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Fair Work Act 2009                                    1058578-1






cl.48, Schedule 1 of the Fair Work Act 2009
Variation of modern awards related to the definition of casual employee


Casual terms award review 2021




9.30 AM, THURSDAY, 22 APRIL 2021


JUSTICE ROSS:  Good morning.  I'll just go through the appearances as I have them, starting with the unions:  Mr Kempii for the ACTU and also representing the UWU; Ms Miller for the AMWU; Ms Knight for the ASU; Mr Crute for the ANMF; Mr Kenchington-Evans for the AEU; Mr Crawford for the AWU; Ms Taylor for the CEPU; Mr Nash for the CPSU; Mr Pardo and others for the SDA; Mr Maxwell for the construction and general division of the CFMMEU; Mr Bukarica for the mining division of the same union; Mr Odgers for the IEU; Ms Wills for the UFU; Ms Imber for the Club Managers' Association.  I also note that RAFFWU has not been able to attend due to a conflict with another matter but has no comment on the draft directions.


In terms of the employers, I have Ms Lawrence from ACCI; Mr Gunn from Community Connections Solutions; Mr Andrews from the AHEIA; Ms Sostarko from the MBA; Mr Mostokly from the Master Grocers; Mr Ferguson from Ai Group - can you put your microphones on mute, whoever was doing the coughing. Mr Rogers from the NFF; Mr Harris from the Pharmacy Guild; Ms Thompson from ABI; Mr McDonald from the Australian Public Transport Industrial Association and a journalist observing, Mr Scully.  Have I missed anybody?  No?  Can I go to you first, Mr Kemppi, bearing in mind the purpose of the conference is simply to provide an opportunity for the parties to comment on the draft directions that are set out at paragraph 4 in the statement published by the Full Bench on 19 April.


MR KEMPPI:  Thank you, your Honour.  I will keep it, of course, confined just to those draft directions and the issues raised therein.  We are of course indebted to the Commission for quite a detailed and extensive discussion paper, which canvasses quite a wide spread of issues and I say that because what we say in relation to the draft directions is that we would press for a slightly longer period of time by which to file submissions and replies and then also the hearing.  There are two issues within that:  one is the discussion paper does canvas quite a complicated set of many and varied issues which will take some time to grapple with, particularly given that we are dealing with, of course, quite general issues, also some quite technical issues around the modern awards objective and how that relates to this process, how it relates to the product of this process, particularly, as well as, of course, the many different awards, six of which are in the frame right now, but the rest of which will have affiliates wanting to make submissions on.


So there is quite an interaction issue there.  The second issue, then, is notwithstanding that we would press for an extra week or two to be added to each step of the directions.  We note that this has been raised with us by a couple of affiliates.  We note that there is a gap between the reply submissions and the hearing, of about two days, given the complexity of the matter, the fact that we're dealing with quite a number of issues and we're expecting to get quite a few reply submissions and make quite a few of our own.  We would also seek that that period be extended, irrespective of what happens with the whole process.


JUSTICE ROSS:  Yes, so in short, it's to provide probably an extra week or two and also a gap between the reply and the hearing submissions?  I'm getting feedback.  I'm not sure why that is.  I'm not getting it now.


MR KEMPPI:  Sorry, I missed part of that.  I believe you just summarised what I said by saying an extra week or two.


JUSTICE ROSS:  That's fine, yes.  I understand that.  of course, we have to get the whole thing done within the six months' time frame and that's exercising the Bench's thinking as well.  I do take your point about the gap between the reply submissions and the hearing and - all right.  Do any of the unions take a different view to that which has been articulated by the ACTU?  No?  All right.  Let me then go to the employers.  If I can start with Ms Lawrence from ACCI?


MS LAWRENCE:  Thank you, your Honour.  We are also very thankful to the Commission for its very detailed discussion paper.  We agree with Mr Kemppi in respect of his second point about the gap between submissions in reply and the date of hearing listed.  If there is any capacity to provide even up to just a week there we think that would be extremely helpful.  With respect to the remainder of the timetable, we don't have an issue, given we understand the legislative imperative to get it done by the end of September.  So we think that the rest of the timetabling is achievable for ACCI and its affiliates.


JUSTICE ROSS:  Thank you.  Before I go to the others, I might indicate that I agree that the gap is not sufficient.  I should have picked that up when I was drafting them.  We would provide at least a week.  I can't give you a date.  I'll need to confer with my colleagues.  But I take the point that each of you have made.  It also would be our intention to update the summary of submissions document after the reply submissions are in and we would want a couple of days to do that, so a period of at least a week.  You can take it that's likely to be the outcome.  It will depend a bit on the availability of the Bench, about how all that works.  If, for argument's sake, they're not available until two weeks, then I take that into account in adjusting the earlier timetable to give you as much time as we can.  But I think a period of at least a week between the reply subs and the hearing is a sensible suggestion.


Perhaps if I go to Ai Group and then ABI and then see if there is any different view.  Mr Ferguson?


MR FERGUSON:  You've addressed our concern, your Honour - it was the gap between the submissions and the hearing.


JUSTICE ROSS:  All right.


MR FERGUSON:  The only observation is that if there is a reasonable period between the release of the summary paper and that hearing, it will help us further confine our submissions on the day.


JUSTICE ROSS:  I agree, yes.  Ms Thompson.


MS THOMPSON:  No, nothing further from us; you've addressed our concerns as well, thank you, your Honour.


JUSTICE ROSS:  Any of the other employer interests have a different view or wish to say anything further?  No?  You can take it that I will address the issue you've raised about the gap.  Mr Kemppi, the issue about the movement of the other dates will depend a bit on when the hearing date is.  I'm conscious, though - I understand there are a range of issue and I understand there are a range of interests.  But if we push back the hearing date, say to the third or fourth week in June, then we have to hand down a decision.  We have still got to meet the statutory timeline.  I think it starts to get quite tight.  But I understand why you would want an extra week.  If I were in your position I would want an extra week too.  But sadly, I'm in my position so I'm trying to look at it from the other end.  We'll take it into account.


I'll have a discussion with my colleagues and we'll publish final directions tomorrow morning.  Of course, you know, there will be liberty to apply in the event that something unforeseen happens.  Nothing further?  Thank you all very much and I look forward to reading your submissions in due course.  Thank you.

ADJOURNED INDEFINITELY                                                            [9.42 AM]