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Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021






cl.48, Schedule 1 of the Fair Work Act 2009


Casual terms award review 2021





9.30 AM, THURSDAY, 24 JUNE 2021


JUSTICE ROSS:  Good morning.  Can I encourage you all to put your microphones on mute if you haven't already done so.  I will take the appearances.  I will run through those that I have and then if I'm missing anyone, you can indicate.  I have from the CFMMEU Manufacturing Division, Ms Wiles; from the ACTU, Mr Kemppi; from the AEU, Mr Kenchington‑Evans; from the AWU, Mr Crawford; from the IEU and NTEU, Mr Borenstein, Ms Bourke and others; for the SDA, Mr Pardo; for the UFU, Mr Dixon and others; for the UWU, Mr Redford.  Mr Redford, I note that you will be absent for a short period of time after 11 o'clock and that the ACTU will represent your position while you're gone.


Mr Nash for the CPSU, observing; Keely Tobin for the AMWU and others; Mr Maxwell for the CFMMEU Construction and General Division; Ms Yolla Abousleiman for the CEPU; Ms Lawrence for the ACCI with Ms Fraser; the Association of Independent Schools, Ms Hart and others; Mr Arndt and Ms Caan for ABI; Ms Lee for the MGA; Mr Murdoch and Mr Sarong for the National Association of Cinema Operators; Mr Ferguson and Ms Bhatt for Ai Group; Ms Adler and others for the HIA; Ms Sostarko for the MBA; Mr Rogers for the NFF; Ms Minchinton for the AHA; Mr Booth for the Newsagents Association; Dr Prideaux for the Australian Public Service Commission, with others; Mr Gunn for Community Connection Solutions Australia.  Have I missed anyone that wishes to announce an appearance?


MR MILLER:  Your Honour, it's Mr Miller from the AMWU.  It's not that you missed the AMWU so much, but I just wanted to point out that I will be primarily speaking for the AMWU rather than Ms Tobin.  I just wanted to say that in case there was any confusion.


JUSTICE ROSS:  Thanks, Mr Miller.  Anyone else?  No?  All right.  In response to a statement we issued, a number of parties have filed notes indicating which of the submissions they oppose and which they support; namely, the parties that have done so are ACCI, ACTU, the AHA, the AEU, the AMWU, the AWU, the Associations of Independent Schools; the CFMEU Construction Division; the IEU; the MGA; the NFF; the SDA; and the UWU.  Have I missed anyone who has filed a note?


MR FERGUSON:  Yes, your Honour - Mr Ferguson.  Ai Group ahs also filed one.


JUSTICE ROSS:  I thought I mentioned Ai Group.  No, I've got that.  Thanks, Mr Ferguson.  Anyone else?  Of those who have not filed a note, do you oppose any of the provisional views?


MS WILES:  Your Honour, it's Ms Wiles for the CFMEU Manufacturing Division.  We didn't file a note, but we do support the submissions of the ACTU and the CFMEU Construction and General, also the AMWU.


JUSTICE ROSS:  All right.  We will note that on the way through.  Thanks, Ms Wiles.


MS WILES:  Thank you, your Honour.


JUSTICE ROSS:  Anyone else?  No?  All right.  We received an email from Norton Rose indicating that their client, Birch Carroll & Coyle and other cinema industry employers, wish to make a short submission and they are represented by Mr Murdoch.  It seemed to us the most convenient way of doing that would be to hear them at the outset.  They have got a narrow interest.  Any other party that wishes to comment on what they say can do so as we come to the relevant provisional view.  Mr Murdoch, what would you like to say?


MR MURDOCH:  Yes.  If the Commission pleases, might I confirm that the Bench has before it the written submission on behalf of our clients, which is dated 24 May 2021.




MR MURDOCH:  I would propose to ask you to take that as read and to touch upon some key matters that are directly relevant to today's deliberations, if that approach suits.


JUSTICE ROSS:  Certainly.


MR MURDOCH:  Yes.  The position is that the entitlements of cinema industry casual convertees have been considered in very recent times by both the part‑time and casual Full Bench and also the four yearly review of modern awards Full Bench.  The matter culminated in the decision of 6 October 2020 of the Full Bench in the four yearly review matter.  The relevant decision is [2020] FWCFB 5307.  We have referred in our written submissions to the part of the Full Bench decision under the heading "Broadcasting, Recorded Entertainment and Cinemas Award" and it's paragraphs 42 through to and including 46.


JUSTICE ROSS:  Sorry, which paragraph of your written submission are you referring to?


MR MURDOCH:  I'm referring to the Fair Work Commission decision.




MR MURDOCH:  The Full Bench decision of 6 October 2020.




MR MURDOCH:  The culmination of the deliberations of the two Full Benches was, in short, that employees in the cinema industry converting from casual to part‑time were put on the same conditions in relation to hours of work and rostering as employees who had been hired as part‑time employees.  The provisions that applied under the Broadcasting and Entertainment Award to part‑time employees in cinemas reflect the fact that there is recognised variability in the volume of patronage at cinemas dependent upon the nature of the product being screened.


It has been accepted by the Commission that because of the variation in demand, the variation in patronage, that there needs to be greater an normal flexibility in the hours of work and rostering arrangements in relation to the part‑time employees.  What the two Full Bench decisions did was to preserve that state of affairs in relation to persons converting from casual to part‑time.  Our concern is that without amendment the regime that will apply consequent upon the recent legislative changes is that there will be two categories of part‑time employee hours in the cinema industry; one for persons who have previously converted or had been hired as part‑time employees and another for part‑time employees who transition in the future.


The practical difficulty is that to avoid the situation of two regimes it may cause employers to be reluctant to accept conversion and to mount objections to it.  In our submission we have proposed amendments - and I'm referring to the final paragraph in the submission which proposed in paragraph 7 two ways of approaching the matter, each of which would involve a minor variation to the current terms of the award.  The objective is very clearly to preserve the current situation and to ensure that there is not a separate regime in relation to flexibility of working hours in relation to persons who convert in the future.


The Commission has, in our submission, the legal capacity to grant the change that we want.  I would refer specifically to the schedule to the Fair Work Act, Part 10, and to section 48 of that provision.


JUSTICE ROSS:  That's all right, Mr Murdoch.  You don't need to take us to the relevant statutory provisions.


MR MURDOCH:  Yes.  I just wanted to say that the part we expressly rely on is, we would submit, under subsection (2) that there is a difficulty relating to the interaction between the award and the Act as so amended.  Then under subsection (3) the Commission is permitted by the legislation to deal with a difficulty by means of a variation which would take the form of a determination varying the modern award.  Such a determination would operate effectively with the Act as so amended.


We seek to utilise that provision.  We would also refer to the Commission's general powers under section 157(1) and the - - -


JUSTICE ROSS:  Mr Murdoch, you don't need to trouble us with the legislative - - -


MR MURDOCH:  Thank you.


JUSTICE ROSS:  Look, a couple of issues that arise.  The first is that the award you're expressing an interest in is not part of these proceedings.  These proceedings are focused on a small cohort of awards.  The proceedings are in two stages.  The award that you have an interest in is in the second stage.  Have you had any discussions with any of the unions about the issues you have just put to us?


MR MURDOCH:  We have had no discussions.  The only union involved is the Media, Entertainment and Arts Alliance.


JUSTICE ROSS:  All right.  Well, then I suggest you have discussions with them as a matter of priority.  If you can reach an agreed position then advise my chambers and I'll refer that to the Bench that is dealing with the second stage of the proceedings.  If there is a consent arrangement, the matter will be given some priority.  They will be publishing a statement in due course setting out how they propose to deal with the remaining awards in various tranches and will be seeking comment on that.  At that time you can advance your argument as to why the award that you have an interest in should be given priority.


MR MURDOCH:  Your Honour, thank you for the time this morning.  We perhaps somewhat assertively put our foot in the door, but there was a concern that if we didn't make our rather special interest known that there may have been high level rulings made in this tranche of the proceedings which would have adversely affected us.  We're grateful for the time you have devoted to us and we will engage with the union, and communicate with the Commission in respect of the outcome of that.  Thank you.


JUSTICE ROSS:  All right.  Thank you, Mr Murdoch.


MR MURDOCH:  Might I be excused from further participation?


JUSTICE ROSS:  Certainly.


MR MURDOCH:  Thank you.


JUSTICE ROSS:  As was indicated in the statement issued earlier this week, we'll deal with the various provisional views in turn.  Some of them I would propose to move through fairly quickly as the matters don't appear to be in contest or, if they are, then only one party appears to be putting a contrary view.  If I go to provisional view 1, which relates to the question:


Is it the case that the Commission does not have to address the considerations in section 134(1) in varying an award under clause 48(3) of the schedule, but that an award as varied under clause 48(3) must satisfy 138.


You have seen our provisional view.  ABI, ACCI, Ai Group, the AHA, the IEU and the AEU do not contest the provisional view.  The ACTU puts a slightly different view.  They agree that our ultimate assessment of the modern award objective is relevant, but submit that the considerations in section 134 may be worthy of consideration in their own right and not as a function of section 138.  The UWU and AMWU and, as we've heard, CFMMEU Manufacturing, support that view.  Anything you wanted to say further in relation to that point, Mr Kemppi?


MR KEMPPI:  Thank you, your Honour.  Yes, there is.  I will make a very short submission on that point.  The reason we say that section 134 is worthy of consideration in its own right is partly (audio malfunction) from our opening submission that we made the point that for practical if not (audio malfunction) reasons 134 is relevant.


While we acknowledge that most of the parties agree that the modern awards objective is relevant, the reason we perhaps split the hair there is that 138 has what could be taken as a somewhat capping effect only to the extent necessary, whereas 134 has the sort of uplifting effect which we say is worth consideration.  Section 134 also goes to the overall nature of the modern awards objective, which is not necessarily some of its parts consideration, but more of an overall effect which is directed at fairness and a relevant safety net.


For that reason we say the 134 considerations are worthy of consideration in their own right, particularly given that we are dealing with a number of entitlements all of which (audio malfunction) being determined to be necessary to meet the modern awards objective and to be relevant to providing a relevant safety net.  I won't go on any further about that unless there are any questions from the Full Bench.


JUSTICE ROSS:  Well, speaking for myself I don't really follow that.  Section 138 seems clear and isn't that the legislative direction?  It refers to the modern award objective, but in its terms we can only include terms to the extent necessary to achieve the modern award objective.  The modern award objective - you know, it speaks for itself.  But we can only include terms to the extent necessary to achieve that objective.  It doesn't have some sort of separate free-wheeling operation, does it?


MR KEMPPI:  In essence, we agree with that.  However, we are concerned that by only focusing on section 138 and particularly the words, "only to the extent necessary", it could be possible, if we were to approach the exercise that way, that we would only focus on the capping effect in that there wouldn't be, perhaps, regard to the safety net effect, which we say is brought in by 134.


JUSTICE ROSS:  You plainly have to look at 134 as part of the exercise under 138.  I'm not sure it's a capping effect.  I think it's a jurisdictional point.


MR KEMPPI:  We won't press the point further then.  I guess at any rate we are satisfied that the modern awards objective is relevant in some way, shape or form.


JUSTICE ROSS:  Okay.  The only party to oppose that view was the Manufacturing Grocers.  But they don't say why.  Ms Lee, can we hear from you about that?


MS LEE:  Yes, so we contest that because we believe that we must consider the objective in section 134 because once the varied terms are inserted into the awards, they must then satisfy 138.


JUSTICE ROSS:  Ms Lee, that's what we've said.


MS LEE:  We agree with that then.


JUSTICE ROSS:  All right.  Let's go to provisional view two, which is the Firefighting Award does not contain any provisions concerning casual employment, therefore does not include any term falling within the categories in clause 48(1)(c) of schedule 1 and therefore there is no relevant term to be reviewed.  No party contests that view.  Do we need to deal with it any further?  No?  All right.  Let's move to, I think, question four.  This deals with the issue about for the purposes of clause 48(2) of schedule 1:


Is the engaged as a casual type of casual definition, as in the retail, hospitality and manufacturing award, consistent with the Act as amended?  Does this type of definition give rise to an uncertainty or difficulty?


The provisional view is that the engaged as a casual type of casual definition is not consistent with section 15A1 of the Act because it can permit some persons who do not meet the conditions prescribed in paragraphs (a) to (c) of that definition to be engaged as casual employees and to be paid a loading in lieu of any S entitlements.  There is a relevant uncertainty or difficulty because a person could be a casual employee under the award but not a casual employee under the Act and vice versa.  That view is not contested by any party other than the Manufacturing Grocers.  Ms Lee, why do you say we're wrong about that provisional view?


MS LEE:  My apologies, your Honour - we do agree with that view.


JUSTICE ROSS:  All right.  That's fine.  Then there is no opposition to that provisional view.  If we go to question - sorry?


MS LEE:  No objection.


JUSTICE ROSS:  Okay.  If we go to question five, this deals with the Pastoral Industry Award.  The provisional view expressed is not contested by ABI, ACCI, Ai Group, the AHA, IEU, AEU or MGA.  The ACTU and the UWU defer essentially to the position of the AWU.  The NFF has put a submission in in relation to this point:  the AWU is indicating it's finalising its view.  Can I go to the NFF?


MR RODGERS:  Yes, thank you, your Honour; it's Mr Rodgers here.  Our starting position is that we want to avoid disturbing provisions with a long and complex history, without giving them thorough consideration.  So we are favouring a very light touch, the lightest possible touch.  Our members' views are that in practice, it's very unlikely that an employee is going to be engaged in one of the positions which is covered by clause 51 of the Pastoral Award, in circumstances which don't fall within the new definition, the section 15(a) of the Act.  We take that view because the employment within those roles, it's often in short verse, of indefinite length, and is subject to a number of different factors and circumstances like whether another - things affect the capacity issue.




MR RODGERS:  That said, we concede that we can't say with absolute certainty that there would be no occasions on which a sort of non-casual work arrangement will be agreed to in (indistinct).  We just take the view that the risk of changing those provisions of - one of my colleague's described as trying to unscramble the egg is greater than the risk of that sort of employment arrangement.  So that's our starting position but if the Commission was to take a different view, then we articulated in the submissions we filed last night the approach we would take, which is to make a small change to 50.1 of the Pastoral Award and then a detailed consideration of schedule A to make allowances for non-casual work type arrangements in the pay formulas and then obviously backfill clause 51 to reflect the changes which were made.


JUSTICE ROSS:  All right.


MR RODGERS:  I might just add, your Honour, also because of the complexity, we would be seeking a fairly lengthy period in which to engage in that process, and obviously we'd need to consult with the unions and I'm sure the AWU would have a view on those changes.


JUSTICE ROSS:  Is the short point that you accept that there is at least a theoretical prospect of difficulties arising from the interaction; that if we adhere to our provisional view, then you want the opportunity to engage in a process about how that might be addressed, perhaps through conferencing.  But you want to participate in that process?  In other words, you don't want us to perhaps confirm our provisional view and then wander off and make whatever variations we think are appropriate?


MR RODGERS:  I think that's a fair way to characterise our view, yes, your Honour.


JUSTICE ROSS:  I follow the - it's been my misfortune to have a look at these provisions at some point in the past so I follow their complexity and history.  Was there anything you wanted to add to that, Mr Crawford?  Do you take the same view?


MR CRAWFORD:  Your Honour, we consider that any inconsistency can be resolved just by deleting the words, "on a casual basis", from clause 50.1.  We don't necessarily contest that a technical inconsistency may exist.  But we are strongly opposed to any changes to the minimum piece rates prescribed in the award.  Obviously, we are willing to participate in any sort of process going forward but I think we'd have a pretty firm view in that regard.


JUSTICE ROSS:  Okay.  Anyone else on this issue?


VICE PRESIDENT HATCHER:  Mr Rodgers, it's Vice President Hatcher.  Would that be accompanied by a variation to clause 11, to put the definition in?


MR RODGERS:  Yes, your Honour - I think our position is based on the assumption that's what's going to occur.  We don't contest that provision.




JUSTICE ROSS:  Thank you both.  Anything further?  No?  Let's then go to - well, it's really questions six and seven and to some extent eight.  Let's deal with the question six:  provisional view is not contested by ABI, ACCI, Ai Group, AHA; the ACTU refers to its affiliates' submissions.  The UWU adopts the ACTU's position, as does the CFMMEU manufacturing.  The AUE doesn't contest it.  The IEU does contest the provisional view and has put in a note to that effect.  Look, similar pattern for question six:  the AIS also, while they support the provisional view, they want to clarify the basis of their agreement with the provisional views on seven and eight.  Given that the IEU - perhaps if we go to you first, Mr Borenstein and Ms Burke.  You can say what you want to say.  Then we'll hear from AIS and then we'll see why the MGA contests the view.


MR BORENSTEIN:  Your Honour, we disagree or we took issue with the provisional view in relation to what was said about clause 12.1 and the reference to the day-to-day employment.  In our written submissions we've outlined how we characterise clause 12.1 as being intended as a temporal limit on a casual engagement and we made the submission that that was not something that was inconsistent with the definition in section 15A.  The note that we've given the Commission reflects that point.  But we have suggested that if it is nonetheless felt that some difficulties may arise with the form of the award as it stands in clause 12.1, then those difficulties can be overcome by a variation in the form which we've attached to the note.


The Commission will see that in that variation we have made explicit what we said was implicit in any event, by operation of section 46 of the Acts Interpretation Act; that is that the definition of casual employee as contained in section 15A is taken to govern references to that term in the award and the point that we've made in our previous submissions is that casual employment, as it's described in clause 12.1 of the award, doesn't deal with the nature of the casual employee, but rather the duration for which a casual employee can be employed.  But to make the matter clear we have proposed that clause 2 of the award, which contains definitions, might be varied to include expressly a reference to the definition in section 15A of the Act so as to make clear the definition would read, "Casual employee has the meaning in section 15A."


Then to make clear the role which we had submitted was its true role for clause 12.1, we have suggested that that be rephrased so as to avoid any potential difficulties that arise out of the use of the term, "casual employment."  We framed it so that it provides that a casual employee shall be engaged in a day-to-day basis for a period of not more than four consecutive weeks.  So that underscores and makes clear the true function and role of clause 12.1, which is to limit the duration of the engagement and there is nothing in section 15A which prevents that and the provisional view is, I think the Commission accepts that there is no impediment to an award inserting a limitation on the duration of a casual engagement.


At an earlier stage, some of the other parties suggested that that was offensive to the provisions about casual conversion.  We have responded to that in our reply to submissions.  I don't think there is a mention of it in provisional views.  I'm not sure whether the Commission accepts what we've put but we make the submission, in any event, that it can't be right that an award cannot limit the duration of a casual engagement simply because the period which the award imposes is something less than the casual conversion entitlement provisions and we rely on what we've said in our reply to submissions.  We note that in the note prepared by AIS, they have sought to argue that the reference to day-to-day employment should be deleted because difficulties may arise.  We would strongly oppose the deletion of that reference.


It's a reference that's been in the award for a long time.  It has an obvious industrial purpose, which was advanced when the award was first made.  We say like clause 12.1 itself, there is mothing in section 15A which precludes a temporal restriction or limitation being imposed on the casual employment.  Obviously, the casual employee is one who is employed in the terms which section 15A describes.  To simply say that you can be a casual employee and that your engagement will be from day to day within the casual employee parameters is not offensive to the section.  To the extent that others might seek to say, well, there is a potential uncertainty or inconsistency, we would submit that if the Commission accepts our submission and in its reasons explains why it's accepted that that would deal with and overcome any perceptions of inconsistency between that phrase and the requirements of section 15A.


I'm reminded that in their note, the Association proposes this but they don't really elaborate on their reason for that in paragraph 7 of their note.  They simply say that it's confusing and should be removed to make the award more effective.  But that is not really a useful submission.  That's simply an assertion without any reference to factual circumstances that might support it.  No material has been advanced to say why it was unnecessary and we say, on the contrary this is something that is very important in the scheme of the teachers' award and we say that the argument that the AIS advance is untenable because it's unsustained by any substantive foundation.  That's the position of the IEU as put out in its note.  If others have something that they would say in response to that we would ask for an opportunity of replying to that.


VICE PRESIDENT HATCHER:  Mr Borenstein, it's Vice President Hatcher here.  Just so I (indistinct) the effect of the day-to-day (indistinct) what type of (indistinct) that would otherwise fall within section 15A (indistinct)?


MR BORENSTEIN:  I'm sorry, your Honour broke up a little bit.  I wonder if you could repeat the question?


VICE PRESIDENT HATCHER:  Yes, I'm just trying to understand the practical effect of the retention of the day-to-day restriction as you've characterised it.  What form of casual employment that would otherwise fit within the section 15A definition would the day-to-day restriction exclude under this award?


MR BORENSTEIN:  It would exclude, for example, if a casual employee were employed on an hour-by-hour basis.




MR BORENSTEIN:  Or something shorter.


VICE PRESIDENT HATCHER:  (Indistinct) effective way - the expression, "day-to-day", seems to me to be a bit archaic.  Wouldn't it be more effective if you want to retain that to talk about minimum engagement or something like that, that is a more contemporary way of expressing that idea?


MR BORENSTEIN:  We would be open to consideration of the way in which it's expressed.  It's the concept that is important for the union, your Honour.


VICE PRESIDENT HATCHER:  SO the point is if a teacher is engaged as a casual, they have to be engaged for the full school day?


MR BORENSTEIN:  That seems to be the industrial imperative, your Honour.


VICE PRESIDENT HATCHER:  Yes, all right, thank you.


JUSTICE ROSS:  We might go to the AIS now and perhaps if we start on the last point:  you've put in a submission in respect of this but is that your understanding of the award as well?


MS HART:  Sorry, if you could repeat the question?


JUSTICE ROSS:  The question is (indistinct) about the effect of the words in 12.1 (indistinct) and if put by the union - I'm not quite sure why we're getting feedback on this.  But bear with me, Ms Hart.  It's put by the union that (indistinct) of a minimum engagement, your employer (indistinct) employed for a full day.


MS HART:  Well, that is not necessarily the case when you have regard to other provisions of the award that allow for engagement for less than a day.  If you just bear with me I'll find those provisions.  I believe they're at 17.5.  So, for example, where they're required to work for more than four hours and up to a full day the full rate based on their appropriate hourly rate so we say that if you look at those provisions, it's actually apparent that they can be engaged for less than a full day.


JUSTICE ROSS:  Yes.  I think, my recollection is this also (indistinct) of the award that was involved with that through this year and last year.


VICE PRESIDENT HATCHER:  Sorry, (indistinct).


JUSTICE ROSS:  Yes.  Bear with me.


THE ASSOCIATE:  I think it might assist individuals if you remain on mute whilst another member is speaking.  I think we're getting feedback whilst people remain off mute whilst other members are speaking.


JUSTICE ROSS:  All right.  I was making the point that I think this issue of minimum engagement in this award was the subject of a Full Bench decision that I was presiding on, either earlier this year or last year.  But I follow the submission that you've made, Ms Hart.  You'd have to look at those words in the context of the award as a whole.  Can I also take you to - you've advanced proposed variations.  Is there anything you wish to say about the variations - leaving aside this issue of on a day-to-day basis; we understand what you say about that - but is there anything you wish to day about the balance of the proposed variations advanced by the IEU?


MS HART:  Well, certainly it's apparent that there is a great deal of agreement in the proposed new wording advanced by the IEU and the IES.  So we are in agreement that we have a definition of casual employee by reference to section 15A of the Act.  In our proposed draft we have included a reference to a definition of casual employment but that may in fact be unnecessary and so it appears the only residual area of disagreement centres upon whether or not we need to retain the reference to engagement on a day-to-day basis.  We say that it's not necessary in the circumstances.  We say that the relevant limitation on the engagement is in fact the four-week period - four consecutive weeks or term weeks, subject to the limited capacity to extent that limitation.


So in that sense, the day-to-day element is not integral to that limitation but rather it's really in substance a definitional casual award provision that is already causing some confusion amongst members.  Members are concerned about how they apply this element against the backdrop of the new definition of casual employee under the Act.  So I suppose in a sense what we're saying is that consistent with the Commission's provisional views on question eight, it is not in fact a non-definitional casual award provision that should be retained.  It's apt to be confused with the definition of casual employee under the Act and it should be removed on that basis.


JUSTICE ROSS:  Okay, thank you, Ms Hart.  Mr Borenstein, can we go back to you?  Can I take you to clause 17.5(c)(i) of the award?  That appears to be a specific provision.  If you can - we've still got someone who doesn't have their mute on, so we're getting feedback.  Okay.  That appears to be a specific provision, which would permit engagement for half a day.  How does that fit with your earlier submission about the import of the provision that you want to retain?


MR BORENSTEIN:  Your Honour, I wonder - your Honour has made reference to a decision earlier this year and we have pulled that decision up and we see that the IEU were making submissions in relation to that.  I wonder if your Honour might just hold over the question while we have an opportunity of getting instructions from the union on that point?


JUSTICE ROSS:  Yes, it may be more convenient, Mr Borenstein, if this is a matter that can be the subject of a short note by yourself and the AIS, setting out your respective positions.  That would give you each an opportunity to look at the relevant award and the Full Bench decision and say what you wish to say about that.


MR BORENSTEIN:  That would be satisfactory, your Honour.


JUSTICE ROSS:  I'd ask you to have a discussion with Ms Hart and just work out an appropriate, fairly quick timeframe in order to - that suits both of you with that and then you can come back to my chambers as soon as you're able to.


MR BORENSTEIN:  Thank you.


JUSTICE ROSS:  Did you follow that, Ms Hart?


MS HART:  Yes, thank you, your Honour.


JUSTICE ROSS:  Well, in relation to questions six, seven and eight, I think that deals with the matter as far as the IEU and AIS is concerned.  The only other party that has expressed the view that they contest those provisional views is the NGA.  Why do you say that, Ms Lee?


MS LEE:  We do not contest view seven.  However, there was a misunderstanding in how the short notes need to be drafted.  When we said that we contested, what we meant was that we have submissions to make on those views and those submissions are the same as those that we submitted in our reply submissions (indistinct).


JUSTICE ROSS:  Which are?


MS LEE:  In terms of view six, we agree that the residual category in the retail award is inconsistent and gives rise to uncertainty and difficulty.


JUSTICE ROSS:  Perhaps for just clarity, if you can indicate whether you contest the provisional views expressed in relation to questions six, and I don't think you've got an interest in seven but six and eight - do you contest those provisional views?


MS LEE:  So we do not contest six.  We agree that it is inconsistent, even though it may not be directly inconsistent.  We submit that it is an inconsistency.  (Indistinct) inconsistency gives rise to uncertainty about the clause in (indistinct).  We also submitted that we should replace both the casual definitions in the retail award with express reference to section 15A and the Act (indistinct).  We don't believe that the two definitions in the retail reward provide a clear explanation of what it means to be casual.


JUSTICE ROSS:  What do you say about the provisional view expressed in relation to question eight?


MS LEE:  With that, we say that we should replace the definitions with those (indistinct) amended so yes, we agree with that provisional view.


JUSTICE ROSS:  If you just bear in mind, when we go through the rest, you contest most of the views.  If it's just to repeat your submission, you don't need to do that.  All I want to know at this point is whether or not you contest the provisional view.  If you can clarify that on the way through, we'll get through it much more quickly, okay?


MS LEE:  Yes.


JUSTICE ROSS:  I think that deals with provisional views 6 to 8 - the views expressed in respect of those questions.  The next one is - - -


MR GUNN:  Your Honour, if I may.




MR GUNN:  It's Mr Gunn for CCSA - just to indicate that we broadly support the IEU's position on 6 through 8 in relation to the early childhood education and care sector, other than the issue of day‑to‑day that has been raised already.  I would refer to 17.5(c)(ii) where a similar thing occurs there, minimum shifts of two hours and above for the early childhood sector.  In that area we would agree with the AIS.


JUSTICE ROSS:  So you agree with the AIS in respect of - - -


MR GUNN:  Not the day‑to‑day, your Honour.


JUSTICE ROSS:  - - - the removal of the words "on a day‑to‑day basis", but otherwise you're content with the position advanced by the IEU?


MR GUNN:  That's correct, your Honour.


JUSTICE ROSS:  All right.  Thank you, Mr Gunn.  Anything else on provisional - - -


MR PARDO:  Your Honour, if I may - - -


MR KENCHINGTON-EVANS:  Your Honour, I might - - -


JUSTICE ROSS:  Yes, who is this?


MR KENCHINGTON-EVANS:  I think we might have both gone at once, but it's Jack Kenchington‑Evans from the AEU.  Just a quick note in support of the IEU's proposed variation, the AEU in its original submissions filed a draft determination.  We have had the benefit of reviewing the IEU's alternative attached to its note filed yesterday.  I think that is a more economical way of varying the award, which minimally disturbs clause 12.1.  We would support that, the alternative - that proposed variation rather than our own earlier.


JUSTICE ROSS:  All right.  Anyone else?


MR PARDO:  Yes, your Honour, it's Mr Pardo from the SDA.  If I may deal quickly with the SDA's views.


JUSTICE ROSS:  Yes.  The SDA didn't (indistinct) any of these provisional views, did it?


MR PARDO:  No, your Honour, we rely on our previous submissions because we didn't want to make the same submissions on transcript.  It's just a clarifying quick note, your Honour.  We don't resile from our position as to the non‑definitional nature of 11.2 in the General Retail Industry Award and also we would seek to be heard on any draft variations in that regard.


JUSTICE ROSS:  Are you contesting any of these provisional views?


MR PARDO:  No, your Honour.  It doesn't seem that 11.2 was dealt with in the provisional views unless in the residual category reference at the bottom of the response to question 6 - if the reference there is meant to be 11.2 of the Retail Award.  It currently says 11.1, your Honour.


JUSTICE ROSS:  Yes.  All right.  Thank you.


MR PARDO:  Thank you.


JUSTICE ROSS:  Anything further in relation to provisional views 6 to 8?  No?  All right.  Let's go to provisional view 9.  The provisional view was that a limited period of advanced notice will be provided and as far as practicable, the necessary variations will operate from 27 September.  The only party to contest that view is the MGA.  Ms Lee?


MS LEE:  Your Honour, that view is not contested by the MGA.


JUSTICE ROSS:  Okay.  We will go to the provisional view in respect of question 10.  The question is for the purposes of clause 48(2) of the schedule are award requirements to inform employees when engaging them that they are being engaged as casuals, as is the case in the Manufacturing Award and the Pastoral Award, consistent with the Act as amended and do those requirements give rise to an uncertainty or difficulty? The provisional view is that they were not inconsistent and did not give rise to uncertainty or difficulty.  The only party to contest that view was Ai Group.  What do you want to say about that, Mr Ferguson?


MR FERGUSON:  Yes, your Honour, if it's convenient.  We don't want to be heard in relation to the provisional view about award clauses requiring a casual to be informed upon engagement that they are casuals.  We instead want to deal with the proposed redrafting of clause 11.4(d) of the Manufacturing Award.  That is the provision that requires employers to inform casual employees on their engagement of the likely number of hours that they are required to perform.  I think now is the convenient time to deal with it, your Honour.


JUSTICE ROSS:  Certainly.  That's the only aspect - - -


MR FERGUSON:  That's the only aspect.


JUSTICE ROSS:  All right, yes, sure.


MR FERGUSON:  For context, we concur with the provisional view that this provision sort of gives rise to a relevant interaction, uncertainty or difficulty because they create doubt as to what steps are necessary to both comply with the award and the clause.  We say the question therefore becomes what should be done to address this.




MR FERGUSON:  Our submission is that the simplest course and the appropriate course is just to delete those provisions and we say certainly that that will ensure the award is simple and easy to understand in the sense contemplated by section 134(1)(g).  The Bench has obviously expressed a contrary provisional view which is that specifically the provision should be modified so that it says essentially, "The employer need only provide, if practicable, a non‑binding estimate of the hours likely to be worked."


Now, we want to say firstly we acknowledge that the provision goes some way to addressing the issue and we certainly say it's preferable to adopt that re‑drafting rather than retain the current provision, but it seems to us that in practice it's unlikely to address the fundamental difficulty or issue that the Bench has identified.


If I can explain that, we suggest that in practice the distinction between the requirement to provide advice as to the likely number of hours employees will be required to work and a requirement to provide, if practicable, a non‑binding estimate of the hours likely to be worked is kind of going to be lost on a lot of lay parties who are applying the award.  It seems to be a fairly subtle distinction.  We think that if you adopt that approach there is still a risk that the provision is going to rise to confusion as to how to apply the two provisions of the Act and the award, and potentially mis‑classification of individuals as casuals.


We have raised that mis‑classification issue because we foresee that in practice some employers in trying to comply with this provision are, you know, quite likely - it's quite foreseeable that they will inadvertently perhaps give employees a relevant firm advance commitment as to a pattern of work as contemplated under the Act or that, you know, they may at the very least give employees the impression that that sort of firm advance commitment has been given.  There is obviously significant potential for that to result in disputation.  We say the better approach is just to delete the provisions rather than leaving that sort of complex element in the award.


We say even if that's not a sufficient basis for adopting the approach we have proposed, we would say that consideration needs to be given to what utility there is to retaining a sort of further watered down provision in any event.  It seems to us that once you're providing merely, you know, sort of an unbinding estimate of the hours, really there's not much benefit to an employee.  Any benefit is certainly outweighed by the potential complexity for an employer of dealing with this issue and the administrative burden.


On that basis we say that the Commission should form the view that it's just not necessary to retain, even in amended form, this sort of provision.  I think in that context we just urge the Bench to be mindful of, you know, the nature of casual engagement.  It is very informal, often done without all the care and detail that can be, you know, focused on permanent employment in terms of careful crafting of letters and so forth.  We say that it is appropriate to take as simple approach as possible to these sorts of provisions.


Look, just finally, obviously the decision - or the statement reveals that the nature of the proposed redrafting that's envisaged - obviously the devil can sometimes be in the detail.  We would say it would be appropriate, if the Full Bench decided to maintain its provisional view, to release a draft variation and afford the parties an opportunity to comment on that before it reached a concluded view about these issues.  That's all I wanted to raise in relation to that particular issue unless there were any questions from the Bench.


JUSTICE ROSS:  Well, I can indicate that we will publish draft variation determinations, but not for the purpose of reagitating points of principle that we will have determined, but to see if it gives rise to any particular practical problems.  There will be a short opportunity for parties to comment on those.  Thank you, Mr Ferguson.  Perhaps if we go to the unions with an interest in this:  Mr Miller?


MR MILLER:  Thank you, your Honour.  I'm just trying to take myself off mute.  We don't oppose the provisional view and we do contest the submissions of the AIG, which we've just heard now.  I mean, primarily, I don't know that I can say much more other than what we put in our written submissions.  So we continue to rely on them.  Suffice to say that casual employees as a matter of principle should be entitled to a degree of a basic overview as to the times at which they might reasonably be expected to work so that they can plan their lives around that accordingly.  It's true that as Mr Ferguson said, it is certainly correct that a lot of casual employees do work irregular hours.  But I don't think that is inherently contradictory with the view that the Bench is proposing in that that would be non-binding and certainly I don't think it's a controversial thing to say that a lot of casual employees do have fairly regular hours.


So I don't think there would be significant difficulties in the interaction on that basis either, to the extent that there would be any uncertainty arising out of the new definition that's been inserted in section 15A.  We agree with the provisional view that the way to deal with that interaction is as has been proposed in the provisional view.  Unless you have any questions, your Honour - - -


JUSTICE ROSS:  Well, what do you say about the proposition that it's a non-binding limit in any event, so it doesn't give rise to any legal obligation and why would we put something like that in a modern safety net award?


MR MILLER:  As I say, it's - the hours themselves might not be binding but the obligation to provide the non-binding estimate would still be binding and as I say, that is going to have utility to casual employees so that they can have a basic overview at the times they're reasonably expected to be at work and plan their other aspects of their lives around those hours.


JUSTICE ROSS:  Going to that point, it still doesn't provide any binding obligation to adhere to any estimate.  But secondly, even the obligation to provide such a non-binding estimate is subject to the qualification that if practicable.


MR MILLER:  That's true, your Honour.  I concede that.  The solution - the obvious solution, from our perspective - to that would just be to remove those qualifying words, "to the extent practicable."  I think any difficulty arising out of circumstances where it's not practicable is resolved by the fact that the estimate is itself non-binding.


JUSTICE ROSS:  Thank you.  Are there any other unions that wish to be heard in respect of this issue?  Or any questions for either the AMWU or the Ai Group before we go on?  No?  Any other unions wish to be heard on this point?  No?  Anything you want to say in reply, Mr Ferguson?


MR FERGUSON:  Sorry, your Honour - only in relation to one point, which is the submission that the reference to practicability be deleted.  Obviously, we would say that the modern award should not require things that are not practically able to be done.  So if contrary to our submissions the provision was to be retained, so should that caveat in relation to its application.  But nothing further, your Honour.


JUSTICE ROSS:  All right.  Nothing further on this point?  Let's move on to the provisional view expressed in relation to question 11.


MS LAWRENCE:  Could I just make one point, just in relation to question 10, noting that we didn't contest this provision - but just in listening to some of the responses from the unions, we just wish to raise with the Bench the issue of section 138 and whether the additional words being proposed would actually be necessary to achieve the modern award objectives, particularly in light of - - -


JUSTICE ROSS:  No, Ms Lawrence - I take it Mr Ferguson would be raising the same point when he said that it wasn't necessary to retain it but he was putting that submission in the context of section 38.  Do I take it that you agree with his submissions in that regard?


MS LAWRENCE:  Yes, we do, your Honour, despite not conceding that we are agreement with AIG on this matter.  Thank you.


JUSTICE ROSS:  Okay.  Anybody else?  No?  If we can go to the provisional view expressed in respect of question 11:  this is the award definition that do not distinguish full-time and part-time employment from casual employment.  This is referring to the retail award, hospitality, manufacturing, teachers and pastoral award and whether those definitions give rise to uncertainty or difficulty.  We have expressed a provisional view about that.  The provisional view is not contested by any party other than the MGA.  Ms Lee, what do you wish to say about that?


MS LEE:  The MGA does contest view 10, (indistinct) being that we believe there is not a clear distinction between part-time or full-time employment from casual employment and the Act is amended so that could give rise to uncertainty or difficulty.  (Indistinct) clear dichotomy between permanent employment or casual employment in that sense.  A casual employee employed under the retail award can meet part of the definition, full-time and part-time definitions as contained in the retail award.  So we have submitted that there is a need to expressly distinguish between permanent, be it full-time or part-time, from casual employment.  Without differentiating these types of employment, we believe that there would be uncertainty or difficulty.


JUSTICE ROSS:  I'm not entirely sure how that differs from the view we've expressed.


MS LEE:  I'm looking at the provisional view expressed where it says that it's not conceptually inconsistent for the definition of casual employment so what we're trying to say is that it is inconsistent with the definition of casual employment.


JUSTICE ROSS:  All right.  Anyone else on this point?  If I can go to the provisional view in respect of question 12, which says does fixed term or maximum term employment fall within the definition in section 15A of the Act?  The provisional view is no.  No party contests that provisional view.  Have we missed anyone?  Does anyone contest that provisional view?  No.  Then the next question asks:


Are outdated award definitions of long-term casual employees and outdated references to the divisions comprising the NES as in the retail award and the hospitality award relevant terms?


JUSTICE ROSS:  The provisional view is that the definition of long-term casual employee are relevant terms; that is they define or describe casual employment and other outdated references to the NES which are not part of any provision defining or dealing with casual employment are not relevant terms.  All parties save for the MGA do not contest or support that provisional view.  What do you want to say about that, Ms Lee?


MS LEE:  The MGA does not contest provisional view 13.


JUSTICE ROSS:  Thank you.  Let's go to 14.  This is the follow-on question.  It says that:


Such provisions which are not relevant terms can be updated by the Commission, exercising its general award variation powers under part 2(3) of the Act and under section 160, the Commission can on its own imitative vary modern awards to remove ambiguity or uncertainty or to correct error.


Those provisional views are not contested by any party, although the ACTU notes its earlier submission in respect of the issue.  The MGA contests that provisional view.  What do you want to say, Ms Lee?


MS LEE:  The MGA does not contest that view.


JUSTICE ROSS:  All right.  Is there anything you wanted to add, Mr Kemppi, to your earlier statement?


MR KEMPPI:  No, your Honour.  Thank you.


JUSTICE ROSS:  Okay.  If we can then go to the provisional views expressed in respect of questions 15 and 16 that deals with the minimum casual payment terms in certain awards; casual pay periods, minimum casual engagement periods and maximum casual engagement periods as in the Teachers Award.  I think we have covered the Teachers Award earlier.  The question is are they relevant terms and whether they are consistent for the purposes of clause 48(2) of the schedule with the Act as amended, and do they give rise to uncertainty or difficulty, et cetera.


The provisional view was that those provisions are relevant terms and that they are not inconsistent with the Act, and do not give rise to uncertainty.  The IEU contests the Commission's provisional view that clause 17.5(c) which provides for minimum payments for casual employees is a relevant term.  I suppose one point, Mr Borenstein, does it matter much given that we're not taking it any further?


MR BORENSTEIN:  I was about to say the same thing, your Honour, but we had made the submission earlier based on our contention that clause 48(1)(c) is to be construed in a particular way and we sought to maintain that position, but the end result is the same, we accept.


JUSTICE ROSS:  Okay.  Thank you.  The MGA is also indicating it contests the provisional views.  What do you want to say about that, Ms Lee?


MS LEE:  I confirm that the MGA does not contest those views.


JUSTICE ROSS:  Okay.  Thank you.  Does anyone else wish to be heard in respect of the provisional view expressed for questions 15 and 16?


MR KEMPPI:  Yes, your Honour (audio malfunction)


JUSTICE ROSS:  Yes, Mr Kemppi.


MR KEMPPI:  Thank you.  Given that our interest is somewhat broader, we have one eye on stage 2 of the review so we do take issue with these terms being construed as relevant terms.  In our submission, which is quite similar to the earlier submission put by the IEU, we say that 48(1)(c)(ii) deals with the circumstances in which employees are to be employed as casual employees.  We say that the correct construction of that is that relates to the circumstances around the point of engagement, whereas (1)(c)(iii) relates to the manner in which casual employees are to be employed, but once again at the time of engagement.


Our construction would be that those two limbs are essentially in reference to what is going on around the engagement and then what actually transpires between the parties in the engagement, and that accordingly terms that provide conditions of employment on an ongoing basis are not within the scope of those relevant terms.  The last thing I'll say on that is that we feel that submission is supported by the nature of the amendments themselves which were essentially around inserting a definition of a casual employee which is very much centralised around the point of engagement and nothing that happens beyond that, as well as the insertion of a conversion scheme.


Clause 48(1)(c)(i), (ii), (iii) and (iv) are all properly directed at either that definition which is bound up with the point of engagement or the conversion scheme and that it wasn't the intent of the legislation at all to look at matters like a casual loading and so forth, there being no part of the Act as amended that could possibly fall inconsistent.  But, as you correctly point out, for the moment nothing much turns on that so I won't progress the submission too far except to say that we are concerned that by establishing a principle that these sorts of terms might be relevant terms, we may unwittingly catch a few terms in at stage 2.


JUSTICE ROSS:  Okay, no, I follow.  Thank you, Mr Kemppi.  Anybody else?


MS LAWRENCE:  Yes, your Honour.  I'm not wanting to traverse across the same ground as Mr Kemppi, but despite not contesting the views contained in questions 15 to 20, we hold the same view as the ACTU in relation to the first part of the provisional view around whether or not the terms are relevant terms.  We don't agree that they are relevant terms in questions 15, 17 and 19, but ultimately because we agree with the outcome of the provisional view being that there is no amendment on the basis that they do not cause any difficulty or uncertainty, we didn't seek to contest it but we just wish to make sure that that's clear that we do not change from our submission and our reply submissions in that respect, just in respect of what we may wish to raise similarly in stage 2 of this review.


JUSTICE ROSS:  Okay, Thank you, Ms Lawrence.


MR BORENSTEIN:  Your Honour, it's Mr Borenstein here.


JUSTICE ROSS:  Yes, Mr Borenstein.


MR BORENSTEIN:  Could I just add something to what Mr Kemppi has said.  The oral submission which I made a few moments ago of course is based on the fact that our client has an interest in a particular award which is subject of this stage of the process.  Can I just perhaps raise in aid of what Mr Kemppi said that it may be open to the Commission in this round given the findings that these clauses in any event don't cause any difficulty in relation to the amendments to the legislation.




MR BORENSTEIN:  The Commission might withhold making a concluded finding on whether they are or aren't relevant terms until that is a matter that is actually - - -


JUSTICE ROSS:  Agitated.


MR BORENSTEIN:  - - - significant, yes.


JUSTICE ROSS:  No, no, I follow, Mr Borenstein.  The same thought was running through my head that we may assume - one option would be to assume for the sake of completeness that they were relevant terms, but if they were they don't give rise to a problem and therefore we wouldn't propose to do anything, so we don't need to express a concluded view on whether they are relevant or not.




JUSTICE ROSS:  The risk going the other way would be, it seems to be, that if we formed the view conclusively that they're not relevant, well, that may or may not be a jurisdictional error.  Why do we need to make that error at this time?


MR BORENSTEIN:  It may be an issue that doesn't arise.




MR BORENSTEIN:  Because of the second limb.




MR BORENSTEIN:  It may be something that doesn't need to be decided either way.


JUSTICE ROSS:  Yes, well, I'm all for not deciding something that I don't need to decide, Mr Borenstein.  All right.  I take your point.  Can we go to question 17 which deals with the casual loading in a number of awards.  Do I take it that essentially the same proposition is advanced by the relevant interests - well, the ACTU, ACCI and IEU put the same proposition in respect of this issue.


SPEAKER:  Yes, your Honour.


JUSTICE ROSS:  Ms Lawrence?  Okay, I'll take that as a yes.  I can see you nodding, so that's okay.  Mr Kemppi, same for you?




JUSTICE ROSS:  Ms Lee, you're down as contesting that provisional view.  Consistent with your answer earlier, do I take it that you're not contesting that view?


MS LEE:  So we do not contest that they are relevant terms.  We agree that they are relevant terms.  However, we do contest that there is no uncertainty or difficulty.  We believe that there would be uncertainty or difficulty.  We agree with the ABI that, you know, there is an issue as to what the casual loading is paid (audio malfunction) specifying irrelevant entitlements would cure that uncertainty there.


JUSTICE ROSS:  I'm sorry, you said that you agree with ABI?  Is that right?


MS LEE:  Correct.


JUSTICE ROSS:  ABI doesn't contest the provisional view.  They have changed their view.


MS LEE:  Okay, sure, sorry.  I guess then we don't agree with ABI there.  What (audio malfunction) is that there could be a live issue.  There could be an issue to cover, for example, this (audio malfunction) underpayment (audio malfunction) to consider what the casual loading that was paid to that employee was paid in compensation for if the award should specify what that casual loading anticipated (indistinct).


JUSTICE ROSS:  Anybody else in relation to this?


MR FERGUSON:  Sorry, your Honour, just for clarity - Mr Ferguson - we've dealt with this issues in the same manner as ACCI and the ACTU with quite a deal of detail in our submissions.  Our intention in not contesting hadn't been to demur from that.  It's just that we didn't intend to further contest it beyond what we put in our submissions.  At this stage it's essentially the same position, I think, as being advanced by the ACTU because it doesn't really take us anywhere given the (indistinct).


JUSTICE ROSS:  Well, are you saying that they're not relevant terms?


MR FERGUSON:  We've said that and we've set it out in significant detail.




MR FERGUSON:  But it doesn't take us anywhere and we didn't intend to advance the argument beyond what we put in our written submissions.  So there is not (indistinct) from the decision so there was nothing to really contest.


JUSTICE ROSS:  So really, whatever view - if we're against you and confirm that they are relevant terms, you don't contest the proposition there is no relevant uncertainty or difficulty.  I understand that you're putting, essentially, the same proposition that Mr Borenstein has advanced.  Given that you get to that point, there is no need to express a concluded view in relation to the threshold point.


MR FERGUSON:  Precisely, your Honour.


JUSTICE ROSS:  Okay. Anybody else?


MR ARNDT:  Your Honour, Mr Arndt here, from ABI.  I just might clarify the position of ABI that the submission of ABI was that if there was a live issue in relation to what the casual loading was for, that might give rise to an uncertainty or difficulty.  I'm not aware that any live issue has been raised in relation to what the casual loading covers.  That is - we don't contest the provisional view but I thought that might assist parties to clarify that is in our original submission.  Might I also ask your Honour - I mean, me would also agree with the position that's been put by ACCI and Ai Group and Mr Borenstein about the question as to whether it needs to be determined now or whether it should be determined when it actually matters, as to the words.


JUSTICE ROSS:  No, I follow that.  Okay, thanks, Mr Arndt.


MR ARNDT:  Thank you, your Honour.


JUSTICE ROSS:  Nothing further on 18?  Can we go to 19 and 20, which goes to those parts of the retail, hospitality, manufacturing, teachers' and pastoral awards that provide general terms and conditions of employment for casual employees.  It asks whether they're relevant terms and if they are relevant terms, are they - are any of them not consistent with the Act as amended, do they give rise to uncertainty?  The provisional view is that they are relevant terms, since they provide for the manner in which casual employees are to be employed.  But they're not inconsistent with the Act and do not give rise to any relevant uncertainty.  A number of parties have indicated they don't contest the provisional view.  Can I take it that as has been the case with the questions we've just been discussing that the position of ACCI, Ai Group, ABI, the ACTU and the IEU is that the second part of the provisional view is not contested; that is the provisions are not in consistent with the Act and they don't give rise to any uncertainty or difficulty and on that basis it's not necessary for us to express a concluded view as to whether or not the provisions are relevant terms?


MR BORENSTEIN:  Yes, your Honour.


JUSTICE ROSS:  Thanks, Mr Borenstein.  Is that the position of the others?  Or if you're got a different view just tell me.


MS LEE:  Yes, your Honour.


MR PARDO:  That would also be the SDA's position, your Honour.


JUSTICE ROSS:  Okay.  The MGA contests the provisional view.  Do you adopt the same position as (indistinct), Ms Lee, or do you take a different view?


MS LEE:  No, we do not contest the views of 21 - sorry, 19 and 20.


JUSTICE ROSS:  Okay.  Does anyone else wish to be heard in respect of the provisional view expressed in relation to questions 19 and 20?  No, all right.  In the statement and directions we issued on 22 June, we indicated that the provisional views expressed in relation to questions 1 through to 20 would be dealt with in the morning and then we would deal with the provisional views expressed in relation to questions 21 to 32 commencing at 2 o'clock.  I know we still have some time this morning but I'm reluctant to depart from the schedule, only because it's unlikely but there may be someone who is expecting to be heard at 2 pm in relation to those provisional views.  So I propose to adjourn.  Before doing so, was there anything any party wished to say further in relation to the provisional views expressed in respect of questions 1 through to 20?


MR BORENSTEIN:  Your Honour, we don't wish to say anything further but may we be excused from the hearing this afternoon?  We have no interest in the remaining questions on behalf of the IEU.


JUSTICE ROSS:  Yes, certainly, Mr Borenstein.  Can you back to me about your discussions with Ms Hart and the filing of that short note about that other issue?


MR BORENSTEIN:  We'll endeavour to do that this afternoon, your Honour.


JUSTICE ROSS:  Thank you.  It's probably going to be quicker just to go through them in the order they appear but if there is a party that only has an interest in one of the questions, or one of the provisional views we'll be dealing with this afternoon, I'll ask you at the 2 o'clock resumption and that way you won't need to be caught up with the rest of the questions.  You're obviously welcome to stay for all of them but if we can do it in a more efficient manner for some of you we'll endeavour to do that.  So if you can give that some thought - thanks for your submissions this morning.  We'll adjourn and resume at 2 pm.  Nothing further?


MR CRAWFORD:  Excuse me, your Honour.




MR CRAWFORD:  It's Mr Crawford from the AWU.  Can I just please confirm our support for the oral submissions of the AMWU in relation to provisional view 10 and that we support the amended wording that is articulated generally in the Full Bench's statement.


JUSTICE ROSS:  So you are supporting the AMWU's oral sub?


MR CRAWFORD:  Yes, and the proposed amended wording concerning the information provided to employees about their hours of work, as included within the Full Bench's provisional view.


JUSTICE ROSS:  That's the "if practicable a non-binding assessment", proposition?


MR CRAWFORD:  Yes, your Honour.  We consider that but it may be of some albeit relatively minor but of some practical benefit to an employee in giving them an idea about their future employment arrangements.  So we think that the amendment does provide consistency and we think retaining those amended words is a preferable outcome.


JUSTICE ROSS:  Thank you, Mr Crawford.  Anyone else before we adjourn?


MR KENCHINGTON-EVANS:  Your Honour, if the Commission pleases, the AUE doesn't have any interest in the remaining questions so we also seek to be excused.


JUSTICE ROSS:  Certainly.  There is no need to seek to be excused.  I'm not going to be offended if you don't turn up at 2.  I understand that parties' interests may fluctuate from time to time.  When you have reached a point in the proceedings that you don't wish to be heard further in relation to any of the questions, just feel free to exit the proceeding.  Nothing further?  I'll see at least some of you at 2 pm.  We'll adjourn till 2.

LUNCHEON ADJOURNMENT                                                         [11.02 AM]

RESUMED                                                                                                [2.00 PM]


JUSTICE ROSS:  All right, well, let's turn to the provisional views expressed in relation to questions 21 to 24 which deal with the model casual conversion clause as in the Retail and the Pastoral Awards.  Can I just check whether there are any changes to the appearances from those who appeared this morning.  Anyone with us now that wasn't with us then?


MS SOSTARKO:  Yes, your Honour.  It's Rebecca Sostarko appearing for Master Builders Australia.  I have just joined.


JUSTICE ROSS:  Okay.  Thank you.  Look, the main contest that appears from the material that has been filed is the SDA in relation to the provisional view and what follows from it expressed in response to question 21.  The SDA seeks the retention of the 12‑month averaging period.  Is there anything further that the SDA wishes to say about that matter?


MR PARDO:  Yes, your Honour, if it pleases the Commission.  At the outset we don't wish to re‑state our submissions previously made.  We stand by those submissions and don't resile from them.  However, do note that the provisional view of the Commission regarding question 21 that the new NES provision is of a benefit doesn't exclude the real benefit to employers and employees of that 12‑month averaging period.  Of necessity getting rid of a model conversion clause from the Retail Award would be a detriment to both employees and employers.


If I could just illustrate an example.  If an employee were to begin employment in, for example, a hardware and gardening store say in March of a particular year which for such stores would be a quiet period - such stores usually have a busy period from around September/October through to March - the effect of getting rid of the 12‑month averaging period and relying on the six‑month, as under the Act, would be to require that employee to wait in effect a year for that upturn in their hours.


We also add to that that the shorter period is of itself a detriment to at least some employees because it would exclude some employees from the conversion provisions.  For example, an employer may be able to accommodate a 12‑month average which would take into account the busy and the slightly quieter period, still noting of course that they would have to have that reasonable pattern, so it wouldn't vary too much but there would still be some variation but may not be able to accommodate that peak six‑month period.  Similarly, an employee may be able to accept a permanent full‑time or part‑time contract for the 12‑month average but perhaps not for the six‑month busier period, so it goes both ways, your Honour.


The maintenance of it as a whole, of the model conversion clause, is the primary position of the SDA, but were the Commission to find otherwise - for example, to vary the model conversion clause so that it acts by the election of the employee in relation to the residual right to request casual conversion - such a variation would make that 12‑month averaging period clearly a supplemental term to the Act.  Such a variation wouldn't result in any extra red tape because it is at the employee's discretion to make that request under the residual right under 66(f).  It's not contrary to the Act.  It just adds a secondary averaging period.


VICE PRESIDENT HATCHER:  Mr Pardo, can I interrupt you.  It's Vice President Hatcher.


MR PARDO:  Yes, your Honour.


VICE PRESIDENT HATCHER:  You keep calling it an averaging period.  Why do you call it an averaging period?  You're suggesting that hours are in some sense averaged over the period?


MR PARDO:  Yes, your Honour, that's the suggestion.


VICE PRESIDENT HATCHER:  Where do you get that from?


MR PARDO:  From the model conversion clause of the 12‑month period.  I might be able to - - -


VICE PRESIDENT HATCHER:  It requires a pattern of hours on an ongoing basis to be demonstrated over the previous 12 months.  It doesn't say anything to suggest that they can be averaged, does it?


MR PARDO:  Our submission would be that it suggests in practice that it would be averaged, your Honour.


VICE PRESIDENT HATCHER:  Well, if it can't be averaged, that then would take away the whole point of your submission.


MR PARDO:  Yes, your Honour.




MR PARDO:  May it please the Commission.  Your Honour, those are the primary submissions of the SDA regarding questions 21 through 24.


JUSTICE ROSS:  Mr Pardo, can I just take you to the provisional view on question 21?


MR PARDO:  Yes, your Honour.


JUSTICE ROSS:  The first part of that identifies that the model award casual conversion clause is less than official than the NES entitlement in at least the three respects that are listed there in the dot points.  Do you see that?


MR PARDO:  Yes, your Honour - apologies, there was a bit of computer lag there, yes.


JUSTICE ROSS:  No, that's all right.  Do I take it you're not contesting those observations?  It's the later observation in the last paragraph in response to your regular pattern of hours point?


MR PARDO:  Yes, your Honour.


JUSTICE ROSS:  Thank you.


MR PARDO:  May it please the Commission.


JUSTICE ROSS:  The only other - well, the ACTU refers to the submissions of the SDA.  The MGA is indicating it contests the views expressed in 21, 22 and 23 and 24.  What do you want to say about that, Ms Lee?


MS LEE:  Can I clarify that the MGA does not contest 21, 22, 23 - however we do contest 24.  We contest 24 - we believe that it's not required or that it's not necessary to (indistinct) about the award (indistinct).  That's already been dealt with when the Act is amended (indistinct).


JUSTICE ROSS:  Thank you.  Does the AWU wish to say anything in relation to this matter - any of these provisional views?


MR CRAWFORD:  No, thank you, your Honour - we didn't intend to contest any of the provisional views.


JUSTICE ROSS:  Thank you.


MR BOOTH:  Your Honour, it's Ian Booth from the Newsagents here.


JUSTICE ROSS:  Yes, Mr Booth.


MR BOOTH:  I apologise for having half my face covered but we're under public health orders here in Sydney.




MR BOOTH:  We certainly don't want to dispute any of the provisional views mentioned under points 21 through to 24 inclusive.  The only comment which we would wish to make is that whatever the outcome which is arrived at, there needs to be a constant realisation that the users of the General Retail Industry Award in particular are small businesses and that our recommendation would be that the Commission errs on the side of insuring that whatever the words used are, that it makes it as easy as possible for small businesses to follow not only the award provisions but their interaction with the national employment standards.  Whilst in these proceedings - and I think this morning there were over 40 active participants in industrial relations - none of us are really users of these awards.  The users of the awards are the - generally speaking in respect to the General Retail Industry Award - small business employers and their employees.


JUSTICE ROSS:  Mr Booth, there seems to be someone chatting in the background with you.


MR BOOTH:  Sorry, I'll just ask them to cease.  Sorry, your Honour, I've dealt with that.  I really didn't want to labour the point too much further, other than to say however the matter is ultimately dealt with, we would appreciate, as no doubt would many other small business employer organisations, that the words used in fact aid small business employers and their employees.


JUSTICE ROSS:  Do I take it, Mr Booth, that if we come to consider a variation, consequent on the review, and we're looking at the modern award objective, you would want us to emphasise that part of the objective that speaks of modern awards being simple and easy to understand?


MR BOOTH:  Yes, I'm in full agreement with you, your Honour.


JUSTICE ROSS:  Anyone else in relation to the views expressed in response to questions 21 through to 24 inclusive?


MS WILES:  Your Honour, it's Ms Wiles in Melbourne for the CFMMEU Manufacturing Division.  Whilst we don't have a direct interest in the retail award obviously these questions relate more broadly to the model clause, which are in multiple awards.  I just wanted to make a quick response to the submission made by the MGA in relation to clause 24, which I think I heard that they oppose.




MS WILES:  Yes, so our brief submission would be that we think it's actually very important that there be a note that alerts users to the capacity to use the disputes procedure in the award.  Otherwise I think taking up the point that was just made, some users may not realise they're able to do that, if there is just a reference to the NES.  So that was all we really wanted to say about that, other than yes, we think it's important that a note is included for usability of the award.


JUSTICE ROSS:  We note that other than the MGA no other party contests that provisional view.  Does that conclude any submissions anyone wanted to make on 21 to 24?


MS LAWRENCE:  Sorry, your Honour - I just wanted to make one small point just about the smoothing argument that was made by the SDA in relation to the pattern of hours.




MS LAWRENCE:  We don't agree with the proposition that it is smooth, particularly in relation to the actual wording of 11.7B, which is that without significant adjustment the employee could continue to perform as either a part-time or full-time worker, which goes against that argument that there is any sense that there is meant to be smoothing across a 12-month period.  We also believe that in the current - in the Act provisions that there is a greater ability for someone to use a regular (indistinct) of hours that they can demonstrate and it effectively allows a casual employee to select a requisite six-month period and then allow them to a greater extent adjust to seasonality so in actual fact, we (indistinct) converse argument that is being made to the SDA's, that in actual fact seasonality is benefitted under the Act as opposed to the model conversion clause, your Honour.


JUSTICE ROSS:  So there are two points:  the first is the last one and the second is for the reasons you've articulated you don't agree with their averaging argument?


MS LAWRENCE:  Yes, that's correct, your Honour.


JUSTICE ROSS:  All right, thanks, Ms Lawrence.  If we go then to the Manufacturing Award, which as one would expect has excited a fair bit of interest and those are the questions, 25 through to 27.  It would - I'll test whether this is correct or not.  No doubt I'll hear from you if it's seeking to frame your answers in a way that you don't agree with.  there doesn't seem to be any opposition to the provisional view at 25, which identifies that the award clause is less beneficial in the respects that are identified there.  The issue really is down to what should you do about it?  A number of you want to be heard further on that issue.  The CFMMEU has a particular view, the AMWU wants to be heard about what we should do.  I think the rough division is in relation to 27, that is what do we do with any of these issues is broadly the employers favour removing the clause and replacing it with a reference to the S casual conversion clause.


Some of the unions at least would prefer the first option; that is redrafting the clause.  Well, I think firstly we'll hear from the unions about each aspect and what they want to say; the AMWU and then the CFMEU, then the AWU if it wishes to say anything, then we will hear from the employers.  Particularly ACCI I think has advanced a particular submission on this and Ai Group no doubt will have some views, as well.  The AMWU?


MR MILLER:  Thank you, your Honour, for hearing me in relation to these questions.  Can I just clarify for the purposes of, I suppose, what you want to hear from me right now, did you want me to provide our response to all three questions or are we going to go through them question by question?


JUSTICE ROSS:  No, I think they are all related, so do all three.  That's probably the easiest way.


MR MILLER:  Yes.  Thank you, your Honour.  I certainly don't disagree with the fact that they're all related, nor do I disagree with the general proposition that you put earlier that there seems to be at least some consensus about the relevant terms that have been identified - or rather than terms, I suppose the relevant features of clause 11.5 that have been identified in the provisional view provided to question 25 as being less beneficial.


I suppose what the AMWU would say in respect of that is what we said in our written submissions, which is that whilst they might be less beneficial in an academic sense they're not in actual fact less beneficial because of the issue about the point in time that the award term operates as being after six months rather than after 12 months.  This means that for the purposes of section 55, to the extent that those terms are less beneficial, they're not actually detrimental in their effects to an employee in respect of the NES.


Now, having said that, it was certainly picked up in the submissions in reply by the employers that the extant clause 11.5 provides for a facilitation mechanism that would allow the six‑month entitlement to be read as being changed to 12 months.  Certainly that is correct and I'm not trying to really be cute about that.  That is certainly correct and to that extent if that facilitative mechanism was invoked, I certainly agree that you could have the award entitlement operating at the same time as the NES entitlement.


JUSTICE ROSS:  Mr Miller, I think the CFMEU submit that issue can be addressed by deleting the facilitative provision.  That is as I understand their submission.  What do you say about that?


MR MILLER:  Yes, that certainly could occur.  I do also, however, concede the submission that ACCI made in their reply written submission which was that the way the existing clause 11.5 is drafted, it would actually allow for potentially some simultaneous operation of the award term and the NES even where the facilitative mechanism isn't invoked.


For example, an employee that has six months' irregular employment and then commences a period of six months' regular employment, in those circumstances again there is a scenario that arises whereby at least theoretically an employee could have a simultaneous award and NES entitlement.  Certainly I concede that the issue, you know, about section 55 and the potentially less beneficial terms - you know, it certainly has the potential to crystallise in that context.


JUSTICE ROSS:  Is that ACCI's submission on the note at paras 3 and 4 that you're referring to there or is it the earlier submission in reply?


MR MILLER:  It was actually the earlier submission in reply as I recall.  I don't have a reference for you immediately to hand, your Honour.


JUSTICE ROSS:  Yes, if you wouldn't mind just - well, you might be able to assist, Ms Lawrence.  I just want to make sure I know what the concession relates to, that's all.


MS LAWRENCE:  Your Honour, I am just trying to locate (audio malfunction)


JUSTICE ROSS:  Okay.  That's all right, Mr Miller, we can circle back and, Ms Lawrence, if you can locate it.  Ms Lawrence will locate it and then we will just be clear about what it is that you're referencing, that's all.  Yes, sorry, proceed.


MR MILLER:  Indeed, your Honour.  Look, if it assists, as I recall it arises out of the wording in 11.5(a) in particular because that provision - I'm just trying to recall the words off the top of my head, but it refers to an employee other than an irregular employee that has been engaged upon a sequence of periods of employment.  The corollary of that being that if you - well, you could work essentially as an irregular employee and then as a regular employee, but the six‑month entitlement only relates to the period of regularity.


JUSTICE ROSS:  No, I follow.


MR MILLER:  Look, certainly we agree with the submission of the CFMMEU that one way to get around it would be to remove the facilitative provision, although we would also contend that it would also need to be addressed by putting a ring fence around the operation of the clause to address the issue raised by the ACCI.


That is that the award wouldn't operate at all to an employee after 12 months, so that would mean that they would have one shot of, you know, applying to convert to permanent employment after the six months' regular period after the award, but if for whatever reason that isn't followed through in the first 12 months of their employment then that award term ceases to apply to them and the NES applies to them from that point onward.  That would be certainly one way to handle that particular issue.


I suppose from the AMWU's perspective, however, our read of the provisional views collectively was that even to the extent that the issue of those potentially less beneficial terms can be addressed by removing the facilitative clause and limiting the operation of the clause to 12 months - I suppose we were still anticipating a residual objection; the fact that some of those terms are in different terms to the NES is going to nonetheless lead to difficulty or uncertainty.  We think that that could also be addressed by ring fencing, so to speak, the operation of the clause, but I don't know that I can take that submission any further than that.


To the extent that that's not accepted, I think the solution would be more along the lines of what the AMWU understands is being proposed in relation to the provisional view expressed at 27, which we understand as to be applying the residual right found in section 66(f) of the amended Act and redrafting that so as to insert it into the award so that it applies after six months.  Proceeding on that basis I think would remove any potential argument that there is any difficulty or uncertainty between the two.


JUSTICE ROSS:  Mr Miller, you have provided a draft determination.  Is that one that addresses the issue you have been raising?  I think it was provided a short while ago and it's been, as I understand it, forwarded to those parties with an interest in this award.


MR MILLER:  Yes, certainly we have done our best to make sure that everyone that we think would want to see that has been provided a copy of that.  I'm sorry if I missed anyone.  I think we sent it to the AIG, ABI, ACCI and the various union parties.  But if anyone else needs to see that, please speak up and we can provide that.  Yes, your Honour - I don't know that that draft determination was directed so much as the issues that I've been discussing just now so much as I guess being a representation of what the AMWU understands is being proposed as one of the two alternate options that are listed in the provisional view to question 27.  But we agree that proceeding on that basis - and by that basis I mean what we understand is being proposed in relation to the provisional view our question 27 - proceeding on that basis we would also address the issues that I've been discussing, which is the point about point in time and the potential for the two clauses to operate on a side-by-side basis.


The only other point that I would make is that - well, I mean, it's the logical extension of the submission that I have already been making, which is that the two clauses can operate harmoniously side by side, provided there is - well, to the extent that they're applying at different points in time and the award term is applying at six months versus the NES entitlement, applying at 12 months, and that is that we don't think that certainly the fact that the award term is a one-off benefit versus a residual right in the NES - I don't think that that could ever be detrimental in its effect to an employee when compared with the national employment standards in the context of the national employment standards providing for an entitlement after 12 months.  If you think about it, the award term is going to apply after six months and that employee is either going to convert or they're not going to convert.


To the extent that they don't convert, they won't be prevented from accessing their NES entitlements that would arise after 12 months' employment.  I think that's all I had intended on saying in relation to question 25 specifically, unless your Honours or Commissioner had any questions about that.  I'll move on to our response to provisional view 26.


JUSTICE ROSS:  Yes, thank you.


MR MILLER:  The provisional view 26 is that clause 11.5 of the award will give rise to uncertainty and difficulty relating to the interaction between the manufacturing award and the residual right of casual conversion because they're significantly different prescriptions in the award and the Act about the same subject matter will cause confusion and complications with respect to compliance.  Clause 11.5 is also inconsistent with the Act, insofar as some casual employees would not be entitled to request conversion under the award but would be entitled to request conversion under the Act.  In response to that provisional view - in response to the first part of that provisional view about the different prescriptions what I would say in response to that is as I've already touched on our view is that to the extent that there is any uncertainty or difficulty, that could be addressed by limiting the operation of the award term to a maximum of six months.


But to the extent that that submission is not going to be sufficient to address the concerns that I think are articulated in this provisional view at question 26, I don't know that I can take that view any further and the solution in that case would be, again, as what we understand to be being proposed as the first of the two alternate options which are provided for the provisional view to question 27.  However, I do have something further to say about the second sentence in that provisional view at 26, which is that clause 11.5 is also inconsistent with the Act insofar as some casual employees would not be entitled to request conversion under the award but would be entitled to request conversion under the Act.  The AMWU accepts that in light of the issues identified in respect to the instances - sorry.


In respect to that second part, in respect to that second observation at provisional view 26, I'm not sure that's correct.  In our submission, a person that is eligible under the Act would always be eligible under the award and I think - well, I don't know that we made that submission expressly in our original written submissions but certainly we raised a concern about the differences in terms of the way the eligibility criteria is expressed in terms of - under the award term, it relating to an employee having - well, being a regular and systematic employee or words to that effect, versus in the NES the requirement that an employee is working a regular pattern of hours that could be converted into permanent employment without significant adjustment.  Our submission is that if you're eligible under the Act because you have that regular pattern of hours, you're always going to be eligible under the award term because you're regular and systematic.


Our concern was more so that the reverse wasn't also necessarily true.  But in support of our submission that if you're entitled - if you're a casual employee that's entitled under the Act you would always be entitled also under the award.  If I could refer your Honours and Commissioners to the note which is - I think it's at section 66 - it's provided to as a note to section 66(b) in the Act as amended and it states:


An employee who meets the requirements of paragraphs A and B would also be a regular casual employee because the employee has been employed by the employer on a regular and systematic basis.


MR MILLER:  Section 66(b), paragraphs A and B of course relating to the requirement to have a regular pattern of hours.  So our submission is that in light of the way that issue is dealt with in the Act, it's clear that someone that is eligible for casual conversion under the Act is always going to be a regular and systematic employee.  I think that note was included for the purposes of clarifying the interaction between the casual conversion eligibility criteria and the provisions relating to a person being - a casual employee - being eligible to make an unfair dismissal claim.  But in our submission, the test is the same in terms of those employees that are regular and systematic for the purposes of unfair dismissal and similarly, under the extant manufacturing conversion clause.  So to the extent that that submission resolves the concern expressed of provisional view 26 about the potential inconsistency, we would submit that the regular and systematic test should also be retained in any redrafted clause 11.5.


Are there any questions about my response to that provisional view 26?


JUSTICE ROSS:  No, I don't think so.


MR MILLER:  Thank you, your Honour.  In relation to provisional view 27, there is two - there have been two proposals listed there which, as we understand it, have both been put forward on the basis that either one of those two options would make the award consistent with the Act as amended and operate effectively with it.  The first of those two options to redraft clause 11.5 of the Manufacturing Award so that it applies the residual right of conversion on the basis that an employee is eligible to make a request if they had been employed for at least six months.  The second is just to remove it entirely.  I think, as we put in our notes, we accept that proceeding on the basis of either one of the two alternate proposals would make the award operate effectively with the Act, but, in our submission, that's not the end of the inquiry.


The Commission is obliged by section 134 to ensure that modern awards together with the NES provide for a fair and minimum relevant safety net.  In our submission having now found, well, at least on a provisional basis that the award would be consistent and operate effectively with the NES if it were varied in one of either of the two alternates, it follows as a matter of logic that the Commission now has to make a selection about one of those two options or indeed to some other third option, you know, that would also be consistent and ensure that the award operates effectively with the Act.  For example, as I alluded to earlier about the ring fencing of the clause and the removal of the facilitative provision.


The crucial point is we submit that the Commission, because of section 134, should choose the option that is consistent with the previous decisions of this tribunal and its predecessors, and consistent with its obligations under section 134 of the Act to ensure that awards provide for a fair and relevant safety net of minimum terms and conditions.  To that end we note the relevant history of this clause in the Manufacturing Award, which I think it has been dealt with at length.


The relevant history is that it was first inserted of course in the decision by the AIRC back in 2000 when that tribunal - well, the Commission as it was then determined that it was necessary and appropriate to vary the Metal and Engineering Award to include a casual conversion entitlement in response to a claim made by the AMWU.  That clause was provided for in substantially the same terms as the current clause 11.5, including relevantly that it applied after six months' employment.


Then of course almost a decade later the modern Manufacturing Award was made as a result of the award modernisation process and that newly made modern Manufacturing Award also included a casual conversion term that provided casuals a right to convert after six months.  We say it's relevant, as well, that the terms of the award modernisation request that led to the establishment of the modern awards were in substantially the same terms as what is now the modern awards objective as it appears in section 134.


Then in 2014 of course a review of all modern awards, including the Manufacturing Award, was commenced.  At the commencement of that review, as your Honours and Commissioner would be aware, there was the preliminary jurisdictional issues decision which was handed down which established as the general principle that because the award modernisation request was in substantially the same terms as section 134, the modern awards can be deemed as having been achieving the modern awards objective at the time they were made.


Relevantly, we say that means that the Manufacturing Award as it was made then, inclusive of a casual conversion entitlement with a six‑month eligibility threshold, was deemed again to be necessary to meet the modern awards objective.


JUSTICE ROSS:  Well, Mr Miller, that was against a different NES though.


MR MILLER:  Yes, I concede that - - -


JUSTICE ROSS:  Isn't the NES the relevant change?  The modern award objective speaks of modern awards together with the NES providing a fair and relevant safety net.  In relation to those earlier decisions, there was no NES provision about casual conversion.


MR MILLER:  Certainly I don't cavil with that proposition and indeed the AIG have made much of that point in their written submissions.  The point that I made in response in our written submissions and that I continue to press is that the original decision, which was subsequently held was in the context of the Manufacturing - well, what was then the Metal and Engineering Award, so that is that it applied to the metal and engineering sector - six months was what was held and subsequently held to be necessary in the context of that industry.


Now, of course there has been a change to the NES.  I don't think it's impossible to quibble with that proposition, but the change doesn't disrupt the situation as it applies to the safety net that applies to employees in the manufacturing and associated industries because in those industries they have always had a six‑month entitlement, whereas of course the NES now only applies after 12 months.


The crux of our submission is that what was deemed to be necessary and appropriate for employees in the manufacturing and associated industries, that finding of necessity cannot be displaced as a matter of logic by the insertion into the NES of a less beneficial entitlement that crystallises at a later point, notwithstanding I suppose that can be seen as directed at the same policy objective, which is to limit I suppose the occurrence of long term casual employees to the extent that such a long term casual employee is undermining the safety net.


Again I would repeat my submission that each of those junctions I referred to, including as recently as 2019, the Manufacturing Award as it appears now is again found to be - well, the terms that are now in the Manufacturing Award were again found to be necessary to achieve the modern awards objective, including relevantly the inclusion of a term in - well, in precisely the same form as the current 11.5(c), because indeed that decision was very recent.


Our submission is that those findings should not be displaced in the context of these proceedings.  It's not controversial that ordinarily a party seeking a significant change to an award would need to make a case that was supported by a submission that addressed the relevant legislative provisions and be accompanied by probative evidence properly directed demonstrating the facts supporting the proposed variation.  I rely on the preliminary jurisdictional issues decision in support of that submission.


In the AMWU's submission, the six‑month entitlement found in the current Manufacturing Award should not be removed absent a finding that such an entitlement is no longer necessary to achieve the modern awards objective.  Given that this would be such a radical departure from the status quo in terms of the current safety net that applies to employees in the manufacturing and associated industries when taking into account both the Manufacturing Award and the NES, such a finding should not be made in the absence of a significant evidentiary case that proves the necessity of the proposed removal.  There is no evidence in our submission before the Fair Work Commission - - -


JUSTICE ROSS:  Well, except that the submissions have addressed the statutory framework.  How do you put forward evidence on uncertainty or ambiguity?  It's either clear on its face or it's not.


MR MILLER:  I'm not sure I quite understand the question, your Honour.  To the extent that the question is that - - -


JUSTICE ROSS:  Well, what possible probative evidence could you bring in relation to the statutory review provisions that would bear on this question?


MR MILLER:  Specifically in relation to uncertainty I agree that that wouldn't be relevant to that point, but my submission is that the Commission has - well, has found at least on a provisional basis that proceeding on either one of two bases would address the uncertainty and to that extent, address that element of the modern awards objective, which requires that the modern awards be simple and easy to understand.  So as I said at the beginning of my - - -


JUSTICE ROSS:  Well, I don't think - the observations at 27 aren't directed to the elements of the modern award objective.


MR MILLER:  I can appreciate that.  If I can put it this way:  in my submission, either of those two proposals would make the award simply and easy to understand.  I mean, I don't think there is anything that can be put against that.  But the relevant point is that the Commission - that being the case, if either of those two proposals will address that particular issue, about ensuring the awards are easy to understand and also will address the issues raised by this review.  The Commission should make the selection of whichever proposal is going to be the least disruptive in respect of the overall safety net.


JUSTICE ROSS:  All right.  I just want to be clear that we're not coalescing your submission and our provisional view.  Our provisional view is confined to either of those two options would make the award consistent and operate effectively with the Act - in other words, with the NES provision.  You're taking a further point and saying, well, either of those two views would make the award simple and easy to understand.  But that is your submission, not our provisional view.


MR MILLER:  I understand that.  If I can put it simply, the Commission should choose - to the extent that either of the two proposals is going to make the award - well, is going to  resolve any uncertainty or difficulty and/or inconsistency and make it operate effectively, the Commission should select that choice which is going to be the least disruptive in terms of the overall safety net structure that applies to employees engaged in the manufacturing and associated industries, taking into account section 138 and section 134 in light of the arbitral history of the Manufacturing Award casual conversion provisions.  Relevantly, those provisions have consistently comprised of a six-month entitlement to casual conversion and have consistently - that six-month entitlement has necessarily also been found as being a necessary inclusion in the safety net.


So the extent that any remedial action is required by this review, the Commission should make the selection that is not going to disrupt those previous findings that a six-month entitlement is necessary absent some evidence that establishes that a six-month entitlement is no longer necessary.  I can appreciate that the AIG puts it against us that the insertion of the NES does now make it unnecessary.  But our submission is that - well, the inclusion of an entitlement that is less beneficial than the status quo - it simply doesn't disrupt the necessity of that clause.


VICE PRESIDENT HATCHER:  Mr Miller, when we assess which of those two alternatives might achieve the modern awards objective, we'd be assisted by evidence about the extent to which the current clause is actually utilised.


MR MILLER:  I'm not sure how to really answer that question.  I think if I can put it this way - I think a departure from the status quo would require that kind of evidence and evidence about the typical length of casual engagements in the manufacturing and associated industries, which on my reading of the decision regarding the metal and engineering award in by that Australian Industrial Relations Commission in 2000 was relevant to their consideration of why a six-month entitlement as opposed to various other times limits was necessary and appropriate for inclusion in that award.


VICE PRESIDENT HATCHER:  I mean, this is not a case where anyone bears the onus.  It's a review required to be conducted by the Act.  Assessing the value of the status quo for those employees under the award, we'd be assisted with some knowledge that's available to us to (indistinct).


MR MILLER:  I'm sorry, your Honour, you cut out there a little bit.  Would you mind repeating that question?


VICE PRESIDENT HATCHER:  Yes.  This review is being conducted pursuant to a requirement of the Act, so nobody actually bears any onus.  Again, can I say to the extent that we're trying to consider whether the status quo should at least partially be retained by reference to the second of those two alternatives, wouldn't we be assisted by knowledge of the extent to which the entitlement is utilised so that we can have some understanding of its value to employees covered by the award?


MR MILLER:  Yes, your Honour, and certainly we would submit that the Commission shouldn't proceed absent that - shouldn't proceed to adopt the second of the two alternatives absent an evidentiary contest.  But I don't think it's necessary to necessarily reopen the - I don't agree that it's necessary to reopen the examination of whether a six month or some other timeframe is necessary.  If the AIG want to run that kind of a litigation, they are entitled to make an application pursuant to section 157 of the Act to vary the award in those terms.




JUSTICE ROSS:  Do I take it from that, Mr Miller, you're not proposing to provide any information about the utilisation of the current award term?


MR MILLER:  We stand ready to assist the Commission.  I don't think there was any direction in relation to the filing of evidence in these proceedings.  If it would assist the Commission I can look into that and we would be prepared to see if we were able to do that.  I can't - it's not something that we've turned our minds to in terms of the narrow confines of this review process, which I think has been - I think beneficially so - fairly narrowly confined in its scope and directed at particular questions.  But to the extent that - we would be prepared to see if that were a possibility, if it's going to assist the Commission in that sense.


JUSTICE ROSS:  All right, thank you.


MR MILLER:  But subject to that particular issue, we press our submission that while we accept that some variation may be necessary to ensure the award operates effectively, a variation that achieves that objective whilst not unnecessarily disrupting the status quo as it applies to the safety net shouldn't be preferred to one that would be contrary to the previous findings by this tribunal and its predecessors such as that which, as I understand it, the AIG would urge that you adopt.  That's why we say that our option should be preferred, which is essentially to retain in some way, shape or form the six-month entitlement.


Now, I have taken the liberty to file a further draft determination which reflects the AMWU's understanding of what is being proposed at least on a provisional basis in response to the preliminary views expressed to question 27.  I apologise for the late notice to the extent that that has probably caused some inconvenience to the parties.  Nonetheless, I have done my best to circulate it to those parties that might be interested in that draft determination.


JUSTICE ROSS:  Mr Miller, can you just clarify for me - just put this draft determination in context that you have just filed.  Is this the draft determination you're seeking?  Is it the one you say should be adopted if we're against you?  What is the context?  I think you just said it was one that would give effect to the provisional views, so I'm just not sure what the intent is with the draft variation.


MR MILLER:  Yes, thank you, your Honour.  There are, I think, multiple intents.  The first is that we certainly agree that this would ensure that the award operates effectively with the Act and to the extent that you're against us about proceeding in some other way - for example, by ring fencing the current casual conversion clause so that it doesn't apply for any period greater than 12 months and removing the facilitative clause - then this would be the way to do it.


It has also been drafted I suppose to facilitate a discussion about that first of the two alternate options that are presented, at least on a provisional basis, so that the AMWU can have some understanding of what is being proposed, albeit on a provisional view.  As I say, I base this on what my reading is of what is being proposed in relation to question 27 in that this - - -


JUSTICE ROSS:  So it's responsive to the first paragraph of the provisional view under 27?


MR MILLER:  Precisely.  It's intended to do no more - I'll qualify that by saying perhaps a little bit more than - well, I don't think I have the provisional view in front of me, but to do little more than to redraft clause 11.5 so that it applies the NES residual rights in such a way that it applies after six months' employment rather than some other period.


I have taken the liberty of making some sort of basic amendments compared with section 66F of the Act, which is where the residual right is found of course, but those are directed mainly at ensuring that it can operate effectively in the context of the award itself.  For example, the equivalent to section 66F(1)(a)(c) - I think I've got that reference correctly - has been removed.  Yes, it's section 66F(1)(c), because that's the subsection which deals with having previously rejected offers made pursuant to section 66B and the like, which are self‑evidently not relevant in the context of the award term.  It applies the six‑month entitlement instead of 12.


I have also included a maximum period of operation in clause 11.5(a)(i) so that it would apply after no greater period than 12 months, such that the entitlement is going to be a one‑off entitlement that applies after the employee has had at least six months qualifying employment but no more than 12, because again after that point the NES is going to apply to that casual employee.  As we anticipate, that would be the relevant interaction between the award term and the NES.


VICE PRESIDENT HATCHER:  Mr Miller - and tell me if you can't hear me - might an alternative approach be this:  the award incorporate as terms of the ward by reference the provisions of the Act concerned with the residual right of conversion on the basis that section 66F(1)(a) would be read as six months instead of 12 months?


MR MILLER:  Yes, certainly.  I can appreciate how that option has some attraction insofar as at least it would, I suppose, limit the amount of, you know, double handling so to speak between the award and the NES.  I think proceeding on that basis would though have the potential to cause some confusion in the context of what I referred to earlier, being that subsection 66F(1)(c) imposes on employees wanting to make a residual rights request various obligations dealing with their previous interactions with NES entitlements relating to conversion.


When I approached this I thought that that was going to be confusing if it was going to be the case that the award term simply refer to the NES, with a note that the reference to 12 months should be read as a reference to six months in the context of that section 66F(1)(c).  There may well be some other way of getting around that that I haven't turned my mind to, but certainly I'm not opposed to proceeding on that basis.


The only other point that I would make which is another feature I've included in this draft - albeit I forgot to mention a moment ago, which was an unintentional oversight on my part - I think it would also be necessary to include some requirement for the employer to give the employee notice not only - well, under the Act they have to provide notice of their rights to casual conversion, but in our view it would also be necessary to import some requirement for the employer to notify the employee of their rights to casual conversion under the award term, otherwise the concern is a qualifying casual employee might get to six months' qualifying casual employment but think that they have to wait to 12 months.


To that end we think it would also be necessary to include a clause which requires the employer to give the employee notice of the entitlement.  I've included that right at the end of this draft determination as the proposed clause 11.5(l).  Depending on which parts, I suppose, of our submission are accepted or rejected, in relation to provisional view 26 I pressed our submission about the regular and systematic test, and that not being inconsistent with the Act because casual employees that are qualifying under the Act will always be also eligible under the award.


To the extent that that's accepted, in our view this draft determination could easily be amended to include that test rather than the test, but in the interests of keeping this as close as possible to the terms of section 66F and what we understood to be what was being proposed in provisional view question 27, for now that has just been included as far as practicably possible consistent with the precise terms of section 66F as it appears in the amended Act.


Your Honours and Commissioner, if it please, that was all I was going to say in relation to all three questions - questions 25, 26 and 17 - and the provisional views expressed in relation to those questions, as well, unless your Honours or Commissioner have any further questions.  I'm happy to do my best to answer those, as well.


JUSTICE ROSS:  Thank you, Mr Miller.  We might go to you, Mr Maxwell.  Is there anything you wish to add to your written note filed yesterday?


MR MAXWELL:  Thank you, your Honour.  Your Honour, the short note that we filed yesterday sets out our main concerns with the provisional views.  I think to put it in a concise form, our view is that because the NES entitlements to casual conversion does not start until a casual employee has 12 months' service, that there is a gap in that under the manufacturing award a casual employee with less than 12 months' service, who has worked continuously - I take that back - who has worked on a regular, systematic basis for six months, is entitled to elect to convert.  They have that right to elect to convert, which essentially is the right to choose by the employee.  We take issue that a right to request is not the same as the right to elect.


We are concerned that removing the right to elect from the Manufacturing Award will reduce the safety net that applies to employees covered by that award and we have a major concern that whereas employees under the Manufacturing Award have a right to elect to convert once they meet that six-month threshold, that the residual right under the NES in some respects is an illusionary request because potentially, depending on the way a business structures its contracts, if a business has contracts based on the two-year cycle, essentially they could employ people as casuals without having to convert anyone to full-time or part-time and to further that point, in the revised explanatory memorandum, that was produced in regard to the legislation, there is an example on page 10 which is notice of no offer to convert because of reasonable grounds.


It uses the example of a casual office cleaner who on the year's anniversary of their employment, the employer assesses her against the conversion criteria.  The employer considers that the employee is eligible for conversion on the basis that she's worked the same shifts Monday to Friday of the previous six months pursuant to the contract that the cleaner has with another company.  However, the employer is aware that the contract will not be renewed beyond the end of the current financial year.  So the employer then advises the employee that the employer will not make an offer to convert.  It then goes on in the example to say that such an employee does not then have the right to request to convert until six months after that notice is given.  So essentially, under the NES casual employees potentially will not have the ability to request to convert until after 18 months' employment.


We consider that to be a significant reduction in the safety net.  What we suggest is that the protection of the existing entitlement under the award could be maintained by removing the facilitative provision which allows the award clause to be extended to 12 months and limiting the (indistinct) operation to a casual employee who is employed for less than 12 months.  I'm sorry - whose employment is less than 12 months.  Your Honour, I don't really suggest that I take the issue any further than that but we believe that is an appropriate variation that could be made which protects both the existing entitlement, the casual employees in their first 11 months of employment, after which then - after the 12-month period is reached, the NES standard would apply, including the residual right to request.


JUSTICE ROSS:  Thanks, Mr Maxwell.  Anything from you, Ms Wiles?


MS WILES:  Thank you, your Honour.  We support the submissions made by the CFMMEU generally in construction and also by way of general application the submissions of the AMWU with one caveat:  we haven't had an opportunity to really consider the AMWU's revised draft determination.  But in essence, we say that the first option is the one that should be adopted by the Commission in terms of its provisional view and in any redrafting that the matters raised by Mr Maxwell should guide the exercise of your discretion in making any amendment necessary.


JUSTICE ROSS:  Thank you, Ms Wiles.  Mr Crawford.


MR CRAWFORD:  Thank you, your Honour.  Our main point is that the Amendment Act was never intended to reduce existing casual conversion provisions.  That's apparent from the background to the Amendment Act, a lot of which is cited in our reply submissions.  The Amendment Act was basically intended to benefit employees by putting a statutory casual conversion provision into the NES.  So we think that given that background, if there are two options available to the Full Bench to achieve consistency, we would say clearly you should go with the option that does not diminish existing casual conversion rights.  So that is clearly the first option in our view, thank you.


JUSTICE ROSS:  Thank you, Mr Crawford.  If we go to ACCI and then to the Ai Group.


MR KEMPPI:  Your Honour, apologies - if I may, if it please the Commission, I'd like to just a few remarks on the statement from the union parties, thank you.




MR KEMPPI:  The first point we make is about the nature of the exercise.  I won't dwell on this too long but it is, as has been pointed out in the past, a fairly confined exercise in terms of establishing the jurisdiction of the Commission through finding a relevant term, making sure (indistinct) that's inconsistent.  But after that we say the exercise affords a degree of latitude, particularly in a circumstance like this, where you are choosing between competing alternatives as to how to proceed.  I'll refer back to what I said about the modern awards objective without dwelling on it.  But we say that is a factor in terms of striving for retention of favourable conditions where they exist.  As the Vice President rightly pointed out, there is no evidentiary burden in this review.  However, going to the question that the Vice President later posed, we would say if there were an evidentiary burden in this review, that burden should probably be held to fall to those parties that would seek to remove conditions that have previously been held to be consistent with the modern awards objective.


Just to expand on Mr Crawford's point, as to that we would say two things:  one is that there is an absence of a parliamentary intent, in our submission, for conditions such as this to be reduced by way of the introduction of a safety net provision.  In fact, such a course would be somewhat different to the way in which we understand the safety net.  If I might make a parallel to the way in which annual leave operates, if hypothetically they were an award obligation to provide six weeks of annual leave, the insertion of four weeks of annual leave in the NES would in no way undermine that six-week entitlement, nor would it give us cause to say, "Should we reduce those six weeks to four?"  We say that this is a fairly similar proposition except of course we're dealing with reverse numbers, as we're dealing with (indistinct) periods.  There are three ways now to save at least the obligation or, sorry, the entitlement to convert after six months.  The first of those was the original position put by the AMWU and the position that is roughly endorsed by the CFMMEU.  We say that has the advantage of being certain insofar as it quite closely reflects the current entitlement.  At any rate, as the provisional view points out, the current award entitlement is a one-off conversion entitlement.  In other words, it can be exercised once, which would be quite - we would say that would make it quite consistent with being ring-fenced to that six to 12-month period such that it could operate for a period after which time the NES takes over at the 12-month point.  We say that would be a way of proceeding which would give rise to no uncertainty - sorry, no inconsistency whatsoever between the two time periods because they would be entirely temporarily separate.


The second of two ways in which the entitlement can be saved are of course consistent with the provisional view or at least directed squarely at the provisional view.  The second way is by the adoption of the draft determination that the AMWU put forward recently.  The third way is of course as pointed out by the Vice President, that a simple reference to 66F with a note to say that the 12 months has changed to six months.  Now, what that means, we say, is that with the availability of three ways in which this very important entitlement can be retained, as against one way in which it can be cut, in our submission we'd urge the Commission to adopt at least one of the ways in which this important entitlement can be retained.


JUSTICE ROSS:  Thank you, Mr Kemppi.  I also omitted to go to the CEPU before I went to the employers.  Was there anything the CEPU wished to add to the discussion on this issue?


MS ABOUSLEIMAN:  No, thank you, your Honour.  We support the draft determination proposed by the AMWU and in the alternative, we also support Mr Maxwell of the CFMMEU (indistinct) thank you.


JUSTICE ROSS:  Thank you.  Can we go to you now, Ms Lawrence?


MS LAWRENCE:  Thank you, your Honour.  I just thought I'd mention this as a headline item to assist the Commission in not hearing the same arguments put forward by both myself and Mr Ferguson.  We had previously had a point of discussion where we will simply support the additional comments to be made by Mr Ferguson, if that is an okay approach with the members of the Commission, your Honour.


JUSTICE ROSS:  Certainly.  Mr Ferguson.


MS LAWRENCE:  I'll just start, if that's okay.


JUSTICE ROSS:  Okay, sorry.


MS LAWRENCE:  If that's all right - we won't cover all of our arguments, just so as to not force you to have to hear - - -


JUSTICE ROSS:  I see.  I follow, thank you.  Go on.


MS LAWRENCE:  Just in relation to the note we sent to the Commission, I won't repeat what we were saying there but just to clarify that we are not disagreeing with the outcome on the ultimate conclusion of the provisional view of the Commission but we think that some of the reasoning or the use of terminology didn't completely reflect the position so far as it actually applies to the manufacturing award.  Just on question 25, and this is a preliminary matter which I think applies to both question 25 and the question of whether the conversion clause is more beneficial than the residual right to request conversion under the NES, but also applies insofar as question 27 asks whether the proposed provisional views would operate consistently with the Act insofar as we wish to address section 55.


We note that we have raised the issue as to whether or not there should even be a consideration as to whether it's more beneficial or detrimental because in doing so, we believe the Commission was seeking to enliven section 55 and whether or not that should be considered in light of the fact that section 55 should only be considered where a term is ancillary or supplementary as a term to the NES.  We put in both our submission - I won't go into intense detail in repeating what we put in our submissions and in our reply submission but we note that those matters as put forward by ourselves and by ABI have not yet been commented on at all in the provisional view.  We raise the issue that we don't actually think that the casual conversion provisions in this award and all the others considered can be considered a term that is ancillary, incidental or supplementary to the NES because they were in existence prior to the NES amendment.


So as and of itself they already exist as (indistinct) provisions outside of and free of, in effect, the NES.  They are not adding anything to it.  They are not ancillary in an additional kind of sense.  So in essence, the model casual conversion provision does not operate in conjunction with or in addition to.  Rather it reflects an entirely different scheme that operates independently of the NES.  For this reason we don't think that there should be a consideration of section 55.  In fact, the comments of Mr Miller earlier where he said that the two could perhaps live side by side, despite the fact we believe that doing so would actually be quite difficult and very difficult to implement, it does prove the point and confirm that these are not terms that are ancillary or supplementary.  Therefore, there shouldn't be a consideration as to whether or not these - that in amending this there is any question of detriment.


So I raise that both in respect of question 25 but also in relation to the consideration as to whether or not the amendments are consistent with the Act, on the basis that we don't believe that there should be consideration of section 55 in that consistency point.  If it's okay with the Commission I'll move on just to a slight comment in relation to question 26.  Obviously, we agree with the provisional view and don't contest it any sense.  But we do just want to raise the points that we believe that the fact that there are so many diverging views on this issue proves the point that it currently operates in a way that is uncertain and difficult and that needs to be rectified under the direction provided under section 34(2) of the Amending Act.  My apologies - section 48(3) of the amending Act.


With respect to the alternatives, I've already outlined why I don't think the Commission should be considering the amendments so far as it's consistent or can operate effectively with section 55 because we don't think that's enlivened here.  We do, however, believe that the Commission should be considering how the proposals would operate in respect of the modern awards objectives and we've heard substantially from the unions about this historical reasoning behind why it is the way it is in the manufacturing award.  However, as your Honour we believe rightly alluded to that is a temporal assessment that doesn't apply to the current circumstances.  The test in relation to the modern awards objective is one that should be taking place now, not one that should in any way be considering the NES as it was drafted prior to the Amending Act.


We obviously would also like to draw the Commission's attention to section 134(g), which we think is of significant concern if the Commission were to go down the path of adopting the first of the provisional views in redrafting of the clause.  It is very clear that this would lead to significant difficulty for employers to understand which type of casual conversion provision applied to them and when they would be moving from the award to the NES, particularly in circumstances where some employers would be covered by multiple awards.  Obviously, that also then relates to section 134(1)(f) and the impact of any exercise in modern award powers on business, including on productivity, employment costs and regulatory burden.  It's probably self-explanatory but we do believe that in adopting the first option, that it will not be operating effectively with that modern award objective.


Finally, just in relation to fairness, we think that the fairer outcome is for both employees to understand what their rights are and for employers to be able to understand what their obligations are in relation to casual conversion, that the second option proposed, the adoption of replacing section 11.5 with the NES, should be the preferred approach of the Commission because it will allow it to operate as effectively as possible with the Act.  We don't believe that it is possible to operate effectively if the first option is adopted and for further reasons which I'm sure Mr Ferguson will allude to.  Just one final matter, your Honour, that I failed to just mention at the start and that is just in relation to the references to our submission earlier by Mr Miller.  It is my belief that I'm - Mr Miller may wish to confirm this, that he was referring to our submission in reply, paragraphs 43 to 45.  If it pleases the Commission, I'm happy to take any questions that you may have.


JUSTICE ROSS:  Thank you, Ms Lawrence.  Mr Ferguson?


MR FERGUSON:  Yes.  Thank you, your Honour.  Look, firstly in relation to question 25 and 26 we largely rely or intend to rely on our written submissions in response to those questions but for responding to a small number of issues and raising a couple of procedural matters.  The first is I literally only saw that draft determination raised or filed by the AMWU during these proceedings.  I would seek ‑ ‑ ‑


JUSTICE ROSS:  Look, I might put your mind at rest, no, we don't want any further submissions on the draft determination.  In the event we decide to go down that path the likely course we'll take is to publish a draft determination and everyone will have an opportunity to comment on it so I think rather than addressing and delaying the proceedings unnecessarily, we understand the context in which it's put, we'll have regard to it and if we go down that path we'll give consideration to it then.


MR FERGUSON:  Yes, all right.


JUSTICE ROSS:  But the likelihood is we would publish a draft variation determination and seek comments on that.


MR FERGUSON:  You may have relieved me of a job as well, your Honour, so I appreciate that.  The only other issue which I'm loathe to mention but I had rather serious connectivity issues during Mr Miller's submissions, particularly around a tranche of - or a part where I think the Bench was exchanging some sort of comment with Mr Miller.


I don't know if there is scope to - for there to be some short window after the transcript or recording of this is available to potentially respond, if necessary, I'm not sure it will be necessary to respond but I just couldn't hear what was going on.  I've switched computers and so forth as a result to overcome it but it does present some difficulty.


JUSTICE ROSS:  No, that's fine.  But look, I'll find out when the - I've asked for the transcript to be expedited.  I don't want to open it up beyond the bit that was inaudible so resist the temptation to comment on anything else because we won't have regard to that.


MR FERGUSON:  And from ‑ ‑ ‑


JUSTICE ROSS:  We'll only have regard to the comments you make about the parts that was inaudible on the exchange.


MR FERGUSON:  I appreciate that and it would largely be in relation to matters that were new matters and it may not be - it may be that I don't need to respond and I can deal with it very swiftly, if that makes ‑ ‑ ‑


JUSTICE ROSS:  Look, I think it was a discussion around - it may have been Vice President Hatcher was putting to Mr Miller that, to the best of my recollection, that well, this general issue about what might be seen as the loss of an entitlement if the narrower course were adopted, that is, to remove clause 11.5, wouldn't it be relevant to that question to have evidence about the utilisation of the existing right under clause 11.5.


MR FERGUSON:  Right.  I heard that there was some reference to evidence, I just - it was a few minutes around that section of the transcript.




MR FERGUSON:  I'm just - I couldn't quite ‑ ‑ ‑


JUSTICE ROSS:  Yes, but in any event, look, you can have a look at the transcript, if it goes beyond that you can say what you wish to say but I think the short point is there is no evidence before us at the moment about that.


MR FERGUSON:  I will.  I may come to that in any event.




MR FERGUSON:  Look, so beyond that, just if I could turn to the submissions of the CFMMEU of Mr Maxwell, just one point of clarification.  I think if I construed them correctly, Mr Maxwell took issue with the fact that the current provision provides a right, an election if you will.  I think in substance, with respect to Mr Maxwell, that that's misconstruing the operation of the current provisions although the term, "Elect", is utilised within the clause, it is in substance a right to request that is to be refused by the employer.  It's not a unilateral right to elect to convert in any sense.


JUSTICE ROSS:  I think, as I understand it, Mr Maxwell's putting that he sees that as a substantive difference between the right to elect under the existing award clause and to request - well - and the rights that are available under the statutory provision.




JUSTICE ROSS:  And you're putting that they're both conditioned by reasonable refusal essentially.


MR FERGUSON:  Yes, you've put it succinctly, your Honour.




MR FERGUSON:  Look, beyond that, I suppose I really want to focus by reference to question 27 of my submissions, if that makes sense.  I think your Honour succinctly nailed the position early on when you said that the employers generally support the proposition that the current provisions be deleted.  That's certainly our position but we oppose the alternate view that the provision should be redrafted so that there is some residual right that effectively operates after six months rather than after the 12‑month window.


Look, essentially, there's two limbs to our opposition to that if it pleases the Bench, the first and I suppose high point of our objection is a contention that you know, that sort of variation would not deliver consistency as contemplated by clause 48 on the basis that it reflect an approach to casual conversion which is you know, fundamentally and substantively different to the approach adopted in the act and you know, the obvious point I'd refer to is that the act contemplates that there's no right to conversion or to request that arises until after the 12‑month window where the award or the approach that's been proposed rather, would reflect a you know, fundamentally different approach to that.


Now, we say that that - adopting that wouldn't be consistent as contemplated in clause 48 and for that reason, that clause shouldn't be adopted.  Now, the force of that submission rests, I suppose, to a large degree on the manner we say, you know, the notion of consistency, if I can call it that, as utilised in the clause is - should be interpreted.  Now, we've dealt with the interpretation of the word, "Consistent", in clause 48 in quite some detail and carefully in paragraphs 47 to 57 of our May submissions and I'll just refer the Bench to those submissions rather than sort of taking you through the detail of that now because I'd propose instead to sort of focus on the second limb of our arguments against the provision of the limb.


And that second limb is essentially an argument that we say that the alternate course being proposed by the Full Bench isn't necessarily the Full Bench couldn't be satisfied but it's necessary to meet the modern award's objective in the sense contemplated by section 138 and therefore adopting that approach wouldn't also - would also mean that the award was not operating effectively as contemplated in clause 48 by virtue of the variation of clause 48 rather.


Now, in support of that really I point to five arguments.  The first is an appeal to simplicity and the benefits of simplicity.  Now, we say that there is significant benefit that would be derived from having the safety net deal with the issue of casual conversion wholly in the National Employment Standards, rather than adopting a sort of bolt on approach of dealing with it partly in the legislation and then partly in a particular award or individual different particular awards and we say that is consistent with that element of the modern award's objective that speaks to the need and to a simple and easy to understand modern award system.


Now, in addition to that, we say that in the course of this review, the Commission should when looking at the casual conversion issue, recognise the benefit of not seeking to implement the sort of patchwork of different casual conversion provisions that - in awards that supplement the NES in some different way, instead we say that there would be a real benefit to having as much consistency as possible across the award system in relation to casual conversion and again, that echoes that same element of the matters that need to be considered under the modern awards objective that speaks to, you know, the need for a simple and easy to understand system.


Now, I think - and this deals with some of the submissions that have been raised by the unions, I think, the second point we'd raise is that it's just not necessary to retain an element of the manufacturing awards casual conversion provision but given that the main reason that justified the development of that provision by the AIC and I recall Mr Miller did go to these decisions, the main problem that the Bench was there dealing with is now, in effect, addressed by the changed circumstances of the new National Employment Standard.  Now, we dealt with that decision as - or the ARC decision as it pertained to the then Metals Award in paragraph 216 to 224 of our May submission and I won't take you through it in detail but put simply, we say that the new NES provision now means that the employers have a meaningful pathway out of casual employment in circumstances that the legislature has deemed appropriate in the contemporary context.


Now, that addresses the problem that the Bench in ARC was looking at and that problem was in essence, at that time, the total absence of any limit on the extended use of casual employment which was then said to detract from the integrity of what was an award safety net set up entitlements to annual leave, sick leave, public holidays, et cetera.


Now, we say what we have now before the Bench is a very different set of circumstances and that requires a new assessment of what is necessary in the context of modern awards and we say when you look at that context, it leads to the conclusion that there is no compulsion on the Full Bench to try and preserve some element of a scheme that can't continue to operate in its entirety.  A fresh assessment, if you will, is required.


Now, I think from what I could hear, there was also appeals by Mr Miller to - the arbitral history of this provision, the thing I would caution the Full Bench, we've dealt with this in our submissions to a significant extent, is it's not the case that the merits of the six months has been the subject of any significant consideration, in my submission, during the period of the modern award's operation.  It's not been focussed upon in any particular deliberations to the point where it could be said that there's some compelling reason to retain its operation and in any event of course the changed legislative context would justify a departure from that, in our submission.


Now, the third argument that I would point to is really what we see to be the absence of any persuasive reason having been ventilated for pertaining in some respects, this six‑month element of the entitlement.  Now, obviously the Full Bench's reasoning quite appropriately doesn't accept the justifications for their proposed view out in any detail but from what I can decipher from the union's material, there seems to firstly be an argument that, well, these provisions are longstanding and they've got an arbitral history, they should stay.


I mean, the short point in answer to that is, "Well, we are dealing with a very different legislative context", and as I've already said, that requires a reconsideration of these issues and secondly, the extent to which the arbitral history of it justifies retaining these provisions, well, that shouldn't be overstated and secondly, just because the provision has been there for a long time doesn't mean that it should operate in perpetuity.


Now, I think another argument that - the crux of the argument that seems to be being advanced is, "Well, this is a benefit and employees shouldn't lose this, you know, beneficial arrangement."  Now, I think in response to that, the first thing I would say is that there is no statutory proposition or presumption or indeed prohibition against award entitlements being varied in a way that removes a beneficial element to employees.


In fact, we would say that the nature of this reform process is - or means that there will inevitably be changes that either employers or employees may not wish that there may be changes to the circumstance or to the conditions which effectively are detrimental relative to the current arrangements.  Now, we say it's not fair to adopt the approach that just preserves or cherry picks those elements that are beneficial to employees.  For our part there are elements of the manufacturing scheme and casual conversions that, you know, we would limit the loss of.


Obviously to use it or lose it type conversion request but the reality of this reform process, this important reform process is that the current regime will change.  Really the test should be, in our respectful submission, what is necessary to ensure that the modern award achieves a modern award objective and what is necessary in the award to meet the requirements of clause 48 and there is no compulsion in that context to maintain provisions just because they are more beneficial than the statutory regime.


Before departing from that proposition, the one point I would make is that if the Bench is concerned about the removal of an existing entitlement for an employee that has, for example, already had their entitlement to request a conversion under this award crystallise, I think it may be that that could be partly ameliorated through the provision of some advanced notice about the operation of any variation.  So that any such employee could make a request that they might be eligible to make at the moment before the variation is made.


The fourth argument I would make against the proposition that we should adopt this proposed or supplementary term, if you will, is that it will actually operate very differently to the current provisions.  It's not the case that it would effectively just, you know, retain the current award provisions, what it would do is effectively, after six months of course given, you know, certain employees access to the new regime which I think everyone would concede is different in certain respects to what is contemplated under the modern award currently.


Now, from the employer's perspective, there are certain elements of the new scheme that are more onerous than the award regime.  Now, just to give you a couple of examples, under the act an employer only has 21 days as opposed to four weeks to agree or oppose a request.  Now, the employer also has to provide a written response to that request and needs to set out the grounds and reasons if they propose to refuse the request.


Now, those are not features of the current manufacturing award regime and of course, I think this is a point that ACCI was referring to, that will pose an additional regulatory burden and administrative burden on employers.  It will have some adverse impact on employers.


Now, I think this then raises the issue of evidence - well, of course the Commission, given the nature of these proceedings, doesn't have any evidence before it that lets it properly assess the extent of that burden, right, and in that context, we say that the Full Bench couldn't be satisfied that it's necessary to meet the modern awards objective for that sort of new burden to be imposed upon employers because it just doesn't have the material before it that lets it properly take into account the matters referred to in section - or the necessary matters referred to in section 134(1).


So we say for that reason alone it should decline to impose this new obligation on employers.


JUSTICE ROSS:  Sorry, Mr Ferguson, what is the new obligation you're referring to there?


MR FERGUSON:  Yes, your Honour.  So there are - the point I was referring to here is that the scheme under the legislation operates differently in various respects to the scheme in the award.




MR FERGUSON:  And two points I was referring to is one, for example an employer under the act as opposed to the award only has 21 days as opposed to four weeks to agree to oppose a request.




MR FERGUSON:  And also under the act an employer has to provide a written response to the request and needs to set out certain grounds and reasons in that response.  Those aren't features of the award regime.


JUSTICE ROSS:  Yes.  So ‑ ‑ ‑


MR FERGUSON:  And - sorry, your Honour.


JUSTICE ROSS:  Sorry, you're referring to a new obligation for which we needed evidence to be satisfied, I was unclear about that.


MR FERGUSON:  Well, the point I was making is it's difficult to assess how onerous that obligation would be in practice without getting (indistinct) material before you.


JUSTICE ROSS:  The new NES obligations?


MR FERGUSON:  Well, no, if that - if you would adopt an approach of requiring that the residual right under the NES or the residual system, applied after six months when it doesn't ‑ ‑ ‑


JUSTICE ROSS:  I see.  Yes, thank you, I understand.


MR FERGUSON:  Yes.  Yes, you couldn't assess in that context what the burden would be.


JUSTICE ROSS:  Yes, I understand.


MR FERGUSON:  Yes.  And the other point and the final point I would make in relation to this issue is that there is of course this facilitative provision that other parties have referred to in 11.5(j) of the award which allows agreement between the majority of employees or an individual employee and the employer to alter the reference in the award clause from six months to 12 months.  Now, of course the approach that's being proposed by the Commission wouldn't allow for that element of the scheme to be retained.


As I said to you, it's only adopting a piecemeal attention of one beneficial element of the scheme and as we say, we - that sort of approach wouldn't be fair to employers.  So for all of those reasons and for the other relevant reasons we've canvassed in our material we'd say this alternative approach of trying to maintain that element of the Manufacturing Award shouldn't be adopted.  They're the submissions that I want to advance in relation to that issue other than to make the point that I think your Honour has already canvassed, President, that we'd obviously seek an opportunity to review any sort of provisional draft determination position in relation to this issue before a final determination was made.


JUSTICE ROSS:  All right.  Thanks, Mr Ferguson.  Mr Miller?  Or anyone else do you have anything briefly you wish to say in response?


MR MILLER:  Your Honour, thank you.  I would like an opportunity to respond to some of the propositions that have been put.  I am wondering if you might allow a brief adjournment to allow me to cover those submissions in response, or alternatively, I can file a short note in response by tomorrow if there is any difficulty.


JUSTICE ROSS:  No.  I don't want you to file a short note otherwise Mr Ferguson will want to file a short note in response and we'll be here all week or all of next week.  What we might do is you can take a moment to gather your thoughts and we can – well, firstly, see if anyone else wishes to reply to any of the points that AI Group or ACCI put.


MR MAXWELL:  Your Honour, just briefly, in regard to the submissions of the ACCI in regard to section 55 issues I just refer to the Commission to our written reply submissions where we deal with the issue of section 55 and section 56.


JUSTICE ROSS:  Thanks, Mr Maxwell.  What we might usefully do Mr Miller while you're giving some thought to what you want to do.  Mr Crawford do you want to say something?


MR CRAWFORD:  Yes, just one brief point, your Honour.  I wanted to make the point that if the Parliament did intend to effectively prescribe a code for casual conversion and that code being what's in the NES, it could have, for example, added the conversion provisions to the terms that must not be included in Modern Awards which are prescribed in section 150 of the Act onwards so that course has not been adopted.  The provisions are in the NES.  It's well-known to the Parliament obviously that awards can supplement the NES and we think all that's a clear indication that Parliament did not intend the NES provisions to be a code in relation to casual conversion.


JUSTICE ROSS:  All right.  Anyone else?


MR CRAWFORD:  Yes, your Honour.  A couple of very short topics.  There are two sort of points that stood out to me.  One was ACCI's point about supplementary terms.  The second, of course, was Mr Ferguson's construction around the meeting of consistency.  As you will know, your Honour, we took a different view from paragraph 22 onwards of our original submissions which we won't repeat.  Your Honour we will say, however, the ACCI view as to supplementary clauses and the AGI view as to their – what essentially boils down to their contention that something is different it's inconsistent is that if those two constructions were correct and were, essentially, taken to their fullest it would be almost impossible for any award to contain any clause that sat above the NES – if taken to the fullest – and for that reason we say those two submissions should be rejected outright.


The second observation that I will make is that as to Mr Ferguson's point about the burden of bringing forward the statutory scheme to six months, instead of 12, we would say that to the extent that the Full Bench is persuaded by that argument, that that argument actually does not affect the contention put forward by Mr Maxwell or the CFMMEU's solution, essentially.  In fact, given a multitude of available ways in which this entitlement can be saved I will sort of finalise my remarks by noting that none of the rebuttals we've heard from the employers strongly affect both types of proposition and I will leave it at that.


JUSTICE ROSS:  All right.  Thank you.  Well, just to give Mr Miller a little more time.  In relation to questions 28 to 32 of the Hospitality Award, on my note it appears that none of those provisional views are contested by any party.  If I am wrong about that now would be the time to tell me.  That would suggest that we don't need to hear from anyone in respect of the provisional views responding to questions 28 to 32.  Anyone wish to be heard about any of that?  No?  All right.  Mr Miller, are you ready to go?


MR MILLER:  Can I just have just a few more short moments, your Honour?  I do apologise.


JUSTICE ROSS:  No, no.  That's all right.  Look we won't adjourn.  We'll just wait.  It will only be a few minutes and you let us know when you're ready because that will probably conclude the proceeding and it won't be necessary to have – to go ahead with the reserve listing tomorrow at 9.30.


MR MILLER:  Yes.  I appreciate that.  Thank you, your Honour.  One moment.


JUSTICE ROSS:  That's all right.


MR MILLER:  Thank you for your patience, your Honours and Commissioner and to the other parties.  Look, I'll just make some brief responses – some brief comments and response to both the submissions made by ACCI and also AIG.  In relation to the submissions by the ACCI.  In relation to those submissions that related to section 55 of the Act, I would just point out that we continue to rely on our written submissions that were filed on the 16 June which I think dealt with that issue quite comprehensively.  I don't think there's anything additional arising that I need to respond to that isn't covered off in those submissions.


In relation to the submissions made about consistency we think that this is consistent and we rely on the ACTU's submissions that have been put in this review about the meaning of consistency to that extent.  In relation to the points made about section 134, in particular, as I understood the reference to be in relation to section 134 as it relates to the requirements and ensure that the Modern Awards is easy to understand and also the impact on the regulatory burden.  I think an Award term that is, for example, in terms outlined in the draft determination we filed this afternoon it would be pretty simple and easy to understand and certainly it's interaction with the NES would also be simple and easy to understand.


And in terms of the regulatory burden, for example, well under either of the two union alternate proposals it's really one additional conversion request.  So, in that context that's going to be a minimal additional burden particularly in the context where that burden already exists.  In particular, if the proposal that we put in the draft determination that we filed this afternoon, if that is what was successful, you know, that regulatory burden may well not be any greater than what is under the NES, given it is in almost precisely the same terms.  So, for example, if an employee converted under that term in many instances the burden would be minimal additional burden compared to the status quo.


In relation to just the point, finally, that was made about – well, it was put that the submission that I was referring to was the submission filed by ACCI in their reply submissions.  I think it was suggested that what I was referring to is paragraphs 43 and 44 and I can confirm that that's correct.  I agree that that's what I was referring to.  So, thank you for the assistance there.


Just briefly in response to the submissions by the Australian Industry Group, I think if I can respond to just briefly to what was – to the point that was made about simplicity.  You know, and the appeal to simplicity, proceeding on the basis of our draft determination that we filed and/or the first of the two alternate views put in response to provisional view question 27 so not that there's any difference there.  That is a simple solution.  It's in precisely the same terms of the NES so we think that that's the answer to that issue.


The AIG made some submissions about the decision regarding the Metal and Engineering Award and, in particular, how the reasoning in that decision is no longer applicable in light of the new NES Scheme and those submissions were made at length in their written submissions.


The problem with that submission is so – I mean the central turn of that submission is that the reasoning can no longer be said to justify the inclusion because casuals now have a mandate of casual employment which I agree with.  However, the submission ignores the fact that the AIC didn't only determine that it was necessary to ensure that casuals have some mandate of casual employment.  They relevantly also determined that it was necessary that they have a mandate of casual conversion after six months.  That was the appropriate timeframe that was that that was selected.


And in relation to the comments about – you know – allegedly no persuasive reason to retain the six-month entitlement I don't accept the question that what is necessary to achieve Modern Awards objective is necessarily reset by this review and the scheme in the Act.  As I traversed, in detail, in my oral submissions – you know – this is a course that has consistently been found to be necessary to achieve Modern Awards objective.  So, in our submission, to proceed on the basis of deleting that clause, we think it would first be necessary to make some finding that it is no longer necessary and, in our submission, that can't happen within the narrow confines of this review.


Of course AIG is welcome to file an application to vary the terms of the Award, or indeed, you know the Commission can obviously act of its motion to further review the operation of the casual conversion clauses and to the extent that that is what was being proposed earlier.  I don't dispute that that could happen and to the extent that the Commission requires assistance from the AMWU in terms of providing information about the means of employees that are accessing those entitlements we will obviously do our best to assist in that.  But the point that I make is decisions that a six-month entitlement is no longer necessary shouldn't happen without some further forensic – without taking a more forensic approach to that particular issue.  And that's more or less all I wanted to say in reply.  Thank you.


JUSTICE ROSS:  All right.  Thank you, Mr Miller.  Before we adjourn is there anything else anyone else wishes to say in respect of any of these matters?  No?  All right.  Thank you very much for your attendance and your submissions.  I can let you know that the IEU and AIS have reached a consent position in relation to a variation to the Teachers' Award.  We will publish that and provide any party with an interest in that with a short opportunity to comment.


Mr Ferguson, once you have a look at the transcript, if anything really excites your interest you have a short opportunity to file something about it and if anything arises the parties can comment on that.  All right.  Well, thank you very much for your attendance.  As I have indicated we will cancel the hearing for tomorrow and adjourn and reserve our decision.  Thank you.

ADJOURNED INDEFINITELY                                                            [4.04 PM]