AM2008/14, Transcript of Proceedings [2008] AIRCTrans 863 (30 December 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 19456-1

COMMISSIONER LEWIN

AM2008/14

s.576E - Award modernisation

Application by
(AM2008/14)





Melbourne

FRIDAY, 12 DECEMBER 2008

Continued from 27/11/2008

PN2372

THE COMMISSIONER: Good morning and welcome. It's great to see everybody here with such enthusiasm again and thank you for those parties who have obviously done a lot of work since the last consultation and have filed a number of very helpful submissions and information in relation to their industries and the issues. Now, I gather that Mr Decarne was expected to be here. He's not here. And we have not as yet had the opportunity to seek to contact him to see whether he's been delayed or whether or not he's going to be able to come and what I propose to do in the meantime is simply to address some issues that may assist the convenience of some parties who are present in relation to the scope of the consultation and then adjourn once having done so to attempt to contact
Mr Decarne.

PN2373

So what I propose to do first of all is to ask if anybody is here representing anybody in the agriculture industry? Yes, it's Mr McMahon I gather, Mr Jenkins, is that right? Ms Jenkins.

PN2374

MR JEFFRIES: Brian Jeffries.

PN2375

THE COMMISSIONER: I beginning your pardon. And Mr Jeffries, yes. Very well, look I think the position that you put is very clear and that is your preference would be that those areas that are unregulated stay unregulated and that if there was to be any different view formed by the Full Bench that you would wish further time and consultation in order to address any potential award that might arise in relation to the industry. Is that right? Is that an accurate summary of the overall position?

PN2376

MR JEFFRIES: Yes, Commissioner. It's not clear to us what their word Bill means and until that bill is enacted one way or the other we have some advice on it and it would appear to provide for no award employees outside the normal category of $100,000 of their material. So until that Bill is enacted I'm not quite sure what the Commission will - - -

PN2377

THE COMMISSIONER: I think you'll hear from the Full Bench on those subjects. They are matters which are well within their purview.

PN2378

MR JEFFRIES: We would appreciate that.

PN2379

THE COMMISSIONER: But all I can do is clarify what it is that you are seeking and I think your submissions make it clear, and I thought I summarised your position as an industry in general terms, that you would prefer not to be subject to an award made as a result of the award modernisation process and if a contrary decision was taken that there should be an award that you think in the circumstances, particularly having regard to the scope of the unregulated component of the industry, that more time would be needed in order to address the question of any award if there was to be one. Also obviously there are quite significant issues of diversity of activity within the sector.

PN2380

I mean, obviously growing mushrooms in the Hawkesbury River is quite different to harvesting prawns off the north west shelf - sorry, prawns, pearls. I don't know whether crocodiles are in your part of the world. But it's obvious that there is an extremely diverse set of activities over potentially the terms and conditions of employment, if there were to be an award which could somehow or other regulate all of those effectively. There's a highly problematic question given the fact that there's been no history of the development of regulation except in some isolated situations.

PN2381

MR JEFFRIES: That's a reasonable summary. I think within the sector there is groups like ourselves and maybe salmon who would prefer to be attached into the Pastoral Award.

PN2382

THE COMMISSIONER: If there was to be an award covering anybody, and the question of who any award should cover is also a live issue if there was to be an Agriculture Award.

PN2383

MR JEFFRIES: Yes.

PN2384

THE COMMISSIONER: All right. The reason why I raise that at this stage is because you're very welcome to stay, but that's what I will be conveying to the Bench. I will be supplementing it by reference to the submissions that you filed and I'll be asking them to decide whether or not it's appropriate to develop an exposure draft at all and if so whether or not it should be developed as part of stage two or part of stage 3 or later. And they will make that decision, not me. So if you wish to be excused, you are excused. If you would like to stay, you're very welcome to stay.

PN2385

MR F MCMAHON: Commissioner, if I may. I appear for the Tasmanian Salmon Growers Association. Just to say that we are in a little different position to that because we are covered by the NAPSA which we have always seen has been a pretty inappropriate award. It was put together at a time when people didn't understand the technology. And so we would say in short that if we were to find ourselves in an Agricultural Award by way of appendix, the hours of work provision which we're here to discuss today and the way they work, we farm in a pretty similar way to the way they farm and that would be where we would see as best meaning from a flexibility and operational point of view.

PN2386

THE COMMISSIONER: Thank you, Mr McMahon, that's been noted. You've already made that submission in writing and I'm aware of it. It will be conveyed to the Bench during the discussion on the subject of agriculture.

PN2387

MR HOULIHAN: Commissioner, could I raise an issue? On transcript between paragraphs 975 and 991 at the hearing a fortnight ago I made a comment about the flexibility agreements in relation to shearing and the comment I made was that obviously the team has to be, you know, it has to be a team approach. Commissioner, that needs to be qualified to this degree. That that holds true for copy shearing, for, you know, where the farmer employs the shearer, but it doesn't hold true for contract. I should have made that clear at the time and I didn't.

PN2388

THE COMMISSIONER: We'll be coming to that in due course, Mr Houlihan, much more specifically.

PN2389

MR HOULIHAN: All right, well, that's fine.

PN2390

THE COMMISSIONER: Mr Decarne, take a seat somewhere at the bar table if you would please. I think you're going to be participating fairly intensively in due course. I was just actually going through some housekeeping issues and I've just addressed the question of agriculture, in which you have an interest. What I have said is that I understand the submissions of the employers in the industry and particularly that there is a significant part of the industry looked at as a whole is unregulated and that it should be left unregulated effectively insofar as it is, and that if a different decision is arrived at by the Full Bench then time would be required to address the question of any regulation by an award.

PN2391

And Mr McMahon has made the point that because Tassal is actually - I'm sorry - the companies covered by the NAPSA, that they would be primarily concerned with the provision of hours and they support the hours provisions of the PIA for any regulation of their area. And I have indicated to them that unless there's anything further they want to add to that it's all in the written submissions, that they may be excused, because I don't think there is any need to clarify anything for the purposes of reporting to the Full Bench in relation to the agriculture question. So that's where we've got to. What I was planning to do, I wasn't going to leave you out entirely should you have been hard taken by some delay or misadventure, I was going to deal with matters that hopefully at the convenience the parties and then attempt to contact you and see whether or not you had been delayed. So I imagine that there are parties representing people in the wool storage services area. Mr Richardson, I notice you're here.

PN2392

MR P RICHARDSON: Yes, Commissioner.

PN2393

THE COMMISSIONER: Well, I have received the draft award from the Agribusiness Federation. Have you seen it?

PN2394

MR RICHARDSON: Yes. Yes, I have. On that basis I would seek to be excused.

PN2395

THE COMMISSIONER: Yes. Everything is clear about that. That's what you would seek. That's consistent with the letter you wrote to me and which has been posted.

PN2396

MR RICHARDSON: If the Commission pleases.

PN2397

THE COMMISSIONER: Good, thank you, you may be excused. Does anybody wish to make any submissions about the proposal that there should be a Silviculture Award that haven't already been made in writing, presuming that hypothetically - and of course I have to qualify all of this, this is entirely hypothetical because I don't have the decision or authority here - hypothetically there was an application provision in the award that ensured that broadacre farming livestock operations could conduct silvicultural activities as a part of their operations. I understand that was what the NFF was seeking, that a farmer who wished to grow a grove of trees could be covered by the proposed Pastoral Industry Award in relation to that activity if the person was not basically involved, if it wasn't a forestry industry. Is that right, Ms Corkhill?

PN2398

MS J CORKHILL: Commissioner, we have also inserted a similar provision into the horticulture. We've also inserted a similar provision into the Horticulture Industry Award.

PN2399

THE COMMISSIONER: Yes. We'll come to that in due course. But you will see there is an issue that's unique to the idea of silviculture as an industry, and my understanding is that the concern that was expressed on the last occasion was that the award shouldn't be drafted in such a way that somebody who wants to plant a grove of trees on their property for some reason or other, whether it be simply for a wind break or to actually grow timber for profit, shouldn't have to apply the Silviculture Award to that activity, particularly presuming that if persons who were employed by the proprietor who were station hands that they could do that work under the PIA. That's what I understand your position to be.

PN2400

But other than that my understanding is that there's no one else wishes to express an interest in the content of the Silviculture Award. Very well. Is there anybody here representing the TCFUA or employers in the wool processing industry? There isn't? I just wanted to clarify that. Very well. That attends to some matters of concern for me that are obviously not of concern to the parties, but I just wanted to check on that. As for the Wine Industry Award, does anybody wish to say anything more other than that the concept that viticulture could form part of vertically integrated Wine Industry Award as sought by many parties provided that it was viticulture which was conducted exclusively for the production of wine grapes or predominantly for that purpose, and that grapes which might be produced - well, certainly grapes that are produced for other purposes would not be covered by that award, and that some application and definition or provisions would be provided for to partition what was effectively wine viticulture from other viticulture.

PN2401

MR LONGLAND: We're in a position which is contrary to that, Commissioner.

PN2402

THE COMMISSIONER: Yes. You might need to remind me. I've had an avalanche of material yesterday afternoon.

PN2403

MR LONGLAND: Yes, of course. Our position is that any wine grape grower would be subject to the Horticulture Award.

PN2404

THE COMMISSIONER: Right. So that would include, for instance - well, the Yarra Valley, all of the viticulture in the Yarra Valley and the Clare Valley and Coonawarra and Margaret River would all be covered by the Horticulture Award.

PN2405

MR LONGLAND: Yes. There have been some consultations with the Wine Grape Growers Association and I understand that they are going to correspond with the Commission. We received a letter, or I saw on the website a letter from the South Australian Wine Makers, I think it was, that indicated that they wanted, wine industry questions at - rather, stage 3

PN2406

THE COMMISSIONER: Yes, that's been the position all along. What's relevant to that is whether it can be done without addressing some decisional questions now by the Full Bench, and that is clearly going to have to occur because you're saying all these grapes sort of in under horticulture regardless of what they're produced for.

PN2407

MR LONGLAND: Yes. And in our draft that we submitted it includes viticulture in the scope clause.

PN2408

THE COMMISSIONER: Yes, I did notice that, but I wasn't quite sure whether or not that - I did read your submission, but - - -

PN2409

MR LONGLAND: They did want to be heard on this question.

PN2410

THE COMMISSIONER: Who wants to be heard?

PN2411

MR LONGLAND: The Wine Grape Growers Association of Australia. And I did inform them that of the South Australian Wine Makers letter and I did inform them that that issue would be ventilated at stage 3. I must say that perhaps on the basis of that information that they're not here today, but they did say that they were going to correspond.

PN2412

THE COMMISSIONER: All right. Well, that may be a little bit unfortunate. You might need to correct that. If their suggestion is that the decision should be made by the Full Bench now as part of stage 2 that all grapes will be covered by the Horticulture Award proposed, then that decision is alive right now and will be very much alive next week because the Bench will confer on this subject next week.

PN2413

MR LONGLAND: Yes. And the Commission is suggesting that it might be appropriate that - - -

PN2414

THE COMMISSIONER: Well, if you told them that they can wait until stage 3, you might want to give them a call.

PN2415

MR LONGLAND: Yes.

PN2416

THE COMMISSIONER: But that's gratuitous advice of course on my part.

PN2417

MR HOULIHAN: Commissioner, I spoke to Mark McKenzie from the Wine Grape Growers Association I think on Wednesday and he indicated very strongly that he was going to be here today.

PN2418

THE COMMISSIONER: I don't think Mr McKenzie is here, is he?

PN2419

MR HOULIHAN: No, he's not. But I mean, just backing up what my friend said, that they - he was strongly of the opinion that they wanted to be here and be heard today about it.

PN2420

THE COMMISSIONER: Well, I think that's what I was addressing Mr Longland about, is that it may be they've come to be under the impression that a decision has been taken that it will be dealt with in stage 3.

PN2421

MR LONGLAND: My understanding, and I'm happy to be corrected, is that it would be possible for viticulture to be included in the exposure draft of the Horticulture Award submitted and it would then be for the South Australian Wine Growers to make a case in stage 3 that that position ought to be subject to exemption, so that once the - - -

PN2422

THE COMMISSIONER: I understand that's an option, but what the Full Bench might decide I don't know. They may well take the view that because they have so much to do that they would rather dispose of the question of whether or not there ought to be a vertically integrated wine industry including viticulture in order to keep the process moving. And if they were to make that decision the logic, I would have thought, would be that it's a stage 3 scenario. But if they make a decision that all viticulture ought to be included in a Horticulture Award, then it will be a stage 2 matter just to maintain a certain amount of order within the Commission's activities given the scope of them.

PN2423

MR LONGLAND: I'll certainly pass that on.

PN2424

THE COMMISSIONER: Yes.

PN2425

MR HOULIHAN: Commissioner, the position for the Pastoralists and Graziers in Western Australia, and we have a number of people who have vineyards, not necessarily wine makers, but they may have grapes as part of a mixed operation, the position that we have supported and put forward is that the principal activity of the employer would determine the appropriate award. And should I take from what you're saying that you see something different about the growing of grapes from that general principle as it applies on rural properties? Or do you say that that principle should still apply? And I understand you're not making these decisions, but are you sticking with the idea of the principal activity or do you see something separate for the growing of grapes?

PN2426

THE COMMISSIONER: Well, I don't know whether that terminology has actually been adopted, the principal activity of employers.

PN2427

MR HOULIHAN: No. It's been advocated.

PN2428

THE COMMISSIONER: It's been advocated.

PN2429

MR HOULIHAN: Yes.

PN2430

THE COMMISSIONER: Well, you're saying am I sticking with the idea? That was a very diplomatic answer on my part to your question, and that is, that I don't know that the concept has been adopted according to that terminology. I don't want to get all foucauldian about it, but it's a sort of semantic question.

PN2431

MR TAYLOR: Commissioner, the Australian Industry Group supports the initial explanation of the scope of differences that you articulated this morning and raises the issue that there is a wine industry award in existence that would need, if the proposal to change that, to then narrow that to exclude grape growing, and that issue would have to be thrashed out as well.

PN2432

THE COMMISSIONER: Which means stage 3.

PN2433

MR TAYLOR: Yes, Commissioner.

PN2434

MR A DOYLE: I appear for the Australian Federation of Employers and Industries. I just wanted to indicate for the record that that's also our position. We have an interest in the wine NAPSA in New South Wales in particular.

PN2435

THE COMMISSIONER: You're supporting a vertically integrated award in stage 3?

PN2436

MR DOYLE: That was our position in the written submission, Commissioner, and it's still the case, that is still our position at the moment.

PN2437

THE COMMISSIONER: Very well, thank you. Well, I'm taking the positions as they're on the record. I just wanted to see if there was any need to clarify that there's any change, movement, whatever. Sorry?

PN2438

MS D WARIN: The National Farmers' Federation position is slightly different to what you have enunciated this morning in that we see a differential between wine grapes grown by the big wine companies, and that is in effect the historical nature of the Wine Industry Award, that there is viticulture within that because it then covered the whole scope of those wine companies where the wine grape growers can make a decision at some time in the growing process that they may sell a grape for wine or they may utilise it for drying, and therefore we have this .

PN2439

THE COMMISSIONER: Yes, that matter has been put in contest hasn’t it? You have read contrary submission to your position, have you?

PN2440

MS CORKHILL: The South Australian wine industry don’t agree.

PN2441

MS WARIN: The South Australian wine industry don’t agree, that is correct.

PN2442

THE COMMISSIONER: That’s right. The Bench will have to decide what weight they put on what material.

PN2443

MS WARIN: Certainly. We just wanted to stress, Commissioner, that it would be very difficult from a practical point of view to have suddenly a different award applying when you’ve suddenly made a decision to sell your grapes for wine as opposed to drying purposes.

PN2444

THE COMMISSIONER: Yes. The South Australian wine industry say that the circumstances are exaggerated and that depending upon the terminology of the award someone producing grapes under those circumstances, it would be unlikely that they would be covered by the integrated wine industry in any event.

PN2445

MS WARIN: We disagree with that and certainly a particular member of ours, Australian Dried Fruits Association, perhaps should write and define that information.

PN2446

THE COMMISSIONER: Yes, that would be useful. They might deal with the submissions of the South Australian wine industry.

PN2447

MS WARIN: Indeed.

PN2448

THE COMMISSIONER: But I don’t know that that’s actually a problem that can’t be resolved by drafting. If the decision was taken to have a vertically integrated wine industry as a stage 3 exercise then what - I mean, I do have some knowledge of the industry and it seems to me that those circumstances are not prevalent, and that is to say the circumstance where the grower does not know until they pick the grapes whether they’re going to use them for one thing or another. But in any event allowing that, it was a matter that does need to be dealt with. It’s really a description of that particular viticulturalist. If it was a mixed farming operation it would not be a problem. If it was a horticulturalist that was doing it, and it wasn’t for the wine industry, it wouldn’t be a problem I wouldn’t think.

PN2449

MS WARIN: It is predominantly certainly prevalent in those areas particularly with the dried fruits, and certainly it’s a historical basis of the overlap that has occurred historically between horticulture and the wine industry award that - - -

PN2450

THE COMMISSIONER: You are mean in the irrigation areas?

PN2451

MS WARIN: Yes, that’s right, and it was reflective of the decision of Deputy President Duncan as he then was, in a wine industry case where a large number of wineries were roped in, in Victoria, where the Deputy President, determined that some could still be covered under the Horticulture Industry Award, others went into the Wine Industry Award and it was dependant upon their operations generally, and what that historical - - -

PN2452

THE COMMISSIONER: Yes, well I think that’s probably what I’m suggesting, that the descriptor of that situation could be provided.

PN2453

MS WARIN: Certainly the NFF argues that the current scope provision that has been drafted in association with HAC does enable that to occur.

PN2454

THE COMMISSIONER: Are you able to describe the circumstances in the irrigation areas that you’re referring to?

PN2455

MS WARIN: Well certainly the examples we’ve had in the Mildura area where they grow grapes for production and depending upon the circumstances of the markets at the time they make a decision, and I’m not quite sure as to when a decision is made, that they will either pick a price that is good for the drying of fruit and they will then produce that fruit accordingly; or alternatively they will sell part or all of their crops - - -

PN2456

THE COMMISSIONER: But it’s dependant upon the varietal and it’s also depending upon - that certain grapes have to be cultivated in certain ways for wine. It’s not as if it’s just general purpose. They’re trellised in different ways.

PN2457

MS WARIN: My understanding, Commissioner, is that it can occur. As to when and how it occurs, I’m unsure and I think therefore we would need to get some specific information for you from the Dried Fruit Association.

PN2458

THE COMMISSIONER: Yes I know that can occur because there are varieties that are sort of what you would call base level varieties that can go into bulk wine under certain conditions but can’t go into bulk wine under other conditions.

PN2459

MS WARIN: Yes.

PN2460

THE COMMISSIONER: Those varieties in some case are not necessarily suitable for drying either. So it’s usually the case that the variety and the trellising and other aspects of the viticulture are just as determinative of where the grapes are going; whether they’re going to wine or whether they’re going to be dried like sultanas or something of that nature. I mean, sultanas can be used for wine making but ultimately what we’re looking at is a situation where the policy, as I understand it, that is being pursued by those in favour of a vertically integrated award is it’s all of those dominant varieties, which is large scale viticulture that’s cultivated for wine; and they’re not particularly interested in trying to capture a person who has got some sort of mixed irrigation horticultural activity on the river.

PN2461

MS WARIN: Commissioner, that is correct but also it goes to the extent of grape growers that grow grapes only and don’t have wine production facilities. So it’s beyond that just mixed farming. That they are grape-specific growers but
they - - -

PN2462

THE COMMISSIONER: That’s probably more substantial.

PN2463

MS WARIN: They don’t have any wine facilities and the Wine Industry Award is very much a manufacturing style based award, and where these individuals have worked historically under agricultural provisions, their workers consider themselves agricultural in terms of the type of conditions that they work in, and so therefore we say that it would be inappropriate for those growers to suddenly be shunted into a more inflexible award arrangement, simply by virtue of the fact that the wine makers believe it’s easier to have one award.

PN2464

THE COMMISSIONER: Well there’s no reason to assume that it would be an inflexible arrangement.

PN2465

MS WARIN: We certainly believe that having the overlap that we currently believe is being considered in the horticultural award is viable.

PN2466

THE COMMISSIONER: Isn’t the issue - sorry, go ahead.

PN2467

MS WARIN: No, that’s all I wanted to say.

PN2468

THE COMMISSIONER: Isn’t the issue there, though, if there were to be a Wine Industry Award there clearly needs to be provisions that relate, if it was vertically integrated, to things such as bottling? It’s unlikely that the terms and conditions of employment for bottling or labelling or cellar door operations or various other activities, laboratory work, sales and administration, would have uniform conditions as to those for viticulture. You would have to have rates for picking grapes, for instance.

PN2469

MR LONGLAND: With respect, we say that is the whole point of why there shouldn't be a vertically integrated award.

PN2470

MS CORKHILL: Yes. Thank you.

PN2471

MR LONGLAND: You don’t just grab a whole bunch of existing provisions and put a staple put through the middle and call it wine industry. That makes the point of the submission.

PN2472

MR DECARNE: Commissioner, might I just confirm the AWU’s position which is to exclude the wine industry on the basis that wine grapes, and we define that it was in consultation with the LHMU and South Australian Wines, that that was an agreed solution to the Horticultural Award. I’ve heard what my friend from the NFF said here about the Horticultural Award having an overlap. In the state NAPSA, however, in New South Wales it is actually excluded specifically, and we would oppose the submissions made by the NFF in respect of those primarily growing wine grapes.

PN2473

THE COMMISSIONER: All right. So you’re in favour of if there’s someone up the river, for instance, who has got a big block with grapes that have been grown for wine purposes - and there are such operators, that’s what Ms Warin is referring to - they are grape growers and, as I understand it, that if they’re growing grapes for the wine industry you prefer them to be a part of a vertically integrated Wine Industry Award?

PN2474

MR DECARNE: Correct.

PN2475

THE COMMISSIONER: Yes, thank you. Somebody else?

PN2476

MR K RICE: If it please the Commission, I appear for the TFJ Industrial Association from Tasmania, Commissioner.

PN2477

THE COMMISSIONER: Yes, Mr Rice?

PN2478

MR RICE: We represent horticulture, viticulture and agriculture in Tasmania. It’s not a mature industry down home, the wine industry, but for the last 25 years that I’ve been involved with it, it has always, right through the state, obviously not laboratory work, but the growing and harvesting of the grapes has always been covered and still is today by the Horticulture Industry Award. So that would be an enormous change for those growers, many of whom have - - -

PN2479

THE COMMISSIONER: What would the change be?

PN2480

MR RICE: It would be enormous change to move them from hort into another award that perhaps they’re not aware of or not familiar with at the present time. If that was - - -

PN2481

THE COMMISSIONER: I think what the people who are advocating the making of the award for the wine industry on a vertically integrated basis are suggesting is that the matter should be dealt with in stage 3, so that you would have the opportunity to be heard.

PN2482

MR RICE: All right.

PN2483

THE COMMISSIONER: If that view is adopted by the Full Bench, there will have to be consideration of what it’s - and the answer might be, at the end of the day, that it wasn’t vertically integrated. There might be a number of options or outcomes that arose during stage 3. It wouldn’t close the matter off, but it would simply basically lead to a holistic or global consideration of the idea of vertical integration.

PN2484

MR RICE: Thank you, Commissioner.

PN2485

THE COMMISSIONER: Whereas the other side of the argument means it would be closed off and it would be in presumably horticulture I would have thought. Is there anything further about the wine industry? All right, well it might be useful if we started with the subject of nurseries and I would like to hear from Mr Decarne first. You have seen the material that has been filed in relation to the nurseries?

PN2486

MR DECARNE: I have Commissioner, but as you mentioned ..... into the Commission's - - -

PN2487

THE COMMISSIONER: I wouldn’t be that unkind, filed I think..

PN2488

MR DECARNE: Yes. We haven’t had a good chance to review the material in any great detail yet, but we have spoken with the nursery employer bodies and we have decided that we will continue to talk with them over the next couple of days about that.

PN2489

THE COMMISSIONER: Well, you have got a bit of a timeline problem. The Bench is conferring starting next Monday.

PN2490

MR DECARNE: Yes.

PN2491

THE COMMISSIONER: So today is Friday.

PN2492

MR DECARNE: And we received a draft award on Wednesday, Commissioner, so an opportunity - - -

PN2493

THE COMMISSIONER: I know that will - - -

PN2494

MR DECARNE: - - - to have a response within two days.

PN2495

THE COMMISSIONER: Well, you and I share a similar experience in this matter. I received a lot more as well as the Nursery Award. What I’m wondering is whether or not - is the Nursery Association represented?

PN2496

MR B DAVIES: Yes, Commissioner, I represent nursery and garden industry.

PN2497

THE COMMISSIONER: Mr Davies, what I would like is if you and anybody else who wants to express an interest in the concept of a Nursery Industry Award not leave today until Mr Decarne has had a chance to review the award and confer with you about it. I would like to hear you further on it after he has had a look at it.

PN2498

MR DAVIES: Yes, Commissioner.

PN2499

THE COMMISSIONER: I’ll make time available for that.

PN2500

MR DECARNE: Commissioner notwithstanding that, with regards to the scope of the award. There are other parties that might be needing to consult the awards as well.

PN2501

THE COMMISSIONER: Where are they?

PN2502

MR DECARNE: The SDA I noticed has ..... because there is a retail aspect in that award. There’s a lot of considerations within the scope of the Nursery Industry Award.

PN2503

THE COMMISSIONER: The problem is, you know, it has been made fairly clear to me by the President that it will only be when everybody in the award modernisation unit dies that the timetable will cease to be complied with.

PN2504

MR DECARNE: With the creation, as has with the sugar industry, there was a provision in it for stage 3 for - - -

PN2505

THE COMMISSIONER: Nursery?

PN2506

MR DECARNE: Yes.

PN2507

THE COMMISSIONER: I wouldn’t count on nursery being deferred if I were you. I think you need to address it today. I need to be across your response to the material that has been filed, by Monday morning. I need to prepare myself for the conference with the Bench, so I’ll just put it aside for the time being and we’ll have a break and you can have a look through the document, confer with Mr Davies and we’ll refresh nurseries later.

PN2508

MR DAVIES: Commissioner, if I could add that as reflected in our written submissions it is the position of the nursery industry that we believe it could be considered in stage 2. As we understand it there is sufficient - - -

PN2509

THE COMMISSIONER: Yes, well I think you have got the President on your side there. So that’s why I think we’ll have a break in due course, once we have worked through what the agenda is going to look like today in terms of the allocation of time. We will revisit the Nursery Award. I did have a bit of a chance to have a look at it and I’m not sure that it’s going to be an insurmountable problem for you to address the material today I mean, you’re obviously familiar with the issue and to my mind they remain the issues. Does anybody else want to say anything about nurseries, since we’re coming on to horticulture in any event?

PN2510

MR DOYLE: If I may just briefly, Commissioner. It was our position when we made our written submission that nurseries were, in all the submissions that were made at the time, not proposed to be included in any of the awards, at least in terms of the submissions that we’re aware of. So that our position was that nurseries was not for inclusion in this stage.

PN2511

THE COMMISSIONER: Submissions have been filed by the Nursery Industry Association, is that the correct title?

PN2512

MR DOYLE: Yes.

PN2513

THE COMMISSIONER: The Nursery Industry Association?

PN2514

MR DAVIES: The Nursery and Gardening Industry Association.

PN2515

THE COMMISSIONER: Sorry, the Nursery and Garden Industry Association. They have been filing submissions saying it’s a good idea to have a Nursery Award. It’s all on the website.

PN2516

MR DOYLE: That was our position too. It’s a separate award,
Commissioner - - -

PN2517

THE COMMISSIONER: Yes, well I don’t think you’re at odds with anybody here so far.

PN2518

MR DOYLE: Although we haven’t had an opportunity to review a separate draft award.

PN2519

THE COMMISSIONER: Well, you should be included in this process then today.

PN2520

MR DOYLE: Thank you, Commissioner.

PN2521

THE COMMISSIONER: All right. I’m sorry, I thought you were putting a different view.

PN2522

MR DECARNE: Commissioner, might I just say that the problem that we’re finding with the timetabling is this is a rescheduled hearing. So initially there was no draft award on the table, although it's now come up in discussions which we've had in the last few days. There has been one day in between the receipt of documents and the hearing today. To consider that all the parties have to have it all ready today, sir, would create something inappropriate, and I just make that submission.

PN2523

THE COMMISSIONER: Well, I hear what you say, but remember what we are moving towards is an exposure draft, and everybody will have a chance to respond to the exposure drafts in accordance with the Commission’s timetables in stage 2. Am I putting you at some disadvantage by suggesting that it’s appropriate to confer with the other representatives from the industry who are advocating a distinct award?

PN2524

MR DECARNE: To confirm ..... that will be closed on today's proceedings on our submission is made on the Nursery Award, yes, I would say .....

PN2525

THE COMMISSIONER: All right, well let’s address that when we come back after you have conferred. I’m hoping that the conference might change your view.

PN2526

MR LONGLAND: Just on this, Commissioner, I should just say for the record that my clients have no objection to the proposed course and they support a separate award for the nursery industry, and in our submissions we have indicated that if that wasn’t to be adopted we've set out a form of words which might be inserted into ..... Monday.

PN2527

THE COMMISSIONER: All right, that’s to partition nurseries from horticulture?

PN2528

MR DECARNE: Yes.

PN2529

THE COMMISSIONER: All right.

PN2530

MR DAVIES: Commissioner, on that point, given that all the parties are in, in principle agreement on the principle of a separate Nursery Award, that the nursery industry is happy to enter into consultations at whatever is an appropriate time.

PN2531

THE COMMISSIONER: Yes, all right. I think the issue is that Mr Decarne and Mr Doyle may have interests in other matters and they can’t withdraw to confer with you immediately. So I just need to work my way through what the agenda is going to look like in relation to some of the more difficult issues that have emerged from the submissions, which largely go to hours of working, numbers of hours, days of the week, and rates of pay. In some respects I would like to just try and see how they’re going to form up and organise the day around those matters, before determining when the conference that I’ve suggested should take place. So can we deal with the Horticulture Industry Award now?

PN2532

Mr Longland, you have filed extensive submissions and I think it might be useful to ask Mr Decarne whether you have had a chance to consider them?

PN2533

MR DECARNE: I have, Commissioner.

PN2534

THE COMMISSIONER: All right. It might be useful to see where we are and rather than go head on at what I think is probably the most difficult issue, the hours and the spread of hours, the number of hours, the days of work, that sort of thing.

PN2535

MR LONGLAND: Yes.

PN2536

THE COMMISSIONER: First up, I wouldn’t mind addressing the question of piece work rates. You seem to be ad idem on that; am I correct? You see to be ad idem on the piece work provision?

PN2537

MR LONGLAND: No. Well, I think with respect to issues such as whether it’s a genuine piece rate, that’s not - we don’t have the extra - we agree on that. I think the position where the employer is told the piece rate position and the employee - no one wishes to work on piece rates, that may mean to most of their employment. I think we’re at one on that.

PN2538

THE COMMISSIONER: And you have withdrawn from the idea of making this distinction of different piece workers.

PN2539

MR LONGLAND: Correct.

PN2540

THE COMMISSIONER: There’s only one piece worker in the horticultural world now.

PN2541

MR LONGLAND: Yes.

PN2542

THE COMMISSIONER: According to your position.

PN2543

MR LONGLAND: Yes.

PN2544

THE COMMISSIONER: There’s only piece worker and the premium is 12 and a half per cent?

PN2545

MR LONGLAND: Yes.

PN2546

THE COMMISSIONER: Where do you stand on this, Mr Decarne?

PN2547

MR DECARNE: Well, Commissioner, our position on piece work was the same as our position that we had for our HIA - - -

PN2548

THE COMMISSIONER: Yes, I understand that.

PN2549

MR DECARNE: If we’re to review the hours clauses and other matters within the NAPSAs and take into consideration those, we would like to reconsider the piece work.

PN2550

THE COMMISSIONER: All right.

PN2551

MR DECARNE: Dependant on what weight is given to these NAPSAs today and our hours of work provision is and the relevant time rate provisions which would make up ..... and we would definitely be changing our submission, that it should be 12.5 per cent. But I’ve detailed that in our written submissions.

PN2552

THE COMMISSIONER: Yes.

PN2553

MR DECARNE: So yes, that position is clear there.

PN2554

THE COMMISSIONER: Mr Longland, just refresh me. The 12 and a half per cent; is that for the ordinary time hours only?

PN2555

MR LONGLAND: That’s the only time.

PN2556

THE COMMISSIONER: The only time.

PN2557

MR LONGLAND: It's on the time they get paid.

PN2558

THE COMMISSIONER: Yes, but you understand - you've reflected this issue, I wonder, 12 and a half per cent for the ordinary hours of work?

PN2559

MR LONGLAND: Yes.

PN2560

THE COMMISSIONER: Right, so what about if the piece worker is working outside a spread of hours?

PN2561

MR LONGLAND: Well the spread of hours wouldn’t apply because the existing - - -

PN2562

THE COMMISSIONER: Right. So it’s for all time worked?

PN2563

MR LONGLAND: Yes.

PN2564

THE COMMISSIONER: What do you say about that, Mr Decarne?

PN2565

MR DECARNE: Commissioner, there are some awards in the Commission’s listing of pay provisions that are relevant which don’t hold with that approach. So in the New South Wales NAPSAs you would get overtime piece work increased rates for instance, and you would also get Saturday time increased piece work rates. So there is also the consideration of casual loading, Commissioner.

PN2566

THE COMMISSIONER: Well, I was going to come to that, but let’s just stick with the question of whether or not this is the rate for all hours worked by a piece worker or whether the 12 and a half is the premium on the ordinary hours. So if a piece worker is working on a Sunday, as I understand it, Mr Longland, you say it’s the ordinary time hourly rate plus 12.5 per cent?

PN2567

MR LONGLAND: Well, that’s the basis upon which the calculation is made. The actual payment depends on the amount of work.

PN2568

THE COMMISSIONER: Yes, but that’s the rate.

PN2569

MR LONGLAND: Yes.

PN2570

THE COMMISSIONER: That’s the rate for the work that’s performed on the Sunday.

PN2571

MR LONGLAND: Yes.

PN2572

THE COMMISSIONER: What do you say to that, Mr Decarne?

PN2573

MR DECARNE: Commissioner, we would say that it should be on the relevant time rate so - - -

PN2574

THE COMMISSIONER: So the premium should be on whatever hourly rate applies?

PN2575

MR DECARNE: That’s correct.

PN2576

THE COMMISSIONER: All right. Let’s go to the casual employee scenario, Mr Longland.

PN2577

MR LONGLAND: The same thing.

PN2578

THE COMMISSIONER: The same thing.

PN2579

MR LONGLAND: We'd say that the way in which the existing - - -

PN2580

THE COMMISSIONER: A casual employee does not get the casual loading.

PN2581

MR LONGLAND: Correct.

PN2582

THE COMMISSIONER: So the 12 and a half per cent has got to compensate for the fact that they are piece workers and all of the other issues such as no annual leave, no notice of termination of employment?

PN2583

MR LONGLAND: Yes.

PN2584

THE COMMISSIONER: No this, no that, no the other.

PN2585

MR LONGLAND: We decide whether that’s fair or reasonable. That seems to be the way that this Commission has treated the matter, and I accept Mr Decarne’s position that - - -

PN2586

THE COMMISSIONER: Well, not all instruments do.

PN2587

MR LONGLAND: Not all instruments - - -

PN2588

THE COMMISSIONER: If you look closely at them.

PN2589

MR LONGLAND: Yes, but we would say the preponderance of them.

PN2590

THE COMMISSIONER: You’re probably right about that.

PN2591

MR DECARNE: Commissioner, might I hand up a document which was actually prepared by my friend here and sent to the union, and it calculates how piece work is actually worked out in Tasmania.

PN2592

THE COMMISSIONER: Is that the only copy you have got of that?

PN2593

MR DECARNE: I think that my friend from the NFF has extra copies.

PN2594

MS CORKHILL: I provided this to my friend. I did bring copies.

PN2595

THE COMMISSIONER: You’ve got copies, have you?

PN2596

MS CORKHILL: Yes, I do.

PN2597

THE COMMISSIONER: Would you be kind enough? Is there enough for Mr Longland to have one?

PN2598

MR DECARNE: Sorry, Commissioner - - - .

PN2599

THE COMMISSIONER: Yes, well the obvious question if we’re talking about casual loading is addressed immediately and to be honest with you I don’t know where I got the idea from but in my mind, from life about 22 years ago, I thought that the casual loading went onto the hourly rate and the piece work premium went on the top.

PN2600

MR LONGLAND: My instructions are that’s not the case and I understand this is reflecting a practice.

PN2601

THE COMMISSIONER: Yes.

PN2602

MR LONGLAND: But I think that the first position I’ve got is that if we look to what the instruments say, this is not the forum to decide what should happen, whether this appropriate. It might be appropriate - - -

PN2603

THE COMMISSIONER: No, I hear what you’re saying. You don’t need to attempt to persuade me one way or the other. It won’t be my decision, as I say. I just need to report your perspective, what I will say about it is that your view is that on a proper reading of the instruments this is not required.

PN2604

MR LONGLAND: Correct, Commissioner.

PN2605

THE COMMISSIONER: All right, well before we go into the question of hours, spread of hours - - -

PN2606

MS CORKHILL: Excuse me, Commissioner. Just one more thing about piece work. Last time we had extensive discussion about what is now the AWU’s clause 13.2 which is the one - - -

PN2607

THE COMMISSIONER: Their draft Horticultural Award clause?

PN2608

MS CORKHILL: Yes, which allows unilateral termination. That’s not in our draft - the joint NFF HAC draft and we still oppose that inclusion in the award.

PN2609

THE COMMISSIONER: All right. Do you want to address that please?

PN2610

MS CORKHILL: Well that’s the clause that basically says that the piece worker can unilaterally terminate a piece work agreement if they fall below the amount that they thought they would get for three consecutive shifts. Now that’s taken from the Queensland Fruit and Vegetable Award. It’s actually not totally word perfect because it allows either the employer or the employee to terminate that in the Queensland award. We say that’s just not necessary in this award, particularly if the piece workers are casual. We wouldn’t want to see a situation where a piece worker is taken on at 6 o’clock in the morning to pick on piece rates and then sits under a tree for part of the day and then decides they want to become a permanent employee. So our problem is that that doesn’t make that clear.

PN2611

THE COMMISSIONER: They don’t have any right to convert, do they?

PN2612

MS CORKHILL: Well it’s not clear in that, in my submission Commissioner, and it would certainly confuse farmers.

PN2613

THE COMMISSIONER: Yes, I understand.

PN2614

MS CORKHILL: We say it’s not in the HIA now and doesn’t need to be, given it’s only in one other NAPSA.

PN2615

THE COMMISSIONER: I understand. I’ll just hear Mr Decarne. If you’re a casual - let’s assume your preferred position were to apply, and people are taking piece workers on; many of them would be casuals, wouldn’t they?

PN2616

MR DECARNE: Well, they’re defined as casuals.

PN2617

THE COMMISSIONER: Many of them would be casual. Well, I’m just talking in practical terms. Many, if not most, if not all would be casual employees, and if they are casual employees by definition at the end the day the engagement finishes. It only starts if both parties pick it up in the morning or they agree that it will happen again in the morning, isn’t that right?

PN2618

MR DECARNE: Yes, and we see no increased possible burden on employers in the additional clause, it contains clarity around the piece work - - -

PN2619

THE COMMISSIONER: All right. Well, if you’re a casual employee and you say no - I’m addressing a three day issue here. I’ve been working as a casual employee for three days now and I’m not achieving 12 and a half or whatever it is, I’m not going to come tomorrow unless we renegotiate the piece work rate. That’s the logic of the situation, isn’t it?

PN2620

MR DECARNE: Yes.

PN2621

THE COMMISSIONER: Not, “I’m going to come tomorrow and I’m going to pick the cherries one at a time and you’ll pay me for the day”.

PN2622

MR DECARNE: Commissioner, I might note that although they reviewed their position into a permanent employee who has been defined, as I said, piece workers within their award, they haven’t included the definition of a casual worker being a piece worker, which is in the HIA. So without that definition then our clause - - -

PN2623

THE COMMISSIONER: All right, yes, but that takes us down the path. If the piece worker is a casual worker, if the appropriate principle is that the piece work should be casual engagement - and I can’t speak for the Bench but I think if I was wanting a crop picked on a piece work basis that would appeal to me - then that solves everybody’s problem. There’s none of this three-day business, is there?

PN2624

MR DECARNE: Yes, it does, Commissioner, but as I mentioned just to add clarity to the document, which is obviously - it’s not that clear in Mr Longland’s submissions have been such that they were today, that it’s obviously - - -

PN2625

THE COMMISSIONER: Yes, I’m not asking you to explain why you did it. I’m really just trying to get to what might be a potential solution. What I hear you say is that the potential solution is the piece workers are casual workers, paid at piece work rates. You say they get the loading, which means that they’re compensated for the fact that they’re not a weekly paid employee. They don’t have sick leave, they don’t have annual leave, they don’t get notice of termination, they don’t get lots of things that they otherwise would have got. They don’t get any redundancy payments or anything of that nature; that’s the 25 per cent that you say is appropriate presumably, or a lesser amount depending upon the survey of the award. If the Bench thinks that the circumstances justify a lesser casual loading. As I say, I can’t speak for them. I just notice that they’ve put 25 per cent in the exposure draft so far uniformly, I think. If they’re all casual employees then that also serves the interests of the farmer because it’s completely unambiguous, isn’t it, and you just pay for the piece. Period. End of story.

PN2626

MS CORKHILL: Yes.

PN2627

THE COMMISSIONER: If you don’t want that person back the next day you don’t engage them the next day.

PN2628

MS CORKHILL: That’s right.

PN2629

THE COMMISSIONER: If they don’t want to come back the next day they don’t come back the next day. Of if you want to renegotiate the piece work rate because the picking is hard, you can do it the night before and come back tomorrow and try again.

PN2630

MR DECARNE: I see my friends on the other side of the Bench are all nodding so it would be appropriate perhaps if they included the casual - - -

PN2631

THE COMMISSIONER: Well as I said before we are moving towards an exposure draft.

PN2632

MR DECARNE: Yes.

PN2633

THE COMMISSIONER: We can get the position on the record that everybody seems to think that that’s a potential solution.

PN2634

MR TAYLOR: Commissioner, I certainly wasn’t nodding to that proposal. I don’t think we can make the assumption that farmers are only looking for casual pickers to be paid on a piece rate arrangement. It may be that because of the type of picking that is being conducted, the season, for whatever reason, they may want to convert their permanent staff to a piece rate arrangement to meet the needs and the costs structure being imposed on their business.

PN2635

THE COMMISSIONER: All right, fair enough. Well let’s assume that that was the case. Then what do you say about what the piece rate should be?

PN2636

MR TAYLOR: It should be maintained as the 12 and a half per cent picked up from the - - -

PN2637

THE COMMISSIONER: For all hours of work?

PN2638

MR TAYLOR: That’s right ,Commissioner.

PN2639

THE COMMISSIONER: So if you work for 12 hours on a Sunday picking grapes as a permanent employee you will get the ordinary time rate plus 12 and a half per cent?

PN2640

MR TAYLOR: Yes, that is the way the HIA is drafted, Commissioner.

PN2641

THE COMMISSIONER: Notwithstanding the fact that if you were a permanent employee and you were not a piece worker you would get double time.

PN2642

MR TAYLOR: That’s right, Commissioner.

PN2643

THE COMMISSIONER: That’s your position?

PN2644

MR TAYLOR: Yes.

PN2645

THE COMMISSIONER: You would only do this by agreement, presumably?

PN2646

MR TAYLOR: That’s right, Commissioner.

PN2647

THE COMMISSIONER: Unless you were particularly relaxed about your economic circumstances.

PN2648

MR TAYLOR: Yes.

PN2649

THE COMMISSIONER: So that you would see that the piece work rate was likely to yield you more than double time. I mean, it might be more than 12 and a half per cent. Would you propose that the employer could require an employee to work at piece work rates then?

PN2650

MR TAYLOR: I had not considered the issue, Commissioner.

PN2651

THE COMMISSIONER: Some instruments do provide that the employer can require the employee to work at piece work rates. That’s my recollection. I don’t think it’s the dominant position.

PN2652

MR TAYLOR: Yes.

PN2653

THE COMMISSIONER: But there are some instruments that do provide for that.

PN2654

MR TAYLOR: Well that would certainly be in the interest of employers to be able to do that.

PN2655

THE COMMISSIONER: It certainly would. To be able to by law require someone to work on Sunday at piece work rates for 12 and a half per cent might be perceived to be in the interest of employers, whether or not in practical terms it would work out that way might be debatable.

PN2656

MR LONGLAND: My instructions don’t extend quite that far. The concern that my clients have got though is that there is an ability for employers to say this is a piece work position, so that - - -

PN2657

THE COMMISSIONER: What, the engagement is on a piece work basis?

PN2658

MR LONGLAND: And any overtime. So that if the employee chooses to walk away from the piece work arrangement then - - -

PN2659

THE COMMISSIONER: They terminate their employment at the same time.

PN2660

MR LONGLAND: Yes. So it’s a related question - - -

PN2661

THE COMMISSIONER: So you want the ability to have non casual piece work?

PN2662

MS CORKHILL: No.

PN2663

MR LONGLAND: We walked away from that position, Commissioner,
after - - -

PN2664

THE COMMISSIONER: That’s right. But you see what I mean? At engagement, if you are where I think you are since the modification of your position, you are happy with a casual piece worker as a single piece work model.

PN2665

MR LONGLAND: Yes.

PN2666

THE COMMISSIONER: In that case you don’t have any problems engaging people as piece workers.

PN2667

MR LONGLAND: Yes.

PN2668

THE COMMISSIONER: You just engage them as casuals.

PN2669

MR LONGLAND: Yes.

PN2670

THE COMMISSIONER: And if they walk away, they walk away from the employment because they're casuals.

PN2671

MR LONGLAND: There is perhaps is another position. If you've got an existing casual employee that's on a time rate and for whatever reason you've got an employee comes to an arrangement that in the future that that casual will be paid a piece work rate, I guess we don't want a situation where - - -

PN2672

THE COMMISSIONER: No. If you think it through there isn't a problem there. They're still casuals.

PN2673

MR LONGLAND: Yes, thank you, Commissioner.

PN2674

MR TAYLOR: Commissioner, I think, the HACs position is premised on the basis that the casual loading would not apply, though.

PN2675

MR LONGLAND: Of course.

PN2676

THE COMMISSIONER: That’s right, I understand that, they’re still casuals.

PN2677

MR TAYLOR: Yes. However if the casual loading was applied - - -

PN2678

THE COMMISSIONER: They’re casual employees who don’t receive a loading.

PN2679

MR TAYLOR: That’s right. Well, perhaps we should explore - - -

PN2680

THE COMMISSIONER: They don’t receive any loading at all, they just get the piece work rate.

PN2681

MR TAYLOR: Yes.

PN2682

THE COMMISSIONER: For being piece workers. The fact that they’re casual employees, in their case they’re probably an unusual group of casual employees who don’t get casual loading.

PN2683

MR TAYLOR: Yes. Well, Commissioner, I just want to put on the record that if the Commission does not adopt that approach, then I think the HAC’s position therefore would be it would look to piece workers being full time, part time and casual.

PN2684

MR LONGLAND: Yes. And we’ve walked away from that position based on our discussions with the NFF and an understanding that whatever the merit or otherwise of the position, the preponderance of the existing instruments allow it to occur. So we thought - - -

PN2685

THE COMMISSIONER: Just out of interest, if you’ve got people who are weekly paid employees, the employer is going to have to keep a record of all their employment and make payments to them. They’ll be able to take sick leave during the middle of the harvest and be paid for it, won’t they?

PN2686

MR LONGLAND: These are ordinary weekly employees.

PN2687

THE COMMISSIONER: Yes, working at piece work rates.

PN2688

MR LONGLAND: No, because they’re only paid based on what they pick. So if they’re on sick leave they’re not picking anything.

PN2689

THE COMMISSIONER: Well this seems to be becoming an interesting species of employee.

PN2690

MR LONGLAND: Well they exist and they’re out there right now, I’m instructed.

PN2691

THE COMMISSIONER: They have no entitlements to any of the NES standards, even though they’re weekly. They’re allegedly weekly employees - - -

PN2692

MR LONGLAND: Well they’re not - - -

PN2693

THE COMMISSIONER: - - - on piece work or are they casual employees; which are they?

PN2694

MR LONGLAND: They’re casual.

PN2695

THE COMMISSIONER: They’re casuals. They’re casuals without a casual loading.

PN2696

MS CORKHILL: No.

PN2697

MR LONGLAND: Well they earn a whole lot more than the casuals because the - - -

PN2698

THE COMMISSIONER: Right, so - - -

PN2699

MR LONGLAND: They have no upper limit.

PN2700

THE COMMISSIONER: Well if that’s the case - - -

PN2701

MR LONGLAND: And that’s what the piece work - - -

PN2702

THE COMMISSIONER: Doesn’t that leave you somewhere else though? Using the factual presumption that’s involved, doesn’t that mean that you would fix 25 per cent as the premium?

PN2703

MR LONGLAND: No.

PN2704

THE COMMISSIONER: Why not? Otherwise they’re casual employees
with - well you would fix a casual premium, whatever the casual loading might be and they’re picking for piece work at piece work rates, and they are earning more than the casual loading.

PN2705

MR LONGLAND: I can see the logic of where you’re coming from Commissioner, but my point is that right now the preponderance of this industry would say it’s - what an average employee would pick in the ordinary hours plus 12 and a half per cent and off you go, and make hay while the sun shines.

PN2706

THE COMMISSIONER: Isn’t there implicit in this - and this is really just a matter of discussion in some respects. I think both of us are probably trying to deal with it on the run.

PN2707

MR LONGLAND: Yes.

PN2708

THE COMMISSIONER: It implies that the 12 and a half per cent is compensation for the NES, doesn’t it?

PN2709

MR LONGLAND: No, my understanding - my instruction is that the 12 and a half per cent is really compensation for the chance that you’re taking - - -

PN2710

THE COMMISSIONER: Yes, but I’m talking about the regulatory environment now. I don’t think the people who set the 12 and a half per cent had ever heard of the NES.

PN2711

MR LONGLAND: Well the NES doesn’t apply to casuals, or at least most of it doesn’t. So they’re not a new species in that sense.

PN2712

THE COMMISSIONER: Yes. The presumption, I think, in the NES has to be that casuals are already being compensated through their loading, aren’t they? Isn’t that the logic?

PN2713

MR LONGLAND: I would have thought so.

PN2714

THE COMMISSIONER: You’re helping me. I’m going to have to answer these questions next week.

PN2715

MR LONGLAND: Yes. Commissioner, the clause that we would be putting and which was referred to and put through our award was taken from the Queensland award. Because there has been some confusion about whether or not a casual employee is a piece worker and vice versa, we included that clause depending on what the Full Bench decides. Now under that award it does appear that a piece worker can be a permanent employee so that’s why the rate is 20 per cent above the time rate, and that’s an hourly rate there, and it’s specified. So the 12.5 per cent does anticipate the 25 per cent loading to be taken into account because - - -

PN2716

THE COMMISSIONER: What do you mean by that?

PN2717

MR LONGLAND: Well if the HIA specifies that a piece worker employee will be a casual employee we have included that in the table.

PN2718

THE COMMISSIONER: Yes.

PN2719

MR LONGLAND: As they’re a casual employee it’s a lower rate for the piece work arrangement than in any other of the state awards.

PN2720

THE COMMISSIONER: That’s the 12 and a half?

PN2721

MR LONGLAND: That’s right.

PN2722

THE COMMISSIONER: Yes, because in the horticultural NAPSAs it goes as high as 20, doesn’t it?

PN2723

MR LONGLAND: Well there’s one that's referred to, Commissioner. I mean, we need to be careful. We’re talking about it as a loading. It’s not really a loading. It’s a calculated number. Because once you apply the 12 and a half per cent you put it aside and you say the rate is $5 a box of tomatoes. And the employee is never paid something plus 12 and a half per cent. They’re always paid at this rate of - - -

PN2724

THE COMMISSIONER: No, I understand that, yes.

PN2725

MR DECARNE: In the Dried Vine and Fruits Industry Award it says that you’ll be paid at least the time rate proportion if necessary. It also says that in the other Western Australian awards, so they’re very different. Each of these clauses is very different and the specification of the casual employee is unique to the HIA, so we saw that protection as covering off a situation whereby an employee could be preferably employed within the agreement, and that’s the reason we’ve included that. That’s also contained in our written submission.

PN2726

MR LONGLAND: It’s not a simple issue.

PN2727

THE COMMISSIONER: Can I come back to the question of the person who is not a casual piece worker.

PN2728

MR LONGLAND: Yes.

PN2729

THE COMMISSIONER: This is a person working hours, a weekly paid employee entitled to the benefits of the NES and the award, and they can be paid at piece work rates let us assume rather than the - Mr Decarne, in their situation it's 12 and a half per cent, isn't it, under the HIA?

PN2730

MR DECARNE: Under the HIA it specifies that - - -

PN2731

THE COMMISSIONER: No, but if this was permissible under the HIA, are we talking about - - -

PN2732

MR DECARNE: Well, the reason that it isn't permissible is because of the 12 and a half per cent, and that's my submission.

PN2733

THE COMMISSIONER: No, it's because of the 25 per cent. And that's why it's 12 and a half, not five. That's why it's 12 and a half and not five, because they are casuals.

PN2734

MR DECARNE: I should say that I looked in the history of HIA and I can't find any transcript or decision of this Commission or any Commission that explains the loading in that way and that might be unfortunate of the search skills, but this is getting -. all these things sound logical, but I can't say that that was the actual rationale.

PN2735

THE COMMISSIONER: Ms Warin?

PN2736

MS WARIN: Commissioner, the NFF was party to the increase of the loading of the HIA from 17 and a half per cent to 25 per cent and that was done by consent in 2004, I think, or something of that nature. And piece work was discussed. Certainly from a historical point of view with the HIA piece workers have been deemed casuals by virtue of clause 4.2 and 4.6 under the definition structure and as such that's been read in conjunction with the formula that determines their peace rate with the 12 and a half per cent, just for that clarification. And that has been an acknowledged historical determination of how that is read. But we do acknowledge that there is confusion as Mr Longland has pointed out in terms that it isn't clear from HIA and it's further complicated by the fact that despite those definitions within clause 4 that schedule A employees who are piece workers can be entitled to annual leave, which seems inconsistent with their casual nature.

PN2737

So we certainly acknowledge that there has been some perplexing confusion relating to HIA and piece workers. I just wanted to clarify that.

PN2738

THE COMMISSIONER: I understand that. But I think, Mr Longland, your position relies on a proposition that you can have a species of employee who is a casual without a casual wage who is a piece worker?

PN2739

MR LONGLAND: Yes.

PN2740

THE COMMISSIONER: And simply had the chance to achieve 12 and a half per cent above ordinary time.

PN2741

MR LONGLAND: Well, they have the chance to achieve 112 per cent - - -

PN2742

THE COMMISSIONER: Yes, but they have the chance the achieve in appropriate and normal circumstances at least 12 and a half.

PN2743

MR LONGLAND: Yes.

PN2744

THE COMMISSIONER: Because this is the minimum wage standard obviously.

PN2745

MR LONGLAND: I mean, at the highest level my clients are concerned to have the nexus to my memory. That's number one. Number two, to have the right to have a piece work position and the loading that is - - -

PN2746

THE COMMISSIONER: No minimum?

PN2747

MR LONGLAND: So that - - -

PN2748

THE COMMISSIONER: I know what you mean, yes. It's code, but I know what you mean.

PN2749

MR LONGLAND: Yes, I'm sorry.

PN2750

THE COMMISSIONER: Yes. If you don't make it, it doesn't mean you just get paid the day rate or something.

PN2751

MR LONGLAND: Correct.

PN2752

THE COMMISSIONER: What do you say about that, Mr Decarne?

PN2753

MR DECARNE: Well, we have included a clause in our award as it was in HIA and we've included the definition, which I understand that there's more work to be done perhaps by the Full Bench in clarifying that issue. There are some awards, however, and we're going to hear about these awards from my friend in relation to hours of work, then there are some awards that would prescribe otherwise. So that was what we would submit. So there are some that you would get no less than the time rate of pay. So if we're going to hear about those in the hours of work then they should be considered in terms of piece rate as well. And that would be our submission across the board.

PN2754

If we're going to be looking at hours of work clauses within these state awards and NAPSAs then we're going to have to consider every clause within those state awards and NAPSAs. These have been balanced across time by other Commissions, and we saw that as the reason for the present statement on the 29th, I think it was, that it was such a big task to be there in every clause and every NAPSA and award and balance those again.

PN2755

THE COMMISSIONER: Unfortunately the Full Bench will have to do that.

PN2756

MR TAYLOR: Commissioner, in the evolving analysis of this piece work arrangement we don't want to see the full time and part time piece work option disappear as it is being used in some other states.

PN2757

MR DECARNE: We would say again if that option was to remain, if that option is to remain then the rate above the hourly rate will have to be increased and there will have to be a differential between piece work to be paid to casuals with the loading and those that are paid permanent rates.

PN2758

THE COMMISSIONER: All right, I think we've probably exhausted that discussion. So in the context of the Horticulture Award, Mr Decarne, do you want to say anything else other than hourly rates of pay as a generic concept? What I mean by that is, you know, when you get paid the ordinary time rate and you get paid the overtime rate and when you get paid at ordinary time rate with penalty. That's what I mean by the hourly rate of pay.

PN2759

MR DECARNE: Well, rather than - - -

PN2760

THE COMMISSIONER: Those issues that are gathered up by that concept.

PN2761

MR DECARNE: We have made quite extensive written submissions on those.

PN2762

THE COMMISSIONER: Yes, I think I've got them.

PN2763

MR DECARNE: And if, during the course of proceedings they arise then perhaps we'll address that.

PN2764

THE COMMISSIONER: Well, is there anything of any - without, you know, minimising anything you say in your submissions, anything of particular concern other than matters that fall within the scope of that discussion about the hourly rate of pay?

PN2765

MR DECARNE: Well, again with the timeframes I have considered the NFF and HACs recent draft, the joint draft, and I notice that it's very different to the NFFs earlier draft that was based on much of the HIA. So the final submission we would make is that the NFFs position has changed quite substantially now from that of the HIA application to HACs position it seems. So that's the submission we would make in relation to HIA generally. But we did come with the intention to talk mainly about maximum daily hours, span of hours and those issues here today, Commissioner. And other than that we have filed some written submissions. The allowances matters and those more detailed concerns are something to be fleshed out as you have suggested in the exposure draft area once the scope for the Horticultural Award is defined.

PN2766

THE COMMISSIONER: All right. Well, let's deal with the question of all of those matters that come under that heading of the hourly rate of pay.

PN2767

MR LONGLAND: Yes. The whole amount of what I'm going to say wouldn't be more than five minutes on that, Commissioner.

PN2768

THE COMMISSIONER: Yes, go ahead.

PN2769

MR LONGLAND: If we want to deal with that issue first can I come into that issue just by reiterating at the highest level what we say about the principal federal award point. The present statement on the 29th doesn't say anything on NAPSAs and they're peculiarly - - -

PN2770

THE COMMISSIONER: Sorry, it doesn't say?

PN2771

MR LONGLAND: You ignore NAPSAs in favour of any federal award. The principal reason here, and again I don't want to be repetitive, is that the HIA applies over a thin band around the border of one or a couple of states. Two, it's the nature of the work which is really the key here. What the President had in mind was a federal award just, for example, that made provision for manufacturing vehicle components, and a state award that made provision for the manufacturing of vehicle components. In those circumstances you can see that what he's getting at perhaps is that you give primacy to the principal federal award and that there'll be reasons for that flowing from the safety net nature of the award as opposed to the market rates type nature of the state NAPSA.

PN2772

Here the position is fundamentally different because the work is different. Pineapples, bananas, academia nuts, avocados, those thing don't grow in a thin band around the Victorian border. The industrial tribunals that have looked at that particular work have fashioned the balance between the industrial pays which is appropriate for that particular work. That's the reason why we need to look at all these instruments. Secondly, in relation to the list there were 16 that I had in my initial submissions and now there's 11 and the reason for that is that five of the nursery ones came out. I think my friend basically agrees with me save for two.

PN2773

He doesn't say no weight should be given to them, I think he says limited weight. I accept that the Commission will look at these 11 and some will get greater weight than others and that's fine. In relation to those two I say the WA Farming Employees Award does apply to horticulture and should be taken into account. Its scope clause says it applies - it uses the wide words of "in connection with the selling, raising, harvesting and/or treatment of grain, fodder and other farm produce". We simply say that there's a sufficient connection with the growing of farm produce or activities in connection with that that give it a horticultural flavour.

PN2774

Yes there is an exception of the Western Australian legislation that says that you read the award in accordance with its terms. That's fine. Secondly, in relation to the South Australian Pastoral Award, my friend seems to acknowledge that that award applies to mushroom growers. Again I don't say that's the most important award in the whole 11, but we can't just forget the mushroom growers. They are going to be caught up in the federal Horticultural Award and some consideration ought to be given to what they're currently the subject to in South Australia. Then applying that specifically to the hours clause what we haven't done, as my friend suggested, is pick an award and say we want this hours clause. The hours clause we have proposed coincidentally might line up with what's in an existing award, but we haven't proposed it for that reason. We proposed it because when you look across the 11 and when you see there's an extreme at one end and there's an extreme at the other, in view of the fact that these modern awards must comply with requirements that include the safety nets, providing for the efficient and productive performance of work, when you consider the peculiar circumstances of this industry where fruit ripens on the vine without reference to the time of the day or day of the week. We think we have picked a point which is appropriate with respect to all of those issues.

PN2775

I don't need to or wish to take you to every NAPSA. I think we have put in writing in our submissions sufficient detail about that and we fully acknowledge that the Full Bench will make a call based on what they think is appropriate. But it's sufficient for me to simply say that six to six Monday to Friday is not appropriate. It represents an extreme position. And it can't be visited upon the many tens of thousands of employees throughout the country that have never had it visited upon them before. The final thing in relation to that hours clause is this suggestion that somehow you should introduce that inflexibility because there will be an award flexibility clause that will allow parties to reach arrangements to get around any inflexibility introduced.

PN2776

There's a couple of problems with that. The first is that the flexibility clause, that's the standard clause that goes in all the awards, imposes this notice of anti test type requirement so the inflexibility my friend suggest you put into this hours clause would have to be effectively pulled out by employers if they were to use that mechanism. And the second point of course is that the Full Bench has determined that these flexibility agreements can be terminated by either party. And unlike the discussion we just had on the peace rates that, in effect, would be not that the employment terminates but the need for flexibility terminates. So it is a little unsatisfactory to say let's put in the most extreme and inflexible position because the employers would be able to buy their way out of a flexibility clause.

PN2777

That's all I wish to say about hours, subject to what you wanted to ask. And the only further things I've got to say about horticulture at all are just about some scope issues and the like.

PN2778

THE COMMISSIONER: Mr Decarne?

PN2779

MR DECARNE: Yes, Commissioner, we heard HAC, AI Group, the TFGA and the NFF already this morning refer to the Horticulture Award. Now, I assume when they refer to the Horticulture Award they're referring to HIA.

PN2780

THE COMMISSIONER: No, they're referring to the idea of it. Aren't you? Isn't' that right?

PN2781

MR DECARNE: Well, when they were speaking of scope they were referring to HIA, when they were speaking to piece work they were referring to HIA.

PN2782

THE COMMISSIONER: Well, I think you've probably correctly identified that they're referring to it conceptually and there's a certain amount of confusion about whether they're actually referring to the federal award or to the proposed Horticulture Award.

PN2783

MR DECARNE: No, they were actually referring, obviously referring to the Horticulture Award as it stands, meaning the current Horticulture Award. However, Commissioner, I don't think we've talked about this band enough that my friend Mr Longland speaks of because there's also schedule A and B respondents in HIA that has to be considered, and I think the Full Bench is well equipped in understanding that. I don't think my friend can suggest what the President was referring to when he made that statement on the 29th. I think that you are in a better position to confer with the President about that statement in the context of this industry.

PN2784

But if we were to fashion the balance in terms of hours, as my friend put it, we fashion the balance, and we've got to fashion the balance across all of the awards in consideration of their coverage and application everywhere. Now, that task is massive in the timeframe we have in award modernisation, and I don't think that's what the President's statement went to. I think that it went to the drafting principally of the federal award that we have made by this Commission and I think that that's what he was referring to. Now, we have made substantial submissions on what we think about the HIA and its respondents. The weight that can be given to awards, as my friend says, and the mushroom growers particularly in a certain state, is quite minimal across the vast array of these awards. But I will go through them numerically and just say in terms of the maximum hours per day nine out of 10 has a maximum hours. In terms of the span of days nine out of 10 have a span of days. In terms of spans of hours - - -

PN2785

THE COMMISSIONER: Just slow down a bit. Yes, go ahead.

PN2786

MR DECARNE: In terms of span of hours nine out of 10 have a span of hours. Now, 12 hours maximum in one award, 10 hours maximum is in three awards, eight hours maximum is in four awards. There is one that doesn't have a maximum. On the span of days Monday to Friday, five awards. Five days in seven, two awards. Seven days without that have weekend penalties, one award. Fruit packers Monday to Friday in Western Australia, there is one award that doesn't have a span of days. As with span of hours we have, as I said, nine out of 10 awards have a span of hours. 6 am to 6 pm is in three awards. Then there's 5 am to 8 pm in two and 7 am to 6 pm - - -

PN2787

THE COMMISSIONER: Just a little bit slower, Mr Decarne.

PN2788

MR DECARNE: Sorry.

PN2789

THE COMMISSIONER: 6 am to 6 pm in three?

PN2790

MR DECARNE: In three awards, 5 am to 8 pm in two awards and 7 am to 6 pm in two. There's two that don't actually have a span of hours. So we wouldn't actually want to mischaracterise the position in horticulture based on the number of awards either, which I think the submission that was filed by HAC might have done, unintentionally of course.

PN2791

THE COMMISSIONER: And presumably overtime is payable outside the span?

PN2792

MR DECARNE: It is, Commissioner. And we have included overtime within our table for horticulture. The only award that we didn't agree was the Tea Industry Award which is quite a good award in terms of employees, for employees. However, we couldn't find anyone that was using this award on our searches.

PN2793

MR LONGLAND: The only response, I just suggest that we are not proposing that there be no limit. We've got a limit of 10 hours per day, which is right between eight and 12. In section 3.1 of the submissions we delivered on Wednesday I've got these seven bullet points. So that's probably, without reading that - - -

PN2794

THE COMMISSIONER: Sorry, this is your most recent submission?

PN2795

MR LONGLAND: Yes, at 3.1.

PN2796

THE COMMISSIONER: If I can just go to that. This is 10 December, is it?

PN2797

MR LONGLAND: Yes.

PN2798

THE COMMISSIONER: HAC 10 December?

PN2799

MR LONGLAND: Yes.

PN2800

THE COMMISSIONER: Which page, which section?

PN2801

MR LONGLAND: I'm sorry the pages don't - 3.1.

PN2802

THE COMMISSIONER: Yes. Does that coincide with what Mr Decarne has just said?

PN2803

MR LONGLAND: Look, I can't answer that. I'm not sure that it does.
Mr Decarne referred to more than simply the days of the week. But you will see from those seven bullet points that it's only the most inflexible that's got the Monday to Friday. So that's why I say their position is an extreme one. And before I sit down, which I'll do momentarily, the other - - -

PN2804

THE COMMISSIONER: What about the weekends?

PN2805

MR LONGLAND: We considered that - the top bullet - it doesn't matter which day of the week. Now, this is the Queensland Tea Industry Award which my friend described as good for employees. You can work your ordinary hours whenever you want. The next one down - - -

PN2806

THE COMMISSIONER: Without any penalty?

PN2807

MR LONGLAND: Well, the ordinary hours. You only get 38 without any penalty. I should remind you, Commissioner, that we did look at the issue that you raised and with respect to the New South Wales award that our friend helpfully drew our attention to that has this ordinary time penalty. And you will see in the table that I have attached to the schedule 1 to my submissions, the last column says Rate of Pay for Ordinary Hours Worked on Weekends.

PN2808

THE COMMISSIONER: Just bear with me, I'm just getting it. Yes.

PN2809

MR LONGLAND: I took a slightly different approach to my friend, where I asked these questions along the top. "Ordinary hours of work per week, can they be averaged? On what days can they be worked? Between which hours can they be worked? Is there a maximum?" And the last column is Rate of Pay for Ordinary Hours Worked on Weekends. And you'll see that there's a reference to the New South Wales award there. There are two other awards across the page that have some loading for ordinary time, the Mushroom Industry Award in New South Wales and the Tea Industry Award Queensland, but the rest of them make no different provision.

PN2810

And we're certainly not saying that any hours over 38 should be remunerated by way of overtime. I think my friend and I are at one on that. And you'll see the next table, schedule 2, actually goes through the overtime rates for Saturday, for Sunday, for public holidays and for other days. And so this schedule 2 just looks at hours in addition to 38. Now, we look at our overtime clause, we're really not apart.

PN2811

THE COMMISSIONER: Sorry, what was that?

PN2812

MR LONGLAND: They're not I don't think a significant issue, but the most significant issue between my friend and I is whether you limit it to Monday or Friday, so every hour on Saturday and Sunday has to be an overtime hour and, secondly, whether you have span that goes from six till six.

PN2813

THE COMMISSIONER: What about if you are working on the weekend and its ordinary time, what's the rate of pay?

PN2814

MR LONGLAND: We say ordinary time. We say three out of 11 is not - - -

PN2815

THE COMMISSIONER: Yes. But that's a gap because the AWU is saying no ordinary time on the weekend aren't you?

PN2816

MR DECARNE: Commissioner, we're saying that it should be overtime on the weekend.

PN2817

THE COMMISSIONER: Yes, that's what I mean. So in a way it's a question that's sort of ruled out by your position. But if there were to be a provision for ordinary time to be worked on the weekends - and I addressed this to you I think on the last occasion - it appears that some of the NAPSAs that you say should be taken into account which contemplate that, such as the five over seven model, provide a penalty rate.

PN2818

MR LONGLAND: Yes.

PN2819

THE COMMISSIONER: Not all of them but some of them.

PN2820

MR LONGLAND: Some of them do, that's correct. And it's an ordinary time penalty so it's much smaller.

PN2821

THE COMMISSIONER: That's right.

PN2822

MR LONGLAND: Yes. And we acknowledge that that's an option. We haven't suggested it for obvious reasons.

PN2823

THE COMMISSIONER: No. Obviously that's what I said, the question in a way is ruled out because neither of you are on a position where that forms part of your proposed scheme.

PN2824

MR LONGLAND: Yes.

PN2825

THE COMMISSIONER: Yes, all right.

PN2826

MR DECARNE: Commissioner, ours goes into quite a bit of detail about overtime and when it kicks in. I mean, it's implied that overtime kicks in as soon as the ordinary hours are worked but other than that I think the tea industry and what we didn't include because, as I've said, we can't find anyone that's using that on our analysis. And some of these other awards also. I think the Commission is probably in a better position to know whether or not they're being used. We wouldn't say that many of them are being used extensively. But for instance, the Dried Vine and Fruits Industry Award which is quite inflexible in some parts and then flexible in others. It's only related to one part of the horticultural industry, as is the Mushroom state, as is the Hop Industry Award, which is another inflexible award.

PN2827

Of the awards that are related to a broader spectrum of horticultural products there's only one that sort of relates to my friend's position. We'd just like to bring that to the Commission's attention.

PN2828

MR LONGLAND: Yes. And without wanting to play ping pong as we've been doing, what we say is, it doesn't matter whether people are using these awards or not, we don't know and there needs to be evidence. What matters is that an industrial tribunal has turned its mind to the circumstances surrounding work in the tea industry, and that tribunal has determined that a fair industrial balance is represented here. Now, if we're going to say to those people in the tea industry that - - -

PN2829

THE COMMISSIONER: The piece work rates are 30 per cent there though.

PN2830

MR LONGLAND: Correct.

PN2831

THE COMMISSIONER: I mean, this is the problem with all of these scenarios. If you think that the instrument is to be given weight there's always the question of how much weight, and do you take everything from it, the good and the bad, because invariably that will collide with the good and the bad from other instruments that are meant to be given some weight. Whatever amount of weight nobody would really know. The scale is not going to read off a number.

PN2832

MR LONGLAND: Correct, because there's no evidence.

PN2833

THE COMMISSIONER: That's right.

PN2834

MR DECARNE: That's right. And that's why in this process I think sticking with an award that was drafted by this Commission is probably the best course of action.

PN2835

THE COMMISSIONER: It suits you now, but in a contrary situation it might not suit you and we might move on to the Pastoral Industry Award in a minute and these words will be quoted back to you about the hours of work.

PN2836

MR DECARNE: Perhaps they will and we can quote them back to the NFF right now because that's now come to this process, there's going to be arguments - - -

PN2837

THE COMMISSIONER: The NFF would be luxuriating in what you've just said because they would think, well, Mr Decarne supports the proposition that the hours in the PIA Award should be the hours.

PN2838

MR DECARNE: That's right. But conversely the NFF have submitted a joint draft with HAC, and when I say my friend I should probably say my friends. And that's their position in horticulture. That is their position in horticulture. So the primacy of the federal award and the PIA argument is a little - - -

PN2839

THE COMMISSIONER: So there are some contradictions there too.

PN2840

MR DECARNE: There are some contradictions there.

PN2841

MS WARIN: I'd seek to disagree with that submission, in that we are not being contrary because as, Commissioner, you've said, it is a matter of weight. At the last hearing we were asked to confer with the parties and so the NFF has conferred with HAC, and it is this whole issue of weight that we have now enabled a consensus approach with HAC in terms of a position that's been put to you because it is acknowledged that there is much less of a coverage under HIA as there is under PIA and hence there is the capacity to give greater weight to those state awards where in the difference in pastoral is that there is far greater coverage of the federal Pastoral Award, and where there isn't coverage there is predominantly award free status. So there are significant differences and hence we have taken this weighting issue dependent upon the circumstances.

PN2842

THE COMMISSIONER: You're using the scope of the award for the purposes of the weight?

PN2843

MS WARIN: We're look at both scope and - - -

PN2844

THE COMMISSIONER: That's poorly expressed. The incidence of its application.

PN2845

MS WARIN: That's right, Commissioner, in terms of both - - -

PN2846

THE COMMISSIONER: Whereas Mr Longland just said that doesn't matter.

PN2847

MS WARIN: Well, from the NFF perspective we have taken into account - - -

PN2848

THE COMMISSIONER: He says it's not who is using it or not using it, it's a question of whether it's an appropriate regulatory instrument determined by the tribunal exercising its statutory jurisdiction.

PN2849

MS WARIN: I'd support those arguments, but in addition there needs to be a consideration of who is to be impacted on this decision.

PN2850

THE COMMISSIONER: Well, that's right. That's the other contradiction. It's all very well and good to make these decisions but the Request involves certain qualifications on the exercise of the power.

PN2851

MS WARIN: That's right, and as such we have taken the impact issue as part of our weighting determination of coming to - deriving to this outcome of a consensus between the two organisations, and we again put the same criteria under PIA but it comes to a different conclusion.

PN2852

THE COMMISSIONER: The difficulty is it's hard to serve the interests of the employer and the employee simultaneously in the circumstances.

PN2853

MS WARIN: And certainly, Commissioner, hence the reason the NFF has put in, in terms of both awards the issue of grandfathering potentials for existing employees where there is difficulty, and that certainly has been historically the way in which the Commission has treated updating of awards in the past.

PN2854

THE COMMISSIONER: Yes. But if the AWUs position for instance was upheld in relation to, you know, Monday to Friday with overtime on the weekends in relation to the PIA award you wouldn't be particularly calmed by the transitional provisions would you?

PN2855

MS WARIN: No, Commissioner. But there is a different argument there and that is that there is extensive incident and coverage and the impact of such would be so significant that it couldn't be justifiable for the Commission to derive that decision.

PN2856

THE COMMISSIONER: Well, the impact on some of the employees covered by the NAPSAs in horticulture might be significant too working under the HIA award, if they were to go to a 152 over 28 model such as the PIA the intensity of that experience would be similar to your members.

PN2857

MS WARIN: Certainly. In some instances unfortunately this process looks at the question of degree.

PN2858

THE COMMISSIONER: Yes. Well, it's going to be very hard in this sector to avoid difficulty I think.

PN2859

MR LONGLAND: I only had two more things to say about horticulture. If you wanted me to say them now - - -

PN2860

THE COMMISSIONER: Go ahead.

PN2861

MR LONGLAND: The first concern is just to inform the Commission about the issue of the overlap of the Horticulture Award, and we have done a great deal of work in the intervening period to reach a position where we've got an agreed draft. And I just wanted to - - -

PN2862

THE COMMISSIONER: Is that reflected in what's filed?

PN2863

MR LONGLAND: Yes. There's only one draft now. I just wanted to make a point that in terms of that crossover one needs to look at the definitions in the Hort Award being definition of horticulture industry and horticulture products and crops, but then also to look at an exclusion which appears in my friend, the NFFs draft Agricultural Award, in particular at clause 4.3(j) which excludes from the coverage of the Agricultural Award any employer whose principal activity is - - -

PN2864

THE COMMISSIONER: 4.3?

PN2865

MR LONGLAND: (j). And again without diving into too much detail, the headlined point I think is that we've followed this principal activity of the employer principle and we've reached a form that we're both comfortable with in doing that, the coverage of the award. And to the extent that our mechanism is not wholly able to avoid overlap there is of course a fall back to the standard overlap clause which appears in clause 4.6 of our draft and 4.4 of the NFFs draft. I think that my friend's submissions in relation to that line, he may not have had a good amount of time to consider how those two clauses work together, which we say create a fairly clear and concise line.

PN2866

The only other thing I wanted to say very briefly was in relation to the food preservers issue.

PN2867

THE COMMISSIONER: Yes.

PN2868

MR LONGLAND: And just submit that we would prefer a situation where those value add style activities if you like that have been part of the horticulture sector, your drying and dehydration et cetera, are included in this stage 2 award, and my friend's at one with that, and to the extent that the AMWU or others have comments to make about that - - -

PN2869

THE COMMISSIONER: This is because this occurs inside the farm gate doesn't it?

PN2870

MR LONGLAND: That's our fall back position, but on the face of our draft it would apply to those activities.

PN2871

THE COMMISSIONER: That does present some regulatory problems I think. You accept that don't you, Mr Decarne? For the Commission it sort of raises these issues about what the regulatory landscape if you like is and where the boundaries are.

PN2872

MR DECARNE: We definitely accept that, Commissioner.

PN2873

MR LONGLAND: Now, with respect to some other issues I did intend to look at the exposure draft when it came out, and things like my friend's indicated, classifications and allowances and the alike will probably be of more assistance when ..... That's all my client has to say today.

PN2874

THE COMMISSIONER: Where are we up to in relation to the classification of work?

PN2875

MR LONGLAND: We have used the HIA one. Our draft had a classification.

PN2876

THE COMMISSIONER: Do you have anything to add on that?

PN2877

MR DECARNE: Commissioner, we haven't put our mind further in detailing the classification and the scope, the primary issue, and that wasn't worked out by my friends until a late hour on Wednesday. So the classification issue hasn't been - - -

PN2878

THE COMMISSIONER: Where are you up to on scope?

PN2879

MR DECARNE: On scope we were involved in the consultations as well. The exclusion that was put into agriculture was definitely agreed by the AWU.

PN2880

THE COMMISSIONER: That's accepted, that's agreed.

PN2881

MR DECARNE: We have a few differences in our scope still but they're minor and I have noted the areas of difference for the Commission's attention, because at the time of filing on Wednesday we weren't able to see the position of the other parties.

PN2882

THE COMMISSIONER: Well, what I'm hearing you say, that for the purpose of an exposure draft at least you wouldn't have any objection to the scope provisions that are submitted by HAC?

PN2883

MR DECARNE: There are some differences still, Commissioner, in terms of why - - -

PN2884

THE COMMISSIONER: For the purposes of the exposure draft except - - -

PN2885

MR DECARNE: We would have a problem.

PN2886

THE COMMISSIONER: You would have problems because it includes the wine industry?

PN2887

MR DECARNE: Yes. Well, there are differences within those. If you'd like me to take you through them?

PN2888

THE COMMISSIONER: Yes, I think we need to go to those.

PN2889

MR DECARNE: Our award speaks for itself, and there's also some submissions that have been filed on scope particularly. I mean, some of them have to do with the overlap in terms of vegetables, some of them have to do with the wine industry again, but to save time today - - -

PN2890

THE COMMISSIONER: Well, I don't want to save time, I'd rather do the work.

PN2891

MR DECARNE: Do you want me to take you through that?

PN2892

THE COMMISSIONER: Yes, just bear with me for a moment. Do you want to use your submission for the purposes of these references?

PN2893

MR DECARNE: Sorry?

PN2894

THE COMMISSIONER: Do you want to use your submissions for the purposes of this discussion?

PN2895

MR DECARNE: As I said, Commissioner, our submissions were written before we saw the final HAC draft. The draft we saw which we referred to in our submission is substantially different to the joint draft filed. From my quick analysis on it here I did notice that they've removed the term "agricultural holdings." Now, that term was included by I think AI Group as well as ourselves, and I'm not sure if it was in the NFF draft initially. That term is from the Horticultural Industry State Award, so we included that term.

PN2896

THE COMMISSIONER: What are you looking at? This is your draft?

PN2897

MR DECARNE: My draft award.

PN2898

THE COMMISSIONER: Your draft, sorry. I just asked you whether you were going to refer to your submissions, but you're not, you're going to refer to your draft.

PN2899

MR DECARNE: Commissioner, as I said, my submissions referred to the HAC draft prior to their final draft being submitted.

PN2900

THE COMMISSIONER: So you want to refer to your most recent draft?

PN2901

MR DECARNE: Our most recent draft in - - -

PN2902

THE COMMISSIONER: So that's in the horticulture draft.

PN2903

MR DECARNE: In contrast to HAC - - -

PN2904

THE COMMISSIONER: Yes, just bear with me for a moment. I've got all the parties' submissions filed and all their drafts filed. All right, this is your 10 December draft?

PN2905

MR DECARNE: It is. Our initial application clause which is at 4.1 is the Commission's standard clause that they've been using in the exposure drafts, so it's a little bit different in terms of we've just defined horticultural industry and not included the detail that's been included by HAC. So I saw that that was the Commission's clause and the clause that they've applied across the exposure draft so I thought that that would be the most appropriate thing to include in our award.

PN2906

THE COMMISSIONER: All right. Well, what's the difference here?

PN2907

MR DECARNE: In respect of work in the horticultural industry it's been included by HAC.

PN2908

MR LONGLAND: And horticultural industry is defined.

PN2909

MR DECARNE: Well, we also define horticultural industry. Now, we left it to the definition of horticultural industry to do that work which is similar to the Commission's exposure draft.

PN2910

THE COMMISSIONER: Just bear with me for a moment. So is it correct to say that really the axis of this discussion is about the definition of the horticultural industry?

PN2911

MR DECARNE: Well, more than that, Commissioner. I say it's to do with the application, and then really the term horticultural industry is in the definitions as well. We based ours on the Commission's exposure drafts because it seems like they're having a consistent approach across the awards, and to reduce complexity we thought it was appropriate to go with the Commission's approach. Now, I think there's some level of duplication in the draft by HAC in terms of defining and then applying and then redefining what the horticultural industry is. So we've just take an approach - I mean, in terms of content the differences aren’t too distinct, however there are differences in the terms of the application clause, and I think they might pose problems for the Commission.

PN2912

THE COMMISSIONER: Isn't dehydrating treating?

PN2913

MR DECARNE: I don’t have any industrial skill in relation to that, Commissioner.

PN2914

MR LONGLAND: I can't answer that, although I can say we say we followed the exposure draft form as well and we've tried to - I think this is a question of form over substance in a lot of ways. The substance from what I can see is we're pretty damn close.

PN2915

MR DECARNE: In terms of substance we are quite close yes, but in terms of form we've applied the Commissions form. Other than that I wont go to more questions of form unless the Commission requires me to. Other growing medium we did end up including, and I think that was upon the request of HAC, that we footnoted that, we included forwarding. This might pose some problems with the crossover with the private transport industry, but this was - to reach a resolution with HAC we decided rather than arguing over the term we would just include it and footnote it. We also included the producing compost cultivation because that was requested by HAC for mushroom industry. Now, in terms of what the horticultural industry does not mean we are apart. We exclude - - -

PN2916

THE COMMISSIONER: Sorry, just a moment, we are not there yet.

PN2917

MR DECARNE: We're not there?

PN2918

THE COMMISSIONER: Not at exclusions, no.

PN2919

MR DECARNE: Well, that’s the definition of horticultural industry.

PN2920

MR LONGLAND: The other point of difference is this other specialised crops, that in effect the HAC position is to use the terms other specialised horticulture crops and other specialised agriculture crops, and that’s an important issue for both of us.

PN2921

THE COMMISSIONER: And what are they?

PN2922

MR LONGLAND: Ms Corkhill's in a better position than me to understand the distinction there. But our clients were particularly keen to ensure that a term like other specialised crops could potentially be - - -

PN2923

THE COMMISSIONER: These are crops that should not be described in polite company are they? What crops are these mysterious crops that aren't otherwise horticultural crops?

PN2924

MR LONGLAND: I don’t think there is any particular crops in mind, its one of these catch alls that comes at the end of a list.

PN2925

THE COMMISSIONER: Yes, they always end up in the Federal Court.

PN2926

MR DECARNE: And so we got some comfort, each of us, from having other horticulture crops and other agriculture crops to sort of condition the meaning.

PN2927

THE COMMISSIONER: No, I think that would be a triumph of legalism in my personal opinion.

PN2928

MR DECARNE: Commissioner we initially read a list of crops, and I guess because the Commission wasn’t with us there and the parties weren’t with us there we ended up including the term "other specialised crops" as it was in the other awards. Now, this was a point of much discussion between all of the parties, and I know that the end result was to include the word horticulture in front of crops, specialised crops. We didn’t see it as having much impact, so we didn’t include that.

PN2929

MR HOULIHAN: Its got a lot of impact.

PN2930

MR DECARNE: Well, we did include the term agriculture in crops before the Agricultural Crops Award definition. Again its not a die in the ditch point for the AWU.

PN2931

THE COMMISSIONER: Well, lets move on.

PN2932

MR DECARNE: One term has been used and the other is new. One term has been used and has an award history and the other is entirely new.

PN2933

MR HOULIHAN: Commissioner, you urged the parties at the last meeting to try and sort these things out, and for whatever reason that form of words is what was required to bring peace and contentment.

PN2934

THE COMMISSIONER: Anything we can't think about that should be there.

PN2935

MR HOULIHAN: Yes, that’s right.

PN2936

MR DECARNE: Now, can I turn to flower and vegetable market gardens. I don’t think that is any longer in the HAC draft. I think that was taken out at the 11th hour on Wednesday. That still appears in our draft. Now, the storing, canning, grading, we've addressed that issue at the beginning of our written submissions that were filed on the 10th. We do see there being an overlap there with the Preservers Award and something that maybe is beyond us to sort out at this point in time before we can reach stage 3. Am I required to speak to the exclusion matters?

PN2937

THE COMMISSIONER: You are.

PN2938

MR DECARNE: So at 4.4 we have the horticultural industry does not mean, and we then state it does not mean the wine industry, which is then defined our definitions and defined quite extensively. We addressed the ambit of that earlier. Now, we also excluded silviculture, and I think that that’s not included within the HAC/NFF draft. I think in effect that what we're doing is similar to in the Tasmanian award which is allowing the silviculture and afforestation where its in connection with the horticulture industry, but leaving aside silviculture as an industry itself.

PN2939

MS CORKHILL: Commissioner, we do have that in the NFF/HAC draft at 4.2(e), we just included and exclude it rather than exclude it.

PN2940

MR LONGLAND: Its form and substance.

PN2941

MR DECARNE: Sorry, what point was that?

PN2942

MR LONGLAND: 4.2(e).

PN2943

THE COMMISSIONER: I see that. You keep going, Mr Decarne.

PN2944

MR DECARNE: So we also exclude - I think that they exclude sugar farms and cotton.

PN2945

THE COMMISSIONER: So do you.

PN2946

MR DECARNE: We do, and we also exclude plant nurseries, which we say - - -

PN2947

MR LONGLAND: It will be excluded anyway if there's a separate award.

PN2948

MR DECARNE: Yes.

PN2949

THE COMMISSIONER: This is the complementary provision?

PN2950

MR DECARNE: Yes, this is the complementary provision which is similar to a provision you had in your earlier award. Other than that the differences are minor and related to form rather than substance.

PN2951

THE COMMISSIONER: All right.

PN2952

MS CORKHILL: Commissioner, I would just like to point one thing out in the HAC/NFF draft. We have moved the location, like the upon farms, orchards and so on up to 4.2. So it flows down through all of the activities which happen on the property rather than the potential for it to be just linked to what's happening in clause A. So therefore that to us deals with the behind the farm gate issue of the storing and the processing.

PN2953

THE COMMISSIONER: All right. Just bear with me for a moment. The wage rates?

PN2954

MR DECARNE: Well the wage rates were just included as from the HIA at this point.

PN2955

THE COMMISSIONER: And they're common? Are they common or different?

PN2956

MR DECARNE: Well, on the view of the Commissions schedules and the research table it seems there are some differences in the wage rates across the award, so that’s something - - -

PN2957

THE COMMISSIONER: No, I meant the drafts?

PN2958

MR DECARNE: I think they are common, yes.

PN2959

THE COMMISSIONER: I just wanted to confirm that, as my recollection is that the schedule of wage rate was common.

PN2960

MR LONGLAND: We charge the same rates.

PN2961

THE COMMISSIONER: Yes, that is right. I just wanted to confirm that on the record, just in case somebody has downloaded something from a website somewhere. As for the classifications, one thing that would help is if the HAC - I think we'll probably do it ourselves actually. It wasn't paginated, that's all.

PN2962

MR DECARNE: Sorry, Commissioner.

PN2963

THE COMMISSIONER: That's all right. Classifications and minimum wage rates, clause 16, we don't have any classifications, that's the situation is it?

PN2964

MS WARIN: It is under schedule A, Commissioner. The NNF does note, Commissioner, that I think the AWU and the HAC in effect draft directly from HIA, and we'd note that the HIA classification structure was developed after a significant level of work value style arrangement in the late 90's and was by consent we understand between the parties to that award at the time.

PN2965

MR DECARNE: Commissioner, I just note that there is a schedule A classification in HIA which hasn’t been included. This is the schedule B and C classification structure.

PN2966

THE COMMISSIONER: Yes.

PN2967

MR DECARNE: The schedule A classification structure that was discussed between the parties is quite broad, I think there is sometimes two or three words describing the classification.

PN2968

THE COMMISSIONER: Just remind me of it. This is a set of classifications for particular activities isn’t it?

PN2969

MR DECARNE: Yes.

PN2970

THE COMMISSIONER: Not the B and C respondents.

PN2971

MS WARIN: This is the classifications for the B and C, not the A.

PN2972

THE COMMISSIONER: For the B and C respondents, right.

PN2973

MS WARIN: The A is predominately dried fruits classifications where we have taken the broader classification coverage from the B and C respondents.

PN2974

THE COMMISSIONER: All right. So your schedule A is the B and C respondents classification schedule?

PN2975

MR LONGLAND: Yes, Commissioner.

PN2976

MS WARIN: That’s correct, Commissioner.

PN2977

THE COMMISSIONER: All right. So are you anticipating that that would be the classification schedule given your unconditional admiration for the HIA?

PN2978

MR DECARNE: Our approach would be to stick with the HIA.

PN2979

THE COMMISSIONER: So you are content with these classification schedules?

PN2980

MR DECARNE: We think that there needs to be more done in terms of - - -

PN2981

THE COMMISSIONER: As an exposure draft?

PN2982

MR DECARNE: Of the exposure draft.

PN2983

THE COMMISSIONER: No, as an exposure draft you are content with this classification schedule?

PN2984

MR DECARNE: We're content at this time.

PN2985

THE COMMISSIONER: All right.

PN2986

MS WARIN: I understand historically, Commissioner, that these classifications were a direct link from the original Fruit and Vegetable Growing Award that was part of the merger with the Dried Fruits Award to make the Horticulture Industry Award.

PN2987

THE COMMISSIONER: Right. I appreciate - - -

PN2988

MS WARIN: Going back in history I think in this process to some degree.

PN2989

THE COMMISSIONER: There is an issue which does arise if you look at this forensically through the eye of a regulator, and that is that they're promotional positions in all cases, which means that in fact in the absence of an appointment the only rate of pay that is legally enforceable is the minimum rate. I will be drawing that to the attention of the Full Bench and ask them to make a decision as to whether that is an appropriate prescription of a minimum wage rate or not. I would have thought - this is a personal opinion, I have not discussed it with any members of the Bench - that it is difficult to reconcile the idea that you are prescribing minimum wage rates for those classifications of work if you make them conditional upon appointment by the employer to the position.

PN2990

MR LONGLAND: Yes. The only thing I would say there is that clearly that doesn’t effect the appointment of one. The entry level classification provides
a - - -

PN2991

THE COMMISSIONER: Correct.

PN2992

MR LONGLAND: And that provides a minimum which becomes legally enforceable upon the contract of employment being entered into.

PN2993

THE COMMISSIONER: That's right, yes. It just means that there is only one true minimum wage entitlement to an employee under the instrument.

PN2994

MR LONGLAND: Yes.

PN2995

THE COMMISSIONER: And that is the lowest wage rate.

PN2996

MR LONGLAND: Yes. And what we would say is that it is beyond the scope of this process to change that focus when it is the focus that’s adopted by the - - -

PN2997

THE COMMISSIONER: I will convey that to the Bench in those words. It's beyond jurisdiction is what you're saying, isn’t it?

PN2998

MR LONGLAND: Well, legally, yes.

PN2999

THE COMMISSIONER: That is because the Request has statutory force.

PN3000

MR LONGLAND: Exactly.

PN3001

THE COMMISSIONER: Doesn’t it follow, if you are correct, that any award that imposes an additional cost upon an employer of any kind whatsoever or reduces the wage of an employee by one cent is ultra vires?

PN3002

MR LONGLAND: That is the difficulty. That is a logical, albeit far reaching, impact of what its saying.

PN3003

THE COMMISSIONER: Yes, all right, good. Anything else about horticulture?

PN3004

MR DECARNE: Could I just submit a point again, Commissioner? In everything that we've discussed today the HIA has been chosen by my friends except for hours of work, and I would just like to stress that point.

PN3005

THE COMMISSIONER: All right. I think we might take an adjournment, we will have an early luncheon. I have an internal commitment at one. What I was hoping to suggest was the parties who don't see a need to stay may depart. The parties to the Nursery Industry Award will take the time to confer, and we will resume at 2.15, and we move onto the Pastoral Award in a very generic sense of the discussion. That will enable you, Mr Decarne, to hopefully be in a position to say something if you wish about the Nursery Award proposal.

PN3006

MR DECARNE: I'm sure there will be something I want to say.

PN3007

THE COMMISSIONER: All right. You might be pleasantly surprised. I think in some respects you will be. All right, 2.15.

<LUNCHEON ADJOURNMENT [12.07PM]
<RESUMED [2.18PM]

PN3008

THE COMMISSIONER: Good afternoon. Please be seated. Mr Decarne, did you have a chance to look at the nursery filing?

PN3009

MR DECARNE: I had a chance, yes, to look at the nursery draft. I will request that we still have a chance to make further submissions and perhaps amend their draft in some detail by early next week.

PN3010

THE COMMISSIONER: What do you mean by early?

PN3011

MR DECARNE: Monday or Tuesday.

PN3012

THE COMMISSIONER: Yes, I think you’ll have to do it by no later than AM Tuesday.

PN3013

MR DECARNE: AM Tuesday?

PN3014

THE COMMISSIONER: No later.

PN3015

MR DECARNE: No worries.

PN3016

THE COMMISSIONER: Otherwise I won’t have a chance to read it before the conference gets to the pointy end of the discussion about that particular matter. All right, so let’s move on to the Pastoral Industry Award.

PN3017

MR DAVIES: Commissioner, if I can just indicate that we are largely in agreement with the AWU, and we have agreed today on particular to amendments to the award. If you like we can talk you through them now or otherwise - - -

PN3018

THE COMMISSIONER: Can you explain them in writing?

PN3019

MR DAVIES: Yes.

PN3020

THE COMMISSIONER: I’m just a little bit stretched for time at the moment.

PN3021

MR DAVIES: Yes.

PN3022

THE COMMISSIONER: I’m sort of trying to handle panel matters that are coming in quite separately to the award modernisation process and, as I say, the Bench conference starts on Monday morning. So if you could be good enough to put it all in writing and post it, that would be good.

PN3023

MR DAVIES: Yes.

PN3024

THE COMMISSIONER: AM Tuesday.

PN3025

MR DAVIES: Yes, Commissioner.

PN3026

THE COMMISSIONER: Good.

PN3027

MR DECARNE: Would it assist you, Commissioner, if we amend their draft and then indicate where we’re of a different opinion.

PN3028

THE COMMISSIONER: I think that would be very useful, if the two of you could actually ensure that the issues are made clear in the documentation.

PN3029

MR DECARNE: No worries.

PN3030

THE COMMISSIONER: So that the Bench need only address the scheduled issues.

PN3031

MR DECARNE: Yes.

PN3032

THE COMMISSIONER: Thank you. And I won’t be discussing the nursery any further today so if those who are interested want to withdraw, they may. Thank you. So the Pastoral Industry Award, has anybody got any preference where we start? All right, let’s start with the cotton issue. Mr Decarne, I’ll just hear you on the subject of coverage of the industry first up. You have drawn my attention, and so has the NFF, to the fact that there are other instruments that haven’t been under discussion to date and I’ve noted that. You might like to just give me a bit of a commentary on that and what the implications are of that view or position.

PN3033

MR DECARNE: Yes, Commissioner, there’s another award which is the Cotton Ginning Award in Queensland. This award is quite similar to the state award in New South Wales. There are a few minor differences which I’m sure the NFF will bring to the Commission’s attention. We maintain our position on the cotton industry in that we maintain that we think there should be a separate award. We understand that the NFF have gone to lengths to find some data on the production of cotton. We also tried to undertake such a task. It’s very difficult in the timeframe to have any valid and sustainable data. I do understand that the NFF contacted Cotton Australia and we did also. We weren’t able to receive any information from Cotton Australia because they wouldn’t furnish it. The consultations that I’ve had with organisers in the area, which is the particular area of consultation I’ve been able to have in the timeframe, aligns with our position generally that there should be a Cotton Industry Award.

PN3034

These cotton farms that we see are those that are principally engaged in the farming of cotton. We do, and I make this clear in our written submissions, acknowledge that there are farms which - well, cotton farmers most often grow other crops as well, but these are principally cotton farms. In New South Wales they surround a cotton gin, which they will use; the farms in geography surround the cotton gin and feed into that gin. The conditions in the Ginning Award are very similar to those in the Cotton Industry Award, the Growing Award or the Harvesting Award in Queensland. So we maintain that position and the validity, verifiability and ability to scrutinise data that is provide by employer organisations, we say, should be put into question within this timeframe and process; that the information that they’re relying upon in many of these industries, and particularly cotton, is not publically available information. The publically available information is what we can, in the timeframe, assessed the situation on. We've sighted the instrument. So that’s our position in cotton, Commissioner, and otherwise stated in our written submissions.

PN3035

MS CORKHILL: Could I just deal with that issue of the publically available information, Commissioner?

PN3036

THE COMMISSIONER: Well, your information is your information.

PN3037

MS CORKHILL: Well, we are actually able to tell you, as the Commissioner, the source of our information. It comes from a very large company that collects data with strict privacy arrangements with their clients. It’s very, very good data but the people who collect the information, the company, are not prepared to have their name put out into the public arena. I have however a letter from Cotton Australia telling the Commissioner, yourself, where the data comes from. The Commission is at liberty to follow up, to confirm that data is as accurate as we have in our submission. If the Commission pleases.

PN3038

THE COMMISSIONER: Yes, I don’t think we can take the debate very far because there’s going to be no opportunity for discovery or cross-examination.

PN3039

MS CORKHILL: It’s very difficult in this process, yes.

PN3040

THE COMMISSIONER: Yes, that’s right. I know what the issue is but there are no solutions available.

PN3041

MS CORKHILL: Well the very, very clear information that I have is that cotton is just not grown as a monoculture particularly. I mean, Cubbie Station this year is growing all wheat. It has not got any cotton in at all.

PN3042

THE COMMISSIONER: Yes.

PN3043

MS CORKHILL: So the data that I’ve got there is the best that I could get from the industry, and in my submission it’s genuine data.

PN3044

THE COMMISSIONER: What is the difference in the harvesting, for instance, Mr Decarne, of harvesting cotton and harvesting wheat? Do you know?

PN3045

MR DECARNE: The difference in - - -

PN3046

THE COMMISSIONER: My understanding is that it’s machine picked.

PN3047

MR DECARNE: It is machine picking, yes - - -

PN3048

THE COMMISSIONER: And, I mean, the technology is clearly crop-specific just as machine grape picking is crop-specific. But in a general concept it’s not all that much different to a lot of agricultural machinery is it?

PN3049

MR DECARNE: My industry knowledge isn’t that great, Commissioner. I wouldn’t - - -

PN3050

THE COMMISSIONER: Well I’ve seen cotton picking operations. I’ve seen cotton picking machines, I’ve seen machines picking grapes, I’ve seen machines harvesting wheat. I don’t think there’s any handpicked cotton anymore, not at least in Australia. There might be in India or Egypt and places like that, but not Australia. So, you know, the question that arises in my mind is what is the fundamental difference at least in relation to harvesting between harvesting broad acre above ground crops and harvesting cotton.

PN3051

MR DECARNE: Commissioner, I can’t answer that question. Well, there is - - -

PN3052

THE COMMISSIONER: No, I suspect because there isn’t a generic
difference - - -

PN3053

MR DECARNE: No, but there is award coverage for harvesting in particular in Queensland, and when I addressed that with Cotton Australia they said that there were many more employees at harvest time, of course, as there would be with other crops. So there’s perhaps a reason for the need for an award there, and that would be our submission; that there’s a reason for a need for an award there.

PN3054

THE COMMISSIONER: But you see what the NFF says is that you can harvest cotton just as well as you can harvest wheat, and that in fact Cubbie Station, for example, will probably, because of difficulty with water allocation, plant and harvest wheat this year.

PN3055

MR HOULIHAN: It’s all feed quality, Commissioner.

PN3056

THE COMMISSIONER: Well, yes, there’s no comment on the quality of the crop, just the species.

PN3057

MR DECARNE: Commissioner, that doesn’t relate to the award coverage and the disadvantage to the employees under those awards however.

PN3058

THE COMMISSIONER: No, it doesn’t relate to that.

PN3059

MR DECARNE: No.

PN3060

THE COMMISSIONER: That’s a different issue. I’m just seeing whether there was any generic difference in the harvesting operation than one would expect on a broad acre farm, growing wheat.

PN3061

MR DECARNE: I’m not briefed enough to understand those complexities, Commissioner.

PN3062

MS WARIN: Commissioner, if we refer to annexure C of the NFF’s submission about award coverage for the cotton industry that even if you look at the existing specific cotton awards their conditions are very, very similar to the conditions of employment through the existing Pastoral Industry Award arrangements in any event.

PN3063

THE COMMISSIONER: Including the hours?

PN3064

MS WARIN: Yes. Sorry, not the New South Wales one.

PN3065

THE COMMISSIONER: Not the hourly rates.

PN3066

MS CORKHILL: Queensland.

PN3067

MS WARIN: But the Queensland one certainly is and my recollection as to why there may well be a Cotton Harvesting Award historically in Queensland is we needed to note that the grain industry is award free in Queensland, and there may well be a particular reason why cotton as an emerging industry, where an award was created. But to pick up your point, certainly from the cotton - the farms that I’ve been involved in that produce cotton, where they’ve got a large number of employees, those employees, whether a jumper on a wheat harvester or a jumper on a cotton harvester or a jumper on a tractor, it’s the same - - -

PN3068

THE COMMISSIONER: Essentially it’s a piece of agricultural harvesting machinery.

PN3069

MS WARIN: It’s a piece of agricultural machinery.

PN3070

THE COMMISSIONER: Yes.

PN3071

MS WARIN: To undertake that work, and as such it doesn’t really matter what the crop is. It’s just whatever machinery is needed to harvest that crop.

PN3072

THE COMMISSIONER: What do you say about the ginning operation? I think you are up for a Ginning Award, are you?

PN3073

MS WARIN: No, we’re happy for ginning to be as a separate schedule to the award.

PN3074

THE COMMISSIONER: All right, so your distinction is between harvesting and ginning?

PN3075

MS WARIN: That’s correct, Commissioner. We acknowledge the fact that ginning specifically is not covered under the existing pastoral arrangements.

PN3076

THE COMMISSIONER: All right.

PN3077

MS WARIN: As such you would need a separate schedule, as we’ve suggested for the pig raising situation.

PN3078

THE COMMISSIONER: Ms Warin, I was just going to ask you does your draft in relation to ginning capture the existing ginning hours of work or rate of pay provision?

PN3079

MS CORKHILL: I should answer that, Commissioner. I haven’t had the time or the opportunity to draft a cotton ginning award. I have spoken to the cotton ginning industry both in Queensland and in New South Wales. They’re happy for their award coverage basically to continue as it is. The big difference between the two is that in Queensland there’s an opportunity to employ seasonal labour for the season of the ginning, whereas that’s not in the New South Wales award. The Queenslanders specifically requested that that remain if possible in any cotton ginning section of the PIA.

PN3080

THE COMMISSIONER: Well if we just deal with ginning, Mr Decarne, have you got any problem with seasonal labour provisions?

PN3081

MR DECARNE: No, well the seasonal labour conditions don’t exist in the state of New South Wales award so there’s a bit of a differential there. The state award hours is six to eight, Monday to Friday, and the only averaging is for an RDO. The weekend is paid at time and a half for a Saturday and double time for a Sunday under clause 7. Overtime is at time and a half for the first two hours and then double time thereafter. It’s quite similar to the cotton growing award in New South Wales and again that’s very similar to the Cotton Harvesting Award where Ms Corkhill mentioned that that was similar to the PIA provisions. I’ll just note that that provides for no more than eight hours in a day and no more than 40 in a week. So I don’t really see how that’s similar.

PN3082

THE COMMISSIONER: What provides for the eight hour?

PN3083

MR DECARNE: The Cotton Harvesting Award states no more than eight
hours - - -

PN3084

THE COMMISSIONER: In New South Wales?

PN3085

MR DECARNE: In Queensland.

PN3086

THE COMMISSIONER: In Queensland.

PN3087

MR DECARNE: The award to which Ms Corkhill referred as being quite similar to the PIA. However it’s not, and neither is the Ginning Award in that state, Commissioner.

PN3088

THE COMMISSIONER: I beg your pardon?

PN3089

MR DECARNE: Neither is the Ginning Award in that state.

PN3090

THE COMMISSIONER: Right.

PN3091

MR DECARNE: But they are all, as a bunch, those four awards are quite similar. Again, the justification for drafting - - -

PN3092

THE COMMISSIONER: So the issue between you really is your interpretation of the Queensland situation?

PN3093

MR DECARNE: Well the New South Wales situation is much clearer
because - - -

PN3094

THE COMMISSIONER: Yes, but you seem to be contesting the interpretation that’s being applied to the regulatory regime in Queensland, that the NFF has submitted.

PN3095

MR DECARNE: I’m definitely contesting that the Cotton Harvesting Award as stated is similar to the PIA, yes Commissioner.

PN3096

THE COMMISSIONER: The Ginning Award in Queensland, the only difference according to Ms Corkhill is the provision for seasonal labour.

PN3097

MR DECARNE: No, Commissioner, that’s - - -

PN3098

MS CORKHILL: Commissioner, I’m not saying that’s - no, I didn’t say that was the only difference.

PN3099

MR DECARNE: That’s not the case, Commissioner.

PN3100

MS CORKHILL: No, that they’ve looked at the awards and that’s something that they really wanted to remain, if an award between the two was - if the two awards were amalgamated they - - -

PN3101

THE COMMISSIONER: They want to keep the seasonal labour.

PN3102

MR DECARNE: Yes.

PN3103

MS CORKHILL: Yes.

PN3104

MR DECARNE: The Queensland award is a little bit more flexible in terms of seasonal labour, but it’s very similar to the Ginning Award in New South Wales otherwise.

PN3105

THE COMMISSIONER: Yes well can you give me some solutions? I can see the problems.

PN3106

MR DECARNE: Well our solution would be to merge cotton ginning and growing and as the NFF have made clear, a lot of the ginning actually occurs on the farm. In discussions with them there was - with Cotton Australia discussions they were working out the preference, was the term they used. The preference for the ginners to be either within the PIA or outside of that. So we don’t see that as being for consideration, the preference of Cotton Australia’s members to be within or without the coverage of the PIA. But we do see all of these conditions being similar across these four instruments and that’s the reason that we see the drafting of a Cotton Industry Award as necessary.

PN3107

THE COMMISSIONER: Yes. I don’t know whether that’s a solution.

PN3108

MR DECARNE: Commissioner, in the earlier submissions in this process the NFF made the distinction between ginning is part of the manufacturing process. Now the Textile Manufacturing Award has gone along as it has in stage 1 and there hasn’t been much mention of cotton ginning as far as I’m aware. Cotton ginning has been put in the agricultural group so we’re dealing with it here in this group. In conversations that we’ve had with the NFF since the last pre-drafting consultation they now submit that there are on-farm ginning operations. We would say that to reduce the number of awards applying to the employer in the cotton industry that one cotton industry award would be quite a sustainable proposal.

PN3109

THE COMMISSIONER: I understand what you want in that general sense of having one award that covers growing and ginning. But there are issues, there are differences in the regulatory arrangements, even within the context of your concept.

PN3110

MR DECARNE: But these are much - - -

PN3111

THE COMMISSIONER: So I’m asking you to get into the solution-oriented mode rather than the problem-centred mode.

PN3112

MR DECARNE: These are much less significant than the differences with the PIA. I think that those differences could be worked out in a cotton industry award. However to work those out within the context of a PIA coverage it would be much more difficult.

PN3113

THE COMMISSIONER: Yes. With all due respect, you’re explaining the problematic aspect of it to me. I’m asking you to throw the switch to the solution-oriented way of seeing the issue.

PN3114

MR DECARNE: It’s difficult to find a solution because there is no seasonal provision in one award and there is in another. We have about - - -

PN3115

THE COMMISSIONER: Yes, but that’s very static, that idea.

PN3116

MR DECARNE: We have about 50 per cent coverage - - -

PN3117

THE COMMISSIONER: We have just got that problem and that’s the end of the story.

PN3118

MR HOULIHAN: Commissioner, I think my friend has got it wrong here. The ginning is - what Ms Corkhill said was that cotton growing clusters around a gin.

PN3119

THE COMMISSIONER: Yes.

PN3120

MR HOULIHAN: Geographically, which it does. The gin isn’t - well it might be on someone’s farm, but it’s clearly a separate sort of work.

PN3121

THE COMMISSIONER: I understand that.

PN3122

MR HOULIHAN: Yes, and I think there’s a good argument for my friend to say that there should be a Cotton Ginning Award that covers cotton ginning in Queensland and in New South Wales because that is a different thing than anything else that happens. Nobody else does anything like that. But the growing of cotton is the same as the growing of rice or growing of grain or growing of grapes or anything else.

PN3123

THE COMMISSIONER: All right. Well, there are various subsets of this issue. Let's just look at ginning. There are issues of uniformity to be considered if there was to be a Ginning Award. So what are the solutions? Put the seasonal labour provisions in a Ginning Award to cover both Queensland and New South Wales?

PN3124

MR DECARNE: Well, we wouldn't propose that proposition.

PN3125

THE COMMISSIONER: Why is that?

PN3126

MR DECARNE: Because the award coverage is pretty similar. There's about 50 per cent of the industry in either state to our understanding, so there'd be much more disadvantaged people in New South Wales.

PN3127

THE COMMISSIONER: How would it disadvantage people in New South Wales?

PN3128

MR DECARNE: In the seasonal labour because they'd be getting overtime and penalty rates for that work otherwise.

PN3129

THE COMMISSIONER: I see, all right. Do you know this as a fact?

PN3130

MR HOULIHAN: No. Commissioner, again, that's simply wrong. I mean, the nature of seasonal work, they can't work 80 hours a week, they can only work - - -

PN3131

THE COMMISSIONER: I think you got unnecessarily alarmed when I said I see. It was a question, it had a question mark after it. What they say in New York is, if you say so, that's the polite form of disagreement. Is it irrelevant? If you are resting your case on the proposition that you're trying to maximise the overtime penalties for employees in New South Wales, I don't understand how that can occur even if that was an appropriate criteria. It's not going to occur that way, is it? What are they going to do, all go out at night, at double time, because they won't employ any seasonal labour, so they'll have one person out there picking the cotton all night, is that the way it works?

PN3132

MR DECARNE: If you'd just bear with me for a moment, Commissioner.

PN3133

THE COMMISSIONER: You see, Mr Decarne, I don't understand what the real rationale is for the problem with seasonable labour in New South Wales is. That's an unconvincing proposition that somehow or other the employees who work for the rest of the year when the season comes around are going to be disadvantaged by the fact that the instrument allows the employer to employ additional labour on a seasonal basis. What's going to happen with the people who are working there year round? I mean, I think you're basically assuming what you just said, with all due respect, unless your organizers have told you that's the way it works.

PN3134

MR DECARNE: Well, Commissioner, that's the information that I have, yes.

PN3135

THE COMMISSIONER: What were you told?

PN3136

MR DECARNE: I was told that seasonal work means the re-employment of casuals on seasonal conditions. So those casuals who would be working otherwise for these farms as a highly casualised workforce, will be employed under seasonable conditions at that time.

PN3137

THE COMMISSIONER: All right. That's a bit different - - -

PN3138

MR DECARNE: So that it's possible in New South Wales.

PN3139

THE COMMISSIONER: Yes, but there needs to be a little bit of an explanation of what that means for employees.

PN3140

MR DECARNE: Yes.

PN3141

THE COMMISSIONER: You know, it's not clear to me what that means in practical terms.

PN3142

MR DECARNE: The relevant provision is at 4.3.1 which provides - - -

PN3143

THE COMMISSIONER: 4.3.1 of what?

PN3144

MR DECARNE: Of the Ginning Award in Queensland, the Cotton Ginneries, Cotton Oil and Other Seed Oil Manufacturing Employees' Award (State) which wasn't on the Commission's list.

PN3145

THE COMMISSIONER: Has anybody got that?

PN3146

MR DECARNE: I've got one copy, Commissioner. Should I read what the provision provides? It says:

PN3147

Seasonal employees means employees who are engaged from time to time to supplement the permanent workforce. Upon termination such employees shall be entitled to the pro rata benefits of a full time employee. Trainees are engaged under this award except as amended from time to time by the order -

PN3148

and continues on from there.

PN3149

THE COMMISSIONER: Well, they've got to be supplements to the full time workforce?

PN3150

MR DECARNE: To the full time workers, yes, Commissioner, but there's a lot of casual workers that will then find themselves on seasonal work arrangements.

PN3151

THE COMMISSIONER: How does that happen?

PN3152

MR DECARNE: Well, Commissioner, this is just the practice and I wouldn't ask - - -

PN3153

THE COMMISSIONER: Yes, but do you know what the procedure is?

PN3154

MR DECARNE: I don't, but I'd be happy to provide - - -

PN3155

THE COMMISSIONER: You've been told this, but I don't see how it works. What do they do? Do they terminate their employment and then re-employ them as seasonal workers?

PN3156

MR DECARNE: For the casual employees, sir, possibly.

PN3157

MR HOULIHAN: But, Commissioner, the point is if they're employed as casuals, they get paid a casual loading in lieu of the benefits they will receive. If they're paid as seasonal they get pro rata of those benefits and it's simply a non-issue.

PN3158

THE COMMISSIONER: Do you want to respond to what Mr Houlihan says, Mr Decarne?

PN3159

MR DECARNE: Yes.

PN3160

THE COMMISSIONER: You see, what Mr Houlihan is saying is that if the casual loading is taken to be in lieu of the benefits of weekly employment, then the award covers harvesting in Queensland in relation to seasonal labour, provides for a pro rata payment of accrued sick leave and accrued annual leave and other things. That's what I'm asking you to respond to.

PN3161

MR DECARNE: Commissioner, I can only respond to that and say that I'll provide the Commission with a further written submission on that, if it's appropriate.

PN3162

THE COMMISSIONER: If you want to, yes.

PN3163

MR DECARNE: Yes. I mean, there has to be some purpose for the employees to want to attain this in some cost savings which usually - - -

PN3164

THE COMMISSIONER: A suspicion, is that the idea?

PN3165

MR DECARNE: Well, I guess so, yes.

PN3166

THE COMMISSIONER: You think it's a bit suspicious.

PN3167

MR DECARNE: Well, what other purpose would it be then than cost savings?

PN3168

THE COMMISSIONER: Well, I think the purpose is self evident. I mean, they're currently covered by an instrument, and they are motivated in much the same way as you are, to preserve something that currently operates in their industry and which they find amenable and then they look at the alternative, which is that they've got an order that doesn't provide for seasonal employment and they wonder what they'd be doing if they were employing seasonal employees. I think that's their motive. I don't think they, you know, are all that tricky. Just as, you know, with the HIA Award, you say, well, it's 6 to 6 Monday to Friday because that's what we've got. I think that's their motive.

PN3169

MR DECARNE: Of course, Commissioner.

PN3170

THE COMMISSIONER: The issue that I'm concerned with that you raised given the content of the request is, what's the disadvantage, you know, to the employees in New South Wales?

PN3171

MR DECARNE: Well, Commissioner, I'll make some further submissions.

PN3172

THE COMMISSIONER: Yes, if you wish, but I just can't see it at the present time if a provision that provides for them either to be engaged in the terms of the Queensland award or alternatively that they be engaged as casuals and paid the loading. There's no reason why that couldn't be appropriate. It cuts both ways. You wouldn't necessarily need to retain the existing Queensland provision. You could simply put something in there that people may be engaged as seasonal workers. Is there any other terms and conditions of employment that are relevant and engaged as casuals? It seems to make more sense than engaging them as permanent employees and then paying them some sort of pro rata amount on termination, calculating all of that.

PN3173

MR DECARNE: Yes, it definitely is a capital loading issue.

PN3174

THE COMMISSIONER: Well, you see, the way you've presented to me the potential disadvantage to employees is that you're a casual employee in New South Wales at the present time. You are engaged as a seasonal employee when the season comes around and for some reason or other you get less. I can't see how that works to be honest with you. But a very simple solution to the problem is to have all seasonal employees engaged as casuals, paid the loading, and then - - -

PN3175

MR DECARNE: It's similar to the proposition for piece work.

PN3176

THE COMMISSIONER: Yes. Would there be any issue for the Queensland Cotton Harvesting employers?

PN3177

MS CORKHILL: If they had the option, Commissioner. No, no, there wouldn't be, no.

PN3178

THE COMMISSIONER: Well, in some ways for them the convenience of just paying everybody an hourly rate rather than someone in the operation trying to work out how many days' sick leave they're entitled to under some convoluted industrial prescription.

PN3179

MS CORKHILL: I think it's like you said, Commissioner. It's what they do basically and I've only really had the last week to consult with them. I asked them to go through the AW draft. They didn't get very far with it, but they did get to the seasonal provision and said, "We do use that a lot in our industry." But they also, some of the big ginners actually operate in New South Wales and Queensland so they know both of the awards and how they work and that was the only issue they were - - -

PN3180

THE COMMISSIONER: So in a way we may not know precisely what the issue is. Well, in any event, at the end of the day, whatever the call is, it will only be an exposure draft and if they want to flesh out some particular problem there - - -

PN3181

MS CORKHILL: I've told them that, Commissioner, and asked them to keep working on the comparison between the two so when the exposure draft comes out we'll have something concrete.

PN3182

MR DECARNE: You see, Commissioner, I'm just taking it from the statement that there is potentially to be an exposure draft for cotton ginning.

PN3183

THE COMMISSIONER: I beg your pardon?

PN3184

MR DECARNE: I'm taking it from your statements that there's potentially to be an exposure draft for cotton ginning that would contain - - -

PN3185

THE COMMISSIONER: I don't know. I was going to put this as an option.

PN3186

MR DECARNE: Well, in relation to the hours of work - - -

PN3187

THE COMMISSIONER: Either as a part of the PIA or as a separate provision, I was going to put up the option that there could be a cotton harvesting and ginning, or a cotton harvesting and a cotton harvesting. All the options will be presented.

PN3188

MR DECARNE: To the point that you've just made about one of the options being cotton ginning and harvesting together, I just note that the award that we've been referring to, the Queensland award, also applies to other seed, oil manufacturing as well and it's my understanding the process is quite similar. They have encapsulated them both under the same award. Now, the ordinary working hours in that award, 40 per week, and it's a Monday to Friday spread with a maximum eight per day. So there would be a significant - - -

PN3189

THE COMMISSIONER: Overtime on the weekends.

PN3190

MR DECARNE: Overtime on the weekends and overtime provisions kick in outside of that eight hour span on Monday to Friday after the first three hours and double time thereafter, and it's time and a half on Saturday for the first three hours.

PN3191

THE COMMISSIONER: That's Queensland Ginning?

PN3192

MR DECARNE: Queensland Ginning.

PN3193

THE COMMISSIONER: What about Queensland Harvesting?

PN3194

MR DECARNE: The Queensland Harvesting Award provides for eight hours in one day, maximum, no more than 40 in a week. There's weekend work but the sixth day of the week shall be time and a half for the first three - - -

PN3195

THE COMMISSIONER: Sorry, just, you're going a little bit too fast.

PN3196

MR DECARNE: Sorry, Commissioner. So any weekend work - - -

PN3197

THE COMMISSIONER: Wait a minute, please. Eight hours per day, 40 per week. What days?

PN3198

MR DECARNE: Any day, however the Saturday would be time and a half for the first three hours.

PN3199

MS CORKHILL: I'm sorry, I do have to interrupt there. It's any work on the sixth day. It's not Saturday.

PN3200

MR DECARNE: Yes. So any work on the sixth day whether or not will be time and a half for the first - - -

PN3201

THE COMMISSIONER: Just wait a minute please, Mr Decarne. Time and a half - - -

PN3202

MR DECARNE: For the first three hours and double time thereafter with a minimum engagement of four hours. Now, on the seventh day it's double time with a minimum engagement of four hours. The overtime provisions, time and a half for the first three hours outside of ordinary hours' time and double time thereafter.

PN3203

THE COMMISSIONER: I think the issue here is essentially this - I mean, clearly if you go to a PIA coverage there's going to be very significant diminution of employee entitlements, I would have thought.

PN3204

MS CORKHILL: For the ginnings?

PN3205

THE COMMISSIONER: For harvesting. Well, certainly if you go to PIA for both in terms of hours and overtime.

PN3206

MS CORKHILL: Well, it's the NFFs submission that it's not, Commissioner, because a substantial coverage of PIA exists for harvesting and which is contrary obviously to the AWU's submission, but we would rely upon the annexures to our submission that there are significant coverage of PIA for cotton, but there's also the practicalities as well, that if you have a separate cotton harvesting, you could actually have it, and given that cotton can be harvested around about the same time as other crops, you could have an employee who is under two awards on the same day or in the same week given that they're harvesting both and I note from my experience that the fact that cotton is predominantly, I think, in all instances, a GM crop, there is regulatory provisions that I think required that other crops are sewn effectively around it to create a border and as such they are actually harvested at the same time and so from, you know, my experience, my property I'm thinking of, the cotton was surrounded by, you know, Canola, for example, and it was all harvested at the same time, obviously with different machines, but by the same employee - or Sorghum, thank you, Paul, Sorghum.

PN3207

So as such it would seem impractical to have a separate Cotton Harvesting Award in comparison to the resolution of the issue that we have proposed and that is that the extensive coverage of cotton continues under the existing Pastoral Industry Award coverage because of the mixed farming enterprise that occurs, that we acknowledge that there are differentials in the gins and in moving forward we have put the proposal that the gin employees could be under a schedule to the Pastoral Award, or alternatively, if that is not accepted by the Commission, then perhaps a separate ginning award specifically for those individuals working in ginning and we note from the submission of the Ginning Association, that there are 36 gins of which I think the predominant number in New South Wales and as such there may need to be a waiting consideration of considering those two awards to create a component and we note, obviously at the moment, that cropping harvesting in Queensland is currently award free and as such the grain harvesting would come under, for the first time, an award under our proposal, the new Pastoral Ag Award, which again would be an impact on those employers because they would come from an award free status to an award covered status as well.

PN3208

THE COMMISSIONER: I'm sorry, I'm not quite sure that I've followed why it was that you said there wouldn't be any significant disadvantage to the employees currently covered by the NAPSAs.

PN3209

MS CORKHILL: Well, if we look at the submissions of the NFF we say that in New South Wales there are only 16 producers that we are aware of that are under the NAPSA, the Cotton Harvesting NAPSA. The predominant number currently come under the federal Pastoral Industry Award by either virtue of direct respondency or their membership of New South Wales Farmers' Industrial Association. In terms - - -

PN3210

THE COMMISSIONER: So it will cut both ways. One way or the other there'll be disadvantage to the employees of the 16 producers, or alternatively disadvantage to the employers of employees in the other producers?

PN3211

MS CORKHILL: That's right and what we're saying, Commissioner, is that the vast bulk of them are currently operating under Pastoral as opposed to the majority operating under the NAPSA. When we look at Queensland currently it's an award free status from a grain cropping point of view, but not from a cotton - - -

PN3212

MR HOULIHAN: Commissioner, can I just raise an issue I just think is relevant to this, because it's just occurred to me that I think the Cotton Harvesting Award that's been referred to here and I'm sorry, I just had a quick look at it, and it's not clear. I think that relates to contractors who harvest cotton. I don't think it relates - you know, I'm not trying to start World War 3, Mark, I don't think it relates to farmers who grow cotton and have it harvested. I think it relates to the contractors who harvest cotton. I'd stand corrected, Commissioner, but I think that's the - - -

PN3213

THE COMMISSIONER: I don't have the award in front of me.

PN3214

MR DECARNE: Commissioner, that's not the case and that will be our submission.

PN3215

THE COMMISSIONER: Do you have the award?

PN3216

MR DECARNE: I don't have the award with me but I'm familiar with the scope of the award. In response to a few things said by my friend here from the NFF, I understand that cotton is often produced on a mixed farming operation and we acknowledge that and our submissions go into some detail about it. However, if cotton - - -

PN3217

THE COMMISSIONER: Does your draft cope with that?

PN3218

MR DECARNE: Our draft?

PN3219

THE COMMISSIONER: Yes?

PN3220

MR DECARNE: Our draft at the moment excludes cotton, generally.

PN3221

THE COMMISSIONER: Yes. No, but does your draft Cotton Industry Award cope with that?

PN3222

MR DECARNE: Cope, yes, it does.

PN3223

THE COMMISSIONER: When was your last filing of a Cotton Award?

PN3224

MR DECARNE: On the first date of submissions, Commissioner, I think that was 31 October.

PN3225

THE COMMISSIONER: Well, how do you say the application provisions cope with the mixed farming issue?

PN3226

MR DECARNE: Well, the application provisions relate to the Act. Again, the Act like all modern awards, the Act can leave the employer being primarily in the cotton industry and with some adjustments to our exclusion of cotton in our Agricultural Award, I think that we can definitely cope with that, particularly considering the classification structure and overlap of award provision operation. Like in many industries it's just - - -

PN3227

THE COMMISSIONER: With all due respect, there's a lot of ambiguity there as to whether it would apply to somebody involved in a mixed farming operation growing cotton. Have you got your draft in front of you?

PN3228

MR DECARNE: I don't, Commissioner, I don't. We have a lot of ambiguity over all mixed farming operations as well with the horticultural - - -

PN3229

THE COMMISSIONER: Well, I guess what I'm trying to say is I understand the problems. Reiterating the problems is spinning our wheels.

PN3230

MR DECARNE: And I think the broader award being the Pastoral Industry Award, as we've achieved with the horticultural industry exclusion we could have a similar exclusion for the principal activity in the cotton industry. Now, in terms of this argument of mixed farming operations, Commissioner - - -

PN3231

THE COMMISSIONER: Where are you going now?

PN3232

MR DECARNE: I'm going to the argument that was put up by my friend here.

PN3233

THE COMMISSIONER: About what?

PN3234

MR DECARNE: Cotton and mixed farming operations, cotton being part of a broader pastoral industry activity.

PN3235

THE COMMISSIONER: All right, go ahead.

PN3236

MR DECARNE: Now, in response to that argument I'd like to question what would happen when the mixed farming operation as with horticultural products, cotton and horticultural products. Because I had a good conversation with the head of the Cotton Australia Group, and often they're growing citrus and olives and cotton, and that's their mixed farming operation. Now, the PIA wouldn't apply to those crops. It would be the Horticultural Industry Award that would apply to those crops. So what happens when we're mixing crops from horticulture and cotton? I mean, that argument falls down on that basis.

PN3237

THE COMMISSIONER: Well, you see, what I'm pleading with you to do is, you've pointed out to me yet another problem. What I would like you to do, it would be enormous assistance to the Commission, is to direct attention to solutions.

PN3238

MR DECARNE: And I think that that could be done - - -

PN3239

THE COMMISSIONER: If I hear what you say there, that just adds another problem to the dimension of the Cotton Award.

PN3240

MR DECARNE: Well, it adds a problem with the agricultural industry generally, Commissioner. The reason that we approached initially with defining broad acre field crops within an Agricultural Award was because it stopped this overlap, it put an end to the overlapping. Now, our agreement on horticultural was, as directed by the Commission, it was great to have but it hasn't achieved - - -

PN3241

THE COMMISSIONER: Perfection, no.

PN3242

MR DECARNE: No, it hasn't achieved - - -

PN3243

THE COMMISSIONER: But this is all still a work in progress.

PN3244

MR DECARNE: It is.

PN3245

THE COMMISSIONER: And what we're here for is to try and find some solutions. And what I'm saying to you is that if your position were adopted at the present time in relation to your cotton draft it would beg more questions than are answered.

PN3246

MR DECARNE: Commissioner, these problems aren't unique to this industry. There is melting and smelting of metals in mining draft.

PN3247

THE COMMISSIONER: There's no point in me engaging - I've got enough problems here.

PN3248

MR DECARNE: No. These things go to - and you put it correctly in the first consultations, the principal activity of the employer. And we feel if we just draft a clause similar to the horticultural exclusion within the Pastoral Industry
Award - - -

PN3249

THE COMMISSIONER: Well, you're conceding that it's not there presently.

PN3250

MR DECARNE: It isn't there presently, Commissioner, no.

PN3251

THE COMMISSIONER: No. Where we started this discussion there was only one problem under discussion and that was whether or not your draft Cotton Industry Award coped with - - -

PN3252

MR DECARNE: The Cotton Industry Award does but the agricultural doesn't, and I might have been unclear on that point. At this point the - - -

PN3253

THE COMMISSIONER: Are you saying that because of the provisions of clause 4.1 of your draft?

PN3254

MR DECARNE: 4.1 of the?

PN3255

THE COMMISSIONER: Your draft.

PN3256

MR DECARNE: Agricultural?

PN3257

THE COMMISSIONER: No, the Cotton Industry Award.

PN3258

MR DECARNE: No. I'm saying that the Cotton Industry Award like the Horticultural Award are smaller areas of agricultural and the Pastoral Industry shall exclude those smaller areas as we've achieved in the horticultural.

PN3259

THE COMMISSIONER: All right, I hear what you say.

PN3260

MR DECARNE: But this problem, Commissioner, isn't unique to this industry, and the way it's been dealt with is as you put it before, the principal activity of the employer.

PN3261

MS WARIN: Commissioner, I don't want to harp on the point but I'm going to have to after the submissions of my friend and the AWU. The pastoral Industry Award, I think it's been referred to - the SERA case has been referred to previously in the submissions of the NFF that cotton has been deemed a crop and as such has always been covered under the Pastoral Industry Award historically. It's a reflection of the differing nature of cropping industry generally, and there has been submissions in the past that the decision whether to produce cotton or not is going to be dependent on whether or not there's access to water, what the price you are going to get for cotton and so forth.

PN3262

And if the proposal of the AWU is accepted by the Commission we will have a situation in which in one year where they grow cotton totally then they'll be under one award, but then their winter crop they'll be under the Pastoral Industry Award, and then the following year where it's 50/50 they'll be somewhere else. They'll be in the middle and won't know which award to apply. If you take the NFF position it's quite simple. Anything to do with the growing and harvesting of cotton or any other crop comes under the award that we've proposed, but we acknowledge that ginning is a separate type of work and as such should be treated separately.

PN3263

THE COMMISSIONER: I understand that, yes.

PN3264

MS WARIN: And I just think we're going round in circles when I think it's clear from the submissions.

PN3265

THE COMMISSIONER: Yes. The difficulty is there and problems are there.

PN3266

MR DECARNE: They are quite similar to the problems in horticultural.

PN3267

THE COMMISSIONER: Yes. But I don't know that that necessarily takes us anywhere either. The identification of the problems is a part of the process, but the innovation of solutions is probably the most important part. And this one doesn't have any obvious solution. That leads to a situation where either the employer's costs will be increased or the employees' conditions of employment will lead to disadvantage. It seems to me it's going to be very hard not to cause one or the other at least in relation to some employees harvesting cotton. Mr Houlihan, what makes you think it's contract harvesting?

PN3268

MR HOULIHAN: Commissioner, my knowledge of the Queensland thing is not - I wanted to hedge a bit, you know, in saying it, but other than stations and actually sheep stations - no, cattle stations too, all farms and dairy farms have been award free. All cropping has been award free in Queensland for a long time and there's been a long history which you would be aware of, of the AWU running cases for awards for farmhands and everything unsuccessfully forever. And I think that - it just started to ring a bell with me and I've just had a quick look at that award there, and it constantly refers to harvesting and there is a great deal of harvesting.

PN3269

THE COMMISSIONER: There's no reference to growing.

PN3270

MR HOULIHAN: Yes, absolutely.

PN3271

THE COMMISSIONER: Because there is a Growers Award.

PN3272

MR DECARNE: Not in Queensland there's not.

PN3273

THE COMMISSIONER: I thought you said there was a Growers Award.

PN3274

MR DECARNE: No, not in Queensland. In New South Wales there is.

PN3275

MR HOULIHAN: In New South Wales. And the thing with it in Queensland is that I know just from my own knowledge that there are big cotton harvesting contractors, and it just - and I hadn't thought about it before or anything. It's just when the discussion was on I thought hang on, that probably just relates to those characters. And I think it's interesting that it doesn't relate to any other aspect of the farming of cotton other than the harvesting of it.

PN3276

THE COMMISSIONER: Could I see the award? Do you have a copy of it?

PN3277

MS WARIN: Yes, I've got one here.

PN3278

THE COMMISSIONER: Yes, well, it doesn't cover anything except the harvesting. That's obvious if you read the first clause. It's exclusively applicable to harvesting of cotton throughout the state of Queensland. So that leaves you, Mr Decarne, with the question of New South Wales is the only state in which the growing is covered by a NAPSA.

PN3279

MR DECARNE: The growing, yes, Commissioner, but the majority of employees employed in the cotton industry, and this is from Cotton Australia, are employed in the harvesting. The labour intensive time is harvesting.

PN3280

MR HOULIHAN: Again, Commissioner, that's not necessarily right. There's a lot of people employed in harvesting. There's a great many people employed actually in what they call chipping, which is actually largely done by hand and there's a lot of labour employed there. It's an unusual activity in such a mechanised and modern sort of industry, that you have a whole heap of people out there with hoes chipping cotton.

PN3281

MS CORKHILL: If I could draw the Commission's attention to the letter from Auscot Limited, and the bottom paragraph of the first page talks about the field operations which are common amongst all of the crops which they grow, and he says:

PN3282

I cannot think of a single field operation that we perform in cotton but never in other crops. Even chipping has been done in sorghum legumes and fallow, harvest preparation defoliation is practised in sorghum and chick peas using Roundup or Gromoxone. Planting and harvest is practised in all crops it's just that different equipment may be used for different crops. All crops have been irrigated at some time or other, and in recent years large areas being sorghum, barley and wheat have been irrigated. I don't believe this situation will be different on most farms where cotton is grown.

PN3283

THE COMMISSIONER: Well, in this Harvesting Award there are only two classifications. One is a picker driver, which presumably is that, I would have thought, well known and well seen cotton picking machine on television, and something called a module builder operator.

PN3284

MR HOULIHAN: Sir, the cotton comes out into what they call a module, which is about three times the width of this table and about half as long again, and instead of a bale of wool - - -

PN3285

THE COMMISSIONER: That's what I was going to say, it's like a wool bale.

PN3286

MR HOULIHAN: Yes. It's a hell of a lot bigger and bulkier.

PN3287

THE COMMISSIONER: And it goes off to a gin from there?

PN3288

MR HOULIHAN: Yes.

PN3289

THE COMMISSIONER: Well, perhaps if we just focused very precisely on the question of growing, because your claim about disadvantage to employees in relation to the growing of cotton is now confined to the New South Wales NAPSA.

PN3290

MR DECARNE: It is within the New South Wales NAPSA, yes.

PN3291

THE COMMISSIONER: And what the NFF says is there's not that many people growing cotton under the NAPSA.

PN3292

MR DECARNE: Well, Commissioner, what the NFF says should be taken as such. That's what the NFF says.

PN3293

THE COMMISSIONER: What do you say about how many people are growing cotton?

PN3294

MR DECARNE: Upon my research, Commissioner, I will say that it's quite pasty. A lot of the people that are also members of the New South Wales Farmers are still applying the Cotton Industry Award, and that the ones that I've been referred to are Darling River Cotton in Burke, Twynum Pastoral Company.

PN3295

MS WARIN: Twynum are Pastoral Industry Award.

PN3296

MR DECARNE: Lachlan Farming, Marouree Station - - -

PN3297

THE COMMISSIONER: I think what's being said is that they may be of their own decision doing so, not whether or not they're covered.

PN3298

MS WARIN: Commissioner, I know from experience, I mean Twynum are members of New South Wales Farmers, Lachlan are, and I know from experience of education seminars for growers, and I spoke to an awful lot of cotton growers during the WorkChoices Employer Advisory Program, when you ask them which award they were under they don't know. It's simply what wage rates are provided by the industrial association and they simply - - -

PN3299

THE COMMISSIONER: Well, I think what Mr Decarne says is that they are applying the New South Wales award. I don't think he said that they are covered by the award.

PN3300

MS WARIN: No. Certainly from our understanding they will be applying the Pastoral Industry Award because it's simply - - -

PN3301

THE COMMISSIONER: But for our purposes in some senses it doesn't matter whether an employee is applying a particular award either by mistake or as some sort of more beneficial employment regime because they do so for labour market considerations or whatever. That's not really relevant here. We are fixing minima.

PN3302

MS WARIN: That's correct, Commissioner. And we submit that give we look at the membership of New South Wales Industry Association, of who their members are who therefore by virtue are operating under the Pastoral Industry Award, there are - - -

PN3303

THE COMMISSIONER: Are effectively bound by the award and respondents to the award by membership.

PN3304

MS WARIN: That's correct. There are 198 producers on that list as opposed to therefore 16 of the remaining 214 number of producers that we understand are in operation in New South Wales.

PN3305

THE COMMISSIONER: All right. So we have a growing, harvesting and ginning subdivision of issues. Harvesting is covered by a NAPSA in Queensland, ginning, it's a question of whether it's a part of the Pastoral Industry Award or whatever, but there's to be a code of conditions of employment which are discernibly applicable to ginning as opposed to growing and harvesting.

PN3306

MS WARIN: Yes.

PN3307

THE COMMISSIONER: I think that about exhausts the cotton issue. For the purpose of this afternoon and given the time available we have to move on in any event. Who's is this by the way? I'll return it to you, Ms Corkhill. If you just bear with us for a moment we'll return it to you in a second, Ms Corkhill.

PN3308

MS CORKHILL: Commissioner, if I could just point out I think I've accidentally stapled the AWUs Cotton Award to the back of that.

PN3309

THE COMMISSIONER: Yes, I did notice that but I've already got one of those so you weren't revealing any secrets. Does anybody have a copy of the Queensland Ginning Award? Can we just have that for a moment and we'll just arrange for these instruments to form part of our background research. All right, so we're on to the Pastoral Industry Award now. This is this question of hours. Now, Mr Decarne, my understanding is you want different hours to the current hours to apply under what succeeds the Pastoral Industry Award?

PN3310

MR DECARNE: Yes. Commissioner, we prepared the table as requested by the Commission on the awards.

PN3311

THE COMMISSIONER: Have you filed that?

PN3312

MR DECARNE: We have filed that. For some reason the registry put it at the back of our submissions so they've attached - we sent the tables as Excel spreadsheets as requested, but they perhaps went to the back and - - -

PN3313

THE COMMISSIONER: Are these the ones you've sort of half downloaded from our website?

PN3314

MR DECARNE: No. Do they look like this?

PN3315

THE COMMISSIONER: I think they might, yes. I just don't know where they are. We'll find them in a minute. But tell me about them and we'll have a look at them in a minute.

PN3316

MR DECARNE: Well, across the awards we have very different hours clauses. I've done a count of those and in pastoral we have one maximum hours of 12, and that's the Dairying Industry Employees State Award. We have two with a maximum hours per day of 10, we have one with eight as the maximum a day of ordinary hours. Now, in terms of span of days we have one that's a Monday to Friday, we have four awards which are Monday to Saturday where essential for the good husbandry of stock that they can be on Saturday. Then we have one which has five in seven, and then we have three which includes the PIA where they don't have a span of days.

PN3317

THE COMMISSIONER: And there's no limit of hours? There's one with no limit of hours, this is the PIA.

PN3318

MR DECARNE: No, I haven't got to hours yet.

PN3319

THE COMMISSIONER: No, sorry, in a day.

PN3320

MR DECARNE: There was five without limit of hours.

PN3321

THE COMMISSIONER: Five?

PN3322

MR DECARNE: Five of mine, yes. So there was four with a limit of hours and five without.

PN3323

THE COMMISSIONER: Yes.

PN3324

MR DECARNE: As to span of hours there's one with a 6 am to 6 pm spread and there's one with a 5 am to 8 pm spread, and there's seven without a spread of hours, like a span of hours. But, Commissioner, that's putting pigs and poultry to one side. We also tabled a document which detailed the pigs and poultry awards and their overtime provisions and how they apply. And in pigs and poultry there's eight of the awards have a - eight of the nine awards that apply have a maximum hours were day. Two of those awards are for 12 hours per day, one of the awards is for 11.5 hours per day, four of the awards are for 10 hours per day maximum and one of the awards doesn't have a maximum hours per day.

PN3325

In terms of spans of hours in pigs and poultry three of the awards are Monday to Friday, three of the awards are Monday to Friday - sorry, five to seven days, five in seven days, and three of them don't have a span of days. In terms of span of hours five of the nine awards have 6 am to 6 pm.

PN3326

THE COMMISSIONER: Just slow down a little bit.

PN3327

MR DECARNE: One award has 5 am to 6 pm, one award has 5 am to 7 pm and one award has 5 am to 7.30, and there's also one 8 am to 4 pm. So all nine of those pigs and poultry awards have a span of hours. But this is contained all in these tables, and I sent these to your chambers.

PN3328

THE COMMISSIONER: Yes, I'm sure they're there.

PN3329

MR DECARNE: Excel spreadsheet form.

PN3330

THE COMMISSIONER: I just can't put my finger on it at this instance, and I will come to them, that's why I just wanted you to tell me. So what are you saying?

PN3331

MR DECARNE: So we're saying that there's definitely a clear case to put pigs and poultry to one side as you mentioned before, there's definitely a clear case there. And we do acknowledge that the PIA - - -

PN3332

THE COMMISSIONER: Where the principal industry of the employer is feeding and raising pigs and not as part of a broadacre mixed farming enterprise.

PN3333

MR DECARNE: Yes. Well, there's a decision of the Commission around that.

PN3334

THE COMMISSIONER: Well, don't worry about that. I just want to be really clear on - - -

PN3335

MR DECARNE: The three awards have different application clauses, the three pigs awards.

PN3336

THE COMMISSIONER: All right. I just want to go now to the NFF. I'm not sure that you were on board with that idea, or are you?

PN3337

MS WARIN: The pigs?

PN3338

THE COMMISSIONER: Well, you see, the idea is that the pig breeding and raising and for poultry you would have an hour's regime which is different to the 152 over 28 regime in the PIA. That is what the AWU is saying. And that the way that you would delineate the difference between where an hour's regime which was different to the 152 over 28 operated is that you would either have it as part of the award, PIA, and it would say where the industry of the employer is principally or exclusively or whatever, the breeding and raising of the pigs, the hours of work of the employees will be as follows.

PN3339

MS WARIN: That's correct, Commissioner, that's in our draft award, that we have a separate - - -

PN3340

THE COMMISSIONER: When I read your submission I got the impression that you'd taken a different view.

PN3341

MS WARIN: We have with poultry but not with pigs.

PN3342

THE COMMISSIONER: All right, that's what I'm confusing.

PN3343

MS WARIN: So pig breeding and raising we've acknowledged the status and coverage of the existing award and as such - - -

PN3344

THE COMMISSIONER: Yes, but you don't think that's necessary for poultry?

PN3345

MS WARIN: We don't think it's necessary for poultry given the existing coverage of the Pastoral Industry Award. And I think we've put in our submissions that we believe an existing coverage of around 77.5 per cent are either existingly covered by a Pastoral Industry Award or award free or similar awards, and likewise with over 83 per cent for eggs. So when we looked at the coverage, existing coverage provisions we believe that there was a differential - - -

PN3346

THE COMMISSIONER: The existing incidence of coverage?

PN3347

MS WARIN: That's correct, and substantial incidence of coverage, where pig breeding and raising we acknowledge the differential - - -

PN3348

THE COMMISSIONER: It's the opposite.

PN3349

MS WARIN: So what we've put in our draft awards is, who are wholly employed or in connection with breeding and raising of pigs, which is directly out of the existing federal award for pig raising and breeding.

PN3350

MR DECARNE: Commissioner, there I'll note that all of the awards refer to the classification of the employee as the differential, they're not the principal activity of the employer. So that's a bit of an anomaly in this process, that we drafted a little bit differently to the NFF. But the award shall apply in Queensland to the pig breeding and raising industry within the state of Queensland where the major or substantial part of their employment is in connection with. It's the same operation in the federal award. It's to do with the classification. So if we link it to classifications - - -

PN3351

THE COMMISSIONER: So the answer is you have a separate part of the award for pig breeding and raising.

PN3352

MR DECARNE: Within the employees classifications within that award.

PN3353

THE COMMISSIONER: With classifications and hours of work.

PN3354

MS WARIN: And that separation is contained in our draft, Commissioner, both in terms of classifications and hours.

PN3355

THE COMMISSIONER: Well, let's go on to the poultry.

PN3356

MR DECARNE: Again with the poultry we're apart on our view of poultry. There's many awards covering the poultry industry. The data that the NFFs provided in table form, as glad as I am that there is some data on the incidence and coverage I think it's just that, it's the NFFs data again, and there is no process here of discovery, as you put it, Commissioner, there's no process of cross-examination, there's no process to review these statistics that were provided earlier on in the process but seemed to have come about at this stage.

PN3357

THE COMMISSIONER: Have you got a draft that partitions poultry within?

PN3358

MR DECARNE: Our draft has a poultry section within it.

PN3359

THE COMMISSIONER: Just bear with me.

PN3360

MR DECARNE: Now, we haven't unmelded our classification structure at this time given that - - -

PN3361

THE COMMISSIONER: Hang on, just give me a moment. So how does it appear here? Take me to the poultry provisions in your draft.

PN3362

MR DECARNE: At part, I think it's 8 or 9, Commissioner.

PN3363

THE COMMISSIONER: Page?

PN3364

MR DECARNE: Part 8 or 9. Sorry, part 7, it's at page 31. So at this stage we've only put out the application, hours of work and overtime provisions across the awards. There are also considerations and allowances. We haven't put it in the classification considerations, Commissioner, but in essence this is the main problem, the hours of work and overtime.

PN3365

THE COMMISSIONER: All right. What about hours of work otherwise?

PN3366

MS WARIN: Commissioner, can I put on the record just in terms of the poultry industry we'd simply seek that the Commission relies on those tables we produced as a consequence of the Request and discussions that occurred at the first hearing and such refer also to our submission as to poultry from paragraphs 31 through to 48 of our submission. I won't reiterate what's already in writing, thank you.

PN3367

THE COMMISSIONER: What about the other hours?

PN3368

MR DECARNE: The other hours, Commissioner - - -

PN3369

THE COMMISSIONER: What have you got for - so you're preserving the 152 over 28 with the exception of cotton because you're anticipating your position were to be gloriously upheld by the Full Bench, you would achieve a Cotton Industry Award of some sort.

PN3370

MR DECARNE: Or a apart.

PN3371

THE COMMISSIONER: Or a part.

PN3372

MR DECARNE: As a second position, yes.

PN3373

THE COMMISSIONER: Yes, you'd have it either as an award or a part and you'd have two parts, one covering pig breeding and raising and one covering poultry, and then you are content with the 152 over 28 for the rest of the award or not?

PN3374

MR DECARNE: Well, Commissioner, there are still those awards are listed where eight out of nine have a span of days, eight of the nine awards. The only award that doesn't have a span of days is the PIA. So there are those other considerations. They're all contained in that table.

PN3375

THE COMMISSIONER: Yes. Well, I guess that's why I'm - I know that, you've told me about that, I have looked at that.

PN3376

MR DECARNE: So our position would be that there needs to be some limitation on the working of employees in excess, and we've - - -

PN3377

THE COMMISSIONER: All right. So the issue between you is, the NFF has put, you know, a detailed submission about the history of those provisions, and you're now saying - and part of it, I don't know how much your consent is relevant these days actually, frankly, but I'm noting that they point out that you consented to the 152 over 28 for the 38 hour week. What do you say about that?

PN3378

MR DECARNE: When, historically?

PN3379

THE COMMISSIONER: Yes.

PN3380

MR DECARNE: Well, I wasn't involved in that personally, Commissioner.

PN3381

THE COMMISSIONER: Yes, I know. I wasn't referring to you, I was referring to the AWU.

PN3382

MR DECARNE: To the AWU, yes.

PN3383

THE COMMISSIONER: You've read their submission?

PN3384

MR DECARNE: I have read their submission.

PN3385

THE COMMISSIONER: Yes. And they say that the AWU consented - - -

PN3386

MR DECARNE: To the PIA.

PN3387

THE COMMISSIONER: Or proposed even the extension from the five and a half day week to the 152 over 28 as the offset for the 38 hour week.

PN3388

MR DECARNE: Perhaps they did, Commissioner, but that isn't the issue that I am concerned with. My issue relates to - - -

PN3389

THE COMMISSIONER: Well, I did say to you I don't know in the current context of the Request how relevant anybody's consent to anything is these days.

PN3390

MR DECARNE: No.

PN3391

THE COMMISSIONER: But maybe it is relevant, maybe it isn't. I don't need to make a call on that. But what's your call - you pointed out to me these differentials. This creates a decisional problem and that is, the Request requires no disadvantage to employees and no additional cost to employers. Now, obviously the government has enormous respect for the Commission’s abilities and have provided that Request, and we obviously have a remarkable 100 year history of industrial arbitration behind us, we can find a solution to that and get an outcome that looks like that. But you’re here today to tell me whether or not the 152 over 28 should stay as is for the rest of the award, and if it shouldn't I think you need to say what it has to be.

PN3392

MR DECARNE: Well, Commissioner, we would say 38 hours a week plus additional - - -

PN3393

THE COMMISSIONER: Overtime on Saturdays.

PN3394

MR DECARNE: Well, overtime on Saturdays and Sundays is probably not sustainable on analysis of the awards, but five over seven would be. Five over seven would be sustainable.

PN3395

THE COMMISSIONER: For the station hands?

PN3396

MR DECARNE: Yes.

PN3397

THE COMMISSIONER: That's who we're talking about isn't it?

PN3398

MR DECARNE: Station hands, and this is with shearing aside, Commissioner. We would also stress - - -

PN3399

THE COMMISSIONER: That would be the only change?

PN3400

MR DECARNE: No. We would also like a maximum daily hours to be attached to the award, a maximum daily hours that can be worked. And also there's detailed written submissions that we filed on our fall back position, being we need, in our most recent submissions, we would ask that the Commission draft a clause similar to many of the clauses that are in the exposure drafts to date that affects a 12 hour period where an employee has time to go home for health and safety considerations, be these employees travelling to work, if there's not a maximum daily limit there should be a maximum time before call back. But this is all detailed, all of this is detailed in our written submissions.

PN3401

THE COMMISSIONER: Do you want a spread of hours?

PN3402

MR DECARNE: The spread of hours is - - -

PN3403

THE COMMISSIONER: Are you seeking a spread of hours?

PN3404

MR DECARNE: Well, Commissioner, it's in two of the awards, two of the nine awards. So, I mean, it's not as sustainable, but a maximum daily hours is definitely sustainable on a closer analysis of the award coverage.

PN3405

THE COMMISSIONER: And when is overtime payable?

PN3406

MR DECARNE: Overtime outside of the ordinary hours so five hours span and after the maximum daily limit.

PN3407

THE COMMISSIONER: Five hours span?

PN3408

MR DECARNE: Sorry, five of seven days.

PN3409

THE COMMISSIONER: All right. So on the sixth day?

PN3410

MR DECARNE: On the sixth day overtime would be applicable.

PN3411

THE COMMISSIONER: And what about if there was a number of hours per day and they were exceeded?

PN3412

MR DECARNE: There would be overtime, otherwise there is no compelling feature to the maximum daily limit.

PN3413

THE COMMISSIONER: All right. So that if the - I don't want you to get excited about this, any of you. Just to understand your position, if a 12 hour day for instance was the maximum day, the number of daily hours, and with no spread of hours, 60 hours could be worked before overtime is payable?

PN3414

MR DECARNE: We would see 38 hours as being the average.

PN3415

THE COMMISSIONER: You see, you have to engage with this a little bit. You see, if you're saying it works on the principle that overtime is payable on the sixth day, if you want the five over seven, and if it were a 12 hour day and overtime is only payable outside the 12 then in those circumstances you'd have a week with 60 hours worked without overtime.

PN3416

MR DECARNE: You could.

PN3417

THE COMMISSIONER: They would be 60 ordinary hours of the 152.

PN3418

MR DECARNE: We've definitely retreated from our six to six Monday to Friday spread, Commissioner.

PN3419

THE COMMISSIONER: So if it was a 10 hour day - well, it doesn't really matter whether you've retreated or not, you know, we're outside of that sort of, you know, facilitating compromise model here, you know, this isn't an industrial dispute to be settled by compromise. We're doing something different. So there's no sort of concessional type of bargaining going on here.

PN3420

MR DECARNE: No. If I could put it more clearly, Commissioner, that the closest we could get to compelling overtime that's payable and not stressing workers to a point where health and safety considerations become very real and prevalent then that would be the AWUs position as close as possible as we could get to compelling this overtime to kick in at some point. Now, the Commission, it's a minimal task for the Commission to draft it in such a way but there are, you know, there are alternatives to that. Every 12 days there's two days off consecutively or there's many alternatives to the ordinary hours provision.

PN3421

However we just rely on those other awards to make the point that there are awards within this industry where people are working overtime and being paid for it. But the PIA predominance is one argument but it's not the only argument, and there is going to be a lot of disadvantage otherwise. And the health and safety considerations - - -

PN3422

THE COMMISSIONER: A lot of disadvantage.

PN3423

MR DECARNE: A lot of disadvantage to those employees who are currently earning overtime outside of ordinary hours.

PN3424

THE COMMISSIONER: Well, who are they going to be given all the parsing out that's been going on up to this point of the discussion?

PN3425

MR DECARNE: Well, they're under the Northern Territory Cattle Award, they're under the Dairy Industry Employees State Award, they're under - - -

PN3426

THE COMMISSIONER: All right. Well, this - - -

PN3427

MR DECARNE: Yes. The Feed 2006 Farming and Fruit Growing Award Tasmania, the Pastoral Employees State and Station Hand in New South Wales, the Farm Employees Award - no, the Station Hands Award state 2003 in Queensland, and the Pastoral Industry South Australia. There are limits there, Commissioner, within these awards, and that table that we provided the Commission details all of those and when overtime is applicable. Now, we understand the LHMU, the award which is relevant to their coverage currently is the Northern Territory Cattle Industry Award, and we've had conversations with them and they support our submissions regarding hours of work and span of hours.

PN3428

THE COMMISSIONER: You would concede that on the other hand if your proposals were in any way successful it could impose, depending on the pattern of work adopted by employers, additional costs upon employers.

PN3429

MR DECARNE: It could, Commissioner. But I heard my friend from the NFF say in the other pre drafting consultation that no one ever does work over 70 hours, no one would ever do that. If no one would do that then it doesn't hurt anyone in the industry to put these conditions in. If no one will do it then let's just make sure of that. And, Commissioner, we did also make submissions regarding the NES and - - -

PN3430

THE COMMISSIONER: Well, tell me about that.

PN3431

MR DECARNE: Well, Commissioner, it was in response to the point you made on 38 hours a week and reasonable additional allowance in the last consultation. But we go into quite a lot of detail in our written submissions on our position. We've regarded health and safety and welfare in the current exposure drafts and the clauses on maximum hours of leave, time between shifts. A lot of it's contained in our written submissions which I won't repeat here.

PN3432

THE COMMISSIONER: I'll hear from the NFF now.

PN3433

MS WARIN: Thank you, Commissioner. The NFF would submit that this is simply an ambit claim of the AWU. And I note that Mr Decarne refers to we would like. Well, we'd all like a lot of things, but we currently have a significant award that covers the vast majority of the industry with a very flexible provision that is exactly a reflection of the provisions of 576(a)(ii) that talks about things such as promote flexible modern work practices. And what the AWU is proposing is actually totally the opposite to that provision of the Act that we have to be mindful of in our pursuit of award modernisation. We have a significantly flexible award that they are trying to restrict. Their proposal disregards the NES, and the NFF notes that the NES - - -

PN3434

THE COMMISSIONER: What do you mean by that?

PN3435

MS WARIN: Commissioner, the NES, if you look at the Fair Work Bill, and I'm sorry, I forgot to bring it with me, but the NES in terms of reasonable additional hours specifies that an award that is a 38 hour week, an award can have averaging provisions. The example provided in the Bill specifically refers to the capacity of an award to provide 152 hours over a four week period and specifies how you then utilise that provision in terms of determining whether or not hours worked per week are reasonable. So the NFF would submit that the exact situation that the AWU has raised concern with to justify their restrictions to oppose the award is already dealt with by the provisions of the NES.

PN3436

THE COMMISSIONER: Well, I'm just wondering whether it does, and I want to talk to you about that.

PN3437

MS WARIN: I do apologise.

PN3438

THE COMMISSIONER: You see, I just wondered whether the discussion might be a little bit misdirected, with all due respect. The statutory provisions simply concern themselves with the maximum number of hours, not what is paid for them.

PN3439

MS WARIN: That is correct. But Mr Decarne's arguments are based on concerns as to safety and family obligations of the employees, if I heard him correctly earlier. And we say that's irrelevant to this discussion because it's covered under the NES.

PN3440

THE COMMISSIONER: Well, that may be.

PN3441

MS WARIN: This is about payment.

PN3442

THE COMMISSIONER: But the disadvantage argument is still alive and that's about the employees who are currently being paid differently for certain hours of work depending on the provisions of instruments other than the PIA.

PN3443

MS WARIN: And we would say that there is minimal number of those and we acknowledge that there will be disadvantages and we have - there is specifically New South Wales. I would call them outliers in terms of their conditions in comparison to the remaining agricultural awards and NAPSAs in other states and should accordingly be provided the exact situation in which those New South Wales NAPSAs they are. They are outliers with very different, very restrictive conditions, they are awards that have predominantly not been varied for a significant period of time simply because the industry has been more covered by federal provisions.

PN3444

The New South Wales Farmers as a respondent to the federal award has focused on a federal award and as such they can be nearly termed as antiquated simply because the parties to those awards have not been that interested because the focus has been on a federal system.

PN3445

THE COMMISSIONER: Could I just take you to the NES because I think it's rather important and I suspect when the Bench is considering it they'll be looking closely at the statutory requirements and working their way through it in the sort of systematic sort of way in which one would have to do so for a decision. What do you say about 4(d)?

PN3446

MS WARIN: Sorry, which provision of the Bill is that?

PN3447

THE COMMISSIONER: Maximum weekly hours.

PN3448

MS WARIN: I've just got it in the Bill so it might be a bit different from - - -

PN3449

THE COMMISSIONER: What it says is this:

PN3450

In determining whether additional hours are reasonable or unreasonable for the purpose of subsections 2 and 3 the following must be considered. Whether the employee is entitled to receive overtime payments, penalty rates or other compensation or a level of remuneration that reflects an expectation of working additional hours.

PN3451

MS WARIN: And, Commissioner, we say that under the existing arrangement that we are proposing is maintained there is the capacity for overtime to be paid once that averaging provision has been exceeded and that - - -

PN3452

THE COMMISSIONER: Sorry, you're obviously drawing on the Bill and, look, unfortunately I didn't bring a copy of the Bill with me.

PN3453

MS WARIN: That's all right, I now know where you are. It's clause 62(3)(d) of the Bill.

PN3454

THE COMMISSIONER: Something you said raises the question of this averaging provision.

PN3455

MS WARIN: Sorry, it is actually - I've just looked at the Bill now. It must be in the memorandum of understanding, that example of 152.

PN3456

THE COMMISSIONER: The explanatory memorandum?

PN3457

MS WARIN: The explanatory memorandum of the Bill does refer to the 152 over four week period averaging provision and how then the NES would relate to an award provision of that nature.

PN3458

THE COMMISSIONER: Have you got the explanatory memorandum with you?

PN3459

MS WARIN: No, I don't, I apologise. But I'm happy to make a reference. I'll send an email.

PN3460

THE COMMISSIONER: It's all right, no, we'll find it.

PN3461

MS WARIN: But it's in the part of the explanatory memorandum.

PN3462

THE COMMISSIONER: What does it actually say?

PN3463

MS WARIN: It gives the example of how the averaging provision of the NES would work and that you could have an award that states you can have an hours of work provision that says 152 over four week period, and that the issue as to whether or not the hours on a per week basis had been unreasonable or reasonable as the case may be, you would consider that the 38 hour week coupled with the averaging provision and how it worked coupled with all those other conditions that you've just referred to including the three - - -

PN3464

THE COMMISSIONER: All right, so you would actually take the overtime and penalty rates?

PN3465

MS WARIN: That's right. So for example if there isn't - - -

PN3466

THE COMMISSIONER: So it might be reasonable to work 70 hours in a week for instance if you were receiving ordinary time, penalties or overtime or something else in compensation for working 70 hours?

PN3467

MS WARIN: That's right, Commissioner. And likewise - - -

PN3468

THE COMMISSIONER: But you can work 70 hours under the PIA at the moment without any of that can't you?

PN3469

MS WARIN: That's correct. But obviously if you do so the question then would arise under the current reasonable hours provision whether that would be unreasonable despite the additional payment, yes, you would still determine whether it's unreasonable. And interestingly when you compare the current standard to the proposed new NES there are additional criteria such as the usual patterns of work in the industry is currently provided in this Bill as opposed to the existing standards where usual practice of the industry is actually not included. And again it's I think a reflection of some of the discussions that have occurred where in agricultural, for example, we have put submissions where a cow needs to be milked regardless of what day of the week it is, crops need to be harvested when they are at their premium regardless of what day of the week it is.

PN3470

THE COMMISSIONER: Well, there are two issues there. I don't think there's any issue here that that work needs to be done and that the award needs to ensure that if it's required that it is done, I don't think there's any proposition that people can say no, thank you, I'm not working on Sunday. I think even the AWUs draft has got a reasonable overtime provision in it. So the issue is not so much whether this work can be done under the award and the employer should have the right to direct that it be done seven days a week. The question is what, having regard to 4(d), what is a reasonable number of hours over and above 38 without compensation.

PN3471

MS WARIN: And the question therefore comes back to the issue of what are the practical implications that the AWU are proposing in changing - - -

PN3472

THE COMMISSIONER: Well, that would impose additional costs on employers.

PN3473

MS WARIN: They are additional costs and they are significantly additional costs. We have costed that if you utilise for example the New South Wales hours of work clause with working a 50 hour week for a station hand grade 3 it would be $150 extra per week.

PN3474

THE COMMISSIONER: So what are their provisions again?

PN3475

MS WARIN: Their provisions are - I'll have to check. So the five Monday to Friday, and then over to penalty rates on Saturdays and Sundays.

PN3476

THE COMMISSIONER: With a span of hours? Did you use the span of hours for the purpose of the calculation?

PN3477

MS WARIN: Yes, it's been a while since I did that calculation. It was in the issue of dealing with unincorporated entities in the transitional - - -

PN3478

THE COMMISSIONER: But presumably if there's a span of hours there you'd have to take into account the fact that you might need to do some early morning work.

PN3479

MS WARIN: That's right. We took into account the span of hours, the weekend, there would likely to be work on a Saturday and a Sunday morning, so all day Saturday or a half day Saturday, and I think we averaged either 50 or 55 hour working week, and that came to for a minimum hourly rate to be around about $150. But I'm happy to provide - - -

PN3480

THE COMMISSIONER: The minimum hourly rate? No.

PN3481

MS WARIN: Sorry, minimum weekly increase of 150. But I'm happy to provide a copy of the submission that we - this was actually a submission, Commissioner, that we put to the Senate inquiry into WorkChoices.

PN3482

THE COMMISSIONER: So that would be overtime on Saturdays and Sundays?

PN3483

MS WARIN: That's correct.

PN3484

MR DECARNE: Commissioner, I'll just correct my friend here. It's actually Monday to Saturday where essential for the good husbandry of stock. There's still an averaging of four weeks for 160 hours in that award, and it's different for station hands and cooks. Now, part time - - -

PN3485

THE COMMISSIONER: Look, we don't need to go into this excruciatingly.

PN3486

MR DECARNE: But there is no maximum hours on that. There is no maximum hours, I'll just correct that.

PN3487

THE COMMISSIONER: But, you know, I think all of us in this room can get a bit of an impression about what cost increases would - from our experience we know that, you know, there are amounts that you can pretty roughly calculate will be the additional cost if you move from scenario A to scenario B. There will be an additional number of paid hours.

PN3488

MR DECARNE: Well, the only difference in that award - - -

PN3489

THE COMMISSIONER: If you, you know, go from a Monday to Friday scenario - I'm sorry, from a seven days a week, 152 over 28, to a Monday to Friday with overtime on the weekend and a span of hours of six to six you're going to incur about a 30 or 40 per cent - - -

PN3490

MR DECARNE: Definitely, Commissioner. But the award to which my friend's referring is a Monday to Friday and otherwise it's the same - - -

PN3491

THE COMMISSIONER: I know that, but that's not the point.

PN3492

MR DECARNE: But, Commissioner, our - - -

PN3493

THE COMMISSIONER: What we're talking about is disadvantage and cost. And what Mr Warin is pointing out is the scope of the cost issues.

PN3494

MR DECARNE: I just wouldn't want the Commission to be misinformed on the actual content of that award.

PN3495

THE COMMISSIONER: No, I understand that and appreciate that, but if you take a farm working out on the PIA at the moment and you go to Monday to Friday with overtime on the weekends and spread of hours of six to six you'll probably add 30 to 40 per cent. I don't claim that that is precisely the number.

PN3496

MS WARIN: And, Commissioner, we are not in a situation in which the AWU are proposing any productivity offsets on this. We're certainly not going to be getting any - - -

PN3497

THE COMMISSIONER: I don't think they're in the Act.

PN3498

MS WARIN: We're not going to get any increase for our milk or our crops by us all of a sudden having to pay an exorbitant increase in salary. Now, the AWU have said their proposal is sustainable. Well, there's no evidence to show that it's sustainable. There's no evidence from the AWU, and we have produced extensive material in submission 2 and 3 as to the extensive coverage of this award, and the AWU is simply focusing on small - - -

PN3499

THE COMMISSIONER: What we're really talking about here is the additional cost of these scenarios.

PN3500

MS WARIN: And there's a small reliance on a small percentage of people in comparison to the disadvantage it would otherwise create for a significant and large component of the industry that's been covered by this award for a significant period of time.

PN3501

THE COMMISSIONER: Yes, I understand. But we do have to take this into account in the context of the NES. That's where we started the conversation, was about the fact the Bench is going to have to look at the NES and look at these hours and make some judgments about that. And one of the things that we've noticed is there are two dimensions. One is the advantage/disadvantage equation which you address, the other dimension and possibly a more significant dimension, I don't know, is the statutory maximum weekly hours provisions which will be law.

PN3502

MS WARIN: Commissioner, we propose that putting the cost issue to one side, which is obviously the most significant issue for us, the NES addresses the capacity for the existing clause to be utilised in conjunction with the NES as the safety net in terms of how hours are worked in that averaging provision that exists both now in terms of the existing standard and how it would work in the future in terms of the interrelationship between the averaging provision of the award and the reasonable additional hours provision of the NES as it does now. And so we say that in terms of the NES and in terms of the cost implication the resounding submission that should be accepted is to the NFF rather than the ambit claim of the union as a wage increase.

PN3503

THE COMMISSIONER: Well, the Bench may not necessarily be convinced of anything in particular that's been said here today and may well, you know, have a view of its own, because this is not an adversarial proceeding as such, this is a consultation obviously. Can I just take you to the note, to the averaging hours of work provision? Now, we may not be looking at the same thing, but the note that I'm reading says:

PN3504

Hours in excess of the hours referred to in paragraph 6(a) or (b), which are the averaging provisions, that are worked in a week in accordance with averaging provisions in a modern award will be treated as additional hours for the purposes of this section, but the averaging provisions will be relevant in determining whether the additional hours are reasonable, paragraph 4(i).

PN3505

Is there such a thing as paragraph 4(i)?

PN3506

MS WARIN: It's 62(3)(i) in the Bill which talks about - which is the averaging provisions of what you need to take into account as to whether or not additional hours are reasonable. So how that works, and again I do apologise I didn't bring the explanatory memorandum with me, but how that works is that if the award provides for an averaging then it's acknowledged that by virtue of that averaging there are highly likely going to be additional hours beyond 38 that are deemed reasonable additional hours because of the virtue of that clause exists in the first instance. So that's your starting point. But you've then got to take into account (a) through (h) of - - -

PN3507

THE COMMISSIONER: What are you referring to?

PN3508

MS WARIN: Sorry, I'm referring to determining whether additional hours are reasonable. So in the Bill - - -

PN3509

THE COMMISSIONER: Let me just show you what the National Employment Standards - you've got this document?

PN3510

MS WARIN: I've got the bill that contains the NES. It's just there's different references.

PN3511

THE COMMISSIONER: All right. Maybe if you have a look at the NES as published by the Australian Government, which is what I'm using.

PN3512

MS WARIN: Sorry, Commissioner, so there's consistency I'll stop referring to the Bill that contains the NES. I'm referring, Commissioner - - -

PN3513

THE COMMISSIONER: If you have a look at page 11 and if you have a look at subsection (6) and the note. Now, my difficulty is it seems there might be an error. I thought you might know - if I am reading this correctly or not - because it refers in the note to paragraph 4(i), and I'm assuming that this is all part of section 12.

PN3514

MS WARIN: It's referring to 4(i) which is one of the components of what is reasonable. So 4(i) is whether the additional hours are in accordance with the averaging provisions included in a modern award. So getting back to the submission - - -

PN3515

THE COMMISSIONER: No, I understand, sorry, yes.

PN3516

MS WARIN: So what we would say is that if for example someone worked a 50 hour week you would, and in accordance with provision 6 of the NES, you would say, well, there's an averaging provision in existence in the award so by virtue of that then it's an awareness that there would likely to be additional hours beyond 38. But then you also have to take into account the remainder of those criteria.

PN3517

THE COMMISSIONER: What you have to do is take into account the award provisions, that's what it means.

PN3518

MS WARIN: That's right. And we say the award provision that we are proposing, the existing award provision, is that it provides for 152 over four weeks. And unfortunately what I don't have in front of me is that exact type of clause. It utilises an example within the explanatory memorandum of the Bill.

PN3519

THE COMMISSIONER: All right. Look, probably your interests are best served not by reinforcing the submissions that you've filed about, you know, the strength of your argument for the retention of the 152 over 28 without any variation. It might be better if you actually looked at the possibility that there might be some discussion of whether or not having regard to 4(d), that provision is an appropriate one for reproduction at the 152 over 28 in its current form, or whether or not for instance a maximum number of hours per day might be considered.

PN3520

MS WARIN: Well, that, Commissioner, I guess is an issue that we need to take into account, that if we don't have penalty rates for weekends or overtime beyond 38 that that criteria is going to be given more weight to what is reasonable or not, and that is something that we need to consider because if they were paid for it, then more hours might be deemed reasonable where, if we don't have those penalty rates or overtime provisions, then more hours would be deemed perhaps less reasonable and that's an issue that we have to take into consideration as to whether or not our members would be penalized as to what is reasonable additional hours or not because of the lack of payment.

PN3521

We have considered that and said, no, we want to maintain that flexibility.

PN3522

THE COMMISSIONER: No, I do understand that. That's your current position, but I guess, you know, and as I say I don't want anybody to get excited about it, but when I think about it from the point of view of, all right, what you're dealing with when you're in a situation like this, whether it be in a consultation or in an adversarial scenario is you're managing risk. You know, the decisional risk is that the view might be taken that, maybe there should be a maximum number of hours per day because at the present time there's none, it could be any number, it could be 18 hours a day, and the regulatory instrument is not concerned with it. It could be 18 hours a day without any additional compensation such as in paragraph 4.

PN3523

Or it might be 70 hours in a week without any overtime penalty, whatever. Obviously Monday to Friday, 6 to 6, overtime on the weekend is, you describe as an extreme ambit claim. So because there's infinite possibilities within the range of the current arrangements is another outcome. I mean, it might be 12 hours a day and it might be simply 12 hours a day with no spread, or it might be a spread of hours with no maximum number in between or it could be a combination of a spread of hours with a maximum number and it may be a provision for ordinary time penalty rates over a certain number of hours.

PN3524

MS WARIN: Commissioner, we would, in response to that, simply say our position that we will not change is that any move in the direction you were heading is inconsistent with the provisions of the Act and the Ministerial request and we believe that the current arrangement should stay and that the NES should be seen as the way in which those issues you have raised is dealt with in the workplace.

PN3525

THE COMMISSIONER: Well, that's exactly what I'm suggesting to you. Your interpretation may not find favour with the Full Bench. Your interpretation may be considered to not accommodate the idea of the NES in relation to maximum hours.

PN3526

MS WARIN: Well, we believe that our position is exactly reflective of the type of arrangement upon which the NES considered, and the NES is talking about - - -

PN3527

THE COMMISSIONER: Yes, I understand what you say. But what - - -

PN3528

MS WARIN: The NES is considering the issues about whether or not additional hours are reasonable, not about the payment in the award.

PN3529

THE COMMISSIONER: Well, you see, I think that's where there might be a little bit of difference between what you're saying and what's in the NES, with all due respect. That's why I drew your attention to paragraph 4.

PN3530

MS WARIN: I appreciate that, Commissioner, but I guess what I would like to reiterate is that our position that we are currently maintaining is that we acknowledge that if you take our position then we may well be penalized by a regulator in when they assess the criteria including that provision because there wouldn't be any overtime or penalty rates as such in considering what has been worked that week and we acknowledge that, but we still maintain our position on the award clause.

PN3531

THE COMMISSIONER: Yes, I understand that. I guess what I was trying to do was to give you an opportunity to explain to me how things actually work in the industry. You're suggesting people don't work 70 hours a week. You're probably suggesting they don't work 18 hours a day. You're probably suggesting that they don't start at 2 o'clock in the morning and finish at 11 o'clock at night. Some information about, you know, your perception of, you know, when work's mostly performed, how it's mostly performed might be useful information.

PN3532

MS WARIN: Commissioner, certainly it would be consistent to say that, you know, an average week could be around 50 to 60 hours. You may well have weeks where it's 70 or 80 during peak harvest periods. What we are saying is that we currently don't have those minima or maxima in the award and we should be - - -

PN3533

THE COMMISSIONER: I know what you're saying.

PN3534

MS WARIN: And we shouldn't be forced to justify why that exists. Rather, it is the capacity of the AWU to argue why there should be a change to the vast majority of workers given the jurisdiction that we need to consider this in terms of model flexible practice.

PN3535

THE COMMISSIONER: It isn't an adversarial proceeding. I think something that you need to keep in mind is this is a consultation for the purposes of reporting to the Full Bench and I'm gathering information. One of the questions that I think though they could reasonably me ask is, what information do you have about how hours are actually worked in the industry and what I will have to say to them is, well, not much.

PN3536

MR HOULIHAN: Commissioner, can I sort of rear up on my hind legs and make a submission on behalf of the Pastoralists and Graziers from Western Australia and also in some of the cattle companies in the Northern Territory about this. Commissioner, there are a number of factors that limit the hours of work, other than the universal obligation of Occupational Health & Safety and all the rest of it. A great deal of work can only be done in daylight hours. I mean, you simply can't muster cattle or sheep, you know, in the dark. It just doesn't function. For argument's sake, you can't harvest most crops until, you know, probably 10 or 11 o'clock in the day because there's two high an ambient moisture level in the air and consequently in the grains and so on.

PN3537

So there's a whole raft of naturally occurring limitations on these hours. Commissioner, the really fundamental thing that agriculture has to come out of this process with, and it doesn't matter much about an awful lot of the things that get talked about here. The fundamental thing is that agriculture must be able to change and do different things and do the same things differently because that's the only way we've stayed in business for as long as we have and it's the reason that my friend, Mrs Warin, you know, gets a tad narky about the hours of work is - - -

PN3538

THE COMMISSIONER: I didn't notice.

PN3539

MR HOULIHAN: No, well, I felt I should tell you this, because I was aware of that, but the point is we see the capacity to work those, to have those hours, to have what is a very open hours arrangement, no question of that, you know, we can't sort of hide from that, we've got a tremendous hours regime in this award, but why it's so fundamental is it allows this industry to continue to change within that. Now, as I say, there are bounds and limitations. I mean, if you're a dairy farmer, you're going to milk your cows twice a day, but you're not going to milk them more than 12 hours apart, you know. You're not going to milk them, you know, at 10 o'clock in the day and 2 o'clock in the afternoon and let them go.

PN3540

You're going to milk them at 6 o'clock in the morning and 6 o'clock at night. That's what nature demands and so much of what we have to do in these industries is respond to those absolutely naturally occurring factors, whether via animals or via plants or seasons or what-have-you that we need to have the sort of flexibilities that are there. I will just say this about how those flexibilities got there. I mean, they were bought and paid for. Now, it's fine to say whether that's got any status in these proceedings, but the facts are they were bought and paid for and the deals were done between the farmers and the AWU on the 38 hour week, on those arrangements that brought those hours in, and I appreciate that it's not the union that's making this decision or forcing this issue, and I understand it's a different process, Commissioner, but I just put to you that the people who are active in these affairs in agriculture know full well that those provisions were paid for and they're there because they were paid for.

PN3541

THE COMMISSIONER: What I'm hearing you say is that essentially the span of hours during a day is it unlikely to exceed 12?

PN3542

MR HOULIHAN: Look, Commissioner, that's a very probable and very reasonable surmise that you make. Can I say this to you, I mean, you would think you'd go out and grab it and say, you know, 12 hours, beauty, and that will satisfy - - -

PN3543

THE COMMISSIONER: Well, there probably are exceptions to that and I wasn't actually - - -

PN3544

MR HOULIHAN: No, I appreciate that, Commissioner, but I hesitate because I go back to sort of the principle issue about it, and that is what we're anxious to avoid at all costs are limitations on how the industry can respond to the whole raft of changing issues and environments and factors that - - -

PN3545

THE COMMISSIONER: Yes. I'd like to ask you some other questions about this too, but let's just assume that hours beyond some maximum on any day or any number of days in the week could be worked by agreement.

PN3546

MR HOULIHAN: Well, again, Commissioner, that's hugely attractive except that it still puts impositions or limitations in this field and that's - - -

PN3547

THE COMMISSIONER: All right. Well, we don't know precisely what they are but what do you say to Mr Decarne's proposition there would be some sort of minimum break time?

PN3548

MR HOULIHAN: Look, again, I don't have a problem with that and I think it comes back to the philosophy of the issue of what we're trying to defend, of, you know, having as much wriggle room as we possibly can and look, Commissioner, I know of instances where people have worked very long hours and - - -

PN3549

THE COMMISSIONER: Well, he's suggesting a break of 12 hours, but it's not uncommon in the industry for the break to be 10, isn't it?

PN3550

MR HOULIHAN: That's right.

PN3551

MR DECARNE: There are some industries of that nature, Commissioner, and there are some in the exposure drafts already that attend a predominance - - -

PN3552

THE COMMISSIONER: Let's assume it was 10, just for the sake of discussion. How does that affect - how would that affect the award?

PN3553

MR DECARNE: You're working 14 hours - - -

PN3554

THE COMMISSIONER: Yes, no, sorry, I'm asking Mr Houlihan.

PN3555

MR HOULIHAN: Commissioner, you see this becomes the issue. You see, if you were working someone 14 hours, if you're working someone 14 hours, the only reason you're working someone 14 hours is because there's some sort of crisis happened, okay? And the fact that your first response is to ask someone to work 14 hours. If the crisis is ongoing the facts are you're probably going to want him there well before the 10 hours go past. This is the problem we have. I mean, 10 hour break is a reasonable proposal. You know, it's very hard to argue against it other than in the sort of philosophical thrust of what we say. We need to be able to move - - -

PN3556

THE COMMISSIONER: You see, I would have thought that the scenario that you've just outlined, the 10 hour break, it's all about when the person comes back, isn't it?

PN3557

MR HOULIHAN: Yes.

PN3558

THE COMMISSIONER: It's not about how long they work for.

PN3559

MR HOULIHAN: No, but what I'm putting to you, Commissioner, is if the situation requires that I want my employee to work 14 hours - - -

PN3560

THE COMMISSIONER: 20 hours.

PN3561

MR HOULIHAN: 20 hours, well, you see, again you can't really work people 20 hours. I mean, you know, it's as simple as that. But I think - - -

PN3562

THE COMMISSIONER: I think you might be getting a bit emotional about this.

PN3563

MR HOULIHAN: Yes.

PN3564

THE COMMISSIONER: This is a rational discussion. It's for the purpose of elucidating the point that you're making which I think is actually, with all due respect, misconceived. A 10 hour break is not a prohibition on how long someone can work for. A 10 hour break is how long they have off work after they've finished that and when they come back to work and you're putting to me that if you put a 10 hour break in, you may be prevented - I mean, somebody might need to work 20 hours.

PN3565

MR HOULIHAN: Yes.

PN3566

THE COMMISSIONER: I have worked 20 hours myself.

PN3567

MR HOULIHAN: Yes.

PN3568

THE COMMISSIONER: And a 10 hour break is not about whether you work the 20 hours, if that's what's required. I'm sure you've done it too.

PN3569

MR HOULIHAN: Yes.

PN3570

THE COMMISSIONER: It's a question of how long you have off after you've done it.

PN3571

MR HOULIHAN: That's right, yes, but, Commissioner, what I'm putting to you is in most of the circumstances that we are talking about here, we're not talking about an industrial situation where there are 20 or 30 or even five or six employees. There's probably one or two employees and what I'm saying to you is if the circumstance is such that someone has got to work a hell of a long time today because of the circumstances, those circumstances might be quite disastrous if you've then got to leave them for 10 hours.

PN3572

THE COMMISSIONER: That means you just keep on going up to a point, but there is a point at which other arrangements have to made, obviously.

PN3573

MR HOULIHAN: Absolutely, Commissioner, absolutely.

PN3574

MS WARIN: And, Commissioner, that's where the NES comes into effect. The NES is very, very explicit as to the criteria upon which you work an individual and as such is the safety net as to the hours of work someone makes and it's quite - - -

PN3575

THE COMMISSIONER: I think we've got some jurisdiction, though, haven't we, in addition?

PN3576

MS WARIN: And the issue as to the jurisdiction of the Commission is whether or not there is justification for adding the regulatory burden on employers with an existing provision that provides flexibility that is worked well, that where there has been no evidence of - - -

PN3577

THE COMMISSIONER: I think you're just telling me things that we already know. I'm trying to inquire in to the actual scenarios that we're talking about. I mean, Mr Houlihan was talking about the 10 hour break from the perspective of somebody being required to work for a long period of time and I gave a fairly extreme example, someone in an emergency might be required to work for 20 hours and I don't doubt that it's happened and people have willingly done so because there's been an emergency. The issue of a 10 hour break is not that. It is simply when they come back to work.

PN3578

MS WARIN: And more importantly what it also infers is additional costs if you don't comply with those provisions because by virtue of providing a spread of hours or a break between work there is always attached to that a penalty if that spread is not attached.

PN3579

THE COMMISSIONER: I appreciate that, Ms Warin.

PN3580

MS WARIN: And as such brings in costs. So what our argument is that, Commissioner, if the Full Bench were mindful to bring in things such as a spread of hours but no penalty attached to it, well, maybe the NFF would be supportive of that, but the bringing of a spread of hours and a break - - -

PN3581

THE COMMISSIONER: But that's not such a great idea because what you're flirting with there now is the idea of award breaches which, if there's a spread of hours and you don't comply with it, you're in breach of the award.

PN3582

MS WARIN: Commissioner, the - - -

PN3583

THE COMMISSIONER: One of the reasons why you have penalty and overtime rates is exactly that, so it prevents a breach - if you just put the spread of hours in an award and an employer can't comply, they're in breach of the award.

PN3584

MS WARIN: But, Commissioner, the NES is there and if you breach the NES in consideration of that criteria, including the fact that you're not getting overtime in penalty rates then you - - -

PN3585

THE COMMISSIONER: Yes, but you see in this case - - -

PN3586

MS WARIN: Then you'll be breaching the Act.

PN3587

THE COMMISSIONER: In this case, with all due respect, you see that's what you quite correctly pointed me to, it's not little "1", it's "i". That's what we're talking about. The averaging provisions of the award are relevant to the termination of the reasonableness of the additional hours.

PN3588

MS WARIN: That's correct and - - -

PN3589

THE COMMISSIONER: That's right, and what we are talking about here is the averaging provisions of the award.

PN3590

MS WARIN: We have conceded that by virtue of the fact that we have averaging provisions, coupled with limited overtime penalty rates may well penalize us in determining whether or not working a long week within that averaging provision was reasonable or not and therefore whether you have breached the Act.

PN3591

THE COMMISSIONER: No, I understand.

PN3592

MS WARIN: As opposed to imposing a burden in the award to meet exactly the same objectives.

PN3593

THE COMMISSIONER: I understand what you're saying. You're really repeating what you've said previously.

PN3594

MS WARIN: I'm sorry that I'm repeating myself, but this is a significant issue for us.

PN3595

THE COMMISSIONER: But I can assure you, I do understand what you're saying. Surely the repetition is to check for understanding and I do understand precisely.

PN3596

MS WARIN: Maybe before I lose it, I refer to Mr Rice who is long term experienced in the industry first hand who may wish to provide some industry examples.

PN3597

MR DECARNE: Commissioner, there's quite a - - -

PN3598

THE COMMISSIONER: I gather you want to catch a plane, Ms Warin.

PN3599

MS WARIN: I do, Commissioner, but this is more important. I mean, while I've got child care issues of a three month old sitting at home in Canberra, the reason why I'm here is because of the importance of this matter.

PN3600

THE COMMISSIONER: Yes, well, what I'm suggesting is maybe if we work through the issues rather than bogging down on this particular point, yes.

PN3601

MR DECARNE: Commissioner, the wait of the discussions has definitely been on this side of the room because of the way that the constituents in the room over that side as well, but I'd just like to make a few quick points in relation to what Ms Warin said. She said that the health and safety and welfare, the needs of balanced workplace safety and the needs of the low paid aren't at issue here. But I just refer to 576B of the Act which says:

PN3602

What the Commission must refer to in - - -

PN3603

THE COMMISSIONER: The Act? Which Act?

PN3604

MR DECARNE: The Act, or the Bill. No, hold on, that's the Act.

PN3605

MS WARIN: The current Act.

PN3606

MR DECARNE: That's the current Act that's already gone to a transitional bill. So that these are things that the Commission must refer to. They're compelled to refer to them legislatively. These aren't things to be pushed aside. These aren't things to be pushed aside and I'm not sure if that was made clear by the NFF in their submissions. These are three of the major considerations for the Bench. There was nothing that was said either by my friend, Mr Houlihan, that described the industry in such a way where a maximum daily hours in these critical times could - there was no argument against the maximum daily hours at the critical time in his description of the industry is my point, Commissioner. There wasn't.

PN3607

There was no venture of the way he described the industry which compelled the Commission not to put in a maximum daily hours, or alternatively, a minimum leave time between shifts.

PN3608

THE COMMISSIONER: All right. Just for the sake of my notes, which part of part 10A were you referring to?

PN3609

MR DECARNE: 576B(2), "The Commission must have regard to certain functions. (c) The needs of the low paid. (f) The need to assist employees to balance their work and family responsibilities effectively and improve retention of participation of employees in the workforce. (g) Safety, health and welfare of employees." Now, a lot of the discussion we've heard and it sort of refers to this award only, there is maximum hours off duty within some of the awards that are in the Commission's list that will be covered by the Pastoral Industry Award. We can't just talk about the Modern Pastoral Industry Award as only referring back to the PIA and that's why we've provided the Commission with the table.

PN3610

We can't end up just looking at this as between what we have in the PIA now and what we could have in the modern award. There are other awards to consider. So I just don't want the conversation to just only focus on the PIA in this consultation, Commissioner. But those are three things that the Commission must have regard to. So we don't want to mis-characterise that.

PN3611

THE COMMISSIONER: Look, where we were up to, what I was attempting to do was to give the NFF an opportunity to try and outline whether or not there was any factual information which could be brought to bear which related to your claims, other than the obvious aspect which is that all of your claims would likely add some element of cost to the operations of the proprietors who are covered by the award and we know that and we know that that is a relevant consideration, just as these other considerations are relevant, and a little bit further down the line I was trying to elucidate where the impacts are. That's why I was inquiring after such a thing as, you know, the spread of hours, the 10 hour break, the matters that you have put in issue.

PN3612

My own perception is that the ability to work on seven days of the week is very important. Certainly to have a large spread of hours within the scope of the award is necessary. It's not hard to imagine work starting at 5 o'clock in the morning under this award. One would have thought that that is often the case and it's not difficult to understand that harvesting during the summer would see work being carried on until dark and in some cases after dark with lights on. So some of those facts are self evident and they're notorious and you only have to be experienced driving through rural areas of Australia to understand all those things.

PN3613

But there is a range of impacts, depending upon any change that might be considered. The impacts would vary. Any change, for instance, that imposed additional costs associated with the rate of pay for working on weekends is likely to be of a higher impact than a long spread of hours, for instance. So my intention was really just to gather as much information as I possibly could from the knowledge of the parties at the bar table about where the impacts of any change in the arrangements would likely fall, most acutely. So what we're really talking about is the hours of work and I think we've probably exhausted the discussion given the available information.

PN3614

Is there anything else that anybody wants to say about the successor to the Pastoral Award?

PN3615

MR DECARNE: We'd just like to point out a few of the differences in our scope clauses. Just if you could bear with me for a moment while I get that.

PN3616

MS V GATES: Commissioner, if I may, just before this I'd like to express a desire to speak on the Shearing Industry Sector on some practical operational issues which are represented as misconceptions in presentations and submissions before the day is over, if possible.

PN3617

THE COMMISSIONER: Ms Gates, go ahead. You might just announce who you are because I think you've changed your position in the room for the reporter's sake.

PN3618

MS GATES: I'm sorry?

PN3619

THE COMMISSIONER: Just announce who you are. The reporter's - - -

PN3620

MS GATES: Sorry. Vicki Gates, representing the WA Shearing Contractors Award.

PN3621

THE COMMISSIONER: Sorry, what's your name?

PN3622

MS GATES: Vicki Gates.

PN3623

THE COMMISSIONER: Thank you. Go ahead.

PN3624

MS GATES: Commissioner, as I mentioned there are a number of misconceptions and what we see as opportunistic efforts in some of the union's submissions and discussion and I think it's important that with all due respect to the union's involvement in the industry historically as well as to date in States that operate under the PIA, the union's involvement in Western Australia is indeed minimal with the exception of a few members in Esperance. Their comments and submissions belie a misunderstanding or a lack of awareness of the reality of - - -

PN3625

THE COMMISSIONER: What do you want? Tell me what you want?

PN3626

MS GATES: Well, we have verified differences in the industry in Western Australia. Hence the Federal WA Shearing Contractors' Award and the following common rule award that the Shearing Contractors' Association sought to have and was made in Western Australia to capture all of the contractors in the State. There are only six, if that, contractors in WA that operate under the Federal WA Shearing Contractors' Award. The balance of virtually the sheep shorn in WA are shorn under the WA Shearing Contractors' Award 2003.

PN3627

The development in changes in West Australia have come about because of the flexibilities in WA and in many cases as a result of the flexibilities in WA and we need to retain those.

PN3628

THE COMMISSIONER: Yes. What do you want the award to reflect? What do you want in there?

PN3629

MS GATES: The conditions for the shearing industry that are contained in the WA Shearing Contractors' Award - - -

PN3630

THE COMMISSIONER: And of those most importantly?

PN3631

MS GATES: I'm sorry?

PN3632

THE COMMISSIONER: And of those most importantly?

PN3633

MS GATES: Most importantly the ability to work on weekends as agreed between the employer and the employee and I must point out that that is an individual issue, not the majority of the team. A ritual in WA is the shearing contractor spends the afternoon and evening finding individuals to fill the vacancies for those who do not want to work on those weekends or occasional public holidays and if they don't fill those vacancies, then they simply don't shear. It's a question of choice.

PN3634

THE COMMISSIONER: Is that really what it's all about? Is that what it's all about?

PN3635

MS GATES: That's one of the key issues.

PN3636

THE COMMISSIONER: So it's weekend shearing on an individual agreement basis?

PN3637

MS GATES: That's right, because the workers in WA want to work. They want to work in those peak seasons where they can maximize their earnings - - -

PN3638

THE COMMISSIONER: I've read your submissions. So I understand that. I want to be really clear on what it is you want, that's the most important thing.

PN3639

MS GATES: Right. The ability to retain and continue to have the option to work on weekends and the occasional public holidays is probably the key issue. The run systems covers the maximum hours really adequately, we believe, and the State WA Shearing Contractors' Award and the Federal WA Shearing Contractors' Award have built in the flexibilities that we require.

PN3640

THE COMMISSIONER: Yes. But the really critical thing is you want to retain weekend shearing.

PN3641

MS GATES: Yes, absolutely.

PN3642

THE COMMISSIONER: And that's basically what it's all about.

PN3643

MS GATES: And to not have those attract overtime or penalty rates.

PN3644

THE COMMISSIONER: At the ordinary time piecework rate?

PN3645

MS GATES: Yes.

PN3646

THE COMMISSIONER: So that's the per 100 rate currently in the federal award?

PN3647

MS GATES: Yes. The only other key difference I would note, Commissioner, is the shipper sheds, which is in our submission, unique to WA as far as we know, and it is a generally an issue of animal welfare.

PN3648

THE COMMISSIONER: What's the difference there? It's the rate of shearing is it? Is the rate per 100 different?

PN3649

MR HOULIHAN: They pay the same rate.

PN3650

MS GATES: Well, the same rate, yes.

PN3651

THE COMMISSIONER: Well, you just want coverage of the shipper sheds?

PN3652

MR HOULIHAN: No. The sheep shipper sheds shear 24/7 when they're going.

PN3653

MS GATES: But they don't any more. They used to. Nobody that we're aware of runs two teams in shifts. The issue is - - -

PN3654

THE COMMISSIONER: That's shift work.

PN3655

MS GATES: No, they do not do this any more. What they do is though is, once they start filling a ship with the sheep you do not leave a ship partially filled with sheep for a dead weekend. What you do is you continue to shear, continue to fill the ship until it can leave the port. It's an issue of animal welfare. That's just another example of weekend work that needs to occur.

PN3656

THE COMMISSIONER: I see, yes. But if you've got the ability to work on weekends on the basis of individual agreement you can serve that market.

PN3657

MS GATES: Yes.

PN3658

THE COMMISSIONER: That's just an example of how it's used.

PN3659

MS GATES: Yes. And if that is in the award it precludes the need to do individual agreements which in an industry that is as far flung as the shearing industry that can become problematic.

PN3660

THE COMMISSIONER: Sorry, I'm getting confused here. The shipper sheds, is there something different there?

PN3661

MS GATES: No. That was another example of why weekend shearing.

PN3662

THE COMMISSIONER: If the award provides that you can work on weekends on the basis of individual agreements and shear at the per 100 rate that satisfies your requirements, is that what you're looking for?

PN3663

MS GATES: Yes, I believe it does.

PN3664

THE COMMISSIONER: So the shipper sheds, I don't need to worry about those because if that was in there that would apply to them.

PN3665

MS GATES: That was just more grist for the mill, yes.

PN3666

THE COMMISSIONER: Yes, all right.

PN3667

MR DECARNE: Commissioner, can I respond to the submissions made then? There's six people involved in the federal award and then there's the state award. Now, none of the other awards allow weekend shearing, none, so it stands alone there in Western Australia. It's sort of a situation of the odd one out here in this scenario. And I noticed that the NFF haven't supported the position that was put by - - -

PN3668

THE COMMISSIONER: Didn't you say the award - - -

PN3669

MS GATES: Excuse me, I think they have. Correct me if I'm wrong.

PN3670

MR DECARNE: Not in their draft.

PN3671

THE COMMISSIONER: Look, don't worry about the NFF, just speak for the AWU.

PN3672

MR DECARNE: So the AWU is totally opposed to the propositions made there.

PN3673

THE COMMISSIONER: Yes, all right. Let me put a question to you. Is the current PIA provision prohibitive of weekend shearing?

PN3674

MR DECARNE: It is.

PN3675

THE COMMISSIONER: Expressly prohibitive?

PN3676

MR DECARNE: Yes.

PN3677

MS GATES: The only thing that permits weekend shearing under the PIA is wet sheep and that is only for makeup time that is lost because of wet sheep.

PN3678

THE COMMISSIONER: Yes, all right. Mr Houlihan would know that there's a lot of history to weekend shearing. And in a former life I was exposed to the question of whether or not the Pastoral Industry Award did prohibit shearing on the weekend and I advised the national executive of the union that it did not, and for my troubles I was sent home immediately. What I advised the national executive was, was that the award simply did not deal with the subject of shearing on the weekend. So that, the misconception that I considered was that because the award did not mention shearing on the weekend that it meant that there could be no shearing on the weekend. The question that I ask you, does the award express itself in a way that shearing is only conducted Monday to Friday these days?

PN3679

MR DECARNE: Yes.

PN3680

THE COMMISSIONER: It does. So that by award variation the problem that I so rudely raised with the national executive was remedied. Is that the case, Mr Houlihan?

PN3681

MR HOULIHAN: That could be based on a very good argument still, Commissioner. I think the prospect is still right. I think you're always right, probably always have been right. But, with respect, I think that's still the case, and I know it's holy writ for Mr Decarne and his people, but it aint necessarily so. And the union has been pretty careful about not getting it tested too tightly again either.

PN3682

MS GATES: If I could also correct, to be sure, I didn't mis-speak. Certainly it is an interpretation of the PIA that it only allows for shearing - - -

PN3683

THE COMMISSIONER: Is that because the shearing conditions now refer to work will be performed on Monday to Friday?

PN3684

MR DECARNE: And the same in all of the awards. But I have a table that's near completion summarising all you need to know about the award.

PN3685

THE COMMISSIONER: When will that be filed, AM Tuesday?

PN3686

MR DECARNE: AM Tuesday as well.

PN3687

MR HOULIHAN: Commissioner, the other thing I want to say about this because it's quite relevant. Gross costs through a company called National Grazing Services is far and away the largest shearing contractor in Australia. They shear more sheep than most of the others combined. They have a certified agreement with the federal Commission called the National Grazing Service and Wool Harvesting Employees Collective Agreement 2007 which also allows for weekend work much the same as is the situation in Western Australia. Sir, as representing the pastoralists and graziers in Western Australia we very much want to put on the record our support for the proposals put forward by the WA Shearing Contractors Association.

PN3688

And if I can just say a couple of things quickly. I'm conscious of the time, Commissioner. I was involved in the making of the WA Shearing Contractors Award, the federal award. That was an intensely contested arbitration before Commissioner Merriman in which a great deal of evidence and material was brought forward about the practices of shearing in Western Australia, how the industry had developed in Western Australia and, sir, it is fundamentally a different story, the shearing industry in Western Australia than the development in eastern Australia and essentially it's because of the lack of union involvement. And a whole different culture and ethos grew up over there than has ever held sway in the east.

PN3689

Now, while there is weekend shearing done over here it's not part of the ordinary work as it always has been in Western Australia, and part of that is because of the extraordinary distances that are involved in the industry in Western Australia. And what's in fact happened has been a drive by shearers to get rid of expeditionary work. There's very little expeditionary work as you would recall it, sir, in the shearing industry in Western Australia. It's not all. But to the greatest degree possible it's suburban work in Western Australia now far more than in the east, you know, with lesser distances, and the way they overcome that is the contractors have their own buses and so on like this, but the deal is we go out and we get the job done and we get home and give it away.

PN3690

THE COMMISSIONER: Well, the development of bitumen roads and motor vehicles and the availability of motor vehicles has basically changed the contours of the industry.

PN3691

MR HOULIHAN: Absolutely.

PN3692

THE COMMISSIONER: And this is where Mr Decarne probably gets to arc up shall we say, because you've got a submission that the enterprise flexibility provision shouldn't apply to when the work's performed.

PN3693

MR DECARNE: That's correct, Commissioner. That's contained in our written submissions and I don't want to labour that point.

PN3694

THE COMMISSIONER: Well, you know, this is going to be a bit as uncomfortable for you as the other questions were for Ms Warin. Why shouldn't the flexibility allow for weekend shearing by individual agreement?

PN3695

MR DECARNE: Well, because of the team nature of the industry.

PN3696

THE COMMISSIONER: Yes. But in practical terms the agreements are not going to be reached unless there's enough people to form a team.

PN3697

MR DECARNE: Commissioner, we've got a situation where we've got the awards. I don't want to labour the point too much. I've made written submissions on this quite extensively and we can make some more if you like.

PN3698

THE COMMISSIONER: No. We're at the pointy end of this now. You've got your submissions on file but, you know, I'm giving you an opportunity to address it in the consultation process because you've got the West Australian scenario here.

PN3699

MR DECARNE: Yes.

PN3700

THE COMMISSIONER: And I know it's a very important historical issue for the union. But you would recognise too that expedition shearing, you know, when people used to go to the sheds on bicycles and in many cases pedal 500 miles in the process of an expedition or more, it grew up because it was impractical to go home. Who wanted to be out there working non stop for weeks on end instead of going to the local races on the weekend? But in a situation where, you know, there's much more bitumen on the roads and cars are cheaper and faster and greater distances can be travelled, the idea of cutting out a shed on the weekend, not just if the sheep are wet but just cutting the shed out, is surely an attractive thing for shearers these days, another day at the shed on Saturday if it means they can cut the shed out and go home on Saturday night?

PN3701

MR DECARNE: Commissioner, that's not the response that we've had from the shearers in the industry. That's definitely not the response we've had from shearers in the industry. We've consulted broadly on the issue. That mischaracterises the nature of the industry.

PN3702

THE COMMISSIONER: Right. Well, tell me what the - - -

PN3703

MR DECARNE: Well, Commissioner, I'm not best equipped to inform you on the nature of the industry, and that's why we've submitted a written on this. This is one of these issues that will just turn over on itself continually. We have one award standing out, and I think the Commission is probably well minded to draft on the basis of the PIA provisions that have been approved by the NFF in their draft and ours as well. There is another issue though which I might bring to the Commission's attention and which has to do with the 38 hour week which hasn't been transitioned to the shearing yet. And we made some submissions on that and we're consulting with the NFF on that. That's probably a more pertinent issue than this stand alone award and a claim I think.

PN3704

MR HOULIHAN: There's 25 per cent of Australia's sheep are in Western Australia, 25 per cent of our wool clip is in Western Australia, more than 25 per cent of our sheep, and it's a very big issue. Now, the reason the contracting is so wide spread in Western Australia is because the contractors can use the state award and the federal Contractors Award. The other woolgrowers are essentially bound by the federal Pastoral Award. And so they have gone to the shearing contractors because the shearing contractors can offer the flexibility to get the job done that is not generally available under the Pastoral Award in Western Australia.

PN3705

Now, it's changed the nature of the industry over there. It's gone from - we're contracted to - from the time that federal award was made by Commissioner Merriman the contractors were doing probably 15 to 20 per cent of the sheep. That's gone to something like 80 or 90 per cent of shearing in Western Australia is now done by shearing contractors because they can respond, because of those flexibilities. Now, you know, it's not to be just dismissed as, you know, an idiosyncratic thing in the west. A quarter of the wool clip is there whereas a few years ago it was about 15 per cent of the wool clip, it's now 25 per cent of the wool clip and it's growing. It's the only part of the country where sheep numbers are actually expanding.

PN3706

THE COMMISSIONER: Where are the enterprise flexibility provisions in the NES? I thought there was an obligation to include an enterprise flexibility provision.

PN3707

MS WARIN: There is.

PN3708

THE COMMISSIONER: I'm just trying to find it. Does anybody know where it is?

PN3709

MR DECARNE: It's in the Ministerial Request I think, Commissioner.

PN3710

THE COMMISSIONER: And it's in the Request.

PN3711

MS WARIN: Sorry, Commissioner, while you're looking for that can I quickly put the NFF position as for shearing? To maintain consistency on our argument on the Pastoral Industry Award we've said that just as we want station hand provisions maintained likewise we have said that the existing provisions for shearing is maintained. Nevertheless our preference would have been for some flexibility but there was no agreement in terms of a consensus arrangement with the AWU at a recent meeting. Nevertheless we believe that weekend shearing should be considered by the Full Bench in consideration of the Western Australian submissions. But as I said, our position has been one of maintaining the existing provisions of PIA and we didn't want to be seen to be inconsistent.

PN3712

MR HOULIHAN: Commissioner, could I just make a further comment on a point that Mr Decarne made about the enterprise flexibility agreements. You can't - and this is the recantation that I made right at the outset this morning. I was off the mark when I agreed with that the last time we were here and I gave you the point in the transcript where I made that error. Commissioner, if you insist that everyone in the team has to agree to this you hold yourself ransom to anyone who doesn't want to do it. And the simple point that's been made by Ms Gates is true. What happens is that the contractor or the woolgrower says look, we need to shear on Saturday and Sunday to cut out this mob or do whatever, someone says, well, look, hang on, my sister's getting married on Saturday, I won't be here. And that happens every week. And what happens is that if he's a shearer one of the learners comes up and takes the pen or whatever, you know, it's worked out. But if the whole process can be held ransom because one person won't sign it you've lost the whole flexibility.

PN3713

MR DECARNE: Commissioner, the award flexibility clause can be modified and that's quite clear.

PN3714

THE COMMISSIONER: Well, it can be. It's a question of whether it should be.

PN3715

MR DECARNE: Well, we believe it should be. We have submitted a new draft Wool Harvesting Award as seemed to be the instructions of the Commission the last time we met. We took carbonisers and scourers out. There is still the issue of where carbonisers and scourers go. Now, the Textile Industry Award is near being made so the carbonisers and scourers are going to be left out of the modernisation process. We don't sort of cede to that issue. We still believe that they should be within an award with the shearing industry and we've made submissions to that effect. But we have now contained our shearing section within a Wool Harvesting Award which we submitted on the 10th and we just simply removed when work was performed provisionally in the award.

PN3716

THE COMMISSIONER: What did you want to say about scope?

PN3717

MR DECARNE: Scope, Commissioner, I'll take you the NFFs draft because our drafts are quite similar now in our application clauses. The definition of livestock in our award includes all animals used in primary production including poultry, fish, crustaceans, molluscs and insects. Now, we wouldn't see the need for all to be included and again our position is for the creation of a Fish Aquaculture Award, so we'd remove those. Other than that there's not too much for that definition. But the definition of crops however there is some differences and we've contained these differences within our submissions that we sent to the Commission on the 10th.

PN3718

The NFFs position throughout the process has been to avoid overlap with Horticultural Industry Award. We have to define vegetables grown as part of the mixed farming enterprise. And you'll the earlier drafts do include this delineation of mixed farming enterprise. Now, this has been omitted in their newer draft. The mixed farming enterprise isn't referred to at all, they just refer to vegetables. Now, there's going to be some significant overlap with the Horticultural Industry Award if that vegetables doesn't have the lineation there.

PN3719

Now, at paragraph 52 of the NFFs 24 November submissions they refer to the exclusion at 4.3(f) of their 24 November draft and they have the exclusion for vegetables where they are not produced as part of a broadacre mixed farming enterprise. Now, in agreement with that submission we say that it's necessary to delineate there to avoid overlap and that's been the NFFs position to date and we agree with that. In addition to the differences in the definition of crops we have been consulting with the nursery industry today and they're opposed to the flowers definition being included in crops. There's still some work on the idea of the Nursery Award as I mentioned, but we haven't included flowers at this stage. Cotton as well we haven't included in our crops definition.

PN3720

There's this further issue which has been referred to in a creative way by my friend, Mr Houlihan, in earlier submissions. It's the services the agricultural industry issue. At this stage we haven't included services to the agricultural industry in our draft award because we think there might be some complexity with doing so without defining what a service to the agricultural industry is, and again it's an issue to do with overlap and the outcome of our discussions on classifications. With the overlapping award provision the classifications in the current PIA are quite broad and general and we could have the services overlap causing some issues.

PN3721

Now, the 4.2(b) of the NFF draft includes the shearing and crutching and classing of wool. Again we believe for simplicity shearing issues should be kept aside outside of the Agricultural Award and put in a Wool Harvesting Award. Our primary position would have been a Wool Industry Award with scouring and carbonisers, but we know the Commission are not with us on that so we did draft a new award. Other than that I think the exclusions are entirely different but they're quite self evident, and I've foot noted our draft award and the differences with the NFFs draft as they were on Wednesday afternoon. All these differences are footnoted. The things that we've included have been discussed with the NFF. I think we're very close to an agreement on scope besides these issues that I've addressed.

PN3722

THE COMMISSIONER: Anybody else want to say anything?

PN3723

MS WARING: Just in scope, Commissioner, in terms of flowers, the flowers again, the growing of flowers from a broadacre perspective not from a nursery perspective, and there are existing members through the NFF federation that are covered under the Pastoral Industry Award and as such we seek to maintain that coverage, particularly in relation to poppies. In terms of this overlap issue with horticultural we refer the Commission to 4.3(j) of our draft Agricultural Award as to exclusions "and this award does not apply to (j) any work which would otherwise be covered by this award in circumstances where the principal activity of the employer is covered by the Horticultural Industry Award."

PN3724

So if their primary purpose is that under which the scope of the Horticultural Industry Award is discussed this morning fits that criteria then as such that award would apply, which then resolves the concerns of the AWU. In terms of shearing, again we believe it's more appropriate consistent with the current Pastoral Industry Award to maintain the shearing component although separate to the remainder of the award and as such we have got a specific part for wool production or harvesting that incorporates both shearing and also the existing shearing provisions of the Pastoral Industry Award that also incorporates the Woolclassers federal award. And certainly in terms we also obviously oppose the issue of the separate cotton award as we also oppose the necessity of a separate wool harvesting award.

PN3725

And I note that one of the conditions of award modernisation is to reduce the number of awards. Well, the AWU in their pursuit of agricultural awards, including potential services to industry, seems to be doubling if not tripling the number of agricultural awards as opposed to reducing them. In terms of services we argue that the existing Pastoral Award covers services to industry to the extent to which it is consistent with the scope and classification structure of the award and as such we have maintained that in our draft, that is, that is if a service provider fits the scope and also fits the classification structure then as such they fit within the definitions.

PN3726

So whether they are shearing contractors, whether they are harvest contractors, fencing contractors, mustering contractors. It is not designed to include contractors such as diesel mechanics or electricians or plumbers as the case may be. They have tradespeople that would not be deemed under the classification of our draft as such. Services to industry are limited to that extent which is consistent with existing arrangements, and we certainly believe that that simplicity that is currently the existing intent is maintained under these provisions. Therefore again I reiterate the AWU is seeming to make things more complex rather than easier as the objective of this process is.

PN3727

MS GATES: Commissioner, in terms of this issue of scope the WA Shearing Contractors Association is not at this time terribly concerned about where the provisions for shearing reside. Certainly the issues of simplicity and minimising the number of awards under the modern awards intent would seem to suggest that perhaps the direction the Commission will go is to have it be part of the general Agricultural Award. And provided the existing WA can be maintained and those provisions in part 2 of the current PIA and the complexities can be brought under some control the unnecessarily complex provisions that we've noted in our written submissions then we have no genuine preference at this time.

PN3728

MR DECARNE: Commissioner, can I just say that the complexity of the PIA is something that we discussed in detail with my friends here and we are all in agreement that we want to keep the formula, we're all in agreement that we want to keep these aspects of the award because of the historical nature of it. I don't think that there's anyone that disagrees with that. I'd also like to note that the Shearing Contractors Association as we've been discussing contractors, they support the AWUs approach to weekend shearing and they support our Wool Harvesting Award. They can't be here today but the Shearing Contractors support us.

PN3729

MR HOULIHAN: We've got a couple of shearing contractors who don't.

PN3730

MS GATES: The complexity issue doesn't go to the - - -

PN3731

MR DECARNE: Particularly the association.

PN3732

MS GATES: The complexity issues that we take issue with are not issues to do with the formula per se. It is in some of the valued and historical clauses in the award that provide operational mechanisms to resolve potential issues, which we in WA have found ways to deal with that don't require the ringing of the bell and only X number of sheep to be shorn of a particular type after the bell and the complexities of wet sheep and calculating the number of hours on Saturday. It's those complexities to which I refer.

PN3733

MR HOULIHAN: Commissioner, could I then just sort of make a final submission on this? As to the services to agricultural issue we are still at odds with the NFF in relation to that. We say that if the Commission is minded to go down the path the NFF wants that's terrific, we are perfectly happy with that. But if the Commission doesn't want to go down that path we think it's very, very important that the sort of award that we have drafted and put forward should be adopted because of the need to have that service to agricultural as part of this award mechanism.

PN3734

I endorse everything that Ms Warin said though about there's no intention that we're going to be covering the diesel mechanic or the plumber or what have you, and the scope clause in our draft document makes that clear. Commissioner, just to make it easier for yourself to understand what we did, essentially we've just taken everything out of the pastoral industry with the exception of the piecework arrangement from the horticultural draft, and as far as allowances and everything we've simply expressed the pastoral industry rate plus 5 per cent as a mechanism of covering that. I'm not trying to get out of it. And we've just gone straight down that path. Commissioner, can I conclude by again reiterating something I said last time, and that is please put in a big plug to the Full Bench to keep the name.

PN3735

THE COMMISSIONER: Mr Decarne, has your draft award got the existing shearing rates in it or has it got your higher rates?

PN3736

MR DECARNE: It's got the 38 hour adjustment rates.

PN3737

THE COMMISSIONER: The higher rate?

PN3738

MR DECARNE: Yes, it does. Commissioner, I'll just explain that issue briefly. We have been consulting with the NFF on this. Now, there's a few options on the table at the moment. One of them is the 5 per cent increase per 100 rate which would mean $11.68. Now, that's of course the AWUs first position. Then there's the 5 per cent increase in the base rate which is where the allowances would be the same and included, and that's $8.29. Then there's the - - -

PN3739

THE COMMISSIONER: Sorry to interrupt you, but for those who are familiar with the history of the shearing formula spare a thought for me trying to explain it to seven members who are going to be busy with a lot of things on their mind, and the idea that we might actually increase the rates of pay as part of this process might cause them a certain amount of confusion about what this is all about.

PN3740

MR DECARNE: Well, Commissioner, it's not - - -

PN3741

THE COMMISSIONER: Just bear with me for a moment.

PN3742

MR DECARNE: It's not as part of this process, Commissioner. The 38 hour week is to come in by March next year, so this is something that will have to be considered in award modernisation, but it's a different process.

PN3743

THE COMMISSIONER: I beg your pardon for saying part of this process. Whatever process. Where I was heading was that it may be desirable to produce the existing rates and in the shakedown from the exposure draft when hopefully there are all these issues to address the question of the rates of pay.

PN3744

MR HOULIHAN: I think that's a great idea, Commissioner.

PN3745

MS WARIN: We concur.

PN3746

THE COMMISSIONER: Because, look, I think the Bench is probably - - -

PN3747

MR DECARNE: Commissioner, I think we'll make some further submissions.

PN3748

THE COMMISSIONER: Well, you see, there's a process and the Bench is going to sit in Sydney and hear you in relation to the exposure drafts, and it may be at that time that that is the time to address the question.

PN3749

MR DECARNE: So the Commission will keep a 40 hour week within the Shearing Award?

PN3750

THE COMMISSIONER: From when?

PN3751

MR DECARNE: The exposure draft will contain a 40 hour week. That is the complexity I think the Commission will have to deal with probably before the exposure draft is released.

PN3752

THE COMMISSIONER: It's an exposure draft.

PN3753

MR DECARNE: Yes.

PN3754

THE COMMISSIONER: The exposure drafts come out on 23 January and then the Bench will sit in Sydney on 20-something February.

PN3755

MR DECARNE: The award's to take effect in 2010 so it would be a bit of an anomaly if it contains a 40 hour week.

PN3756

THE COMMISSIONER: I'm talking about 2009.

PN3757

MR DECARNE: Yes, Commissioner, 2009, but these exposure drafts are to be made and applicable for 2010. So the exposure drafts relate to 2010, the new awards, the modern awards relate to 2010.

PN3758

THE COMMISSIONER: I don't know, I think we're talking at cross purposes, Mr Decarne. Imagine this. Imagine that the exposure draft has the existing rates and hours for shearing and crutching. There is a statement at the time the exposure drafts are issued that may well be further considered by the Bench and in particular to give the parties the opportunity to address the Bench on the 20-something or other of February, and that the Bench will make the decision about the wage rates at that time. I mean, does that disturb you? And that's going to meet the timetable for the making of the award isn't it?

PN3759

MR DECARNE: The making of the award, yes, I guess it will, Commissioner.

PN3760

THE COMMISSIONER: Well, what are you trying to tell me that I don't get?

PN3761

MR DECARNE: Well, I'm not trying to tell you that you don't get anything, Commissioner.

PN3762

THE COMMISSIONER: No, I didn't say you said that. I said what is it that you are trying to tell me that I may be not getting?

PN3763

MR DECARNE: Well, obviously I'm seeing these awards, Commissioner, and I'm seeing these exposure drafts come out and I have been involved in the process since the beginning. They're prospectively made for 2010. So this is an issue that should be grappled with before the exposure drafts are released in my respectful submission.

PN3764

THE COMMISSIONER: Well, I understand you can say that it would be more desirable for the Bench to make the decision next week.

PN3765

MR DECARNE: Sir, on what days will the exposure draft be made, Commissioner?

PN3766

THE COMMISSIONER: 23 January.

PN3767

MR DECARNE: The exposure draft. And what date will the award be made.

PN3768

MR HOULIHAN: 1 January.

PN3769

THE COMMISSIONER: No, the award will be made - we did have a timetable. We've got the timetable here.

PN3770

MS WARIN: Commissioner, I think there seems to be some confusion. The 38 hour week relates to existing awards and the transitional award into effect in March 2009, and that is - - -

PN3771

THE COMMISSIONER: But that is still within this timetable.

PN3772

MS WARIN: And that's separate, that's right.

PN3773

MR DECARNE: The award won't be made before March 2009, or it will?

PN3774

THE COMMISSIONER: 3 April. Look, I'm sorry, you have to explain to me what the problem is, Mr Decarne.

PN3775

MR DECARNE: Commissioner, these awards are made for 2010, and my problem relates to the fact that we're looking prospectively on the making of modern awards. So we know that the 38 hour week will be adjusted in March next year for the transitional award which will relate to 80 per cent of all shearers. I think this is an issue which should be grappled with before the exposure draft.

PN3776

THE COMMISSIONER: Well, it's very important that you explain that to me. It's why I keep asking you, I think I'm missing something. So what you're talking about is the introduction of the 38 hour week into the transitional award?

PN3777

MR DECARNE: Yes, Commissioner.

PN3778

THE COMMISSIONER: Which is in March, not April.

PN3779

MR DECARNE: That's right. So that the timing of this is - - -

PN3780

THE COMMISSIONER: But how can the problem be solved in any event if the award is not going to be made until 3 April, even if the exposure draft contains it?

PN3781

MR DECARNE: Varying the transitional. The transitional award will have to be varied by that time, so we just have a timetabling issue.

PN3782

THE COMMISSIONER: So it's about the transitional award.

PN3783

MR DECARNE: Yes, which is 80 per cent of the industry.

PN3784

THE COMMISSIONER: But the Bench could still sit in February and make its decision and make it in time for the transitional award variation.

PN3785

MS WARIN: But there's also the pre reform award as well that's got 38 hours. So it's only the transitional, which the transitional doesn't exist under this new system.

PN3786

THE COMMISSIONER: I'm totally confused. I think you know more about this than I do and that's the problem.

PN3787

MR DECARNE: Commissioner, I'll be happy to send you some documents again on Tuesday morning to explain it.

PN3788

THE COMMISSIONER: Just tell me what needs to be done. I've got to explain this and I need to feel confident.

PN3789

MR DECARNE: Well, at the same time as we'll be making an exposure draft and then making modern awards will be transitioned to a 38 hour week, so the exposure draft should deal with that issue. It can't be left to be dealt with later because the modern award would be made after the time that the transitional award would have had to change, so we have a timetabling problem.

PN3790

THE COMMISSIONER: And what is that precisely, what are the dates that constitute the - - -

PN3791

MS WARIN: The transitional award doesn't need to apply because the 40 hour week change to a 38 hour week only relates to pre reform awards not transitional awards because it's the Australian Fair Pay and Conditions standard. So the 38 hour provision change timetable doesn't apply to transitional, it only applied to pre reform awards and as such there was a requirement to change all pre reform awards, 40 hour provisions within three years, which was March 2009. That has not occurred in either the shearing component of the Pastoral Industry Award nor schedule A of the Horticultural Industry Award. The AWU are concerned that it should occur for those pre reform awards which is under the current system as opposed to this award modernisation which relates to awards that are to commence 1 January 2010, and it's a separate issue.

PN3792

We note however that there is a requirement of the modern awards to have 38 hour week provisions, which we haven't dealt with before you at this stage and obviously it's something that will need to be flagged to the Full Bench, that we have to deal somehow with the variation between 40 to 38 in the shearing.

PN3793

THE COMMISSIONER: In the pre reform award.

PN3794

MS WARIN: In the pre reform awards and also the modern award. But there's been no submission - - -

PN3795

THE COMMISSIONER: But the statutory requirement is that the pre reform award be varied so that there is a 38 hour week from - what date in March is it?

PN3796

MS WARIN: 27 March 2009.

PN3797

THE COMMISSIONER: Does the timetable express it as the deadline or the day? It's the day. Well, there's no reason, Mr Decarne, is there, subject to the wishes of the Bench, that they can't make the decision on this subject prior to 27 March as a discrete decision and, having made that decision, act to vary the pre reform award consistently with that and then make a modern award on 3 April?

PN3798

MR DECARNE: Well, Commissioner, if you see that flexibility as being able to be applied then I'm not going to part with you on that. But I just refer you to our first submissions which were sent on 31 October, and I think it's from paragraph 20 through detailing this complexity and timing problem. But we'll also send in a letter that we'll also forward to the NFF on this issue. I still do see it as a timetabling problem.

PN3799

THE COMMISSIONER: Well, you might well be right. It's a pretty messy situation unless the Bench decides what to do about the 38 hour week before 27 March somehow or other.

PN3800

MR DECARNE: Commissioner, I'll say it's caused us all a little bit of anguish in this process as well, but it's been put to one side for quite a while and I think it's probably something that I should address in written submission again as late as Tuesday.

PN3801

MS GATES: Commissioner, I think there are, with your express desire for some practical realities of how the industry operates and some of the issues that have been discussed here today, we would also ask if there is leave to put in a further submission on some of those practical realities.

PN3802

THE COMMISSIONER: If you want to put something in by AM Tuesday that's fine.

PN3803

MS GATES: Thank you.

PN3804

THE COMMISSIONER: All right, we're probably finished for the day unless there's any last minute? All right, well, thanks very much for your help. Obviously I'm going to have a lot of explaining to do.

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