Epiq logo Fair Work Commission logo






Fair Work Act 2009                                       1058324






s.157 - FWC may vary etc. modern awards if necessary to achieve modern awards objective


Application by

Clerks—Private Sector Award 2010 






JUSTICE ROSS:  Good morning.  We might get underway.  This is matter AM2020/98.  The appearances I have are Ms Ismail for the ACTU; Mr Izzo and Ms Lawrence for ACI; Mr Rizzo for the ASU, and I had Mr Ferguson for Ai Group but is - are you for Ai Group, Ms Bhatt?


MS R BHATT:  Yes, your Honour, I'm appearing with Mr Ferguson.


JUSTICE ROSS:  All right.  Yes, I see Mr Ferguson now.


MR B FERGUSON:  Yes, sorry, I had to - - -


JUSTICE ROSS:  No, that's all right.  I have received correspondence from Mr Ferguson earlier today, indicating an agreement in principle to the variations that are set out in the correspondence.  It indicates that the proposed draft determination was still being reviewed by the parties and that the parties would briefly speak to the proposed changes at the conference and seek guidance as to the most efficient way of progressing this aspect of the proceedings.  Well, let's just, if we can confirm that the draft determination reflects the agreement of the parties and then the parties can briefly say what they wish to say about it.  And then I can give you some guidance about how we might proceed with it.


MR FERGUSON:  Yes, thank you, your Honour.  I might lead off.  As I understand it, and the parties will clarify this, I believe there is now a level of consensus around the draft determination that was provided to you.  There is one minor issue which is not dealt with in the draft determination but it's a potential issue relating to the wording of i.1. of the existing schedule that the parties have discussed this morning.  They are of the view that we might be able to refine that provision.  We are going to have some discussions today and potentially come back to the Commission if we do propose any variations to it.  But that's not a change we're seeking now.  As I understand it all of the elements in the determination are now agreed, or not opposed - not opposed, I might put it.




MR FERGUSON:  If it's helpful I am happy to explain in broad terms what the elements of the determination are, your Honour.


JUSTICE ROSS:  There's no need for my benefit, Mr Ferguson.  I've read through the proposed changes and compared them with the current schedule and the award.  I'm sure there is a simple, logical answer for this but I notice you've got flexible starting and finishing times.  This is proposal E.




JUSTICE ROSS:  1.2, 5.2.1(e), proposed flexible start and finish times for part-time employees.  Is there a reason it's confined to part-time employees?


MR FERGUSON:  Yes.  The award provisions relating to part-time employment are very prescriptive in terms of the requirements.


JUSTICE ROSS:  No, no, I understand why you would make the change for part-time employees.  I suppose I'm wondering whether any change is necessary for full-time employees.


MR FERGUSON:  It doesn't strike me that it is because there is no requirement under the award to necessarily reach agreement in writing on the precise start and finish times and engagement, or to reach an agreement each time, they've said.  So the parties can do that themselves, if you will.


JUSTICE ROSS:  Yes.  I follow.


MR FERGUSON:  Yes.  The variation is about removing some of the restrictions in the award that might not be appropriate.


JUSTICE ROSS:  Yes.  No, I see.  So full-timers can work really at any time between the spread, they could start and finish?


MR FERGUSON:  That's right, and it's regulated otherwise way through the award but there's no barrier to parties reaching and agreement.


JUSTICE ROSS:  No.  No, all right.  Thank you.  All right, is there anything else any of the other employer organisations want to say before I go to the ACTU?


MR IZZO:  I think nothing other than that we are supportive of the determination being made, your Honour.  And so just confirming that's the position of the Australian Chamber.


JUSTICE ROSS:  All right, and Ms Ismail?


MS ISMAIL:  Thank you, your Honour.  The employers are correct that the draft determination reflects a level of consensus.  We did only get a final copy of the determination late yesterday afternoon but having said that, it's picking up issues that have been discussed over a number of days.  However we think a couple of more hours are needed for us to go through and just make sure there are no issues that need to be ironed out from our end.  But we would be thinking that we would be in a position to sort of finalise that later today.


JUSTICE ROSS:  All right.  Mr Rizzo, anything from you?


MS ISMAIL:  Yes, thank you, your Honour.  I'm in accord with the submission from the ACTU and the employers.


JUSTICE ROSS:  All right.  Look, I wonder if this might be the best way forward.  I'm working on the assumption that because the draft determination has got 'December' on it that you want it done sooner rather than later.  I will need to give some thought to the Full Bench arrangements for it because I've currently got a five member Bench constituted, and trying to get five Members to focus on something in the week before Christmas can be challenging.  But I think the best way forward would be for you to file, depending on whether the union's position is consent or not oppose, however one wants to frame that, but if there was a joint Ai Group application to vary, setting out the grounds, the determination, if you can get that in today, once Ms Ismail and Mr Izzo have had the opportunity to confirm that they don't have any issues with the draft determination, and you might discuss the application with them insofar as it seeks to characterise their position, whether it's agreement or whatever their position might be.


If you can get that in by 4 o'clock then I'll endeavour to get a statement out this evening or early tomorrow morning expressing a (indistinct) view in relation to the application, giving interested parties probably until the Tuesday - or Monday or Tuesday close of business.  And if there's no opposition then the determination will take effect.  So it will be that sort of process, I think, unless anyone has a preference for anything more elaborate. I think that's probably the simplest way of dealing with it.


And you were also after a conference in mid February.  That's no problem either.  It would probably be Tuesday the 16th but I'll check that and we'll send out a notice about that tomorrow, as well.  So just check your own calendars if that's a particular problem.  For me it can be any time from the Tuesday on, that week, I think.  All right, but are you comfortable with that as a way forward?


MR FERGUSON:  Yes, your Honour.


MR IZZO:  Yes.




MR FERGUSON:  The application grounds would reasonably be succinct unless the Bench prefers - - -


JUSTICE ROSS:  No, no, I think that's fine.  You can rely on the previous decisions, and really it goes to the workability of the clause.  And as I understand it, it's also to provide you with the further opportunity of continuing discussions in relation to, you know, what might happen after 30 June.


MR FERGUSON:  Precisely, your Honour.  Thank you.


JUSTICE ROSS:  All right.  Ms Ismail?


MS ISMAIL:  Just a minor thing.  The week of the 16th is not good for me, I've got a board meeting.  But the week of the 23rd is quite free so - - -


JUSTICE ROSS:  All right.


MS ISMAIL:  But we can discuss that later.


JUSTICE ROSS:  Yes, sure.  I'll have a look at that week, yes.  Yes?


MR IZZO:  Your Honour, just one very minor matter.  I am instructed just to raise this for the sake of completeness.  The Commission had released an updated document in terms of the research links, or kind of the reference list that the Commission has been compiling for the benefit of the parties, which we're most grateful for.  I just wanted to note that ACI is continuing to review that.  It is possible we may have some additional research publications we wanted to add but we're still kind of trawling through available research and I think there had been some period for comment previously.




MR IZZO:  I just wanted to note that we may be looking at some point in the coming weeks, just to send a communication to the Commission about the research list, whether it be adding matters or seeking clarification.  And I just wanted to flag that we were likely to do that, and I hope it wouldn't in any way cause inconvenience.  But I just was instructed to raise that.


JUSTICE ROSS:  No, no problem.  If it's any consolation, I'm wading my way through the list, as well, and I've not read all the material on it.  I think to some extent, Mr Izzo, it's been a bit overtaken by events.


MR IZZO:  Yes.


JUSTICE ROSS:  And that may also - we'll still do the report of the survey but I think the last report I had was, we had about 140 responses or thereabouts, so I think these are issues that we can revisit in February.  I wasn't planning on a detailed review of the research reference list any time soon, particularly as now the schedule looks like it will be operating till the end of June.


MR IZZO:  Thank you.


JUSTICE ROSS:  Nothing further?  Well, I'll await your application and then we'll take the steps.  I don't mean this to be unpleasant but I'm hoping this is the last time I see you before Christmas.  If it is, I hope you have a good break and no doubt I will see you all in the New Year.  Thanks, very much, see you.


MR IZZO:  Thank you, your Honour.


MR FERGUSON:  Thank you.


JUSTICE ROSS:  All right.

ADJOURNED INDEFINITELY                                                          [10.13 AM]