 and 12.8 can be deleted because each of those mirror the language of other clauses that the Commission has expressed a provisional view about in earlier decisions.




MR OEHME:  That really only leaves the casual conversion clause at clauses 12.12 and 12.13.  Now, both parties are agreed that this should be removed and replaced with a reference to the NES provisions.  However, the union makes one additional submission, which is that there should be a residual right to request conversion for causal employees, who are engaged in meat processing establishments.  Now, what we see is that that entitlement already exists in the meat processing stream under clause 12.13.  Really all we're seeking is that that be maintained.


There are several reasons why in the meat processing stream casual employees likely wouldn't be eligible for conversion under the statutory scheme, the first is that due to seasonal variations in weather and stock availability it'll very likely be difficult to satisfy section 66B(1)(b), that is the worker has worked a regular pattern of hours on an ongoing basis which without adjustment they could continue to work as a full-time employee or a part-time employee.  But the nature of particular days on which work is performed in these establishments means that it will often be difficult to reach that threshold.  But then even assuming that you could reach that threshold, the second issues is that the indeterminate nature of when work is actually going to come in in those establishments means there will often be a reasonable business ground for the employer not to make the offer of conversion under section 66(c).


So that really creates a fairly significant barrier to any casual employee in many meat processing establishments being able to access conversion.  We essentially endorse the view that was put forward by the Full Bench in the part-time and casual employment decision and was quoted by this Full Bench in the August decision published earlier where the Full Bench there talks about 'daily hire being a flexible mode of employment, that it's relatively straight-forward because of that for casuals in a meat processing establishment to meet the criteria of working a pattern of hours that could have been worked under daily hire employment.'


And so keeping open that pathway to convert from casual employment to daily hire allows casual employees in those establishments to gain access to any NES leave entitlements.  If we were to simply strip that out, in our submission that would firstly be contrary to the statutory intent behind the casual conversion provisions, which are clearly intended to create a pathway to permanency and to any NES leave entitlements, and if we were to remove it we would simply strip away from many employees, a right that they currently have and a pathway that they currently have to access those entitlements, and which employers are already well aware of.


VICE PRESIDENT HATCHER:  So does that submission infer that the statutory provisions would not permit conversion to daily hire employment?


MR OEHME:  No.  In our submission they wouldn't.  We made our submission on the basis that daily hire employment is not full-time or part-time employment as it's understood in the casual conversion provisions.  So, as we say, it's a hybrid mode of employment.  It's neither casual employment but nor is it necessarily full-time or part-time employment.  It's really its own distinct mode of engagement.  And we don't say that an employer could satisfy the conversion requirement by offering conversion to daily hire employment.  We say it would need to be separately set out in the award that an employee is able to request conversion to daily hire in the meat processing industry.


VICE PRESIDENT HATCHER:  But see, the statutory provisions don't seem to contemplate that a person who does have an advanced commitment to continue in indefinite work according to an agreed pattern of work, is other than a full-time or part-time employee.  Because I don't understand how you say they've got that advanced commitment if they're not full-time or part-time.


MR OEHME:  I think that the difficulty is that the legislation has clearly been crafted with what we might describe as orthodox industrial arrangements, that don't necessarily exist with the meat industry in mind.  I don't think the fact that it refers to full-time and part-time employment as an alternative necessarily excludes a hybrid mode of engagement such as regular daily hire from existing.  But clearly it doesn't contemplate that being captured by the conversion clauses as they're currently drafted.


VICE PRESIDENT HATCHER:  All right, so would the problem be solved from your perspective if the award referred to the statutory provisions, and then 12.2 was retained as a stand-alone provision but only in respect of conversion to daily hire employment alone?   That is, if we kept 12.2 but we can leave the references to 'full-time and part-time employment.'


MR OEHME:  That might perhaps be one way to do it, Vice President.  We have suggested a slightly shorter way, really just for the sake of convenience, in our written submissions, which was essentially to delete clauses 12.12 and 12.13, have a new clause 12.2, the first paragraph refers to the NES provisions and then second paragraph states that 'casual employees in meat processing establishments may request conversion to daily hire employment on the same terms provided in the NES.'  And that avoids the somewhat lengthy and convoluted clause that currently exists, and perhaps simplifies things a bit compared to the alternative.


VICE PRESIDENT HATCHER:  Yes, I can see that.  All right.


MR OEHME:  And if that pleases the Commission, those are our submissions.


VICE PRESIDENT HATCHER:  Thank you.  Mr Smith?


MR SMITH:  Yes.  Thank you, your Honour.  We agree with the position that the unions put on the fact that daily hire employment is not casual employment.  But we sort of come at it from quite a straight-forward perspective.  And as we set out in our original submissions in August, we tracked through the fact that for many, many years this has been identified as a different form of employment in the Workplace Relations Act and in the Fair Work Act.  And it's still referred to as a separate category of employment in the exclusions in the termination and redundancy part of the NES.  So that's a key proposition.  And there's nothing particularly unusual, of course, about the meat industry because there's daily hire employment in the construction industry, in the plumbing industry, so there's at least three awards that have daily hire provisions, not just the Meat Award.


VICE PRESIDENT HATCHER:  But they don't describe of mode of employment that's anything like this award, Mr Smith.  That is, they might have the same name but they don't have any of the incidents that are described in the Meat Award, do they?


MR SMITH:  They don't but if you look at the exclusions that were in the Workplace Relations Act, and now in the Fair Work Act, it identifies the meat industry and the building and construction industry in those exclusions.  So, you know, as we all know, the construction industry has had a very long history of daily hire employment and it's still an important form of employment in that industry.


And with this issue of the interpretation of section 15(a), we agree with the union again in terms of, you know, this phrase, 'no firm advance commitment to continuing in indefinite work according to an agreed pattern of work, is a key phrase, is the key phrase, of course.  It came out of the Hamersley(?) decision and then has been referred to in the two Federal Court decisions, and then the High Court decision in Rossato.  So the government, and parliament more broadly, in drafting the legislation adopted to retain that key phrase but it identified four key elements that are the only elements that go to what is the meaning of that phrase.  And, 'daily hire employment' does not satisfy at least three of those elements, and potentially the fourth one, as well.


The other thing to think about is if a very narrow view was taken of this concept it's not just an issue for daily hire employment.  You could take a view, well, there are other forms of employment on that list of exclusions that are identified as separate forms of employment that could equally - someone could argue, well, if you just look at that key phrase, perhaps they don't satisfy that key phrase.  But they're not defined as casual employment, there's no casual loading, et cetera.  So we think that this needs to be considered as a distinctly different form of employment and we don't think there is any doubt - you know, on that issue of conversion and whether there needs to be some provisions put into the award to satisfy the fact that, you know, if there was some risk - we just think there's going to be a lot of complications associated with that.


Of course, it's not just personal carers leave and annual leave that non casuals get.  There's a range of other things in the Fair Work Act that relate to people who are either casuals or not.  So it would just be extremely complicated.  And we favour our approach which we identified in our original submission, which is with clause 12.1 the wording would just go on the end of that to say that a casual employee is not a daily hire employee.  And as the Bench is aware, we have also suggested that that occur in the Construction Award even thought the CFMMEU today opposed that proposal.


On the issue of conversion, your Honour, one thing that did come up at some length in the development of the legislation, and this can be seen, I think, in the explanatory memorandum, it goes to that issue of what form of employment can a person who was a casual be converted to.  And as the Act makes clear, it's only to full-time and - or part-time employment.  One of the issues that was considered at length was the issue of, should it allow a conversion to fixed term employment, or employment for a specific period of time, as the Act describes it as.  And the parliament decided, no, it should be expressly written into the Act that can conversion cannot be made to employment for a specific period of time, a specific task or a specific season.  Now I don't recall any discussion at all about daily hire, because it's quite a specific form of employment, nowhere near as widespread as the other, but the same principle would apply, that it's really conversion to full-time or part-time employment rather than daily hire or fixed term, fixed task, et cetera.


Our concern with putting something in an award clause which talks about conversion to daily hire, might mislead employers into thinking that that was something that satisfied the rights that employees have under the Act, whereas under the Act, they have the right to be converted to either full-time or part-time employment.  And if they converted someone to daily hire employment, if they had the right to convert to one of those other forms of employment then that would be a breach of the NES.  So we think for the purposes of simplicity, and also avoiding breaches of the legislation and confusion amongst employees about their rights, that that would not be a worthwhile amendment.


So we're urging the Commission to take a simple and straight-forward but we believe, technically correct approach here by recognising daily hire employment as a separate category of employment.  Clearly daily hire employees, in our submission, are entitled to the provisions of the NES that apply to people other than casuals, so there's no doubt in our submission on that issue.  And if that is accepted then there really isn't any need to put a range of entitlements in the award, because the entitlements are in the NES for daily hire employees, anyway.   With 12.12 and 12.13, again in our submission, all that is needed is a very simple reference to the NES casual conversion provisions.


And the other clauses, 8.3 and 8.4, in particular, and clause 11 are not relevant terms and can be retained in the award if it is accepted as we're urging the Bench to accept, that daily hire employment is a distinctly different form of employment.  And we think that view is strongly supported by the High Court's judgment and we quote some extracts in our submissions.  But they clarified that this concept of casual employment is a distinctly different form of employment to other forms of employment, and they gave fairly short shrift, can I say, to the arguments about the relevance of case law about independent contractors.  Because the High Court took the view, well, that is all about another area of law.  This is a case about casuals, which is a distinct type of employment.  And it has features, including the key phrase that the High Court accepted.  So those are our submissions, if it please.


VICE PRESIDENT HATCHER:  If one looks at Rossato, and I'm looking at paragraphs 88, 89 and 90, and it got down to a simple proposition as this, that Mr Rossato did not have in his contract a commitment to permanent employment once he finished any particular assignment.  And that was sufficient to say that he didn't have an affirmed advance commitment.  Now here we have the same situation.  Employment is by the day.  The employee has no award right assuming the contract with flexi (indistinct) and contractual right, to be engaged in the following day once the day's work is completed.   That's up to the employer, and they say, 'Don't come in tomorrow,' and you don't come in tomorrow.  On the Rossato logic that's the beginning and end of it, no firm advance commitment.


MR SMITH:  Yes but the concept of no firm advance commitment to continuing in indefinite work has been defined in the statute with reference to four key criteria, the only criteria that can be looked at.  And daily hire employment doesn't satisfy those criteria.  It could equally be said, couldn't it, that there might be other types of employment, if you just take that one concept divorced of everything else and think, well, what about other types of employment where there's not a commitment to continuing an indefinite work, like employment for a specific period of time.  But these are distinctly different forms of employment, that we would be taking them completely out of context to try to apply that phrase them.


VICE PRESIDENT HATCHER:  Yes, all right.  So I take it, in respect of casual conversion you oppose the union's proposal about that?


MR SMITH:  We do, your Honour, but it's not an unreasonable position because we worry, actually, that that is not going to be in the interests of employees, as well as employers, to put something in there alluding to the fact that conversion can take place on the basis of conversion to daily hire when that would water down, if it was interpreted to be read that you could do that under the NES rights.  And clearly that's not the case.  People have a right if they're eligible and there's no reasonable reason why it can't occur.  Their right is to conversion to full-time or part-time employment, not to daily hire employment.


VICE PRESIDENT HATCHER:  And the problem, I think, that's been raised, and as I understand it, is that some meat processing establishments don't have any full-time employment, that it's the sheer seasonality of the work, whether there's stock coming in, et cetera, et cetera, depends upon whether the place works, at all, or not.  So I think what the union is saying is that if you take the purist approach then nobody will ever be converted, because it's just not possible to have full-time employment.


MR SMITH:  But there's nothing stopping an employee making a request to convert to daily hire employment, which is a point that has been made about the issue of conversion to employment for a specific period of time.  Even though some awards in the education industry, for example, expressly let people convert to fixed term employment under the casual conversion provisions, even though that's not an NES  right, they still can obviously ask and, you know, any reasonable lawyer is going to consider that.  But to put an award right in there, it really does confuse the NES rights.


VICE PRESIDENT HATCHER:  All right, anything further?


MR SMITH:  No, your Honour.  Those are our submissions.


VICE PRESIDENT HATCHER:  Any submissions in reply?


MR OEHME:  Very briefly, your Honour.  Your Honour raised an issue about whether - I think your Honour referred to Rossato and raised an issue about whether this fell into the same category, insofar as there wasn't a firm advance commitment to continuing indefinite work.  And I think your Honour referred to the contractual statements which were in issue there.  I think an important issue to draw out of that is that the central finding of the High Court in Rossato is that the existence of that firm advance commitment has to be based on the contractual arrangements or the legally enforceable terms rather than post employment conduct.  And that largely is why Mr Rossato failed.  The contract was relatively black and white, and his case likely rested on post employment conduct.


The position here, we say, can be distinguished from that insofar as the expectation of ongoing work is actually found in the legally enforceable terms rather than post employment conduct.  And that arises - - -


VICE PRESIDENT HATCHER:  An expectation is not enough.  That's what the High Court have said.  Unless you've got a right to be employed in the future once you've finished your current piece of employment, you don't have the firm advance commitment.  That seems to be the whole point that Rossato makes.  And it doesn't matter that like Mr Rossato, you were in fact working every day.  If the contract says you didn't have the right to work every day, then that's the end of it.


MR OEHME:  I think all I can do, Vice President, is rely on my earlier submissions about the distinction here that doesn't exist in Rossato, between the employment and the engagement of the employee, as set out in the Meat Award.  We can only say that that's a significant distinguishing factor which has to be taken into account in this matter.


VICE PRESIDENT HATCHER:  I think Mr Rossato had a continuing engagement in the sense that he had an ongoing contract by which he could be assigned work.  But he didn't have a right to continuing employment.  I'm not sure there's any substantive difference.


MR OEHME:  I don't think I can say much more about that then I've already raised, Vice President.  The only other matter I would say is that my friend has alluded to Ai Group's submission that the definition of 'daily hire employment' should be amended to specifically note that a daily hire employee is not a casual employee.  That is supported by the union in this case.  We don't take any objection to that approach.


VICE PRESIDENT HATCHER:  All right.  I thank the parties for their submissions.  If there's nothing further we'll reserve on this issue, and we'll now adjourn.


MR SMITH:  Thank you.


MR OEHME:  Thank you.

ADJOURNED INDEFINITELY                                                  [2.57 PM]




EXHIBIT #2 WITNESS STATEMENT OF PARIS NICHOLS DATED 26/08/2021, TENDERED BY THE CFMMEU.......................................... PN100

EXHIBIT #3 WITNESS STATEMENT OF ALBY DYMINSKI DATED 24/08/2021, TENDERED BY THE AMWU............................................... PN100

EXHIBIT #4 WITNESS STATEMENT OF DARREN BATHMAN DATED 20/08/2021, TENDERED BY THE AMWU............................................... PN100

EXHIBIT #5 WITNESS STATEMENT OF HELEN FAWKE DATED 23/08/2021, TENDERED BY THE AMWU............................................... PN100

EXHIBIT #6 WITNESS STATEMENT OF JASON HEFFORD, UNDATED, TENDERED BY THE AMWU................................................................... PN100

EXHIBIT #7 WITNESS STATEMENT OF JESSICA REA DATED 11/08/2021, TENDERED BY THE AMWU............................................... PN100


EXHIBIT #9 WITNESS STATEMENT OF NICOLE COPPOCK DATED 26/08/2021, TENDERED BY THE AMWU............................................... PN100

EXHIBIT #10 WITNESS STATEMENT OF MARK CROSS DATED 24/08/2021, TENDERED BY THE CFMMEU.......................................... PN100

EXHIBIT #11 WITNESS STATEMENT OF NIGEL DAVIES DATED 24/08/2021, TENDERED BY THE CFMMEU.......................................... PN100

EXHIBIT #12 WITNESS STATEMENT OF MARGARET JOYCE TE AWA DATED 20/08/2021, TENDERED BY THE UNITED WORKERS UNION........................................................................................................... PN100

EXHIBIT #13 WITNESS STATEMENT OF PAREEN MINHAS DATED 19/08/2021, TENDERED BY THE UWU................................................... PN100