TRANSCRIPT OF PROCEEDINGS

---

Fair Work Act 2009 1050838-1

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
COMMISSIONER BISSETT
COMMISSIONER BULL

AM2014/65

s.156 - 4 yearly review of modern awards

4 yearly review of modern awards - Award stage - Sub groups 1A & 1B - Exposure drafts 4 yearly review of modern awards - Issues of inconsistency with National Employment Standards Additional transitional provisions in the Real Estate Industry Award 2010

Melbourne

9.13AM, FRIDAY, 24 OCTOBER 2014

Continued from 23/10/2014

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA
VIDEO CONFERENCE AND RECORDED IN MELBOURNE

PN881

JUSTICE ROSS: Our apologies for the delay. There was apparently a problem with the link in one of the states. Could I have the appearances please in relation to the Real Estate Industry Award matter, which is the only matter listed at this time. In Melbourne?

PN882

MR K. WATSON: May it please your Honours - - -

PN883

JUSTICE ROSS: Can you be very careful interstate, don't bump the microphones because then nobody can hear anything.

PN884

MR WATSON: May it please your Honours and Commissioners. Ken Watson of counsel. I seek permission to appear on behalf of Australian Property Services Association, a registered organisation of employees under the Fair Work Act.

PN885

JUSTICE ROSS: Thank you Mr Watson. Look, we're unlikely to deal formally with any applications for permission to appear because this is really a preliminary process. So you might - if you can bear that in mind and when we come to the substantive - can you be quiet interstate please? When we come to deal with the substantive issues then if you put your application formally at that stage.

PN886

MR WATSON: As your Honour pleases.

PN887

JUSTICE ROSS: All right, Thanks.

PN888

MR T. MacDONALD: If it pleases the Commission, MacDonald initial T, solicitor. I seek to appear for the Real Estate Employers' Federation.

PN889

JUSTICE ROSS: Thank you.

PN890

MR R. DALTON: If the Commission pleases, Richard Dalton of counsel for the Real Estate Industry Victoria.

PN891

MR S. FARRELL: If it pleases the Commission, Farrell initial S, for the Chamber of Commerce and Industry in Western Australia, representing the Real Estate Employers' Federation of Western Australia.

PN892

JUSTICE ROSS: Thank you, and can I have the appearances - - -

PN893

MR B. SIEBENHAUSEN: If the Commission pleases - - -

PN894

JUSTICE ROSS: Can I have the appearances in - - -

PN895

MR SIEBENHAUSEN: Bruce Siebenhausen.

PN896

JUSTICE ROSS: Can I have the appearances in Brisbane please?

PN897

MR SIEBENHAUSEN: Yes, if the Commission pleases, Bruce Siebenhausen, secretary of the Queensland Real Estate Industrial Organisation of Employers. I have with me here in Brisbane MR RAY MILTON.

PN898

JUSTICE ROSS: Thank you, and in South Australia? Any other state? All right, when this matter was before me for mention the other week there was a degree of confusion about, at least from my perspective, the transitional issue that was sought to be agitated and the respective positions of each of the interested parties. There was general agreement from the representatives at that stage that they would be assisted by a conference to endeavour to resolve these issues. At that stage also we thought there was a requirement for a video link to Perth and a range of other states. That seems to have evaporated, so now it's largely dealt with by Melbourne and Brisbane.

PN899

We have organised for Commissioner Roe to conduct a conference at 9.30 so for the Queensland representatives that will be in about 10 minutes or so. For Melbourne it will be in court 7 and the links will be organised. The purpose of that conference is so that the Commissioner can prepare a report for the Full Bench, identifying the transitional issue, identifying what the positions of the respective parties are, and we also want - this issue will be heard by this Bench on 19 November, which is one of the reserved dates we have for the award mod. process. So we also want you to confer, discuss amongst yourselves at that conference about a set of proposed directions.

PN900

In the event - you see it's not apparent to us whether this is going to be an evidence-based or a submissions-based argument and that's really what we want you to sort out with Commissioner Roe and between yourselves. Look, you can take it that if the parties can agree on a set of directions leading up to it we'll issue them formally. But unless we've got a major problem, the past practice would be to simply adopt what you've all agreed to. Okay? And we think that's the most sensible way of doing it rather than have us come up with some directions that might not suit some of you, and we think you can probably best sort it out between yourselves. I think there's only one transitional provision, is that right?

PN901

MR DALTON: There's only one in contention, as I understand it.

PN902

JUSTICE ROSS: Yes. Yes.

PN903

MR DALTON: Yes.

PN904

JUSTICE ROSS: Okay, well - - -

PN905

MR WATSON: We agree with that.

PN906

JUSTICE ROSS: Okay. Look, there did seem to be some difference of view on the employers' side about the one that was in contention too. Now we just want to tease out a bit more detail about what that might be and then have an orderly process for the filing of submissions and material. It will all be posted on the website and then we should be able to hear the matter completely on the 19th. If there is to be witness evidence then - and I'm not suggesting you need it, because I don't even know what the transitional provision is that's in contention - but if there is, then you should also have a process for whether or not, or some communication between all the interested parties about whether or not a witness is going to be required for cross-examination. If we require them, to ask some questions, we would let you know in advance of the hearing.

PN907

But I don't want a witness to have to come along just to swear up to a statement, and any witness material should set out the evidence-in-chief of the witness, and that might obviate the need to call them. It's also in some of these other cases, some similar cases we're dealing with, when a witness statement is filed there's often discussion between the parties seeking concessions or other issues, and that can be resolved by consent about what the factual circumstances are and in those circumstances then the witness doesn't have to be called. Okay? So I'd encourage you to as far as possible adopt that sort of process, and as far as possible do it by discussion between yourselves and then let us know, okay? So we'll adjourn that matter. Are there any questions before I do that?

PN908

MR WATSON: Your Honour just one question. Is it likely that the sittings on 19 November will be here in Melbourne?

PN909

JUSTICE ROSS: I think that's where they're scheduled to be. And also discuss what video links you'll need, because it also affects the timing. If for example there's going to be a Perth one - I'm conscious that we've listed this one at 9 o'clock. Now that was because I wasn't aware of the time. We actually had four transitional matters listed for 9 o'clock. The other three were dealt with at the mention. They have been allocated to members for conferences. They will all be heard on the 19th, but we can schedule the timing during the day if you have a preference. If it's not before two then it can be at 2 o'clock or whatever. That will depend a little bit on where everyone's coming from, because I don't want someone in Perth having to get up at 4 am to come in for a video hearing. Yes?

PN910

MR FARRELL: Sorry, your Honour. As the person who probably would be getting up at 4 o'clock in the morning from Perth, on my client's instructions I think I will be here in Melbourne or - - -

PN911

JUSTICE ROSS: Okay.

PN912

MR FARRELL: (indistinct), wherever that is, so the Perth link will not be required.

PN913

JUSTICE ROSS: All right, thank you. Any other questions? Any questions in Brisbane? No?

PN914

MR SIEBENHAUSEN: No. No questions, your Honour.

PN915

JUSTICE ROSS: All right, thanks very much. We'll adjourn and we'll resume at 10.30 to deal with the Premixed Concrete Award. Thanks very much.

<SHORT ADJOURNMENT [9.22AM]
<RESUMED [10.34AM]

PN916

JUSTICE ROSS: Can I have the appearances please, firstly in Melbourne?

PN917

MR B. FERGUSON: If the Commission pleases, my name is Ferguson initial B, appearing on behalf of the Australian Industry Group, and with me at the bar table is MS R BHATT.

PN918

JUSTICE ROSS: Yes, thank you, and Sydney?

PN919

MR S. CRAWFORD: If it pleases the Commission, Crawford initial S, from the AWU.

PN920

JUSTICE ROSS: Thank you Mr Crawford. Anyone else in Sydney?

PN921

MR S. FORSTER: Yes, your Honour. If the Commission pleases, Forster initial S for AFEI.

PN922

JUSTICE ROSS: Thank you Mr Forster.

PN923

MR K. SCOTT: If the Commission pleases - - -

PN924

JUSTICE ROSS: I'm sorry, can you speak up whoever the other person is?

PN925

MR SCOTT: I'm sorry, your Honour. If the Commission pleases, Scott initial K, seeking permission to appear on behalf of Australian Business Industrial and the New South Wales Business Chamber.

PN926

JUSTICE ROSS: Thank you. Anyone else in any other state, no? Any objection to the application for permission to appear?

PN927

MR FERGUSON: No, Commissioner.

PN928

MR CRAWFORD: No, your Honour.

PN929

JUSTICE ROSS: Thanks Mr Scott, we'll grant permission to appear. Having regard to the complexity of the matter, we think it will be dealt with more efficiently if permission were granted. Can I raise one matter at the outset with the AFEI? In your written submission at paragraph 44 - can I take you to that?

PN930

MR FORSTER: Yes.

PN931

JUSTICE ROSS: And can I also ask the AWU - it's just I hadn't picked up in going through your submissions, that is the AWU's, although that might have -yes, it might have been an oversight on my part but are you pressing a cross-reference to the dispute resolution procedure in respect of this award? I know you've done that in some others but I wasn't sure if you were doing it for this award.

PN932

MR CRAWFORD: Your Honour, I believe AiG have put in a submission saying that essentially those references in the conversion clauses are unnecessary because of the scope of the disputes procedure. That we would accept is probably right, so in that case it's probably unnecessary for us to press that in relation to any
award - - -

PN933

JUSTICE ROSS: Okay.

PN934

MR CRAWFORD: - - - (indistinct) we accept that we can dispute it. That's fine.

PN935

MR FORSTER: Your Honour, it's Mr Forster from AFEI. I've just had a quick look through the AWU submission. I think perhaps I was caught out by believing that it was a fairness submission of the AWU, and it doesn't appear as though it was included in the Premixed. But having regard to what (indistinct) clause has said I don't think that's an issue for anyone.

PN936

JUSTICE ROSS: Okay, if I can go through some of the other issues where there seems to be a measure of agreement at least between some of the parties, and I don't think I had a reply submission from the AWU so we might - we'll deal with it as we go through those. In relation to the Ai Group's submission regarding 8.1 paragraph (c) where it's said that the draft is inconsistent with the current award provision, AFEI agrees with that proposition. Is there anything the AWU wants to say about that?

PN937

MR CRAWFORD: Your Honour, there should be a reply submission from the AWU dated 15 October.

PN938

JUSTICE ROSS: Okay, for some reason I don't have that in my material. But that deals with that issue?

PN939

MR CRAWFORD: Yes, and we basically accepted that the current award does refer to an average.

PN940

JUSTICE ROSS: So that's an agreed position then?

PN941

MR CRAWFORD: Yes.

PN942

JUSTICE ROSS: All right. I'm sorry to put you through this but if - in any event by some oversight I don't have it. But if we go through - there's a proposition by the AWU and Ai Group in relation to 8.1(d). This is about:

PN943

The provision indicating the spread of hours doesn't apply to casual and part-timers. Reference to clause 6 does not define the ordinary hours of work.

PN944

Am I right in saying this is a common - is this an agreed position between the AWU and Ai Group in relation to this clause?

PN945

MR FERGUSON: I think it might be.

PN946

JUSTICE ROSS: Because I think AFEI also seems to agree.

PN947

MR FORSTER: Yes.

PN948

JUSTICE ROSS: But ABI is really just saying, "Look, I don't think there's any trouble with it so leave it alone" more or less.

PN949

MR FORSTER: Yes, well just the AWU's position, if we could just clarify that? I'm just flicking through my material.

PN950

JUSTICE ROSS: Yes.

PN951

MR FORSTER: But that's our view with - - -

PN952

JUSTICE ROSS: Yes, okay. Does anyone else want to say anything further about that proposition?

PN953

MR CRAWFORD: Our main concern, your Honour, and this is across a number of exposure drafts, is just confirming that the span of ordinary hours does apply to casual or part-time employees.

PN954

JUSTICE ROSS: Yes.

PN955

MR CRAWFORD: The Ai Group I think have put in a submission basically saying that's not disputed, and if that's the case across the parties well, I mean, we'd be happy to withdraw that issue as well on the basis that it's sufficiently clear.

PN956

JUSTICE ROSS: Look, that's something we'll have a look at because as we go through these awards we're giving some consideration to which of the matters that deal with casuals and part-timers should go to the Casual and Part-Timer Common Issue Bench. Once we have come to a view about that - and it will probably be a bit further through the award stage, then that might deal with a number of issues that are in contention between the parties.

PN957

MR FERGUSON: I think the issue we raise is narrower and really just relates to clause referencing.

PN958

JUSTICE ROSS: Yes. Yes, I think that's right. Yes.

PN959

MR FORSTER: And (indistinct) that that was the extent of AiG's understanding of the issue too, that it was really directing people to a provision that didn't actually clarify what it was purported to.

PN960

JUSTICE ROSS: Yes. But, look, in relation to some other issues, for example Ai Group's submission about 6.6, I think (a) and whether it narrowed conversion rights or something of that - conversion rights are going to be the subject of a debate in the Common Issues Bench and so getting too excited about those issues at an award level stage at this point is probably not going to be worthwhile. In relation to 11.3A(f) I think the position was that Ai Group had put in some proposed - an amended clause and the AWU is indicating they're not opposed to that - actually, just bear with me. Sorry, I withdraw that. That's about another award. The other two issues, in clause 14.3 ABI is submitting that:

PN961

Any elaboration on the existing day stands alone clause would be undesirable.

PN962

AFEI agrees with that. What's the position of the AWU and any other party about that matter?

PN963

MR CRAWFORD: Your Honour, we understood that the proposed new look wording adds further clarity, so we didn't have a problem with it.

PN964

JUSTICE ROSS: Okay, and I think AWU is also putting up a proposition about clause 14.4, minimum breaks between shifts, and I think the ABI agreed with that proposition, is that right from the AWU's perspective, anyone?

PN965

MR CRAWFORD: Yes, that's correct.

PN966

JUSTICE ROSS: What's the attitude of other parties to that proposition?

PN967

MR FERGUSON: Well, we don't object to that proposition.

PN968

JUSTICE ROSS: Okay.

PN969

MR FERGUSON: And to clarify, we also support ABI's position in relation to 14.3.

PN970

MR FORSTER: And I can say AFEI don't object to the proposition around 14.4, your Honour.

PN971

JUSTICE ROSS: And AFEI I think also supports the proposition around 14.3, is that right?

PN972

MR FORSTER: Yes we do, - - -

PN973

JUSTICE ROSS: Or you support - - -

PN974

MR FORSTER: - - - your Honour, thank you.

PN975

JUSTICE ROSS: Yes. Is there anything else that any party wants to say, leave aside the part-time casual stuff that we'll need to come back to I think, anything else about any of the other matters that have been raised?

PN976

MR CRAWFORD: Your Honour - - -

PN977

JUSTICE ROSS: I'm sorry, just before you do. Are any of the other matters in the view of the parties at least the subject of broad agreement, other than the ones we've already gone to? I think the only one that looked like - it was 8.1(d) where the Ai Group and AWU seemed to be agreed about some change, and I think AFEI agreed, but ABI wasn't opposed but didn't think there was a need to change it.

PN978

MR SCOTT: Yes that's right, your Honour.

PN979

JUSTICE ROSS: Yes, okay.

PN980

MR CRAWFORD: Other than that, your Honour, perhaps clause 15.2?

PN981

MR FERGUSON: Yes.

PN982

JUSTICE ROSS: And 15.2 is that Ai Group's proposal is generally agreed, is that right?

PN983

MR CRAWFORD: I think it was perhaps ABI's proposal that we were accepting as valid.

PN984

JUSTICE ROSS: Okay.

PN985

MR CRAWFORD: No, it was AiG, sorry.

PN986

JUSTICE ROSS: Yes, right.

PN987

MR SCOTT: And ABI agree with the points that they make too.

PN988

JUSTICE ROSS: Okay, and where are we about recall and standby in 14.6?

PN989

MR FERGUSON: There's no objection from Ai Group to the proposals.

PN990

JUSTICE ROSS: To both proposals?

PN991

MR FERGUSON: Yes.

PN992

JUSTICE ROSS: What's the position of the other parties? Well, I know the AWU would agree with its own proposal but what does it say about the other one? That is the one by ABI about the removal of the word "or" which may lead to ambiguity. This is in - the current award clause 23.5(a) uses the word "or" and the new award or the draft determination removes it, and I think the employer interests are agreed that that might give rise to an ambiguity so we should put "or" back.

PN993

MR CRAWFORD: Where exactly in the Exposure Draft was the word "or" to be reinserted?

PN994

JUSTICE ROSS: It would be in 14.6(a).

PN995

COMMISSIONER BISSETT: I think what has happened is previously what has been one long sentence that had "or" as a separator has now been split into two separate sentences.

PN996

JUSTICE ROSS: Yes.

PN997

COMMISSIONER BISSETT: So the "or" has disappeared.

PN998

JUSTICE ROSS: And you've got the two provisions.

PN999

COMMISSIONER BISSETT: Because the two provisions sit.

PN1000

MR CRAWFORD: Yes, that doesn't seem like a problem to us, your Honour, if the word "or" goes back in. It just becomes one long sentence.

PN1001

JUSTICE ROSS: A very long sentence.

PN1002

COMMISSIONER BISSETT: Yes.

PN1003

JUSTICE ROSS: We'll have a look at whether we think there's an ambiguity and what might be done about it, but we understand the position that's put by the parties. I think we'd be wanting to avoid a sentence that's actually a paragraph, so we'll look at it and see. If we think there's a problem then we'll do something about it. But as we've said there will be a further iteration of these matters that you'll be able to comment on. Is there general agreement - Ai Group has indicated its position to the proposition put by AWU that "appropriate rate" should be changed to "appropriate overtime rate" and "recalled to standby" should be "required to standby". I think Ai Group said they agree with that. What's the position of AFEI?

PN1004

MR FORSTER: We are agreeable to that, your Honour.

PN1005

JUSTICE ROSS: Okay. Are there any other matters that you think there's a significant measure of agreement about?

PN1006

MR CRAWFORD: Your Honour, there is. It's Crawford, initial S, from the AWU.

PN1007

JUSTICE ROSS: Yes.

PN1008

MR CRAWFORD: We think it's an error in schedule A in 2.3

PN1009

JUSTICE ROSS: Just bear with me for one minute. And what do you think the error is?

PN1010

MR CRAWFORD: So I think - - -

PN1011

JUSTICE ROSS: Sorry, is it A.2.3?

PN1012

MR CRAWFORD: A.2.3.

PN1013

JUSTICE ROSS: Yes. So that's the indicative tasks?

PN1014

MR CRAWFORD: No, it's wage tables I believe.

PN1015

JUSTICE ROSS: I see. Just bear with me for a sec. Yes.

PN1016

COMMISSIONER BISSETT: So the casual shift workers and non-shift workers overtime rates, is that the one?

PN1017

MR CRAWFORD: Yes, so the last two columns it appears the rates are correct but the reference up the top should be 225 per cent not 200 per cent, consistent with the Monday to Friday after two hours column.

PN1018

JUSTICE ROSS: Sorry, could you just repeat that?

PN1019

MR CRAWFORD: So the last two columns have - - -

PN1020

JUSTICE ROSS: 200 per cent.

PN1021

MR CRAWFORD: - - - Saturday - sorry?

PN1022

JUSTICE ROSS: Yes, they both have 200 per cent, is that right?

PN1023

MR CRAWFORD: Yes, and we say that should be - the double time rate for casuals is 225 per cent as reflected in the second column.

PN1024

JUSTICE ROSS: Yes, so - - -

PN1025

MR CRAWFORD: And you can see the rates are identical so I think it's just an error.

PN1026

JUSTICE ROSS: Yes, okay. Does everyone else share that view?

PN1027

MR FERGUSON: No objection.

PN1028

JUSTICE ROSS: Yes. AFEI?

PN1029

MR FORSTER: Look, we haven't done the calculations to compare whether one is correct at 225 and the other is incorrect at 200, but we'd be - there's something clearly going on there and if it's supposed to be 225 then we're happy with that.

PN1030

JUSTICE ROSS: Yes.

PN1031

COMMISSIONER BISSETT: Yes.

PN1032

JUSTICE ROSS: Okay, anything else?

PN1033

MR FERGUSON: Yes, one other issue. I think it's clause 9.1 of the Exposure Draft. ABI has a proposal to reinsert the word "ordinary". It's "five hours". It should be "five ordinary hours".

PN1034

COMMISSIONER BISSETT: Sorry, what was the clause number?

PN1035

MR FERGUSON: It's clause 9.1 of the Exposure Draft and 21.1 of the current award.

PN1036

COMMISSIONER BISSETT: Thank you.

PN1037

MR FERGUSON: The word "ordinary" seems to have been omitted.

PN1038

JUSTICE ROSS: Where would it go in, before "five hours"?

PN1039

MR FERGUSON: "No later than five ordinary hours".

PN1040

JUSTICE ROSS: And does everyone agree with that?

PN1041

MR FORSTER: Yes, no objection from AFEI.

PN1042

MR CRAWFORD: That is what the current award refers to, we accept.

PN1043

MR FERGUSON: I think it's an ABI proposal.

PN1044

JUSTICE ROSS: Yes, okay. Anything else that falls into the being able to sort category?

PN1045

MR SCOTT: Your Honour, it's Scott initial K from ABI. In our submissions we refer to clause 9 and the breaks.

PN1046

JUSTICE ROSS: Yes.

PN1047

MR SCOTT: And the submission is that it's preferable to separate the breaks into two categories of breaks, being the meal breaks and rest breaks to aid clarity in the document, and I think that is consistent with the current awards that are out there, and that submission is at paragraph 93 of ours submissions.

PN1048

JUSTICE ROSS: Yes. So that would really be a structural thing in - - -

PN1049

MR SCOTT: That's right.

PN1050

JUSTICE ROSS: - - - clause 9. You might have a - yes, okay, either a subheading or something like that to differentiate meal breaks and rest breaks, is that the idea?

PN1051

MR SCOTT: That's the suggestion. So you'd have clause 9 breaks and perhaps clause 9.1 rest breaks?

PN1052

JUSTICE ROSS: Yes.

PN1053

MR SCOTT: And then clause 9.2 or whatever it might be, meal breaks.

PN1054

JUSTICE ROSS: Yes, and you could have the scheduling of meal breaks and rest breaks, because that seems to apply to both, at the end of the clause. Is that right?

PN1055

MR SCOTT: Yes, or in the alternative you could repeat the same provision under both.

PN1056

JUSTICE ROSS: Yes.

PN1057

MR SCOTT: It could be either way.

PN1058

JUSTICE ROSS: Okay. Is there any objection from anyone about that sort of restructuring?

PN1059

MR FERGUSON: Look, we don't have a completed view about that. We haven't considered that in detail. On the face of it, not necessarily, but perhaps we can just deal with that through the next process.

PN1060

JUSTICE ROSS: Yes. Yes, but I mean if we did it in the - - -

PN1061

MR FERGUSON: It seems sensible - - -

PN1062

JUSTICE ROSS: - - - subsequent draft, you can have a look at it and see what you think.

PN1063

MR FERGUSON: Yes, it seems sensible on the face of it, but we'll just look at the drafting.

PN1064

JUSTICE ROSS: Yes, okay. AWU?

PN1065

MR CRAWFORD: Yes, none of the wording has changed so I can't imagine that's problematic.

PN1066

MR FORSTER: So AFEI (indistinct) but we'll have a look at it when it's drafted.

PN1067

JUSTICE ROSS: Okay. Mr Crawford, can we just go back to that issue about the overtime rates for the casuals? If you look at clause 14.2 which actually sets out percentages of overtime rates, the same distinction appears there that is - it's 225 for Monday to Friday for two hours and 200 for Saturday after two hours and Sunday all day. Is that an error too, or are the amounts in the schedule calculated incorrectly?

PN1068

MR CRAWFORD: We submitted on 26 September, your Honour, that that was also an error, that the reference to 200 should be changed to 225 per cent.

PN1069

JUSTICE ROSS: Well, what's the clause in the existing award that reflects that?

PN1070

MR CRAWFORD: Well, there may be an interaction between the casual clause and the overtime clause.

PN1071

MR SCOTT: I think that's right, your Honour. I think 12.3.1 of the individual award doesn't set out a table but it simply says that there were some - it indicated the rate at double time. Presumably that interacts with the casual clause in the casual labour.

PN1072

JUSTICE ROSS: All right. Okay, are there any other matters?

PN1073

MR FERGUSON: No, your Honour.

PN1074

MR CRAWFORD: Your Honour, just about clause 10.3(a), the higher duties provision.

PN1075

JUSTICE ROSS: Yes.

PN1076

MR CRAWFORD: We made a similar submission in relation to a number of awards about the wording.

PN1077

JUSTICE ROSS: Yes.

PN1078

MR CRAWFORD: I believe in the Cotton Ginning Award yesterday afternoon there was agreement that our wording was acceptable. I just wanted to raise whether that's the case in this award too?

PN1079

MR FERGUSON: Yes, there's no objection.

PN1080

JUSTICE ROSS: Yes, there's no objection from Ai Group. What's the position of the other employers?

PN1081

MR SCOTT: Your Honour, I think our position yesterday for the Cotton Ginning Award was that we were opposed to an amendment purely because we thought it was unnecessary.

PN1082

JUSTICE ROSS: Yes.

PN1083

MR SCOTT: However now it's not something that we're overly concerned with.

PN1084

JUSTICE ROSS: Okay.

PN1085

MR SCOTT: But for consistency I would think that however the Commission decided to deal with it - - -

PN1086

JUSTICE ROSS: Yes.

PN1087

MR SCOTT: - - - the wording, then it should be consistent across a number of awards.

PN1088

JUSTICE ROSS: Yes. No, I agree with that proposition. Yes, unless there's some particular reason in an award, we should endeavour to have the same language. Anyone else on this issue?

PN1089

MR FORSTER: It's just the AFEI. I think we put the same in the Commission yesterday, that it's just that (indistinct) for AFEI and it remains the case today.

PN1090

JUSTICE ROSS: All right, anyone else want to raise anything else? Look, just to make sure we have covered everything prior to moving to the next point and putting out a further Exposure Draft or our views on any of these matters in a tentative way, a conference will be organised before Commissioner Bull over the course of the next few weeks or so to just make sure that we've covered off on everything, okay? And that we understand your position on each of the matters. Well, that concludes the Premixed Concrete Award. The Asphalt Industry Award I think was listed at 11. Yes, so I'll call that award on.

PN1091

All right, I'll call on the Asphalt Industry Award. Can I have the appearances in Melbourne please?

PN1092

MR B FERGUSON: If the Commission pleases, my name is Ferguson initial B, for the Australian Industry Group, and with me at the bar table is MS R BHATT.

PN1093

JUSTICE ROSS: Thank you, and in Sydney?

PN1094

MR S CRAWFORD: If it pleases the Commission, Crawford initial S, from the AWU.

PN1095

JUSTICE ROSS: Mr Crawford.

PN1096
PN1097

MR S FORSTER: If the Commission pleases, Forster initial S, for AFEI.

PN1098

MR K SCOTT: If the Commission pleases, Scott initial K, seeking permission to appear on behalf of ABI and the New South Wales Business Chamber Limited.

PN1099

JUSTICE ROSS: Any objection to the application for permission to appear?

PN1100

MR FERGUSON: No objection.

PN1101

MR SCOTT: No, your Honour.

PN1102

MR CRAWFORD: No.

PN1103

JUSTICE ROSS: Permission is granted on the basis that having regard to the complexity of the matters we think the proceedings will be conducted more efficiently if permission were granted. Well, the parties are largely the same to the previous matter and the next few matters. We make the same observations, the part-time and casuals issue we will need to sort out where those are going and how they're going to be dealt with.

PN1104

There are some other matters that seem to be agreed. The AWU proposition in relation to clause 14.5, rest period after overtime, and I think there was an issue raised by ABI about this clause as well. Do the parties agree with the propositions or the issues that are raised and the proposed resolution in the AWU submission and the ABI submission about this matter?

PN1105

MR FERGUSON: We have no objection. We agree.

PN1106

JUSTICE ROSS: Okay.

PN1107

MR FORSTER: Sorry, your Honour, is the clause 14.5?

PN1108

JUSTICE ROSS: I thought so. I thought it was paragraph 70 of ABI's submission and page 2 of the AWU.

PN1109

MR FORSTER: I see.

PN1110

JUSTICE ROSS: I might have got the clause wrong. Just bear with me for a sec.

PN1111

MR FORSTER: No, your Honour. No, it's in - it's seems in a different place in my Exposure Draft and perhaps it's from my printing. Sorry, your Honour.

PN1112

JUSTICE ROSS: That's okay.

PN1113

MR SCOTT: Your Honour, I think they're slightly different issues but I think the ABI submission in relation to 14.5(a) is that the notion of practicability has been removed from that provision and I understand that that submission was agreed, that the AWU have effectively said that they (indistinct) that clause (indistinct).

PN1114

MR FORSTER: Yes, I agree with that.

PN1115

JUSTICE ROSS: Okay, and the AWU?

PN1116

MR CRAWFORD: I mean, I don't know about - I mean, I think our position was the reference to practicability is in the current award so on that basis, you know, we accept that the Exposure Draft be amended. Our main issue was just confirming that 14.5 isn't confined to shift workers.

PN1117

JUSTICE ROSS: Yes.

PN1118

MR CRAWFORD: Yes.

PN1119

JUSTICE ROSS: And I think ABI agreed with that proposition. Ai Group has indicated they don't have any objection to it.

PN1120

MR FORSTER: the AFEI don't, your Honour.

PN1121

JUSTICE ROSS: Yes, okay. So I think those two matters seem to be resolved. What about the - there's another issue that ABI raises on 14.5 and that's the way the loading is expressed. It's expressed as a loading of 100 per cent and ABI is proposing that that should be changed to 200 per cent at the ordinary hourly rate, for consistency purposes. Does anyone have any problem with that?

PN1122

MR CRAWFORD: No.

PN1123

JUSTICE ROSS: Okay, there also seems to be a measure of agreement at least between the AWU - although maybe it's everybody - about 15.4, Closedown, in that there was a draft determination in the report to the Full Bench that doesn't seem to have been reflected in the Exposure Draft.

PN1124

MR SCOTT: I think that's right, your Honour, and I think there was a draft determination on the issue of what is the existing clause 25.4(a), Closedown. There was a draft determination attached to Commissioner Riordan's report to the Full Bench of 17 July. That drafting hasn't been adopted through the Exposure Draft. I suppose the parties' positions would be that the wording in the draft determination should be adopted, but I haven't checked to see how different it is from what's in the Exposure Draft.

PN1125

JUSTICE ROSS: Yes, okay. Anyone have anything else they want to add to that point? There are some issues about the calculation of amounts and we might go to those. Ai Group says in schedule A the calculation of the casual ordinary hourly rate in A2 is incorrect because the calculation, it said, incorrectly includes the industry and inclement weather allowances. Whereas the current award says the casual loading is calculated on the minimum weekly rate and that allowances are paid in addition, so you don't get the loading on top of the allowance, you get the allowances paid separately. What's the view of the other parties about that?

PN1126

MR FORSTER: AFEI agree with that, your Honour.

PN1127

JUSTICE ROSS: Yes.

PN1128

MR SCOTT: ABI take the same view, your Honour.

PN1129

JUSTICE ROSS: Okay, and AWU?

PN1130

MR CRAWFORD: We disagree, your Honour. Our understanding is that the allowance is payable for all purposes and the application of the casual loading is a purpose of the award and hence should be - hence effectively the 25 per cent should be added to the rate which includes the all-purpose allowances.

PN1131

JUSTICE ROSS: All right. There are two other issues that seem to relate to rates or percentages. One is the same issue the AWU has raised in the previous award. This is the schedule A, Summary of hourly rates, and that the 200 per cent column you say should be added to 1.5 and 2.4 for clarity, is that right?

PN1132

MR CRAWFORD: Yes, it's a little different - - -

PN1133

MR……….: It is a bit different, yes.

PN1134

MR CRAWFORD: - - - to the previous issue. I mean, it was just a - I mean, to - there's no substantive change. It would just be clarifying what the rate is for after eight hours, because I thought if you're going to include a comprehensive table that should probably go in there too.

PN1135

JUSTICE ROSS: Anyone have any - - -

PN1136

MR CRAWFORD: Because the rates - - -

PN1137

JUSTICE ROSS: - - - objection? Yes.

PN1138

MR FERGUSON: No objection.

PN1139

JUSTICE ROSS: No objection? AFEI, ABI? I mean, you'll get to see what it looks like in the subsequent Exposure Draft but is there any in-principle opposition?

PN1140

MR FORSTER: Not from AFEI, your Honour.

PN1141

MR SCOTT: Not at this stage, your Honour.

PN1142

JUSTICE ROSS: Okay. AWU has also got a proposition around schedule F about the definition of ordinary hourly rates. Is that the cross-reference? Is that a cross-reference issue?

PN1143

MR CRAWFORD: Yes.

PN1144

JUSTICE ROSS: So you say the reference should be to clause 8 rather than clause 10?

PN1145

MR CRAWFORD: No, I think the other way around.

PN1146

JUSTICE ROSS: It's the other way around? Yes, you're right. Yes, so currently the Exposure Draft refers to clause 8 and you say that should be a reference to clause 10?

PN1147

MR CRAWFORD: Yes.

PN1148

JUSTICE ROSS: And this is in schedule F?

PN1149

MR CRAWFORD: Correct.

PN1150

JUSTICE ROSS: Anyone have any problem with that?

PN1151

MR FORSTER: No, your Honour.

PN1152

JUSTICE ROSS: Okay, are there any other matters that in the parties' view there seems to be a significant measure of agreement? I think some of the other matters where the AWU is seeking a change to the position put by some of the employer parties is that there has been no dispute so there's no need for the change. I understand that submission. Is it also put on the basis that you would oppose the change because it somehow changes the right or entitlement, or is it just that you don't think it's necessary? And I'm thinking here of the proposed change to 8.1(d) and the proposed change to - well, the higher duties one we've dealt with.

PN1153

MR FORSTER: I think the view of AFEI is that 8.1(d) is primarily - whether it was necessary or not, I think it's our view that the Exposure Draft wasn't inconsistent with the current award and (indistinct) to understand and therefore it didn't need anything further.

PN1154

JUSTICE ROSS: Yes.

PN1155

MR SCOTT: I think that's right, your Honour. I don't think, at least as far as I'm aware, it's a question of change to the substantive entitlement. I think it's simply a question of re-drafting a clause which we say doesn't need redrafting.

PN1156

JUSTICE ROSS: Yes, okay. Is there anything else any party wishes to say about matters in relation to this award? I think a number of the matters raised on the earlier Exposure Draft have been picked up and amended in the subsequent draft of 9 October. Is there anything further in relation to this award?

PN1157

MR FORSTER: Just a quick clarification, your Honour. I'm not sure if the amended Exposure Draft picks up what seems to be agreement between the parties about a reference in clause 13.3(a) concerning the hours of work for shift workers.

PN1158

JUSTICE ROSS: Yes?

PN1159

MR FORSTER: And so 13.3(a) of the Exposure Draft refers to the maximum hours that may be worked over a period of 28 consecutive days, and at present it is 144 hours.

PN1160

JUSTICE ROSS: Yes.

PN1161

MR FORSTER: It's the view of AFEI and I believe the view of the other parties, that that is (indistinct) in the (indistinct) award and it should be 152 hours, consistent with the pattern to average 38 hours over a four-week period.

PN1162

JUSTICE ROSS: Yes, is that the position of all the parties?

PN1163

MR FERGUSON: Ai Group supports that.

PN1164

JUSTICE ROSS: Okay.

PN1165

MR SCOTT: ABI had a look, your Honour - - -

PN1166

JUSTICE ROSS: I'm sorry, could you speak up or into the microphone, I couldn't hear that?

PN1167

MR SCOTT: Sorry, your Honour. ABI had a look at the existing clause and yes, I think that's right. I think it should be 152 hours.

PN1168

JUSTICE ROSS: Okay. AWU?

PN1169

MR CRAWFORD: Your Honour, the current award does also refer to 144 hours but prima facie whilst I'd like to keep a more beneficial condition, there doesn't appear to be much justification for that figure of 144 hours.

PN1170

JUSTICE ROSS: No, it does look like it was an error when the modern award was made. But look, it can be put in the Exposure Draft and, you know, we're not wanting to preclude you from running an argument. But on the face of it, it just looks like an error.

PN1171

MR CRAWFORD: Yes, your Honour. That's our - - -

PN1172

JUSTICE ROSS: Yes.

PN1173

MR CRAWFORD: - - - (indistinct) - - -

PN1174

JUSTICE ROSS: Look, you might want to look at the awards, that it went into this award, there might be some odd reason for it but I can't think of one off the top of my head. Were there any other matters about this award?

PN1175

MR FORSTER: I don't believe so.

PN1176

JUSTICE ROSS: Okay. Like the other matter, this matter will go to a conference before Commissioner Bull. Because there are the same parties involved, it's likely to be done consecutively just to make sure we haven't missed anything on the way through. Okay? I think the next matter is Cement and Lime. That's listed for not before 11.30 so we might take a 15-minute break and come back at 11.30. Thank you.

<SHORT ADJOURNMENT [11.13AM]
<RESUMED [11.32AM]

PN1177

JUSTICE ROSS: Just bear with me for a moment. If you could just bear with me for a moment.

PN1178

MR CRAWFORD: Certainly.

PN1179

JUSTICE ROSS: I think there are four categories of matters in respect of the Exposure Draft. There are those that relate to part-time and casual, and there might be a degree of overlap with the common issues. There are those matters which the AWU has raised consistently in a range of other awards. That is, for example, the higher duties matter.

PN1180

There are those matters which might be regarded as sort of simple, technical issues. That is, whether the schedule A, schedule B rates in the columns are correct et cetera, and then there are the balance of matters that go to other issues. Are there any matters that on the face of it are agreed between all the parties, or is anything that you can identify that would be agreed or largely agreed?

PN1181

MR CRAWFORD: Your Honour, I'm not sure if this agreed but I recall it's pretty straightforward. Clause 14.1(c).

PN1182

JUSTICE ROSS: Yes?

PN1183

MR CRAWFORD: We think a minimum engagement of four hours on Sunday is missing for the cement and lime industry.

PN1184

JUSTICE ROSS: Yes.

PN1185

MR CRAWFORD: It appears in clause 23.1 of the current Cement and Lime Award.

PN1186

JUSTICE ROSS: Yes.

PN1187

MR FERGUSON: We don't object.

PN1188

MR FORSTER: Your Honour, if there was a point I think that would (indistinct) by AFEI. The point that we raised I believe was that we didn't consider the reference to four hours in that particular provision as necessary because the award itself already provides for a four hour minimum engagement for casuals at any time. But that being said, it's a relatively straightforward proposition put forward and it's one that we certainly wouldn't die in a ditch over it, and if the Commission is minded to reinsert it in that provision then we can live with it.

PN1189

MR CRAWFORD: Yes, this does only apply to casuals, this clause.

PN1190

MR FORSTER: I see.

PN1191

JUSTICE ROSS: It has just occurred to me that I may not have taken the appearances at the commencement, as these matters are starting to drift into each other. So I might do that a bit belatedly now. In Melbourne first?

PN1192

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

PN1193

JUSTICE ROSS: Thank you, and in Sydney?

PN1194

MR S. CRAWFORD: If it pleases the Commission, Crawford initial S, from the AWU.

PN1195

JUSTICE ROSS: Thank you.

PN1196

MR S. FORSTER: If the Commission pleases, Forster initial S, for the AFEI.

PN1197

JUSTICE ROSS: Thank you.

PN1198

MR K. SCOTT: If the Commission pleases, Scott initial K, seeking permission to appear on behalf of ABI and the New South Wales Chamber of Business.

PN1199

JUSTICE ROSS: Thank you. No objection to the - - -

PN1200

MR FERGUSON: No objection.

PN1201

JUSTICE ROSS: - - - application seeking permission?

PN1202

MR CRAWFORD: No.

PN1203

JUSTICE ROSS: Permission is granted on the basis that having regard to the complexity of the matter it would be conducted more efficiently. All right, we'll get back to - yes, are there any other matters that fall into that category? That is, matters which are fairly straightforward.

PN1204

MR FORSTER: Your Honour, I'm having a look at ABI's reply submissions.

PN1205

JUSTICE ROSS: Yes.

PN1206

MR FORSTER: And there are a couple of matters which we agreed with the AWU - - -

PN1207

JUSTICE ROSS: Yes, you did.

PN1208

MR FORSTER: So clauses 8.4 - sorry, 8.5 and 8.6.

PN1209

JUSTICE ROSS: 8.5 and what was the other one?

PN1210

MR FORSTER: 8.6, your Honour.

PN1211

JUSTICE ROSS: Yes.

PN1212

MR FERGUSON: We agree with those as well.

PN1213

JUSTICE ROSS: Okay.

PN1214

MR FORSTER: Sorry, your Honour, I think at 8.6 the amended Exposure Draft has actually picked that up. So I - - -

PN1215

JUSTICE ROSS: Yes, it has.

PN1216

MR FORSTER: - - - think that's resolved.

PN1217

JUSTICE ROSS: Anything else that any party think might be in the generally agreed category?

PN1218

MR CRAWFORD: So does that mean 8.5 will be fixed up, your Honour?

PN1219

JUSTICE ROSS: If it's generally agreed, yes it will go into the next Exposure Draft on that basis. Yes.

PN1220

MR FORSTER: There was another matter raised by the AWU which concerned the wording of the annual closedown provision, and in particular at clause 29.4(a) of the modern award and at 15.4(a) of the Exposure Draft - - -

PN1221

JUSTICE ROSS: That's right.

PN1222

MR FORSTER: Speaking for AFEI, we agree with the proposition of the AWU that the existing wording is preferable to what has been included in the Exposure Draft.

PN1223

JUSTICE ROSS: Is there general agreement about that?

PN1224

MR FERGUSON: Yes, there is.

PN1225

JUSTICE ROSS: Okay.

PN1226

VICE PRESIDENT HATCHER: Mr Crawford, can we just go back to those weekend minimum hours for a second? Did you say the existing clause was 23.1?

PN1227

MR CRAWFORD: Yes, of the Cement and Lime Award.

PN1228

VICE PRESIDENT HATCHER: I see. Just let me check I'm looking at the right award.

PN1229

COMMISSIONER BISSETT: Yes.

PN1230

VICE PRESIDENT HATCHER: Yes, clause 23.1 of that seems to say that the minimum applies only on Sundays.

PN1231

MR CRAWFORD: Yes.

PN1232

VICE PRESIDENT HATCHER: That's different from the quarries, is it?

PN1233

MR CRAWFORD: Well I just don't think that the minimum of four hours, even if it's confined to Sunday, has made it into the Exposure Draft.

PN1234

VICE PRESIDENT HATCHER: No, I accept that. I just wanted to check whether it was different from the quarries or not. So the quarries is Saturday and Sunday but the cement and lime is Sunday only, is that right?

PN1235

MR CRAWFORD: Well, clause 23.1 of the cement and lime, I agree, refers to the four hours for Sunday. I mean, the minimum engagement for the quarrying industry appears to have been picked up in clause 14.2(c).

PN1236

VICE PRESIDENT HATCHER: But there's a discrete 14.6 as well for all employees, not just casuals.

PN1237

MR FORSTER: Your Honour, clause 14.6 appears to resolve the issue.

PN1238

MR CRAWFORD: Yes I accept that, your Honour.

PN1239

JUSTICE ROSS: So what do you accept?

PN1240

MR CRAWFORD: Sorry?

PN1241

JUSTICE ROSS: What are you accepting?

PN1242

MR CRAWFORD: Well, it appears I overlooked clause 14.6 of the Exposure Draft.

PN1243

JUSTICE ROSS: So 14.6 applies to quarries and cement and lime, does it? Is that the way we're to read that?

PN1244

COMMISSIONER BISSETT: Yes, so it solves the problem of 14.1 but - sorry, 14.6 resolves the issue of the minimum weekend engagement, is that right?

PN1245

MR CRAWFORD: It appears so. I mean, as long as that provision covers cement and lime, which perhaps could be made clearer in terms of the headings, then that would appear to be the case.

PN1246

JUSTICE ROSS: Well, I think it's clear that apart from where industries appear in the heading of the sub-clause the clause is of general application, doesn't it?

PN1247

MR CRAWFORD: Yes, then that's fine. That issue is resolved.

PN1248

COMMISSIONER BISSETT: Yes.

PN1249

JUSTICE ROSS: Yes, all right. Are there any other matters that the parties think might be capable of agreement or where there positions are largely agreed?

PN1250

MR SCOTT: Yes, your Honour. Clause 11.2(c) of the Exposure Draft dealing with the (indistinct) allowance, the AWU have identified in that table that the quarrying industry, the third line down, "Six to 10 employees" should probably read "Seven to 10 employees".

PN1251

JUSTICE ROSS: Yes. Anyone disagree with that?

PN1252

MR FERGUSON: No.

PN1253

MR FORSTER: No, your Honour.

PN1254

MR CRAWFORD: No.

PN1255

JUSTICE ROSS: Okay. Any other matters that fall into that sort of category?

PN1256

MR FORSTER: Your Honour, it's not a matter that requires agreement but just I'd like to make a point about paragraph 17(a) of the AFEI's final submission. It concerns clause 6.4(a) of the Exposure Draft and the inclusion of the words "an agreed number of hours" in the part-time employee provision.

PN1257

JUSTICE ROSS: Yes.

PN1258

MR FORSTER: There was originally a view that that may have amended the nature of the arrangements that needed to be agreed with, so a part-time employee with perhaps limited flexibility. But on going through inspection, I'm not sure that that's the case and so that's not something that we'd seek to press.

PN1259

JUSTICE ROSS: Okay. Anything else either that you think is broadly agreed or could be or where you have a - you've reconsidered an initial position, from anyone? No?

PN1260

MR FORSTER: Your Honour, I'm not sure if it's wishful thinking on my part, but there was a proposition put by AFEI relating to clause 11.3(m)(ii) concerning a temporary change in locality.

PN1261

JUSTICE ROSS: Yes.

PN1262

MR FORSTER: The AFEI has provided for the inclusion of the word "reasonable" before "expenses that must be reimbursed" which we consider to be consistent with other reimbursement provisions in the allowances clause.

PN1263

JUSTICE ROSS: What's the AWU's position about that?

PN1264

MR CRAWFORD: I mean, it appears there is a definition of expense in 11.3(l) that does talk about reasonable expenses. So perhaps if that definition could be extended as a potential fix?

PN1265

JUSTICE ROSS: Yes and look, the other allowances or, rather, the other reimbursement matters do seem to have some sort of limitation. So for example laundering of protective clothing, you're reimbursed with the demonstrated costs of laundering. Yes, okay. Well, what's the reaction to the AWU proposition that it might be dealt with by an extension of (l)?

PN1266

MR FORSTER: Just having a quick look at (l), at this point in time it's limited to (j), so if the proposition is to extend it to other parts of the award such as (m) that may be sufficient. Perhaps it's something that I could give a little bit more thought to though, your Honour.

PN1267

JUSTICE ROSS: And look, I think a number of these matters might benefit from more direct discussions between the parties and you may be able to sort out a number of them. Our intention would be that a conference would be convened before Vice-President Hatcher in Sydney to work through the balance of the issues in relation to this matter as well. But prior to that conference I'd certainly encourage the parties to have direct discussions in an effort to resolve some of the outstanding matters.

PN1268

MR FORSTER: Yes, it would be a benefit.

PN1269

JUSTICE ROSS: Is there anything else that anyone wishes to raise about this award at this stage? No?

PN1270

MR CRAWFORD: No, your Honour.

PN1271

JUSTICE ROSS: Okay. I think the concrete products matter is the last matter and it's at 12, and I think there is another party that has an interest in that matter. So we'll just adjourn for 10 minutes or so until 12 noon. Thank you.

<SHORT ADJOURNMENT [11.50AM]
<RESUMED [12.05PM]

PN1272

JUSTICE ROSS: Could I have the appearances please, firstly in Melbourne?

PN1273

MR B. FERGUSON: If the Commission pleases, Ferguson initial B for the Australian Industry Group, and with me is MS R. BHATT.

PN1274

JUSTICE ROSS: Thank you, and in Sydney?

PN1275

MR S. CRAWFORD: If it pleases the Commission, Crawford initial S, from the AWU and the CFMEU.

PN1276

MR M. HART: If it pleases the Commission, Hart initial M. I seek permission to appear for the Concrete Masonry Association of Australia and I'm continuing an appearance for Brickworks Limited.

PN1277

JUSTICE ROSS: Thank you.

PN1278

MR S. FORSTER: Yes, if the Commission pleases, Forster initial S, for AFEI.

PN1279

JUSTICE ROSS: Thank you.

PN1280

MR K. SCOTT: If the Commission pleases, Scott initial K, seeking permission to appear on behalf of ABI and the New South Wales Business Chamber Limited.

PN1281

JUSTICE ROSS: Thank you, any objections to the applications for permission to appear?

PN1282

MR FERGUSON: No objection.

PN1283

MR CRAWFORD: No objection, your Honour.

PN1284

JUSTICE ROSS: Permission is granted in each case. Having regard to the complexity of the matter, we think it would be more efficiently dealt with by the granting of permission. Can I note at the outset that as appears in the revised schedule that was posted on the AMOD website the substantive issues in relation to this award, the substantive issues in relation to this award, that is in essence the Brickworks claims, have been referred to a differently constituted Bench headed by Senior Deputy President Watson, and he has a number of awards and a number of substantive issues and he'll issue directions in relation to the hearing of those matters in due course. Okay?

PN1285

MR FORSTER: Thank you, your Honour.

PN1286

JUSTICE ROSS: If we go to the matters that - sorry, was someone saying something? No? If we go to the matters other than the Brickworks matters which are raised in respect of this award, those issues that relate to casuals and part-timers we still have to sort out which of those might be the subject of the Common Issues Bench. So we might leave them to one side for a moment. If we go through the other matters, the AWU matter in clause 9.3 paragraph A I think this is a proposition that you put forward some amended wording about the second break, I think. And I think ABI - or the note I had was that ABI agreed with the AWU submission, is that correct?

PN1287

MR SCOTT: Your Honour, I've had a closer look at this particular provision today and after having some discussions with AFEI I'm not sure that that is now our current position. But based on the Exposure Draft I think the current reading is appropriate and it appropriately reflects the current award provisions. So if I can kind of jump away from my submission at paragraph 72 and support the AFEI position?

PN1288

JUSTICE ROSS: Yes. No, I thought that might be your view after reading the AFEI submission, but I just wanted to check.

PN1289

MR FERGUSON: I think our preference is to the Exposure Draft wording and we deal with that in the submissions.

PN1290

JUSTICE ROSS: Okay, there aren't actually many other matters. A number of the issues that were raised have been resolved in the amended Exposure Draft put out on 9 October. You will see also the AWU raises four matters in relation to schedule B. The first of those is that the public holiday rate for non-continuous shift workers is 250 per cent. There's also an issue raised about the heading at B4.2, it does not indicate that those are shift rates, and the AWU also submits that the public holiday rate for non-continuous shift worker casuals is 275 per cent.

PN1291

And there are observations made by the AWU about B3.3, that the Sunday overtime rate for non-continuous shift workers is 200 per cent, and at B5.3 that the overtime rate on Sunday for non-continuous shift work casuals is 225 per cent for all work. Now those appear to be proposed technical changes where the schedule - I think this is the way it's put by the AWU - where the schedule doesn't reflect the substantive provision in the Exposure Draft or in the previous - in the current award. Is that right?

PN1292

MR CRAWFORD: Your Honour, in terms of schedule B.2.2 and schedule B.4.2 those issues have been addressed in the amended Exposure Draft.

PN1293

JUSTICE ROSS: Okay.

PN1294

MR CRAWFORD: So they're fixed. The other two issues - - -

PN1295

JUSTICE ROSS: Are the other two issues B.3.3 and B.5.3?

PN1296

MR CRAWFORD: Yes. So they essentially interact with our concern in relation to clause 13.9(b)(i).

PN1297

JUSTICE ROSS: Yes?

PN1298

MR CRAWFORD: I mean, we think it's clearly an error admittedly also in the current modern award that non-continuous shift workers are referred to as getting ordinary time for working on Sundays and public holidays. We believe that's an error and that penalty rates should clearly apply.

PN1299

COMMISSIONER BISSETT: What was the predecessor award to the modern award?

PN1300

MR CRAWFORD: There was a federal Cement and Concrete Products Award. I think they're identified on the award rate if you - - -

PN1301

JUSTICE ROSS: Yes.

PN1302

COMMISSIONER BISSETT: Yes.

PN1303

JUSTICE ROSS: Look, this matter will also be the subject of a further conference before Commissioner Bull, but it may be that that issue that you've raised about the rates for Sunday and public holidays for shift workers, there's a degree of overlap between that and the Brickworks claim, and it may be that that issue goes to the other Bench as well. But that's something that can be discussed at the conference to see what is the view of the parties as to the most sensible way of dealing with that. Are there any other matters that - there aren't many other issues raised in respect of this award, once you take out the Brickworks matter and the casuals. Are there any other matters where the parties believe that there's an agreed position?

PN1304

MR SCOTT: Your Honour, there is a submission from the AWU on clause 11.3(a) which ABI has agreed with in its submission in reply.

PN1305

MR……….: I think that might be - - -

PN1306

JUSTICE ROSS: I'm sorry?

PN1307

MR……….: - - - a (indistinct).

PN1308

JUSTICE ROSS: Yes, I think that was picked up in the revised Exposure Draft.

PN1309

MR SCOTT: Yes. Sorry, your Honour.

PN1310

JUSTICE ROSS: That's all right. Any other matters? Anything else any party wishes to say? Yes?

PN1311

MR CRAWFORD: Just that there's another typo perhaps in clause 18.3.

PN1312

JUSTICE ROSS: Yes? Yes.

PN1313

MR CRAWFORD: Well I mean, that may interact with the other issue I raised before, but on the face of it the reference to a shift worker working on a public holiday are paid in accordance with 13.8 (indistinct) to public holiday rates and more in 13.9. But perhaps we could leave that for when the other issues are dealt with.

PN1314

JUSTICE ROSS: Yes, you can discuss it at the conference about which matters might be related to that general issue, and it might be convenient to deal with them by the other Bench, and we'll hear what all the parties think about that.

PN1315

MR FORSTER: Your Honour, that's perhaps also a good opportunity to discuss clause 13.2(d) which the AWU has suggested there is currently some ambiguity in. I think there are a couple of parties, certainly AFEI have noted that we agree there could be some confusion arising from the current wording that's used, and perhaps the parties can nut that out with Commissioner Bull and seek to reach agreement on the best way to address that.

PN1316

JUSTICE ROSS: Yes, and we'd certainly encourage you to have discussions prior to the conference and see where you can get to.

PN1317

MR FORSTER: Yes, we will do that.

PN1318

JUSTICE ROSS: Thank you. Are there any other matters? Anything else any party wishes to raise at this stage? No, okay. As I've indicated, Commissioner Bull will convene a conference over the course of the next few weeks and we'll see where go to in that regard. Thanks very much for your attendance. We will adjourn until 2 pm when we'll dealing with the NES matter.

<LUNCHEON ADJOURNMENT [12.16PM]
<RESUMED [2.02PM]

PN1319

JUSTICE ROSS: Can I have the appearances please, firstly in Melbourne?

PN1320

MS V WILES: If the Commission pleases, Wiles initial V, for the Textile Clothing and Footwear Union of Australia.

PN1321

JUSTICE ROSS: Thank you Ms Wiles.

PN1322

MS A. MOUSSA: If the Commission pleases, Moussa initial A, for the Australian Manufacturing Workers Union legal division.

PN1323

JUSTICE ROSS: Thank you.

PN1324

MS R. RIED: If it pleases the Commission, Ried, initial R, for the Construction, Forestry, Mining and Energy Union, forestry and furnishing products division.

PN1325

JUSTICE ROSS: Thank you, Ms Ried.

PN1326

MS J. DOLAN: If the Commission pleases, Ms Dolan, initial J, for the ACTU and today I'm making some submissions for the United Firefighters Union, APESMA and the NTEU.

PN1327

JUSTICE ROSS: Thank you.

PN1328

MR B. FERGUSON: If the Commission pleases, Ferguson initial B, for the Australian Industry Group. With me is MS R BHATT.

PN1329

JUSTICE ROSS: Thank you, Mr Ferguson. Anyone else in Melbourne? In Sydney?

PN1330

MR A. BORG: Borg initial A for the CFMEU, construction division.

PN1331

JUSTICE ROSS: I'm sorry, could you repeat that, I missed that?

PN1332

MR A. BORG: Borg initial A for the CFMEU construction division.

PN1333

JUSTICE ROSS: Thanks Mr Borg.

PN1334

MS S. TAYLOR: Taylor, initial S, for the Australian Manufacturing Workers Union.

PN1335

JUSTICE ROSS: Ms Taylor.

PN1336

MR S. CRAWFORD: If it pleases the Commission, Crawford initial S, from the AWU.

PN1337

JUSTICE ROSS: Mr Crawford.

PN1338

MR S. FORSTER: If the Commission pleases, Forster, initial S, for the Australian Federation of Employers and Industries.

PN1339

JUSTICE ROSS: Mr Forster.

PN1340

MR K. SCOTT: If the Commission pleases, Scott initial K, seeking permission to appear on behalf of Australian Business Industrial and the New South Wales Business Chamber Limited.

PN1341

JUSTICE ROSS: Thank you, and can I have the appearances in any other state please?

PN1342

MS S. McKINNON: If it pleases the Commission, McKinnon initial S, from the National Farmers Federation.

PN1343

JUSTICE ROSS: Thanks Ms McKinnon. Anybody else? Look, I want to make some general observations but can I firstly direct your attention to - there should be copies available of this document. It has already been posted on the AMOD website but out of an abundance of caution we've got some spares available in most places. It's a summary document headed Four Yearly Review of Modern Awards NES Issues. The document is an 18 page document dated 22 October. Can I just check that everyone has got it or got access to it? Everyone in Melbourne all right?

PN1344

MR FERGUSON: Yes.

PN1345

MS WILES: Yes.

PN1346

JUSTICE ROSS: Sydney?

PN1347

MR FORSTER: Yes, your Honour.

PN1348

MS TAYLOR: Yes thank you, your Honour.

PN1349

JUSTICE ROSS: And Ms McKinnon of the NFF, whereabouts are you?

PN1350

MS MCKINNON: In Canberra, your Honour, and yes we have the document.

PN1351

JUSTICE ROSS: All right. I'll come to that in a moment. I wanted to make two other general observations about some of the material that has been filed. The first is a letter from ACCI dated 26 September 2014. ACCI, the essence of that - it's on the website. As I understood it - it's a pity they're not here but as I understand their proposition that correspondence from the Fair Work Ombudsman should not of itself trigger proceedings and in the absence of an interested party raising a matter. Can I indicate that the Bench rejects that view.

PN1352

Our view is that if by any means an alleged inconsistency between the NES and an award provision comes to the Tribunal's attention then we'll be dealing with it. So no party should work on the assumption that just because they're not agitating an issue but somebody else has, that we won't be dealing with it, okay? I'll come to how we're proposing to deal with these matters because there are different levels of complexity with them. I'll come to that in a moment. I wanted to make that observation at the outset.

PN1353

The second is in the CFMEU correspondence, I'm not sure whether it's the timber or which division it is, but there's the observation - I think it might the Timber Award - that some of those issues are said to be award-specific and they should be dealt with by the single member that dealt with the conferences. The two observations I'd make is no, we'll deal with the NES inconsistency issues and in any event there's no power for a single member to deal with the four yearly review matters. So just to clarify that for you, that it's this Bench that will deal with all of those issues.

PN1354

Now when we've gone through all of the submissions and the replies and the characterisation of the NES issues it seems to us that they fall into five main groups, and we propose to deal with them differently depending on which group they're in. I'll explain the groupings in general terms and invite any questions about the groupings, or if you want some further elaboration. Vice-President Hatcher will then take you through which of the matters in the document I've referred you to, which grouping we're proposing to allocate them to.

PN1355

We'll then put out a statement next week after we've heard from you about if you think - this will make more sense when I've explained the groupings, but if you think something should be in group 1 and we have allocated it to group 3, then today will be an opportunity for you to say something about that. We'll publish a statement next week which will confirm what I'm about to tell you and incorporate or address any comments that you make as we go through. I know that sounds a bit Delphic but it will hopefully make more sense when I've stopped talking.

PN1356

Group 1, there are a number of matters which deal with the payment of annual leave loading on termination. That matter will not be dealt with by us. It will be dealt with by the Full Bench that's dealing with the common issues on annual leave because that's identified as a common issue to be addressed by them. I'll distinguish from that those matters that are before us where, for example, it's the payment out of accrued leave on termination and there's an issue about the award provision says you don't get it if you're dismissed for misconduct, or it might say you only get it after so many years of service. This Bench will be dealing with those matters. That's group 1.

PN1357

Group 2 is the TCFUA Award. You'll be relieved to hear, Ms Wiles, you might not need to say much to us today. It seems to us there's general agreement that the parties are conferring about that issue. We think you should bring that to a resolution. We'll put in the draft statement next week a timeline within which we want to hear from you about whether you've reached an agreed position on the NES inconsistency issue. We know that you're talking about a range of other matters, but just about that issue.

PN1358

MS WILES: Your Honour, if I might interrupt for one moment? Just on that issue I can advise the Bench that an in-principle position, a consent position, has been reached between the industrial parties.

PN1359

JUSTICE ROSS: Okay.

PN1360

MS WILES: Including in relation to that matter, and we're just in the process of settling a draft determination which we were intending to provide Commissioner Lee by close of business Monday.

PN1361

JUSTICE ROSS: Okay, well once you've settled that with the Commissioner if you forward it to my chambers and also to Senior Deputy President Watson.

PN1362

MS WILES: Yes.

PN1363

JUSTICE ROSS: And we'll be dealing with the NES matter and the Senior Deputy President has got the other matters. Okay, thank you. So that's group 2 taken care of. Group 3, there are a number of matters where it is agreed on the material that we have before us that the award provision is inconsistent with the NES and there appears to be agreement about the remedy to that, and the remedy is usually the removal of that provision. We'll come to what matters we think fall into that category and give you an opportunity to correct us on that.

PN1364

Group 4 are those matters where it seems to be agreed that the award provision is inconsistent with the NES, but there's no agreement about how that inconsistency might be remedied, or alternatively one party has proposed a resolution to the inconsistency but other parties haven't responded to that so we're not sure whether there's an agreement on the remedy or not. But there seems to be agreement on the inconsistency question. Group 5 is broadly where there's no agreement about anything. There's no agreement that the provision itself is inconsistent with the NES.

PN1365

So those were the five categories. Let me briefly recap. The first one, annual leave loading on termination, will be dealt with by the other Full Bench. TCF, we've heard where that matter's going. Group 3, where on the submissions that have been put in there's agreement that it's inconsistent with the NES and an agreement about - or it can be inferred an agreement about what should be done about that. Group 4, there's general agreement that the award provision is inconsistent with the NES but it's not clear whether the parties are agreed on a remedy. Group 5, no agreement that the provision is inconsistent with the NES. So how we're proposing to deal with these is as follows.

PN1366

Group 1, the annual leave loading, the other Full Bench will deal with that. TCF should sort itself out. The NES inconsistency within group 3 where that's agreed and the remedy is agreed, and group 4 where it is agreed there's inconsistency but no agreement on remedy, we would propose - subject to whatever else anyone wants to say this afternoon we'll proceed to make a decision on the basis of the material that's in on those issues. Where it's not clear that there's an agreement on remedy, and indeed even where there is an agreement on remedy, we'll deal with the issue of principle about whether or not we think there's an inconsistent with the NES and we'll publish draft determinations to give effect to that, and there will be an opportunity to comment on those draft determinations.

PN1367

Group 5 is more complex. These are the ones where there are disputes about whether there is any inconsistency at all. In relation to those matters our intention is to publish a background document before the end of this year, identifying in more detail what the award provision is, what the arguments are, and then putting in a submission process and dealing with that next year, probably early in February but we will provide some timelines in the statement that we put out next week, and we'll invite some comment about the - there will be some draft directions in there and we'll invite comment about that, okay?

PN1368

So those are the categories and that's how we propose to deal with them, and so the short version is if you put in a submission saying you agree it's inconsistent then you don't need to take us to that. If you put in a submission saying that you don't agree with either the Fair Work Ombudsman or another party, and your position is that the provision is not inconsistent with the NES, then you can be assured that we're not about to move into any decision on that issue at this stage. We want to make sure that those issues are fully canvassed.

PN1369

We're conscious that the NES inconsistency issues we're dealing with apply to awards in all four stages of the review proceedings. That may not have been apparent to some parties, so that's why we'll put out the statement next week to make it crystal clear what we're doing, in the event that anyone feels that they haven't had an opportunity thus far to say anything about it. Okay? So those are the groupings, that's the process. Any questions on the groupings and the process before Vice-President Hatcher takes you through which ones fit into which group?

PN1370

MR FERGUSON: Just in relation to group 4.

PN1371

JUSTICE ROSS: Yes.

PN1372

MR FERGUSON: Do I take it that there will be a statement or a decision made in respect of whether there is an inconsistency in the first instance? Then I suppose I'm seeking some clarification in relation to the opportunity to comment on the resolution. We - - -

PN1373

JUSTICE ROSS: Yes, there will be an opportunity to comment on the resolution even where it appears that the remedy is agreed, because we would issue draft determinations and provide an opportunity to comment. Look it's difficult to be completely definitive in response to your question, but we may adopt one of two approaches in relation to group 4. Where the inconsistency is agreed we'll certainly deal with that issue, whether we think there's an inconsistency. And if there's no agreement on remedy we may express a tentative view and have a draft determination, or we may say that we want a party to file something.

PN1374

MR FERGUSON: Yes.

PN1375

JUSTICE ROSS: Because in some of them, parties say, "Oh, well, this is sort of - yes, we think it is but we're not sure what the answer is and the Commission should do something about it". Well, we'll work out what we do.

PN1376

MR FERGUSON: Yes.

PN1377

JUSTICE ROSS: But we will be taking a cautious approach where it's not apparent that there's an agreement on remedy. Either way, Mr Ferguson, even if it is pretty clear and that the remedy is obviously the deletion of a provision, we're still going to publish them as draft determinations.

PN1378

MR FERGUSON: That's what I was - - -

PN1379

JUSTICE ROSS: Yes.

PN1380

MR FERGUSON: Obviously in some situations we're poles apart, the parties.

PN1381

JUSTICE ROSS: Yes.

PN1382

MR FERGUSON: And some say rectify in the way they prefer and some say delete.

PN1383

JUSTICE ROSS: Yes.

PN1384

MR FERGUSON: And it may be that we don't need to fully argue all of that today.

PN1385

JUSTICE ROSS: No, no, I don't - no, you don't - - -

PN1386

MR FERGUSON: Okay.

PN1387

JUSTICE ROSS: You can take it that we'll certainly deal with the issue of principle, do we agree that there's an inconsistency, and then if the remedy - if it's obvious and agreed then we'll say so. But if in doubt - - -

PN1388

MR FERGUSON: There will be an - - -

PN1389

JUSTICE ROSS: And in any case we'd do draft determinations. We don't want to prejudice anyone's position in relation to it, and it may be that it's only when you see the draft determination that that, you know, enlivens some other concern. So there will be the usual process on that. Anyone else on the general issue before we go through the specifics, in Melbourne? Anyone in Sydney with any questions about the general approach? NFF?

PN1390

MS McKINNON: No thank you, your Honour.

PN1391

JUSTICE ROSS: Okay.

PN1392

VICE PRESIDENT HATCHER: All right, well just to be clear again, I'm referring and taking the parties through the document headed Four Yearly Review of Modern Awards NES Issues dated 22 October 2014. On page 1 is the Alpine Resorts Award 2010. From the submissions filed it seems fairly apparent there is agreement that there's an inconsistency but there has been no clearly identified and agreed proposal to remedy that, so I've put that in category 4. On page 2 the first one is the Firefighting Industry Award. Again I think that's category 4. There appears to be a consensus about the inconsistency but no identifiable agreed proposal to remedy yet.

PN1393

The second one on that page, the Airline Operations-Ground Staff Award, that appears to be category 5 because I think the ABI and the Chamber disagree that there is an inconsistency. The next one is the Live Performance Award. That appears to be category 4, and the last one on page 2, the Mobile Crane Hiring Award 2010, that appears to be category 5 because AiG and ABI, as I understand their submissions, disagree with the relevant inconsistency there. On page 3 and going over to page 4 there are 27 awards listed which concern an alleged inconsistency about accrual of annual leave with respect to shift workers.

PN1394

On the basis of the submissions filed they appear generally, unless someone says otherwise, to be category 4. That is, there appears to be a consensus that there's inconsistency but no consensus about what to do about it. Page 5 is a TCF issue. That's category 2. Page 6, I think all of those matters - and again unless someone contradicts me - appear to be category 3. That is, there's a clear inconsistency and it appears on the submissions that that can be dealt with by way of a simple deletion, although with the reservation that it appears some significant parties to those awards have not put in submissions.

PN1395

On page 7 the Ambulance and Patient Transport Industry Award, this is an issue raised by United Voice and we haven't detected in the submissions any response to United Voice's submission about this. So that's tentatively a category 5. That is, until it's indicated that there's some agreement with what United Voice have alleged in respect of inconsistency it appears that's not yet agreed. On page 8 the Airport Employees Award, I think that's a category 4. I note that the AMWU has proposed a variation to remedy that, but that appears not to have yet been responded to by other parties.

PN1396

The Business Equipment Award appears to be category 3. That is, I think that can be dealt with by way of a simple deletion. Page 9, the Live Performance Award, I think we consider that to be a category 1 because it concerns the payment of annual leave loading upon termination. So that should go to the Annual Leave Full Bench. On page 10 there are three awards in each of which the same issue has been identified by the National Farmers' Federation. I think we're putting that in category 5 at this stage because we note that there appears to be a range of relevant parties who have not yet responded to that submission, although those parties who have responded appear to agree with the alleged inconsistency identified.

PN1397

Page 11, this is the Airport Employees Award. Again it appears that the inconsistency is agreed, but the AMWU has proposed a variation to remedy it and we haven't yet seen responses to the AMWU's proposal. So that's category 4. On page 12 the Timber Industry Award 2010, this is an issue raised by the Ai Group. There appears at this stage to be a lack of response to the Ai Group's submission about this. The CFMEU's submission referred to of 15 October 2014, if we've understood it correctly, doesn't directly respond to AiG's identification of inconsistency, so that would be in a group 5 at this stage.

PN1398

Page 13, this is the Higher Education Industry Academic Staff Award, and I think we consider that to be a category 3. That is, the inconsistency appears to be agreed and the remedy appears to be fairly obvious. That is, the deletion of the words "in Australia" by reference to the compassionate leave provision. Page 14, this is a category 5 at this stage. The point which was raised by the Fair Work Ombudsman is not, I must say, entirely clear and we note there has been a lack of response by other probably relevant parties to that point. At highest it's probably an ambiguity and not an inconsistency.

PN1399

Page 15 the first two awards, the Racing Industry Ground Maintenance Award and the Silviculture Award, that appears probably to be category 4. That is, the inconsistency appears to be agreed at least by those who have filed submissions, and although the remedy might be fairly obvious, that is the deletion of the words, "long service leave", again we would expect that there are other relevant parties who have yet to make submissions in respect of those two awards. The Sugar Industry Award on page 15, as we understand it the AMWU has filed a submission in which it disagrees that there is an inconsistency, so that's category 5.

PN1400

MS TAYLOR: Excuse me, your Honour. If I could interrupt just there?

PN1401

VICE PRESIDENT HATCHER: Yes.

PN1402

MS TAYLOR: We've had a closer look at the provision and we agree that there is an inconsistency so we don't object to that part being deleted.

PN1403

VICE PRESIDENT HATCHER: All right, well that will put it in a three or four. I think we'll just have to check from the other parties whether they agree the deletion is the appropriate course is not.

PN1404

MR CRAWFORD: Your Honour, the AWU supports that course of action too.

PN1405

VICE PRESIDENT HATCHER: That's deletion of the provision?

PN1406

MR CRAWFORD: Correct.

PN1407

VICE PRESIDENT HATCHER: All right.

PN1408

MR SCOTT: Your Honour, ABI - - -

PN1409

VICE PRESIDENT HATCHER: Does anyone else - I'm sorry, ABI?

PN1410

MR SCOTT: Sorry, your Honour. ABI has filed a submission on that. We agree that that provision would be inconsistent but we haven't considered a remedy at this stage.

PN1411

VICE PRESIDENT HATCHER: All right, and does AiG have a view about that?

PN1412

MR FERGUSON: We need to consider the remedy as well.

PN1413

VICE PRESIDENT HATCHER: All right, at this stage I think having regard to those responses it would be a category 4. On page 6, the Contract Call Centres Award, the inconsistency I think is agreed and the remedy appears to be fairly obvious; that would be deletion unless any other party indicates otherwise, although again noting that there has been no response from any union parties to that award that we can identify.

PN1414

Similarly with the - or, sorry, perhaps not similarly. The Waste Management Award 2010, noting that there has been no response by the AMWU, although again there appear to be other relevant union parties to that award. But from the submissions filed it appears to be agreed there is an inconsistency and that deletion would be the appropriate remedy. Page 17, this is the Educational Services (Post-Secondary Education) Award, this is category 5. That is, we understand unless there has been any change of position that the ABI New South Wales Chamber disagree that there is an inconsistency.

PN1415

MS DOLAN: Sorry, your Honour. This is one of the awards that we got submissions from the ETU on.

PN1416

VICE PRESIDENT HATCHER: Yes.

PN1417

MS DOLAN: And it's agreed that there is some inconsistency that needs to be dealt with, but the NTEU would like to ensure that we (indistinct) so that might change the category.

PN1418

VICE PRESIDENT HATCHER: Well, only in the sense that it was put at number 5 because ABI as I understand it disagrees that there's an inconsistency. Is that right?

PN1419

MR SCOTT: Your Honour, that's correct. I think that should be in category 5.

PN1420

VICE PRESIDENT HATCHER: Yes, all right. And on the last page, page 18, the Horse and Greyhound Training Award, that's a category 4. That is there appears to be agreement about the inconsistency, on the submissions filed, but there may be an issue about how to rectify it. And finally the last one, Marine Towage Award, again the inconsistency appears to be acknowledged and it would be category 3 tentatively because the remedy is obvious. That is, it would require simply the insertion of the word "serious" before "misconduct" in the sentence, unless any other party takes a different view.

PN1421

JUSTICE ROSS: Does anyone want to make any submissions about the way that we have categorised the various matters? That is, if you think in fact there's no agreement and it should be in category 5 or something of that nature now's your opportunity to say something about that. Anyone in Melbourne?

PN1422

MS RIED: Your Honours and Commissioner, in relation to the matter involving payment of personal leave in the Timber Industry Award.

PN1423

JUSTICE ROSS: Which page are you on?

PN1424

MS RIED: I am - yes, racing to find that myself. That is page 12. Now I believe that has been allocated category 5 but I think it's possible that it could in fact be a category 3. I note the union has acknowledged that there does appear to be an inconsistency there and having had opportunity to consider the proposed clause put by the AiG, we do not object to that proposed clause. However, we note that there are a large number of other industry parties who are participating in the award-specific proceedings and that the AiG initially raised this matter in the award-specific proceedings, and so we're concerned that they may be expecting to have opportunity to raise - to make submissions in relation to the matter in the award-specific proceedings, noting - - -

PN1425

JUSTICE ROSS: It might be - I mean, I think that concern might go beyond this award. But one of the purposes in putting out the statement next week is to alert people to what we're intending to do and it will refer to this document, and then if anyone disagrees or wants to be heard there will be a process for advising the Tribunal of that, and hopefully that will pick up those that you're concerned about.

PN1426

MS RIED: I would think that's likely to be the case, your Honour. So on that basis we think probably that matter on page 12 could be allocated to category 3 rather than category 5. In addition, your Honours, there is another matter which I think was not dealt with in that on page 10 there's an issue - there are three awards identified in the table having been raised by the NFF in relation to calculation of annual leave on transfer of employment, and then there are another four or perhaps five awards including the Timber Industry Award identified in the footnote where the AiG suggest that the same issue has arisen.

PN1427

JUSTICE ROSS: Yes.

PN1428

MS RIED: The union itself has only become aware of that issue on publication of this summary table by the Commission two days ago. So at the moment we would say we don't agree that there is any inconsistency and so those awards should also be category 5 awards. If it pleases the Commission.

PN1429

JUSTICE ROSS: Thank you for that. Yes?

PN1430

MS DOLAN: Thank you, your Honour. Just in relation to that issue, this is one of the issues that we were going to ask to be able to provide some further written submissions on because we think it's a rather complex issue and it affects more than the three awards that - - -

PN1431

JUSTICE ROSS: Well, bearing in mind if it's in group 5 there will be - - -

PN1432

MS DOLAN: Yes.

PN1433

JUSTICE ROSS: - - - a document produced before the end of the year including directions and for the filing of submissions with a hearing in February.

PN1434

MS DOLAN: Yes.

PN1435

JUSTICE ROSS: So - - -

PN1436

MS DOLAN: Yes, all right, thank you.

PN1437

JUSTICE ROSS: Yes.

PN1438

MS DOLAN: We've heard that.

PN1439

JUSTICE ROSS: Yes.

PN1440

MS DOLAN: And we've heard about the comments particularly in relation to (indistinct) and you might not be aware that that group of awards come up in (indistinct) submissions.

PN1441

JUSTICE ROSS: Yes.

PN1442

MS DOLAN: Thank you.

PN1443

MR FERGUSON: We just tentatively raise one which is in relation to the Business Equipment Industry Award, and I'm just trying to find the page number, page 8. The AMWU will correct me if I'm wrong, but it's characterised as group 3 and I think it might be more properly characterised as group 4. I believe we're calling for the complete deletion of the relevant clause and the AMWU is calling for sort of an amendment by deletion of just an element of it. They'll no doubt correct me if I'm wrong.

PN1444

JUSTICE ROSS: All right, so we put that in group 4?

PN1445

MS……….: Yes.

PN1446

JUSTICE ROSS: Okay. Anyone else in Melbourne, no? In Sydney?

PN1447

MR SCOTT: Yes, your Honour. ABI are objecting to the page 2, this is the Live Performance Award. That was categorised as group 4 but I think that should be properly categorised as group 5 along with the airline and the Mobile Crane Award. I think the same issue arises for those three awards and the (indistinct) is in (indistinct) to those three (indistinct). We disagree that there was an inconsistency.

PN1448

JUSTICE ROSS: Okay, thank you.

PN1449

MS TAYLOR: Your Honour, if I could just go back to the Business Equipment Award and the comments made by Mr Ferguson. In our submission, or in the AiG's submission of 15 October they identified that there was an inconsistency and agreed with our position in relation to that. But they also identified that there was another inconsistency in relation to the accrual rate in that particular provision. We've had another look at that and we concur with that, that the accrual could be inconsistent with the NES, and on that basis we have no objection to that award going into the group 3 category.

PN1450

JUSTICE ROSS: Thanks, Ms Taylor.

PN1451

MR FERGUSON: I take it that would mean the AMWU's proposing the deletion of the clause in the same way AiG is?

PN1452

MS TAYLOR: Yes, we are.

PN1453

MR FERGUSON: Yes, thank you.

PN1454

JUSTICE ROSS: Okay, thank you.

PN1455

MS TAYLOR: And your Honour, just in relation to the Timber Industry Award if we could just pop back there, I have not been invited to this provision that's identified in relation to the pulp and paper stream and whether there are arguments in relation to that provision being inconsistent with the NES. So - - -

PN1456

VICE PRESIDENT HATCHER: What page was that again?

PN1457

JUSTICE ROSS: Yes, which page are you on?

PN1458

MS TAYLOR: Page - well I'm on page 12 of the one I have - - -

PN1459

JUSTICE ROSS: Yes.

PN1460

MS RIED: Your Honour, perhaps if I could clarify. My understanding is that the alleged inconsistency does not affect the provisions dealing with the pulp and paper stream. It really only deals with the general timber stream and that's because the alleged inconsistency deals with payment during the life of the employment relationship, which employees in the pulp and paper stream are not entitled to make that election under the award. If that assists Ms Taylor.

PN1461

JUSTICE ROSS: Okay, anyone else in Sydney? No? The NFF?

PN1462

MS McKINNON: Thank you, your Honour. The only thing I would say is that I wasn't aware until today that there was any disagreement as to the inconsistency under section 91. So (indistinct) to work it through group 5 because I was hoping to fall into group 4.

PN1463

JUSTICE ROSS: Yes, I think it's just that we haven't received any information from anyone in relation to your proposals at this stage. It may well be that over time it does go into a different grouping but as we're currently advised, it appears to be in group 5.

PN1464

MR CRAWFORD: Your Honour?

PN1465

JUSTICE ROSS: Yes?

PN1466

MR CRAWFORD: The AWU does disagree in relation to that clause so we think it should be in group 5.

PN1467

JUSTICE ROSS: Okay, and there may well be other parties with an interest in those awards and we'll hear from them in due course. Now as I've indicated, we'll put out the statement next week. There will be an opportunity to comment on the groupings and where we're going. I'd encourage both the ACTU and the employer bodies to let their affiliates know, in case they weren't aware before, that it is going to apply to their awards and we're dealing with all of them now. It seems to be the most sensible way of dealing with these issues, because there are some alleged inconsistencies which are common - well, which are the same and are common to awards in each of the four stages.

PN1468

As I indicated earlier, our intention would be to then move to a decision in relation to the matters in groups 3 and 4 subject to a further opportunity to comment perhaps about the remedy. So if there's anything further that - you don't have to repeat your written submission obviously, but if there's anything further any party wants to say about the matters that are in those groupings then now would be your opportunity to do that. And of course you may argue that something that's in one of those groups shouldn't be, and you'll be able to make that submission in response to the statement we issue next week. Ms Wiles?

PN1469

MS WILES: Thank you, your Honours and Commissioner. I'm just wanting to make some additional oral submissions in relation to the shift worker accrual issue which is on page 3 of the Commission's table. This is the issue that affects 27 modern awards.

PN1470

JUSTICE ROSS: Bearing in mind that it's agreed that there's an inconsistency and it's the issue of the remedy to it, and our decision is unlikely to go into too much detail on remedy but rather set up a process for further submissions about remedy. Because on this issue - not to put too fine a point on it - the submissions on remedy seem to be a bit all over the place, and the remedy didn't appear to us to be necessarily obvious. So it's likely that in any decision that we issued on that matter it will deal with the issue in principle and then have some process for submissions and perhaps a conference of the parties to see if agreement can be reached about a remedy.

PN1471

MS WILES: So I take from your comments, your Honour, that you'd prefer for that process to play itself out rather than hear oral submissions now?

PN1472

JUSTICE ROSS: I think so because you'll make yours and then everyone else will reserve their position, and your position may change over time as well. So it's probably - I don't imply forestalling anyone wanting to say something, but I don't think your position is going to be prejudiced and it's likely with the complexity in this area that we might deal with it in-principle. We might express some tentative views or suggestions but then probably have a conference process initially to see if some resolution can be arrived at.

PN1473

VICE PRESIDENT HATCHER: Just to be clear, you agree there's an inconsistency?

PN1474

MS WILES: I think on balance, yes, your Honour, at least in part in that clause. Yes, I think it's the condition precedent element around the - well, the requirement for the 12 months' continuous service.

PN1475

JUSTICE ROSS: Yes.

PN1476

MS WILES: That aspect of it, yes. In that context, your Honour, we're happy to go along with that process.

PN1477

JUSTICE ROSS: Okay, thanks Ms Wiles. Anyone else in Melbourne?

PN1478

MS MOUSSA: Yes thank you, your Honour. I'd just like to indicate that we were prepared to give oral submissions in relation to the remedy, the proposed remedy and the dispute surrounding the proposed remedy.

PN1479

JUSTICE ROSS: And in which area?

PN1480

MS MOUSSA: Sorry, in relation to the same issue, the shift worker annual leave accrual matter.

PN1481

JUSTICE ROSS: Yes. No, I think there would be a few parties in that same position.

PN1482

MS MOUSSA: Yes, but we're happy to deal with it by way of written submission if that would be more appropriate.

PN1483

JUSTICE ROSS: Well, look, I think we'll - the first step will be a decision on whether we think there's an inconsistency, having regard to what everyone has said. So we'll deal with that issue in-principle. On this particular matter, the likely course is then to say that we need to set up some sort of process for resolving what the remedy might be.

PN1484

MS MOUSSA: Okay.

PN1485

JUSTICE ROSS: The remedy is pretty obvious in some other cases. It's deletion or it's the addition of a word or the removal of a word. In this case there might be a level of complexity, depending on the award and some other issues. So without wanting to close off what we might do, one option would be deal with the issue in principle and then have a conference before a member to see what the extent of any agreement there is about how we might remedy that problem.

PN1486

MS MOUSSA: Okay.

PN1487

JUSTICE ROSS: But I think we have to do the first step first and you will have an ample opportunity to say what you wish to say about what the remedy would be. Even in the worst case scenario from your perspective that we form a tentative view about what the remedy would be - and speaking for myself, given the range of views, it's not a path that's immediately attractive. But in any event we would always publish a draft determination and you will always have an opportunity to comment on the draft determination, and that would be the - so I think it's after the first step, after dealing with the issue in-principle about whether there's an inconsistency, there will be a process and you'll be able to participate in that.

PN1488

MS MOUSSA: Okay.

PN1489

JUSTICE ROSS: Okay?

PN1490

MS MOUSSA: So just confirming, our position is that we agree that there's an inconsistency to the extent that it provides 12 months' continuous service. But beyond that, we have (indistinct) at this point. Thank you, your Honour.

PN1491

JUSTICE ROSS: Anyone else in Melbourne? In Sydney?

PN1492

MR CRAWFORD: No, your Honour.

PN1493

JUSTICE ROSS: No? The NFF?

PN1494

MS McKINNON: No, nothing further. Thank you, your Honour.

PN1495

JUSTICE ROSS: Thanks. Is there anything further from any party? If not, I'm sure you'll all look forward to the statement next week, and we'll work our way through this process. We understand that some of the issues are quite complex. On the process we have identified we can at least with those matters which are pretty straightforward and resolve them and get them out of or dealt with in those awards, and then we'll address the issues that are more contentious in proceedings early next year. All right, thanks very much for your attendance. We'll adjourn.

<ADJOURNED ACCORDINGLY [2.48PM]