AM2008/1, Transcript of Proceedings [2008] AIRCTrans 423 (6 August 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 18542-1

JUSTICE GIUDICE, PRESIDENT
VICE PRESIDENT LAWLER
VICE PRESIDENT WATSON
SENIOR DEPUTY PRESIDENT WATSON
SENIOR DEPUTY PRESIDENT HARRISON
SENIOR DEPUTY PRESIDENT ACTON
COMMISSIONER SMITH

AM2008/1

s.576E - Award modernisation
Award Modernisation.
(AM2008/1)

SYDNEY

10.11AM, WEDNESDAY, 28 MAY 2008

Continued from 27/5/2008

Hearing continuing

PN1188

JUSTICE GIUDICE: Good morning everyone. What I intend to do is, rather than take appearances in the formal fashion, to read out the list of appearances we have at the moment, and at the end of that I'll ask if there are people here whose appearance hasn't been noted who would wish to add their name to the list. This document with the list of appearances will be a document in the proceedings so it will be available along with the transcript. There are quite a few so it will take a few minutes.

PN1189

Australian Council of Trade Unions, Australian Chamber of Commerce & Industry, Master Builders Association Inc, Minister for IR NSW Government, Waste Contractors and Recyclers Association NSW, Health Services Union, Freightliner Australia Pty Ltd, NSW Minerals Council, Australian Business Industrial, National Electrical & Communications Association NSW, Workplace Authority, Master Builders Association of NSW, Liquor Hospitality and Miscellaneous Union NSW Branch, Community & Public Sector Union SPSF Group, Australian Meat Industry Council, Association of Consulting Engineers Australia, Australian Nursing Federation, Media Entertainment and Arts Alliance, Liquor Hospitality and Miscellaneous Union, First IR Consultancy, Australian Workers' Union, The Change Group. The next is the Australian Rail, Train and Bus Union, the CFMEU Mining and Energy Division, the Australian Licensed Aircraft Engineers Association, the New South Wales Nurses Association, the Aged and Community Services Australia and the Aged Care Association of Australia, Australian Services Union, John Holland Group Pty Ltd, Printing Industries Association of Australia National Office, Australian Manufacturing Workers Union, Pharmacy Guild of Australia, the Bus Industry Confederation of Australia, CFMEU Construction and General Division, Transport Workers Union, Employers First, National Retailers Association and the Australian National Retailers Association, BHP Billiton Ltd, a number of coal companies, the Australian Nursing Home Association, the Club Managers Association of Australia, the Funeral Directors Association of New South Wales, Austar Entertainment Pty Ltd, Motor Traders Association of New South Wales, CEPU Electrical Division New South Wales, CEPU Plumbing Division New South Wales, Avondale College Ltd, the Coal Industry Employer Group, the Building Industry Specialist Contractors Organisation of New South Wales, the Association of Wall and Ceiling Industries New South Wales, the Floor Coverings Association of New South Wales, and the Metal, Roofing and Cladding Association of Australia Ltd, the employer TV respondents covered by the Television Industry Award, the Association of Payroll Specialists, and the Australian Medical Association. Is there anyone I have missed?

PN1190

MS GRAY: Your Honour, I'm with the CFMEU.

PN1191

JUSTICE GIUDICE: Yes. I wonder if you could come to the microphone Ms Gray.

PN1192

MS F HANCOCK: The Australian Nursing Homes Foundation Ltd.

PN1193

UNIDENTIFIED SPEAKER: Plaster New South Wales.

PN1194

UNIDENTIFIED SPEAKER: APESMA.

PN1195

UNIDENTIFIED SPEAKER: Master Painters Australia New South Wales Association.

PN1196

UNIDENTIFIED SPEAKER: The Australian Security Industry Association.

PN1197

UNIDENTIFIED SPEAKER: Civil Contractors Federation.

PN1198

MR R CLARKE: Australian Hotels Association.

PN1199

MR J HART: Restaurant and Catering Industry Association Australia.

PN1200

JUSTICE GIUDICE: Very well. Now, the order in which we'll take contributions will be generally those who have managed to secure a seat in front of the bar table, and we'll start with the union parties in that category.

PN1201

MS S TAYLOR: Thank you, your Honour. I appear on behalf of the Australian Manufacturing Workers Union. Your Honour, we have provided an exhibit to the Bench. There's a bound exhibit and also there's a two page document to accompany that, and I will be referring to those documents.

PN1202

JUSTICE GIUDICE: If you can just give me a moment. The main document we'll mark AMWU1, and the second one which I think is an extract from the Metal Industries Award.

PN1203

MS TAYLOR: Yes, I apologise for the form of that exhibit, but it is, it's an extract from the AT version of the Metal, Engineering and Associated Industries Award 1998.

EXHIBIT #AMWU1 BOUND DOCUMENTATION
EXHIBIT #AMWU2 EXTRACT FROM METAL, ENGINEERING AND ASSOCIATED INDUSTRIES AWARD 1998

PN1204

MS TAYLOR: Thank you. The AMWU adopts the submissions made by the ACTU in this matter. The AMWU will be providing a written submission prior to 6 June, but we do appreciate the opportunity at this point in time to put some statements on record, particularly in relation to the issue of the priority awards and the flexibility, proposed flexibility clause for modern awards. So if I can turn to the issue of priority award, and before going to the actual awards themselves what I'd like to do is just have a moment to review the scope of the Metal Industry Award, because the scope of the Metal Industry Award has informed the AMWUs approach in conjunction with the requirements of the Act in how we assemble what we now call MIA 2010. And I'm afraid this process has thrown up a whole new list of acronyms, and when I refer to MIA 2010 this is the proposed Metal Industry Award, or whatever it may be called, that will emerge from the end of this process.

PN1205

So if I could take the Bench to AMWU2 firstly, and this, as the President has indicated, is an extract from the Metal Industry Award. When I refer to the Metal Industry Award I'm referring to the current Metal Industry Award, and MIA 2010 is the proposed. So the extract in the right hand side of AMWU2 is definitions from the definitions clause of the award, and if I could take the Bench down to 1.4.3 of AMWU2, and it refers to engineering stream. The award states that there are three broad engineering streams recognised within the classification definitions set out in schedule 2, set out in schedule D of the award, and namely that is the electrical, electronic, the fabrication and mechanical streams within the award, and then those definitions from the three streams are expanded.

PN1206

If I could take the Bench over the page and going down. So in conjunction with the engineering streams of the award, the classifications contained at schedule D of the award. The award also comprises and covers vocational fields, and those vocational fields are described at 1.4.7 on the left hand side of AMWU2 down the bottom, and the vocational fields include or that are recognised within the classification structure are the trades stream, the technical stream, engineering production, supervisor, trainer, coordinator and the professional stream. And opposite at 1.4.7(e) those various streams are described, and at 1.4.7(e) we have the professional field described.

PN1207

Now, if I can ask the Bench now to go to AMWU1, which is the booklet, and at attachment 1 on page 3 of the booklet we have an extract again from the Metal Industry Award 1998, and this is schedule A and clause 1.6. Clause 1.6 and schedule A describe the coverage of the award, and at 1.6.2 the scope clause of the award. The scope of the award is described as the metal working and engineering and fabricating industries and all allied industries including those industries referred to in schedule A.

PN1208

And then at schedule A we have a list from paragraph 1 to 62 of the various industries. But importantly, as described in the paragraph below the heading, schedule A industries covered by the award we have the statement that schedule A includes the industries and the callings, in other words the industries and the occupations covered by the award. And at paragraph 62 of attachment 1 the industries and occupations of the award are described as the making, manufacture, installation, construction, maintenance, repair and reconditioning of plant, equipment, buildings and services including power supply in establishments connected with the industry and callings described herein, and maintenance work generally.

PN1209

And then there's a description underneath it, the various descriptions of the industries and callings can be read in whatever way, separately or collectively. So I've taken the Bench to those descriptions of the scope of the current Metal Industry Award to indicate that the award clearly does operate as both an industry award and an occupational award, and within those occupations goes from entry level into the industry right through to the professional grades. And I make that point as I go through my submission. It relates to the approach that the union has taken in relation to some of the priority award areas.

PN1210

And we also say to the extent that Metal Industry Award operates as both an industry and an occupational award, the AMWU has an interest throughout the priority award list. For example, the Metal Industry Award operates in the aged care industry, the coal industry, the graphic arts industry, the electrical occupation industry, the rail industry, the hospitality industry, so the application of the Metal Industry Award is broad.

PN1211

However, specifically the AMWU submits in relation to an interest in the priority awards. We have an interest in the metal, engineering and associated industries area, the clerical occupation, the coal industry, the electrical occupation, the graphic arts industry, the higher education industry, the information and communication technology industry, poultry processing industry, rail industry, rubber, plastic and cablemaking industry and the technical services engineers and scientists. And if it pleases the Bench I will now go to our interest in those particular areas.

PN1212

The AMWU has embraced the process of reviewing awards under the Commission's industry divisions, and we've done that as the ACTU describe in paragraphs 65 and 65 of their written submission given to the Bench on Monday. And in relation to those processes the ACTU described the AMWU reviewed the initial list provided under the different industry divisions, and we looked at that list to see whether the awards were appropriately located under the various industries in terms of the scope of our interest, whether awards from different industries could be grouped together.

PN1213

And specifically we undertook the process of asking ourselves the question, should the awards and NAPSAs within an industry be considered all together for the purpose of creating one modern award or should they be split on some other logical basis into more than one modern award? We also looked at the list and asked ourselves are there awards from a different AIRC industry group that should be joined for the purpose of making one modern award? Are there awards from the list of industries not otherwise assigned that could be grouped logically with the groupings that we were starting to build at?

PN1214

We also asked ourselves the questions, well, what are the priority industries and occupations? So we approached that task within the broad framework of the award modernisation request and section 576B of the Workplace Relations Act. And in particular at this initial point in the process we have had regard to section 576B(2) going to the desirability of reducing the number of awards operating in the workplace relations system. We have had regard to section 576B to J, the representational rights of organisations and TRAs, and we have also, importantly, had regard to paragraph 4 of the award modernisation request which goes to the creation of modern awards primarily along industry lines.

PN1215

Paragraph 4 has played a significant role in identifying the awards and NAPSAs that we propose should be grouped at this stage into MIA 2010. So the result of this intensive process is the grouping of 110 industrial instruments comprising transitional pre reform common rule awards and NAPSAs which the AMWU submits forms the basis for the creation of a modern award for the metal, engineering and associated industries. And the table listing those awards is found at attachment 2 of AMWU1 from pages 6 to 20.

PN1216

At attachment 3 of AMWU1 is a summary in relation to the awards and NAPSAs listed at attachment 1. So the awards are drawn from 18 separate industries as identified from the Commission's list, and the breakdown of those are recorded at page 22 of attachment 1. So we've drawn awards from the chemical, brass, copper and non ferrous coal treatment, engine drivers, glass glue and gelatine industries, industries not otherwise assigned, glue manufacturing, meat, metal, Northern Territory public transport, rubber plastic and cablemaking, scientific services, ship building, sugar, space tracking and technical industries. In fact we have the alphabet of industries or awards that we say form the new MIA 2010.

PN1217

The combined awards and NAPSAs have a collective respondency of 17 unions and trade labour councils and 17 employer organisations. There are also nine industrial committees cited, seven relating to NAPSAs in New South Wales and two operating in South Australia. The bulk of the awards are drawn from the metal industry, 43 awards, however there is a significant number proposed for this stage, 20 from rubber plastic and cablemaking industry, and a significant number also from the technical services industries.

PN1218

The ACTU submitted at paragraph 70 of its written submissions, and I quote:

PN1219

The ACTU and affiliates continue to refine those awards and NAPSAs. The refinement is ongoing and, in our submission, should continue throughout the modernisation process.

PN1220

And ..... that statement made by the ACTU. The awards that we have identified for modern MIA will be amended as the detailed process of scope and clause comparison continues. It is our submission however that the process of modernisation going forward will be aided with the production by the Commission of a list of awards grouped under each priority award heading. The draft list is generally agreed to by the unions with an interest in modern MIA. The AI Group has also expressed a high degree of agreement, however there are some notable exceptions.

PN1221

Whilst the detail of modern MIA is not final and consultations with industry organisations at a rudimentary stage we believe it's appropriate at this point in time to bring the draft list into the public arena so that interested parties and organisations and the Commission can see the thinking behind our creation or proposal going forward with modern MIA. Now, if I could turn to the issue of the award.

PN1222

JUSTICE GIUDICE: Ms Taylor, could I just clarify something? Attachment 3, which is the summary of the awards, is it proposed that the awards on that list, or the awards referred to in that list will be completely replaced?

PN1223

MS TAYLOR: Your Honour, in many cases yes, but until we get down to the actual comparison of the provisions we're not able to say that that is the case.

PN1224

JUSTICE GIUDICE: No.

PN1225

MS TAYLOR: There may be parts of that award that are appropriate to go into modern MIA and there may be parts that go into another area. And that's certainly the case with the state NAPSA covering the Metal Industry in Workplace Authority where Part II of that award belongs in the Building and Construction Industry probably in the modern MECA. There will be other examples of that, I'm sure.

PN1226

SENIOR DEPUTY PRESIDENT ACTON: Ms Taylor, in the definition that you've handed up in AMWU2, engineers and scientists and you've also included the Metal Engineering and Associated Industries Engineering and Scientists Award. Is it your proposal that engineers and scientists who are currently covered by those two awards remain in the Metals Award 2010, as you put it because the ACTU has got a priority listing of industries which has Technical Services, Engineers and Scientists Industry?

PN1227

MS TAYLOR: Yes, your Honour, we'll come to that later in the submission, if that's appropriate.

PN1228

VICE PRESIDENT WATSON: Ms Taylor, do I understand you correctly , from what you've said in relation to the vocational reach of the metal Industry Award, that in addition to the list in attachment 3, which refers to specific awards relating to employees, that there are other employees in various other industries that are not mentioned on the list that would also be covered by a proposed award.

PN1229

MS TAYLOR: My statement went to mainly the application operation of the Metal Industry Award as it goes into industries. I mean, there may well be occupations in other industries, coal production for example, where people who have the occupation of - that could fall under the Metal Industry Award but are covered by those, and appropriately covered by those awards.

PN1230

VICE PRESIDENT WATSON: So there's no other industries, apart from these listed where the proposed Metal Industry Award would extend, such as clothing and footwear industry or the food manufacturing industry where the Metal Industry Award might apply at the moment to maintenance employees, unless the industry is listed by reference to a particular award, the scope would not extend to those.

PN1231

MS TAYLOR: Our submission, your Honour, is exactly on that point, which is that, as the Metal Industry Award operates as an occupational award, it does operate in all of those industries that you mentioned. I referred to some, the graphic arts industry, the hospitality industry, but there's a whole - every industry that exists, the Metal Industry Award can operate in, unless it's particularly earmarked out of that industry because the occupations are provided for within an industry award.

PN1232

Turning to the awards that are not agreed, specifically in relation to the awards listed at attachment 2 - - -

PN1233

VICE PRESIDENT LAWLER: When you say agreed, agreed as between whom?

PN1234

MS TAYLOR: Between the organisations that the union has been talking to in relation to organisations which had an interest in - - -

PN1235

VICE PRESIDENT LAWLER: That extends to employer organisations.

PN1236

MS TAYLOR: Yes, it does. It extends to the Australia Industry Group which is the main employer organisation that we have been talking to. Of course, there may be other organisations which haven't been identified by the union or haven't identified themselves to the union who may have an interest in these awards.

PN1237

VICE PRESIDENT LAWLER:: You would agree that any person, using that word to include non-natural legal entities that has an interest in the eventual outcome, is entitled to be heard and express a view and to the extent that they're not part of an agreement that you've just been referring to, we can't proceed on the basis that these represent an agreed list so far as all affected persons are concerned.

PN1238

MS TAYLOR: Absolutely, your Honour, and when I use agreement it is in the context of the organisations that the AMWU have been consulting with at this point in time.

PN1239

The first award that remains unagreed in that context, is the Coal Superintending Samplers Award, New South Wales. That award appears at cell 6 on page 6 of attachment 2 of AMWU1. The Coal Samplers Award, as we comprehend it, is also sought by the CFMEU Coal Division to be consolidated with the proposed Modern Coal Industry Award. The parties have had and will continue to have discussions regarding the appropriate industry award placement for this NAPSA.

PN1240

The AMWU'S position is that the award appropriately fits within Part II or proposed Part II of Modern MIA which will go to the technical part of the award as it is currently structured. We understand that this position is provisionally supported by the sole union respondent to the award, the AWU.

PN1241

JUSTICE GIUDICE: Ms Taylor, I think it would be fair to indicate that on the consultations we've had so far, that there's a legitimate expectation that when the list of priority industries is finalised, there will be published with it a list of awards and NAPSAs that are capable of being relevant to each of those industries but it might be a bit premature for us to definitively say what those awards would be. In other words, it will be part of the process of looking at particularly the
pre-drafting at that stage of each of modern award to work out precisely what the boundaries are going to be and which awards might come into that ultimate scope of that modern award. While we appreciate the submissions you're putting now, in some respects it might be that they could be premature because we won't really be in a position, I don't think, until we look at each award in some detail to say definitively which areas were brought into that award.

PN1242

MS TAYLOR: I would be guided by the Bench. I can run through - - -

PN1243

JUSTICE GIUDICE: I don't want to stop you but I'm just indicating that we probably won't have sufficient material to say definitely this award will definitely be in this modern award and this one definitely won't be. It will more be a case, I suspect, of listing the awards which are capable of being relevant to that modern award and then we'll hear what the parties have to say about that.

PN1244

MS TAYLOR: I completely concur with this approach and understand that the list will be evolving and changing for quite sometime through the consultations, but I think it is useful at this point in time just to make a few comments - - -

PN1245

JUSTICE GIUDICE: Yes, by all means.

PN1246

MS TAYLOR: - - - about the issues that have been identified so far in relation to some of the awards.

PN1247

JUSTICE GIUDICE: It is useful. I just didn't want you to be under any misapprehension about the task we've got.

PN1248

MS TAYLOR: Thank you. I now mention the - and this is in relation to the awards that we have proposed for Modern MIAs, so these are the awards that are contained in attachment 2. We've simply made some comments about that particular list for the Bench's consideration when reviewing the awards that are listed in attachment 2. In attachment 2 we have awards, Engine Drivers and Firemens Award and they appear at cells 7 to 12 at page 7 of attachment 2.

PN1249

As we understand the position, the CFMEU and the AI Group agrees that engine drivers engaged in the Metal Industry should continue to be so represented in a Metal Industry Award, however, some of the awards included in the Maw's list exclude the Metal Industry Award and operate outside the scope of the metal Industry Award at this point in time.

PN1250

Some of those awards also, particularly the NAPSAs part of those awards, NAPSAs operating in the Metal Industry and part operate in other industries so that particular part of attachment 2 is subject to ongoing consultation or refinement with both the CFMEU and also in discussion with the AI Group.

PN1251

I move now to the Space Tracking Industry Awards and they are represented at cell 105 of page 20 of attachment 2. Respondent unions have agreed to the inclusion of the Space Tracking Award, however, there is no agreement from the AI Group or its members to include the award at this point in time, the process of looking at what may build and be Modern MIA and I understand that the lack of agreement at this point in time is not based on any particular issue but is really based on the fact that there hasn't been appropriate time for proper consultations by the AIG with relevant respondents.

PN1252

Turning to the issue raised by Deputy President Acton in relation to the Metal Engineering and Associated Industries Professional Engineers and Scientists Award 1998, that's one we now call PESA for the acronymical purposes of this exercise and those awards appear at cell 107 to 110, page 20 to 21 of attachment 2. The inclusion of a professional award in Modern MIA is opposed at this point in time by both APESMA and the AI Group.

PN1253

The AMWUs position is that consistent with the requirement to build modern awards primarily along industry lines, the Metal Engineering and Associated Industries, PESA Award which shares the same scope, industry operation and classification structure as MIA, should be consolidated with Modern MIA.

PN1254

The Metal Industry Award, as I indicated at the commencement of my submission, covers professional engineers and scientists with a professional stream being described at one point, 4.7E of the award. The classification structure at schedule D to the award defines professional engineers and scientists. Part VI of the Metal Industry Award, the current Metal Industry Award, covers trainee engineers and scientists with APESMA, the AMWU and the AI Group respondent to that part of the award.

PN1255

The AMWU has proposed to both APESMA and the AI Group that the professional award, PESA, could be included in Part VI or could have its own part. The inclusion of PESA in Modern MIA is consistent with the requirements under section 576BA for the Commission to have regard to the development of skills. We say that our approach is consistent with 576BA and that our approach would result in one award where the skill path was evident from entry into production, through apprenticeship and onto technical and professional certification and practice under the operation of the award.

PN1256

The AMWUs proposal also supports clause 4 of the Award Modernisation request which instructs the Commission and I quote:

PN1257

When modernising awards, the Commission is to create awards primarily along industry lines.

PN1258

APESMA and the AI Group's proposal does not support that request. APESMA and AIG's proposal is also inconsistent, because as we comprehend APESMA, and I'm sure APESMA will be making their submissions in relation to its own matter, but APESMA is excluding some industries from its occupational awards as a relevant industry award will cover the professional classifications and I understand that that is the approach being adopted at this point in time in the rail industry and the coal industry.

PN1259

If I could just make some now general comments about the AMWU's list of proposed Modern MIA. The list at attachment 2 may also require amendment as further consideration and determination is given to the issue of government departments and their status as enterprises or otherwise. The list may also inadvertently contain enterprise awards and the status of those awards, for example, the awards at cell 66 and 77 which go to ionising processing and also the awards listed at cells 84 and 85 which are identified in the rubber, plastic area but they are Visypak awards and from a preliminary view they may be an enterprise award and therefore be removed from the list.

PN1260

Going forward with the task of building Modern MIA, the MTFU group of unions are scheduled to meet on 11 June to discuss the process of going forward and in particular the list of awards at attachment 2 and the AMWU is meeting with the AI Group on 12 June to further progress the shape of Modern MIA.

PN1261

If it please the Commission, I'll now go to the other priority award areas in which the AMWU takes an interest. The AMWU is opposed to the inclusion of the Graphic Arts Award in the priority list. We support the submission of the ACTU regarding the lack of clarity and detail in ACCIS and ..... inclusion of the Graphic Arts Award 2000. The AMWU met with the Printing Industries Association of Australia on Tuesday, 8 April, and we left that meeting no further enlightened as to the proposal for what the Graphic Arts Award may look like into the future, what was the process behind, what was the thinking behind proposing Graphic Arts as a priority award area.

PN1262

We were quite surprised at the fact that the award was on the priority list area. Going back to 1993 the then PKIU had proposed and had a case before the Commission, before Commissioner Merriman at that point in time, which was to consolidate the main industry award from the Graphic Arts Industry, which is the Graphic Arts Industry, with the main award from the printing area, which was at that point in time the Country Printing Award. We were rejected, we were opposed by the employers on that occasion and our application was rejected by the Commission and that is at print K7543, a decision of Commissioner Merriman.

PN1263

Again, during the section 150A reviews, the union sought to consolidate the main award from the printing area, which was Country Printing, with the main award from the Graphic Arts Industry, the Graphic Arts Award and once again we were unsuccessful in our consultations, discussions and negotiations with the employers that that should take place.

PN1264

JUSTICE GIUDICE: So both parties changed their positions.

PN1265

MS TAYLOR: Well, the employers appear to have changed their position now, Certainly since the first Structural Efficiency Principle National Wage Case of 1989 it's been a requirement of the parties to consolidate their awards. The union took that on board and went to rationally consolidate awards in the industry. That was opposed by the employers. Here we are in 2008 advancing this task with great vigour, however, at this point in time, because of the lack of clarity, we do not propose that the award go forward. We do not know if we're looking at the Graphic Arts Industry and/or the Printing Industry and/or other related industries in relation to this proposal.

PN1266

The Commission's list of pre-reform awards and NAPSAs, which is the Award Modernisation site, cites only two awards in the Graphic Arts Industry and no NAPSAs for the industry does not meet the priority award requirements of industries with a high degree of regulation by NAPSAs and/or a higher incidence of employment regulated by AWAs.

PN1267

JUSTICE GIUDICE: Ms Taylor, I should say, and this is a general comment, the list on the website of awards and NAPSAs is really an administrative exercise to try and order the various awards in some way. It shouldn't be taken as proof of anything, if I could put it that way. That's just a convenient way of trying to arrange the NAPSAs in their industry families, but it's a general comment.

PN1268

MS TAYLOR: I take the point, however, my submission goes to once again identifying an going to the point by the ACTU.

PN1269

JUSTICE GIUDICE: Yes, I understand.

PN1270

MS TAYLOR: There's no clarity in relation to the ACCI or ..... proposal.

PN1271

The AMWU is to ..... significant resources in the agreed priority award areas and would be disadvantaged in not being able to apply appropriate resources for the modernisation of this very important industry award if it is to proceed in the first tranche. We would not adopt this path if it was perceived as in any way being disadvantageous to employees or employees in the industry and note that the variation of modern awards is provided for in the Commission's statement of
29 April 2008, and that is consistent with section 576H of the Act.

PN1272

It seems to the AMWU that there's a perception out there is your award is not in the first priority list, that it's going to be left behind and all we will be doing is mopping up any industries that are left behind. We do not agree with that perception if it is operating out there. Our position is consistent with the Act, that there is priority awards going through and the remainder of the non-priority areas will follow through appropriately. If in that process it appears that a priority award that has been made should be amended to reflect what is happening in the second tranche, then that is fully provided for in the Act.

PN1273

Having said that, it's not the AMWUs intention however to wait until the priority award process is finalised before commencing a review of creating a modern award for the Graphic Arts and Printing Industries. I will now move to our interest in the clerical occupation area. The AMWUs original location for the Clerks Metals Industry South Australian Award was inside modern MIA as located in the Commission's and I understand the purpose of the administration nature of the Commission's list. This positioning was opposed by both the AI Group and the Australian Services Union.

PN1274

Following discussions with the ASU the AMWU has removed the Clerk South Australian Award from modern MIA on the basis that the parties will continue to work towards an appropriate way to reflect clerical work under the industry of the modern Metal Industry Award. The AMWUs position is that the best reflection is based on the AMWUs rules as they relate to clerical work and that extract of our rules is found at attachment 5 of AMWU1 and it specifically states that clause (e):

PN1275

That persons who are employed in clerical or administrative work in any of the industries of architecture, chemistry, engineering, science, surveying and drafting, including tracing -

PN1276

And there's a range of provisions which quantity and qualify how clerical workers may be represented under the rules of the AMWU.

PN1277

JUSTICE GIUDICE: How do you see the connection between the scope of any particular modern award and the eligibility rules of a particular union?

PN1278

MS TAYLOR: I beg your pardon?

PN1279

JUSTICE GIUDICE: How do you see the connection between the scope of any particular modern award and the eligibility rules of any particular union?

PN1280

MS TAYLOR: Well, we see that there is a link between - there are various ways that they could intercept. One, the scope of the award should not go past the eligibility rule of any unions covered by that award. It may be as we get to the drafting of the scope clauses that scope actually refers to the operation of the eligibility rule of the unions respondent to the award. Our thinking isn't fully formulated but there are various ways that the scope of an award and the eligibility rules of unions will intercept in this process. The AMWU also has an interest in the relationship between the proposed Clerical Private Sector Award and the model award that will be created for the printing and graphic arts industries.

PN1281

The AMWU has an interest in private sector clerical areas and in particular the parties to four awards and those awards are contained at attachment 7 of AMWU1, proposed for consolidated with a Private Sector Clerical Award. The AMWU wishes to be an active participant in the consultations and process for modernising the clerical award. Our interest lies in both the awards appearing in attachment 7 and in the relationship of the clerical award, the modern Printing and Metal Industry Awards. We again note, as referred to previously, that it is, quote:

PN1282

Also possible that after further consultation it will be appropriate to include additional industries in a modern award made earlier. This could be achieved by amendment to the scope clause and some variation to the substantive provisions of the modern award in question.

PN1283

I move now to the coal industry. The inclusion of the Coal Samplers Award I have referred to before, our proposal we say is consistent with other awards under which coal sampling occurs and those awards are covered, those enterprises, that operation, are currently covered by the Drafting, Production, Planners and Technical Workers Award which we propose be consolidated with part 2 of modern MIA. The AMWU does not object to the coal industry proceeding as a priority area. However, in conjunction with the issue regarding the Coal Samplers Award, the AMWU intends to be an active participant in the consultations and process for modernising the proposed Coal Award. Our interest lies in both the award that we are a directing party to in relation to the awards being proposed to go under that banner and also in the relationship of the Coal Award with MIA.

PN1284

I turn now to the area, priority area proposed for electrical occupations. The AMWU does not oppose the electrical award proceeding. However, our submission is that it may be as we advance with modern MIA that the proposal for Electricians Occupation Award has no work to do. We say that the work of electricians is covered already by the Metal Industry Award and as we proceed in making the modern Metal Industry Award, it's our submission that that work would also continue to be covered under that award. We're not talking about the area for electrical contracting. The electricians are engaged under the Metal Industry Award as present.

PN1285

The scope of the proposed Electricians Award and the awards to be consolidated with it are presently unclear. The AMWU seeks to be involved in the consultations and processes of award modernisation as they relate to the proposed award and as we say, the proposal for the award may evaporate as the modernisation of MIA advances. I turn now to the higher education industry. The AMWU is a significant party in the higher education sector and will be an active participant in the consultations and processes award modernisation relating to the sector and I move now to the ICT industry.

PN1286

The AMWU adopts the submissions of the ACTU regarding this sector as a priority area. The AMWU is the major union party to the business equipment industry maintenance state award New South Wales and note that we are not included in the group of unions identified by the AIG in their written submission as part of the consultative processes moving forward for this group of awards. The AMWU will be an active participant in the eventual modernisation of this sector. Our interest lies as both a respondent to an identified award proposed for the sector and in the intersection of this award with the modern MIA.

PN1287

Looking at the area of poultry processing, the NUW and AMIEU list of awards to be included in the creation of a modern poultry processing award include the food processing WA award as it relates to poultry processing. The AMWU is a respondent to the WA award NAPSA and will be an active participant in the consultations and processes of building a modern poultry award. The AMWU has held discussions with the NUW regarding the scope of the proposed award and those discussions are ongoing as an appropriate way to represent the AMWUs interests. In relation to the rail industry, in addition to the awards from the public transport and metal industries proposed for consolidation in MIA 2010 and those awards are listed at 43 and 44 and 64 and 67, an AMWU exhibit. We have a direct interest in awards nominated for the modern rail industry.

PN1288

The AMWU has held discussions with the RBTU regarding the scope of the proposed Rail Award and MIA 2010. Discussions are ongoing and the AMWU would be an active participant in the consultations and processes within the modern Rail Award. In relation to rubber, plastic and cablemaking the awards as previously mentioned are identified at cell 66 to 81, pages 14 to 16 of the AMWUs exhibit. There are 20 awards in this industry group identified for consolidated with MIA 2010 at this point in time. The unions respondent to those awards in the AI Group have agreed to progress modernisation in the rubber, plastic and cablemaking industry within this framework without prejudice to the final outcome.

PN1289

The scope of the Metal, Engineering and Associated Industries Award 1998 as reproduced in attachment 1 is capable of incorporating the industry of the 20 awards identified. See for example paragraph 37 of attachment 1 which does to the industry of the award and I quote:

PN1290

In plastic moulding, casting or fabricating any synthetic resins or similar material and including the production of synthetic resins.

PN1291

And I end the quote from paragraph 71 in the industries covered by the Metal Industry Award. Paragraph 37 is an example only and does not indicate a position regarding the discretion of rubber, plastic and cablemaking awards in the scope or industry provisions of MIA 2010. I move now to technical services, engineers and scientists occupation. The list of awards proposed for this group as I have mentioned before include PESA, the professional award in the metal industry and our submissions in relation to our inclusion of that award in MIA 2010 we put again.

PN1292

The scope of the classification structure and the career path of the professional award are mirrored by MIA and proposed MIA 2010. Applying the ACTU criteria referred to originally, which is how we came to build MIA 2010, by looking at the industries, reviewing whether they were appropriately grouped together, was it appropriate to have one award, was it appropriate to have two or more awards, when we originally did this we came up with two award areas for the metal industry and that was MIA 2010 and another acronym what I call TAS 2010 which is the Technical and Scientific Services Award. So we had started to build two awards in the broad area of the Metal Industry Award.

PN1293

That approach to link similar awards was opposed by APESMA and the AIG. If I could take the Bench to attachment 6, attachment 6 contains the awards that the AMWU was looking at when we started reviewing the industry awards. We saw this list as representing the requirements of the Act. We saw it as building a logical group of awards for a new technical and scientific services industry. The list of awards here, AMWU awards in the Technical and Supervisory Awards, awards from other unions that did laboratory work and sampling work and also this lists contains awards that were included on APESMA or the proposed Professional Technical and Engineers and Scientists Award.

PN1294

We had discussions with various organisations in relation to proposed TAS and unfortunately at this point in time we have put the proposal for TAS on hold, whilst maintaining that it is a logical approach and one supported by the legislation. So with the TAS awards we moved when that proposal was not supported generally at this point, we moved the bulk of those awards back into our Metal Industry Award. However, there are awards on that list at the moment which do not have a home to go to, not that necessarily is the final point. Obviously all those awards will find a home to go to.

PN1295

What we say at this point in time is that the progress of modernisation of the requirements placed on the Commission under the Act and award modernisation request may illuminate whether the concept of a TAS Award, an expansion of MIA 2010, or the AI Group APESMAs proposal for the technical services, engineers and scientists occupation is the most appropriate to effect the Act and the modernisation request. The AMWU declares an interest and will be an active participant in the modernisation of this group. In conclusion on the priority awards we say that - in concluding on the priority awards what we say is that the proposals for scope that may emerge through the consultations and as we understand it have been put in some way by the ACTU, are very rudimentary, they're preliminary, they're not agreed and we simply make that point to the Commission.

PN1296

In relation to the flexibility clause we support the submissions of the ACTU regarding the flexibility clause and we oppose the position by the AIG that the model flexibility clause will be alongside flexibilities in awards as they exist at the moment. That to us is a submission which is unsubstantial. For example, in the Metal Industry Award we have significant flexibilities, facilitative provisions and the AMWU is of the view that a flexibility provision is a facilitative provision. We have provisions in the award which go to individual flexibility and majority flexibility, a whole range of flexibilities and a process for implementing those flexibilities within the award.

PN1297

If the AIG position is correct that the new model flexibility clause is to sit alongside existing flexibilities then we have a position of a flexibility on a flexibility. Which flexibility would dominate in relation to, for example, the Metal Industry Award? Would you have a model flexibility clause providing individual flexibilities which could be built on on top of an individual flexibility already reached under the operation of the existing flexibilities in the award? AIGs proposal is simply unworkable and is not clear. It does not provide an award which is easily able to be understood.

PN1298

In relation to some of the awards proposed, for example, in the technical and professional area, those awards, the Professional PESA Award contain considerable flexibilities. They also contain a flexibility clause modelled by the Metal Industry Award. If the AIG submission is correct, the PESA, the Professional Award, if it was to have another individual flexibility arrangement in it, it would actually have more provisions providing flexibility about entitlements than provisions actually constructing entitlements. So we strongly submit and we will be putting written submissions as to this fact, that the individual, model individual flexibility clause that the Commission creates will have to be incorporated within the flexibilities already existing in the award and I think that that position is clearly enunciated in the award modernisation request and the Act which states that the flexibility clause will be adapted to the industry of the award in which it operates. That's all we have for the moment, thank you.

PN1299

JUSTICE GIUDICE: Yes, thanks, Ms Taylor.

PN1300

MS Z ANGUS: If it please the Commission, Australian Workers Union. I have filed them electronically but I have copies of written submissions that we have prepared.

PN1301

JUSTICE GIUDICE: Thank you.

EXHIBIT #AWU1 WRITTEN SUBMISSIONS OF THE AWU

PN1302

MS ANGUS: Your Honours, Commissioner, those submissions only go to the issue of the priority - the draft priority list that's contained at attachment A of the statement of the Full Bench. In respect of the two other matters I'll mention briefly in addressing we would support in terms of in relation to the flexibility clause, the modern flexibility clause, the AWU supports submissions of the ACTU and most pertinently of the TCFUA that were made in oral submissions before the Bench. The AWU also has a significant membership of low waged employees and for the reasons outlined by the TCFUA we would submit that the ACTU proposal offers a more protective approach to flexibility in the award and that is that it is most particularly important in the context of providing an effective safety net.

PN1303

That's the extent of our submissions in relation to a modern flexibility clause and we have no opposition to the timetable proposed by the company in terms of progressing the priority list.

PN1304

So in terms of today, your Honours and Commissioner, I confine my remarks to the priority list itself, the draft priority list and attachment A. The AWU has no objection to any of the industries on the left on the lists at attachment A save for two qualified comments, firstly, in relation to graphic arts industry, we support the position as just outlined by the AMWU. There are some unresolved issued in that industry that make it not desirable to advance that industry first. And I notice that the Australian Mines and Metals Association raised the possibility of mining would be also on the list, and we would not be inclined to support that proposal, largely for three reasons.

PN1305

Firstly, the industry currently operates a terms and conditions above the award, and there is a lot of bargaining going on in that industry both at an enterprise level and individually, and the individual level is not exclusively AWAs ..... And so for that reason we would say that it's not pressing in the same way that some other industries which are heavily award reliant are, and for that reason there's not the same urgency associated with that industry being put on the priority list.

PN1306

Secondly, the industry is dominated largely - there's a high proportion of enterprise awards in that industry, and enterprise awards as we know fall outside the scope of this review. Once having removed those enterprise awards the remaining awards in the industry we say are in fact not representative of the character of that industry, and that it would be desirable to have general principles or case law established first as to how an industry that has a high proportion of enterprise awards should be dealt with. That is the second ..... why we put that the mining industry should not be advanced on the priority list.

PN1307

And finally, a purely self interested reason that we advance is that from an AWU perspective this is a heavily resource intensive exercise with modernisation. We have an interest in 14 of the 19 proposed industries, and for that reason we also put to you that it's desirable not to expand the list unduly. In respect of the remaining industries listed on the priority list we have no objection to them being on the list. We have some concerns in relation to some of them that I'll outline in terms of the required or express scope of the industry, the definition of what the industry entails.

PN1308

As I've indicated there, the AWU has an interest in 14 of those 19, of those 14 five industries on that list. Our interest is largely confined due to eligibility rules and award respondency, to NAPSAs our interest is largely confined to Queensland. So in respect of five matters I'll just flag that the AWU will address the Bench in Queensland tomorrow in respect of the aged care industry, the coal industry, hospitality, nursing and retail. And at least two of those industries we had some significant concerns about the scope of how the industries are currently defined.

PN1309

The coal industry which we say should exclude ..... because it's not the product that is handled which will ultimately define the nature of a ..... It's the fact that it's a ...... And we have a concern also about the interaction between Aged Care and the Nursing Occupational Award. So if it please the Commission I will leave those submissions to the AWU employees Queensland to address the Bench on. The AWU has proposed two industries for the priority list.

PN1310

VICE PRESIDENT LAWLER: Just before you leave that Ms Angus, I note that at page 6 of your submission you say for this reason to the extent the Commission drafts a scope clause which departs from that proposed by the ASU we ask to be advised and provided an opportunity to make submissions should it be considered necessary. As I understand the process, and I may be wrong about this, and I'm not seeking to express a view on behalf of the Bench, but the process is the three matters that we're presently concerned with are dealt with, then there's pre drafting consultation, Commission drafts, and there's proposed drafting consultation and then the modern award is made.

PN1311

I'm a little concerned that people shouldn't think that because they have put a sentence like that in a submission that we will definitely be able to manage just in an administrative sense making sure that we get back to everybody. So everything the Commission does obviously will be done in a public fashion, submissions will be on the website, the draft awards will be published, but I think we need to be clear that the responsibility is going to be on the parties once they've engaged in the process to keep track of what the Commission's publishing and make their own judgments about whether they need to make further submissions.

PN1312

MS ANGUS: We're aware of that. We have simply included a contact person for each of the awards because (a) there is a different contact person depending on the industry, and (b) it might be that it's convenient to the Commission or to any administrative unit set up in the Commission to deal directly. But we're certainly aware that it is our obligation to keep track of the process.

PN1313

VICE PRESIDENT LAWLER: I'm thinking about procedural fairness and prerogative writs under 75(5), and the parties should be under no illusions that whilst the Commission clearly has an obligation to accord procedural fairness and will do so according to its conscientious best lights, that the content of procedural fairness varies according to context and circumstance, and procedural issues that arise in the course of this exercise are not without their own set of difficulties.

PN1314

MS ANGUS: Yes. But it wouldn't be unusual to provide support for a proposal that has been filed in the Commission, a proposal of the ASU, and indicate to the Commission that our support for that proposal is in its current, and to the extent that it departs from that then - well, I ..... we'll be likely advised, but certainly that doesn't remove our obligation to remain informed.

PN1315

VICE PRESIDENT LAWLER: No. Ms Angus, it's perhaps a small point but I just wanted it to be clear that at least as far as I was concerned people can't proceed on the basis that the obligation to advise is being passed on the Commission by a sentence like that in a submission. Material will be published, but it's going to be physically impossible for us to keep track of all of the people. There are profound risks in assuming a role where we take responsibility for keeping track of every request of this sort.

PN1316

MS ANGUS: Yes, your Honour. We have proposed that two industries be included within the priority list. They are the racing industry, as newly defined and a gardening and sportsground maintenance industry. Those represent a composite of current awards, and the reasons that we have proposed each of these are outlined in more detail in the submissions, but essentially they are the - that both industries are currently overwhelmingly ..... and ..... In fact I think there's only one federal industry award in the racing industry, and the Gardening and Sportsground Maintenance Award is entirely regulated - that's not true I'm afraid. The Gardening and Sportsground Maintenance Award is regulated all bar one by NAPSAs, and that one award that is in federal jurisdiction is in fact geographical ......

PN1317

So both of those industries are normally regulated by NAPSAs. In both of those industries the employees are heavily award dependent, and we say although that is not an express consideration of the Commission we say that should be, that ought to be because, in our submission, that increases the importance of an effective safety net for all operating in the industry. In respect of both those industries the AWU has no figures on the level of AWAs, however we are certainly aware in the racing industry and ..... that there are high levels within horse training at least of informal common law contracts that, certainly arguably from our perspective, would potentially breach award conditions and that serve to undercut the award, and it's very difficult to enforce and regulate that industry because they're all small operators, and that does tend to expose employees to the risk of exploitation. So for that reason we urge the Racing Industry Award to be on the priority list.

PN1318

JUSTICE GIUDICE: Who come as farriers?

PN1319

MS ANGUS: I beg your pardon, your Honour?

PN1320

JUSTICE GIUDICE: Who come as farriers?

PN1321

MS ANGUS: NAPSAs come to farriers if it's according to each state. There are a number of mega NAPSAs that cover casual farriers and to the extent which they are engaged on a permanent basis they are covered by some AWU NAPSAs. It is a quirky industry in the sense that - - -

PN1322

JUSTICE GIUDICE: You're telling me.

PN1323

MS ANGUS: The racing industry is divided along state lines, and in each state there is a different configuration of how the industry is made up.

PN1324

JUSTICE GIUDICE: Just a minute. I don't think you've referred to farriers.

PN1325

MS ANGUS: Have I not included farriers? Well, they would be attendants for races.

PN1326

JUSTICE GIUDICE: I see.

PN1327

MS ANGUS: In fact I'll turn to - perhaps I'll turn to that now. In terms of racing our submissions are detailed on page 13 onwards. We are proposing a comprehensive racing award be created. The industry, as I've pointed out, is fairly fragmented ..... pattern. Training of animals is separated into a separate award currently, and the conducting of the race tends to be divided along award lines whether you're a casual or a permanent employee and depending on whether - which union coverage you fall under. They are - yes, they are the two lines that divide up an industry, and that it is more appropriate in our proposal to combine three broad classes of employees. Those classes are contained at page 14. Those who train the animals for the race, those who are attendants for the race itself, if you like the ceremony of the race and I best ..... and then those employees who, if you like, organise the event of the day, so turnstile attendants, ticket attendants. Those three classes should be brought in from one comprehensive Racing Industry Award we would propose.

PN1328

Our proposal as is put includes a number of exclusions, and they are ..... 14. The clerical industry we say is quite different work. There is no other form of clerical work that's duplicated in other areas within the racing industry, and clerical workers tend to have more in common with clerical workers in other industries. So we say that all of clerical work should be excluded from the industry. The regulators, certainly there are ethical reasons why a separate regulatory regime governing the overseers of the industry is desirable. In addition to that there are practical reasons because the regulators of the racing industry tend to be public servants, they tend to do administrative and professional - sorry, exercise administrative and/or professional competencies that are unlike the competencies exercised in other areas of the racing industry.

PN1329

And also in addition to that practical reason their work conditions are significantly different. Because of their public sector nature they have more extensive and generally long length provisions and for practical reasons it is desirable to ..... regulated to an industry. Hospitality is itself on the priority list and we'd argue should be included in the scope of this award. We'd support the proposition, unless there are special circumstances like the hospitality worker is operating in the offshore oil industry or something, the industry forms a stand alone industry regardless of its location.

PN1330

And then finally maintenance should be excluded. And by here we are particularly referring to turf maintenance, the track and turf maintenance. In some states turf maintenance employees are integrated into the NAPSA Racing Industry Award more commonly than not, and in our submission the general maintenance, particularly the greenkeeper work associated with the racing industry has more in common with the greenkeeping and general maintenance work in other sporting locations like a cricket field, a golf field, and for that reason it's desirable to separate out maintenance work.

PN1331

And I hear your Honour, the President's remarks about it perhaps being premature to propose and discuss the actual awards that form part of the industry, but I would just in passing refer the Bench to the attachment ..... in our submissions, it describes what we say are the relevant awards to be included. In our submission a Racing Industry Award would - the scope, the outer boundaries for the Racing Industry Award subject to the exclusions that I've outlined, would constitute the outer boundaries of a composite scope of those awards. So they are the reasons for the content of the proposal for the racing industry.

PN1332

JUSTICE GIUDICE: Looking at that proposal there are many other areas in the entertainment industry where, we'll call it the entertainment industry which is the current classification under the Commission's system, where there are people involved in selling tickets and turnstile attendance and so on. Why should racing be separate from, for example, cricket or football or other kinds of entertainment?

PN1333

MS ANGUS: Your Honour, we don't have a fixed view. It may be that it is appropriate to separate them out. However, it would seem that there is a certain, if you like, integrity to a racing industry that does include the people who actually conduct the event itself. So I've put forward the rationale as to why in our proposal they were included. We're amenable to discussions otherwise.

PN1334

JUSTICE GIUDICE: Yes.

PN1335

MS ANGUS: In terms of the Gardening and Sportsground Maintenance Award this industry is currently entirely regulated by NAPSAs. Most states in fact several NAPSAs forming different configurations in each state will make up what we propose constitutes a sportsground maintenance industry broadly. Again we would propose - and, your Honours and Commissioner, at page 8 there is some paraphrased lists of how the various states are configured and, in our submission the essential work undertaken pursuant to each of these awards requires the same set of competencies, and for that reason - and is attached to similar standards of terms and conditions in terms of each of these awards, and for those reasons it's desirable to group them together and we would propose a single composite modern award replace all of the 15 awards that we say represents the relevant respective awards in our attachment.

PN1336

Again this is subject to the definition of a Gardening and Sportsground Maintenance Award contained at page 9. Those grounds are enclosed ..... in conducting outdoor maintenance shows, outdoor sports or outdoor amusements, and ..... subject to certain exclusions. So it is essentially the classification broadly defined as landscape gardeners, gardeners assistants, turf maintenance employees are listed on page 9, and then the exclusions - do I need to address the Bench on why those exclusions are - - -

PN1337

JUSTICE GIUDICE: No.

PN1338

MS ANGUS: And in fact from our informal discussions, certainly our discussions with other affected union interests I think I can comfortably say that these two proposals, the content of each of our proposals are being put to the Commission on an agreed basis, and in terms of our informal discussions with employers had no objection to the existence or the proposition that these two industries should form part of the priority list. I think in other respects we're happy to rely on the written submissions.

PN1339

JUSTICE GIUDICE: Thank you, Ms Angus.

PN1340

MR A THOMAS: I appear on behalf of the Rail, Tram and Bus Union. Your Honour, in a number of respects I have a slightly less daunting task than the two previous speakers who cover a much wider variety of awards before you this morning. Your Honours and members of the Commission, it is only my intention this morning to address the priority industries component of these consultations with respect to the timetable of the model award flexibility clause, and we'll adopt the submissions of the ACTU.

PN1341

A theme that has flowed through the transcript as I've read it in the last two days is that this exercise is one that is both complex and challenging. I think I can say without any fear of contradiction that when it comes to the rail industry those adjectives are very apt. The rail industry has traditionally encapsulated a wide range of work. It has had awards that have been tailored to either the public sector. Given that rails have traditionally been owned by the state it has awards that cross some states. There is no award that applies to every state. And increasingly so in recent years as the industry has been restructured and the private sector has become more and more involved. In the industry awards have been tailored in some respects to deal with that.

PN1342

As such, when it comes to articulating a clearly defined statement of what entails the rail industry it is certainly one that has challenged a number of parties over the years. The proposed priority list of modern awards does include an award under the heading of the rail industry. That was the priority list put forward by the ACTU, and is clearly the statement of the President dated 29 April. Our work on the relevant award for purposes of addressing a modern Rail Award has revealed some 40-odd awards. In that regard we include enterprise awards, and they will have to be discounted from ...... And where there are both transitional and pre reform awards we've tended to take those as one in that number.

PN1343

Your Honours and members of the Commission, we will forward to the Commission a further written submission that will contain the list of those awards which have been adopted from the Commission's list of the caveats that your Honour, the President has mentioned.

PN1344

JUSTICE GIUDICE: That would be useful, yes, thank you.

PN1345

MR THOMAS: We do have it and it will be forwarded to you. In that context the RTBU have put together a broad definition of what a Rail Industry Award would cover. And broadly we say that it will apply in or in connection with the rail industry, it would apply in all states and territories and, as the ACTU quoted the other day, that without being ..... cover all employees in or in connection with or incidental to the operation of the transport, freight and/or passengers by rail, and all the construction or modification and all maintenance of rolling stock, locomotive and/or infrastructure.

PN1346

Now, I have accepted that is an extremely broad definition and is capable of a range of interpretations. In that context, your Honour and members of the Commission, we note the submission by the ACTU at paragraphs 82 to 85 on Monday to the effect that there is still a lot of work to be done on refining, defining, narrowing in large order that the scope of awards, and those comments have been made this morning. And we say we put that definition forward in that context. We recognise it requires further work to be done, and it's not a definition that will be acceptable to all and sundry.

PN1347

I was going to say broadly that what we seek or what we don't seek to do is to expand our sphere of influence, nor do we seek to have it diminished. I guess the issue comes as to what constitutes our sphere of influence in that. But there are, for example, examples where employees of stevedoring companies are loading and unloading a railway on a dock. That clearly falls within the Stevedoring Industry Award, and those matters will be clarified over time.

PN1348

SENIOR DEPUTY PRESIDENT ACTON: Do your rules enable you to extend that though?

PN1349

MR THOMAS: I'm sorry?

PN1350

SENIOR DEPUTY PRESIDENT ACTON: Do the rules of your union enable you to extend that?

PN1351

MR THOMAS: The rules of our union state that the union has coverage with respect to employees engaged in or in connection with the rail industry. Well, interestingly enough in the last point you'll see is, there hasn't been a great deal of debate about what that actually means, simply because it's ..... fairly clear whether this process throws up some submissions at the margin, and I suspect it will because of the nature of the exercise. As I said, we don't intend to expand our sphere of influence nor do we seek to have it diminished. There are other little examples that will come in there, your Honour. One example I can think of is we do not have awards that cover persons operating trains in ..... for example, and we would not be intending to do so in this exercise.

PN1352

SENIOR DEPUTY PRESIDENT HARRISON: Is that because your state counterparts have them or because some of the rails, at least ..... issue of coverage of these and those that are not new, they will be identified more with the mining industry than with the rail industry?

PN1353

MR THOMAS: Well, your Honour, I really don't have a definitive answer to that. All I can say is that historically the RTBU and its predecessors have never been nor have they sought to be involved in the operation in that part of the land. There are also - sorry.

PN1354

SENIOR DEPUTY PRESIDENT HARRISON: The coal industry, transport,
rail - - -

PN1355

MR THOMAS: To my understanding the proposed Coal Industry Award doesn't envisage persons who operate the trains. With some possible exceptions some would look at the rail authorities. We do not work in coal terminals themselves. Our members who drive the trains in may assist with the unloading process and then go back out. To my knowledge that's not how they ..... There are, I might say, a few places where issues have been explicitly raised about the scope of the Rail Industry Award and, indeed, in the area where we have raised concerns about the scope of another proposed modern award, and that area concerns the proposal that the current Railways Metal Trades Grades Award be included in the list of awards that are dealt with under the modern, I think it was MIA 2010 was the acronym.

PN1356

JUSTICE GIUDICE: You're catching on already Mr Thomas.

PN1357

MR THOMAS: It looks like it's being adopted. At the moment we also in the list that you will get, you will find that that award is also included in the list of the rail industry awards. The RTBU is a respondent to the Railways Metal Trades Grades Award. It isn't a respondent to the current Metal Industry Award. We note that both the AMWU and the AIG have put the Railways Metal Trades Grades Award in their list of awards for the proposed MIA 2010. We have had some discussions with the AMWU. We have not had any discussions with the AIG.

PN1358

SENIOR DEPUTY PRESIDENT HARRISON: Have you had any discussions with employers in the rail industry?

PN1359

MR THOMAS: No.

PN1360

SENIOR DEPUTY PRESIDENT HARRISON: Who I do not understand are represented by ACCI or AIG.

PN1361

MR THOMAS: Your Honour, we haven't had any discussions with employers in the rail industry and I've got to say I've only had one employer ring me about what was going on, at least to see if I knew what was going on which was a short phone call, so I cannot speak with any authority even on a hearsay sense to what employers in the rail industry are ..... or thinking, whether they've met ..... between themselves, whether they would use one of the employer associations which traditionally they've done.

PN1362

SENIOR DEPUTY PRESIDENT HARRISON: I think QR might have put something in writing that I don't know has been addressed. It might be addressed in Brisbane.

PN1363

MR THOMAS: I think there were some complexities with QR.

PN1364

SENIOR DEPUTY PRESIDENT HARRISON: Queensland Rail, Mr Thomas.

PN1365

MR THOMAS: Sorry, your Honour, Queensland Rail at the moment are covered by I think probably before the NAPSA and they are the only respondent, but in the very near future Queensland Rail is being restructured from one employer into about six or seven I think, so it's interesting and I don't know the answer to this, but what may come, if you regard it as an enterprise award is no longer regarded as an enterprise award if it covers more than one employer, but that's I guess something to ponder over the near future.

PN1366

JUSTICE GIUDICE: Mr Thomas, while you're interrupted, could I just ask a question about the Railways Metal Trades Grades Award? Does that follow the Metal Industry Award in relation to the metal trades employees it covers?

PN1367

MR THOMAS: Historically and in the old world of industrial relations, the Metal Industry Award was regarded as the parent award and there are decisions of this Commission to that effect.

PN1368

JUSTICE GIUDICE: The next question is whether provisions should be the same at the safety net level.

PN1369

MR THOMAS: Yes. Your Honour, whilst the Railways Metal Trades Grades Award and the Metal Industry Award are similar, you can't say they're the same. Clearly the Railways Metal Trades Grades Award has been tailored in some respects to some of the lawyers in the railways. At the moment the Railways Metal Trades Grades Award applies only in Victoria and New South Wales. It doesn't have Australia-wide coverage and it covers a whole range of - well, metal trades for want of a better word are all covered with a couple of minor exceptions that are in another award called the Railways Miscellaneous Trades, but what we want to ensure in that process, your Honours and members of the Commission, is that our interests and rights and those of our members would not be adversely affected by any movement or any decision that MIA 2010 would be a more appropriate award to cover that sort of work and those sorts of classifications than is a rail industry award and, of course, by moving from a rail industry award to a MIA award, our capacity to ensure that we're a part of that continues.

PN1370

JUSTICE GIUDICE: The answer to some of those issues might depend upon the legislative framework that governs the operation of modern awards in due course.

PN1371

MR THOMAS: Yes, I agree with that, your Honour. It's the problem of dealing somewhat in a world of uncertainty. Hence, we are tending to be somewhat cautious in that area.

PN1372

JUSTICE GIUDICE: Yes, very prudent.

PN1373

MR THOMAS: Yes, I think so. We think there is some merit in the proposal, but we're a bit nervous. Another area concerns construction. You will note from Ms Angus the submission that the AWU position is that a rail industry award not cover construction, but rather it be in a general construction. We've also had some discussions with the CFMEU and it has generally been around that issue of where construction fits into the scheme. There are a number of rail awards there at the moment that do provide for the operation of construction work in the areas that are covered by those awards, so that's one other area.

PN1374

SENIOR DEPUTY PRESIDENT HARRISON: The rail lines, the rolling stock?

PN1375

MR THOMAS: It's really the infrastructure, construction, whether it be rail track, overhead, any other forms, signals and communications, et cetera, but historically, indeed, those awards have provided where rail systems have engaged in the construction of rolling stock, locomotives, wagons, passenger vehicles, et cetera, they've provided that cover of those employees who are performing that work and that, your Honour, takes me back to the earlier issue when I said that our awards in the industry is a very sort of complex one, so to speak, but we understand the interests that are raised by other unions and we just need to deal with that and we ask that the Commission be cognisant that they're issues that can arise during the modernisation process and also, your Honour, in that context the AWU document does refer to the construction and maintenance of locomotives, passenger and commercial rail cars.

PN1376

Again that is something that has been traditionally covered by those awards and we need to give them due consideration as this process goes on. Your Honours and members of the Commission, as mentioned earlier, we will supplement what we put to you this morning in the form of a written submission and have it to you in the early part of next week and give other parties the opportunity to make any comments on anything further that may be included in that submission. If the Commission pleases.

PN1377

JUSTICE GIUDICE: Thanks, Mr Thomas. Mr Maxwell.

PN1378

MR MAXWELL: Thank you, your Honour. Your Honour, I would like to first of all give a brief apology. I have a problem with my hearing at the moment, so if my voice volume decreases, can you please inform me so that I can make sure our submission is being heard.

PN1379

JUSTICE GIUDICE: So far, so good.

PN1380

MR MAXWELL: Thank you, your Honour. Your Honour, the CFMEU construction and general division welcomes this opportunity to make these submissions to the Full Bench. Our submissions will address the three key issues up for consideration. Those being the award flexibility provisions, priority industries and the timetable for the award modernisation process. If I can perhaps start with the award flexibility provisions. The CFMEU C&G division generally supports the submissions of the ACTU.

PN1381

We suggest that the Commission should err on the side of caution in deciding on the model award flexibility clause, especially given the express direction from the Minister contained in paragraph 10 of the award modernisation request that, I quote:

PN1382

The Commission must ensure that a flexibility clause cannot be used to disadvantage the individual employee.

PN1383

We submit that the only way in which the Commission can ensure this occurs is by making a clause as prescriptive as possible, leaving little or no room for interpretation. We therefore reject the employers' draft clauses as they lack the level of detail required. We submit that the Commission should make it quite clear as to what parts of an award would be subjected to the award flexibility provision. This, of course, will be dependent on what is actually involved in an award. This position is consistent with the ALPs Forward With Fairness policy which states that and again I quote:

PN1384

Under Labor's new system, awards will provide the parameters within which flexibility arrangements can be made under an award flexibility clause.

PN1385

And that's found on page 11 of the Forward With Fairness policy document of August 2007. Now, what those parameters are will depend on the conditions contained in the award and how they interact with other legislative provisions. Take, for example, the national employment standards dealt with in paragraphs 25 to 33 of the award modernisation request. Under paragraph 28 a modern award cannot exclude a term of proposed NES or operate inconsistently with it. A modern award may include industry specific detail about matters with proposed NES. They may build on entitlements of the proposed NES and the Commission may include additional machinery rules in relation to NES entitlements that are necessary for the applicable industry or occupation.

PN1386

An award may therefore include provisions dealing with public holidays which includes a range of industry specific matters. Whilst an award may allow for substitution of days, an award could not contain provision which allowed the parties to reduce the number of public holidays applying at a workplace, yet if you look at the ACCI and the AIG model clauses found on page 9 of the President's statement, the clause XX1B provides that an employee and employer may agree in writing to vary one or more of the terms of an award.

PN1387

There is nothing in there that would indicate to the parties that to agree to such an arrangement, to reduce the number of public holiday days, is not allowed. Indeed, if you look at the submissions of the AIG made on Monday and if I can refer your Honours and Commissioner to paragraph number 369 of Monday's transcript, there they claim that there should be no restriction from either the subject matter nor the amount of flexibility that can be agreed between the parties provided the employee is not disadvantaged as that term has meaning within their draft clause and if you look at their draft clause, the disadvantage is mainly measured by a question of financial payment.

PN1388

We say the disadvantage will be measured in more than financial terms. The main point is that the AIGs position is inconsistent with the way in which award provisions would deal with NES matters. Not everything is up for grabs. Our position is consistent with the ALPs Forward With Fairness policy which states on page 12 that and I quote:

PN1389

Fair Work Australia and Labor's new awards will be required to provide employers and employees with information about what individual flexibilities are available under awards. Fair Work Australia will also be available to provide advice to employers and employees about how particular award flexibility clauses can work.

PN1390

It is quite clear from this policy that the government's intention that firstly the range of flexibilities would be limited and secondly that they will vary between awards.

PN1391

JUSTICE GIUDICE: Mr Maxwell, I think it's only fair to say as I've indicated earlier this week that our primary source of guidance on the way in which we go about drafting the flexibility clause will be statutory provisions and the request from the Minister and while statements of policy and speeches and so on might provide some context, essentially we have to look at what the legislation and the request direct us to look at and try and do it on that basis.

PN1392

MR MAXWELL: I understand that, your Honour, but the issue with regard to the national employment standards is addressed in the award modernisation request. We believe that the Commission would need to take into account the interaction between the awards and the NES, deciding on what flexibility arrangements will be available under awards. In our submission, equally that puts the Commission in a difficult position in that there is an expectation that the Commission will decide on the award flexibility clause by 30 June and at this stage the timetable for the production of the NES is the same date, so we understand the difficulties that the Commission faces, but we just wanted to alert the Commission to the interactions between the NES and the awards in looking at the flexibility clause issue.

PN1393

JUSTICE GIUDICE: Thanks.

PN1394

MR MAXWELL: Your Honour, one further issue we would raise is the need to provide protection for those workers from a non-English-speaking background and I understand that some submissions to this extent were made by the TCFUA in their oral submissions. We would point out that the construction industry is characterised by a large number of workers from a non-English-speaking background. The workers in our industry also have or a certain percentage of the workers in our industry have problems with numeracy and literacy, so for the Commission to ensure that those workers are not disadvantaged will require perhaps some extra protections to be included in how an award flexibility clause will operate.

PN1395

Your Honours, if I can now turn to the priority list of industries. When you look at the priority list of industries that have been put forward, especially in light of the Minister's request for the Commission to have regard to those industries and occupations applying under AWAs and NAPSAs, there is one glaring omission that is dealt with in the construction industry. According to the ACTU submission, the construction industry is equal sixth on the list of industries with AWAs and that's found on page 22 of the ACTUs submission and second on the list of industries with NAPSAs.

PN1396

Indeed, according to my rough calculations based on the AIRCs list of awards and the ..... that that was made for what - have identified the awards, but if you consider that list, there are approximately 20 pre-reform federal awards listed under the building and construction ....., approximately 20 federal transitional awards and 159 NAPSAs in the building and construction industry. Depending on the definition of the industry we use, we say that that number could be even greater. These number, of course ..... because included in the NAPSAs are enterprise awards and project awards specifically for New South Wales. If you exclude those awards, you will still end up with approximately 37 NAPSAs that apply in the building and construction industry.

PN1397

SENIOR DEPUTY PRESIDENT HARRISON: Do I assume from that submission that you're of the view that a state enterprise agreement is excluded from this exercise?

PN1398

MR MAXWELL: Your Honour, it is our view that we would need to take into account the coverage of that award, but the industry award would be the fall back position should the enterprise agreement be removed.

PN1399

SENIOR DEPUTY PRESIDENT HARRISON: Covered by this exercise or not covered by this exercise? It seems that a few people have formed a view that might be shared by everybody - - -

TECHNICAL MALFUNCTION
<LUNCHEON ADJOURNMENT [12.12PM]
<RESUMED [1.07PM]

PN1400

MR MAXWELL: Your Honour, I'm not exactly sure where the problems with the transcription first occurred, but I'd just to briefly just recap the main points I was making. I think at that stage I was dealing with the issue of the priority award list and why the Building and Construction Industry had not been put forward to be included in the priority list and that was mainly due to the size of the task involved, that we didn't think we could meet the timetable at the end of this year.
However, I was raising that because the Building and Construction Industry butts up to or overlaps with or interludes with the other industries, that there is a need to consider the scope of the Building and Construction Industry.

PN1401

On that point, what we'd like to suggest to the Commission is that the Commission, whilst not including the Building and Construction Industry on the formal priority list in terms of those that have to be finalised by the end of 2008, we would seek that the Commission give some priority status to the Building and Construction Industry in regard to the determination of the scope of the Building and Construction Industry.

PN1402

The suggestion, of course - this is up to the Full Bench to determine but we would suggest that perhaps the Full Bench may like to consider allocating the issue to determine the scope of the Building and Construction Industry to a member of the Full Bench, perhaps of the panel, particularly our industry, and that that task fits in with the timetable for the drafting of the priority modern awards. We're looking at a timetable of 5 September, because we believe if we determine the scope of the Building and Construction Industry, that will then help the other parties in looking at the scope of the other modern awards that have been created.

PN1403

We're not saying that we have to at that stage finally determine how many awards are in the Building and Construction Industry because in the discussions we've had so far, that varies between, I think, two and perhaps up to 10 or more. Just to make sure that no one is in any doubt about our position of the CFMEU, we generally support there be two, one for onsite construction and one for offsite construction. At this stage we understand that other parties do have to have a viewpoint and we are prepared to discuss those areas with them and also be guided by the views of the Commission in that regard.

PN1404

Your Honour, I was just going to briefly raise an issue in regard to one of the submissions that have been made today and that was in regard to the Sportsground Maintenance Award that was put forward by the AWU. Whilst we do not object to that award area being considered as a priority area, we do have a difference of opinion with the AWU in regard to their sole interest in that area. They may have a sole interest in regard to the awards they put up to include in that Sportsground Maintenance Award, however, there are other awards that overlap or impact on the maintenance of sportsgrounds.

PN1405

I point out that most of the awards put forward by the AWU are NAPSAs and the award that they put forward does not take into account a number of federal awards and other state awards that have overlapping coverage. For example, the National Joinery and Building Trades Product Award has The VRC and the Royal Agricultural and Horticultural Society of south Australia as named respondents. We, along with a number of other unions are parties to an AJC Enterprise Award here in New South Wales. We're also parties to an SCG Trust ..... Enterprise Award that applies in New South Wales so to the extent that that's an award that we would seek to cover the field in terms of sportsground maintenance and we note that they're ..... cricket grounds and we would have objection to its inclusion of maintenance trades because if you look at the scope of the awards that they put forward, two of the awards make reference to minor maintenance but the other awards do not include ..... trades people, they include plant operators and labourers but do not include building tradesmen so that's why we say we need to work out the scopes of these awards.

PN1406

The final point that I'd wish to make, and that's in regard to the draft timetable which was put forward by the Commission, we would question whether the one month period to allow for written submissions - I think that's between a
5 September and 6 October - is an inadequate period and especially given that a number of unions may have an interest in a number of priority award areas and that may be a difficult timetable to meet and may require them allocating various levels of resources, depending on their interest in the awards.

PN1407

The other issue I'd raise is a question to the Commission whether they intend to hold any public hearings after the cut-off date for the written submissions as to whether the various parties, while they provide witness evidence and/or challenge the submissions that have been made by others, my note of that timetable I think was the cut-off date was 6 October and then a date for the publication of the final versions of the awards and I'm raising an issue about whether there'll be scope for the parties - or the ability of the parties to make any written submissions or present any evidence in that particular period.

PN1408

JUSTICE GIUDICE: The other way of dealing with that might be to shorten the period within which written submissions could be made, but then to provide for some sort of oral hearing.

PN1409

MR MAXWELL: That may be a way, your Honour. I don't have any definitive answers in that regard, I'm just raising that as an issue with regards - - -

PN1410

JUSTICE GIUDICE: Yes, well, it's a problem to the extent that in other circumstances there's an application before the Commission is then supported by the party making the application and there's a response to that and the cases are defined in that way. Here we'll be publishing a draft which is really for everybody to comment on and once we, as it were, open up the prospect of replies to other people's comments, it might become a bit untidy, but I fully appreciate the point you're making and we'll have to give consideration to the way in which we can ensure people get an adequate opportunity to deal with all the relevant issues.

PN1411

MR MAXWELL: Your Honour, those are the submissions we'd seek to make today. If there are any other issues that ..... are addressed ..... Commission, we will respond in writing before 6 June. If the Commission pleases.

PN1412

JUSTICE GIUDICE: Thanks, Mr Maxwell. Just before I call on you, Mr Taylor, observation the bench had some difficulties this morning which have eaten into the time a little bit and we've given some thought to how we can ensure that people who want to say something today have the opportunity to do so. So far, our thinking has developed to this extent, that we intend to sit until five, if necessary, with a short break around three but we'd be assisted by an indication now of those people who have substantial submissions to make today or contributions they wish to make. Yes, Mr Calver you're in that category?

PN1413

MR CALVER: Your Honour, I have a time constraint. I don't wish to seem arrogant but I have a time constraint. We could go after the New South Wales government. Mr Thomas and myself will only be 15, 20 minutes.

PN1414

JUSTICE GIUDICE: 15 or 20 minutes, yes.

PN1415

MR RYAN: Your Honour, I've also got a problem. I have to be somewhere else by 2 o'clock and in relation to the union that was - the process that you started this morning so the unions would go first, on that basis I was next cab off the rank.

PN1416

JUSTICE GIUDICE: Sorry, you're mister?

PN1417

MR RYAN: Ryan, your Honour, MEAA.

PN1418

JUSTICE GIUDICE: Just a moment, Mr Ryan, we'll just get a few more indications.

PN1419

MR FRAZER: Your Honour, Mr Frazer on behalf of the Pharmacy Union of Australia. I have to be at my son's school at 3 o'clock. I imagine I'll be
five minutes, maximum, your Honour. I just wish to deal with some questions that were asked of the SDA yesterday in relation to pharmacy in retail.

PN1420

JUSTICE GIUDICE: Anybody else with a substantial submission they wish to make or who has a time problem?

PN1421

MR TAYLOR: I'm quite content to go after Mr Ryan, if that suits you.

PN1422

JUSTICE GIUDICE: Thanks, Mr Taylor. Yes?

PN1423

MS GRAY: Your Honour, I have a difficulty as well that goes to about 3 o'clock I have to leave but out submission I intend to make today would be five to
10 minutes maximum.

PN1424

JUSTICE GIUDICE: Ms Gray, thank you. We might hear Mr Ryan - I'm sorry?

PN1425

MR TAYLOR: If your Honour's please ..... from the ALAEA ..... substantial.

PN1426

JUSTICE GIUDICE: We might hear from Mr Ryan, Mr Frazer and Ms Gray before you, Mr Taylor.

PN1427

MR TAYLOR: If it please, thank you your Honour.

PN1428

JUSTICE GIUDICE: Mr Ryan.

PN1429

MR RYAN: I also will be brief, your Honour , but I would like to get a turn.

PN1430

JUSTICE GIUDICE: Yes, Mr Mendelssohn, we'll rely on you to remind us.
Mr Calver, what time do you have to get away?

PN1431

MR CALVER: About 2.30, your Honour.

PN1432

JUSTICE GIUDICE: Mr Taylor, you might be slipping down the list, I think.

PN1433

MR TAYLOR: That's fine, your Honour. Thank you.

PN1434

JUSTICE GIUDICE: Mr Ryan.

PN1435

MR RYAN: We approach today's consultation on the basis that we'll be putting written submissions and we just want to concentrate on the proposed priority awards on the basis that to explain our opinion at the moment and respond to anything that may come from the Bench re-jig our submissions in the light of that.

PN1436

We have an interest in three proposed priority awards, firstly racing, secondly the Sportsground Maintenance Award and what we have proposed through the ACTU as a new recorded Entertainment Award. Can I just say in relation to the Racing Award, there are currently five alliance award which cover this industry and they are five federal awards which are state based, the five mainland states. New South Wales also covers the ACT. they cover three sorts of employers. They are your thoroughbred, harness and greyhound racing industries, the sporting clubs and venues and your showground employers. We will be proposing that those who are employed by racing clubs would move into the racing industry and that the other two sorts of employers would form part of the showground award. Your Honour raised a question ..... previously about isn't it a broad entertainment selling of tickets industry. That's true., as well as it's true there's a Racing Industry Award and to the extent that there's a correct answer to how broad or how narrow an industry is, is a matter that obviously must be dealt with - not just ..... but much broader areas than that, just that there is some guidance to be taken from the fact in the New South Wales and ACT award, the actual employers are similar to those two racing employers and showground and sporting venues with different classifications.

PN1437

We suggest that that should be a priority award for a couple of nasty reason's in a way, in that the rates of pay for similar jobs, perhaps state based differentials, for purely historical reasons, it also then touches upon that same basis, the conflict between no disadvantage to employees and no additional cost to employers while dealing with that familiar question of state differentials for work of what they say equal value objectively, the selling of a ticket or collecting a ticket or manning a turnstile or parking a car, one can say objectively, should have a standard value across the Commonwealth but that's an issue that has to be addressed in a whole range of awards but because of ministerial requests have to be dealt with and to some extent the proposed raising of the award, the vehicle for those questions to be addressed.

PN1438

As far as our members are concerned, they are purely casual employees who are required to attend when an event is being held at various racing clubs and sporting fixtures and exhibition grounds so that would then move into the sportsground, what is called Maintenance Award. I note that my colleague from the CFEU has pointed out that they have maintenance employees there as well. Again we have casual employees who are only required to attend on match days, for example, and sporting fixtures but that would be our point of view a legitimate issue between the existing one size fits all awards that we have in place, to make that division between a racing industry and a sportsground industry.

PN1439

Turning to the other area that we have proposed to be a priority award, which is got to be ..... Entertainment Award, out thing has been to attempt to have an integrated award for the production and performing of distribution or making of TV, movies, films, series and the like. At the moment I've identified 19 awards in the area of which all bar two are purely alliance awards. The other two are musicians union awards, one in the New South Wales state system and one in the federal system and the attempt there is to combine in the one modern award the three actors awards which cover making of feature films, the making of television programs and actually working in television, the sole federal award covering crew who work in the making of all forms of television production, TV movies and the like, the next step in the process being the actual physically bringing together of the movie itself in the laboratories and then the final step, we say, in the chain is the actual distribution then to the outlets of what has been made. We stop there because one step further you hit the retail and wee don't believe it's legitimate to go any further giving it to the various distribution centres to go out to the public.

PN1440

We believe that again that raises interesting questions that need to be addressed. There are some very peculiar conditions of employment contained in these awards. Actors are unique in a number of ways, let alone their working conditions and rates of pay, similarly with the crew.

PN1441

I know, your Honour, that there have been some legitimate questions raised by the bench as to how far industry should go and whether there should be any exemptions from that particular industry and why there should be reasons - if there is to be an exemption why there should be a reason given for that. the only exemption that we would seek in that broad recorded entertainment award covers a very small group of people who are directly employed by the 7 Network to produce a couple of programs in-house, all Saints and Home and Away.

PN1442

The other commercial networks, although the actors are employed directly by commercial television stations, the production is done by production houses. There's a group of about 90 staff based in Sydney who are directly employed by 7 who work on their in-house productions. And we would say that they should be excised from that and in our view down the track there should be a Commercial Broadcasting Award of, at this stage ..... TV, free to air or pay TV ..... we're including commercial radio broadcasting. But we haven't yet finalised our thinking on that. But with that small exemption for directly employed staff we would say that would cover the whole of the industry of the making and filming et cetera of recorded entertainment, both music, audio visuals, the whole kit and caboodle basically.

PN1443

And we think in the context of seeking to have a modern award takes it a little bit further than just looking at existing awards, although there are 19, and to expand into areas such as audio visual and the like, and we even go so far as to cover media which we don't know about or haven't been invented, which you may recall was a major source of strife in the United States with the writers dispute as to future technologies and the distribution of films in a variety of forms.

PN1444

So we've sought to, from day one if you like, from our point of view and it's ..... of us to actually ..... here's what our views are as the union of course the process is really one to be driven by the Commission as to what comes out of the process. But we've attempted a little bit more in this particular area than just collect a few existing awards, say you can lump these ..... into an industry. So that's our position why this particular proposal should be granted priority status and dealt with. If the Commission pleases.

PN1445

SENIOR DEPUTY PRESIDENT HARRISON: Mr Ryan, is recorded entertainment dance, live theatre, performing arts, which I assume are recorded on occasions?

PN1446

MR RYAN: We would say that would fall into another joy of mine down the track, the live theatre industry. There are provisions for the occasional recording of live events, and that's usually done for some promotional purpose, occasionally for the making of a DVD for sale to the public, but the people in live theatre should get an additional payment if they are involved in a live broadcast recording. But as the union concedes, where the demark strictly is, if you're paying to seeing people perform live in that venue, we say that's one industry. If you are sitting somewhere, or even sitting on a bus with your mobile phone watching what's been recorded previously then we say that's recorded entertainment, your Honour. I hope that helps.

PN1447

SENIOR DEPUTY PRESIDENT HARRISON: What about the striptease industry?

PN1448

MR RYAN: I have no knowledge, your Honour. I can assume that would be live, and I know there's a registered organisation, which is not mine, that looks after those people.

PN1449

SENIOR DEPUTY PRESIDENT HARRISON: Of course you remind me it's not yours, quite right.

PN1450

JUSTICE GIUDICE: Yes, thanks Mr Ryan. Ms Gray?

PN1451

MS GRAY: Your Honour and members of the Bench, I have several documents I'd like to hand up. I wouldn't be intending to have them marked as exhibits because I would be intending to annexe them to our written submissions that we would be putting in before 6 June. But I think it may be helpful for the members of the Full Bench to have those before them while I make a very quick submission today.

PN1452

JUSTICE GIUDICE: Thank you.

PN1453

MS GRAY: I have done seven steps. Before needing to refer to those documents we'd just like to say that because of the temporal staggering as such of the submissions coming through the consultation process, which of course has been designed to maximise participation, but it has put us in a position where we felt that the most appropriate course would be to address the issues in depth in a written submission once, for example, the rest of the AWUs submissions as they affect the proposed coal industry group are made tomorrow in Queensland, as I understand it AMMA will be making submissions on Friday in Perth about the metalliferous industry, which we also have an interest in.

PN1454

So rather than jump at shadows or try to anticipate what might come out of that then we'll be addressing them fully within the timeframe that the Commission has set. Which brings me to timetabling. Our position is that the mining and energy division believes that for the proposed priority industry in coal that we would be able to meet the very tight but nonetheless the proposed timetable of the AIRC. We have already widely consulted with unions who are parties to all of our proposed awards in the grouping, and we have had initial discussions with employers who are represented today by Mr Morris of Blakes, and the Commission will no doubt wish to hear from him shortly as well.

PN1455

We have amongst ourselves set up a timetable to try to get the task done within that timeframe, and that's all I'd like to say at this stage about the program, proposed program. As to the award flexibility provisions we generally support the ACTU submission and the submission made this morning by our construction and general division, and we may have more to submit in respect to this but more illustrative examples from an industry basis to be incorporated in our written submissions.

PN1456

If I now come to the priority, proposed priority industry of coal. The first document which I've handed up to the Full Bench is a list of the CFMEU proposed coal industry group of awards and NAPSAs. Two of the criteria which was set for determining which industries should be priorities and which should not are the prevalence of NAPSAs and AWAs. Of those awards, if one doesn't count the federal awards twice for the pre reform and the transitional, we have nine federal awards and eight NAPSAs. If we were to look at only coal mining industry rather than the broader coal industry then there's still four NAPSAs in the coal mining industry.

PN1457

The areas that we've had disagreements with other parties so far have been outlined by Ms Taylor for the metal workers, and also the AWU, and although we disagree obviously with their take on why these awards should fit elsewhere and believe that they're properly suited to the coal industry, we think that enough detail has been given about the area of disagreement for the proceedings today subject to any questions from the Bench.

PN1458

In terms of the prevalence of AWAs, another document which I've handed up has itemised across the coal industry the prevalence of AWAs, predominantly because of the boom in the coal mining industry and the prevalence of new sites combined with the legislation enabling pre start AWAs over the same timeframe. It will become evident from that list that where there's 100 per cent AWAs they're at pre start sites where employees have been given a full and free choice between a collective union agreement and AWAs, such as the two Rio sites in the bottom of the list of New South Wales. We see that the proportion of AWAs are down to 2 or 3 per cent. But there are nonetheless numerous AWAs in the industry.

PN1459

VICE PRESIDENT LAWLER: Ms Gray, aren't there quite a few mines that are covered by collective agreements as well in Queensland?

PN1460

MS GRAY: Yes, your Honour. That isn't - - -

PN1461

VICE PRESIDENT LAWLER: This doesn't purport to be a comprehensive list. It's identified - - -

PN1462

MS GRAY: It's only AWA sites, your Honour.

PN1463

VICE PRESIDENT LAWLER: It's identified mines that have AWAs, and this is a subset of the total set of mines?

PN1464

MS GRAY: Most definitely. Another document which I've handed up is headed CFMEU Draft Scope Clause for Coal Industry Modernised Awards. And this clarifies we think what we intend or propose should be the coal industry, which the first dot point really picks up coal mining, the coal mining industry. The second dot point picks up the work in ports and includes the Coal Superintendents Sampling Award which is restricted in its scope to only sampling done by superintending companies at Port Waratah and Port Kembla in New South Wales. And the third dot point is that coke work is not part of the steel industry.

PN1465

In terms of the - we've taken on board what your Honour, the President has said about the list created by the Commission, however our starting point was that list. And the next, or another document which I've handed up which is headed Extract from AIRC List of Awards by Industry from AIRC/Modernisation Research website, demonstrates that we've highlighted in yellow on that sheet those awards which we haven't sought to include in our proposed grouping, and that is because we think simply that they got it wrong with the Refractory Industry State Award.

PN1466

With Coal Treatment Industry and Coal Services Pty Ltd Award, health services actually looks after superannuation of coal mining workers in New South Wales and also by contractual arrangement looks after the - administers the long service leave entitlements. It's really essentially an office ..... type process which may be in or in connection with the coal industry but doesn't sit comfortably with the type of work done by or covered by the other awards we've nominated.

PN1467

And the last one, the coal treatment industry, the Ulan Coal Delivery Facility Consent Award 2004, when one looks at that it appears that it is actually regulating not the work done at Ulan coal mine, but when it is delivered to the power station there is a separate area of work at the power station which is regulated by this particular NAPSA, and we would submit that that would be more appropriately picked up in the award modernisation process in the electrical power generation industry.

PN1468

We also note that the port awards which are objected to and the sampling award were in the coal industry or the coal treatment industry. We also note that the list provided by the Commission for ports and harbour services does not include any of the coal port awards. That's all I would say about that for the moment, your Honour and members of the Bench. And to conclude I would say that the Mining and Energy Division of the CFMEU has an interest in metalliferous. At the moment we're in the dark as to the basis upon which AMMA says it should become a priority industry, only that they're intending to make a submission on Friday to that effect. We will certainly wait to see what submission is made and respond.

PN1469

Initially we would suggest that the submission opposing that happening from the AWU has dealt with the issues which we would anticipate would make it an industry not suited for priority treatment, but we would like to reserve our position on that till we hear what AMMA has to say. I think that's all I need to submit today, thank you very much, your Honour and members of the Bench.

PN1470

JUSTICE GIUDICE: Thank you Ms Gray. I think I said we might hear from you Mr Frazer.

PN1471

MR FRAZER: Thank you, your Honour. I appear on behalf of the Pharmacy Guild of Australia, who represent over 90 per cent of pharmacist proprietors. Now, I've filed some written submissions. Your Honour, I have brought in copies to hand up today. Your Honour, I'll just make a point that these submissions are supported in writing by both the SDA and APESMA who are the two primary employee representative bodies in the industry.

PN1472

The submissions, your Honour, are very limited in their scope. Essentially they're intended to press upon the Full Bench the need for a separate Community Pharmacy Industry Award and to have that community pharmacy industry separate from the retail industry which is in the priority list. Now, your Honour, I don't intend to talk for a long time, and I previously didn't intend to talk for a long time, but I think there were some questions raised yesterday with the SDA that I wish to address.

PN1473

JUSTICE GIUDICE: Mr Frazer, we might mark that submission.

EXHIBIT #PGA1 PHARMACY GUILD OF AUSTRALIA SUBMISSION

PN1474

MR FRAZER: Thank you, your Honour. Your Honour, we see community pharmacy essentially as an industry and a profession in its own right. Community pharmacy generates around $8 billion of revenue itself across Australia, community pharmacy employs over 45,000 people across Australia. Community pharmacy provides a health related service that is completely different to retail. Now, your Honour, the ownership, the operation and the requirements to actually work in a community pharmacy are completely different to retail. They're wholly regulated, they're highly legislated and the law is very complex.

PN1475

For instance, retailers themselves actually specifically excluded promoting the community pharmacy. No person that isn't a registered pharmacist can have an indirect or direct pecuniary interest in a community pharmacy. There are other laws that apply to ownership of community pharmacies depending on the states you're in. In some states only a registered pharmacist can own a pharmacy or a partnership of a registered pharmacist can own the pharmacy. In New South Wales the law had just changed. A company can own a community pharmacy but that company must - the construction of the company is highly regulated and basically all the shareholders have to be registered pharmacists because, again, there can't be a person involved in a community pharmacy or the ownership of a community pharmacy that isn't a registered pharmacist.

PN1476

Now, the actual employees in a community pharmacy are quite different to those in retail. In community pharmacy there are either pharmacists or pharmacy assistants, that's it. Many of the positions require tertiary qualifications, even pharmacy assistants require a level of further education. There are industry codes of practice that require them to have certain qualifications. Depending on those qualifications depends on what they can actually do inside the pharmacy.

PN1477

Now, because of these specific requirements in relation to the operation of community pharmacy the awards in the industry have developed and there's very highly developed classification structures, and there's a need to have those highly developed classification structures to deal with what people can actually do in and out of the pharmacies, and to comply with the legislation. The classifications themselves, they have to do with issues and things such as they have to deal with students, they have to deal with things such as internships.

PN1478

To become a registered pharmacist you have to complete 2000 hours of work in a pharmacy. So the awards have to deal with those kinds of issues. The awards also deal with employees from, you know, from students to pharmacy assistants right through to managing pharmacists. They don't stop - a lot of the retail awards do with the basic employees. These awards deal with managing a pharmacy. And part of that, when you look at the awards, part of the structure operating at community pharmacy, the spread of employees is completely different to retail.

PN1479

We have around 15,000 pharmacists, we have around 30,000 pharmacy assistants, so there tends to be one pharmacist to two pharmacy assistants. In retail you tend to find one manager and many store assistants. And that's because of the legislation. There's requirements for supervision. And that's also reflected in the award where the awards talk about supervision of pharmacy assistants by the pharmacist. Now, pharmacy employees duties are also significantly different to those in retail. They're providing health care services, they're distributing medicine, they're giving advice, health care advice that's very specific.

PN1480

Now, I'll just turn to some of the basic product knowledge that the awards set out for the pharmacy assistants. They have to have product knowledge on analgesics, baby and infant care, coughs and colds, deodorants, eye care, ear care, family planning, feminine hygiene, foot care, general medicines, hair care, ..... health care, oral care, skin care, sports medicine, stomach and laxatives, sun preparations and sunglasses, surgical sundries, vitamins and minerals, wound care. These are the sorts of general product knowledge that pharmacy assistants have to have, that isn't the sort of knowledge that retail employees have to have.

PN1481

JUSTICE GIUDICE: Is it the case that pharmacy assistants in the Northern Territory are covered by the Retail Industry Award?

PN1482

MR FRAZER: I can't answer that for you off the top of my head, your Honour.

PN1483

JUSTICE GIUDICE: I think it said on page 12 of the submission that they are.

PN1484

MR FRAZER: That could be right, your Honour. Turning to the actual pharmacy awards, your Honour, and what they actually provide for. The community pharmacy awards don't talk about customers, they talk about patients, and that's both in terms of pharmacy assistants and pharmacists. What the industry is actually dealing with in the majority is patients, not customers. Within the spread of hours, and that's one of the questions the Bench asked yesterday, the spread of hours. The majority of awards have a spread of normal hours between 6 or 7 am in the morning till 12 o'clock at night seven days a week.

PN1485

Some of the awards also provide for up to a 50 hour working week, and because those awards obviously deal with managerial and employees. Many of the awards are for pharmacy assistants because we say it's really a profession rather than just a job. It deals with things such as salary packaging and annualised salaries as distinct from a simple hourly rate. The awards have very specific training provisions because they have to deal with things such as the schooling of pharmacy assistants and pharmacists, they have to deal with ongoing training, they have to cope with the obligations of the employer to make sure that their pharmacy assistants are continually educated in new medicines, new technology and new government requirements. That's all I have to add today, your Honour. Is there any further questions?

PN1486

JUSTICE GIUDICE: No, thank you Mr Frazer.

PN1487

MR FRAZER: Thank you.

PN1488

JUSTICE GIUDICE: Mr Calver?

PN1489

MR CALVER: Sorry I jumped the gun before, your Honour. Your Honour, before the Commission ..... the submission of Master Builders. It was generally intended to draw attention to the matters on the list dealt with in that - the award list dealt with in that submission.

PN1490

JUSTICE GIUDICE: Yes, we'll mark the submission by Master Builders Australia Inc dated May 2008.

EXHIBIT #MBA1 MASTER BUILDERS AUSTRALIA INC

PN1491

MR CALVER: Thank you, your Honour. There are a number of points in that submission which I will expand upon, your Honour. Before doing so, we support the CFMEU in its concern about the scope of the industry, and agree that that should be a priority task. We agree that the drafting exercise will be much better able to proceed following the settlement of the scope of the industry awards to be created. In that regard there's an issue, that is, the modernisation request, in our submission, at paragraph 4 contains a strong presumption that modernised awards will be industry based.

PN1492

And the wording of that paragraph 4 of the request is somewhat confounding because at one interpretation, your Honour, it states that you as a Commission have the power to create only two types of awards, that is industry awards and those awards which are defined as - well, not defined, referred to as operational awards. It says:

PN1493

When modernising awards the Commission is to create modern awards primarily along industry lines but may also create modern awards along operational lines as it considers appropriate.

PN1494

And Master Builders notes that it does not use the word occupation. So in that sense - - -

PN1495

JUSTICE GIUDICE: I think there have been some suggestions that that's a misuse of words and what's intended as occupational.

PN1496

MR CALVER: Well, it could stand as an indication that some of the prior enterprise awards not covered by the federal system would be operational. But certainly we have no concluded view as to what that means. Certainly there's no shelter about that interpretation from the legislation. You can rationalise what you're asked to do in paragraph 21 in identifying that the list of priority industries or occupations for award modernisation if one argues that those occupations are only to be identified and be subsumed into an industry category using or conjunctively in paragraph 21, so that would be in itself no consistency in that.

PN1497

And I raise that, your Honour, because certainly the word operational there does cause a number of difficulties ..... unless the Commission gives an absolute priority or presumption to the creation of industry awards. And that's why we agree in part with the CFMEU for the creation of two Building and Construction Industry Awards, one on site and one off site for those variances in our industry - one of the reasons. And I'll come back to that particular proposition when I deal with the priority awards.

PN1498

JUSTICE GIUDICE: I'm not quite sure what the import of your submission is on the use of the word operational in paragraph 4.

PN1499

MR CALVER: Well, it's a term that has no definition in the statute. It's a term that certainly is not a term of art currently when dealing with awards either as pre reform, transitional or in their emanation as NAPSAs, and we don't have a concluded view at the moment. We merely point to the Commission that it does seem to underline to us that awards are primarily along industry lines. There's a strong presumption that industry awards should be created and occupational awards should not be created, your Honour.

PN1500

JUSTICE GIUDICE: But there's not much doubt about paragraph 20 is there?

PN1501

MR CALVER: Well, to that end the Commission should endeavour to have identified the list of priority industries or occupations for award modernisation. As with the interpretation that I mentioned in relation to paragraph 21, if you used or conjunctively, which it can be, then those occupations would be subsumed into an industry award. That would be a modernised industry award. So it is not inconsistent with the interpretation that I have put in respect of paragraph 4. As I say, it's a somewhat confounding use of the word operational when it has no statutory origin that leads me to make that submission.

PN1502

If nothing else, at its highest there is a strong presumption in relation to the creation of industry awards only. Thank you. The submission that we lodged dealt with the Commission's award list and some modernised award categories. My colleague Mr Thomas will address the Commission in relation to New South Wales project awards, because it's our submission that they should be excluded from the award modernisation process. In doing so that would be a reduction of the 179 awards listed by 100.

PN1503

We also urge the Commission to delete from the Commission's award list the seven awards we've identified emanating from South Australia which we say are defunct for the reasons set out in the submission. That would considerably simplify the task before us.

PN1504

JUSTICE GIUDICE: when you refer to the New South Wales awards, do you mean awards under the New South Wales system?

PN1505

MR CALVER: The project awards in New South Wales, your Honour. And Mr Thomas is the expert in that area and he will address the Commission in that regard.

PN1506

SENIOR DEPUTY PRESIDENT WATSON: Mr Calver, it seems to me most of those refer to projects which will be completed in any case. They're probably defunct in practical terms in any case.

PN1507

MR CALVER: Yes, and Mr Thomas's submission will take the Commission to those which we have positively identified as defunct in that regard and those which may still have some currency. But the proposition we're making is that they should be excluded from the award modernisation process, your Honour.

PN1508

SENIOR DEPUTY PRESIDENT WATSON: And I would imagine there wouldn't be much difficulty getting agreement from the relevant unions as to which are defunct?

PN1509

MR CALVER: No. Well, there is some difficulty in isolating it which
Mr Thomas will take you to.

PN1510

SENIOR DEPUTY PRESIDENT WATSON: Very well.

PN1511

MR CALVER: The award flexibility clause is very briefly dealt with in the written submission merely indicating support for the ACCI draft and I will shortly expand our submissions in that regard. The Minister's request deals with the issue of the model flexibility clause in paragraph 10 and 11. We make the point there are no express or implied substantive limitations on the scope of the model clause, save for the application of the no disadvantage test. Paragraph 11 does need adaptation of the clause to be appropriate for the context of a particular modernised award but not through prescription or qualification.

PN1512

There are no limitations on the expression of the clause or on its operation other than the fact that the flexibility clause should not disadvantage an individual. Accordingly we do not agree with the ACTU that there is a capacity to reach agreement by way of a majority of employees so as to bind the individual because that would take away that individual's right to reach a particular agreement. In addition there is no reason to restrict the clause by limiting its scope to a measure contained in an award clause. Hence for example at clause 3 of the ACTU model the clause purports to limit flexibility, quote:

PN1513`

The limits specified in the relevant model clause.

PN1514

In turn this limitation is wrongly conceived because the test on the ministerial reference we submit is a global test. There is nothing before the Commission which would indicate that a clause by clause analysis is required or that it would generate the appropriate flexibility. The ACTU clause would require a notification to the relevant union that a flexibility agreement has been entered into. There should not be a condition attached for the making of a flexibility agreement. Nothing should prevent an employee seeking the advice of the union or seeking any legitimate third party assistance for advice.

PN1515

A third party mandated involvement is not required and is not part of the request. In the same vein we do not believe the restrictions set out in the AIG pro forma of a certain time period of 12 months is an appropriate restriction. All that is required is that an employee is not restricted. It may be that the agreement contains a time restriction but that should be mutually agreed, not imposed, so long as from time to time the employee is not disadvantaged there should be no nominated time limitation on an agreement. It's with some trepidation that I mention that Forward with Fairness, referred to previously by the advocates, mentions that Fair Work Australia will facilitate the checking of relevant agreements to ensure that they comply with the award flexibility clause and this is an additional future protection in relation to the temporal issue as well as the broader protection. However you will need to see the legislation in that specific regard before we can see how the checking device that will be under Fair Work Australia will operate.

PN1516

Accordingly we urge the Commission to take a broad simple approach to the no disadvantage test which we contend should fit with the section 576A(2) criteria which are that it be simple to understand, be easy to apply, reduce the regulatory burden on business and promote flexible modern work practices and the effective and productive performance of work. The statutory provision does not, we submit, require any level of prescription put forth by the CFMEU, by the ACTU, the matter reflected in the unqualified terms in paragraph 10 and 11 of the request.

PN1517

VICE PRESIDENT LAWLER: Mr Calver, awards have statutory force. Section 576A requires that modern awards, quote:

PN1518

Must be in a form that is appropriate for a fair and productive workplace ...(reads)... but does not provide for statutory individual employment agreements.

PN1519

MR CALVER: Sorry, your Honour?

PN1520

VICE PRESIDENT LAWLER:

PN1521

but does not provide for statutory individual employment agreements.

PN1522

MR CALVER: Yes.

PN1523

VICE PRESIDENT LAWLER: Section 576A is talking about awards not providing for statutory individual employment agreements. Can you assist in identifying why it is the lean model of a flexibility clause isn't tantamount to providing statutory individual employment agreements?

PN1524

MR CALVER: Because the award, rather than an agreement between the parties is the starting point, your Honour, that they can't themselves in terms of their content describe that an individual employment agreement should be reached. However if you start with the award and the fact that the new employment standards can't be excluded then you can enter into an agreement that is an award flexibility agreement which does not have that character.

PN1525

VICE PRESIDENT LAWLER: Would you challenge the proposition that the ACCI model flexibility clause is a Clayton's AWA, an AWA by another name in practice, in substance?

PN1526

MR CALVER: No, no, because the safety net is markedly different. You can't exclude the new employment standards in the manner in which they will specifically apply to that award so you have a much more elevated safety net. The agreement making process is not at large. The award wouldn't be vindicating an individual employment agreement. It would be requiring that there no disadvantage to the employee measured against that specifically and also by its terms it could not exclude those minimum employment standards.

PN1527

SENIOR DEPUTY PRESIDENT ACTON: Mr Calver, should the parties be able to withdraw from the agreement if say operational requirements change, et cetera?

PN1528

MR CALVER: If the agreement is not limited in time then I would imagine that the general law relating to reasonable notice would apply, your Honour.

PN1529

SENIOR DEPUTY PRESIDENT ACTON: So we should leave that up to the parties rather than make it a provision of the clause?

PN1530

MR CALVER: Yes, so long as from time to time the employee is not disadvantage and so long as in the yet to be determined mechanism for checking the fairness of these documents it was not a matter that was considered by the legislation. I would imagine that the legislation will deal with that issue but certainly at the point when the employee was disadvantaged the agreement should have no effect.

PN1531

SENIOR DEPUTY PRESIDENT WATSON: Mr Calver, we're in some difficulty, aren't we? Are we able to presume that there will be some mechanism that requires the checking of such agreements?

PN1532

MR CALVER: Are we able to presume that?

PN1533

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN1534

MR CALVER: That is a very difficult issue, your Honour. The extent to which you can take a form of judicial notice that Rudd Government has been fastidious in implementing Forward with Fairness is a matter that I think is in contention that others have been urging you take. Certainly in one sense when you look at section 3 Forward with Fairness Implementation Plan that's headed Award Flexibility paragraphs 10 and 11 of the request for you substantially emulate two of the paragraphs from that document. So albeit that it's not a document in traditional legal terms which put standards of extrinsic evidence there is a strong correlation between those and what might be anticipated.

PN1535

SENIOR DEPUTY PRESIDENT WATSON: Thank you.

PN1536

COMMISSIONER SMITH: Mr Calver, could I ask, on the question of an individual employment agreement if you had 100 employees could you have 100 identical individual employment agreements?

PN1537

MR CALVER: Our interpretation of the provision, sir, is that there is not capacity to have a collective agreement so if you wanted to have an individual flexibility agreement it must suit the individual employee. As to whether a pattern agreement in that context would be sufficient would be a very nice I anticipate on the basis of the industry and the individuals that are covered. But my instinctive answer is to say no, but that's yet I think to be determined.

PN1538

COMMISSIONER SMITH: Yes, thank you.

PN1539

MR CALVER: Finally, the argument that we make in the written submission about the exclusion of "Electrical occupation other than electricians covered by relevant industry awards" emulates that of the AMWU in certain respects where their advocate indicated that that award may not have any work to do and I link that proposition to the proposition I made in relation to one of the interpretations that can be taken of paragraph 11 - sorry, excuse me, paragraph 4 of your request.

PN1540

We would ask that there not be an early indication of what the modernised award might look like based upon an electrical occupation, given that it might prejudice the other matters that are before you in that it is clearly indicated as an occupational award. If it please the Commission.

PN1541

JUSTICE GIUDICE: Thanks, Mr Calver. Yes, Mr Thomas.

PN1542

MR THOMAS: Your Honour, I will address you briefly on the issue of the New South Wales project awards which are, of course, originally awards of the New South Wales Commission that became NAPSAs on the reform date. There is a significant number of those awards listed in the administrative document originated by the Commission. We have examined that list and we draw a number of conclusions. Before dealing with those conclusions, can I say just briefly that these awards essentially were consent documents in their original form. They sought to cover site specific conditions on major civil and building construction projects in New South Wales.

PN1543

I have a list here of those particular documents that I will hand up as an indication of the scope of what I am addressing you on. Your Honours, the instruments in question as NAPSAs fall into three general categories. First of all, instruments that relate to projects that are complete and where the state based instrument has been terminated by the Industrial Relations Commission of New South Wales under its section 19 review process. The second category relates to projects that are complete, but where the state based instrument is awaiting termination again under that section 19 process.

PN1544

The final category relates to projects that are still underway. All of the documents in question would be expressed to expire at the date of practical completion of the project to which they relate. Your Honour, the instruments came into operation under state legislation. They have not endured post reform for the reason that uniformly they sought to bind operations and accordingly the only option available to the industry was for instruments to be put in place that were made under division 5 of part 8 of the Workplace Relations Act.

PN1545

That, of course, has not been widely used and hasn't been used to my knowledge and accordingly we are confronted with a substantial list of instruments, NAPSAs, that are dwindling as projects reach their practical completion date. It's for that reason that we believe that there is no need to include these instruments in the wider process of modernising awards and essentially that means that by that list, some 93 NAPSAs can be dropped from consideration of the modernisation process.

PN1546

JUSTICE GIUDICE: That's very encouraging. Thank you, Mr Thomas.

PN1547

MR THOMAS: Thank you, your Honour.

PN1548

SENIOR DEPUTY PRESIDENT WATSON: Mr Thomas, I would be surprised if there is any substantial disagreement - - -

PN1549

MR THOMAS: I beg your pardon?

PN1550

SENIOR DEPUTY PRESIDENT WATSON: I would be surprised if there is any substantial disagreement from the unions as to the passing of - - -

PN1551

MR THOMAS: I don't think so either, your Honour.

PN1552

SENIOR DEPUTY PRESIDENT WATSON: So perhaps there's something that the relevant unions party to those agreements might give some thought to that they can discuss with the MBA, whether some joint position can be conveyed to us in respect to those instruments.

PN1553

JUSTICE GIUDICE: I had indicated Mr Taylor would be next. Yes, Mr Taylor.

PN1554

MR TAYLOR: I seek leave to appear for the state of New South Wales, Mr Petrovic, although I think our written submission refers to my client as the government of New South Wales. That written submission has been filed electronically and hard copies were provided earlier today which I think are being handed to the Bench as I speak. I might commence by asking that that submission be marked.

EXHIBIT #NSW1 WRITTEN SUBMISSION FOR STATE OF NEW SOUTH WALES

PN1555

JUSTICE GIUDICE: I might also indicate that the schedule of project awards that you handed up, Mr Thomas, we will mark.

EXHIBIT #MBA2 SCHEDULE OF PROJECT AWARDS

PN1556

MR THOMAS: Thank you, your Honour.

PN1557

JUSTICE GIUDICE: Yes, Mr Taylor.

PN1558

MR TAYLOR: The New South Wales government is very aware of the significant task that this part 10A gives to the federal Commission, the job of taking on my instructions some 740 transitional federal awards, something over 1600 NAPSAs and, of course, thousands of APCSs and creating modern awards to replace them all. Combine that with a deadline of the end of next year and the enjoinder to aim that no employer or employee would be disadvantaged and as a result it's something that would suggest that difficulty is an under-statement.

PN1559

I am instructed to start by making clear that the New South Wales government wishes to not only co-operate but assist as far as possible in what is clearly a very difficult task. Today, if it please, I intend to address briefly the three issues identified by the President in his statement and which are dealt with in more detail in part 1 of the written submission over the first 30 pages. I also intend to speak briefly on some matters of content of modern awards which the written submission deals with in part 2 from page 31.

PN1560

Today I would focus primarily on what the New South Wales government believes is the very important goal that NAPSAs can play in the process of creating modern awards. The government is mindful of the fact that there is the potential to supplement this written submission prior to 6 June, but it has at least attempted to set out as far as possible matters which appear to be relevant both to the immediate issues at hand identified by the statement and also some broader questions that will arise for consideration in the process of making modern awards.

PN1561

The first of the three issues that I wish to address very briefly is the question of the selection of priority industries. This is something that I think I can more generally rely on the written submission, but can I indicate that in the written submission, the New South Wales government has attempted to assist the Commission by identifying those industries at least in New South Wales where one finds a large number of AWAs and a large number of employees who are award reliant and who as far as can be ascertained are likely to be covered by NAPSAs.

PN1562

I note from having read the transcript of what occurred yesterday that one question that was raised towards the end of the day was whether in determining a priority list, it's the number of NAPSAs or the number of employees covered by NAPSAs that might be the relevant consideration. Certainly our submission proceeds on the basis that it is highly relevant to consider the number of employees covered by NAPSAs who are reliant on them as against possibly people who have NAPSAs applying to them, but who are usually paid above them either by way of collective agreement, individual agreement or simply common law and the material that we filed the Commission will see identifies employees in retail, clerical and what may be said to be the hospitality industry, a combination of food services. As employees which as far as we can ascertain are employees who are reliant on award conditions and where one finds a significant number of employees covered by New South Wales NAPSAs.

PN1563

That leads to the conclusion that is set out in that submission that when considering priority industries, those three industries plus the metals industry would appear to the New South Wales government to be obvious industries that have priority given the terms of the request. There is one other submission that the New South Wales government makes about priority industries which I will turn to in a moment when I deal with the question of timetable, but in short it is this. The New South Wales government suggests to the Commission there might be some real sense in dealing with one industry and one employer and finalising that before the others, using that opportunity to not only guide parties who are otherwise engaged in the processes to specific matters, but also take the opportunity to answer some general questions which necessarily arise in the award modernisation process and I will come to that in a moment, but can I start off by making some submissions about timetabling in this way, firstly to note that the written submissions one finds here at pages 7 to 15 of the written document and those submissions acknowledge the obvious very short time frame to engage in this significant process and also acknowledge that this part has been given not to a purely administrative body, but to a body which has well established recognition as one that exercises its powers in a judicial manner providing ..... and requiring all persons whose rights are affected to be given a full and fair opportunity to be heard before any modern award is made and the written submission notes that while there are according to the request obligations to consult, but when it comes to making a modern award which will affect the rights of parties, assuming as we do that the next tranche of legislation will make modern awards enforceable, then there is obvious need to ensure that parties who are currently parties to NAPSAs and federal awards have a full opportunity to be heard as to the terms of any new modern award, mindful of things such as the aim that neither employers nor employees be disadvantaged as a result.

PN1564

This mind extend, not necessarily extend, but might extend to a need in certain circumstances to move beyond consultation and conduct formal hearings. The written submission identifies that circumstances where parties might have not only a dispute as to a matter of policy as to what should be included in the modern award, but might genuinely dispute matters of fact which the Commission may in a particular case determine unnecessary to ultimately reach a conclusion as to an appropriate clause. If the Commission is, for example, to have regard to whether employees in a particular state might be disadvantaged by the terms of a modern award and that question in turn requires an examination of the NAPSA as currently applies to those employees, there are without wanting to be negative, awards at all levels which contain clauses which might be well understood by the parties, but might not necessarily be entirely fair on their face and there might well be genuine disagreements that then arise as to what the true intention of the clause was, but also as to the types of people who are covered by particular classifications and the like.

PN1565

I have in mind here these difficulties that Senior Deputy President O'Callaghan identified in the ..... task force document when ..... was given the task of attempting to make recommendations as to how federal awards and rates of pay ought to be simplified I think was the word used there and where it was identified that when considering existing awards, practical difficulties can arise because some awards contain little or no definitions when it comes to classifications or contain escalating definitions such as that a person is to be paid a certain rate of pay if they work at a higher level than level 1.

PN1566

Some NAPSAs are based on being paid because of a level of qualification and sometimes that is a qualification that's state based and some awards are broad banded so widely that a single classification can in fact contain ultimate jobs of a quite different nature. These are difficulties which might require in a particular case if the Commission believes having read submissions that there are facts that need to be determined, that there be a formal hearing to determine such facts before the Commission can move to finalise any modern award.

PN1567

JUSTICE GIUDICE: Mr Taylor, one can readily accept that there would be genuine disagreements about a whole range of issues, not only the classification issues that you've raised, but very many others. Isn't it open for us to proceed on the basis that the drafters of the request had come to the view that the most effective way to deal with the task that you've eloquently described in its proportions is for a draft to be made available which everybody can comment on? I don't want to cut off the possibility that there might be hearings of the kind you describe, but it does seem that there's been a deliberate selection of a particular method of dealing with the task and that should be the principal method, if you like.

PN1568

MR TAYLOR: Your Honour, the submission that the New South Wales government makes, I think, is not necessarily at odds with what your Honour has put to me, that is that this Commission would not close off the potential for there to be or a need to hear them and might, indeed, for my part would indicate why such a hearing might be required and it mightn't all be that clear. It might be limited to certain aspects and not broad ranging inquiry and given that any obligations of natural justice must advantage somewhat, depending on the urgency and time limits provided in any legislative context, that is not necessarily inappropriate, but the submission goes no further than saying that the Commission certainly wouldn't close off the fact that it might mean that with this exercise, mindful of matters such as section 576E(5) which makes it clear that the provisions in subsection 576E are not a limit on powers and the Commission can exercise other powers and the note immediately thereafter refers to the Commission's powers in division 4 of part 3 which include, of course, powers to conduct hearings, subpoena witnesses, take evidence on oath and the like.

PN1569

I also note that the request includes a reference to individual Commission members being directed by the President to the award modernisation process and leaves to the President how that might be done, but in my submission that would allow in an appropriate case individual Commission members to first be directed to assist parties in what might be termed to be a conciliation phase, but also for the President exercising powers under section 112 to direct certain questions of evidence to be heard by a single member where it's been considered that that is an appropriate and necessary step in order to determine factual questioning which needs to be determined before a modern award can be made.

PN1570

I indicated earlier in the context of priority awards another aspect of the New South Wales submission and that is the question of starting with one award and by starting with - I don't suggest the New South Wales government submits that others be put in abeyance, but the better word is to conclude one before the others with a decision which assists the parties to answer both the specific questions as to the form and approach that is going to be taken with modern awards, but also to provide the Commission and the parties with an opportunity to consider and for the Commission to determine what in our submission we have suggested are some large questions which will apply generally and without attempting to be exhaustive or even suggested as a necessarily entirely appropriate list, the submission at pages 12 and 14 lists some of the central questions that appear at least at first blush to be warranted which we will need to deal with which have an impact well beyond any single modern award.

PN1571

They might include for example and we've already touched on them that is the way in which state-based classifications and pay structures are to be dealt with in any modern award in circumstances where the Commission at least is enjoined to aim that employers and employees are no worse off. That raises obviously a threshold question which would apply one would imagine in most if not all cases as to how the Commission intends to deal with circumstances where a particular rate of pay, a particular overtime condition or shift allowance enjoyed currently under a NAPSA is going to be recognised in any modern award, mindful of the enjoinder that employers and employees are not to be disadvantaged, but also mindful of an aim which will remove state based distinctions albeit in that case allowing the Commission some latitude to do so over a period of some five years.

PN1572

This submission of the New South Wales government urges on the Commission that at least in that regard, the aim of not disadvantaging employers and employees would have a higher priority than state based differences at least initially. It might be somewhat easier to do it later, but to do it at the outset runs the real risk of one or both groups adopt the likelihood of being disadvantaged in any modernisation process. Another general question which no doubt could occupy and would occupy some significant submissions from parties are what conditions are now to be dealt with.

PN1573

We know that in division 3, subdivision (a) certain matters - certain subjects are allowed to be dealt with, but there are conditions that one finds in NAPSAs which may or may not fit within some of those categories. In circumstances where the federal awards don't necessarily include all conditions which are now allowed to include, then reference to state awards at least in respect of those subjects no doubt are particularly relevant, but inevitably there will be some questions as to whether certain matters can or can't be included. Another general question is the coverage of modern awards within an industry, whether certain employees within an industry are not to be included in the coverage of the modern award, for example because they are of high income or at a supervisory or managerial level and, indeed, whether modern awards are at least prima facie common rule awards and to what extent there is capacity, if at all, for enterprises to be excluded.

PN1574

That raises a question about enterprise NAPSAs. The last person who made submissions indicated, put some submissions about project awards of New South Wales. As I am instructed, under New South Wales legislation the Industrial Relations Amendment Act 2006, schedule 4 of that Act had the effect of deeming state enterprise awards to be state enterprise agreements immediately before the WorkChoices legislation came into effect and so are not technically NAPSAs, as I understand it. They are in fact preserved collective state agreements.

PN1575

Nevertheless, APCSs arise from them and the Commission is nevertheless required to have regard to those APCSs, but it might affect the way in which those conditions are considered. Certainly, whether that is the case or not is the New South Wales government is submitting is a question that ultimately needs to be determined. I've touched already on another large issue, that is the extent to which and indeed the method by which the Commission intends to investigate and determine whether employers and employees are going to be disadvantaged by any particular term of a modern award and whether grandfathering or other methods are to be used or maintaining state-based differences are to be used to prevent any such disadvantage.

PN1576

A fifth large question has already been touched upon I think today and that is that the way in which modern awards are going to be dealing with the national employment standards once they are known and to what extent consistent with the request a modern award is going to refer to or contain ..... provisions about the national employment standards. The New South Wales government has noted in this respect that the Australian Industry Group submission in AIG1 at paragraph 25 and the ACTU in their oral submissions at paragraph number 147 both indicated a request that major parties have an opportunity to have the Full Bench reconvene if necessary to deal with questions of particular importance.

PN1577

It might well be that they have something different in mind than that which I've just been expressing, but the New South Wales government has a recommended approach that as part of the making of the first modern award, that the Commission identify in a manner not dissimilar to the state issue whether there are certain questions of a broader nature which the Commission will need to determine in order to determine that first modern award and invite parties who are not necessarily parties involved in that industry to put submissions as to those more general questions so the Commission can have the best assistance to finalise its views as to those general questions.

PN1578

As part of the making of that modern award, the Commission will of course pursuant to the legislation issue reasons and those reasons will then inform the parties going forward. As I indicated, that's not to suggest other priority awards cannot be progressed in the meantime, but as we were developing the submission, we turned our mind to whether each of the priority industry awards that are to be determined by one Full Bench or a multiple of Full Benches. If it's one Full Bench, then inevitably that Full Bench is going to consider and ultimately determine one before the others.

PN1579

If it's multiple Full Benches, all the more reason in our respectful submission for a Full Bench to determine an approach which can then guide not only the parties but other Full Benches. The last question on timetable which I wish to emphasise from the written submission is this and it echoes submissions that have been put by others already and that is the potentially important and useful right for the state tribunals to ..... in the making of modern awards. As I earlier indicated, something over two-thirds of the awards to be replaced by these modern awards are state NAPSAs, state awards and in considering what are appropriate conditions, in our respectful submission it is going to be of great assistance for this Commission to consult as far as possible with the state tribunals as the request indicates is appropriate.

PN1580

Our submission goes further and suggests to the Commission that it might in appropriate cases consider including on a Full Bench members of state tribunals who are also members of this Commission so as to gain as far as possible the benefit of their knowledge and experience and through them the knowledge and experience of the state system that is going to clearly be a significant and important factor in determining the modern award that is going to apply to employees who have been traditionally covered by the state systems.

PN1581

The written submissions also deal with the question of the award flexibility clause at pages 15 to 21 and in a nutshell they express a concern that an award flexibility clause not become a de facto AWA and in that regard the submission includes material, various references to studies and other evidence and demonstrates that when AWAs had a no disadvantage test there was a real potential, in fact a real outcome that employees were worse off as a result, particularly when it came to work/family balance which was essentially the reason behind the introduction of such AWAs.

PN1582

The submission does not propose a specific clause but having identified what might be said to be shortcomings in each of the clauses that are currently before the Commission and paragraph 75 proposes some specific criteria with the New South Wales Government submits the Commission would apply in terms of the content of an award flexibility clause. The first is that the Commission would - that such a premise is that not all award conditions can be traded by way of an award flexibility clause that certain conditions, particularly those that are not easily quantifiable in a monetary sense, would not be included, that notice of roster changes, rest breaks, indeed dispute settlement requirements would be examples of policies which would not consider appropriate to be traded off through an award flexibility clause.

PN1583

It appears clear that national employment standards cannot be traded off, that the request at paragraph 28 makes clear that the award can't operate inconsistently with the terms of a proposed NES and presumably that would carry through into an award flexibility clause. We haven't seen the NES, we don't how it will be legislated, but that paragraph of the request it would be submission gives the Commission some comfort that National Employment Standards have not been requirements that you traded off. The New South Wales Government had regard to the ACTUs submission that there is a merit in a two stage approach to such an award flexibility clause. That is, to determine the clause first in its general terms but only consider whether particular clauses of an award can be traded off on an award by award basis and that approach seems sensible if one starts on a premise that we submit that not every award condition be traded off.

PN1584

It seems sensible that only at a point where you are considering a particular award would one finalise any flexibility clause relevant to a particular award. Other factors we've set out in paragraph 74. Other factors we've set out in paragraph 75 can be readily bound by the Commission. I'm aware of the time and I won't stop to mention them all but I would highlight a couple. Firstly, that an award flexibility clause not be permitted to be a condition of engagement and by that the New South Wales Government does not mean that an employer and employee cannot agree at the commencement of employment to have a particular award flexibility agreement but rather that an employer not refuse to employ someone because that person in turn refused to enter into an award flexibility agreement proposed by the employer.

PN1585

That is consistent with the more general philosophical approach that is urged on the Commission and which it is hoped might be reflected in the legislation the employers can't use a refusal to enter into an award flexibility clause as a basis for treating an employee less favourable. The only other aspect although without suggesting the others are not equally important that I wish to emphasise is that the New South Wales Government thinks it is appropriate that all award flexibility clauses have the capacity for unilateral termination on reasonable notice. If it please, the last thing I wanted to turn is to emphasise some short points and which are addressed in detail in part 2 of the written submission relevant to the content of modern awards and in particular to highlight the important role that NAPSAs will play in the making of modern awards.

PN1586

Certainly in respect of New South Wales State Awards developed over many decades they provide a full set of fair terms and conditions and regard to that full set of fair terms and conditions in the New South Wales Government's view is both necessary and important when making modern awards. It's necessary because since the request at paragraph 3(h), pay rates and classification derived from them must be regarded, but also not just pay rates and classifications but conditions, it's suggested, also would ultimately have to be regarded if the Commission is going to meet its own, set out in paragraph 2(c) and (d) of trying to ensure that employers and employees are not disadvantaged by the process.

PN1587

It would be necessary if that aim is to be met to turn your mind when making a modern award to questions such as overtime, shift penalties and the like. What the submission attempts to do in some detail is secondly make the point about the importance of these state awards now NAPSAs, not just because they contain conditions which have been stripped out of transitional affected awards but because it is much more likely in the New South Wales Government's submission that vulnerable employees and small employers are going to be covered by NAPSAs than are covered by existing federal awards.

PN1588

The material there that's set out is to the effect that vulnerable employees are those with non English speaking background, the low skilled and low paid and a subset of that, particularly women in occupations such as cleaning and young people in areas such as hospitality and retail are more likely to be paid on the basis that they'd get the actual rate in a NAPSA and so when the New South Wales award system has created a full set of terms and conditions the Commission have particular regard to those, mindful of its obligations when making a modern award to have regard to both setting a fair minimum safety net but also more particularly young people, the low paid and the need to eliminate discrimination and provide pay equity.

PN1589

JUSTICE GIUDICE: Do the New South Wales awards provide a consistent set of rates and conditions for similar classifications, for example, drivers, store people, retail workers and so on?

PN1590

MR TAYLOR: I'm not sure that any consistent creator over 100 years with different union parties and employer parties is ever going to be wholly consistent. There hasn't been in the New South Wales system an exercise of the same type which the Federal Commission engaged in in taking the metals classifications and attempting to align employees to that and one of the large questions which seem inevitable that be grappled with by this Commission is when making modern awards is that approach, that is, taking metals rates, 100 per cent rate and determining classification pays based on that is going to dominate over state based rates which might not reflect that approach.

PN1591

JUSTICE GIUDICE: Well, there have been two attempts in recent memory to introduce consistency across the federal award system. There was the 89 minimum rates adjustment and then the simplification of the late 90s. Have there been similar attempts in New South Wales to bring consistency to the rates of pay in the New South Wales awards?

PN1592

MR TAYLOR: I think in truth I can't answer that question but to the fullest extent it should be answered and it might be something we need to consider addressing by way of supplementary submission and certainly the 1989 structural efficiency principle did apply and led to significant changes to the New South Wales awards.

PN1593

JUSTICE GIUDICE: I see.

PN1594

MR TAYLOR: But my recollection is that the New South Wales Commission took the view that we need to simplify and to strip awards which was forced on the Federal Commission - or I should maybe withdraw the word force. We submit the Federal Commission is required ..... under legislation, it was not a requirement in the New South Wales legislation and while generally issues of ..... would lead to arguments that similar approaches should be taken if the State Commissioner did not consider it appropriate to take the approach that the state awards have been taking to similar or counterpart to. That question is of course very important when it comes to questions of pay classifications but my submission and I'm sure that ..... extends beyond pay classifications and conditions and the particularly conditions of vulnerable employees and employers in small business who because of their particular characteristics are not likely ..... and modern awards maybe in a way that hasn't had to as much in the past but needs to focus on those employees that are coming across in a sense from the state system to ensure that they are not disadvantaged and indeed employers are not disadvantaged by that move.

PN1595

Just two final short points about NAPSAs. In the New South Wales Government's submission that will occasionally be an appropriate starting point. As far as those instructing me can ascertain there is no federal award, for example, in respect to hairdressing and so that might be an area where the state award is an appropriate starting point and I'm mindful of the fact that the CEPU, for example, has submitted that the New South Wales NAPSA would be an appropriate starting point for an electrical award and there might be other examples. The final point was to say this, that there is, as I think I have already identified, an inevitable and obvious tension between the aim to reduce the number of awards and an aim that employees and employers not be disadvantaged by that process.

PN1596

The New South Wales Government's submission is that where that tension would lead to employees and employers being disadvantage it will be appropriate to maintain state based differences for an initial period and that is the last matter which that I wish to address you on.

PN1597

JUSTICE GIUDICE: Thanks, Mr Taylor. Mr Grozier.

PN1598

MR GROZIER: Thank you, your Honour. I think, your Honour, that the one area where there seems to be resounding agreement between all those of us who are participating in the consultation is that the task facing the Commission in partners with an interest is an ornamental one. I submit that ABI is committed to actively participate in the process and doing so it is constructive a way as possible. It shares the views of his Honour the President that what is unfolding is presents an unprecedented opportunity to contribute to the quality of industrial regulation in this country. ABI will lodge a formal written submission and the point of these submissions is briefly to sketch the areas which we will address in that written submission so that other parties are aware of where we might be coming from in that.

PN1599

We will in that, so far as possible, take into account issues that have been raised during the consultation which are germane to the submission that we wish to make. Could I just note that the Commission and the parties are not just facing a large and daunting task but they are doing so somewhat in the dark. Whilst the Federal Government has been admirably forthcoming about its policy proves ..... we do not know at the moment what the bulk of this new legislation will look like. For example, we do not know what rights might flow from what is a simple machinery provision of appending the name of an organisation to a particular modern award.

PN1600

The Commission is to have regard to the representation rights of organisations and transitionally registered associations in performing its award modernisation function but ABI and it's members would not wish to see a situation where demarcation lines, particularly some which have been painfully arrived at, are opened up by the operation of the modern award system so that what had been settled resolutions suddenly open up again because two organisations have a similar capacity for coverage. Obviously the extent to which this may or may be a problem is in part dependent on the role of award respondency or being made under an award and what rights that conveys. But because of these sorts of problems, that is, not knowing the final form of the legislation and the way it would impact on the modernisation process, we support the view that the final industry boundaries and the issue of the number of awards which might apply that is perceived as an industry should not be rushed.

PN1601

More generally, it may be that the full legislation will not have been tabled. It's very certain that it will not have been passed by the proposed Commission's closing date in October for submissions on draft modern awards from the priority group. In this context ABI notes that the Commission does under its existing legislation have the power to vary modern awards. It's clear that the making of modern awards differs from award making as we have understood have been passed. First, the Commission is not dealing with disputes. Second, the Commission is in a way that has not been the case before, the make up of instruments to give effect to statutory principles. In a way that has not been previously true, the Commission is the maker of a modern award system which is proposed to commence on 1 January 2010. Clearly the Commission is to arrive at that point giving effect to the requirements in the award modernisation request, and they include the obligations on the Commission to consult, when ultimately modern making falls to the Commission.

PN1602

Indeed it's salutary to note that the request actually uses the verb create, which is a verb that we've never seen before with respect to awards. This new statutory framework has consequences for the three questions which are being asked today. In the context of the Commission's role as the maker of modern awards the requirements under the award modernisation request to consult with interested parties seem not only directed towards giving transparency to the modernisation process but also to reduce the likelihood of inadvertent consequences arising. In our submission the Commission is being requested by the Minister to balance the timing of the outcome against its quality.

PN1603

A number of parties have requested the Commission to make available a right of reply to what is posted from the closing date of 6 June submissions. Certainly ABI would be pleased if the Commission were to consider something of this kind. Should it not favour such an addition to the draft claim table, the Commission might consider the value of releasing its draft views or perhaps draft options on one or more of the three threshold issues for written comment some time a little later in June, if that would seem to be an appropriate way to proceed.

PN1604

As well, a number of participants have raised the possibility that the Commission might consider the appropriateness of re-listing during the course of the modernisation of priority awards were one or more significant issues of general impact to arise. Through its drafting process the Commission clearly has the power to determine matters where it forms the view that it should do so but there does seem to be value in the Commission considering the re-listing option should those sorts of circumstances arise. The award modernisation request requires the Commission to prepare an award flexibility clause to enable an employer and an individual employee to agree on arrangements to meet the genuine individual needs of the employer and the employee.

PN1605

The award flexibility clause must provide for an individual and his or her employer to reach agreement on arrangements to meet individual needs. In our submission, the award flexibility clause is not directed towards collective agreements or collective constraints on individual agreements. The clause, perhaps adapted to the needs of a particular industry, is to be inserted into each modern award. Each modern award is to contain an award flexibility clause. It is our understanding that in any modern award the award flexibility clause should allow such individual agreements to be made and that adaptation in a particular award would not have the effect of rendering the award flexibility clause inoperable or preventing any arrangements from being made in that industry.

PN1606

Award flexibility clauses are one of the terms of a modern award and as such must comply with the requirements which are placed on modern awards including being simple to understand and apply, promoting flexible work practices and they must both be enforceable with respect to their own conditions and also not operate to undermine the enforceability of the modern award. Modern awards are to be created out of what currently exists. In the majority of cases, comprehensive federal awards be reform awards currently contain facility clauses. Comprehensive awards are excluded from topic specific awards such as superannuation and long service leave.

PN1607

These facility provisions are in pre-reform awards now. The award flexibility clause is something new and additional to what is already there. Award flexibility clause cannot do what an award cannot do so it cannot detract from a national employment standard and nor does an award flexibility clause seem solely directed towards giving effect to a flexibility specified in a national employment standard.

PN1608

Importantly, an award flexibility clause cannot be used to disadvantage an individual employee. This conditions needs to be enforceable. ABI believes that the ACTUs proposed clause fails the simplicity test and also confounds current facility provisions. It is generally supportive of the approach taken by both ACCI and the AIG.

PN1609

In the area of enforceability the Commission is being required to balance the flexibility and simplicity objects against the enforceability of the award and the award flexibility provision. In our submission, loading the award flexibility clause with preconditions to its use or excessive restrictions on its use reduces the likelihood that anyone can use it and risks the objects of flexibility and simplicity, including by potentially raising the likelihood of technical breach in its use. Even a detailed provision is also ultimately reliant on the capacity to identify a breach and if needs be to bring an action in remedy. In our view, the Commission might wish to consider an approach whereby a breach is easy to identify and therefore - or parties acting in good faith to avoid and to rectify.

PN1610

We are therefore supportive of the general approach taken in the employer options. Unfortunately, I have had the opportunity to read yesterday’s transcript but I note in Monday’s proceedings a number of questions were raised about the operation of the award flexibility clause and in our written submissions we will attempt to address those questions.

PN1611

Thirdly, I turn to the proposed priority awards. In terms of the draft priority list published in the President’s statement, ABI has a significant interest in aged care, clerical, metal engineering and associated industries, poultry processing and rubber, plastic and cable making and the TCF group of industries, the ABI services awards and/or NAPSAs in electrical, gardening, graphic arts, hospitality, nursing, retail and technical services. The list of priority industries is still something of a moving feast and we will address it more fully in our written submissions but I do wish to make a couple of general points.

PN1612

The first two points go to the identification of what NAPSAs are involved in any selected priority award area. The award modernisation request excises enterprise awards from award modernisation. An enterprise award is not modernised and a modern award which covers the industry of an employer with an enterprise award does not apply whilst the enterprise award continues to operate. This distinction appears to arise from the safety net role of modern awards whereas enterprise awards are usually more than that and contain bargained outcomes. They are, in this sense, better than a safety net.

PN1613

The same is true within state systems. Different states will have different experiences about how bargaining was given effect to but at least in some states bargaining outcomes were expressed by way of enterprise or project awards rather than by what are now preserved state agreements. The legislation does not recognise this, that is, there is no equivalent concept of enterprise NAPSAs. ABI believes that these enterprise NAPSAs are not generally an appropriate benchmark because of their bargaining content. The matter will resolve in industry consultation but it may be that existing conditions under these instruments are addressed if they are needed to be retained by way of the transitional provisions. Matters of course may become clearer with the full legislation.

PN1614

Secondly, and this has been briefly dealt with by my learned friend, Mr Taylor, in New South Wales the Industrial Relations (Amendment) Act 2006 which came into effect on 13 March 2006 altered the status of many of these instruments which I have called enterprise NAPSAs. On the day before the commencement day insofar as a state award applied to a constitutional corporation was between parties who could have been parties to an enterprise agreement and was made by consent or substantially by consent, it was deemed to be an enterprise agreement between those parties. This means that on the commencement the instrument became a preserved state agreement, not a NAPSA, and it did not give rise to a pay scale.

PN1615

The difficulty is identifying these last-minute preserved state agreements. The legislation provided no inexpensive certain way of doing so. The legislation required the Industrial Registrar to gazette these deemed in that legislation’s terms and enterprise agreements as enterprise agreements but with only a few exceptions, the only gazettal has been to list all state awards which might be enterprise agreements or some or more of the employers under them.

PN1616

By way of an example of this, in the Metal, Engineering and Allied Industries list on the Commission’s site is the BlueScope Steel AIS Pty Ltd Port Kembla Steelworks Employees Award 2006. We would say that that is an example of something which looks rather like a NAPSA but is in fact a preserved state agreement.

PN1617

With respect to these apparent NAPSAs that actually are preserved state agreements - - -

PN1618

VICE PRESIDENT LAWLER: This is because of the operation of the New South Wales legislation?

PN1619

MR GROZIER: Yes, your Honour. But which came into effect on 26 March 2006.

PN1620

With respect to these that ABI is aware of it will identify it its written submission and in many cases it is hoped that as award modernisation consultations go on in specific industry areas, other parties will also be able to identify these deemed preserved state agreements.

PN1621

Finally, I’ll turn to the draft list. It is clear that the award modernisation request encourages the making of industry award and establishing a modern award system with pure instruments than there are at present. Nonetheless, the coverage of any particular modern award requires a balancing of different considerations. As noted above, for example, ABI would not wish to see the process break open established demarcations between unions and sees at least in some sensitive areas the representational rights of organisations and transitional ..... as an important factor for consideration.

PN1622

Australian Business Industrial also notes the President’s statement that consideration was given to industries with high levels of NAPSAs or AWAs which ABI welcomes as a consideration. Its preliminary view of the list, and I note that there have been a number of proposed modifications along the way, is that it would have generally accepted most of the proposed industry areas. As a preliminary view, ABI believes that there is a case for including in aged care nursing rather than excluding nursing from aged care, is not sure that it would be appropriate to commence on an electrical industry or even pursue an electrical industry and it does not oppose the inclusion of the metal, engineering and allied industries area nor the rubber, plastic and cable making area. They both seem to be appropriate priority industries for the qualities they bring to a system but ABI would not wish to see any rush to assume that they would fall under the one award.

PN1623

If there are a number of likely additions to the list, the Commission may wish to consider trimming the overall list. If it reaches that point, one factor which the Commission may wish to consider is the view of the industry parties about whether they feel their industry area should be a priority industry. It is not being suggested that this factor should apply in the face of the formal criteria but it may assist the priority process where two relevantly selected industries are to be distinguished. If it please the Commission.

PN1624

JUSTICE GIUDICE: Thank you, Mr Grozier. We might take a short break, about 10 minutes.

<SHORT ADJOURNMENT [3.10PM]
<RESUMED [3.24PM]

PN1625

JUSTICE GIUDICE: Mr Johnson.

PN1626

MR JOHNSON: Your Honour, not necessarily immediately, but I wonder if I could be given five minutes or some time fairly soon. I don't have a child to pick up but I do have a plane to catch.

PN1627

JUSTICE GIUDICE: You're not alone in that.

PN1628

MR JOHNSON: At a convenient, fairly early time.

PN1629

JUSTICE GIUDICE: Yes. Mr Swancott and Mr Mendelssohn, I think, are still to speak and maybe others. We'll hear you, Mr Swancott, and then come back to you, I think, Mr Johnson.

PN1630

MS MCDONALD: Excuse me, your Honour, I'm from the Nurses Association, if I could have about five minutes or so after.

PN1631

JUSTICE GIUDICE: Yes, very well. It's impossible to satisfy everybody simultaneously. We'll try and do it sequentially. Mr Swancott.

PN1632

MR SWANCOTT: We could all speak together, that would be great. Your Honour, I'll attempt to truncate the submission that I was intending to make. The LHMU has filed written submissions last week indicating our specific interest in relation to the Metals - - - .

PN1633

JUSTICE GIUDICE: Mr Swancott, I wonder if I could interrupt you for a moment. For those who are anxious to get away, there is another possibility. Vice President Watson will be here on Friday with a video link to Darwin. That will only go for a short period of time but it is possible that he could take any other submissions or contributions at that time so I make that offer generally available to people who can't wait any longer today. You may continue, Mr Swancott.

PN1634

MR SWANCOTT: Your Honour, the LHMU has recorded its interests in the Metal Industry Award proposal, higher education, the aged care industry and the associated issue of the Occupational Nursing Award proposal, the vehicle repair industry, the sportsgrounds industry and of course, in hospitality. Our submission deals with why the LHMU sees the hospitality industry as a priority. I won't read that to you. The sector has been delineated by the LHMU because of the interrelationship of a combination of services, food and beverage services and gaming. The LHMU also supports the making of future national modern awards to operate discretely for restaurants and catering and secondly, for clubs.

PN1635

In relation to aged care, the LHMU broadly supports the HSU's submission relating to the aged care industry, we support priority status for the making of the new top to bottom Aged Care Industry Award. We oppose the fragmentation of the industry through the device of excluding a large swag of nurses. We agree in broad terms with the submissions in relation to this issue put today by the AWU and set out in AWU1.

PN1636

Your Honour, on Monday in the very last paragraph of the transcript. PN625, you raised an issue and I quote that:

PN1637

There are two industries which, from our look at the matter, appear to be ones in which there are significant numbers of NAPSAs and significant numbers of AWAs which haven't so far been mentioned and they are cleaning and security and we would be interested to have people's views about whether or not those industries should be on the priority list.

PN1638

Your Honour, we know that you referred to cleaning and security as industries and a key question for the LHMU in award modernisation for both cleaning and security is whether the word "industry" is intended to be the industry or the occupation of the employee or the industry of the employer or both.

PN1639

We read Part XA of the Act as requiring the Commission to make modern awards within the parameters set by the minister in one or more award modernisation requests. We read the current request as encouraging us to approach the current task of identifying priority modern awards by reference primarily to the industry of the employer, with the Commission having been given discretion, where appropriate, to depart from the primacy of the industry of the employer concept, but only for the purpose of creating modern awards along operational lines.

PN1640

We note that some of the submissions before the Commission to date have assumed that the phrase "along operational lines" in paragraph 4 of the minister's request, has the same meaning as "along occupation of the employee lines." We are not sure this is correct but clearly, it’s a matter for argument as to the true construction of the request as the request defines the Commission's jurisdiction.

PN1641

Your Honour, we note that section 567C(4) gives the minister the power to vary or revoke an award modernisation request so if as has been suggested it's a typo, then the power to correct the typo is clearly there. However, we suspect it's not a typo and to that extent we've noted the submissions made earlier today by the Master Builders Association and on the construction of the request. We respectfully broadly agree with that submission which was, I might say, in line, on our understanding with the submission of the Metal Workers Union this morning, which seems such a long time ago.

PN1642

Your Honour, the dichotomy, the occupation of the employee versus the industry of the employer dichotomy is very much alive in a number of the areas put to this Full Bench as priorities, notably in the Australian Nursing Federation's proposal for an award to cover the nursing industry and the ASU's proposal for a General Private Sector Clerical and Administrative Award with some industries excepted.

PN1643

Commission decisions in relation to proposals such as these will undoubtedly have repercussions elsewhere. For example, the Security Awards cover security employees of companies that provide security services. The focus of award respondency is on the industry of the employer. The same applies in the cleaning industry. Award respondency focuses on the industry of the employer whereas the classification structures of the Security and Cleaning Awards focus on the industry of the occupation of the employee, that is security officer and cleaner respectively.

PN1644

The Full Bench will be aware that many employers in many other industries have directly employed security personnel or directly employed cleaners who are entitled, according to the request, to be treated fairly. That's in paragraph 1, objects B and D. They are relatively low paid employees and the Commission is directed in paragraph 3C of the request and in section 576B of the Act to have regard to this fact.

PN1645

Fairness, according to section 567B in paragraph (3)(h) of the request will include the right to be paid relevant rates of pay. This level of fairness may be best achieved by treating the security industry and the cleaning industry by reference to the occupation of the employee, that is as an industry that comprises employees engaged by employers in the security industry or the cleaning industry, as the case may be, as well as employees who are employed as security officers or cleaners in any or all industries in which their employer is engaged.

PN1646

In this context we note the submission of the SDA at Monday's hearing in Melbourne concerned the scope of proposed modern awards. The LHMU believes that it is important in the award modernisation process that drafting groups use major awards that are well known and well worn usage, recognition and scope. This will provide a greater level of certainty of what is being done by one set of draftspersons who'll not intrude on or ..... with the work of other groups.

PN1647

In our view, if drafting groups attempt to fashion wholly new national awards from traditionally separate awards, they will inject uncertainty. By way of example, the LHMUs view is that the making of a National Clubs Award should be included as a priority in the second stage of award modernisation. However, there's a proposal in the current priority list for the making of a Gardening and Showground Maintenance Award. The issue in each case will be whether greenkeepers employed at bowling clubs or golf clubs are more appropriately included in the scope of the National Clubs Award covering their fellow employees when it is considered in round 2, or whether they will be included in the scope of the Greenkeepers Award in round 1.

PN1648

Starting with a blank piece of paper, without regard to the history and usage of existing awards, will lead to error and confusion. We take, for example, the ANFs proposed scope clause for its Nursing Industry Award which we are advised is intended to apply:

PN1649

To all persons who are primarily employed to provide or assist in the provision of nursing care and/or nursing services.

PN1650

Nursing care and services encompass any care or services provided in the course of the provision of care to persons in need of medical or health care and/or in need of assistance in daily living. At first glance, the proposed scope clause would extend well beyond the definition of a nurse as commonly known and applied. The clause would lift up a much greater proportion of say, the aged care industry, into a so-called occupational award that might otherwise be expected from a proposal which ostensibly excises nurses only from that industry.

PN1651

Your Honour, in this regard we're not alone in seeing ..... at the door. The concerns that we raise in relation to aged care is shared by the Health Services Union and the AWU, our concern where the wolf dressed as Florence Nightingale has the potential to create the confusion that we've spoken about in a whole range of industries, this issue, the dichotomy that I've referred to.

PN1652

JUSTICE GIUDICE: I won't ask who the woodcutter is.

PN1653

MR SWANCOTT: Your Honour, I turn to the issue of priority status, including in security. In relation to security, the LHMU and the major employer organisation, the Australian Security Industry Association Limited known as ASIAL have held initial discussions on the shape of a modern award for the security industry. Work has started on spreadsheeting the content of the various federal and state awards. Pre-reform security awards operate in New South Wales, Western Australia, Victoria, the Northern Territory and the Capital Territory. Relevant NAPSAs operate in Tasmania, New South Wales, Queensland, South Australia and Western Australia. Anecdotal evidence is that there has been a penetration of AWAs in some parts of the industry.

PN1654

While those discussions have continued, there are issues still to be discussed between the LHMU, other unions and other interests. They include the key question of the scope of the industry, the breadth of the industry, issues as to whether cash in transit and ATM workers come within the scope, electronic security, private prisons, a matter raised by the CPSU at paragraph 814, immigration detention centres. The reason we didn't put the award forward as a priority was that these issues had not been explored in any detail within the interested parties.

PN1655

In relation to cleaning, discussions in the cleaning industry have not progressed anywhere near as far as those in security. This is largely for logistical and resource reasons. The LHMU has, in preparing for these hearings, concentrated on the priorities identified initially in the President's May statement and then we concentrated on the ACTU's amendment list in exhibit ACTU2.

PN1656

The LHMU of course, has a significant interest in a number of the proposed priority areas and a lesser interest in several others. We have been involved in lengthy discussions with employer associations in relation to the security, hotels, clubs, restaurants awards and with specific employers and other unions in the relevant priority interest. If pressed, the LHMU will accept that the preparatory work in relation to the security awards means that that area could go forward as a priority in this matter but we repeat that the preparatory work in the cleaning award, which is much less developed, and in our view it shouldn't go forward.

PN1657

JUSTICE GIUDICE: Is it the fact that there are significant numbers of AWAs in the cleaning industry in your experience and also a significant number of employees who might be covered by former state awards?

PN1658

MR SWANCOTT: Certainly a significant number of employees and employers covered by NAPSAs. In relation to cleaning and AWAs, we have anecdotal evidence and some physical evidence of AWAs in cleaning, not widespread in the sense of all over the country but in pockets, in geographical pockets, if you like, but yes, there are current AWAs in the cleaning industry.

PN1659

Your Honour, I'm conscious of the time. I'll cut the rest out and go to the final point of flexibility clauses. The LHMU endorses the ACTU's submission generally on flexibility clauses. We observe that industries in which low paid and vulnerable workers predominate, in those industries special care will be needed to ensure that the legislative requirement that there be no disadvantage is met.

PN1660

In this regard, we remind the Full Bench that the Commission examined the hospitality industry in detail in 1997, the awards simplification case. The Commission made specific findings about the nature of the industry and if protection is needed within it. The experience in the industry in the Work Choices era, particularly the 15 months during which neither a no disadvantage test nor a fairness test operated, is well documented.

PN1661

In the absence of legislative restraints many of the award provisions protecting vulnerable workers was simply taken away by their employers without compensation. The experiences of workers subjected to AWAs and non-union collective agreements in the hospitality industry will be an important consideration in the desire for an award flexibility clause that does not allow for those experiences to be repeated. In this respect we endorse the submission of
Ms Myers of TCFUA and in particular those submissions recorded at paragraphs 694 and 707. Thank you.

EXHIBIT #LHMU1 LHMU SUBMISSION

PN1662

JUSTICE GIUDICE: Yes, Mr Johnson.

PN1663

MR JOHNSTON: Thank you, your Honour. I'll be very, very brief. We prepared two documents which we've handed to your Honour's associate. The first document could be headed, or is headed:

PN1664

Summary of meat industry and related awards.

EXHIBIT #AMIC1 SUMMARY OF MEAT INDUSTRY AND RELATED AWARDS

PN1665

The next document is brief notes on the Australian Meat Industry.

PN1666

JUSTICE GIUDICE: I'm sorry, the second document is summary of Australian Meat Industry and related awards?

PN1667

MR JOHNSTON: That's the first document.

PN1668

JUSTICE GIUDICE: I'm sorry.

PN1669

MR JOHNSTON: The second document is the brief notes.

EXHIBIT #AMIC2 BRIEF NOTES

PN1670

Now, your Honour, your Honour and members of the Bench, as I said I'll be very brief and the reason that we've tendered the summary of the meeting for the award is because either wittingly or unwittingly we may have been dragged in to a number of these draft priority industries. Let me give an example. If one goes to page 2 of the summary of the awards, the three main awards in the industry are of course the processing, the retail and wholesale and the small goods award of the meat industry, they are nothing to do with retail, so far as industrial coverage is concerned, but of the retail sector, and they have been separate awards of this Commission for probably the best part of 10 years and prior to that for a period of three decades they were part of the one award.

PN1671

And I don't need to say anything about the rest of the awards on page 2 but there are three main Federal primary awards that we say in the meat industry. One of which is retail, one of which is processing. Then on page 3 we have summarised what we describe as the NAPSAs in the industry. They're taken from, basically from the AIRC site, although some of the awards are in the wrong place on the site, but if I can deal with the top ones, for example. There's a Meat Industry State Award in Western Australia, that covers all the pre-sectors of the meat industry so far as we're concerned, retail, small goods and processing.

PN1672

Then on number 3 on that particular document is the Meat Processing Industry Award in Tasmania. There are two parts of that award but they're not singled as parts. The first part is the time parts of the award which are related to two industries, or two sectors for this particular industry in Tasmania. It is the poultry processing industry and the second part is the red meat industry. The red meat part has tallies, familiar to the presiding President, and the chicken or poultry processing does not have - is not part of the tally arrangement. The time work arrangements under the award are, as I said, equivalent to the red meat industry and the poultry processing.

PN1673

The only organisation, the only two organisation, that the respondent organisation of employees that are respondent to that award in Tasmania are the AWU which traditionally has covered the poultry processing and I notice the AWU this morning, so far as I could hear, did not mention that particular aspect I don't think. And the second part is that, the red meat area, so as to speak, covering pork, lamb and beef etcetera, in Tasmania, under the same award is covered by the AMIU as the organisation of employees.

PN1674

VICE PRESIDENT LAWLER: Mr Johnston, do you support treating poultry processing as an industry separate from meat more generally?

PN1675

MR JOHNSTON: It historically has been separate from an industrial point of view. It certainly is an industry which has simply developed over the last two decades.

PN1676

VICE PRESIDENT LAWLER: But your organisation has membership that extends into poultry processing.

PN1677

MR JOHNSTON: We do, but I've got to say that, on a very strong interpretation of the three primary awards of the Federal meat industry do not cover poultry processing, but they may cover, they may in retail cover some poultry processing, sorry some parts or retail, poultry but is debatable as to whether it's the minor or major part of the dominant sales.

PN1678

VICE PRESIDENT LAWLER: Thank you.

PN1679

MR JOHNSTON: But poultry processing has not been part of, if I can describe this from an industrial point of view, the pork or the red meat award industrial coverage. And then there's other awards on page 3 that are NAPSAs but I don't need to refer to any. Our point is simply that the retail sector of the meat industry around the country is either contained in a separate meat retail award, or secondly it is part of a general meat industry award in various parts and certainly the processing sector is part around the country or separate awards and is not part of what can be described as any food processing sector.

PN1680

I hear the questions that were raised on Monday with Deputy President Harrison concerning the comments you made, Deputy President, concerning food processing and meat processing, so to speak, but we have never been part of that, we have never been part of that area.

PN1681

SENIOR DEPUTY PRESIDENT HARRISON: I understand that.

PN1682

MR JOHNSTON: Now arising out of that particular document that I've just referred to, will we ever be in the future, well anything's a possibility.

PN1683

SENIOR DEPUTY PRESIDENT HARRISON: Well that's what my question is. Why shouldn't you?

PN1684

MR JOHNSTON: Yes, anything's a possibility. But the strict answer is that, in answer to that, is really, and I'll come to the second document, but is really what fell from his Honour the President at paragraph 105:

PN1685

Whether there are justifiable differences in conditions, real differences which have some independent justification.

PN1686

That is paragraph 105 of Monday's transcript. That is the issue so far as we're concerned and we, with the greatest of respect, with the greatest of respect to the ACTU, AIG, ACCI, we don't want to be part of the 19. But it appears at the moment we're unwittingly gathered into it. Now, so far - very briefly as to why we should not be regarded as part of the 19, if I can take on that second document headed brief notes.

PN1687

If I can take members of the Bench, I'm not here to read the document out in terms of the Minister's request, clearly there's the - the primary role is to create industry awards. Clearly there's to be a minimisation of a number of awards that are applicable to particular employers. But we will put in further detailed written submissions and I don't wish to go to that. But I do wish to say on page 3 of the document, it does refer to this and I've covered it mainly - it's about halfway down page 3 that:

PN1688

Traditionally the meat industry encompasses processing small goods, manufacture and retail wholesale operations. Within the industry there's a mixture of trades and occupations and a long history or particular and perhaps peculiar regulations and conditions.

PN1689

The next paragraph:

PN1690

We have never Federally been considered part of the general retail industry --

PN1691

Nor could we ever be from our point of view:

PN1692

We have never Federally been considered part of the general food processing industry.

PN1693

Then if I can go over to - and there we have three standalone awards, but I'm
not - - -

PN1694

VICE PRESIDENT LAWLER: You don't think that people working in the butchery section of Coles or Woolworths don't fit the description of retail workers?

PN1695

MR JOHNSTON: Absolutely not and I'll tell you why in two sentences, your Honour. Because the processing and value added parts of that operation have been taken out of Coles and Woolworths and they're now dealt with off site. And they're dealt with off site in the wholesale and processing areas under a particular employer that's different to Coles and Woolworths generally. And they're our members, they're our members.

PN1696

VICE PRESIDENT LAWLER: You don't have any problem with the people who actually pack the meat into the trays, into the chillers in the supermarkets being treated as retail workers?

PN1697

MR JOHNSTON: This is what happens in supermarket generally, so as to speak. The product comes in in boxes. It has been bones, sliced, processed, value added off site. Nothing to do with Coles or Woolworths. But then it comes in and sits in the cold store and a casual junior usually brings it out and takes the product out of the box and puts it on the shelf. That's generally what happens in the meat area. Now, in the olden days, so as to speak, some people have mentioned the olden days, in the olden days there used to be the tradesmen and there used to be the tradesmen's assistants and there used to be the butchers at the back of the shop. The large Woolworths and the Coles, but they're not there any more.

PN1698

Now, that generally is the issue. If you go to page 6 of the written submission in terms of the general classifications that we have in the Retail and Wholesale Award and that are contained in the Retail and Wholesale Awards as NAPSAs and they're listed on paragraph 2 on page 6, there's general butcher, tradesman slaughterer, boner, slicer, smallgoods maker, cutter operator, mixing operator, curing, cooking, packing, driving, clerical. With the greatest of respect, it doesn't sound like normal retail classifications to us and there's a different historical - again, to use Your Honour the President's words, there's a different historical reason and cultural reason why that has happened.

PN1699

The processing and evaluating takes usually in a lot of areas, takes place at the back of the retail shop, then if you go to the next area which is the next paragraph where it concerns the processing sector, if it could ever be regarded as part of the food processing sector, there's feed lots, livestock handling, slaughtering, rendering, boning, slicing, knife and skin classers, carcass graders, storage, driving, mechanical, the incentive scheme arrangements, seasonal factors, daily hire arrangements. Now, I don't wish to labour the point. We simply make the brief submission which will be amplified in the written submissions that those two areas and the smallgoods area of the meat industry should not be regarded as either retail or if anything arises out of the poultry processing sector, we don't want to have it inflicted on us in case there are additional reasons why we should have extra things contained in any Meat Industry Award.

PN1700

Now, one final point. I don't say anything on timetable. We don't want to be part of the 19 industries or so, whether it's five, 10, 15, 19, we don't want to be, but the only way we would be part of it is if the Commission said, well, we don't think poultry ought to be there, we think meat should be there because poultry is part of meat, well, we're in for the go under those circumstances. We think we can make out a case why retail and meat retail and perhaps I should just while it's on our minds, I should have taken you to on page 4 of the brief notes where we say this. There are retail outlets associated with wholesale markets under the one employer, Venner. There are retail/wholesale operations under the one employer, Venner.

PN1701

There are meat slaughtering operations associated with retail under the one employer, Venner, in the same location throughout Australia and labour transfers from retail to wholesale into processing across the industry. Now, just take that second last example. It might be a minor one, but there's retailers and there's processing and there's slaughtering on the one premises, the retail out the front and the slaughtering out the back. There's an interchangeability of labour. They're under the retail and modern award that's made by the Commission through a part of the day. When they go out the back, they're under the food processing award that may be made by the Commission.

PN1702

It just doesn't make sense under that simple example and that's why we say for us is that we should be kept separate. Now, one final which I object to which is on page - I don't need to take your Honours to it, but it's on page of the brief notes, clause 16, sorry, heading 8 and 7, on page 6 and 7. Your Honour the President spent along with other members of a Full Bench of this Commission possibly two and a half years getting rid of 100 pages of what could be described as the tally provisions in the Meat Processing Award and that was reduced to two and a half pages of a simple flexibility clause and that flexibility clause is still contained in the Meat Processing Award and it is an incentive scheme arrangement, but it is flexible in the sense that it gives the employer and the employees, a majority of the employees and the employer a right to certain flexible arrangements.

PN1703

Now, again without going to it in great detail, under the ACTU proposal, we are unclear or it's unclear to us whether something like that would come out of the award and it would go in a separate flexible arrangement because that is a crucial, flexible clause that is absolutely imperative to the processing sector of this country where the award operates and we had intended that that will be the clause for tallies contained in the NAPSAs because in NAPSAs in New South Wales, in Tasmania, in South Australia and in Western Australia in the processing sector, there are tallies and that was going to be the vehicle.

PN1704

Now, it may be upset, that vehicle may be upset if it is determined, well, that clause can't be and we have to go into something else, but it would be horrendous for the industry and we reject, of course, the ACTU proposal, but simply because we've got individual and majority separate flexible clauses contained in our award at the moment. Now, it may well be we will have to make written submissions concerning the legalities of those particular matters, but it is imperative and I want the Commission to understand that clause 16 of the process is vital and we've got to retain that.

PN1705

VICE PRESIDENT LAWLER: If a replacement model flexibility clause, a substituted - I am not assuming that substitution will occur, but if there were a substituted model flexibility clause that gave at least as much flexibility as you have and then more on top, would it still be imperative for you to keep the existing clause?

PN1706

MR JOHNSTON: We're simply raising the issue at this stage. It depends on what the words are, but the words on clause 16 are very, very specific.

PN1707

VICE PRESIDENT LAWLER: So it's not imperative for you to keep the existing words, it's imperative for you to keep the existing flexibility?

PN1708

MR JOHNSTON: Absolutely, yes, but I just raise that issue because it is important. I don't wish to raise history again, your Honour, the President, but it was a long time getting it. If the Commission pleases.

PN1709

SENIOR DEPUTY PRESIDENT ACTON: Mr Johnston, butcher's shops, suburban butcher shops, where do they come under, you or the retail industry?

PN1710

MR JOHNSTON: Where do they come?

PN1711

SENIOR DEPUTY PRESIDENT ACTON: In the meat industry or the retail industry?

PN1712

MR JOHNSTON: In the meat industry and I've taken I think the bench to that. You see, what you see in a butcher shop, if you go around the back, you'll see the processing, you'll see the value adding, you'll see the boner, the slicer, the knife hand, you'll see other particular matters and that is meat retail which is peculiar to the meat industry.

PN1713

SENIOR DEPUTY PRESIDENT ACTON: So all the employees you say are involved in that meat processing?

PN1714

MR JOHNSTON: All those employees are involved in a meat sector of the meat industry.

PN1715

SENIOR DEPUTY PRESIDENT ACTON: And do you also say that the supermarket chains like Safeway no longer employ butchers?

PN1716

MR JOHNSTON: I didn't say that. I gave the example of Coles and Woolworths. In Safeway in Victoria, it's a little different because there are still those butchers that are employed at the back of those particular shops, but it is a one state operation in terms of the Safeway provisions and I've got that award listed here, Safeway operations in Victoria, but it's a different operation that takes place within that supermarket compared to a Coles or Woolworths generally.

PN1717

SENIOR DEPUTY PRESIDENT WATSON: I'm pleased to hear that having seen a bloke with a knife at the back of a Safeway store in Victoria.

PN1718

MR JOHNSTON: If the Commission pleases.

PN1719

JUSTICE GIUDICE: Mr Bunting.

PN1720

MR BUNTING: Thank you, your Honour. Your Honour, I seek leave to appear for BHP Billiton Ltd. We have filed a submission. Your Honour, I will cut short what I wish to say about it and just draw attention to some particular points.

PN1721

JUSTICE GIUDICE: I think we will mark it for identification.

EXHIBIT #BHPB1 WRITTEN SUBMISSIONS

PN1722

MR BUNTING: Thank you. Your Honour, members of the Bench, we indicate a strong general support in the context of the model award flexibility provision for the approach taken by ACCI, AIG for reasons which we explain in the submission and we also take the view that the approach suggested by the ACTU is not a good one for reasons which we explain and I won't go to them now, but we draw attention to them I think in paragraphs 5 to 9.

PN1723

We then have three I think perhaps distinctive points which appear in the balance of the submission which work together as an integrated package and which we think may be of interest to the Bench and other parties and it's those to which I wish to draw attention. There are really three points. The first is about how the no disadvantage issue would work and we submit that it does need to be a global test, of course, and it needs to be one that takes into account not merely straight monetary matters, but public interest matters, notably for example matters such as family friendly arrangements and that would come conveniently under a public interest or another heading like that, so that's the first of those propositions.

PN1724

Secondly, we say that the Commission or perhaps later another body would publish or might consider publishing guidelines which would assist parties on the application of what would be relatively common provisions no doubt across modern awards. That's perhaps an unusual approach or it's not a traditional approach for the Commission, but one apprehends as best we can about what is ahead, that that may well be an appropriate model for the Commission to pursue. So in the light of experience, as issues arise, it would possibly publish guidelines which would be available to people to give guidance as to how certain sorts of provisions might be able to operate and we also have in mind that the Commission or the award provision would contemplate that the Commission would allow a party or parties to a proposed arrangement to approach it and seek something which might be styled as a private ruling.

PN1725

So it would be a facility available to parties, not compulsory, not obligatory, but available so that parties could have certainty if they wished about, well, will this pass the test or won't it, particularly, for example the arrangement is to do with allowing people to knock off early to go and pick up a child or something like that, possibly today and if the arrangements - there was some trade-off or penalty rates or something, an association with that, then it would be possible to go and get a ruling so that the parties would have certainty about it. If such a ruling had been obtained, then that would conclude the matter. Otherwise, the parties might just be guided by guidelines or their own assessment of the situation.

PN1726

COMMISSIONER SMITH: Mr Bunting, you say such a ruling would conclude the matter. Would that then be used as a defence, for example, against a claim if there was no disadvantage?

PN1727

MR BUNTING: It would, Mr Commissioner. Our suggestion in effect is brought to life in the attachment to the submission and in paragraph E of the draft.

PN1728

VICE PRESIDENT LAWLER: This would depend upon enabling legislation, I take it, legislation conferring such a function on the Commission.

PN1729

MR BUNTING: Yes.

PN1730

VICE PRESIDENT LAWLER: Or do you think the clause itself - - -

PN1731

MR BUNTING: The clause might go some of the way. The clause would facilitate it, but it's possible that the Commission might need a power to do these things. We don't have the legislation in front of us. To the extent possible, one can look at policy announcements. The policy announcements which we've extracted earlier in the submission do contemplate this sort of thing, so it's a reasonable guess that the legislation will facilitate it, but we won't know, of course, until we have actual legislation, so the idea is that there would be a facility for a private ruling, not obligatory, but available and that would be conclusive if sought on the question of whether the public interest type consideration had been satisfied and then the third point really is to consider whether or not it is the modern award which has been varied or whether as I think is contemplated or at least in terms contemplated in the ACCI AIG model or whether, rather, it's the application of the modern award which is varied or somehow modified which I think is the way that the ACTUs document approaches it.

PN1732

We suggest that perhaps it is really the application which is modified, the modern award exists as a published document, the Commission has a power to vary it. Although it might be possible to contemplate local variations, the more obvious suggestion or conclusion would be that the published award stands and then it either applies or doesn't apply according to local circumstances and then if it's approached that way, I think there's no issue with have we created some sort of statutory individual agreement? Rather the modern award is always applying, but its application is removed in certain circumstances and in order to be within those circumstances, you would have to show that you have an agreement meeting the description and that will be the description contained in the award, the enabling provision and you would also have to show that you had observed it, so it wouldn't be enough just to have one of these arrangements.

PN1733

You would have to have one and observe it and then if you did that, then there would be an effective defence, if you like, to a prosecution for not complying with the award. If the person seeking to rely on the facility, usually the employer, but perhaps an employee, wasn't able to demonstrate one of those two things, then the award would apply, so those are possibly the distinctive points that we have put forward or suggested. They work I think as an integrated package. They're explained in paragraphs 10 and following of the submission and those are the matters which we wish to draw to the Full Bench's attention.

PN1734

JUSTICE GIUDICE: Mr Bunting, there were two things that were raised, have been raised a couple of times that related to the issue of duress, I suppose, or coercion. One was the question of language, people of non-English-speaking background and the other was the question of some kind of resort to representation or advice. Both of those apply, of course, in the case of employer initiated requests for flexibility. Do you have any submission about those two issues?

PN1735

MR BUNTING: We don't address them specifically in the written submission, but we do implicitly, your Honour, because we effectively adopt the position taken by the ACCI, AIG draft on that matter. The words coercion and duress, of course, have been given a considerable deal of attention by superior courts over a lengthy period, including by the Federal Court in the last 10 years or so, so it's reasonably well understood what they mean and we would be a bit inclined I think to allow those words just to stand because of the jurisprudence which is available and then what is coercion or duress obviously varies according to the circumstances. If you're dealing with people who aren't able to speak English well or suffer some other disadvantage, then the test would no doubt be considerably higher than it would be if you were talking to a sophisticated employee well able to argue his or her case.

PN1736

JUSTICE GIUDICE: Yes, I understand that. The obligation on the Commission I think is to ensure that there's no disadvantage and it was really in that context that I suppose I am - my question was intended to explore with you whether there are other things which could be built in that might give added protection. I understand the submission.

PN1737

MR BUNTING: The only other point I would make about it, I think the notion of guidelines might well be able to deal with that was well so that guidance is given about how it would work. Of course, the clause would only facilitate something which did not involve coercion or duress, so an employer which took an inappropriate approach would be at risk on the matter.

PN1738

SENIOR DEPUTY PRESIDENT ACTON: Mr Bunting, in terms of the test for disadvantage that you put, as I understand it under the existing legislation, if you want to create or develop an ITEA, you compare it against any relevant collective agreement and award. Does your clause make it easier then to achieve for an individual departures from the award than might be available under the current legislation in respect of ITEAs?

PN1739

MR BUNTING: I must say I haven't considered that. My submission really only considers the modern award proposition and it only operates from 2010 onwards. ITEAs are an interim arrangement which perhaps will fall away at that point and won't be available. There could of course be statutory agreements of one sort or another, collective agreements which overpower it and have other considerations, but I think at least in relation to ITEAs, I think the answer may be that when this provision is operating, were it to be awarded, the ITEAs would be a thing of the past.

PN1740

SENIOR DEPUTY PRESIDENT ACTON: So you don't see your clause as requiring any consideration of collective agreements that might be covering the employees?

PN1741

MR BUNTING: I think as a matter of practicality this would operate where there is not a collective agreement, because if there's a collective agreement then at least 99 times out of 100 the award would not really be operating, it would be waiting in reserve and it would have been used for a testing purpose but it wouldn't actually be operating. We don't quite know what the new legislation will say about that. Perhaps it will operate in conjunction. Typically I think this would be operating where a collective agreement is not operating and where all you've got is the award. And so we're only contemplating that you would have a test by reference to what the award states.

PN1742

SENIOR DEPUTY PRESIDENT ACTON: What about if the collective agreement is only operating in respect of part of the award, if it doesn't include the terms of the award in the collective agreement?

PN1743

MR BUNTING: I'm sorry, I missed that, your Honour.

PN1744

SENIOR DEPUTY PRESIDENT ACTON: Where a collective agreement doesn't include the terms of the award within it and so it's only covering part of the terms of an award?

PN1745

MR BUNTING: Yes, that could happen, I agree. But I think whatever the rules are then would really be - they'd either be governed by the award stream or the collective agreement stream, and there will be legislation saying whether or not you can have facilitative provisions or whatever it might be in the collective agreement. And it's just out of scope at the moment. To the extent that the award is operating as an award, a modern award, then we suggest that this is an approach which might be pursued and that you can for the moment anyway leave aside considerations arising from statutory agreements.

PN1746

SENIOR DEPUTY PRESIDENT ACTON: Thank you.

PN1747

JUSTICE GIUDICE: Thank you Mr Bunting.

PN1748

MR BUNTING: Thank you, your Honour.

PN1749

MR BOYCE: I appear for the aged care industry. I don't mean to butt in but I wonder if I can just be marked to be heard today by no later than 10 to five? I'll be eight or 10 minutes, so I'm keen to ensure my submissions are heard by the Commission today.

PN1750

JUSTICE GIUDICE: Yes, very well. Mr Morris, you wanted to say something?

PN1751

MR MORRIS: I have Mr Bunting's luggage in my car. I think I can be shorter than anyone else today with a bit of effort. I seek leave to appear on behalf of a group of coal industry employers, and I have to hand up a list of those companies or the company groups, and on behalf of those companies I've submitted yesterday electronically a short outline of submissions. I don't propose to read them. I do have hard copies of that if that's convenient.

PN1752

JUSTICE GIUDICE: Yes. I'm not sure that I can lay my hands on that document at the moment. 27 May 2008, written submission on behalf of coal industry employer group by Blake Dawson?

PN1753

MR MORRIS: Yes.

EXHIBIT #COAL INDUSTRY1 COAL INDUSTRY EMPLOYER GROUP BY BLAKE DAWSON SUBMISSION DATED 27/05/2008
EXHIBIT #COAL INDUSTRY2 LIST OF EMPLOYERS

PN1754

MR MORRIS: Thank you, your Honour. The only point I wish to address orally relates to the coal industry, what it is and potentially what scope of application a modern award might have in the coal industry. The submission that we've made contends for the coal industry being dealt with in one or two ways; either that the coal industry is defined as being effectively the coal mining industry or if the coal industry in some broader connotation is to be the subject of the making of a modern award, that there be a modern award confined to the coal mining industry on the one hand and other aspects of a broader coal industry on the other.

PN1755

In other words, we contend strongly for a modern award for the coal mining industry to be confined to the coal mining industry as that term has been very widely understood, litigated, has been the subject of decisions of this Commission, of the High Court, for many years the Coal Industry Tribunal, and also has its own legislation in a number of respects. For example there's a long service leave, portable long service leave funding scheme for the coal mining industry that parallels the coal mining industry in its industrial usage as evolved through the jurisdiction of the Coal Industry Tribunal.

PN1756

We see a very distinct inconvenience, complexity and opening up issues that really would be quite problematic if one developed, created a Coal Industry Award which straddled the coal mining industry on the one hand and other coal related sectors on the other. Now, in that respect I think our position is paralleled quite closely with what was put on behalf of the AWU today. The obvious excision from the coal industry or differentiation from the coal mining industry is the coal terminals or coal ports. There are major coal export terminals in Queensland and in New South Wales which load black coal onto ships for export, predominantly for export, some interstate carriage.

PN1757

Those coal terminals or coal loaders or coal ports have not been treated as part of the coal mining industry. They have their own industrial arrangements, they have different union coverage in many respects, and that is why we will be enlarging on this in a written submission. We see it as being very important to being careful of confining the coal industry modern awards or award to either the coal mining industry only or more than one award, one confined to the coal mining industry, one to other sectors in the coal, or parts of the coal sector.

PN1758

That was really all we wished to put. We are obviously not ad idem with the CFMEU on that at this stage. We'll do our best to persuade the CFMEU Mining and Energy Division to see our way. The group of companies for whom I appear are interested in the coal mining industry, and as a group will be engaged and are already engaging with the CFMEU in relation to that industry. The group as such would not wish at this stage at least to, as it were, enter into the detailed processes of consultation with the Commission and so on in relation to coal ports or coke works for example. As I say, those points are covered in our outline in Coal 1, but we were keen, particularly as you've heard from the CFMEU today and the AWU, for the Commission to understand the present and quite strong view.

PN1759

JUSTICE GIUDICE: Thank you, Mr Morris.

PN1760

MR MORRIS: If the Commission pleases.

PN1761

JUSTICE GIUDICE: The gentleman who wants to get away by 10 to five?

PN1762

MR BOYCE: That's me. Your Honour, I seek leave to appear on behalf of aged care employers. I've got an outline of submissions to tender.

EXHIBIT #ACIEA1AGED CARE EMPLOYERS OUTLINE OF SUBMISSIONS

PN1763

MR BOYCE: Thank you, your Honour. The 11 state national and territory employer associations that I appear for represent the not for profit charitable and church residential aged care and community care providers across Australia. This group of employer associations represents 95 per cent of the interests of employers in this industry. They view this award modernisation process as very important. There's two things that they all speak as one about today, and the first one is, in relation to the aged care industry, the exclusion of nursing should be deleted. And so in that sense over 95 per cent of employers in the aged care industry join the queue with the AWU, the LHMU and the HSU in opposing the exclusion of nursing from the aged care industry.

PN1764

And the second issue that the association has put before this Commission is that the aged care industry should be removed from the current priority list for those reasons I'll develop now. Your Honours and Commissioner, Mr Blake of the Nurses Association in his submissions to this Commission on Monday raised some public interest issues as to why the nursing occupation should be a stand alone occupation and why aged care should be to the exclusion of nursing. Now, effectively those submissions imply that a nurse is a nurse is a nurse is a nurse. And from the aged care industry point of view we reject that position. Nurses are a very important component of the workforce of the aged care industry but they are not the same as the acute sector, they are not the same as the public hospital sector.

PN1765

Now, historically and today nurses are at the forefront of aged care service delivery. They are specifically recognised as being essential to the quality of care in aged care facilities, and that's recognised by the legislative regimes that apply to aged care facilities as recognised by the government, even recognised by the Nurses Association itself. So they may come before this Commission and tell the Commission that they seek a Nurses Occupational Award, but it will be in our final written submission that we put by 6 June showing to the Commission that they treat nurses differently in aged care to the acute sector to the public hospital sector. They do identify the matters separate, and we say that that should continue in relation to the Aged Care Industry Award modernisation process.

PN1766

COMMISSIONER SMITH: Mr Boyce, have you got within your submission the number of RNs engaged in the aged care sector?

PN1767

MR BOYCE: Not in this submission, Commissioner, but I will have that data.

PN1768

COMMISSIONER SMITH: I'd be assisted, thank you.

PN1769

MR BOYCE: We're compiling a large amount of data at the moment for our final written submissions. So the association submit that the aged care industry is a stand alone industry and we commend the priority list for identifying that, however it shouldn't exclude nursing. We say that nurses in aged care are highly competent. They're skilled in holistic care and the care that they deliver to Australia's older Australians. They're pivotal to aged care, they manage our facilities, they assess care needs, they plan and coordinate care, they supervise others who deliver care, they deliver care themselves, they provide leadership in the delivery of care and they evaluate the effectiveness of care.

PN1770

So they're a central component to the aged care industry and should not be excluded. They're essential to the skills mix. So the submission is that it's inconsistent with the regulations, the current practical managerial, administrative funding, care and other frameworks. And what the Commission should realise from an historical point of view is that whilst there are some awards that include private hospitals and nursing homes in other states outside of New South Wales and Queensland, across Australia private hospitals and nursing homes were regulated by the states. That regulation has now changed. The aged care industry is now totally regulated by the Commonwealth. The states have very minimal or no role to play in the regulation of aged care facilities.

PN1771

The majority of the funding, $8.8 billion comes from the Commonwealth government. And that regime or that nexus, that link between aged care nurses and the private hospital or acute sector is no longer in existence. And it's at this point I'd like to take the Commission to the comments of the Full Bench of the Industrial Relations Commission of New South Wales in nursing homes, and see Nurses State Award re (4) [2005] NSWIRComm 88; (2005) 138 IR 409. Now, this decision isn't obviously a binding authority. The Commission may not even see it as persuasive, but I submit that it's highly relevant to the Commission's determination of the aged care industry including nursing on the priority list.

PN1772

It was contested proceedings between the Aged Care Employers of New South Wales and the New South Wales Nurses Association. It was proceedings in which the Nurses Association sought to bring private hospital wages and some other conditions into the aged care sector, the Full Bench of the Commission's determination was that there's no longer any nexus between nursing in hospitals and nursing in nursing homes. The nursing home environment, the factors that create that environment are different to hospitals, and the conditions of employment in awards covering nurses in hospitals and nursing homes not be determined primarily by reference from one to the other, or more of an occupational approach, but by applying the relevant legal and industrial principles to the facts of the circumstances of the industry under consideration at the time.

PN1773

So in respect of Mr Blake's submission on Monday that there is this close nexus or common history of wage fixation across the industry, this decision is one decision that doesn't prove that true. So the associations are saying the same thing, it's the nature of the aged care industry, not it's occupations, that should be the focus of any modern award for the aged care industry covering all the essential skills of the aged care workforce and not separating it out.

PN1774

I take the Commission to various parts of the Act and the minister's modernisation request. And Mr Blake on Monday made the submission to the Commission that there's about 100 nursing awards, 50 in the private sector, 50 in the public sector, and that those could be rationalised into one Nurses Occupational Award. Now, if the Commission was to do that, it still doesn't mean that if you rationalise all those awards into one nurses awards that the employers who require nurses, so the private hospitals, the public hospitals, the aged care facilities, won't still have a multitude of awards applying in their workplaces as they currently do.

PN1775

So this is a unique opportunity for the aged care industry to be dealt with in one modern award. It's appropriate to do so in the context of the nature of the industry, and it's also consistent with paragraph 9 of the minister's request where she talks about the desirability of avoiding the overlap of awards and minimising the number of awards that apply to particular employees or employers. The other issues I have in reply to Mr Blake on Monday, the submission that there's not one award or NAPSA for nursing that's combined with other occupations in an industry across Australia.

PN1776

And whilst we agree with that position, the nurses awards are certainly tailored across Australia to particular industries, albeit they are occupational awards, they are still tailored to particular industries, and the submission that employers now in the health sector operate across a range of service deliveries in the service sector, so that employers may operate a private hospital, a nursing home and have a day care centre or other health services they deliver. That doesn't mean that the nurses in those different divisions or businesses of that one employer readily swap or transfer between the employer's private hospital, nursing home, day care centre. That simply doesn't occur.

PN1777

And we'd submit that the Nurses Association has to put evidence to this Commission to make any suggestion that the nature of employers in the health care sector would warrant the Nurses Occupational Award going forward and not excluding nurses. The only other submission the associations make goes to the issue of timeframes. We'll be putting in our final written submissions a revised timetable in relation to the priority list for the Commission's consideration. If the Commission doesn't consider that revised timetable as something they're prepared to adopt given the time constraints currently applying, then the aged care employers still submit that they should be taken off the priority list and given a new timeframe. And that goes to issues of funding which I've developed in the outline of submissions and will develop further in our final written submissions.

PN1778

There's been as at 20 March 2008 a once in a decade change to the way funding has been allocated to the aged care industry. That's under review. There's been announcements in the budget that that's under review for a 12 to 18 month period. We would submit that, I submit that that's a consideration the Commission would take into account in determining whether the aged care industry should or should not be on the priority list. If the Commission pleases.

PN1779

JUSTICE GIUDICE: Thank you, Mr Boyce. McDonald, is it?

PN1780

MS E MCDONALD: Your Honour, I just have a baby. It's not an excuse. Thank you very much. I appear for the New South Wales Nurses' Association.

PN1781

JUSTICE GIUDICE: Yes.

PN1782

MS MCDONALD: The Nurses' Association supports the submissions made by the ACTU in Melbourne and the ANF on our behalf. We will also be making written submissions after this application. Today we'd like to take the opportunity to address why we seek a nursing industry award in the priority list and ...... submission ...... Your Honours and Commissioner, I do say industry is the preference to the section 4 definition in the Act - whether its occupation or industry we will turn to that in our written submission. But I'll use the term nursing industry for this purpose. In New South Wales we have around 80,000 nurses. Approximately half of which currently remain in the New South Wales state system under public sector. In Melbourne, I think, the fact that half of them are in the state system was omitted from the submissions. So we have - we estimate about 40,000 nurses in New South Wales are under a NAPSA and some under AWAs. We don't know the figures that are under AWAs.

PN1783

Prior to WorkChoices legislation most of the nurses in New South Wales worked under four common rule nursing specific state awards and rather uniquely in New South Wales bargaining is for nurses, a fairly new concept. Cognisant that the Commission is to have regard to industries or occupations with high numbers of NAPSAs and AWAs - first some rough examples of the number of employees, we say they're all NAPSAs - NAPSA reliant or AWA reliant. There are a couple of thousand nurses who work in the general practice medical centre area. About
60 per cent of our members in aged care are NAPSA reliant, or AWA reliant. About 80 per cent of our private hospital members are NAPSA or PSA reliant. So significant numbers there. We also have nurses who work for affiliated health organisations which we estimate to be about two or 3000 nurses.

PN1784

Now, these are under the NAPSA, the same law that applies to nurses in the public hospital system and they include facilities such as St Vincents Public Hospital at Darlinghurst. New South Wales Health Policy Directives, Determinations and State legislation operate in conjunction with the NAPSA. And to the extent that these instruments comply to a safety net with minimum conditions and are relevant to a modern award their content must be factored into the creation of a new award. In accordance with section 5076B(2)(d) of the Act we say the Nursing Industry Award would effect a significant reduction in the current 50 federal awards and 50 NAPSAs nationally as referred to by Mr Blake from the ANF.

PN1785

We are confident that there are commonalities in wages and conditions such as legal matters, classification structures across these awards that will assist in achieving a new nursing award. So for those facts we ask the Commission to place the Nursing Industry Award on the priority list to ensure there is a proper safety net for nurses who are very much NAPSA and AWA reliant in New South Wales.

PN1786

JUSTICE GIUDICE: Thank you, Ms McDonald. Is there somebody who has some urgent need to speak now?

PN1787

MR MENDELSSON: I only have five minutes worth.

PN1788

UNIDENTIFIED SPEAKER: We've only got five minutes, yes.

PN1789

MR CLARKE: I'd only make one comment that I just won't be available on Friday unfortunately so I do seek to be heard before the end of today at some stage and I'll only be five minutes.

PN1790

UNIDENTIFIED SPEAKER: I'm in the same position, here, if that's all right, your Honour.

PN1791

JUSTICE GIUDICE: Well, why don't we just go along the trunk of the bar table. This gentlemen, you're?

PN1792

UNIDENTIFIED SPEAKER: Thank you, Mr President. I have no urgent pressing need for any claims or pick up any children and so on. I'm quite available here and I'm keen to put submissions today if I could.

PN1793

JUSTICE GIUDICE: Yes. How long will your submission take?

PN1794

UNIDENTIFIED SPEAKER: Look, I daresay probably 10 minutes.

PN1795

JUSTICE GIUDICE: Yes. Well, for the people who can't be here on Friday I'll start with. Yes, the other gentleman at the bar table.

PN1796

MR G NORRIS: I appear on behalf of the Australian Licenced Aircraft Engineers Association.

PN1797

JUSTICE GIUDICE: Yes, Mr Norris.

PN1798

MR NORRIS: I have an outline of submissions.

PN1799

JUSTICE GIUDICE: Thank you.

PN1800

MR NORRIS: I also have a bundle of three decisions which I'll hand them up and I'll refer to them later.

EXHIBIT #ALAEA1 OUTLINE OF SUBMISSIONS OF AUSTRALIAN LICENSED AIRCRAFT ENGINEERS ASSOCIATION

PN1801

MR NORRIS: Your Honours, if I may refer to our outline of submissions. Our outline of submissions is basically directed towards the aviation industry being deemed an industry in itself. We are very mindful that in the priority list that's been developed in the award modernisation process doesn't subsume or take up part of a very distinctive industry that exists in its own right. The LHMU have expressed similar concerns and I think the New South Wales state government submissions went to some issues in that regard as well. We're concerned that the process may roll over in regard to the priorities and that an industry such as the aviation industry, which is of grave importance to Australia's economy, may get subsumed into some other modern award without the players in the aviation industry having a say in regard to the importance of the industry, being an industry on its own.

PN1802

Now, I understand the consultation process that has been embarked on. We would say, however, that in the award modernisation process and that industries such as ours which does not have a lot of awards compared to some other industries, does not necessarily have a lot of AWAs or NAPSAs compared to some other industries because most of the aviation industry awards are, all of them are federal awards. While the criteria for the setting of a priority relates to AWAs and NAPSAs, an industry such as our own may inadvertently be pushed to the side and then parts thereof it subsumed by an award modernisation in regard to, say, transport in general.

PN1803

Whereas the aviation industry in our submission and in the outline of submissions which I won't go to in detail deals with the specific nature of the aviation industry, the statutes that govern it, in particular in regard to maintenance, the methods of training, the competency standards, responsibility and accountability which is, in effect, all related back to international conventions and statute which makes this industry somewhat unique in regard to the skill sets and the competency levels and accountability levels that need to be taken into account in any award situation. We would respectfully submit that this industry is easily dealt with. Even though the Commission recognises that it is of economic importance, that it has some certainty as a matter of priority, that the parties who are involved are not a lot of parties in regard to a general aviation award which does have a large amount of respondents.

PN1804

They are generally represented by the AIG. In regard to the airlines, we're not talking about a lot of airlines here, however we are talking about a number of foreign airlines who have recently come into Australia with more competition being introduced into routes in and out of Australia that may need to have their say in regard to consultation. And what we end up with is a modern award in regard to the aviation industry. We don't see it as being a big exercise.

PN1805

JUSTICE GIUDICE: Mr Norris, we have three specific matters that we have to address in the short term, one of which is a priority industry list. There's no suggestion at this stage that the aviation industry would be part of that, but your concern is that, there might be some selection of occupational industries which might cut across into the airline industry. Is that the concern?

PN1806

MR NORRIS: Yes, your Honour.

PN1807

JUSTICE GIUDICE: Well, in due course the list will be published and there'll be a procedure for pre-drafting consultation. All I can suggest is that, you should be aware at that stage of that and if you feel that your interests might be affected to take some action at that stage. But really the point you raise is capable of application right across industry and we can't hope possibly to anticipate all of the areas. All we can do is publish the list and to the extent we can, rely on people to draw their interests to our attention.

PN1808

MR NORRIS: Yes, I respectfully understand that, your Honour, and suffice to say that we're here to put ourselves on the radar.

PN1809

JUSTICE GIUDICE: Yes, well, you've done that.

PN1810

MR NORRIS: Yes. In regard to the - in our outline of submissions in our view sufficiently addresses that. In regard to the flexibility clauses in the award, or the model flexibility clause, we have some concerns in regard to, we support the ACTU draft. We have some concerns in regard to the ACCI draft and the AGI draft, in that, specifically the AGI draft and ACCI draft don't provide for exit strategies in regard to either party to get out of the flexibility arrangement should circumstances change.

PN1811

I've handed up three decisions of the Commission which are recent decisions we've been involved in which go to the Full Bench and the Commission dealing with parties getting out of flexibility agreement. In regard to - from Rossiters in Perth, being an award flexibility arrangement under our enterprise agreement. And also a more recent decision in regard to annual leave and the - which goes to the point that once - which relates back to the Acts Interpretation Act section 33, that once the party who grants has a power to revoke and we say that the ACTU's version fairly and squarely puts the employee in a more equitable position in regard to - or both parties in an equitable position in regard to whether a flexibility arrangement has some sort of method of termination.

PN1812

That ACTU version provides certain in regard to that. Also in the ACTU version the no disadvantage test as such relates back to enterprise agreements, state legislation and the award itself, which in our view is more definitive than the AIG and the ACCI version, which in effect is a generic no disadvantage test which leaves itself open to interpretation in our view. The ACCI one specifically relates to the award and no disadvantage it would go the award. Whereas in the ACTU version it relates back to specific legislations in the states.

PN1813

Why that is a concern and why we support the ACTU one is because, as everybody - as we all know, the state - most occupational health and safety legislation is embodied in state legislation. And it's important that that's taken into consideration with a flexibility arrangement. If the Commission pleases.

PN1814

JUSTICE GIUDICE: Thank you, Mr Norris. Mr Mendelsson, I think you were unable to be here on Friday, is that right?

PN1815

MR MENDELSSON: If Vice President Watson is going to be here on Friday I can be here on Friday.

PN1816

JUSTICE GIUDICE: Yes, all right.

PN1817

MR MENDELSSON: But I think there are two others who can't be.

PN1818

JUSTICE GIUDICE: Who can't be, yes. Yes.

PN1819

MR R TAIT: I appears for Clubs New South Wales.

PN1820

JUSTICE GIUDICE: Yes, Mr Tait.

PN1821

MR TAIT: I also appear on behalf of Clubs Queensland, Clubs South Australia, Clubs Western Australia, Clubs Tasmania, Clubs ACT and Clubs Northern Territory.

PN1822

JUSTICE GIUDICE: Will those bodies be putting in a written submission?

PN1823

MR TAIT: We probably will as a collective.

PN1824

JUSTICE GIUDICE: Yes, thank you.

PN1825

MR TAIT: Firstly we note the ACTU's oral submissions on Monday in these proceedings and especially paragraph 91 and I'll just quickly quote:

PN1826

The proposed hospitality award would apply to the industries of hotels, motor inns, boarding establishments, condominiums, health and recreational farms, private hotels, guest houses, serviced apartments, caravan parks, ski lodges, holiday flats and hostels, wine saloon bars, taverns, resorts, casinos, restaurants, function area and convention and the like facility.

PN1827

There is no mention of clubs in that. And we also note that we've got the Hospitality and Miscellaneous Workers' Union, submissions today that they've also exempted clubs from a priority award. We would primarily be supporting that position, especially in a first round priority awards. I think the Liquor Union was that they'd be involved in the second round, we would support that as well. We also indicate obviously we are a distinct industry. Just very quickly, I don't want to take people's time, we are a non-profit industry. We are community based, community run organisation and established on the basis of the interests of mutuality .

PN1828

Clubs are subject to a separate and distinct regulations and regulatory framework which is largely state based. Clubs offer a variety of activities and entertainment for its patrons and members. Just quickly, we employ 65,000 people, we have 65,000 volunteers within the industry. We are a substantial industry which provides a lot of money into this economy. I won't go any further in that regard, you've heard that before, we just wanted those submissions on the record, if that's all right. Thank you for your time.

PN1829

JUSTICE GIUDICE: Yes, thank you. Yes, I think there's somebody else who couldn't be here on Friday. Was that this gentleman?

PN1830

UNIDENTIFIED SPEAKER: …..

PN1831

JUSTICE GIUDICE: You're in the same position, are you?

PN1832

MS F HANCOCK: I am, your Honours. But I'm happy to go on after, as long as I get on today I'm happy.

PN1833

JUSTICE GIUDICE: Yes, all right. Well, ladies first.

PN1834

MS HANCOCK: Your Honours - - -

PN1835

JUSTICE GIUDICE: I know that's politically incorrect.

PN1836

MS HANCOCK: Today I appear for the Australian Nursing Homes Foundation Limited. I don't have a written submission to hand up. But we made provide one by the due date. To give a background of the Australian Nursing Homes Foundation Limited, it's an employer in the aged care industry that's not a member of any association that provides residential aged care for elderly people of Chinese background. They have two nursing homes in New South Wales, but are looking to expand and they currently have 210 employees.

PN1837

My submissions will focus on one issue only, which is, how the aged care industry appears in attachment A to the Commission's statement and that is that, there is an exclusion for nursing and we oppose there being an exclusion for nursing to the aged care industry modern award. We're also listed on a draft priority list. We don't have a view either way as to whether or not the industry is treated as a priority industry. What our main concern is, is that, there's one award for the aged care industry.

PN1838

The aged care industry is a multi-disciplinary industry with a lot of different professionals coming together to provide care and service to those in the aged care homes. There's the indirect people, the cooks, cleaners and admin officers, and there's the direct care workers which are, physiotherapists, social workers, nurses, and personal care workers. Now, what has caused us some concern is what was put on the transcript on Monday by the ACTU and supported by the Nurses Federation, which was the scope of the proposed nursing occupational award.

PN1839

Now, I'll paraphrase, but in very short summary, that scope was to cover all persons who provide assistance with daily living and I note that I have vastly paraphrased that in the interests of time. But our concern is that that goes well beyond nursing and could, if the Commission was minded to make a nursing occupational award with that scope in it, what is a real possibility is that it would create more problems that it solved and I'll say that for this reason.

PN1840

There's personal car workers who bathe people in nursing homes, turn them in bed where necessary, empty bed pans, things like that. Now, the scope clause that's been put up is the Nursing Occupational Award would easily cover those people. They're currently not covered by a Nursing Award so what we see as being very problematic is that the nurses are excluded from the aged care industry and if the Nursing Occupational Award is made with a scope clause in it, it will actually make it more difficult for my client to administer awards because it would be a real grey area there as to where these direct care workers fall who are not nurses and it's for that reason that we say that the aged care industry should have its own award because this is an award modernisation process which we see is being designed to help employers administer awards in a more simpler fashion and also they have more certainty with respect to how those awards apply and I've picked those terms up from section 576A(2) of the Workplace Relations Act.

PN1841

Currently in terms of whether the Commission is considering industries on the priority list in terms of NAPSAs and AWAs, I can advise that my client has three NAPSAs at the moment which they administer. They have no AWAs and they're currently operating under a collective agreement that applies to all of their 210 employees. If it pleases.

PN1842

JUSTICE GIUDICE: Yes, thank you. Yes.

PN1843

MR E CLARKE: I appear for the Australian Hotels Association representing the branches today and I envisage we'll be putting in one joint submissions although I think the South Australian branch will be attending hearings and the Victorian branch has attended hearings so far. Just primarily we support ACCIs contention that this is a new and fresh way of approaching award content and we pick up the comments made earlier that it's creating new awards. But very quickly because it's been touched on, we support the proposition that the hospitality industry be split into what is effectively three separate awards which is the Hospitality Award which we say is the primary award if the split doesn't occur covering pubs, taverns, casinos and accommodation and a Restaurant and Catering Award and a Clubs Award, and I suppose I only just put those today and I'm just keen to see if there's any questions arising from that.

PN1844

We certainly say the industry is heavily award reliant. There's a lot of NAPSAs. We've been trying to get information on the coverage of AWAs. Certainly it is an industry that does have some AWAs but it's an industry that does have a high turnover as well, so to the extent that those AWAs are still within the industry is probably a little bit difficult to tell. Certainly from our perspective we just think the process of setting up as one award for our members in hotels and accommodation, not having different awards of which people need to refer to. We see that as the Minister's request is written in that way.

PN1845

I just want to provide our support for the ACCI award flexibility arrangements. I'm trying to do it as quickly as I can. I'm picking up some of the comments that have been coming from the Bench during the day and one of them seems to be and it's a suggestion coming up that that presents an AWA in another guise. We would say that it doesn't because they are not statutory agreements, that they common law agreements and it's a very significant difference because if people are covered by these common law arrangements parties have the ability to organise within the workplace which they didn't have under an AWA arrangement. I think it's a very important distinction because if you had a workplace locked down by AWAs it made it very hard for other parties to become involved in the workplace, particularly with the way expiry dates on AWAs work. there have not been a common expiry, that wouldn't happen under this arrangement and it's a very clear - we believe it's a very clear distinction.

PN1846

I've picked up some comments about get out provisions during the day. We need to do some further at the AHA on this. We understand the comments that are coming. I'd probably make two comments on it. If you've got a get out provision, the flexibility arrangement could be a condition of employment because you've got the ability to get out of it anyway and so you don't need both a ruling out as a condition of employment and a get out because it provides an automatic get out and I'm just trying to sort of cut the amount of prescription within the award because we'd certainly say the ACTU model as proposed would have, on our experience, has no use whatsoever in the services sector.

PN1847

It would provide nothing to the services sector. It just would not be used within the services sector, particularly for the smaller businesses but even with the larger employers, so it would actually be doing nothing and it would certainly promote agreement making but not by the right mechanism. It wouldn't be a positive mechanism for promoting agreement making. Our concern I suppose it goes to the get out provision, is if someone has agreed particularly in a small business to a collection of hours say through a part time structure that allows the employer to provide them say instead of eight hours or 12 hours a week, allows them to provide 32 hours a week and they may withdraw from that arrangement and say, well, I can no longer work at these times, that it might be very hard to continue to guarantee or would be almost impossible in a small business to continue to guarantee those hours on an ongoing basis which they're contracted through by part time employment.

PN1848

I mean, you know, I think everyone recognises in our sector the importance of permanency in employment and the importance of part time employment. We're hoping more of that will come about. So if someone has got 32 hours and they withdraw then the question arises and it's something that we would be looking to deal with in our submissions over the next week because we can see it's a question that's arising, that the employer would be stuck with someone that they literally may not be able to employ. We certainly do not think that the drafting of the award flexibility clause should be based on the experience, rightly or wrongly, in the hospitality sector during pre WorkChoices and fairness test.

PN1849

We don't agree with that proposition. Whether what employers did, rightly or wrongly, in that time was in accordance with the provisions at the time. But the drafting of this clause has got nothing to do with that experience and employers would continue to be bound to comply with the law, particularly the global suggestion of a no disadvantage test as it applies. We'd also be highlighting, or we will in our submission which we'll file before 6 September - 6 June, sorry, that there be of very individual nature of the arrangement.

PN1850

We support the timetable the Commission has put forward. We join with others in noting the amount of work that needs to be done in the small amount of time, but the AHA stands ready to provide all the assistance that it can so that we can have a new award up. We see the benefits of our members having a year to be able to start to make the changes that will become necessary with creating a new award so we very much look forward to being involved in the process. Unless there's any questions?

PN1851

JUSTICE GIUDICE: Yes. Would you be able to provide a list of the awards and NAPSAs which you say ought be covered by the hospitality industry?

PN1852

MR CLARKE: The hospitality industry units wise?

PN1853

JUSTICE GIUDICE: Yes. The one you're proposing?

PN1854

MR CLARKE: As in hotel and - sorry, the Hospitality Award?

PN1855

VICE PRESIDENT LAWLER: You're proposing three separate awards to cover the broad generic hospitality, one for pubs, taverns and so on, one for restaurants, one for clubs.

PN1856

MR CLARKE: Correct, correct.

PN1857

JUSTICE GIUDICE: So we're asking whether you could provide a list of the awards which you say are covered in each of those sectors, the awards and NAPSAs?

PN1858

MR CLARKE: Yes, it's certainly easier for me to get the ones that cover what we'd call a currently Hospitality Award just because our branches don't always deal with in the restaurants and the clubs area, I suppose is why I'm just struggling. I can certainly do what I can to provide - we will provide in our submission those awards covered - - -

PN1859

JUSTICE GIUDICE: So far as you're concerned?

PN1860

MR CLARKE: As far as we're concerned.

PN1861

JUSTICE GIUDICE: Yes, very well. Thank you. Yes, Mr Black.

PN1862

MR G BLACK: Does your Honour wish to hear from the retail sector at this late hour?

PN1863

JUSTICE GIUDICE: Yes, I think - - -

PN1864

MR BLACK: ….. Executive Group, your Honour.

PN1865

JUSTICE GIUDICE: Perhaps if you could move near a microphone.

PN1866

MR BLACK: Your Honour and Commissioners - sorry, your Honours and Commissioner, under membership and affiliation arrangements the National Retail Association represents the interests of almost 3000 businesses across Australia.

PN1867

JUSTICE GIUDICE: Just a moment, Mr Black. Yes, I think you've got a very short time, Mr Black. We've got hearings in other states tomorrow and people have to - - -

PN1868

MR BLACK: I will be quick, your Honour.

PN1869

JUSTICE GIUDICE: Yes.

PN1870

MR BLACK: Your Honours and Commissioner, members and affiliates range from sole operator enterprises, speciality chain and franchise stores of all types and sizes. The retail sector employs more Australians than any other industry and accounts for over almost 20 per cent of the Australian workforce. It follows therefore that the retail sector might be interested in the award modernisation process. In terms of the flexibility clause, NRA supports the position of ACCI. In terms of the timetable we acknowledge the sentiments of all relating to the challenges proposed. In terms of the priority listing, NRA does not object to the retail industry subject to exclusions being listed as a priority industry.

PN1871

In terms of exclusions we submit that the fast food industry ought to be excluded, that clerical employees except those engaged within the confines of a retail store should be excluded. We submit that the distribution centres and the wholesale part of the sector should be excluded. We will also submit that the video sector warrants some separate consideration. This sector is currently not appropriately regulated or the current instruments that would benefit from particular consideration either as part of a modern Retail Award or under a separate instrument. Thank you, your Honours and Commissioner.

PN1872

JUSTICE GIUDICE: Thank you, Mr Black. I'm afraid we'll have to adjourn now. We have no other option. Submissions can be made in writing obviously or on Friday at 10.30 am in Sydney. There will also be sittings which have previously been advised in other capital cities over the next two days. I'm sorry to those who weren't reached but there's little we can do about it. We'll now adjourn.

<ADJOURNED UNTIL THURSDAY 29 MAY 2008 [5.07PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #AMWU1 BOUND DOCUMENTATION PN1203
EXHIBIT #AMWU2 EXTRACT FROM METAL, ENGINEERING AND ASSOCIATED INDUSTRIES AWARD 1998 PN1203
EXHIBIT #AWU1 WRITTEN SUBMISSIONS OF THE AWU PN1301
EXHIBIT #PGA1 PHARMACY GUILD OF AUSTRALIA SUBMISSION PN1473
EXHIBIT #MBA1 MASTER BUILDERS AUSTRALIA INC PN1490
EXHIBIT #NSW1 WRITTEN SUBMISSION FOR STATE OF NEW SOUTH WALES PN1554
EXHIBIT #MBA2 SCHEDULE OF PROJECT AWARDS PN1555
EXHIBIT #LHMU1 LHMU SUBMISSION PN1661
EXHIBIT #AMIC1 SUMMARY OF MEAT INDUSTRY AND RELATED AWARDS PN1664
EXHIBIT #AMIC2 BRIEF NOTES PN1669
EXHIBIT #BHPB1 WRITTEN SUBMISSIONS PN1721
EXHIBIT #COAL INDUSTRY1 COAL INDUSTRY EMPLOYER GROUP BY BLAKE DAWSON SUBMISSION DATED 27/05/2008 PN1753
EXHIBIT #COAL INDUSTRY2 LIST OF EMPLOYERS PN1753
EXHIBIT #ACIEA1AGED CARE EMPLOYERS OUTLINE OF SUBMISSIONS PN1762
EXHIBIT #ALAEA1 OUTLINE OF SUBMISSIONS OF AUSTRALIAN LICENSED AIRCRAFT ENGINEERS ASSOCIATION PN1800