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Fair Work Act 2009






s.48 FWA Act 2021 - Variation of modern awards related to the definition of casual employee


Variation of a modern award



Casual terms award review 2021




9.30 AM, THURSDAY, 15 APRIL 2021


JUSTICE ROSS:  I'll go through the appearances that I have, starting with the unions:  Mr Kemppi for the ACTU, Ms Devasia from the AMWU, Mr Robson from the ASU, Mr Croup from the Nurses, Mr Kenchington-Evans from the AEU, Mr Crawford from the AWU, Ms Taylor from the CEPU, Mr Townsend and Mr Nash from the CPSU, Mr Rogers from the IEU, Mr Prado and Mr Galbraith from the SDA, the CFMMEU Construction and General Division, Mr Maxwell; the CFMMEU Manufacturing Division, Ms Wiles; Mr Amos and Ms Taylor for the Flight Attendants Association, Mr McKenna with Ms Sakkas from the UFU.  One of your doesn't have your mic on mute.  Could you make sure your - thank you.  Ms Peta Imber from the Club Managers' Association, Mr Platter from the HSU, Mr Cullinan from RAFFWU, Mr Redford from the UWU.  Are there any unions have I've missed?


MR BUKARICA:  Your Honour, Alex Bukarica from the CFMMEU Mining and Energy Division here.  I think I put in a very belated appearance.  I apologise for that.


JUSTICE ROSS:  That's all right.  Thanks, Mr Bukarica.  Anybody else?  No?  Then if I go to the employer parties:  Ms Lawrence from ACCI, Mr Carter and Mr Kakwani from the Association of Independent Schools of New South Wales, Ms Adler for the HIA, Mr Rogers from the NFF, Mr Andrews and Mr Raymond from the AHEIA, Ms Minchinton from the AHA, Ms Sostarko from the MBA, Mr Arndt from the New South Wales Business Chamber and ABI, Mr Ferguson for Ai Group, Mr Gunn for Community Connections Solutions Australia, Mr Mostokly from the Master Grocers, Mr Richards from the South Australian Wine Industry Association, and Mr Tomisich from the National Fire Industry Association of Australia.  Are there any employers that I've missed?


MR HARRIS:  Yes, Your Honour.  It's Harris S from the Pharmacy Guild.  I'm very late.  I've only just seen your notice this morning.  I just got back from leave.


JUSTICE ROSS:  Thanks, Mr Harris.  Anyone else?  Ms Moulatsiotis?


MS MOULATSIOTIS:  Yes, your Honour.  Yes, your Honour. Vicki Moulatsiotis, just from Australia Post.  I'm also lately announcing my appearance as well.


JUSTICE ROSS:  I am sorry, what was the name again?


MS MOULATSIOTIS:  Vicki Moulatsiotis.


JUSTICE ROSS:  Thank you.  Anyone else?  No.  There are three other bodies that I wasn't quite sure where to characterise.  For the Australian Public Service Commission, Dr Prideaux with Mr McNeilly and Ms Garutti.  There's Mr Scali, a journalist with Workplace Express, and a Mr Stuart Pila, partner with Clayton Utz, who is observing but is awaiting instructions from some clients.  Is there anyone else that I've missed?  No?  All right.


I published a statement on 9 April, and shortly thereafter, an agenda for today's conference.  The statement sets out in broad terms how I was proposing the commission conduct the review required by the Amendment Act.  I will go through each of the items on the agenda.  I should foreshadow that item number 3, any party objecting to the groupings of awards, the prospect of going through that with such a large group is a bit daunting.  So we don't need to determine that question now.  I can provide, or will provide, all interested parties with an opportunity to comment in writing on the attachment A groupings and the order in which they're dealt with.  There may be an alternate order.  We have received correspondence from the NRA indicating they can't be here today, but wanting the Fast Food Award to be included in the first stage.


I will come back to that first stage in  moment.  But the first stage doesn't deal with priority awards, if I can categorise them as that.  It rather deals with awards - we have selected those awards because they give rise to the broader spread of issues that might be common in a range of other awards.  That's the purpose.  We are not going to lump in everything that - everyone wants theirs dealt with first.  We need to have some sort of orderly process where we're dealing with as many of the issues of principle as we can across the spread.  Everyone will have an opportunity then to make submissions about, well, which awards should be dealt with next, what priorities should be assigned.  I certainly will provide a process to enable you to do that.  So I don't think we need to spend any more time on agenda items 3.


What I will do with the other agenda items is I will go to the ACTU.  Then I will ask whether any unions have a different view.  Don't simply repeat the ACTU said.  I will then go to Ms Lawrence, Mr Ferguson and to Mr Arndt to try and get a feel for the employer perspective.  I will ask then whether any employer organisation has a different view to that expressed by those representatives.  Again, try to resist the urge of just agreeing with whatever someone has said.  I will assume that you agree or don't disagree, unless you say something to the contrary.


Let's deal with the first issue, and this is whether any party objects to the proposed approach?  That is, the proposed approach as set out at paragraph 6 to 10 of my statement of 9 April.  In broad, we are looking to conduct the review in two stages.  The first stage would be a five member bench to consider issues associated with the nature and scope of the review.  And we will review the relevant terms in a small group of modern awards, and that group has been selected, as I mentioned, because they give rise to a range of issues.  For example, they each have - it covers both the model casual conversion clause, and award-specific casual conversion clauses.  It covers various definitions of casual, including the default definition that if you are not a part-time or a full-timer, you are by default a casual.  The five member bench would issue a decision on the outcome of its review of the initial group of awards.


Then there will be the second stage, a three member bench.  Or it may be, in some cases, single members to review the remaining awards, bearing in mind that we've got a timeline in which all of this has to be done, so we need to move through it reasonably quickly.  And yes, the thought was that this would be the most efficient way of doing it.


So let me go to you, Mr Kemppi.  Does the ACTU have any objection to that process?


MR KEMPPI:  Thank you, Your Honour.  Initially I had sought to seek some clarification on a few issues which your Honour has already clarified.  And the way I understood is essentially we are dealing with a set of representative awards first, and the process, as I understand it, would be to set or determine some general principles in relation to the issues those awards throw up, and then to essentially cascade those principles through the groups and apply them.


Given that that is the case, as I understand it, as to the process, one observation we would make is that we are probably going to be dealing with quite a wide pool of unions for the first six awards.  So it might well be the case that we might have situations where a union who isn't covered by, for example, the Retail Award might want to make submissions as to what should happen with the Retail Award due to the (indistinct) spot, even though they are in one of the latter groups, a very similar clause in the awards that they do have a stake in.  So I think we might get ourselves into that territory.  So that is one thing that we did want to flag.


The only real tweak to the process that we would suggest at this stage, bearing in mind there may be further as it rolls through, would be that it would be our strong preference to see the discussion paper first before directions are issued.  I note that there was a proposal that those two be issued concurrently.  We would certainly appreciate some understanding of what the discussion paper contains so that we can comprehend the scale of the task before us, which I suspect will be quite a large task, and then potentially be heard on the directions that should so issue.


Your Honour has also effectively made some comments about question 3, which we were going to address.  Given that we are not going to address question 3, there are a couple of things I'd like to say that raise similar points, or raise points around that.  And one question is essentially whether or not the - there is one award that stands out in that group, and that is the Fire Fighters Award.  It's our view, from looking at it, that the Fire Fighters Award doesn't contain a relevant term, and therefore the trigger for this review isn't present.  And that essentially whether this is a question of whether that award should be included in the group of six, or moreover a much broader question as to whether this award should be treated under the review at all, is a very live question.  I understand that the UFU are represented and on the line, and they are certainly able to press that argument to the extent necessary now, or subsequently.  But I did just want to bring that to Your Honour's attention, that that is essentially the view we will be taking with respect to that particular award.


Further, I understand that there will be some - rather, there will be a subsequent process in relation to the groupings of awards.  I just want to flag that the CPSU SPSF, Mr Townsend, do have an issue that they would like to raise with respect to that.  I'll leave it to them to either raise it now or raise it later.  Finally, one observation we would make - and we'll leave this primarily for later in the submissions - is that it might perhaps make sense to group the awards in the subsequent tranches, according to perhaps which type of classification clause they - sorry, which type of definitional clause they have or which type of conversion clause they have, given that we have sort of taken this approach of setting principles and then applying those principles down the line.  I understand there is complexity and overlap in the groups.  But the (indistinct) arrangement would be our preferred approach, as it would allow similarly minded parties to put their submissions together, as opposed to going off in stages.


From the outset, that would be our comments on question one and thank you for the lead extended in sneakily, addressing question three there.


JUSTICE ROSS:  That's all right.  Can I just comment on some of the issues and it might assist with the other parties' observations:  in terms of the directions and the issues paper, we will publish draft directions.  There will be an opportunity to comment but it will be a short opportunity.  We need to get on with the process and so expedition is important.  I readily accept that in dealing with the first group of awards there will be parties with an interest.  The discussion paper will identify the awards which have common definitions, as you put it, Mr Kemppi.  I think the nature of the groupings - there are a variety of approaches.  I would encourage you to have a discussion, certainly at least in the initial stages, with ACCI, Ai Group and ABI to see if you can reach an agreement on an appropriate approach.


Probably wait until the issues paper is released, because that will save you some time.  It groups or it lists in a - well, it's being finished now - but in a colour-coded way which awards have common provisions and that might assist you in considering your view.  Look, it doesn't need to be a one decision rule.  You could have that as a general approach but you might decide - or you might agree - that some awards should be dealt with as a priority within that arrangement.  But I would encourage you to have a discussion about that.  I will put out a short statement next week, setting out a process to provide you with an opportunity to say what you wish to say about that.  As for the firefighting industry award, I'm not entertaining argument today so perhaps if I can let the UFU know I readily understand the position.  That's why it's been put in the list.  Someone has to make a decision about whether or not it's within the review.


On the face of it, it doesn't appear to be.  But it's to provide an opportunity for any other party to say what they wish to say about that.  The same sort of thing - I think there are a couple of other awards that, on their face, make no provision for casual employment and it will enable that issue to be closed off.  Subject to those observations, if I can go firstly to the union parties:  does any union party take a different view to that which has been expressed by Mr Kemppi in relation to agenda item one?


MR MCKENNA:  Your Honour, McKenna, initial J, for the UFU:  just picking up on what Mr Kempii has already said and your Honour's comments about the firefighting industry award, the only thing that I would wish to add perhaps arises more under issue four and five.  But just to confirm that the union does welcome the opportunity to make submissions about whether the firefighting industry award should be within the scope of review.  The union's position is that there is no relevant term.  As your Honour has indicated, there is no casual employment or casual terms and conditions dealt with under the award.  The union's preliminary position is that there is no jurisdiction to deal with that award in the review under clause 48(2).


JUSTICE ROSS:  Yes, look, you don't need to run through the argument.  There has to be a decision about whether it's in the review or it isn't.  Do you agree with that?


MR MCKENNA:  I do, your Honour, and so the only thing I would add is whether item four - - -


JUSTICE ROSS:  No, look, listen - I understand your position.  This is a conference.  We're just trying to sift through the material.  There is no point in arguing your case now.  We accept that it has to be decided and it will be.  You will be given an opportunity to say whatever you want to say about that.


MR MCKENNA:  Thank you, your Honour.


JUSTICE ROSS:  Is there anyone else on the union's side who takes a different view to that which has been expressed by Mr Kemppi?  No?  All right.  Ms Lawrence.


MS LAWRENCE:  Yes, thank you, your Honour:  not a lot to say on the process.  I think a lot of the issues have already been ventilated by Mr Kemppi.  But we are supportive of the two-stage process.  We obviously similarly hold a particular interest in the firefighters' industry award and whether or not they will be involved.  But I think you have covered that sufficiently, except to say that we would very much value that being dealt with as a preliminary issue as soon as possible, given the jurisdictional issues that may arise down the track in relation to other awards.  So we just value that being dealt with as soon as possible but recognise that that won't be dealt with here today, your Honour.  Nothing further from us.


JUSTICE ROSS:  Thanks, Ms Lawrence.  Mr Ferguson.


MR FERGUSON:  Yes, your Honour - we're supportive of the process.  We think it's an efficient way of dealing with the matter.  Just two practical issues that I can raise for the Bench's consideration now about the process:  one is we think there may be a need to give consideration to potentially not finalising the terms of any variation to the first six awards until the second stage is complete, or at least sort of substantially underway.  The reason we just raise that now is it just seems to us that it's quite possible that issues might bubble up in the second stage that aren't identified in the first, even though we're trying to head that off and that that might colour the approach of the Bench in sides that are ultimately taken to the first six awards.


The second suggestion we'd make is that - and this might be an issue for directions - is that we'd see merit in there being an opportunity afforded to the parties fairly early in the process to propose draft determinations identifying the sorts of variations that they say would be necessary, just so that it focuses everyone's attentions somewhat.  But other than that, we're very supportive of the approach, your Honour.


JUSTICE ROSS:  Thanks, Mr Ferguson.  The proposed draft directions can form part of directions where they're making submissions in respect of the general issues so I agree that that does focus the mind so it's a useful exercise.  I'm not as attracted - speaking for myself - to the proposition that we wouldn't finalise the terms of variations in relation to these six awards.  That doesn't preclude argument on a later one and also, any party with an interest in the later award that we should say something, will have an opportunity to do so in the first tranche.  I would envisage that we would have a process of written submissions which we would then summarise and the Bench may then express some provisional views and that may include provisional variations.  So I don't want anyone to be taken by surprise in terms of - there is a decision about an issue and then suddenly a variation determination is made.


There will be opportunities to comment on the way through but I'm conscious of the potential magnitude of the task and the tight timeframe.  So I think we need to move through the awards fairly quickly, rather than then circling back and having another round of arguments about the initial group.  But you'll have an opportunity to put that point to the Full Bench but that's my concern, is around the timing, Mr Ferguson, that's all.


MR FERGUSON:  I appreciate that, your Honour.  Just one comment:  we hadn't a concluded view that that would absolutely be necessary.  I think we have been very busy looking through all the terms of all the different awards and it just seemed to us that it might be a possibility.


JUSTICE ROSS:  Yes, I think that what you will see in the issues paper is we have tried to identify common features across all awards.




JUSTICE ROSS:  You'll know where an issue has arisen and parties will know what our provisional view is in respect of that.  They will be aware that it might have an impact on them later.  As I mentioned, Mr Kemppi, I can readily appreciate that there will be parties with an interest in awards other than the group that we have initially selected for the first stage who would want to say something.  We don't propose to preclude them from participating at all.  But let's see how we go.  I think this will be a bit of a new experience for all of us - something to look forward to.  Mr Arndt, do you take a different view or have anything you wanted to add?


MR ARNDT:  I don't, your Honour - supportive of the process and nothing further to add that hasn't already been covered.


JUSTICE ROSS:  Okay.  Are there any employer interests that have - that take a different view about the process, so agenda item one?  No one?  Let's go to agenda item two, bearing in mind we are going to deal with three separately.  It might be convenient to deal with the remaining agenda items - that is the selection of the six awards, the preliminary issues that arise, they're set out at paragraph 12, and the issues in the initial group of awards.  I'll go back to you, Mr Kemppi - was there anything you wish to say about that?  I understand the position that's been put in respect to the firefighting award.


MR KEMPPI:  In relation to the group of awards, we're guided by your Honour's comments in relation to how this group was set, what they represent, essentially, and that is the variety of the provisions that we might canvas or encounter as we go through the entire process and we are supportive of that approach, generally speaking.  We are against the inclusion of the fast-food industry award.  It's not an award that raises any particularly different or remarkable issue in relation to casual employment that isn't already encompassed by one of the other awards in the group of six.  As your Honour pointed out, this is an exercise of identifying the priority awards, so the extent of casual employment isn't really, in our submission, a factor, so we are against including that award.  Yes, the AMA wish to elaborate further on that but that is our broad, general position on that.


Just to clarify, did your Honour want me to move to the other questions or do you intend to - - -


JUSTICE ROSS:  No, that's fine.  I think we'll try and deal with the other issues as well.


MR KEMPPI:  All right.  I'm not going to give, necessarily, our position on - - -


JUSTICE ROSS:  No, no, I don't want the submission about what you say about the issues that are identified.  It's really whether there are any other issues that you think might arise.


MR KEMPPI:  Thank you - in that case, there are no issues that we would add to either of those two lists.


JUSTICE ROSS:  I'd indicate that this is not the last occasion on which issues can be brought to our attention.  I think it's once parties have had an opportunity to have a closer look at it, to have a look at it in the context of the issues paper.  We will - we're not proposing you constrain yourself to particular questions that we might ask.  We want you to answer those questions but if there is another issue you want to raise, you should feel free to do so.  All right, well, in terms of the - the only other thing I wanted to note is you're correct, that the fast-food award does not raise anything by way of an issue of principle that's not covered in the other awards in the group.  Indeed, it's pretty closely aligned to the general retail award in terms of the issues in this review.


That doesn't mean that in the discussion that I'm encouraging the ACTU to have with ACCI, Ai Group and ADI that there might be a view reached as to a process for at least identifying awards that could be dealt with with some greater priority than the others.  The extent of casual coverage is a relevant consideration in that because it obviously makes sense to provide certainty for those award areas where there is a significant proportion of employees who are casual employees.  Can I go to the unions?  Anyone disagree with what Mr Kemppi said or wish to say anything further in relation to the remaining agenda items?  No?  Then let me go to Ms Lawrence.


MS LAWRENCE:  Yes, your Honour - in relation to the six chosen awards, besides the comments that have already been made in relation to the firefighters' industry award, nothing further.  We are supportive of those chosen and the rationale behind it.  With respect to the preliminary issues, whilst we do have a range of other issues we think may need to come up, such as the interaction with the NES, the casual loading and the like, we think that they can all be addressed in a broader sense in relation to the preliminary issues already raised.  As your Honour has pointed out we're not limited and so we think that we can raise them without adding any additional questions to those already set out, your Honour.


JUSTICE ROSS:  Thanks, Ms Lawrence.  I should indicate that the interaction with the NES and some of the casual loading terms are matters that are going to be canvassed in the issues paper because some awards do raise considerations along those lines.  The interaction with the NES, of course, is particularly important with the casual conversion provisions in modern awards in that it may be said that some of those award terms provide terms which are less beneficial than those in the NES.  There are particular complexities, for example, with the manufacturing award because some of its terms are more beneficial and some are less beneficial.  So we will highlight those but as you've said, Ms Lawrence, you won't' be confined to the questions that we have asked.  Mr Ferguson?


MR FERGUSON:  Nothing else I need to raise, your Honour.  Those sorts of interaction issues are sort of living large in our minds but there is scope to deal with them.


JUSTICE ROSS:  It's looming large in my mind too, Mr Ferguson.  Look, we will see what the - we'll get an early indication once there is a submission process, as to what the attitude of the various parties is.  Mr Arndt?


MR ARNDT:  Nothing further, your Honour, from me.


JUSTICE ROSS:  Does any other employer representative have anything they wish to say in respect of agenda items two, four and five?


MS J MINCHINTON:  Your Honour, Joanna Minchinton from the Australian Hotels Association - we would like to flag an additional issue in relation to the casual loading.  It may be that it can be agitated as part of the existing issues but specifically for hospitality.  In our 2020 version of the hospitality industry general award, it provided a fairly detailed explanation of what the 25 per cent casual loading covered and what it provided compensation for.  It's not in the 2020 version of the award.  This was a while ago so my memory might have faded a bit but I think it might have been something to do with the principles for the plain language process that that level of detail be taken out of the award.  The AHA is just mindful in terms of the amendments to the Fair Work Act, particularly new section 545A.  When it comes to - I guess what we know as the double-dipping element and 545A(3) talks about the Fair Work industrial instruments and how the court might allocate the 25 per cent loading to any sort of offset.


It refers to Fair Work instruments and those instruments, if they provide detail as to how the 25 per cent loading has been made up, so we would like to raise that as an issue, your Honour, in respect of consideration being given to re-inserting a clause that actually provides details as to what the 25 per cent loading entails and provides compensation for.


JUSTICE ROSS:  Thanks, Ms Minchinton.  Yes, I don't think it was removed as part of the plain language.  It could have been.  But I certainly recall early in the review, in a sort of failed effort to try and get some consistency across the award system, raising the question of whether we have a standard term that details what the casual loading is intended to compensate employees for.  It would essentially adopt the rationale in the Metal Trades casuals loading case.  But that didn't meet with widespread support, or my recollection is it didn't meet with any support.  So we didn't end up doing that.


But the issue you have raised is identified as a question in the issues paper, because there's no indication of the entitlements for casual loading is paid in compensation for in either the Hospitality Award, the Manufacturing Award or the Teachers Award in that list.  But there is an indication in some of the other awards.  So we have identified that as a question.  And picking up on what Mr Ferguson had said earlier, when you come to make your submission in response to that question, that would be the point at which you could advance a variation determination to give effect to your view.  Okay?


MS MINCHINTON:  Thank you, your Honour.  Thank you.


JUSTICE ROSS:  Anyone else from the employer groups?  Anyone in the group?  Other than you, Mr Scali, because it's not a media conference.  But the Public Service Commission or Mr Pill(?), anything you wanted to ask?  No?  All right.


Can I raise another - sort of a separate issue?  I think this will be a bit of an iterative process, and we may need to - well, we will need to be flexible about the course we adopt as issues arise.  But I think there may also be utility in some conferences around these issues.  But my thought had been that we'll put out the draft directions with the issues paper, we'll settle the directions.  They will provide for a process of written submissions, and the submissions can include draft variation determinations.  We would then - we'd have one date for all submissions.  Once those submissions are made, we would then publish a document summarising the submissions by issue, and then there will be an opportunity for submissions in reply, and then a short oral hearing would be the idea.  We would schedule the oral hearing.  I'd probably have put out a draft as to how that hearing might run, whether it's by issue or award-specific so that if you have a particular interest in a particular issue, you would know when it is going to be running in the agenda.  And I would want to extend the invitation now if any party feels that a conference in relation to either an issue or a particular award would be helpful, then we're happy to organise that.  And I would encourage you to have direct conversations with the employer and employee organisations with an interest in a particular award.


In relation to the AHA, I'd certainly encourage you to have a conversation with the UWU about that issue.  I would make the same point to the NFF, to talk to the AWU, because look, the Pastoral Award as - well, both those organisations know, has some quite complex provisions in relation to casual employment and shearing and the like.  And I think it would be if you have - once the issues paper is published, you will see the sort of issues that we'll raise, that if you have an early conversation about those.  It's a bit more difficult that some of the other awards, because the issues are more general in nature.  But again, if any party thinks that a conference about a particular issue or about a particular award would be helpful, then you should let my chambers know and we'll organise that prior to a hearing.


Is there anything further?  Any other questions, or any issues any party wants to raise?  No?  All right.  Well, the next step will be to put out a short statement with the issues paper and some draft directions on Monday.  Monday or Tuesday.  That will set the process for the next steps.  I will issue a separate statement later in the week about phase 2, and how that might be structured, or a process to invite comment on how that is to be dealt with.  And we might provide some options in that regard.  And as I indicated before, I would encourage Mr Kemppi, ACCI, Ai Group and ABI to have a discussion to see whether there is a measure of agreement, at least amongst that group, as to the groupings.  And even if there was an agreement, it would still be put out in a draft form to provide any other interested party with an opportunity to comment on it.


Thank you very much.  I look forward to getting stuck into the process.  I'll adjourn.

ADJOURNED INDEFINITELY                                                          [10.11 AM]