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Fair Work Act 2009                                       1058266






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


Clerks—Private Sector Award 2010 







JUSTICE ROSS:  All right.  We'll commence the conference in respect of matter AM2020/98.  I'll run through the appearances.  I have Mr Rizzo for the ASU, Mr Ferguson for Ai Group, Mr Izzo and Ms Lawrence for ACCI and Ms Ismail for the ACTU.  Have I missed anybody?  No?




JUSTICE ROSS:  I've received a document from Mr Ferguson that's been forwarded to each of you which has in muck up some relatively minor changes to the survey document that was distributed earlier.  Is there anything - I don't think you need - it's self-explanatory, Mr Ferguson, I don't think you need to say anything about it.  Mr Rizzo and Ms Ismail, have you - do you have any comments you want to make about those changes proposed by AACI and Ai Group?


MR RIZZO:  Yes, your Honour, it's Mr Rizzo here.  Your Honour, I'm a bit disappointed we got this at 12.30 today.  We did meet with the employers last Thursday and they said that they were going to give us some documents before this hearing so we could have a look at it, but I didn't realise that before this hearing was going to be an hour and a half before this hearing.




MR RIZZO:  So we still have some outstanding questions that we want to discuss with the Commission and the employers and concerns that we still have.  So I think we should run through this document, your Honour, if the Commission pleases.


JUSTICE ROSS:  Well I'm also content to adjourn and I agree with you, it should have been provided earlier.  I don't think sending it around at 12.25 for a 2 pm conference is going to give you sufficient time.  It wouldn't even necessarily have come to your attention.  So perhaps if you raise the concerns you have with the document and then you can - we'll work out what the next step is and you can have a further opportunity to consider the proposed changes and discuss them directly with Ai Group and ACCI.  Which was after all the whole purpose of adjourning the matter last week, so I'm a bit surprised we're still in the spot where one party's sort of forwarding proposed changes an hour and a half out of the conference.  I would have thought the purpose of the adjournment was for you to discuss it between yourselves and endeavour to reach some sort of agreement.


MR FERGUSON:  I must say, your Honour, there's no desire to put anyone in any hardship.  I think part of the reason for the adjournment was to discuss the possible union claims.  There was a view that we might have sought to do something much more ambitious than this in terms of amending the survey.  In the end after discussions with ACCI there was a strong desire for it all to be agreed, we ended up settling on a view that it should just be for these minor refinements, and I must confess and it's not a criticism, I had understood from our discussions with the unions that there was a far higher degree of ambivalence towards what we did with our survey.  But, you know, again there was no desire to make it difficult for anyone, I just didn't anticipate there would be this level of concern from the unions based on our discussions.  We don't have a concern about them being (indistinct) period to make suggestions and so forth of course.


JUSTICE ROSS:  Yes, I just don't want to have a process where they put in writing their changes, I'm not - - -




JUSTICE ROSS:  It's just endless.


MR FERGUSON:  We're happy to make ourselves available to sort it as quickly as possible.


JUSTICE ROSS:  I think there should be direct discussions between yourselves and you should work your way through it.  If you can't then we'll make a decision about what we see as an appropriate survey instrument and, you know, you will have had the opportunity to say what you want to say about it, but it doesn't - look Mr Rizzo, at first glance - I understand - I'm not unsympathetic to your ply, you've only just got it but I've had a chance to read it and, you know, it doesn't - it provides some sensible abbreviations of terms.  There's nothing in there from my perspective at least that causes me any particular anxiety, but I can well appreciate that you want to satisfy yourself about that.  So look, you're all here so I'm content to - I can stand down the conference and you can organise - or I can actually leave you and I'll rejoin - one of you can ring my Associate and let them know if you're able to go through the issues and any concerns now, and then let me know when you're ready to come back.


MR RIZZO:  Well can I suggest, your Honour, I'm more than happy to meet with the employers in the next two or three days.


JUSTICE ROSS:  Well you can meet with them now, Mr Rizzo, and they can explain to you.  They're on the line now, you're in a conference, I can leave it.  They can explain to you the changes and you can talk to them about any concerns you've got.




MS ISMAIL:  Your Honour, Sophie Ismail for ACTU.  There was some discussions about some potential significant changes to the survey so we just - the ground was shifting a bit and I actually haven't had a chance to even open that email but it would be useful I think now while we've got the employers on the line for them to take us through where they landed.


JUSTICE ROSS:  That's fine, Ms Ismail.  You open the email, I'll leave the conference - - -


MS ISMAIL:  We will need a bit of time to go - - -


JUSTICE ROSS:  Well - - -


MR FERGUSON:  I'm happy to explain it as we go and your concerns might be - you know, addressed once - - -


JUSTICE ROSS:  Look I think what we'll do is we'll adjourn to 2.30.  We'll send out separate invitations for a new Teams meeting.  In that period of time Ms Ismail can read the document, it's truly - it took me five minutes so I don't think, you know, it's going to take long and you can have a discussion with Mr Rizzo and sort out what your collective position is.  Then at 2.30 there's be - we'll host the Teams meeting.  It will just be between the parties.  I won't join it until - because that way you can ask - you can, you know, you might feel freer in your remarks to one another, and one of you can ring my Associate and let me know when you want me to come back into the conference, and if you haven't sort of reached agreement well we can sort out a process for an end point to the discussion about the survey and we'll work our way through that at that time.  Okay, so - - -


MR IZZO:  Your Honour, Mr Izzo here. Can I just ask one point of clarification because I think it'll assist us as we adjourn.  There's I suppose two issues that I'm just wondering about in terms of finalisation of the survey.  It is the case that there are some amendments and what we - I remember sort of being made by the employers and quite rightly the unions never had an opportunity to just consider those amendments.  But I suppose the question in my mind is if you put those amendments to the side for one moment, I'm not clear on what the position is in relation to the balance of the survey.  So if it the case that there's no further comments in relation to the remainder of the survey and we're just dealing with the employer amendments then that's obviously something that's able to be dealt with in a relatively short fashion I would have thought.


I note that in the document that's been circulated we still have all sorts of comments there that have been historically accumulated over time but am I correct in assuming that all we're talking about now is the employer amendments?  Because I had a sense that when this matter was listed previously there was some additional matters to be discussed, if there aren't that's great, we're just talking about our amendments but I'm not clear as to (indistinct) in that regard.


JUSTICE ROSS:  Well the first point is the discussion that you have with the unions should be about your amendments and sort that out.  The comments are derived from the earlier conferences and the discussions and the indications about the various questions that the union - the ASU had sought.  When we resume - I mean the responses have been indicated in a provisional way in the comments.  If the union wishes to press any of those they can put that in the conference and the Full Bench will consider that when it finalises the survey instrument.


MR IZZO:  Thank you, your Honour.  I think that makes things a bit clearer for me because that I think should short circuit the nature of our discussions but absolutely we're happy to talk with them now.


JUSTICE ROSS:  Well look, just to make sure there's sufficient - because the time's ticked away a bit, I'll organise for my chambers to set up a Teams meeting with all the conference parties at quarter to 3, so 2.45.  I then ask one of you to ring my chambers once the employers and the unions have had an opportunity to have their discussion and then I'll join the conference and hear what everyone has to say by way of finalising the instrument.  Okay, any questions?  No?  All right, thanks very much.

SHORT ADJOURNMENT                                                                     [2.13 PM]

RESUMED                                                                                                [3.25 PM]


JUSTICE ROSS:  Good afternoon.  We will reconvene the conference.  Who would like to report on the outcome of the discussions?


MR RIZZO:  I can do that, your Honour, Mr Rizzo here.




MR RIZZO:  So your Honour we discussed four issues with the employers, one of which we settled outright, two which I think we found the resolution to and two which are outstanding, so perhaps I can just take you through those issues.




MR RIZZO:  So the first - - -


JUSTICE ROSS:  If you wouldn't mind - Mr Rizzo, if you wouldn't mind as you take me through them work off the document that Mr Ferguson circulated earlier today so we're all working off the same document.


MR RIZZO:  Yes, I'm working off that one, your Honour.  So if I can take you to question 6 of Mr Ferguson's document.




MR RIZZO:  Which is a gender question but that's not the issue here.  There's a sidenote there your Honour has that says the ASU (indistinct) full-time, part-time, casuals.




MR RIZZO:  We've pressed this point with the employers, the employers are resisting it and I know that the Commission said that it was not sympathetic to either but we say this is vital information for us to understand the profile of the type of employees that the employer has and the survey that the ACTU ran on working from home just recently showed that people who were part-time or casuals had more mental stressors and more mental health issues than full-timers for example.  We think it's just a basic profile that we need in order to understand what sort of employees, how these employees are engaged when they're working from home.


JUSTICE ROSS:  Yes, but this information doesn't tell you that.  All it tells you is of the employees that the employer has employed under the Clerks Award, how many of them are full-time, part-time or casual.  It doesn't - there is no linkage with the other questions and to provide that linkage makes this a very complex survey, because you have to break down each of the subsequent questions about if they've changed their hours et cetera, into whether the person was a part-time employee, a casual or a full-time.


MS ISMAIL:  Your Honour, we did - sorry, Michael.  We did discuss this with the employers and we accept that, your Honour, that you know we do think that kind of breakdown would be useful but we're not proposing that in the survey.  But we do think that if there are any patterns in relation to the employers with particularly large numbers of casuals, for example, that are making particular use of these provisions that that will emerge from the data.  It may not emerge from the data but it may and we think the question should be asked.


JUSTICE ROSS:  All right.  Well can I just go to the employers for a moment.  My main concern with this when the matter was originally raised is that - and I guess as Mr Izzo puts it with my resistance to it was that I didn't want it to unnecessarily complicate the survey because I had anticipated they would then want to ask - break each question down into a series of subsets to try and get information on the experience of casuals, part-timers and full-timers, and I just think that would make the survey virtually impossible to complete, and would increase the regulatory burden.  So I'm not an enthusiast for that linkage.


That said, and I don't, you know, have a strong view either way but that said, bearing in mind that we would include subject to the - bear with me for a moment - I'm just having trouble locating - right.  Note 1, for example, one option may be to ask a question when it says how many of these employees are - there's the gender one.  You could ask an additional question; how many of these employees are full-time, part-time and casual and put a notation to the effect that if you can please provide an exact number in response, but if you can't provide an exact number, provide an estimate to the best of your ability.


MR IZZO:  Your Honour, if I could just provide an initial response and Mr Ferguson may have his own comments.  The first thing I say is that the reason that we raised concerns was for the very matter that you raised initially in response to Mr Rizzo and that is this additional question would not allow anyone to draw an inference about how many part-time or casual workers have varied their working hours or have been subject to any of the matters the subject of the question.  So where we've gotten to is we think that the question has pretty much zero forensic value, and yet we're just adding another question to a survey that currently has 22 questions and a whole heap of data that's being requested from employers, and our concern is we're going to end up with a high number of partially completed surveys that people start and don't finish.


If I can just finish on this, the position I understand from Ms Ismail is that well, at the very least we'll be able to know where there's an employer who has a high number of casuals or a high number of part-time employees, they may still have people change their arrangements and some inference can be drawn from that.  But my respectful submission is it can't.  I mean even if you've got 75 per cent casuals, that doesn't mean they're the people that have changed their working hours.  So if there is zero forensic value - - -


JUSTICE ROSS:  Yes, I follow the argument.  No, I follow the argument.


MR RIZZO:  The only other thing I'd say, your Honour, is - and I don't know the answer to this is I assume there is ABS data that may be able to tell us what the proportion of casual, part-timers et cetera are clerical employees, I'm not sure, but if there is that data that would be better to go and find than using this question.


JUSTICE ROSS:  Yes, you probably could get that data.  What you couldn't get is those who are covered by the Clerical Award as a subset but I take your point and look, not so much the point about the number of questions, Mr Rizzo, since you've added quite a few of them but the point about the capacity to draw inferences I just can't see it.  You'd be asking to draw a link in circumstances where we simply don't know.  And in any event there's nothing to preclude - you know, I extended the offer on the last occasion for the ASU to get a survey of their own employees, ask how many of them are casual, part-time, how many of them have been subject to the changes but there's nothing preventing you from seeking that information and this tool won't allow you to draw the inference.


The only circumstances in which you could draw the inference would be if 100 per cent of their employees were part-timers, then you could draw it.




JUSTICE ROSS:  But beyond that sort of extreme circumstances I just don't see how the inference would be open.  But in any event, I understand what you say, Mr Rizzo, you want to press that point, I'll put that to the Bench.  Keep going.


MR RIZZO:  Yes, thank you, your Honour.  The next one you'll be pleased that we've landed on a possible solution.  If you look at questions 8, 9 and 11, your Honour.




MR RIZZO:  It talks about that the word pattern is then struck out and replaced with hours.




MR RIZZO:  So question 8, for example, says:


How many Clerk Award employees have changed their pattern - hours of work -


And 9 and 11 say the same.  And the expression is also relevant to question 7 where it talks about have changed their hours or work.  We've landed on the expression to replace - the expression 'times of work', so number 8, for example, would read:


How many Clerk Award employees have changed their times of work in the period since.


JUSTICE ROSS:  Would I make that change to paragraph 7 as well?




JUSTICE ROSS:  In the second line, and I make that change to paragraph 9 as well?


MR RIZZO:  Question 9 you mean.


JUSTICE ROSS:  Sorry, question 9, yes.  And also - well it's question 11 but when you renumber them it'll be 10.  That will be times instead of hours of work.  Okay?


MR IZZO:  And questions - there's some further down as well, your Honour.  I believe it's questions 16 and 17 as well.


JUSTICE ROSS:  Bear with me for a moment.  So it would be, in 16 it should have changed their times of work?


MR IZZO:  Yes, your Honour.


JUSTICE ROSS:  Rather than working hours.  Okay.


MR IZZO:  And the same goes for 17 and 18.






JUSTICE ROSS:  Okay.  Yes, Mr Rizzo?


MR RIZZO:  Thank you, your Honour.  And the next one we had not landed on, and that's question 16, 17 and 18, your Honour, where it talks about either 'regularly' or 'from time‑to‑time,' and originally the Commission had the word 'regularly,' which we were comfortable with, and we've been arguing with the employers for some time about this expression 'from time‑to‑time.'  We think it doesn't really help us if someone just does something, you know, on an ad hoc basis, and we thought the word 'regularly' gives us more information, whereas when they answer this question we don't know if they're saying they do it regularly or from time‑to‑time.  So in our view, it sort of dilutes the question and we would rather 'from time‑to‑time' be eliminated.




MR RIZZO:  But that's not the view of the employers and we can't seem to (indistinct).


JUSTICE ROSS:  Yes.  No, well let me just step through that for a minute.  I think there's some substance in the proposition that the answer to the question won't tell us whether they regularly work it or work it from time‑to‑time.  I understand why the employers want the expression, 'from time‑to‑time,' because it may be that during a particular period they were working and their needs have changed or fluctuated, and 'regularly' may be interpreted as having a more permanent feel to it.  But it seems to me it's useful to get both pieces of information.  The problem with the current question is it rolls both up into the one question, so we can't distinguish between the two.




JUSTICE ROSS:  Well let me just put to you, Mr Izzo - I understand you don't want 'from time‑to‑time' in there at all, but if the question was in the two parts, as I have identified, I take it you have no objection to that?


MR RIZZO:  No, because you're right, your Honour, this is our view too, that it conflates the two and confuses the two, but the employers argue - you'll hear from them in five seconds - that we're adding more questions to the (indistinct) and they don't want that.


JUSTICE ROSS:  No, that might be right, but the problem is at the moment I'm not sure what the answer to that question would tell us, and it conflates the two.


MS ISMAIL:  Your Honour, that's the point we raised with the employers, that it's not a useful dataset unless you break the two down.


JUSTICE ROSS:  Yes, but I still think it's useful to get information about both.  I don't - - -


MS ISMAIL:  (Indistinct).


JUSTICE ROSS:  I agree with - and the employers raised this on the last occasion that 'regularly' may not capture the full utilisation of the provisions which we want to, because otherwise you may as well just ask the question if they have from time‑to‑time undertaken work.




JUSTICE ROSS:  Do you follow?


MR IZZO:  Your Honour, Mr Izzo here.


JUSTICE ROSS:  I can see you - I can see you opening your mouth, Mr Izzo, so I was pretty sure it was you.


MR IZZO:  No, there's not a puppet kind of controlling me.  It is me.  Your Honour, the concern we have here - there's probably two points I'd like to raise.  I suppose the first is the utility of the question in its current form.  I concur with what you and the unions have said, is that you're rolling together two concepts, but from our perspective what it will still demonstrate is that there is a prevalence of changes to working hours in workplaces.  Whether it is regularly or whether it is on occasion, we will still hear from a number of different employers whether this is occurring or not.  So that's the first response is that we do think this question has utility, even if it's not as forensic or as useful as it perhaps could be.  If I can come to the next point, which is well why don't you just get the best question you could, which is what your Honour has just suggested about breaking it up.  The concern there is this question already is broken up into 9 till 10 pm, 8 till 9, 7 till 8, so they're already being asked to drill down into a specific number of datasets.


JUSTICE ROSS:  No - look, Mr Izzo, I understand the regulatory burden question, but let me put it to you this way.  You will get - if we just leave the question as it is, the argument that will come up before the Full Bench, I have no doubt that the ACTU or the unions will argue, well, you don't know whether it has just been from time‑to‑time, and it may just be for a day or so; therefore you don't need it between 9 and 10 pm.  That will be the argument, and you'll have nothing to say in response to that, because - well you may have something to say, but nothing that will be particularly persuasive in circumstances where you've lumped the two together.  If you had separated 'regularly' and if there were a significant number that had regularly worked between 9 and 10, well you're on much more solid ground.  But as the question's framed at the moment, well you'll just get sliced and diced when it comes out with the answer.  That's the simple reality of it.


MR IZZO:  I think what we would still have, your Honour, is the number of workplaces where this has occurred.  So let's say you have X workplaces, 200, 100, and 88 of them or 90 of them have all had it occur.  Yes, we won't know, but we will know that it's a very high proportion of workplaces, and we would say that's still a matter of probative value that the Commission could consider.  But on the converse side, if we do put it in, we're just a bit worried that how's an employer - so they're going to have to not only give estimates of how many people between 7 and 8, and 9 and 10, but to distinguish between the 'regularlys' and the 'time‑to‑time' and our concern - - -


JUSTICE ROSS:  Okay.  Well, that's about question 18.




JUSTICE ROSS:  What's the reason for not splitting question 16 and 17 to have two boxes, one that says 'regularly worked,' and one that says 'from time‑to‑time?'


MR IZZO:  I think that would - and we'll hear what Mr Ferguson says, but that would be - it will ameliorate a number of the concerns about question 18, which is my primary concern.  And I'm just looking at question 17 now.  I'll have to take instructions from Ms Lyons, but I'm less uncomfortable with that.




MR FERGUSON:  Yes, I was going to suggest that strikes a better balance.  I think when you get into 18, getting them to - - -


JUSTICE ROSS:  No, I mean - yes - no, I follow that, Mr Ferguson.  I think - look, I can't readily think of how I would structure 18 other than asking two separate questions, which may itself be apt to confuse people.




JUSTICE ROSS:  But I don't see the same problem with 16 and 17.


MR FERGUSON:  I'd certainly (indistinct).


JUSTICE ROSS:  Yes.  Well I've heard what you've all said about that, and we'll pass on that to the Full Bench and see what we come up with.  You look like you wanted to say something, Ms Lawrence?


MS LAWRENCE:  No, I'm just giving instructions, your Honour.




MS ISMAIL:  Your Honour, I'm seeking your indulgence just to go back for one moment to the full‑time/part‑time casual and just make one point about - - -




MS ISMAIL:  There were some discussions about the inferences that can be drawn.  We say undoubtedly what it can do in that question is provide information to the Commission about the cohort of employees who will be impacted by this variation, and we've managed to keep it down to questioning and we think a question about who these employees are in terms of their type of employment is a significant piece of information the Commission should have before it.


JUSTICE ROSS:  All right.  Mr Rizzo, was there any more?


MR RIZZO:  No, your Honour, they were it.


JUSTICE ROSS:  Okay.  Is there anything else anyone wants to say?  No?  All right.  Well the transcript will be expedited.  I'll confer with my colleagues and we'll get an answer to you probably on Monday or Tuesday of next week, but it looks like - well I think you can take it we'll accept all of the proposed changes in the Ai Group ACCI proposition, subject to the discussion, the agreed change of the words pattern and hours of work et cetera to times of work.  That doesn't seem to be - I don't think there's anything contentious about any of that.  So I think it really comes down to two issues.  Whether we include the full-time, part-time, casual question.  I've heard what you've said about that, and in relation to question 16, 17 and 18, and I've heard what each of you have said about that, whether we separate the regularly and from time to time proposition.  But those are really the two issues that are between you now as I understand it.  Am I wrong about that?  No?  All right.


MR FERGUSON:  No, thank you.


MR IZZO:  Your Honour, am I able to raise one matter about timing?


JUSTICE ROSS:  Yes, I was just about to go to that, Mr Izzo, both in terms of when you might want to put this into the field but also about the future directions in respect of the matter.


MR IZZO:  Yes, so our view, your Honour, is that we would prefer to survey this side of Christmas if we can and so we're really looking at commencing a survey in the last week of November which probably aligns with the timing you've indicated, so we'd be grateful if the Commission could finalise this matter as soon as it is able, in terms of the survey questions.  The one thing we would like to foreshadow is that - sorry, I'll go back one step.  The reason we're proposing to survey before Christmas is that we're conscious that a lot of workplaces might have people absent in January.  I think that will be exacerbated this year because a lot of people haven't taken - in some workplaces there's been a lot of annual leave taken but in others there's not been much at all, and so we know there's going to be a lot of, particularly managerial staff, that would answer this survey, taking a significant chunk of January off.


So with that in mind we'd like to - if we don't survey in December we might have to wait till February, so our preference is to survey this side of Christmas.  We do foreshadow that if it's the case that there's a lot of respondency(sic) we might seek to then extend the duration for a period in the New Year.  That could be done by either leaving the survey open or alternatively resending it with a different link or whatever, but we might seek to just flag that if there's some issue with respondency that's something we might explore, but ideally it'd be open for say three, three and a half, four weeks from the first week of November.


JUSTICE ROSS:  We can give you - because they'll be sort of responding to us if you like, we can let you know all parties sort of on a weekly basis what the response numbers are and that may trigger a follow up email if you think that's necessary.  Because I think it's better to - rather than extend it, particularly as we'll be bumping into Christmas then, rather than leaving the survey open it's often better to gauge how respondents - how the response rate is going while the survey is open and then follow up and send further emails encouraging them to respond to the earlier on if they haven't already done so, but not to fill in more than one.


MR IZZO:  Yes, and that'd be appreciated, your Honour.  In terms of your other question about the direction of the matter more generally, from ACCI's perspective we believe we'll be in a position shortly to articulate what it is the changes are that we believe should be made on an enduring basis.  The changes we're seeking we think will be relatively discreet in the sense that there may be some additions to the types of things that have been covered in the schedules that have been negotiated to date, but not necessarily enormous number of matters on top of that.  But we should be in a position to finalise that shortly.


We'd like to try to the extent we can, I think this is AIG's view, to try and reach a consent position with AIG because then we're in a position that the employer parties are at least of a uniform position, which will obviously be easier for any claim to be pursued.  So we'd need some time to have discussions with them, but certainly my preference would be for us to be able to articulate that position and the claim that we would seek in the next couple of weeks.  We would envisage providing that in the form of a determination because that then gives everybody a very clear understanding of what it is we're seeking.


We would be grateful if we are to have this matter determined before the Clerks schedule currently expires, we would be grateful if the unions would be in a position to articulate what it is that they are seeking, and again I think a draft determination would be of assistance.  If they're not in a position to do that so be it, I mean I don't know whether they're going to formalise a position or not, or when they can but certainly from our perspective we see 29 March as kind of an impending date, and we would like to have as much time as possible to prepare materials to present to the Commission.  So we think understanding what the claims are with a level of precision is beneficial to all parties to then prepare a case, given the inactivity that sometimes happens over January.  So that's where ACCI is at.  I certainly should probably now defer to the other parties to express their view.


MR FERGUSON:  Your Honour, Mr Ferguson.  I had some discussions with the unions as well before this.  I think our position is similar to ACCI's in that, you know, we have a reasonably firm view about what our priorities are and we'll likely reduce to a claim fairly swiftly.  I think from our perspective though we'd prefer not to necessarily take that step till we have a better handle on what the unions likely claims are, provided that that would be going to - they're going to be able to reach a landing in a reasonably tight timeframe.  The parties have pencilled in some discussions on 1 December.


I understand the unions have been undertaking some internal consultations and so forth.  The course of action I had proposed is that perhaps we have that meeting and then we have a conference shortly thereafter where we work out how this - the direction of the future conduct of the matter.  It may be, you know, that involves a few different paths depending on whether the unions are ready to go, but I didn't want to confine ourselves to a particular claim until we've at least had those discussions, partly to see whether some common ground could be reached narrowing issues, and it may be that, you know, the various claims don't even follow the same path but we just don't know yet.


JUSTICE ROSS:  Yes, look I'd make another observation and I'll come to you in a minute, Ms Ismail, but it's just about one of the points Mr Izzo raised.  Yes, I think there is utility in parties at some point identifying with precision what it is they're seeking in the form of a draft determination.  The only - I think it may be wise not to formally lodge anything until after the survey's completed because that may give rise to response bias if your members become aware of what your claim is, without putting too fine a point on it, that might influence the way they complete the survey, or that might be the position that's put.  I want to try and make this survey as clean as possible.


None of that stops you having a discussion around timelines, around - and having a discussion with each other as you've indicated, Mr Ferguson, about what it is that the unions are thinking, what's the - what frame of reference are we looking at.  For me the critical thing is not so much when you lodge your proposed variation determination, I don't mind if that's done any time just before Christmas.


The real issue is for you to have some - have a discussion at this foreshadowed meeting about well let's assume that you both - at that discussion you share where you're up to and everything else, but what I want you to focus on is well, what are the directions that you want to put in place for the filing of your proposed variation determination, for the filing of your evidence and submissions in support of that and when you're looking at an oral hearing, how many witnesses are you looking at, that sort of discussion.  Rather than necessarily sprinting to file your proposed determination.  I think you have to have a look at it in the broader context and given that you'll obviously need to have those discussions about the directions, and given that you'll have the survey on the current proposal in the field in the next few weeks, I think it would be better to separate the two processes.  Ms Ismail, can you answer Mr Ferguson and Mr Izzo's question about where you think the union's side is up to in relation to the formulation of a claim?


MS ISMAIL:  Thanks, your Honour.  Possibly not with as much clarity as they would like, but certainly we are working towards formalising a position.  Clearly there are a number of complexities in this space that we're working through.  We are in the middle of an open consultation phase, so it's not - I'm sort of not in a position at this point in time to say whether or not - what the timeline is.  I would say that it's unlikely that we would be in a position to put anything in writing this year, but we certainly - we had a productive discussion the last time we met and went into some detail about each other's position, which I need to talk to both parties.  We have another meeting on 1 December.  Hopefully - we will certainly be further advanced at that point in time, but filing draft determinations this year seems - that's not where we're at at the moment.


JUSTICE ROSS:  All right.  When are you meeting, Mr Ferguson?


MR FERGUSON:  1 December.


JUSTICE ROSS:  I certainly think a conference shortly after that would be desirable.  And Ms Ismail, leave aside when you're in a position to finalise your claim, I still want you to have a discussion about the directions for the matter, because ultimately - I mean, look, the Full Bench can determine the directions and work backwards, and you will all be in a position of complying with them, but I would rather you had the discussion about it and reach an agreed position on it.  I do not want to let it drift beyond this next conference before we start to get a landing on what the directions look like and when the matter will be heard.  So you might bear that in mind.  You may not have completely formulated your claim by then, but you're going to have to come up with a timeline about when you will do that, and then following that when you will file any evidence.  You don't have to identify what the evidence is or anything of that nature at this stage, but when are you going to be filing your submissions.  What I would have in mind, if this assists, is there will be one date where you will both file your proposed determination; there will be a second date where both sides will file all their submissions and evidence in support of their proposal, and there will be a third date where you can file submissions and evidence in‑reply to the position put by the others, and then there will be a hearing.  If we need any further elaboration of that or some other variant, then you need to have a think about that, but that's how I see it at the moment, and I want you to have a talk about that framework, whether that works for you, or whether you want something different, and also what timelines are we putting around that.


MS ISMAIL:  Your Honour, thanks.  We will have those discussions.  Obviously the ASU consented to the extension of the current schedule until 29 March, because we did - we genuinely need that additional time to work through the issues, but we'll have the discussion with the employers.


JUSTICE ROSS:  I've got in mind, if this helps as well - look, a bit depends on - but let's assume that with all the evidence of all the hearings, it's unlikely to take more than a five‑day hearing, and then I would look at a hearing probably in the second week of March, and you work backwards from that - because I do want to give you as much time as possible.  If that was when the hearing was, well I can indicate that, you know, we are conscious of when the current schedule finishes and we'll be looking to get a decision down before then.  But that would be the last sort of hearing week in order to give you that sort of assurance.  There's not much point in hearing the thing in the last week of March and then expecting us to deliver a decision two days later.  So I'm really looking at that second week in March for the hearing, so if you can give some thought to that, and then work backwards and see where you are.  I am also conscious that - well a number of you will be involved in when the annual wage review (indistinct), and that might - I haven't looked at how that intersects with this particularly, but have a look at that and see what you come back with.  In terms of the listing of the conference, so it's the first - I think we said - Mr Ferguson, are you content if we have - does anyone have a problem if we have a conference at 2 pm on Thursday 3 December?




MR RIZZO:  No, your Honour.


MR IZZO:  No, that's fine.


JUSTICE ROSS:  All right.  Everyone okay with that?  Okay.


MR FERGUSON:  Your Honour, I just make one observation.  I think when we're thinking through the directions - I appreciate everything that you've said - I think one of the important considerations for us will be what is the broad content of the claims, not so much the wording of the determination, but it's sometimes difficult to make sense of how long we need unless we have at least some perspective on what the case will be about, beyond the fact that - - -


JUSTICE ROSS:  No, I agree.  No, I accept all that, but I think that's what you ought to try and have a discussion about on the 1st.  I think, Ms Ismail, you should make every effort to at least be able to paint the broad outlines of what it is you will be claiming.  If it's not in the form of a variation determination then at least what are the core elements.






MS ISMAIL:  That's understood, your Honour.  We've already gone into some detail.


JUSTICE ROSS:  Yes, and look, the employers will have to do the same for you, because obviously you're in the same position.  You want to know what their claim is in order to give some thought about how long you'll need to respond to that and what sort of case you'll need to respond to that, and look, we will also - look, this is a bit dependent on the period of the survey, how long it's out for, but I think you can work on the assumption that within a week of the closing date for the survey, you will have a report from the Commission about the survey.  Okay?  So the research section will prepare a report and publish it, so you'll have all that data before you have to file anything.


MR FERGUSON:  Yes.  The other thing I was going to say, your Honour, and that is better fully thought through on the 3rd, but it may be that the types of claims that the ACTU lands on give rise to arguments about - I'm going to call it jurisdictional arguments for want of a better term, about whether awards can regulate these sorts of issues, and I (indistinct) potentially give some thought to whether they should all just be dealt with in the same tranche of proceedings or whether we could expedite the determination of some of those issues so that we narrow the base potentially.


JUSTICE ROSS:  Yes, well let's see, but given the timeframe, Mr Ferguson, I'm not wildly enthusiastic about splitting the case, because you know, it's also the logistics from our end of then getting five members together to hear that, decide that separately, and what happens if, for example, you take an exception to a particular part of the ACTU's claim.  We hear and decide that probably in February, and let's say we decided against you in whole or part, then the ACTU is going to want to file evidence about the bit that's left.


MR FERGUSON:  Yes.  I'm getting ahead of myself.  Our discussions might narrow it anyway.


JUSTICE ROSS:  Yes.  Let's just see how it goes.  There might be - and look, if you all collectively decide that there would be some utility in determining some jurisdictional question, well obviously, you know - speaking for myself, I'd be wanting to try and accommodate that, but I'm conscious that with the timeframe end point considerations, splitting the case in that way does run a bit of a risk.




JUSTICE ROSS:  Okay?  Well, as I say, the Full Bench will issue a statement in relation to the issues in dispute, et cetera, and finalise the survey as soon as we can, and I'll see you again at 2 pm on Thursday 3 December.  Thanks very much.

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