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Fair Work Act 2009�������������������������������������� 1057457






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


Review of certain C14 rates in modern awards





9.35 AM, FRIDAY, 29 NOVEMBER 2019


JUSTICE ROSS:  Can I take the appearances please.  Someone's bumping the microphone interstate.  Would you mind just being a bit careful with what you're doing, thanks.  Can I take the appearances in Melbourne?  Just keep your seat, that's fine.


MR D MALBASA:  It's Malbasa, initial D, from the Manufacturing Division of the CFMMEU.


JUSTICE ROSS:  Thank you.


MR T CLARKE:  Trevor Clarke from ACTU.


JUSTICE ROSS:  Thank you.


MS S BROWN:  Brown, Sophie, appearing for Aurizon, Australian Rail Track Corporation, Brookfield Rail Pty Ltd, Sydney Trains and V-Line Passenger Pty Ltd, which if it assists the Commission I'll refer to as the rail employers.


JUSTICE ROSS:  Yes, I think that'll probably be quicker, thank you.  In Sydney?


MR S BULL:  Bull, your Honour, for United Workers Union.


MR S CRAWFORD:  If it pleases the Commission, Crawford, initial S for the Australian Workers Union.


MR B FERGUSON:  If it pleases the Commission, Ferguson, initial B, for the Australian Industry Group.


MR R S WARREN:  Warren, initials R S for AFEI.


MR N WARD:  Ward, initial N for ABI and the NSW Business Chamber.


MR N CHESHER:  Chesher, initial N for the MEAA.


MR N KEATES:  Keates, initial N for the CFMMEU MUA division.


MR N GREALY:  Grealy initial N with Mr Howe, initial S, for the AMWU.


JUSTICE ROSS:  Thank you.  I've issued two statements in respect of this matter, one dated 28 August and the other more recently dated 25 November this year.  I want to go through the issues identified in paragraph 16 of the statement of 25 November.  I then want to outline as part of dealing with that, a proposal in relation to the next steps in this process and then to invite comment on that.


If I go through the issues.  The first issue you'll recall or perhaps those of you who weren't here on the last occasion, you'll recall that Ai Group had made a submission raising a jurisdictional objection to the proposal to refer some of these matters to a Full Bench for review.  They were then given an opportunity - they clarified that submission at the last conference and they then filed a submission on 11 November.


As I understand it, Ai Group no longer contends that the Commission does not have jurisdiction to conduct the proceedings in the manner proposed.  Is that the case, Mr Ferguson?  Do you agree with that analysis?




JUSTICE ROSS:  I note that AFEI's position is less clear and I just want to confirm with the AFEI representative because their submissions seem to be largely supportive of Ai Group.  Do you adopt the same position as Ai Group in that you do not contend that the Commission does not have jurisdiction to conduct the proceedings in the manner proposed?


MR WARREN:  Your Honour, that is not the position of AFEI.  AFEI still maintains the issue with respect to jurisdiction and as contained in paragraph 9 of its written submissions.


JUSTICE ROSS:  Right.  Well the jurisdictional issue then will need to be determined in due course before any arbitral power or power to vary any award is exercised.  So I'll bear that in mind and return to that issue.


In issue 2, it's really reflecting part of ABI's submission, that is when the Commission's acting on its own motion and this is without prejudice to AFEI's more fundamental point, the Commission acts of its own motion it is, I would have thought this was obvious, required to afford procedural fairness to parties who may be affected by a determination and because of the nature of the own motion process that may, as ABI submits, require a more involved and iterative process than might otherwise be the case.


A simple example, if the Commission is acting on the application of a party then the party clearly articulates the variation they're seeking and the grounds in support.  That won't be the case, at least not initially, usually in the Commission's own motion power.  So there may need to be a more iterative process as ABI suggests.  Does anyone have a different view?


MR CLARKE:  Can I just say, your Honour, from the ACTU's perspective, noting that the submissions around the iterative process were aligned to the procedural fairness point in a sense.




MR CLARKE:  We did make some effort to speak with our own affiliates before today's conference so that the other parties - - -


MR WARD:  Sorry, your Honour, we can't hear Trevor speaking.




MR CLARKE:  Sorry, I didn't have the microphone in front of me.  So noting that the procedural fairness point was the linchpin of the iterative process point, we had some discussions with our affiliates prior to today, so at least the Commission could be informed at an early stage of the type of outcome that the unions would be seeking from these proceedings.


JUSTICE ROSS:  Right.  So the unions collectively have a view about these 14 awards and what outcome is being sought?


MR CLARKE:  Yes.  It's not an identical outcome for each award.




MR CLARKE:  But it's - I suppose it's an inchoate description of the type of outcome they would want for each award.


JUSTICE ROSS:  Well that being the case and having regard to AFEI's jurisdictional objection, why doesn't the ACTU coordinate applications on behalf of each of the affiliates giving effect to the outcome they want?


MR CLARKE:  Well we're in the Commission's hands in relation to the process that it wants to adopt but I had thought that perhaps putting the other parties and in particular AFEI on notice of that might effect their views about whether or not the matter can proceed as originally conceived.


JUSTICE ROSS:  Yes, well I can check with that.




JUSTICE ROSS:  Can I go to AFEI.  You've heard what Mr Clarke has said.  Do you maintain your jurisdictional objection to the Commission exercising own motion powers, given that the unions will articulate the outcome that they're seeking?


MR WARREN:  If there was articulation of that, that would resolve I would have thought the AFEI's jurisdictional problems.


JUSTICE ROSS:  All right.


MR WARREN:  In a formal sense.  We would need the unions to say this is what we are claiming.  This is what we believe is an appropriate outcome and put - yes, well - I'm sorry.


JUSTICE ROSS:  No, no, that's fine.  No, by all means respond.


MR WARREN:  Yes.  The proposal is that we would inform you of - you know, it might not be the precise words, you know, before Christmas but of the outcome or of the alternative outcomes we'd be seeking, and that of course would be subject to the usual sort of relief, not limited to claim type provisions that govern the Commission in any event where they might say well, excuse the short cuts here, you've run a reasonable case but not 100 per cent, you can't have everything you want but your evidence takes you X far but not 100 per cent.


JUSTICE ROSS:  Or it may be that there's a different solution that presents itself to your particular matter and I want you to think about this.


MR WARREN:  Yes.  Yes, that's the idea.


JUSTICE ROSS:  All right.  Well look it does - - -


MR WARREN:  Your Honour - - -




MR WARREN:  I'm sorry to interrupt, Warren from AFEI again, but could I just emphasise that we would anticipate the unions then putting on an application.  And if that be the case that would certainly dissolve any jurisdictional issues that we have, as opposed to the Commission's own motion, it would be an application one would assume under 158.


JUSTICE ROSS:  Well they can agitate an application in the context of the review.


MR WARREN:  However they agitated their application it would need to be an application and that would resolve our - this is what I thought that we were - they were heading towards it I see.


JUSTICE ROSS:  No, that's not what they were heading towards.  Look, I think it's not as efficient but you'll need to make a decision about whether you want to have an argument about the own motion power or whether you want to simply cut to the chase as it were and if you - given that you now have a view in respect of each of these awards, simply file an application and then the Commission wouldn't be proceeding of its own motion, it would be proceeding on the application.  Do you have - just in relation to that, do you have any timeline of when you think that might be?  Are we talking sort of end January for that process or earlier?


MR CLARKE:  We wouldn't be thinking to commit it all to writing before Christmas.  We were in a position if there was any interest in going down that course to outline verbally the nature of what it was we were seeking in relation to each award today, perhaps with the exception of one.


JUSTICE ROSS:  Yes.  No, I think that would be useful.  We'll come to that in due course.


MR CLARKE:  Yes.  Yes, I think that's all I need to say on that point, yes.


JUSTICE ROSS:  Well that deals with issue 1.  And 2, as to the list of awards in categories - issue 3, the list of awards and categories 4 and 5, is there any issue arising in relation to that?


MR FERGUSON:  Yes, your Honour, Mr Ferguson.




MR FERGUSON:  One issue, category 5, the Air Pilots Award.




MR FERGUSON:  There are two classifications that are referenced.  It seems the second:


An aerial application pilot with less than 1000 hours of flying experience.


Probably falls into the first category, in that once you have a certain number of hours experience you transition out of that classification, but there's no clear period under which that occurs.  So I wonder whether it's more accurate to list the award to list the award in both categories.


JUSTICE ROSS:  Any objection to that?  No?  All right, we'll list the award in both.  Any other comments on the list?


MR CHESHER:  Your Honour, it's Chesher, initial M, from MEAA.  Mindful of your statements of 25 November and 28 August, both those statements correctly speculate in our opinion that category 5 in your statements, that the Broadcasting, Recorded Entertainment and Cinemas Award does not have employee classifications at Grade 1.  That being C14.  It's our submission, your Honour, that the BRECA not form part of this review.


JUSTICE ROSS:  Any opposition to that proposition?  No?  All right.  Well in any event as we're moving forward, Mr Chesher, I'd be acting on applications so there'll be no application in that award so - and no review as originally envisaged, so that should take care of the problem.


MR CHESHER:  Yes, all of what I've said is potentially redundant, your Honour.


JUSTICE ROSS:  No, that's all right.  Anyone else?


MR KEATES:  Yes, your Honour.  Keates, initial N, for the CFMMEU MUA division.  We queried the Port Authorities Award 2010, that's currently in category 4.  We think it might be more properly in category 5.  It has some skills that are quite discreet which could otherwise continue permanently performing at that level.  For example - - -


JUSTICE ROSS:  Yes.  Sorry, Mr Keates, yes.


MR KEATES:  I was going to add both of them but I'm happy for you to move on to objections.


JUSTICE ROSS:  No, no, no, that's fine, I'm sorry.  Keep going.


MR KEATES:  I was just going to say an example would be operating small plant or operating a forklift of up to 10 tonne.


JUSTICE ROSS:  Right.  Anybody else?  No.  Look, I think the categorisation of categories 4 and 5 has probably been overtaken by events inasmuch as at the moment it looks like there will be 13 awards that will be the subject of this process and there'll be the subject of application.  Which category they fall in is less relevant now that we're not doing a review.  It may be that that effects the programming of the matter and whether they're grouped together but we can worry about that once the applications come in.


For the moment, are there any other awards other than the ones listed at attachment 1 to 25 November that are to be the subject of any applications at this time?  No?  All right.


MR BULL:  There's one matter which I might just foreshadow.  It's Bull for United Workers Union.  We haven't made a decision about this and in a sense this variation is outside the scope of this particular review because of the nature of the level 1 classification or rather the remuneration of the level 1 classification in the cleaning award.  It's outside the 60 per cent benchmark, but we're giving some consideration to the variation relative to that.


JUSTICE ROSS:  When you say this application, what application are you talking about?


MR BULL:  Well the Level 1 in the Cleaning Services Award doesn't have a transitional - we say it might be appropriate to have a transitional period.


JUSTICE ROSS:  Well that's something you can make an application about.


MR BULL:  I'm just foreshadowing it.  We haven't made a decision yet and obviously if we were to make a variation it would be, we would say, appropriate that this process would be an appropriate place for it to sit.


JUSTICE ROSS:  All right.  The next issue deals with what transitional period is proposed in relation to categories 8 and 6.  In an earlier submission ABI categorised these awards into two categories.  One where there was a transition process albeit no transitional period specified and the proposition was that those awards were competency based and that they put them in one category and they put the other awards in another category where they weren't subject to the completion of any training or anything else.  It just appeared that there was no transitional process or transitional period.


Let's hear from Mr Clarke outlining if you can have regard to that proposition and I see from some of the union replies to the first statement that there's a suggestion that those awards which have some competency process also specific some time period.  Now it may be that time periods - it might be about how one expresses that.  It may be that the completion of competencies is not a strictly quantifiable exercise but everyone will complete them within X period of time, and it may be that the parties can consider some indicative period in which it is expected that those competencies would be completed.


The reason I raise that is of course if you put in a time period and the person hasn't met them by that period, it may lead to the termination of their employment within the qualifying period.  So it may not be desirable to have too rigid a process.  Also taking into account ABI's submission that well, there's a process and implicit in that is that some people will be quicker than others so it may not be - so some form of indicative period which gives people a broad guide as to when it's expected they will transition within a certain period may be one way of addressing those matters.  Let's hear from Mr Clarke about the outcomes that are being sought in the various awards and then we'll see where we go from there.


MR CLARKE:  I think the unions themselves are best to articulate that proposition but I will say this.  In relation to the competency point, there are shades of difference in the way that's expressed.  Some say that somebody undertakes an induction and an induction generally doesn't have any assessment or anything else associated with it, so I'll just sort of make that point.


JUSTICE ROSS:  Yes.  I think that's the difference between the AMIEU and the AWU submissions on the one hand where they say three months and the AMWU where they were referring to the induction and they say 38 hours but, yes, all right.  Well how do you want to get people to articulate what they're proposing.  Who'd like to go first?


MR MALBASA:  Yes, well this is from the Manufacturing Division of the CFMEU and it's answering question number 5:


Does the C14 classification levels in these awards provide a fair and relevant safety net?


So it is argued that C14 classification with no outer limits of operation, that is no transitional period to higher classification do not represent a fair and relevant safety net for those employees.


JUSTICE ROSS:  You can take it that I understand that.




JUSTICE ROSS:  Because that's what's in your earlier submission and the other unions have all taken the same view.  What I want to know at the moment is what do you say should be the reasonable transition period?  In other words, how should these awards be varied so that they do provide a fair and relevant safety net, and which awards do you have an interest in doing that in?


MR MALBASA:  Yes.  So for us it is the Dry Cleaning Award and I think ideally what we would want to do is have some sort of a work value determination done by our compliance officers who go onto these sites and do the work value assessment and can hopefully report early next year about the C14 classification level in our award, whether it's - - -


JUSTICE ROSS:  So you don't know what your application is at the moment.  Is that what the short version?


MR MALBASA:  Essentially - well - - -


JUSTICE ROSS:  No, that's fine.


MR MALBASA:  Your Honour, I mean I'm here filling in for Vivien Wiles who's left me with a file and - - -


JUSTICE ROSS:  No, no, that's fine.


MR CLARKE:  I might say that the dry cleaning and laundry award, this is not the only issue with that classification as was articulated in the earlier submissions.




MR CLARKE:  In that it sort of says everything else this rate.  So it has a classification structure that has levels assigned to tasks and then it's got everything else minimum wage.


JUSTICE ROSS:  Yes.  Well that's - okay, so the union will give some thought to whether it intends to pursue a work value claim that might be broader than the base classification and we'll wait until we get the application.




JUSTICE ROSS:  Let's go to the unions in Sydney.  Mr Crawford?


MR CRAWFORD:  Your Honour, as we've indicated in our written submission we think a three month transition period as an outer limit should apply in all cases, but in particular noting the position of the AMWU and some comments from the Commission this morning. We would like an additional period just to reflect on I guess firstly the wording of any proposed variation and secondly, whether a shorter transition period might be appropriate in some of our awards.


JUSTICE ROSS:  Which awards have you got an interest in?


MR CRAWFORD:  Cement and Lime, Concrete Products, a minor interest in Meat, Oil Refining, Quarrying, a minor interest in Rail and Stevedoring. The Funeral Industry Award, the Sugar Industry Award and we have coverage of laundries but this case appears to just concern the dry cleaning industry, so probably not that award.


JUSTICE ROSS:  Thank you.  Mr Bull, is there anything you want to add to what you've already said?


MR BULL:  Well, I would say that we're positive three months and that's the outer limit.  My comments here are directed to the Dry Cleaning and the Funeral Award and both the level one classifications in those awards, I think are properly described as contentless.  They don't really describe a job; they say you can do anything else which isn't in the rest of the classifications.


We think that these classifications should effectively be turned into introductory positions, something akin to what's in the Hospitality Award where the classification is but training and going to the next step, so to speak.  That is the appropriate way, we say.  That in relation to these two awards the level one classification should be varied.


I would just make the observation that in a strict sense, I'm not quite sure how changing the classification, when the current classification is, in a sense, contentless, into an introduction or training classification, is a matter involving work value.  Any variation is not going to change the base rates of the classifications or the relativities between the classifications.  So, I don't know whether raising this issue of work value is creating a problem which in reality, doesn't exist.


In relation to both these awards, we're talking about adults working full time, going from the $41 500 a year to a little over $42 000 - $42 500 a year.  We think they should be classified introductory.  I mean, perhaps it's easy in relation to these awards because the classifications are credibly described as meaningless.




MR GREALY:  Thank you, your Honour.  We put forward a proposed period of 38 hours or once an individual attains the requisite competency.  That's in respect of the Oil, Quarrying and Rail Industry Awards.  That reflects our position, which is that the C14 rate in those awards should be viewed truly as an introductory rate while a worker is undergoing induction and training and orientation.  It's a very much a preliminary rate that should be payable during a limited period and that's a position that we've put in our written submissions.


JUSTICE ROSS:  Thank you.  Can I go to you Mr Robb in Adelaide for the AMOU?


MR O'LOUGHLIN:  Commissioner, it's Marc O'Loughlin for the AMOU.  Our position hasn't changed; it's written submissions, your Honour.  We say that three months is the outer limit and that anything else really is resulting in keeping these low paid workers on a wage which just will affect their value of work.


JUSTICE ROSS:  All right.  Is there anything further from the MEAA or Mr Keats in Sydney?


MR KEATES:  From Mr Keates in Sydney, your Honour, my client's got interest in two awards, the Port Authorities Award and the Stevedoring Industry Award.  In light of the plan that we have moved to an application-based process, I might flag that my union would say that the current awards are in sufficient terms and an application would not be made.


JUSTICE ROSS:  All right, well perhaps you can confirm that in writing and that will mean we won't be waiting for an application.


MR KEATES:  We can do that your Honour.  I note that some comments have already been made about the Stevedoring by the AWU and we might still have some involvement with that, depending if that's pursued.


JUSTICE ROSS:  It might be an issue that you have a conversation with the AWU about before finalising your position.


MR KEATES:  Certainly, shall do, your Honour.


JUSTICE ROSS:  Mr Chesher for the MEAA?


MR FERGUSON:  He's left, your Honour.


JUSTICE ROSS:  I guess having taking the broadcasting and recording out.  All right.  Can I then look at the process from here?


MS BROWN:  Your Honour.




MS BROWN:  Would you like to hear from the Rail Employees' Union?


JUSTICE ROSS:  I don't want to hear from the employees at the moment.  I'll come back to - once I outline where we'll go from here and then you'll be able to deal with all of it.


MS BROWN:  Thank you, your Honour.


JUSTICE ROSS:  As a result of what's fall during the course of the conference, the unions will make application as they see fit to vary the awards in the manner they propose.  I might ask Mr Clarke to coordinate that process and let my chambers know when it's complete.  Once all the applications are in that you expect to be made, if you could send us a note to that effect and only at that point will I have a further mention in relation to the matter, rather than setting down a mention at the moment.


As to what the Commission will do, once those applications come in, if I can go to ABI's submission of 27 September.  At paragraph 4.2(vii), they note that:


If the Commission were minded to explore a work value determination, it would be prudent to consider three things:


1.    What pre-modern award was the modern award based on?  (There might be more than one - I might interpose there.)


2.    Whether the structure of that pre-modern award reflects that in the modern award.


3.    Whether there was any recent work value assessment done for that pre-modern award.


Can I indicate that once the applications are made, the Commission will undertake that work and put out background paper in relation to it.  It will set out all of the pre-modern awards that the modern award was based on and their classification structures.


To the extent that we're able to, we will also identify whether there's been any - I'm not sure how recent, recent is.  But we can certainly say whether since 2010 there's been any work value assessment.  If we're able to find any arbitrated decision, I suspect the answer is going to be no in almost every case.  We'll make some enquiries.  That won't preclude any party from - as they no doubt will have been party to the work value assessment, their organisations would have, from bringing something forward.  We'll do some background work once we know which applications are being pressed.  At that point, we would list the matter for mention and then see how we go.


Now, can I just go and see if there any questions about the process, any concerns or any issues.  Let me go to the employers first and then I'll come back and circle back to the unions.  Yes, Ms Brown.


MS BROWN:  Thank you, your Honour.  No concerns about the process at this point, but I'll speak to the proposed transition period in relation - - -


MR WARD:  We can't hear that.


MS BROWN:  Is that better?




MR WARD:  Yes, thank you.


MS BROWN:  Thank you.  I'll be speaking to the proposed transition period in the - the question around that in relation the Rail Award.  Your Honour, we've heard this morning the proposed periods - we've had one submission being 38 hours and another submission being an outer limit of three months, specifically in relation to the Rail Award.


The Rail employees' position on this is that an outer limit of six months is the transition period that is preferenced.  The reason being, as you might expect, the unique nature and the stringent safety requirements of that industry.


JUSTICE ROSS:  Look, I think what will inform the rail matter, because it's framed as undertaking and successfully completing standard induction training, at some point the Commission is going to want evidence about what does standard induction training mean in the rail industry.  If we take a period of time, say 12 months, how many employees in the various interests that you represent, how many employees of those employers have undertaken the process, and how long did it take them to complete.


That's happily one that's probably going to be able to be assisted by direct evidence given there's a limited number of employers.  It's more challenging in some of the other awards where you've got multiple employers.  But if you can bear that in mind that at some point, if there's still an issue between you and I'd encourage you to have discussions with the two unions.




JUSTICE ROSS:  And perhaps share some information with them and explain the respective positions.  It may be that you reach a consent position on it.  But if you don't, at some point, we're going to want to look at the factual matrix.


MS BROWN:  Thank you.


JUSTICE ROSS:  Can I go to the employers in Sydney?  Mr Ward?


MR WARD:  Yes.  Your Honour, we're obviously very comfortable with how things are panning out.  Can I just indicate two things?  In relation to the Cement and Lime Award and the Quarry Award, we've indicated to the AWU that we will talk to principal parties in that industry and we will come back to them with what is the indicative period normally required for a person to be deemed as competent in the level one for both of those awards.  Our inclination is to follow the indicative path with that and we'll have some discussions with the AWU on it.


Concrete Products is a little more controversial in that while it relates to a relatively simple induction process, level one is also the classification for a general labourer.  So, we'll need to discuss that with the AWU in a little bit more detail.  I'm mindful that there probably are no employers in Australia under the Cement and Lime Award that don't have an enterprise agreement.  That can't be said for the Quarrying Award and the concrete products industry is quite fragmented, although it does have a small number of very large participants.




MR WARD:  In terms of actually understanding from an evidentiary perspective what occurs, that shouldn't be too complex.


JUSTICE ROSS:  Thank you.  Mr Ferguson?


MR FERGUSON:  No questions or concerns your Honour; we're comfortable with that process.


JUSTICE ROSS:  All right.  Mr Warren?


MR WARREN:  It appears that the application process will be proceeded with and that should deal with the initial issues that AFEI have.


JUSTICE ROSS:  All right.  Mr Clarke?


MR CLARKE:  Just on the issue of what might be done by the Commission, I'd anticipated some of the issues that you have referred to by way of a background paper.  I started going through the process of trying to find what happened in awards before award simplification in 2000, and found that aside from looking at the indexes of the CARs, there really wasn't any way to do it anymore, unless you perhaps - so I made enquiries with the Fair Work Ombudsman about what resources they have, because they were gifted the Wage Line database which was hyperlinked.




MR CLARKE:  They also used to have this (indistinct) thing that you perhaps still have here.


JUSTICE ROSS:  No, but I remember it.


MR CLARKE:  In any event, they undertook to let us know what was available and provide some access and it would be them, being a government agency would ultimately say, whatever we provide to you, we have to provide to the others.


JUSTICE ROSS:  Of course, yes.


MR CLARKE:  So, I'm just sort of letting you know, we'd also made those enquiries.  Another enquiry we suggest that might be fruitful, is an enquiry of - I think it would now be the Attorney General's Department.




MR CLARKE:  Picking up on chart 2.1 of their submission to last year's annual wage review in which they broke down people who received the award, the national minimum wage rate as at that time and were able to draw a distinction between those who got it because they were on the national minimum wage order, and those who got it because they were covered by awards.


JUSTICE ROSS:  Are they able though - well, I'll come back to the request.  I wonder whether they're able to do that by award or ANZSIC code though?


MR CLARKE:  Well, the public information from EEH does not allow you to do that.  It's an area of interest I suspect, that most of the major associations would pursue to get that data looked at.  Probably at around a cost of $8000 to $12 000 each.




MR CLARKE:  But you, as the Commission probably acquired a fair bit of the data set for the purposes of the annual wage review, in any event.


JUSTICE ROSS:  Yes, I'm not sure.


MR CLARKE:  Or at least the Department would have.


JUSTICE ROSS:  Look, I think there would be utility in all parties knowing how many employees are we talking about in each one of these awards that's on this rate, is the short version.  Or we provide a proxy for that.


MR CLARKE:  My thinking was that it had relevance to the question of a fair and relevant safety net to know the extent to which the rates were actually paid.


JUSTICE ROSS:  Yes, well I suppose it really goes to parties can use it however they see fit.  But for the moment, getting the data would be - yes, I can see the utility of that.  Well, can I get you to put in writing the request and what it is precisely you're seeking and then we'll publish the request and we'll make enquiries about what we can obtain and see how we go with it.


MR CLARKE:  Yes, certainly.


JUSTICE ROSS:  Look, I mean I think to some extent, I'll need to wait until I get the applications because I don't see any utility, especially if there's a cost in us requesting data in respect of awards or areas that are not the subject of an application.




JUSTICE ROSS:  That may affect the timing of it, but we'll be able to make enquiries at least in the meantime about what's available and how we could get the data.  All right?




JUSTICE ROSS:  Is there anything else?


MR CLARKE:  No, they were just the matters I wanted to raise.


JUSTICE ROSS:  Any other union organisation, wish to say anything?  No?


All right, so to be clear, we'll proceed on this basis.  The unions will make the applications that they've foreshadowed.  Mr Clarke will advise me when that process has been completed, that is, there are no more applications expected in respect of the awards that were initially foreshadowed as a review.  Once he does that, I'll convene a further mention or conference to discuss how we proceed.


We'll also, based on the indications given this morning, start to collect the data that's been foreshadowed - or the issue as raised in ABI's earlier submission.  We'll receive Mr Clarke's information about data requests based on microdata from the EEH and we'll process that and I'll be able to give you an indication of where we're up to with that when we come back for the next conference.


In the meantime, I'd encourage the parties as ABI has outlined that they'll have some direct discussions with the unions concerned and the rail employers as well.  Where you have at least propositions on the table and you've got a reason for the course you want to adopt, I'd encourage you to have bilateral discussions and that may result in a consent position that can be dealt with relatively quickly. So, give some thought to that.


But at this stage, I won't set a date for a further conference.  I'll await the applications and the advice of the things finished.


Anyone else want to say anything?  Any other questions?  Everyone clear about the process?


MR WARD:  Thank you, your Honour.


JUSTICE ROSS:  All right, thanks very much.  I'll see you at some stage in the future.

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