TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009
cl.48, Schedule 1 of the Fair Work Act 2009
Variation of a modern award
Telstra Award 2015
2.00 PM, MONDAY, 16 AUGUST 2021
THE VICE PRESIDENT: All right, I will take appearances. Mr Kempii, you appear for the ACTU?
MR S KEMPII: Yes, Vice President.
THE VICE PRESIDENT: Mr Maxwell and Ms Wiles, you appear for the CFMMEU?
MR S MAXWELL: That's correct.
MS V WILES: Yes, that's correct, Vice President.
THE VICE PRESIDENT: And Ms Abousleiman, you appear for the CEPU?
MS Y ABOUSLEIMAN: That's correct.
THE VICE PRESIDENT: Ms Tobin, you appear for the AMWU?
MS K TOBIN: Yes, that's right, Vice President.
THE VICE PRESIDENT: Mr Crawford, you appear for the AWU?
MR S CRAWFORD: Yes, that's correct, your Honour.
THE VICE PRESIDENT: I hope I pronounce this correctly, Mr Oehme, you appear for the AMIEU?
MR A OEHME: Yes, thank you, Vice President.
THE VICE PRESIDENT: Is that the correct pronunciation?
MR OEHME: Oehme, Vice President.
THE VICE PRESIDENT: All right. Thank you. Ms Keogh, you appear for the UWU?
MS E KEOGH: Yes, that's correct.
THE VICE PRESIDENT: Mr Chesher, you appear for the Media Entertainment and Arts Alliance?
MR M CHESHER: That's correct, your Honour.
THE VICE PRESIDENT: Mr Arndt, you appear for Australian Business Industrial and New South Wales Business Chamber?
MR J ARNDT: Thank you, Vice President.
THE VICE PRESIDENT: Ms Bhatt, you appear for the Australian Industry Group?
MS R BHATT: Yes, Vice President.
THE VICE PRESIDENT: Ms Sostarko, you appear for the Master Builders?
MS R SOSTARKO: Yes, your Honour.
THE VICE PRESIDENT: Ms Adler, you appear for the Housing Industry Association?
MS M ADLER: Yes, your Honour.
THE VICE PRESIDENT: And, Mr Serong, you appear for Norton Rose Fulbright on behalf of the cinema employers?
MR M SERONG: Yes, your Honour.
THE VICE PRESIDENT: All right. So the purpose of today is to program for determination those cases where there has been opposition to the provisional view which the Full Bench has expressed in respect to the Group One Awards. As the notice of listing indicated there will be a hearing on 6 and 7 September in relation to all awards in which there is a contested position. So the parties can assume if they want to be heard further that they will be heard on 6 or 7 September, and for any party who wishes to put on further submissions or put on evidence, put on anything in reply to the submissions that have been filed will need to program that so it's filed before 6 or 7 September.
So what I am going to do is start with the Meat Industry Award, and there has been submissions which as I read them amount to in effect a unity ticket between the Australian Industry Group and the AMIEU. Do either party in relation to that award wish to put on any further submissions or evidence?
MR OEHME: I might be able to start, Vice President. Although both the AMIEU and Ai Group are on a unity ticket as far as the central issue regarding daily hire employment there are two proposed variations raised in AMIEU's submissions which we are continuing to consult with Ai Group about. We are hopeful that there might be a consensus reached on those points that mean that it doesn't need to be contested, and having discussed the matter with Ms Bhatt earlier today I think the intention is that Ai Group will consider that further in consultation with its members while preparing reply submissions dealing with other awards and we're content with that approach.
THE VICE PRESIDENT: All right. That's positive news, but Mr Oehme and Ms Bhatt, you can't assume that we will be persuaded by you even if you have the same position, in particular having read - I am only speaking for myself, not the Full Bench - having read the submissions I am still unclear as to why you say daily hire involves an advanced commitment, firm advanced commitment that involves an agreed pattern of work. I don't expect you to answer that now, but I would like the parties to consider how they propose to persuade the Full Bench that daily hire employment amounts to an agreed pattern of work agreed to in advance.
Can I indicate something else, that there was one matter which was not raised in our statement about the group on awards concerning the Meat Industry Award, and that concerns clause 12.8 of the award. Let me just pull that up again. 12.8 relates to casual employees and provides that wherever possible the employer will notify casual employees their starting and finishing times for the period of their engagement at the commencement of their engagement. The parties may have seen that in respect of other awards which talk about casuals being provided with an indication of their likely working hours. A provisional view has been expressed that that is inconsistent with the Act and should be removed, and we will formalise this in a note that the parties should expect to make submissions about clause 12.8 in that context as well.
So having regard to all those matters should I set a date for the filing of any further submissions and/or evidence which the parties may wish to rely upon prior to 6 September?
MS BHATT: Vice President, it's Ms Bhatt, can I suggest this, that in relation to the issue arising from clause 12.8 of the award and any submissions in reply to one another that a direction be set for the filing of such submissions, I can indicate that we don't intend to file any evidence in relation to the Meat Award. I am not sure if this is the appropriate time, Vice President, but at some stage we might want to be heard about when that material is required to be filed, but I am happy to deal with that later when we come to the other awards.
THE VICE PRESIDENT: Generally speaking, dividing up the time between now and 6 September, I am generally going to adopt the position that there will be two dates, one would be 23 August and the second would be 1 September where there's a contested position between parties. Can I indicate, or would it be useful if the parties were given until 23 August to file any further submissions they want to make about any of the issues, and then if they want to reply to each other's submissions they have until 1 September?
MS BHATT: In the context of the Meat Award that's amenable to us, thank you.
THE VICE PRESIDENT: Yes. Is that okay with you, Mr Oehme?
MR OEHME: That's fine by us, thank you.
THE VICE PRESIDENT: All right. So anything else I need to deal with, with the Meat Award? All right. The next award which I will deal with is the Broadcasting, Recorded Entertainment and Cinemas Award. I think that's you, Mr Serong, and Mr Chesher. You will be give an opportunity to be heard on 6 and 7 September about the casual conversion issue. What direction should I make about the filing of further submissions and evidence. Mr Serong?
MR SERONG: Your Honour, it is not intended that we file additional evidence, and we largely would be relying on the submission already filed that was to be considered in these proceedings.
THE VICE PRESIDENT: Right.
MR SERONG: Mr Murdoch QC is briefed in this matter and he wishes if possible, if he's permitted, to speak to those submissions, your Honour, and that's the extent of our involvement.
THE VICE PRESIDENT: All right. Certainly that opportunity will be given to you on 6 or 7 September. Mr Chesher, what's your organisation about the cinema employers' submissions?
MR CHESHER: We oppose the submission, your Honour. It's no moment to us whether we need to file our submission in reply on 23 August or 1 September, whichever is convenient.
THE VICE PRESIDENT: Mr Chesher, when you say you oppose the employers' view does that mean you - - -
MR SERONG: That's right, we didn't file - we didn't (indistinct) provision immediately, no.
THE VICE PRESIDENT: All right. I might make this direction then, that, Mr Chesher, your organisation file written submissions by 23 August. Mr Serong, if your clients, and it's a matter for them, want to file any submissions in reply to the MEAA's submissions you can do so on 1 September. Is there anything else with respect to that award?
MR CHESHER: Not from MEAA's perspective, your Honour.
THE VICE PRESIDENT: All right. Is that okay with you, Mr Serong? All right, silence is assent. Now, I am open as to how we deal with the rest of the awards. Do the parties have a view about whether they should be, as it were, grouped as one since apart from one issue raised by the AiG they all seem to be about casual conversion, or should they all be dealt with separately or in groups? Does anyone want to lead off about that?
MS BHATT: Vice President, it's Ms Bhatt, it appears to us that there is a significant commonality of issues that arises from the submissions that have been filed by the unions today. For that reason it would be appropriate for the awards to be dealt with together. I understand that the unions have to some extent raised particular arguments that they all say are peculiar to their sectors or the industries that they represent, and they can no doubt be dealt with in the course of the hearing, but it seems to us that it is sufficient (indistinct) the awards to be dealt with together.
THE VICE PRESIDENT: All right. Does anyone want to press for a different view from that advanced by Ms Bhatt? No. All right. I think the UWU at least wanted an opportunity to file and call evidence. Is that correct?
MS KEOGH: Yes, that's correct, Vice President.
THE VICE PRESIDENT: All right. What I would propose unless anyone objects is that all the parties which oppose the provisional views expressed in relation to the remaining awards, so that's the Building Award, the Joinery Award, Mobile Cranes, Electrical Contractors, Food and Beverage, and Plumbing, so all those parties who wish to file anything in addition in opposition to the provisional view, including any evidence, could have until 23 August, and then any submissions responding to those could be by 1 September. Is that a suitable course?
MS BHATT: Vice President, I am not sure if I have just cut off Mr Kempii, if I have perhaps he ought to go first.
MR KEMPPI: Thank you. I am just going to press for a small amendment to those dates given that we are not quite sure the character of the evidence that will take place - sorry, that will be put on. Might I suggest that we be given until the 25th for the initial phase of evidence, and then replies on the 1st. That doesn't change the overall timeline, and if there is likely to be evidence it's probably going to be that first stage. The replies I think will be relatively (audio malfunction), within a week, in our submission.
THE VICE PRESIDENT: All right. Ms Bhatt, what do you want to say about that?
MS BHATT: Vice President, we're in a somewhat difficult position. We don't quite know what will be filed. On the basis of what has been filed to date by the unions our intention today has been to seek from the Commission an opportunity to file at least submissions in reply and potentially also evidence in reply by 27 August, and we think we need that period of time based on what's been put by the unions to date. Now, obviously if there's additional material to be filed that might change and we don't know precisely how much time we will need because we don't know what's coming.
I would also say that to an extent the unions have had several weeks to prepare their material. The Commission's statement was issued at least a couple of weeks ago now and for the employers to then be only left with a week to prepare their materials is potentially unfair, and I don't put it any higher than that because we don't know what's coming. We understand that there is a timeframe imposed by the statute within which this review has to be completed, but we have a concern that the material that's been filed by the unions today raises some fairly fundamental issues about awards in which Ai Group has a significant interest and we should be afforded with a sufficient period of time to respond to whatever's advanced.
THE VICE PRESIDENT: All right, well I will split the difference. For those parties which oppose provisional views about the casual conversion clauses in those awards you will have until 24 August to file any further submissions and any evidence, and any other employer organisation which support the provisional views and oppose the unions positions will have until 2 September to file any submissions and evidence in reply. Ms Bhatt, I think the Ai Group had raised one discrete issue about the definition of casual employment in the Building Award as it relates to daily hire. Does that require any further submissions?
MS BHATT: It doesn't from us, unless anything is put in response by the unions.
THE VICE PRESIDENT: Does any union party want to respond to AiG's position about that, or indeed employer party? So just to remind you the Ai Group submitted that the definition of casual employee should expressly clarify that a daily hire employee is not a casual employee within the section 15A definition. Does any party oppose that proposition? All right, I will take that as a "No", so that can be dealt with on the day. Is there anything else which the parties wish to raise at this stage?
MS BHATT: Vice President, only to seek that the directions afford the parties liberty to apply. I hear what the Commission has said about the directions that have been issued, but in the event that once the material is filed we have a concern about whether we have enough time to respond we may seek to make the appropriate application at that time.
THE VICE PRESIDENT: All right. They will provide for that, although (indistinct) is very limited as you understand and it will get narrower when we get to the next two weeks.
MR MAXWELL: Your Honour, can I just raise that the union be given an opportunity to file any evidence in reply to anything that's filed by the employers?
THE VICE PRESIDENT: There won't be that opportunity, Mr Maxwell. I think you will have to file any witness evidence you want to file by the 24th, and if you want to adduce any oral evidence from the witnesses you call to give further evidence in reply to the employer evidence then I suppose leave will probably be granted to allow you to do so, but there is simply not enough time to allow for that sort of timetable I'm afraid. All right. Does any party wish to raise anything further? All right. So written directions confirming what I have said will be issued as soon as we can, either later today or tomorrow, and we will now adjourn.
ADJOURNED TO A DATE TO BE FIXED [2.39 PM]