TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT EASTON
cl.48, Schedule 1 of the Fair Work Act 2009
Variation of a modern award
10.06 AM, TUESDAY, 14 SEPTEMBER 2021
Continued from 7/09/2021
VICE PRESIDENT HATCHER: So, we're initially dealing with five awards. They are the Victorian Public Service Award, the Victorian State Government Agencies Award, the Victorian Government Schools Award, Victorian Government Schools Early Childhood Award, and the State Government Agencies Award. Can I just get the appearances in respect of those awards, please?
MR A DENTON: Thank you, Vice President, Andrew Denton of counsel. I'm appearing on behalf of the Department of Education of Training for the State of Victoria.
VICE PRESIDENT HATCHER: Thank you, Mr Denton.
MR M PERICA: If the Commission pleases, my name is Mark Perica. I appear for the CPSU SBSF Group in relation to the Victorian Public Service Award 2016, the Victorian State Government Agencies Award 2015 and the State Government Agencies Award 2020, with my colleague, Mr Townsend, Wayne Townsend.
VICE PRESIDENT HATCHER: Thank you.
MS L SVENDSEN: If it please, your Honour, Svendsen, Leigh. I appear for the Health Services Union in relation to the Victorian Public Service Award only.
VICE PRESIDENT HATCHER: Thank you, Ms Svendsen.
MR J KENCHINGTON-EVANS: If it please, Jack Kenchington-Evans, for the Australian Education Union for three awards, Victorian Schools, The ACT Public Sector and the Northern Territory Public Sector Awards.
VICE PRESIDENT HATCHER: Thank you.
MR G O'KEARNEY: If it please the Commission, I appear for the State of Victoria, O'Kearney, G. Appearing with me is Mr Negus D, and we appear in relation to the Victorian Public Service Award 2016 and the Victorian State Government Agencies Award 2015.
VICE PRESIDENT HATCHER: Thank you. Well, perhaps I'll start with you, Mr O'Kearney and Mr Denton. The Full Bench has read your submissions in relation to the applicability of the NES casual conversion provisions, and also in relation to the definition of casual employment in section 15A of the Fair Work Act.
You're free to expand upon those submissions if you wish, but can we just raise two issues from the outset? Mr O'Kearney, the department (audio malfunction) the definition of casual employee in section 15A of the Act to the awards of relevance to it, on the basis that it comes within the exclusion in the referral Act. What's the State of Victoria's position about that?
MR O'KEARNEY: Well, I ‑ ‑ ‑
VICE PRESIDENT HATCHER: So that's the first question, so you can come back to it.
MR O'KEARNEY: Sorry.
VICE PRESIDENT HATCHER: We will come to back to that in due course.
The second question is in relation to the casual conversion provisions, is there a distinction to be made between this requirement or requirement for employers to casual conversion and the secondary residual right to request conversion. In a decision issued by the Commission on 9 August 2018 this is  FWCFB 4695 the Commission determined that the model clause to request casual conversion was not inconsistent with the (audio malfunction). So you can both answer that in your way, and address whatever matters you wish to address, but we'd be interested in the answer to those questions.
MR DENTON: Thank you, Vice President, perhaps I'll start, and I could probably start by just indicating in relation to that second issue that you've raised that that's probably something that I'll have to seek some instructions on. I must say it's not a matter that I've considered prior to this morning and it may be appropriate that my client file some supplementary submissions just in respect of that discrete point if that would assist the Commission.
VICE PRESIDENT HATCHER: We're happy for you to do that, but you must appreciate we simply don't have a lot of time.
MR DENTON: I do appreciate that, Vice President, of course. But, just if I might address the opposition that my client has to the insertion of the definition in section 15A, that is a definition which is quite deliberately focused entirely on the appointment of an employee. It is concerned only with the offer and acceptance between persons that creates such an appointment, and it also prohibits a prospective employer from having a certain advanced commitment of work when offering employment to a prospective casual employee.
So, the whole purpose behind this definition is to ensure that both parties to that relationship are aware of the rights and obligations on appointment, and I'm sure that the Bench is quite familiar with the section, but subsection (4) is quite unapologetic about that saying to avoid doubt the question of whether a casual is to be assessed on the basis of the offer of employment and acceptance of that offer, not on the basis of any subsequent conduct of either party.
VICE PRESIDENT HATCHER: Can I just pause there, Mr Denton, it seems to me the purpose of the definition is principally within the structure of the Act to determine who is entitled to be paid NES entitlements and who isn't.
MR DENTON: Yes. And the explanatory memorandum makes clear that the purpose is to give that certainty to the two parties to the relationship as to what the nature of that relationship is on appointment, is the point that I make.
VICE PRESIDENT HATCHER: You can keep on addressing us, but I'm looking at the two awards of relevance to your client.
MR DENTON: Sorry, there are three awards of relevance to my clients, sorry, Vice President.
VICE PRESIDENT HATCHER: Anyway, I'm looking at the Victorian Government Schools Award and the Early ‑ ‑ ‑
MR DENTON: Yes.
VICE PRESIDENT HATCHER: ‑ ‑ ‑Education Award, both of those are structured by reference to the assumption that casual employees are not entitled to NES paid leave and benefits and receive a 25 per cent loading in lieu thereof. Do you accept that?
MR DENTON: That they are not entitled to the NES benefits, yes, I think that's right, yes.
VICE PRESIDENT HATCHER: So to the extent that the award is structured in a way which interacts with the NES it seems to me that if the awards operate by reference to a casual definition that is different to that in section 15A they don't work in their current form, because they're based on the assumption that the definition of casual in the award is the same as in the Act.
MR DENTON: I don't think there is a definition of casual in those awards, Vice President, and I think that's a point that's made in the attachment to the July statement, that there being no definition it was proposed to insert the definition in section 15A so as to avoid any uncertainty or ambiguity with how these would operate with the Fair Work Act and so ‑ ‑ ‑
VICE PRESIDENT HATCHER: That's the point, the Act previously did not contain a definition.
MR DENTON: Yes.
VICE PRESIDENT HATCHER: And the award obviously did not contain a definition.
MR DENTON: Yes.
VICE PRESIDENT HATCHER: The Act now contains a definition, the award operates on the assumption, and you can disagree with this if you wish, that a casual employee under the award has the same meaning as under the Act.
MR DENTON: Yes.
VICE PRESIDENT HATCHER: That gets you to the conclusion, and you can disagree with this if you wish, that they need to have common definitions.
MR DENTON: That is a point that my client does disagree with, Vice President, that ‑ ‑ ‑
VICE PRESIDENT HATCHER: Why do you disagree with that?
MR DENTON: The premise is that whether it's assumed or not there is no actual definition of a casual employee in the award, nor is there a definition of a full-time or a part-time. And there's no definition of - well, it would be assumed is quite deliberately because of the excluded hours - of the matters that have been, sorry, excluded by the referred power under the State Act. So you ‑ ‑ ‑
VICE PRESIDENT HATCHER: I'm not sure that's right, with respect. The issue is that most awards didn't have definitions beyond what is stated, for example, in clause 16 of the Victorian Government School Awards, that is, a person employed on a casual basis, well, that's not a lot different to what most modern awards said prior to this process (indistinct).
MR DENTON: Yes, Vice President, but the rubber hits the road in terms of my client's interest is that to include how a casual employee is to be defined under this award would be to go beyond the power that's been referred by the State Act, because, as I say, as the Full Bench and everybody seems to be agreeing about this, it's correctly put in its provisional view that the casual conversion provisions would be beyond the referral powers because it goes to number, identity or appointment of employees.
When one looks at the definition of a casual employee under section 15A that itself it's not just simply - sorry, I'll withdraw that. What it contains is express and deliberate reference to how an employee is appointed; the offer, the acceptance and also the commitment of a prospective employer.
Now, if, for example, a prospective employer wanted to engage someone on a casual basis, but with that firm advanced commitment at the same time, if that definition was inserted into these public sector awards the public sector employer would be prohibited from doing so.
VICE PRESIDENT HATCHER: Let's assume that one of your clients wants to do that, that results in a situation where potentially you engage somebody as a casual so-called who does not fall within the Act's definition, and the result is that the Act says that the person gets NES paid leave entitlements, and the award says you have to pay them a 25 per cent loading.
MR DENTON: Yes.
VICE PRESIDENT HATCHER: Does that not follow?
MR DENTON: The central points, Vice President, is ‑ ‑ ‑
VICE PRESIDENT HATCHER: Mr Denton, you need to address that point, because I don't think you're grappling with the problems that arise if you disjoin the definition of casual under the award to that in the Act, that is, the award assumes that non-casuals get NES paid leave entitlements and casuals don't. Now, if you don't have a consistent definition then the problem I've identified will inevitably arise; will it not.
MR DENTON: So, Vice President, is this in relation to clause 16 of the award that you're referring to?
VICE PRESIDENT HATCHER: Yes.
MR DENTON: If I can just read that. Well, I think the answer, Vice President, may be through clause 6 with how these are supposed to interact with the NES, only to the extent that it actually operates within that referred power.
VICE PRESIDENT HATCHER: Yes.
MR DENTON: And if there's no referred power to change how a casual employee is to be defined, I think the award as it stands would not create that uncertainty.
VICE PRESIDENT HATCHER: But you're not suggesting, are you, for example that the NES annual leave entitlement does not apply?
MR DENTON: It does apply to the extent that it's provided for in clause 21.
VICE PRESIDENT HATCHER: No, not by virtue of the award, by virtue of the Act itself.
MR DENTON: Sorry, Vice President, we may be at cross-purposes here. I'm not quite following the direct proposition that you've asked me to respond to.
VICE PRESIDENT HATCHER: Do you accept that the annual leave entitlements in the Fair Work Act apply to the referred employees under the Victorian system, specifically section 87?
MR DENTON: I'll just turn that up. Would this be read together with section 15A, Vice President?
VICE PRESIDENT HATCHER: That's the problem I'm raising with you, that is, I don't think on any view the referral excludes NES annual leave entitlements, but the problem is that the operation of those leave entitlements are restricted by section 86, that is, to employees other than casual employees, and the definition of that is to be found in section 15A. That is, the whole purpose of the definition is to determine the scope of the paid leave entitlements. That perhaps is not the whole purpose but a major purpose.
So, it seems to me that if you say section 15A doesn't apply, well, then there's knock on consequences for other entitlements under the Act, which I would have thought would apply to referred employees.
MR DENTON: If there are some of those unintended consequences, Vice President, I must say I've not seen how they might be worked through in regards to this review process. But in terms of the definition my clients are not submitting that we cannot have casual employees. It's that casual employees particularly under these awards should not be defined in the manner contained in section 15A, and the nub of that point is that to include those conditions or limitations that are contained in 15A would be beyond the referred power from the state referring Act.
VICE PRESIDENT HATCHER: An alternate view might be that the purpose of the definition is not to control or regulate the appointment of anybody. It simply says that if the employment has these characteristics then these entitlements apply as to their terms and conditions of employment. That might be within the referred power?
MR DENTON: Well, with respect, 15A itself is prescriptive as to the fact that we're going to look at the offer, look at the acceptance, and we look at what sort of advanced commitment the prospective employer has, and that is squarely in relation to appointment of an employee and it squarely puts - well, at least implicitly puts the limitations to what sort of commitment a prospective employer may have when engaging someone as a casual.
VICE PRESIDENT HATCHER: No, with respect, you can make the commitment if you want to. The Act doesn't say you can't, but it says that if you do, the person is entitled to NES paid leave benefits.
MR DENTON: Under the award it would be. If you do have that commitment, then the person would not be a casual employee.
VICE PRESIDENT HATCHER: I mean, the problem is, Mr Denton, we would have to totally rewrite the award, if we took your point, in the next few days, because the award is premised on the fact that casual employees are not entitled to NES paid leave benefits, but your submission gives rise to the possibility that if you want to engage someone as a casual and you give them an advanced firm commitment, under the award they get 25 per cent loading under clause 16 and under the Act they get paid leave entitlements. Now, if you're happy with that outcome, well, tell us, but I suspect you're not.
MR DENTON: My submission isn't really about whether they're happy with an outcome or not, it's really more confined to this point about whether there's the actual power to do that, and whether inserting a definition which would be about the appointment and which would then have the implicit limitation of whether you can employ a casual or perhaps if you don't meet that definition all of a sudden the person that perhaps my client wanted to engage as a casual must then be permanent, that would naturally impact the number of employees, either the number of casuals or the number of permanents. And so it's squarely down to that issue about whether it fits within that referred power, or whether it sits within the exclusion, and it's for those reasons that my client says that it would be an excluded matter to place those conditions on the definition of a casual employee.
VICE PRESIDENT HATCHER: Do you have any proposal as to what we are to do with this award prior to 27 September?
MR DENTON: Our client's position is that there should be no amendments to any of these three awards that are the subject of their submissions.
DEPUTY PRESIDENT EASTON: Perhaps to put it another way, you accept that the Commission and the Fair Work Act has the authority or the power, jurisdiction, to set conditions of employment for casual employees.
MR DENTON: Yes, terms and conditions.
DEPUTY PRESIDENT EASTON: And when you come to look at what those conditions of employment for a casual employee by your client, we have to read the Act and read awards by reference to the Act, and ordinarily you'd have to read this award by reference to the definition of casual employment. If your submission is that section 15A has to be read down because it imposes some impermissible limitation on your client's capacity to engage people as a casual, there has to be some clarity about what the conditions of employment for casuals that you do engage, there has to be some clarity about what those conditions of employment are.
Now, if you're right that a casual employee means something different to section 15A because 15A has to be read down to some degree, we're stuck now with an award that has a significant uncertainty to it. So, the Vice President's question is, what do you submit we do about that, and implicit in us asking that question again and again is that the answer of, well, just don't have any definition of casual, doesn't solve the problem.
MR DENTON: To start with, yes, I do accept that the Commission and the Act can govern the terms and conditions of employment. That's clearly within the referred power. And I could also say I don't have instructions as to what amendments should be made to these awards; that the position is that no amendments should be made to these awards through the process of this casual conversion review process.
I note, Deputy President, you used the phrase 'reading down'. I don't make that submission. It's more that if the plain words of the text itself refer to or define how an employee can be appointed, and by extension if you don't meet that definition then you're not a casual, therefore you're something else, if that occurs, you're affecting the number of categories of employment that my client has.
So, on a couple of fronts, my client submits that it would offend those referral powers, or at least the exclusion of those referral powers. And when one looks at what this review process is about, which is about the casual conversion process, and everyone seems to be in heated agreement that there should not be casual conversion provisions included into these awards, my client's submission is that the next step that should follow is that there should be no insertion of a definition of 15A into these awards really for the same purpose, for the same reason.
VICE PRESIDENT HATCHER: Just look at, for example, clause 19.2 of the - I'm sorry, it's the wrong award. Just hold on a sec.
MR DENTON: Of course, the submission shouldn't be taken that we don't have casual employees. Of course we still have casuals and that was a central part of the written submissions by my client, but the department engages a number of casual relief teachers. It's a very common part of the education sphere, and how those are engaged and the flow-on effects that may occur with that workforce is something that would require deeper consideration, deeper thought, rather than through this review process.
DEPUTY PRESIDENT EASTON: So, do you accept that there's uncertainty? As a result of the insertion of section 15A there's now an uncertainty as to how those relevant awards can be read?
MR DENTON: No, the position is that properly understood if 15A does not apply to the Victorian public sector, the two don't need to be read together. They don't apply to one another.
VICE PRESIDENT HATCHER: look at clause 25 of the Early Childhood Education Award. Just tell me when you've got access to that.
MR DENTON: That's the community service leave provision, Vice President?
VICE PRESIDENT HATCHER: Personal carer's leave and compassionate leave, clause 25.
MR DENTON: This is the Early Childhood Award that ‑ ‑ ‑
VICE PRESIDENT HATCHER: Yes.
MR DENTON: My version has that as a clause 21, Vice President, but it may be the same as what you're looking at.
MR O'KEARNEY: Can I assist ‑ ‑ ‑
VICE PRESIDENT HATCHER: I'm sorry, I'm looking at the Victorian Local Government Early Childhood - is that ‑ ‑ ‑
MR DENTON: No.
VICE PRESIDENT HATCHER: ‑ ‑ ‑not one you're interested in?
MR DENTON: No, it's not.
VICE PRESIDENT HATCHER: If you want to just give me a second. So, 21.1 of the Early Childhood Award, so you've got that?
MR DENTON: Yes.
VICE PRESIDENT HATCHER: So clause 21.1 says personal carer's leave is provided for in the NES.
MR DENTON: Yes.
VICE PRESIDENT HATCHER: Personal carer's leave in the Act applies to persons who are not casual employees as defined in section 15A; correct?
MR DENTON: I think that is right, yes.
VICE PRESIDENT HATCHER: So, following on from the deputy president's question, the problem is that there's absent a reference to section 15A, and there's uncertainty now about what 21.1 means and who it applies to, because the award says that it's provided for in the NES. The NES entitlement applies to persons who are within section 15A. You say section 15A doesn't apply to referred employees. What does 21.1 mean then? And who do the additional provisions apply to?
MR DENTON: Well, I haven't worked through whether there's any other exclusions within this award that refer to whether casuals are entitled to compensation in lieu of personal carer's leave, for example.
VICE PRESIDENT HATCHER: No, but that's not dealing with the point. The point is this cross-refers to the Act, and the Act operates by reference to section 15A.
MR DENTON: Yes, well, if the Act refers by reference to section 15A, that would simply just have no work to do in regards to clause 21.1.
VICE PRESIDENT HATCHER: So what does 21.1 mean then, and who do the additional provisions apply to?
MR DENTON: I don't have the personal leave provision in front of me at the moment.
VICE PRESIDENT HATCHER: I think you'd be fairly familiar with the fact that section 95 says the paid personal leave provisions in the Act applies to employees other than casual employees defined in section 15A. So, back to the question: what does this provision mean?
MR DENTON: There would be no reason why 21.1 would not apply to the other employees under this award, for example, those engaged as a full-time or a part-time, but, again - - -
VICE PRESIDENT HATCHER: You said you wanted the capacity to engage casual employees with a firm advance commitment.
MR DENTON: Sorry, but the submission isn't - that's not what my client wants. The point is that if that were to be a scenario, desirable or otherwise, they would be not able to do that, it would offend the definition, and that's the point.
VICE PRESIDENT HATCHER: No, it's not a case that they would not be able to do it. Of course they could do it. It's a case of what the award and the Act says apply to them if they do that.
MR DENTON: If they do (audio malfunction).
VICE PRESIDENT HATCHER: (Audio malfunction) somebody allegedly on a casual basis but gives them a firm advance commitment as to hours and a pattern of hours, does clause 21 apply to them or not?
MR DENTON: But if that was the - if 15A was the definition, then they would become - so they would not be defined as a casual employee.
VICE PRESIDENT HATCHER: Yes, so if section 15A does not apply, then what does 21 mean in respect of an employee of that type?
MR DENTON: Well then that would apply.
VICE PRESIDENT HATCHER: Sorry?
MR DENTON: 21.1 would apply because that would apply to someone who's not a casual employee.
VICE PRESIDENT HATCHER: How do you get to (audio malfunction).
MR DENTON: (Audio malfunction) and the benefits.
VICE PRESIDENT HATCHER: I'm sorry, I didn't hear that.
DEPUTY PRESIDENT EASTON: It comes back to the Vice President's maybe first or second question, is that the result of that would be that they would get the loading, the casual loading, plus the benefits available to permanent employees under the NES.
MR DENTON: I accept that may be a possibility.
VICE PRESIDENT HATCHER: But that just demonstrates - and this is this clause as an example - that there's an uncertainty about the clause which we need to resolve by 27 September, we are obliged to resolve by 27 September. That's what we're asking you to address. It's not simply a matter of saying, 'Section 15A applies, do nothing' because if that is correct, and you might be right, then that has a whole range of consequences for many provisions of this award which need to be rectified by 27 September.
MR DENTON: Yes, Vice President, and I think I've made my submission on that, which is that the definition in 15A, as proposed, would fall within the excluded matters that have been referred.
VICE PRESIDENT HATCHER: And you're not prepared to assist us with the consequences for the award of that submission?
MR DENTON: At this stage, I've no instructions as to what sort of amendments could or should be made. This is simply in response to the provisional views of inserting the definition of the kind contained in 15A.
VICE PRESIDENT HATCHER: Mr Denton, can you just clarify for me again, leaving aside the award, do the NES paid leave entitlements, which are applicable to non-casual employees and therefore operate by reference to the section 15A definition, apply to Victorian referred employees?
MR DENTON: My response to that, Vice President, should be that they would apply to permanent employees.
VICE PRESIDENT HATCHER: Yes, but the Act operates by reference to the section 15A definition. That's what I - I just can't come to grips with what you're saying about this. How can those paid leave provisions in the Act operate absent the applications of a section 15A definition?
MR DENTON: Sorry, was that absent reference to the award, Vice President?
VICE PRESIDENT HATCHER: Mr Denton, you said that section 15A of the Fair Work Act has no application to Victorian referred employees; correct?
MR DENTON: Yes.
VICE PRESIDENT HATCHER: It must follow - what do you say follows insofar as the NES annual leave and paid personal leave entitlements operate by reference to that definition?
MR DENTON: I would think that the answer lies within the awards, Vice President, where - - -
VICE PRESIDENT HATCHER: Mr Denton, I'm not asking about the awards, I'm asking about the Fair Work Act.
MR DENTON: Yes.
VICE PRESIDENT HATCHER: How do we understand the application of the paid leave entitlements of the Fair Work Act don't operate by reference to section 15A? That is, you're taking away the keystone of the provision, aren't you?
MR DENTON: I wouldn't accept that it's a keystone of the provision, but perhaps, Vice President, this is just another matter that I can address in the supplementary submissions which my client can file very shortly in relation to that second issue that you raised at the start of the day?
VICE PRESIDENT HATCHER: Can you do that by midday tomorrow?
MR DENTON: Yes, Vice President.
VICE PRESIDENT HATCHER: All right, is there anything else you wish to add, Mr Denton?
MR DENTON: No, Vice President, I rely on the written submissions.
VICE PRESIDENT HATCHER: Thank you. Mr O'Kearney?
MR O'KEARNEY: Thanks, Vice President. I think in answer to your first question, yes, I think it was our intent in our submission that the changes proposed to introduce the new definition of casual employee ought not occur, so, yes, that was our submission, so I'm clarifying that.
VICE PRESIDENT HATCHER: Well, I don't think you said that in your submission.
MR O'KEARNEY: It's also not our view - I thought it was the very last line.
VICE PRESIDENT HATCHER: Okay, I might have missed it. Just hold on a second. I see, yes, all right. Thank you. Well, I mean, how do you say we should grapple with this problem, Mr O'Kearney?
MR O'KEARNEY: I think the best I can say, Vice President, is that again I'd have to - if I can take this on notice, and I understand in terms of the application, I think, probably in terms of the definition of casual employee, sorry, the casual employee provisions in the awards in which I'm dealing with, it does provide the provision for casual loading as compensation in lieu of entitlements for annual leave, public - annual leave, annual leave loading, paid personal carer's leave and compassionate leave, so certainly our submission is that that ought not be amended.
I think - sorry, I understand certainly one of the issues that we considered somewhat problematic was putting - inserting the definition without inserting the casual conversion provisions. We thought the two were inextricably linked in many respects, so putting in just the definition provided a situation which, for some employees covered by the awards, it may be detrimental in terms of them.
Having said that, I would say that the states are committed to two things. One is enterprise bargaining, so we're not entirely sure that there is a significant number of workers who are covered by either award, and, secondly, that the states are also committed to providing secure employment and are working on a number of pieces of work, which are in our submission, to deal with that point.
VICE PRESIDENT HATCHER: That may all undoubtedly be true, Mr O'Kearney, but it doesn't deal with the obligation we have under clause 48 and schedule 1 of the Act, which we have to discharge by 27 September. Perhaps group 4 should have been group 1, in retrospect, but anyway.
Do you want to put on any further submission along with Mr Denton, Mr O'Kearney?
MR O'KEARNEY: No, Vice President, thank you.
VICE PRESIDENT HATCHER: All right. Mr Perica, would you like to go next?
MR PERICA: Yes, your Honour. In relation to the Victorian Public Service Award and the Victorian State Government Agencies Award, and I don't want to revisit the matters you have already been taken to by Mr Denton, but our submission is that - Kiergaard said, in fear and loathing, 'If you define me, you diminish me.' Well, it doesn't diminish the power of the Commonwealth to regulate this because our submission is that the definition does not interfere with the number or identity or appointment of casual employees in the public sector. So, it doesn't offend it. In our submission, it is admissible and the Commission should put the definition in those two awards.
VICE PRESIDENT HATCHER: All right, thank you.
MR PERICA: In relation to the State Government Agency Award, Your Honour, I don't know if there's anyone else appearing in relation to that matter. That was - I've been in this game too long - that award was conceived on the basis to mop up statutory corporations that are constitutional corporations in relation to any state.
Now, the question of the implied governmental immunity and whether it applies to those is a question and it can't be resolved here. If you look at our submissions in paragraph 6, the basis on which it was made was that that can be determined on a case to case basis. If that's the case, in our submission, the Commission is free to make the variations it seeks in an unrestricted way on this award, and if the particular employers, for example, the Legal Aid Commission of WA or the Transport and Accident Commission in Victoria, are of the view that they are so close to the - central to the administration of the state as to come within the definition, they can make submissions and adduce evidence of that fact, but that can't be done here.
So, in sum, I can say that what you should do is make the amendments you suggest to that award and you can do so on an unrestricted basis and the states lose nothing.
VICE PRESIDENT HATCHER: All right. Mr Kenchington-Evans?
MR KENCHINGTON-EVANS: Thank you, Vice President. I am mindful we didn't file written submissions, so I will try to keep this brief. We originally intended to make just a brief appearance perhaps to follow the general tenor of written submissions, which is that the NES entitlement to conversion would not be part of the referred matters, but perhaps I will make two comments, one about the definition of casual employee and then regarding the conversion.
We agree with the submissions put by the HSU that the section 15A definition provides for terms and conditions rather than infringing on matters pertaining to appointment, and I think we have been assisted by, Vice President, your comments today regarding the challenges that not adopting a 15A definition would introduce into interpreting the award, so we would support the Commission's provisional views, on reflection, on that point.
Regarding the conversion, something that's just sort of occurred to me, I think, in, Vice President, your opening remarks, you raised the question about whether the right to request might be different to the employer obligation to make an offer. I was just reviewing, I think, the relevant sections of the Fair Work Act. Section 66B provides for the employer offer and there's certain conditions on which those offers must be made. If certain preconditions are met, an offer must be made, whereas the employee right to request - sorry, the employer's right to refuse a request to convert by an employee is provided for in 66H, and it's significantly broader.
I'm mindful we haven't made written submissions and this is on the fly, but there may well be a meaningful distinction between an employer's obligation to make an offer and an employer's right to refuse and that might constitute - I think there's broad consensus among the parties that the obligation to make an offer is a matter pertaining to the appointment of state employees, and that's inappropriate to be made, but perhaps an employer's right to refuse a request is better conceived of as a term and condition of employment and, if that's the case, I think a modified version of the proposed variation at 10.4 in the Commission's provisional views whereby requests for conversion may be made, whereby the award makes referral to requests for conversion but not to offer and some other form of drafting might be appropriate and resolve that difference.
Thank you, if it please the Commission.
VICE PRESIDENT HATCHER: Thank you. Ms Svendsen?
MS SVENDSEN: Thank you, Vice President. I wasn't intending to make any other submissions other than those we have made in writing. I would just say, while on the fly, Mr Kenchington-Evans has made some good points about an employee's right to request versus the employer's responsibility to offer under the Act, and while I haven't sorted through those arguments, I think that they are not unfair to make in terms of these awards, but, other than that, I will leave it, thank you, Vice President.
VICE PRESIDENT HATCHER: All right. We thank the parties for their submissions. As indicated, the Victorian Department of Education and Training will have until tomorrow to make further submissions on the two matters which we have discussed this morning.
We will now pause and, at 11 o'clock, we will turn to the Northern Territory Public Sector Enterprise Award. Perhaps it's more convenient for those who are staying on to simply mute your cameras and microphones until 11 am.
SHORT ADJOURNMENT [10.54 AM]
RESUMED [11.00 AM]
VICE PRESIDENT HATCHER: All right, so we're going to deal now with the Norther Territory Public Sector Enterprise Award. Can I have the appearances in respect of that award, please. Is it Mr Perica or Mr Nash for the CPSU?
MR A NASH: It's Aidan Nash for the CPSU Group.
VICE PRESIDENT HATCHER: Thank you, Mr Nash. And for the Northern Territory? Is that you, Mr Doherty? You need to turn your microphone on.
MR DOHERTY: My apologies, Vice President.
VICE PRESIDENT HATCHER: Go ahead.
MR D DOHERTY: Damien Doherty, employee relations manager, OCPE, Office of the Commissioner of Public Employment, and with me I have Helen McAuliffe, principal consultant, OCPE.
VICE PRESIDENT HATCHER: Thank you. Ms Miflin, you appear for the UWU?
MS H MIFLIN: Yes, thank you, Vice President.
VICE PRESIDENT HATCHER: Is that all the appearances in relation to this matter? All right. Perhaps we will start with you, Mr Doherty. We have read your written submission. Is there anything else you want to add or elaborate upon in that?
MR DOHERTY: Not particularly, but, just briefly, obviously, yes, we support the inclusion of the definition and the 6.5(c) clause that was proposed and, as you would see, we do have that additional attachments to the submission which also support the definitions of casual employment and in which we made the argument that we don't see any inconsistencies, but we do believe our public sector legislation does cover them thoroughly.
That is, in summary, the opening for that and I am happy to comment further in relation to some of the CPSU's submissions in relation to some additions they might be proposing. I'm happy to do that now or perhaps wait until they have been discussed.
VICE PRESIDENT HATCHER: Perhaps you go ahead now, Mr Doherty.
MR DOHERTY: Okay, thank you. First, in terms - I think it was with reference to paragraphs 40, 41, 42, 43 of the CPSU's submission proposing there may be some benefit from including a further review of the provisions and that the casual conversion provision should be included as a place holder, but further review through a four-yearly - not through a four-yearly award review, but noting that the four-yearly award review hadn't occurred, but should there be a review, that it should be considered at that point, we just say subject to the Fair Work Commission determining a view is required, we would be happy to make further submissions, if and when that occurred.
The other provisions - the CPSU have, at paragraphs 59, 60 and 61 of their submission, proposed some potential - there may be some issues with the casual employments being expanded and to ensure consistent with the Public Sector Employment and Management, suggested that that might be achieved by including some new paragraphs 6.5(c) and 6.5(d) as follows: a casual employee may only be employed to work as and when required and a casual employee may only be employed to perform duties to which a determination under 34A(1) of the PSEM Act applies.
We would say that that is not required to be included and the Act does that work itself. The wording that is being proposed doesn't directly align with PSEMA wording and, we say, would create some uncertainty or ambiguity or difficulty if the Commission were inclined to consider including it. We also weren't sure what some of the concern was that they had with that needing to be included into the award.
Those two points, I think, were areas that we are happy to discuss further in this process, should it be required.
VICE PRESIDENT HATCHER: Thank you, Mr Doherty. All right, Mr Nash, do you want to go next?
MR NASH: Yes, thank you, Vice President. The CPSU rely primarily on our written submissions, but I will expand on that definitional matter and the matters that were raised by Mr Doherty.
Currently the Northern Territory Award refers to - imports the definition of casual employee from the Public Service Employment and Management Act at 6.1 of the award by referring to that Act. As we have stated in our submissions, the definition in section 29(3)(c) of that Act is consistent with the definition in 15A of the Fair Work Act as it refers to 'employment to work as and when required from time to time', which is consistent with no firm advance commitment. However, there are - - -
VICE PRESIDENT HATCHER: Can you just give me a second to pull that up. What section did you just refer to?
MR NASH: Section 29(3)(c) of the Northern Territory Public Sector and Management Act.
VICE PRESIDENT HATCHER: You are happy to say that's consistent with 15A of the Fair Work Act?
MR NASH: It is consistent in that there's no firm advance commitment within that definition. However, there are two key restrictions on the engagement of casual employees that come from that Act. We say that that reference to 'employment to work as and when required from time to time' is a more confined definition than section 15A of the Fair Work Act. It would exclude types of casual employment where work is done on a regular and predictable basis. We say, in that way, it's similar to some of those irregular and intermittent provisions that the Full Bench considered in the Textile and Cleaning Award.
VICE PRESIDENT HATCHER: But the slight difference here is that if you're right in saying they are additional restrictions, we don't need to deal with that in the award because employers under this award will remain subject to section 29 of the PSEM Act and, if that's a restriction, it will continue to apply, but we don't need to double up on that in the award, do we?
MR NASH: That is true, but I think there is potential confusion and ambiguity if the purported definition and text of the award is different to the actual permissible basis of employment under the Northern Territory legislation. I think it would be much clearer and easier if the restrictions that currently appear in the legislation are also in the award and prevent any potential inclusion.
We say given those restrictions are already in the award through clause 6.1, which imports them in, recasting them and preserving them as a separate restriction isn't changing the award, it's just preserving the current meaning of the award while inserting the reference to section 15A of the Fair Work Act.
That other restriction, which I haven't mentioned yet, was that one in section 34A of the Northern Territory Act. Section 34A limits the duties or classes of duties that may be performed by casual employees to classes of duty where the Commissioner has made a determination that they may be performed on a casual basis.
Our view is that it's important that both that restriction and the more confined definition of casual employment is recast as a restriction in the award to maintain the current scope for casual employment in the award if the Commission is going to replace that definition in 6.1 with a reference to section 15A of the Fair Work Act to ensure that definitional consistency with that.
VICE PRESIDENT HATCHER: All right, thank you.
MR NASH: If I might just make one other point and that is in relation to the casual conversion. I think, essentially, for at least the short term, the NTPS and CPSU agree that a reference to the NES provision should be put into the award. However, as we have stated in our submissions, there is some sort of uncertainty in exactly how those provisions apply in the NTPS with merit-based recruitment requirements, and we think it would be a lot clearer and would help all parties in implementing those casual conversion provisions if we could look at putting a tailored clause in there that would apply in situations when there is a public sector recruitment requirement that would apply, but, as we have said in our submissions, we think it would be more appropriate for that to be done at a separate time, if and when the Fair Work Commission reviews this award.
VICE PRESIDENT HATCHER: All right. Anything further, Mr Nash?
MR NASH: No, no further submissions, Vice President.
VICE PRESIDENT HATCHER: Thank you. Ms Miflin?
MS MIFLIN: Thank you, Vice President. The UWU has a smaller interest, I suppose, in this award than the CPSU. We largely support the submissions made by the CPSU, particularly with respect to that definitional element. We agree with the Office of the Commissioner and the CPSU. Section 15A, there's no inherent - I don't see any inherent inconsistency with the PSEMA employment category, and so I think the NES could be inserted easily.
If anything, we say maybe section 29(3)(c), it possibly adds a temporal component, that restriction on employment, and could possibly be analogous to - it was the Teachers Award in the stage 1 decision. The same could be done here. So, in the Teachers Award, the NES was inserted, as you know, but that temporal component was retained, and it's possible that the same could be done here, that those restrictions of - what is it - as and when required and from time to time could be inserted into the award for clarity and could sit alongside that NES definition to just ensure that that consistency with the PSEMA is there.
Yes, it might be seen as a double up and perhaps the Commission would see no utility in it, but I do see that there's some - that it's not dissimilar to the decision made with the Teachers Award and the same could be done here just to ensure that consistency with the underpinning Act. Especially for us, we see an over reliance on the use of casuals and, you know, I suppose anything that could restrict that would be beneficial to the UWU.
That's all we have to say, yes, just with respect to the casual definition, thank you.
VICE PRESIDENT HATCHER: Thank you. Anything you want to say in response to that, Mr Doherty?
MR DOHERTY: Thank you, Vice President. In relation to Hannah's comments there, I'm not aware of the amendments that were made in the Teachers Award, but - - -
VICE PRESIDENT HATCHER: Mr Doherty, we don't refer to people by first names in these proceedings.
MR DOHERTY: My apologies, Ms Miflin. I'm not aware of those changes. We did propose, or I submitted earlier, a subordinate legislation in our determinations do cover off on the Fair Work Act section 15A definition quite thoroughly. I'm not sure any further comments are needed there, but not proposing any changes that might have been proposed by Mr Nash.
In relation to Mr Nash's comments in relation to his proposal to include 6.5(c) and (d), the words - firstly, I still don't believe they are required, the Act does the work itself and can be read in conjunction there with it, but the words proposed, at any rate, are not consistent with the PSEMA words, and whether that was just transcribing it across, I'm not sure or not, but also, in addition to that, there would be the section 40 Fair Work Act provisions, you know, which prevailed at the public sector awards, would also prevail over any inconsistency and, in effect, the NTPS could write further public sector laws about casuals that would, in essence, prevail over such Fair Work instrument provisions.
In summary, yes, I don't believe we need any of those changes and here everyone supports overall the definitions going in and your proposed wording at clause 6.5(c) in your submission.
VICE PRESIDENT HATCHER: Just thinking out aloud, perhaps if we put in the Fair Work Act definition, we could just have a note that it's not intended to displace the provisions of the PSEM Act.
MR DOHERTY: Yes, that sounds appropriate.
VICE PRESIDENT HATCHER: All right. Do you wish to comment on that, Ms Nash and Ms Miflin?
MS MIFLIN: I think there could be utility in doing that, Vice President.
VICE PRESIDENT HATCHER: All right.
MR NASH: I think that would work, but our view is it would be clearer if there was those specific provisions as we have included in paragraph 61 of our submissions that specifically set out what those restrictions are on casual employment.
VICE PRESIDENT HATCHER: Yes, all right. Well, thank you for your submissions. We will consider what has been put and reserve our decision about this matter.
I think what we will do is we will now disconnect and we will resume the connection at 11.30 for the next batch of awards.
SHORT ADJOURNMENT [11.17 AM]
RESUMED [11.32 PM]
VICE PRESIDENT HATCHER: All right. In respect of this part of today's hearing, we're going to deal with the Australian Public Service Enterprise Award, the Australian Government Industry Award and the Parliamentary Department Staff Enterprise Award. So can I have the appearances please?
Mr Spaccavento, you appear for the Australian Public Service Commissioner, is that correct?
MR M SPACCAVENTO: Yes, that is correct, and I'm joined by my colleagues Louise Mendelow and Andrew McNeilly.
VICE PRESIDENT HATCHER: Thank you. Mr Nash, you appear for the CPSU?
MR A NASH: Yes, Vice President.
VICE PRESIDENT HATCHER: And Ms Miflin, you appear for the UWU.
MS H MIFLIN: Thank you, Vice President.
VICE PRESIDENT HATCHER: And the Parliamentary Departments don't wish to appear in the matters, I understand it, today. All right. Mr Spaccavento, do you want to start first? We've obviously read your written submissions.
MR SPACCAVENTO: Yes. Thank you, Vice President. We essentially rely on our filed submission in this matter but in order to sort of briefly summarise perhaps some of those key points we do think it's appropriate to reflect in the Australian Public Service Award that casual employment is as defined in the Fair Work Act.
We also submit and I think we're in agreement with the CPSU conceptually, that the term 'Irregular or intermittent,' is the language used under the Public Service Act to describe casual employment as distinct from permanent or temporary employment and that casual employment can and should be defined by and directly linked to the Fair Work Act definition under section 15A of the Fair Work Act. Our consultation with agencies uncovered no issues with doing so.
Similarly, our consultation with agencies revealed no distinction between irregular and intermittent and casual in terms of how they're used in practice therefore we submit that irregular, intermittent and casual can be equated in the APS Award and we propose some wording that does so at paragraph 14 of our submission. We see no need for anything beyond that as otherwise the Public Service Act deals with categories of employment.
And finally, we do agree that it is appropriate to refer to the NES casual conversion provisions in the Award as per paragraphs 17 to 19 of our submission. We do not consider a tailored casual conversion term in the APS Award to be necessary. The process and reasonable grounds for conversion or otherwise, we say, are established in the National Employment Standards.
Having said that, like the CPSU, we are happy to have that debate another day as part of an Award review matter rather than as part of this process. Thank you.
VICE PRESIDENT HATCHER: Yes. Thank you. Then can I just ask you something about the definition of casual employment?
MR SPACCAVENTO: Yes.
VICE PRESIDENT HATCHER: So the High Court in the Rossato case made it clear that you can be a regular casual employee, that is, the fact that your work is regular and perhaps even subject to a roster, does not exclude the possibility that you're a casual employee if there's no factual commitment to regular hours.
MR SPACCAVENTO: Yes.
VICE PRESIDENT HATCHER: That seems to me to point to the conclusion that talking about irregular or intermittent employment is a subcategory of casual employment, that is, there'll be some casuals who are employed to do irregular or intermittent work but there's some casual employees who are not and that causes me to put in question whether they're acquainted in the same way that you suggest that is, there's no doubt that an irregular or intermittent employee will be a casual employee. It doesn't follow that all casual employees are irregular or intermittent.
MR SPACCAVENTO: Yes. It is a question that we also considered in that context. What I would say there is that we have not identified any situations where an irregular or intermittent employee is not directly equitable to a casual employee.
They seem in practical - for all practical purposes, to be one and the same but of course we have two other categories of employment under the Public Service Act being essentially fulltime or permanent employment and then also a specified term or specified tasks which is perhaps more of a either short term or sort of regularly scheduled but with a defined end point.
But I think our view is irregular, intermittent and casual in practice are effectively the same thing.
VICE PRESIDENT HATCHER: All right. And then one way we could deal with it is to have the Fair Work Act definition of a casual employee and then have an additional requirement that - there to be irregular or intermittent in accordance with the Act or that the provision operates subject to the Act and I say that noting that section 40 of the Fair Work Act provides that the Act, the Public Sector Act, the Public Service Act would prevail over the Award.
MR SPACCAVENTO: Yes. Yes. That is correct, yes.
VICE PRESIDENT HATCHER: All right. Anything further, Mr Spaccavento?
MR SPACCAVENTO: No, thank you.
VICE PRESIDENT HATCHER: All right.
MR NASH: Thank you, Vice President. We rely on our written submissions but I'd like to expand a little bit on the - probably the difference in our view of the irregular and intermittent employment between the CPSU and the APSC. I'll begin by saying I agree with the view that just expressed in relation to intermittent and irregular employment being a subcategory of casual employment.
The APSC and the CPSU both agree that there should be some reference to irregular and intermittent employment in the Award but we differ as to how that's interpreted and perhaps if I could take you to section 22(2)(c) of the Public Service Act.
VICE PRESIDENT HATCHER: Yes, just give us a second while we pull that up. Yes.
MR NASH: In the APSC submission they have characterised irregular and intermittent employment as a type of employment in and of itself. However, if you look at the words of section 22(2) it says that:
Engagement of an APS employee must be then as an ongoing employee or for a specified term or for a specified task.
But then (c) is worded differently. It says:
For duties that are irregular or intermittent.
So what it is saying that unless an employee is engaged for duties that are irregular or intermittent, they must be engaged in terms of either an ongoing employee or for a specified term or for a specified task. So what intermittent and irregular, it is a restriction on the use of casual employees, it's not a type of employment in and of itself and I think this is the context in which clause 6.5(a) of the Award must be read and it reads:
Intermittent and irregular employment cannot be equated with casual employment under section 15A as the APSC has suggested.
As the Full Bench has previously noted, that it is possible under section 15A for a casual employee to be engaged on a regular and predictable basis and such employment would not be consistent with the irregular or intermittent employment and it's not permitted in the APS at all. So our view is that this intermittent or irregular duties criterion should be preserved as a separate restriction.
To do this would ensure if the Commission inserted the 15A definition and referred to intermittent and irregular employees as casuals, that would ensure definitional consistency with the Fair Work Act and it would also be consistent with the approach taken by the Bench in relation to other Awards but to preserve the scope for casual employment in the APS and what the Award permits, our view is that should be recast as a separate restriction.
This would - otherwise not including that as a restriction would substantially change the breadth that casual employment under the Award although I do note the interaction of section 40 of the Fair Work Act that there may be a situation where the words of the Award if irregular and intermittent wasn't put in there, the words of the Award would be at odds with the actual basis for employment as permissible under the Public Service Act.
VICE PRESIDENT HATCHER: So if you look at clause 6.5(a) and again, I'm simply thinking out aloud, perhaps we can simply keep the words that are currently there and add the words, 'And who is also a casual employee under section 15A of the Fair Work Act.' So the whole sentence would read:
An irregular or intermittent employee is an employee who works on an irregular or intermittent basis and is a casual as defined in section 15A of the Fair Work Act.
MR NASH: Yes, I think that sort of would have the effect. I think, our view is that for clarity a clause similar to the clause in the Textile Award or the cleaning Award that was considered by the Commission which says a casual employee may only be engaged on a irregular or intermittent basis or to be - sorry, to be consistent with the words in the Public Service Act can only be employed for duties that are irregular and intermittent would preserve that clear restriction.
VICE PRESIDENT HATCHER: I mean, on one view, if everyone agrees that an irregular or intermittent employee is obviously a casual under the Act, is there any inconsistency or uncertainty that we need to do anything about it at all?
MR NASH: The Award needs to be clear that the intermittent and irregular employment is a subcategory of casual employment under the Act. The position that was put forward by the APSC although it uses the words, 'Intermittent and irregular employee' within that definition, there's nothing that specifically states that it is a subcategory and that casual employees cannot be engaged on a, you know, regular - for a regular pattern of hours.
VICE PRESIDENT HATCHER: All right. Thank you. Anything further, Mr Nash? Sorry, I should add, would (indistinct) in your view apply to the Parliamentary Department Staff Enterprise Award?
MR NASH: Yes. The terms of the - both the Award and the relevant terms of the Award and the legislation are the same so we think that - our view is the same approach should be taken for both Awards.
VICE PRESIDENT HATCHER: All right. Thank you.
MS MIFLIN: Thank you, Vice President. Apologies for dropping out earlier. Yes, look we would agree with that position there, the idea of adding a separate clause so to speak, to carve out the idea that casuals are to be employed only on an intermittent and irregular basis and we take the Full Bench - sorry, the Commission to the Full Bench decision with the provisional views with respect to - yes, groups 1 to 3 with respect to the Cleaning Award which the UWU made submissions on and which the Full Bench confirmed that section 15A could still sit alongside a carved out clause to specify that casuals are to be employed on irregular and intermittent basis.
Again, it's a temporal component so that would be our view and we would support the inclusion of something to that effect.
VICE PRESIDENT HATCHER: I thank you.
Do you want to respond to any of that, Mr Spaccavento?
MR SPACCAVENTO: Simply to say that I think we would be okay with the sort of proposal that you articulated earlier and in terms of the question of perhaps whether we need to do anything at all. I think our view is that we would probably be comfortable not to if that ends up being the decision. But beyond that, as I say, in practical terms, we do think they are essentially one and the same and we're not aware of agencies really drawing any distinction in employment arrangements between the two. Thank you.
VICE PRESIDENT HATCHER: All right. Well, we thank the parties for their submissions. We'll now adjourn and we'll resume at 2 pm.
SHORT ADJOURNMENT [11.47 AM]
RESUMED [2.02 PM]
VICE PRESIDENT HATCHER: All right. In this part of the hearing, we're going to deal with the Youth Services Australian Enterprise Award, the Australian Capital Territory Public Sector Enterprise Award and the Australian Federal Police Enterprise Award. So I think the only appearance of which we've had notice is you, Mr Nash, for the CPSU, is that correct? You need to turn your microphone on, Mr Nash.
MR A NASH: Yes, I am appearing in this matter.
VICE PRESIDENT HATCHER: Yes. All right. Just checking there's no other appearances in respect of any of these Awards? No. All right. You go ahead, Mr Nash.
MR NASH: Thank you, Vice President. I don't have much to add on top of the written submissions that we've already filed on these Awards. I think the real issue with all three of these Awards is the distinction about whether the reference to irregular or intermittent within the current definition of casual employment is definitional only or serves some purpose in the Award to restrict the use of casual employment.
If I could start with the Air Services Award, clause 6.4 there says that:
A casual employee is a person employed on an irregular intermittent and hourly basis without any ongoing commitment.
Now, the provisional view that was expressed by the Full Bench is that that is entirely definitional. Our view is that this definition is more confined than the definition in section 15A.
It is essentially limited to employees who are irregular, intermittent or employed on an hourly basis therefore it acts as a restriction on who can be engaged as a casual under the Act because if a person wasn't working on a irregular or intermittent and hourly basis, they wouldn't fall within that definition and they wouldn't be a casual for the purposes of that Award.
Now, we acknowledge that 'Engaged by the hour,' definition is inconsistent with 15A and we don't submit that that part of it should be retained but we do think that irregular or intermittent is a restriction on the engagement of casuals and should be seen as such and preserved as a restriction similar to the approach that the Full Bench has taken in relation to the Textile Award and the Cleaning Award in group 2.
VICE PRESIDENT HATCHER: And just to be clear, if that was incorporated because it says:
irregular, intermittent and hourly basis -
- that the relevant limitation would be 'Irregular and intermittent,' not 'Or intermittent.'
MR NASH: Yes, which is different to what we've had in the Public - in the APS Award and the Public Service Act but we would be proposing that the restriction is retained as it currently is in the Award rather than changed.
VICE PRESIDENT HATCHER: Does this reflect any legislative requirement applying to Air Services Australia?
MR NASH: No, the Air Services - the Act that underpinned this doesn't contain similar requirements but it has been a - it's a common terminology used throughout Commonwealth employment.
VICE PRESIDENT HATCHER: All right. Thank you.
MR NASH: And similarly, you know, I make similar arguments in relation to the ACT Public Sector Award. Clause 6.5 of that Award, 6.5(a) defines a casual employee as:
An employee who is engaged to perform work for a short period on an irregular or non‑systematic basis.
And that the Full Bench has proposed to retain the 'Short period,' part of the definition but not the 'Irregular and non‑systematic,' and you know, I just echo that the submissions in relation to the Air Services Award that, in our view, irregular and non‑systematic is more than just purely definitional, it serves to restrict who could be defined as a casual under the Award and that should be retained as a separate restriction.
VICE PRESIDENT HATCHER: What did you just say about, 'Short period,' isn't that also (indistinct) the restriction?
MR NASH: I think - yes, the provisional view from the Full Bench has been to retain that short period part of the definition.
VICE PRESIDENT HATCHER: I see.
MR NASH: We agree with that part of the provisional view. The part of the provisional view that we opposed was the cutting out the irregular or non‑systematic part of the definition. We say that should be retained.
VICE PRESIDENT HATCHER: All right. Yes.
MR NASH: Finally, the AFP Award, clause 5.8, it's worded slightly differently. Clause 5.8(a) says:
Where an employee is engaged on a casual basis to do work that is intermittent or irregular in nature, they will get the casual loading.
Our view is this needs to be read as a restriction on limiting casual employment to work that is intermittent or irregular.
The alternative reading to that is that there are two types of casuals that can be engaged, those who work on an irregular and intermittent basis to whom the casual provisions in this Award apply for and don't get those leave entitlements and those who work on some other basis who would be entitled to those leave entitlements, not get the 25 per cent loading and our view is that would be a perverse outcome which wasn't intended by the Award.
It is more just imprecisely written as it currently stands but there's an intention for there to be that restriction on casual employment.
VICE PRESIDENT HATCHER: All right. Thank you.
MR NASH: And I have no further submissions to make.
VICE PRESIDENT HATCHER: All right. Well, in the absence of any submissions, we'll consider what's been put. We'll reserve our decision and we will now adjourn.
MR NASH: Thank you.
ADJOURNED INDEFINITELY [2.09 PM]