AM2012/215, Transcript of Proceedings [2012] FWATrans 1307 (27 December 2012)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1035250-2

COMMISSIONER HAMPTON

AM2012/215

Sch. 5, Item 6 - Review of all modern awards (other than modern enterprise and State PS awards) after first 2 years

Application by Australian Hotels Association
(AM2012/215)
Hospitality Industry (General) Award 2010

(ODN AM2008/4)
[MA000009 Print PR985119]]




Adelaide

2.17PM, WEDNESDAY, 12 DECEMBER 2012

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA
VIDEO-LINK AND RECORDED IN ADELAIDE

PN1

THE COMMISSIONER: Good afternoon, all. Please be seated. All right. This is a conference, the purpose of which I think is comprehensively set out in the notice of listing which has been provided to the majority of parties and displayed on the Fair Work Australia web site. In large measure the conference has been prompted by the recent correspondence to the President of Fair Work Australia by the South Australian minister for industrial relations. The parties would be aware that the President has requested that I convene a conference of the relevant parties. You should also be aware that, depending on how things go today, but it's likely that I'll be issuing a report to the full bench that's dealing with the public holiday matters in terms of the modern awards review. If a report is issued then of course it will be made publicly available.

PN2

I should note that the minister's request has constructively provided a focal point to bring these matters to a head. However, I should also observe that I think it is a pity that the issues were not raised more generally with the tribunal, particularly by the direct parties, somewhat earlier, particularly noting that the award review process has been under away. However, I do note that there are certain more recent developments that may have impacted on the timing of these matters, and we are where we are. Now, for my part, there does appear to be merit in considering the present circumstances and providing some clarity where appropriate and feasible.

PN3

Now, this is a conference as opposed to a hearing, but the parties will appreciate that, given the matters that are being considered, involve the interests of many parties who are not here today or otherwise represented. We need to maintain a transcript and I will, pursuant to section 592(3) of the Act, at least, initially direct that the conference not be conducted in private. If the parties at some stage, either amongst themselves in terms of utilising the video-links, or if you wish to consult me privately, I will consider that at the time. We are maintaining video-link so in that context I want the parties to feel free to remain seated, but if you wish to make a submission in these matters you'll need to enter an appearance, and to that end you will either need to be seated at or at least come to the bar table to do so. So having said that, I'll take the appearances starting here in Adelaide.

PN4

MS M. BOLAND: If it please the tribunal, Marie Boland, appearing on behalf of the minister for industrial relations, and appearing with me is MR J. WATSON.

PN5

THE COMMISSIONER: Thank you, Ms Boland.

PN6

MS L. HARRISON: If the tribunal pleases, Larissa Harrison, on behalf of United Voice.

PN7

THE COMMISSIONER: Ms Harrison.

PN8

MR D. BLAIRS: Donald Blairs appearing on behalf of the SDA Union.

PN9

THE COMMISSIONER: Mr Blairs.

PN10

MR R. CAIRNEY: If the tribunal pleases, Rick Cairney, from the South Australian Employers' Chamber of Commerce and Industry Incorporated trading as Business SA, and with me, MR H. WALLGREN.

PN11

THE COMMISSIONER: Thank you, Mr Cairney.

PN12

MR T.E. EVANS: If the tribunal pleases, on behalf of the Australian Hotels Association, nationally and South Australia, Evans, T.E.

PN13

THE COMMISSIONER: Mr Evans.

PN14

MR P. EBLEN: If the tribunal pleases, Paul Eblen, on behalf of the Motor Trade Association of SA, appearing with MS J. LEES.

PN15

THE COMMISSIONER: Thank you, Mr Eblen.

PN16

MS S. HILLS: If the commission pleases, S. Hills, appearing for the South Australian Wine Industry Association.

PN17

THE COMMISSIONER: Thank you, Ms Hills.

PN18

MS J. ROGERS: Jess Rogers appearing for the CEPU South Australia.

PN19

THE COMMISSIONER: Thank you, Ms Rogers.

PN20

MR A. STOREY: Angus Storey, appearing for the United Trades and Labour Council of South Australia trading as SA Unions.

PN21

THE COMMISSIONER: Thank you, Mr Storey. Any more takers here in Adelaide?

PN22

MR I. SMITH: Mr Ian Smith from the Transport Workers' Union.

PN23

THE COMMISSIONER: Thank you, Mr Smith. I'm not sure whether the interstaters heard that but - all right. Well, next in Melbourne.

PN24

MR S. SMITH: Mr S. Smith appearing for the Australian Industry Group.

PN25

THE COMMISSIONER: Thank you, Mr Smith.

PN26

MS A. BUCKLEY: Buckley, initial A., appearing for the Australian Retailers' Association.

PN27

THE COMMISSIONER: Thank you, Ms Buckley.

PN28

MR G. RAPTIS: If the Commissioner pleases, Raptis, initial G., appearing on behalf of Master Grocers' Australia.

PN29

THE COMMISSIONER: Thank you, Mr Raptis.

PN30

MR E. McCOY: McCoy, initial E., appearing for the Australian Council of Trade Unions, and with me is MS L. WEAVER.

PN31

THE COMMISSIONER: Thank you, Ms McCoy.

PN32

MS V. WILES: Appearing for the Textile, Clothing and Footwear Union of Australia, Ms Wiles, initial V.

PN33

THE COMMISSIONER: Ms Wiles.

PN34

MS R. REED: If it please the tribunal, Reed, initial R., for the CFMEU.

PN35

THE COMMISSIONER: Thank you, Ms Reed. Anyone else in Melbourne? Sydney?

PN36

MS G. STARR: If the tribunal pleases, Starr, initial G., for the AMWU.

PN37

THE COMMISSIONER: Ms Starr, thank you.

PN38

MR A. KENTISH: If it pleases, Kentish, initial A., for the CEPU national office.

PN39

THE COMMISSIONER: Thank you, Mr Kentish.

PN40

MR G. PARKES: Parkes, initial G., on behalf of Restaurant and Catering Australia.

PN41

THE COMMISSIONER: Thank you, Mr Parkes.

PN42

MS Z. JENKINS: If the commission pleases, Jenkins, initial Z., on behalf of Australian Business Industrial, joined by MR A. SYME.

PN43

THE COMMISSIONER: Thank you, Ms Jenkins. Anyone else in Sydney? Last and certainly not least, Canberra.

PN44

MR R. CALVER: Thank you, Commissioner. If it please the tribunal, Calver, initial R., for Master Builders' Australia.

PN45

THE COMMISSIONER: All right, thank you, Mr Calver. Look, in the lead-up to the conference I have received correspondence from the following parties; the Restaurant and Catering Association, the Australian Hotels Association SA branch, I believe, and the Australian Industry Group. Now, all of that correspondence has been placed on the web site. The parties should also be aware that I have taken the opportunity in the lead-up to the conference to review the information that's presently available on the Fair Work Ombudsman's web site touching upon the matters that are the subject of the conference. Given the role perhaps played by the South Australian minister in the process it might be useful for the minister's representative provided any further background you wish to and update the tribunal on any developments. Ms Boland.

PN46

MS BOLAND: Thank you, Commissioner. I can do that. First of all, the minister would like to thank Fair Work Australia for facilitating this conference to provide all interested parties with an opportunity to explore the potential for ambiguity in modern award interpretation as a result of the creation of the two part-day public holidays in South Australia between 7 pm and 12 midnight on Christmas Eve and New Year's Eve. The intention of the South Australian government in introducing these part-day public holidays is to provide workers with the core public holiday entitlements when they're required at special times of the year or special times of celebration.

PN47

These entitlements are essentially the right to refuse to work as provided for in the National Employment Standard, appropriate penalty rates for the time worked, and appropriate and proportional entitlements relating to issues such as time off in lieu. We're all aware of the recent advice as you mentioned, Commissioner, from the Fair Work Ombudsman, relating to the part-day public holidays and associated award entitlements. As we know, the release of this advice has led to intense public debate in South Australia about the possibility of ambiguity and uncertainty in relation to the potential impact of the South Australian part-day public holidays on modern awards.

PN48

The minister considered that the better place to have the conversations at Fair Work Australia, and as noted earlier, he appreciates the short time frame within which this conference has been organised. While the minister's correspondence of 29 November 2012 offered a potential solution to resolving uncertainty, by considering the definition of the word "day", he acknowledges that it is important that a perceived solution to one ambiguity does not create others.

PN49

THE COMMISSIONER: Yes, quite so.

PN50

MS BOLAND: The NES clearly contemplates part-day public holidays. Arguably many of the ambiguities being highlighted recently already exist within the current public holiday framework and the new part-day public holidays have merely highlighted some of these issues. Therefore the minister is advocating that, rather than continue to debate these complex issues externally on radio and in the press, the award parties be encouraged to continue to progress solutions in this forum in 2013 within the broader context of modern award variations and reviews. In the interim, however, to deal with the upcoming part-day public holidays, the minister is suggesting that an interim solution might be found just for 2012.

PN51

In consultation with key parties, both employer and union parties, I can advise the Commissioner that a consensus proposal has been developed and was finalised just before this conference began. The minister considers that this proposal achieves the certainty required in the short-term without impinging on public holiday award entitlements more generally, either in this jurisdiction or in other jurisdictions. I do have copies of the proposed consensus position that - - -

PN52

THE COMMISSIONER: Very well.

PN53

MS BOLAND: And I can talk - - -

PN54

THE COMMISSIONER: Yes. Perhaps you can hand it up.

PN55

MS BOLAND: Yes.

PN56

THE COMMISSIONER: This obviously provides a bit of an issue for our video-links.

PN57

MS BOLAND: Yes.

PN58

THE COMMISSIONER: I don't know whether broader parties have been involved in the discussions or are aware of the proposal. Can anyone here alert me to that.

PN59

MR BLAIR: Some parties.

PN60

THE COMMISSIONER: Some parties, all right. I think, Ms Boland, given that, perhaps you might read - - -

PN61

MS BOLAND: Read it.

PN62

THE COMMISSIONER: - - - the proposal and then speak to it, so that those at least with good quick handwriting - - -

PN63

MS BOLAND: Can write it down.

PN64

THE COMMISSIONER: - - - interstate can get a handle on that. We'll also take steps while you do that to get this uploaded on the web site. On the Web, often parties have iPods and other devices that they can access live on the air, and if you wish to do that, given the nature of the proceedings, I'm more than happy for you to do that in the other venues.

PN65

MS BOLAND: So perhaps, Commissioner, if I summarise the intention of it and then read you that.

PN66

THE COMMISSIONER: That's fine, Ms Boland.

PN67

MS BOLAND: So the intention is to suggest that a schedule be included in all awards and that the schedule would make it clear what the entitlements are on part-day public holidays between the hours of 7 pm and 12 midnight on Christmas Eve and New Year's Eve, and obviously the industrial parties can talk to this in greater detail but there is a general consensus that this proposal should ensure that there are no unintended consequences in other jurisdictions or more broadly.

PN68

THE COMMISSIONER: When you say "jurisdictions", I take it you mean as the modern awards will apply in other states.

PN69

MS BOLAND: As the modern - applies in other states, yes. The parties were conscious, in seeking a South Australian solution, that there should not be any unintended consequences in other states.

PN70

THE COMMISSIONER: Yes, and of course there is the limitation under the Act in terms of the capacity for Fair Work Australia to have a state-based difference, I think is the expression used in the Act.

PN71

MS BOLAND: Yes.

PN72

THE COMMISSIONER: So this provision would apply only to the known public holidays but it wouldn't at least expressly apply to South Australian parties.

PN73

MS BOLAND: Exactly, Commissioner, yes, and given the context, as you identified. So I'll read the - it's just called Schedule X for now. So X.1:

PN74

Where a part-day public holiday is declared or prescribed between 7 pm and midnight on Christmas Eve (24 December) or New Year's Eve (31 December), the following will apply on Christmas Eve and New Year's Eve and will override any provision in this award relating to public holidays: (a) all employees will have the right to refuse to work on the part-day public holiday provided for in the NES; (b) where a part-time or full-time employee is usually rostered to work between 7 pm and midnight, but as a result of exercising their right under the NES does not work, they would be paid their ordinary rates of pay for such hours;

PN75

(c) excluding annualised salaried employees to whom clause X.1D applies, where an employee works any hours between 7 pm and midnight, they would be entitled to the appropriate public holiday penalty rate in this award for those hours worked; (d) where an employee is paid an annualised salary under the provisions of this award, and is entitled under this award to time off in lieu or additional annual leave for work on a public holiday, they would be entitled to time off in lieu or pro rata annual leave equivalent to the time worked between 7 pm and midnight; (e) an employee not rostered to work between 7 pm and midnight, other than an employee who has exercised their right in accordance with X.1B, will not be entitled to another day off, another day's pay or another day of annual leave.

PN76

THE COMMISSIONER: Ms Boland, I take it that some customisation of this would have to occur on award by award basis. I'm not sure how many awards have an annualised salary arrangement. I know there are some, including one that's particularly relevant to these proceedings, but the idea being that if that's not relevant that would be deleted. Is that the concept?

PN77

MS BOLAND: Yes. The idea, Commissioner, is that the parties sought to encompass all of the potential ambiguities that had been raised and, yes, is scheduled to be adapted depending on the particular award, but it might be worth some of the industrial parties perhaps - - -

PN78

THE COMMISSIONER: Yes, all right. The other issue, I think you described as an interim solution.

PN79

MS BOLAND: Yes.

PN80

THE COMMISSIONER: I mean, that historically has had particular meaning under various pieces of industrial legislation but it's not something that's expressly provided for under the Fair Work Act.

PN81

MS BOLAND: Yes.

PN82

THE COMMISSIONER: But by interim do you mean that it would be inserted but on the understanding that it will continue to be reviewed include - you know, shortly thereafter in the New Year or would it literally be an interim provision having a fixed life?

PN83

MS BOLAND: Well, in the context of the minister's provision I guess the idea is the minister is encouraging parties to, as quickly as possible, I guess, consider this for next year so that - I mean, the minister is conscious of the time and the ability of the parties to consider this, and also that issue of not creating more ambiguities by solving ambiguities so the idea of interim is to deal with the issues for this Christmas and New Year and then encourage the parties to deal with the longer term as quickly as possible in 2013 through the current processes that are available for them.

PN84

THE COMMISSIONER: I understand. Thank you. All right. For our parties interstate can I just advise that we are making arrangements as we speak for a copy of schedule X to be uploaded onto the FWA web site. Copies will also be distributed to each of the various hearing rooms in Melbourne, Sydney and Canberra respectively, so you should have it literally very soon. All right. Perhaps we might just start with the local parties who have been most closely involved with the development of the proposal. Who would like to address the matter?

PN85

MR CAIRNEY: I'm happy to, Commissioner .

PN86

THE COMMISSIONER: Thank you, Mr Cairney.

PN87

MR CAIRNEY: Given the number of parties here today, I will keep my initial submission brief. Firstly we also stress our appreciation for Fair Work Australia bringing on this matter on quickly, particularly given the time available. Business SA has been working with the SDA for some time to examine and address the ambiguities and uncertainties arising out of the modern awards, and more recently with United Voice and the state government. So as articulated by the state government, this proposal has the support of Business SA as we have been actively involved in preparing it, so to speak. In regards to your comment regarding annualised salaried employees, I take your point on board, and it might be that that's modified slightly to where applicable in awards or something like that to cater - - -

PN88

THE COMMISSIONER: Yes, there might be a variety of ways of dealing with that.

PN89

MR CAIRNEY: Yes, to cater for that. Look, the reason we have gone down this sort of what I would call a global transitional or interim provision, is given there's 122 awards, and it's less than two weeks before we're graced by the presence of Father Christmas, then obviously there's an urgency to get this done, and in the discussions it has really been that we should deal with 2012 and then we have more time to look at individual awards et cetera, but having said that, we believe that this will overcome the ambiguities and uncertainties that have been highlighted by various parties including the office of the Fair Work Ombudsman. So I might just stop there for the moment. I don't think I need to elaborate at this stage unless you have any questions of me.

PN90

THE COMMISSIONER: No, I understand, Mr Cairney, thank you.

PN91

MR CAIRNEY: Thank you.

PN92

THE COMMISSIONER: All right. Who's next?

PN93

MR BLAIRS: I'm happy to go next.

PN94

THE COMMISSIONER: Yes, Mr Blairs.

PN95

MR BLAIRS: Look, I would echo the parties in thanking the commission for having the hearing or facilitating this hearing at short notice and commend the parties that have worked to try to put this proposal together. I think we were all heading in a very similar direction which is extremely useful. In direct response to the two issues that you raised in relation to potentially changing this proposal to suit specific awards, the proposal was developed on the basis that, or with the intention of, it mentions things like annualised salary.

PN96

If there isn't an annualised salary in the award then that would simply not apply, but it's not necessary to take it out in order for the rest of the clause to make sense.
The clause was designed or drafted specifically to make sense even if things are in there that may not apply to specific awards given, as Rick pointed out, we're reasonably close to Christmas and we don't want to be then sitting down and working out the exact drafting of 122 different awards, and so it was designed with the intention of it being just picked up and glued onto the back of each award.

PN97

In terms of it being interim, the intention is that it will be put in as a schedule which means that the wording of the award is not interfered with; that the processes that are currently being pursued by various parties, applications being pursued by various parties in the full bench proceedings, will still continue unabated and hopefully they will resolve any difficulties or ambiguities or uncertainties on an award by award basis, and fix this up for the future, at which point in time an application can simply be made to remove schedule X in whatever award it is, so that's partly why it has been kept as a separate schedule, because once the issues are resolved specific to a particular award, this schedule can simply be removed hopefully by consent between the parties, but the intention is that this would sit there and - covered for this Christmas, and if for some strange reason there is no consensus between now and next Christmas it could continue to apply ad infinitum, but the intention being that some time in the next 12 months a more award specific agreement will be reached and this can then be dropped off the various awards.

PN98

THE COMMISSIONER: I understand. Thank you. Ms Harrison?

PN99

MS HARRISON: I think I pretty much just echo what the SDA has said. United Voice was also involved in the negotiations of this schedule and we note that, given the time involved, it's really a stop gap-style measure to try and resolve the issues before Christmas. So we don't anticipate that this schedule is a way round any of the current applications before the full bench, or any that may be in relation to the public holidays, but it is drafted with the intention that it won't affect any other state given that there is no declared public holidays on those days, and more specifically, that it goes to prescribing the actual holidays between 7 pm and midnight. So even if there were another part-public holiday, unless they're in those particular hours, it also wouldn't apply to them either. So to that extent we would propose this schedule.

PN100

I do know that in discussions with Australian Hotels Association just before the commencement of this conference it was suggested that there be amendment to 6.1B to adding the words "not worked" at the end of the paragraph; that United Voice would consent to that as well. I think it just clarifies the current wording, but I'm open to the parties in terms of the inclusion or non-inclusion of those particular words.

PN101

THE COMMISSIONER: So just to be clear about that, so this is X.1B?

PN102

MS HARRISON: B. So it would add in - so where it says, "Ordinary rates of pay for such hours," and then to include "not worked".

PN103

THE COMMISSIONER: Right.

PN104

MR CAIRNEY: Commissioner, we would be agreeable to that small amendment.

PN105

THE COMMISSIONER: Yes, Mr Cairney.

PN106

MR EVANS: If it pleases the Commissioner, the Australian Hotels Association would like to make some comments. The association is extremely pleased that you did make the effort to call the matter on quickly and were extremely pleased that the minister has actually made the effort to assist the parties to get clarity over these provisions. Following the passage of the legislation in April, and following raising the matters with the minister in our meetings in March and June, it was quite clearly identified to the minister that there were no explicit public holiday provisions in modern awards; that in particular, the Hospitality Industry (General) Award 2010, which I will refer to as the HIGA.

PN107

THE COMMISSIONER: You mean for part-day public holidays?

PN108

MR EVANS: Yes, part-day public holidays. There was no explicit provisions for that. While there is a reference in section 115 of the employment standards for public holidays, there is no explicit provisions in the modern award for it, particularly the HIGA. In discussion with the minister, he says the only assistance he could provide us would be recommending that we seek assistance from Fair Work Ombudsman. Hence the Australian Hotels Association commenced the process for seeking assistance from the Fair Work Ombudsman, and significant submissions have been lodged in August in response to submissions, and then the Fair Work Ombudsman, which we have to say has been very pragmatic in working with us to acknowledge the seriousness of the issue, particularly for an industry like ours that works 24-7 every day of the year, so this impact was quite significant.

PN109

So the Fair Work Ombudsman lodged the position paper on 17 September which showed very significant impact of provisions because of the "no explicity" of the provisions in the award of how it would apply to a part-day. So you would get someone who may work some time from 7 pm till midnight who could have the minimum of four hours' engagement. Well, that is very significant in our industry. And also because of the impact of the salary provisions. The HIGA does have very specific salary provisions, it has two provisions, and I will be referring those to them in the draft as tabled by Ms Boland. Clause 20.2(b) is the managerial salary (indistinct) provisions and it's a very specific provision which was included in the award following the absorption of the federal managers' award at the commencement of the modern award process in January 2010.

PN110

In addition there are other provisions of clause 27, and particularly at clause 27.5, annual salary rates. Following the receipt of the Fair Work Ombudsman position in September, the AHA, with assistance from Prof Andrew Stewart, made some very strong comments that the assessed position was impractical, and to be very fair to the Fair Work Ombudsman they acknowledged that. We had a provision where, as can be seen, and my assumption, Commissioner, is that yourself and most parties to this room have received a copy, or seen a copy of the position put out by the Fair Work Ombudsman on 5 November.

PN111

THE COMMISSIONER: I have. That's right.

PN112

MR EVANS: That position really identified the issue that was raised, which we're very pleased for - has been raised by Minister Wortley in his letter of 29 November about the overall salary provisions and RDOs. Consequently after the further submissions of September, further submissions of October from the AHA with the support of other associations, including the Restaurants and Catering Association, the South Australian Wine Industry Association and the Clubs SA Association, and also the MTA, the Motor Trades Association, who are all affected by these non-explicit provisions.

PN113

We were able to then - and we had meetings with the Fair Work Ombudsman who were very approachable and very available. The opinion of 5 November came down. Now, on 5 November while understanding what the position that the AHA was seeking would be time worked on those public holidays get recognised time in lieu. So if you did three hours, you would get annual leave provisions of a day in lieu of three hours, or for an RDO. What - - -

PN114

THE COMMISSIONER: Mr Evans, look, I hesitate to do this, just you appreciate that if you want to put the particular circumstances of your award and industry to me, then I suspect not only others will, but then other parties with an interest will want to reply. So, look, I think in that context I'd like to hear what your position is in relation to the proposal that's being advanced, and if there's any particular circumstances for your industry or your award that you should draw to my attention, I think that would be most instructive.

PN115

MR EVANS: I will get to that point shortly. I am leading to that. The position on that exhibit as table now - - -

PN116

THE COMMISSIONER: Yes.

PN117

MR EVANS: - - - by Ms Boland is responding to the issues of concern that were raised following the Fair Work Ombudsman position of 5 November, and that was the issue of the clarity of how the annual salary provisions and RDO provisions would apply. Now, the draft document that has been given to you - and while it is still the AHA's preferred position of the document as provided to you yesterday. As you may be aware, the AHA has got significant submissions in the modern award process that is being heard before the full bench - - -

PN118

THE COMMISSIONER: Yes.

PN119

MR EVANS: - - - and the report as tabled by Gooley C, which includes our submissions at subsection (d), are the provisions which we will continue to push, and I mean push, very strongly before the full bench in Melbourne on 18 and 19 December. That is still our preferred position, and that's what I want to achieve, and I would prefer that we could achieve that today. However, acknowledging the circumstances and acknowledging the effort of the minister and the parties to the table now to come up with a pragmatic resolution to implement quickly, the exhibit as tabled is pragmatic from our perspective.

PN120

It will assist a resolution of the annual salary RDO provisions that were able to be clarified in the Fair Work Ombudsman response that they provided to the award parties who were subject of these matters. So consequently, Commissioner, may I say that the document is acceptable for the proposal of the interim period for 12 months. Item X.1B I appreciate that being acknowledged for the inclusion of the words "not worked." In terms of item X.1D, the HIGA, or the Hospitality Award, does have annual salary provisions, as I have already referred, so we will be seeking that they specifically cover those provisions in the order.

PN121

In terms of X.1E, as I have advised Ms Harrison and Mr Blairs, I appreciate the words "other than an employee who has exercised their right in accordance with X.1B", I think that's a duplication from X.1B, but I will accept it because I believe that it's the agreed position of the majority of the parties, and on that way as it won't totally impede the application of it, Commissioner, I am prepared to accept it.

PN122

While I do appreciate that I have said quite a few words, but I appreciate the patience in listening. I've done that quite deliberately because the amount of effort that the Australia Hotels Association and its parties have done to attempt to clarify this matter since June has been very long, and we actually are very appreciative that the minister did make the effort he did on 29 November to seek an urgent resolution of this, and we appreciate Fair Work Australia's support to facilitate that.

PN123

THE COMMISSIONER: Certain. Mr Evans, I should also make note when I did observe the lack of application to Fair Work Australia by direct parties, I think the one exception to that, at least in my understanding, is the AHA, who did include it in the award modernisation application. So I do acknowledge that.

PN124

MR EVANS: Quite seriously too, the submissions that we have lodged as part of the public holidays provisions, AM2012/215 application, has been to include submissions relating to the clarity of that for the definition of "day" be for time worked - - -

PN125

THE COMMISSIONER: Yes, I understand.

PN126

MR EVANS: - - - on the day. That is our preferred position, and I will be pursuing that with the full bench next week.

PN127

THE COMMISSIONER: I'm on the full bench, so no doubt you can have another run then.

PN128

MR EVANS: I will be speaking.

PN129

THE COMMISSIONER: Mr Eblen?

PN130

MR P. EBLEN: If the commission pleases, the Motor Trade Association also endorses the comments made. We're grateful to the commission for bringing this matter on at short notice. It's fair to say that the proposal as outlined today for the first time would appear to be acceptable for an interim period. I suppose the only other comments I should make are that this matter of course came out of a negotiated arrangement between the SDA and Business SA relating to retail, and as with all matters where two parties are involved, the flow-on effects turned out to be quite significant for a wide range of service industries like our service stations and so on, and essential services and hospitality.

PN131

The effect of this was that we all formed a business coalition to look at both the economic impacts and the IR impacts, and how they be dealt with having regard to the NES, wine industry of course included. The result of that historically has been a series of negotiations as our friend said with the Fair Work Ombudsman on an individual basis, starting back in August with a view to coming up with a solution that could have been put to the Fair Work Ombudsman.

PN132

Unfortunately with all the cooperation in the world, it wasn't achievable by the time the closure of the second year of review occurred, and that's why basically we have a lot of awards where the realisation of the impact wasn't there, including our relative partners interstate who we involved with FWA. In a nutshell, therefore, the history of it has been, yes, staggered with hindsight, but planned quite far ahead as far as we could leading up to this hearing. Therefore thank you, and the variation I agree in the interim we would be prepared to look at and accept. We don't have annualised salaries in our award, but nevertheless the variation appears to have flexibility. Thank you.

PN133

THE COMMISSIONER: Mr Eblen. Yes?

PN134

MS S. HILLS: If the commission pleases. Look, I think in principle and - Sarah, sorry, appearing for the Wine Industry Association. Having just had a brief look at this and the context of the Wine Industry Award, I guess in principle I could agree to, on behalf of the association, the position presented as an interim measure. I can't see anything at this stage. There are other issues, as been raised, but would be raised specifically and we may look at amending our application for the award review which will be heard next year. So as part of that, but we will see what happens next week. Thank you.

PN135

THE COMMISSIONER: Thank you, Ms Hills. Anyone else wish to be heard? Mr Storey?

PN136

MR A. STOREY: Commissioner, SA Unions commends the parties for coming up with the proposal set out in schedule X. We support it on the basis that it's an interim arrangement, and we're aware that there are thousands of other state public sector employees in emergency services, police, nurse, maintenance employee, who under state legislation will have the benefit of this public holiday arrangement on Christmas Eve and New Years Eve, and as best we can ascertain the situation, they will do so in line with the sort of arrangements being outlined in schedule X. In other words, in the state area for other public sector employees these definitional issues have not arisen and aren't perceived to be a problem.

PN137

Now, someone may come forward, and this is not a discussion that you need to bother yourself about, Commissioner, but just to know in the background that this is applying only to South Australian private sector employees subject to these public holidays, and we're satisfied that this arrangement is consistent with the treatment that other South Australian emergency employees will be receiving, and we commend it to you.

PN138

THE COMMISSIONER: Thanks, Mr Storey. Anyone else? Yes?

PN139

MS J. ROGERS: Jess on behalf of the CEPU. This is the first time that I seen the proposal. We would definitely seek more time to have a look through our awards and see what effects it will have. I do have a couple of concerns, so at this point we would just seek some more time to assess what that is going to actually mean for us.

PN140

THE COMMISSIONER: All right. Thank you. Look, just before I call on the parties representative I call on the parties in the other state venues, can I clarify with the local parties that are supporting the proposal at least, is it accepted by all of those parties that there are ambiguities or uncertainties in the awards concerned and, secondly, are you proposing or supporting an approach whereby Fair Work Australia utilises its own powers to vary the awards to remove the ambiguities or uncertainties?

PN141

MR CAIRNEY: I'm happy to go first, Commissioner. Look, we acknowledge that there are some uncertainties and ambiguities within the awards, and having recognised that this is the solution, at least on an interim basis, that we're looking to resolve and, secondly, yes we are seeking the tribunal's discretion to address such ambiguities and uncertainties which obviously the tribunal has that discretion to do so, and I have not heard anyone at the bar table, but I understand why you're asking the question - I haven't heard anyone at the bar table say anything other than yes there are ambiguities and uncertainties.

PN142

THE COMMISSIONER: Perhaps taking up that point, does anyone have a contrary view might be the more efficient way to do this?

PN143

MR EVANS: On behalf of the AHA, I'm quite comfortable that we provide you with a document that you can apply with specific references to aspects of the HIGA, ie the annual salaried arrangements.

PN144

THE COMMISSIONER: My question is about whether or not there is an acknowledgment that there are ambiguities or uncertainties, because that's a necessary jurisdictional trigger and, secondly, if there are ambiguities or uncertainties, is it the joint position that the tribunal exercise it's own powers to correct. That was the point of the question.

PN145

MR EVANS: I'm okay with that, but I think each party could actually assist you by identifying some specific to their award as well.

PN146

THE COMMISSIONER: Right. I understand. That's a process issue I'll have to come to at the end.

PN147

MR CAIRNEY: Can I just perhaps comment on that. I understand Trevor's point but there is an urgency about this matter, and I would put to the commission that it's at the commission's discretion as to what it needs to be satisfied if there are ambiguities and uncertainties, and as I have heard when you put that proposition just then, nobody is suggesting there are not any ambiguities or uncertainties. I'm just very mindful, as we all are, sir, that there is a time factor here.

PN148

MR EBLEN: I think, too, if - - -

PN149

THE COMMISSIONER: Mr Eblen?

PN150

MR EBLEN: - - - the commission pleases, it's very clear that we all need the commission - sorry, the tribunal - - -

PN151

THE COMMISSIONER: You'll be right in two weeks anyway so don't change after all these years.

PN152

MR ..........: A few of us have, I'm afraid.

PN153

MR EBLEN: The Fair Work review fast version will be in in two weeks. You're right. I think it's very clear that we need something in place. We need direction from the tribunal. Unintended consequences are there. We can think of a few. We are surveying industry ourselves, a group of us, the business coalition of employers, as to the consequences, and to do more than say there are clearly ambiguities, I think would waste a lot of the tribunal's time. We can ramble off half a dozen, but in reality after the event we'll be in a better position to see what we haven't covered, and I don't think that matters. Thank you.

PN154

THE COMMISSIONER: All right. Mr Blairs?

PN155

MR BLAIRS: Commissioner, just very briefly as a legal answer to your question, section 160 gives the commission the power of its own determination, or its own initiative to make a determination, and that would be the specific power I think we would be seeking for Fair Work Australia to utilise, and they can make determinations to vary a modern award where there is an ambiguity or uncertainty.

PN156

So it would be our submission that it's sufficient that there is uncertainty. It doesn't necessarily need to be a finding of an ambiguity in order to exercise this discretion, and I think the position of the parties has, at the very least, around this table, the local parties, been that there is some level of uncertainty in relation to the operation of this public holidays legislation, and we would assert that is sufficient for Fair Work Australia to intervene and exercise its powers under 160.

PN157

THE COMMISSIONER: Very well. So no contrary views? All right. Now, if I have seen accurately on the video-link, I believe copies have been provided whilst we've been hearing from the local parties so to speak. I appreciate that like me you have only just seen the material, but perhaps starting in Melbourne, who would like to either put a general position and/or position on the proposal that's been advanced this afternoon?

PN158

MR S. SMITH: Yes, thank you, Commissioner. It's Smith, initial S, from AI Group. We, like others, appreciate the responsiveness of the tribunal in convening the conference. We do have a substantial membership in South Australia and, as I think Mr Eblen has said, the problem with this issue is there are huge consequences for numerous industries, whether they be airlines, manufacturing operations, service stations, and the fact that this all started in the retail industry without, in our view, consideration of all of these issues, is something that we have expressed some strong views about.

PN159

We have also been through quite an extensive process of consultation with the FWA about particularly the Manufacturing Award and the Food Manufacturing Award and, as you can see, Commissioner, from the correspondence that we sent through this morning, the versions of the two position papers for those two awards that were up on the FWA's web site have been taken down, and the latest position of the FWA is as set out in the draft documents that we provided this morning. I did speak to senior officers of the FWA this morning, and they were supportive of that email being provided, and those draft papers, and they did say in that email that they are looking to finalise those documents as soon as possible and get those later versions up on the web site.

PN160

But one of the problems we have is we have worked through all of those issues at great length, and now we have a set of words here that we have had no involvement in and, for example, just to highlight a few problems, in paragraph (a) there is no reference to reasonable refusal, and obviously that is inconsistent as drafted with the NES because if you're an airline or you're a continuously operating steel plant, you can't have your employees all walking out and your plant just completely closes because they don't want to work. The concept is reasonable refusal. So in our view that word would have to go in.

PN161

The other major issue is paragraph (e). Now, this is drafted with awards like the Hospitality Award in mind no doubt. But there are numerous awards that don't provide an entitlement to another day off or another day's pay or another day of annual leave if an RDO falls on a public holiday. You know, awards like the Clerks Award, the Contract Call Centre Award, the Telecommunications Award, and some awards have a very different approach, like the Manufacturing Award which, as you will see, Commissioner, in that paper, the approach is that if the majority of hours fall within the window between 7.00 and midnight, they will get 7.6 hours pay, or the other options.

PN162

But it's very common, for example in the manufacturing industry, to have an afternoon shift from, say, 2.00 til 10.00, and in that circumstance people will not get another day off or another day's pay. So as drafted (e) is going to cause a lot more problems than are solved in our view. So we would support that position that was put by the - I think it was the CEPU that this needs to be circulated and parties have the opportunity to raise general issues of concern or support and specific issues relating to specific awards. If the tribunal pleases.

PN163

THE COMMISSIONER: Good. Thank you, Mr Smith. All right. Anyone else in Melbourne?

PN164

MS E. McCOY: Yes, Commissioner. It's McCoy, initial E, for the ACTU. We have been aware that discussions were going on between the parties in South Australia over the last 48 hours, and we have attempted to alert our affiliates to this conference. I am concerned that there are a number of unions that are not present that would like an opportunity to comment, and we would support what the AI Group has said in the sense that it should be published on the web site so that all parties with an interest can make submissions.

PN165

Having said that, the ACTU is generally comfortable with the approach that is being proposed. We support an interim solution, and when I say that I should acknowledge that the clause doesn't include a drop dead date and, you know, if it works this Christmas/New year season then there may well not be any need to adjust the clause, and we appreciate that a general - an attempt has been made to draft a general clause that could apply in all awards.

PN166

I do have some comments on the specific wording of the clause. I don't really want to go into that today because we haven't seen the final proposal until today, and I would like an opportunity to consider our position and provide feedback after the conference. I'm not sure whether it's easier for parties to do that before or after your report goes to the full bench, but in any event we would like an opportunity to comment after the conference today. That's all I have to say at this point in time.

PN167

THE COMMISSIONER: Good. Thank you, Ms McCoy. All right, who's next?

PN168

MS R. REED: Commissioner, Reed, for the CFMEU. I think, as with the other parties here in Melbourne, we have not seen this proposed clause until today and it's something we're - it has broader application than perhaps has been considered by the parties drafting it, particularly implications for awards outside the retail and hospitality industries, and we would appreciate the opportunity to consider it further.

PN169

THE COMMISSIONER: Thank you.

PN170

MS V. WILES: Commissioner, Wiles, initial V, for the TCFUA. We would support the submissions made by the ACTU and the CFMEU. We are concerned that potentially in fixing a perceived problem, further ambiguities might be caused in awards without having an opportunity to really consider the effect of the clause. So in that sense we would support the parties and other affiliates who weren't able to be here today and have an opportunity to consider the clause in detail and make submissions in that respect.

PN171

THE COMMISSIONER: Thank you. Anyone else in Melbourne?

PN172

MS A. BUCKLEY: Buckley, A, for the Australia Retailers Association, if I can, Commissioner.

PN173

THE COMMISSIONER: Yes, Ms Buckley.

PN174

MS BUCKLEY: I would also support the views taken by AI Group, the ACTU and the CFMEU. Although we don't think it departs greatly from that under the Retail Award, we would take some time to consider it if we can, having not seen the schedule prior to the conference today. Thank you.

PN175

THE COMMISSIONER: Very well. Thank you.

PN176

MR G. RAPTIS: If the Commissioner pleases, Raptis, G, for Master Grocers Australia. We also support the submissions here by our learned colleagues here in Melbourne and appreciating the fact that the proposal was only just addressed to us today, we would appreciate an ability to review it and pose a submission regarding how it affects the General Retail Industry Award. Thank you.

PN177

THE COMMISSIONER: Thank you. Is that it for Melbourne?

PN178

MR RAPTIS: Yes.

PN179

THE COMMISSIONER: Yes. Very well. Thank you. Sydney?

PN180

MS G. STARR: Thank you, Commissioner. It's Ms Starr for the AMWU. I would just quickly like to come back to the comments which were made - which were put by Mr Smith in relation to the Fair Work Ombudsman's position paper which has been circulated. We really just raise this so that you are aware that we disagree with the interpretation that has been put by the Fair Work Ombudsman, and it appears to us, and it concerns us, that what may be occurring is that they are actually reaching beyond the words of the award, in this case the Manufacturing and the Food and Beverages - sorry?

PN181

THE COMMISSIONER: Yes, you're right.

PN182

MS STARR: Sorry, Commissioner, did I - there was some - - -

PN183

THE COMMISSIONER: There was a short break but, yes, you're right now.

PN184

MS STARR: Okay. So I was just saying so we do have some concerns with the interpretation that the Ombudsman has reached, and I was just saying that we actually think that it extends beyond the words of the award itself, which troubles us greatly, but I guess for the - and what we see is happening is that they're trying to make the award fit into - interpret the award in a way to apply two part-day public - part-day public holidays, which is problematic. That said, their view insofar as it applies to the application of the award and to part-day public holidays may be entirely moot if the parties are able to reach some sort of consent arrangement on the proposal, be that interim or otherwise, and which might be inserted in the schedule - into a schedule in each of the modern awards.

PN185

As the other unions have said, we would be happy to consider the proposal, and we would support a sensible timetable to ensure that we are able to do that. I think, Commissioner, you already noted that it may require some tailoring of that proposal to each of the - so that it fits with and is consistent within each of the relevant awards in which it's placed, otherwise it's only going to create greater ambiguity and uncertainty for the parties in its application. So we would just stress that it's important that we have an opportunity to review the proposal in the context of each of the modern awards.

PN186

THE COMMISSIONER: Very well.

PN187

MS STARR: Thank you.

PN188

THE COMMISSIONER: Thank you. All right. Mr Kentish?

PN189

MR KENTISH: Commissioner, Mr Kentish from the CEPU national. We support the submissions of my colleague in South Australia from the CEPU and those other parties who have still got more time. We haven't seen these words until this afternoon and we'll need some time to digest them. There would appear to be a range of issues which perhaps aren't contemplated by those clauses, or maybe they are. It's difficult to know, having only seen it very quickly. But issues which bring to mind include what happens to employees who are on call, what happens to employees who are travelling on travel time, or who are presently the subject or are going to be the subject of an annual closedown. So we really need at least a reasonable period of time before we would be able to indicate our support for the proposal. If it pleases.

PN190

THE COMMISSIONER: Thank you.

PN191

MR PARKES: Commissioner, Parkes, initial G., on behalf of Restaurant and Catering Australia.

PN192

THE COMMISSIONER: Yes, Mr Parkes.

PN193

MR PARKES: We represent hundreds of small businesses in South Australia affected by this matter, and in particular under the Restaurant Industry Award. There is an enormous amount of uncertainty because of the Fair Work Ombudsman and documents that have already been circulated. We'd like to stress the urgency of the tribunal issuing variation orders so that we can communicate that to those small businesses so that they have some clarity about what will apply on 24 December this year.

PN194

I note in your earlier address you mentioned customisation, and I think the parties need an opportunity to review this schedule X which has been proposed. But given the urgency, what I would propose is that a time limit be put on that of, say, 4 pm this Friday for the parties to respond to the tribunal with any customisation or variations, and that then the report is provided to the full bench for next week. But we certainly need something by the tribunal by next week, and I note the Mayan calendar comes to an end next week, so you obviously need something by then.

PN195

THE COMMISSIONER: Well, perhaps we don't. We can all go home.

PN196

MR PARKES: Yes. So if we could emphasise that need for something to (indistinct) as early as next week, it would be greatly appreciated. If the commission pleases.

PN197

THE COMMISSIONER: Very well. Thank you.

PN198

MS JENKINS: Commissioner, Jenkins from ABI.

PN199

THE COMMISSIONER: Thank you, Ms Jenkins.

PN200

MS JENKINS: We acknowledge that there are ambiguities in operation of the part-day public holidays and how the various awards treat them. We don't object in principle to what is trying to be achieved between the parties in proposing the schedule and achieving certainty. Essentially we're trying to quarantine the issue so that the schedule only affects South Australia at this time. To this end, we would question whether this particular schedule does need to be inserted into every award, and as part of considering the insertion of this schedule, we would recommend a list of awards be developed that would be affected by the proposed schedule, and that this list would be distributed as part of the period Mr Parkes is suggesting that we have to consider all of the awards.

PN201

ABI would require additional time, having only seen the proposed wording this afternoon, like many other parties, and would require the time to determine how the schedule would operate in the various awards. We would also echo the comments made by AI Group about the omission of the term "reasonable", and we submit that it should be inserted. If the tribunal pleases.

PN202

THE COMMISSIONER: Very well. Thank you. All right. Mr Calver, I think, you're on.

PN203

MR CALVER: Thank you, Commissioner. Master Builders has a substantial presence in South Australia through Master Builders Association of South Australia, and I've consulted extensively with the association. We support steps to vary awards to remove ambiguities, but we do that in the context of substantial concerns with schedule X that has been provided today, just on a quick look at it. We think that it offends section 55(1) and 55(4). It purports to override any provision of the award relating to public holidays. As you'll be aware, Commissioner, a modern award or enterprise agreement cannot exclude the NES pursuant to section 55(1) and can only supplement the NES, so the extent that it purports to override any provision in the NES is out of power. Secondly, I also - - -

PN204

THE COMMISSIONER: Mr Calver, surely it's a question of whether it does actually do that. Obviously what you say is correct, but are you suggesting that it does purport to do that?

PN205

MR CALVER: Well, by its own terms it does, it says "and will override any provision in this award relating to public holidays". Most awards are expressed, as is clause 41.1 of the Building and Construction General On-Site Award, which says public holidays are provided for in the NES, ergo the schedule cannot override that provision in the award.

PN206

The second point that I make relates to the point that was taken up by Mr Smith about the way in which the NES would interact with the schedule in relation to the way that sections 114(2), 114(3) and 114(4) operate. It's not only in respect of reasonableness but the factors which might apply and the whole jurisprudence that has grown up around that particular area of reasonable requests. For example, even if an employee does have good reasons for refusing their employer's request to work on a public holiday, if they don't explain those reasons to the employer, then the refusal to work will not be reasonable. I refer the tribunal to Pietraszek v Transpacific Industries Pty Ltd (2011) FWA 3698 to substantiate that.

PN207

So in that regard, this schedule needs substantial overhaul. I also believe that the nub of this matter derives from an essential trouble that the NES provides in this context, and I hate to contradict any of my colleagues, but part-day provisions are provided for in the NES, and section 89(1) in that regard says:

PN208

If the period during which an employee takes paid annual leave includes a day or part-day that is a public holiday in the place where the employee is based for work purposes, the employee is taken not to be on paid annual leave on that public holiday.

PN209

THE COMMISSIONER: Mr Calver.

PN210

MR CALVER: Yes?

PN211

THE COMMISSIONER: Just so that we don't have endless replies, parties defending their positions, I understood that the parties that spoke earlier indicated that the modern awards don't expressly deal with public holidays. I don't think anyone has suggested that the NES doesn't provide for part-day - indeed, it does, and of course, given that there are so many part-time employees, it obviously has to as well in that context. So I just make that comment - - -

PN212

MR CALVER: Yes. Commissioner, that reinforces my point that the schedule can't exclude the NES, because public holiday provisions are expressly taken up in most awards from the NES. So 89(1) proceeds along the lines that I've just indicated. The ambiguity that I think arises in most of the contexts that we've been looking at then arises because of the interaction between 89(1) and section 116, which says:

PN213

If, in accordance with this division, an employee is absent from his or her employment on a day or part-day that is a public holiday, the employer must pay the employee at the employee's base rate of pay for the employee's ordinary hours of work on the day or part-day.

PN214

In our submission, the ambiguity in the NES can be properly resolved if the words "on that public holiday" in 89(1) are interpreted in the context of part-day holidays to mean ordinary hours that fall within the part-day, so that those ordinary hours are not taken to be annual leave, that the employee is instead entitled to payment pursuant to section 116 for that period which coincides with the part-day public holiday.

PN215

Now, from our analysis of the FWO material, that seems to have been the implicit approach that the FWO has taken. So in order to vindicate their position, we believe that whilst the schedule is a good idea, a decision from FWA that a necessary interpretation of section 89(1) is that implicit in its terms is that where a part-day holiday occurs, ordinary hours that fall within that part day are not taken to be annual leave, would assist to resolve most of the ambiguities that are inherent in the problem which has been created by the passage of section 3B of the Holidays Act 1910.

PN216

So to reiterate, this matter cannot be divorced from the NES, the NES overrides modern awards, and the schedule of the modern award cannot be expressed to do the opposite. Secondly, provision in a modern award which supplemented the NES to deal with these matters we believe and submit should take into account the ambiguity generalised by the interaction of sections 89 and 116. In that regard, the schedule should also take into account the fact that the notion of reasonableness and the manner in which the NES has been interpreted seems to be antithetical to paragraph D and paragraph E of the way the schedule is drafted, and that therefore, I think, needs a great deal of attention.

PN217

Having said all that, it is a technical issue, and whilst the technical issues are sometimes confounding, we think that there is a solution in the manner that we've proposed, and we do support, where that interaction between the NES and the modern awards is able to be explicated, varying the modern awards to remove that ambiguity in the context of the FWO's position being able to be vindicated on the interpretation that I place before the tribunal. If it please the tribunal.

PN218

THE COMMISSIONER: Thank you, Mr Calver. All right. Just picking up a couple of issues that have been raised. Firstly, I accept completely that all parties actually need a bit of time to consider the implications of the drafting, and whatever I do from here, I will make arrangements for that. One of the factors I need to take into account is that in some senses, the earlier I can publish a report, the better, in terms of public awareness and opportunity to respond. But the earlier I do that, the less opportunity there is for parties to actually give detailed consideration and to provide meaningful responses that I can include in the report. So I will need to liaise with the President about this, because this impacts on how the full bench will deal with the public holiday matters more generally next Wednesday. So I will have to liaise with the President.

PN219

But my intention would be either by delaying the production of the report and putting the - I think the schedule is already on the web site, but issuing some directions about further submissions, I will facilitate further directions; alternatively, if I think the appropriate course of action is to issue the report with the current schedule and the President then issue directions so that parties have an opportunity to provide submissions directly to the full bench, then we'll do that. Either way, there will be opportunity for parties to provide further comments, but in relation to the substance and the detail of the schedule.

PN220

The second point I would make is that I think some degree of customisation might be required on an award-by-award basis. With the best will in the world, I don't think a model clause is going to quite do it, because unless it's carefully worded, it might itself create some ambiguities, because if there isn't a parallel provision, and the clause suggested there is, then that of itself creates uncertainty. There are some issues about the relationship with the NES that have been raised. I would need to think that through further. All right. But having said that, are there any other comments or responses that parties want to make?

PN221

MS McCOY: Commissioner, if I might just briefly comment in response.

PN222

THE COMMISSIONER: Yes.

PN223

MS McCOY: Yes. I appreciate that the parties have been given an opportunity to comment. Just briefly, in response to some of the issues that Mr Calver has raised, I suspected there was no intention to override the NES, and my reading of the clause is that it is not inconsistent with the NES, it overrides the award provisions - - -

PN224

THE COMMISSIONER: Well, that would be the issue.

PN225

MS McCOY: If the words were added, "to the extent of any inconsistency", at the end of the first four words, that wouldn't (indistinct) other award provisions; for example, award provisions dealing with rest breaks are not excluded by this clause. I think that also probably addresses the issues that were raised by AI Group about subclause (a) and there not being any reference to the word "reasonable". That subclause is qualified by the words provided for in the NES, and consequently our reading of the clause is that it simply picks up on what's in the NES, and qualifies some of the award provisions. So that's my understanding of the provision, so we don't see that there would be any conflict with the NES. In relation to the timetable, I think somebody mentioned this Friday for feedback. We appreciate that a number of the parties are currently preparing for hearings next week, and - - -

PN226

THE COMMISSIONER: Well, I'm involved in all of those.

PN227

MS McCOY: And that we have an interest in 10-plus awards, so it will be useful if the timetable (indistinct) longer than this Friday, at least Monday, possibly the end of this week if that were possible. But I (indistinct) Christmas.

PN228

THE COMMISSIONER: Ms McCoy, look, the difficulty with that is that there's probably only one opportunity for the tribunal to deal with it, and that will be next Wednesday.

PN229

MS McCOY: If we could have until Monday, that would be appreciated.

PN230

THE COMMISSIONER: I understand. Look, obviously I'll have regard to that, together with other considerations, including those I've alluded to earlier in terms of coordinating what I do as against what the President might do on behalf of the full bench. I understand what you've said.

PN231

MS McCOY: Thank you.

PN232

THE COMMISSIONER: All right. Any other comments? In Melbourne? Yes? No? Sydney? No? Anything further, Mr Calver?

PN233

MR CALVER: Just, your Honour, in relation to the drafting of X(1)(a), employees will have the right to refuse to work on the part public holiday provided for in the NES, the clause provided for in the NES is a conditional clause, and that which it conditions in the wording which precedes it is ambiguous. All employees will have the right to work as provided for in the NES, I think is what's intended. So if nothing else, that provision should be sharpened. If it please the tribunal.

PN234

THE COMMISSIONER: Okay. All right. Anyone else in Adelaide? No? All right. Well, look, firstly, I would commend the parties on taking what I describe as a late but nevertheless very proactive approach to try and advance a resolution here, and in that context, I think both the approach from the minister and the President's response have assisted us to reach this point. There are issues about how this should be done, and in that context there are significant issues that would need to be resolved. However, I think there is an appropriate foundation against which we can take some further consideration.

PN235

It is likely, bearing in mind that not only would I want to facilitate an opportunity for parties to make comments, I would also want to facilitate some broader discussion, because I suspect that some of the issues that have been raised have already been considered locally and a resolution reached. But because other parties are not subject to that sort of discussion, you come into it with a different approach and almost inevitably we all have different drafting styles. So, look, there are some substantive issues, I think there will be some customisation, I also think there will be some benefit in having parties that haven't been involved in the local discussions involved in the broader discussions. So the process that I'm envisaging will allow for that to occur, perhaps before you finally commit your positions to the full bench, because I think that might be productive.

PN236

I think a debate about drafting before the full bench isn't going to be terribly edifying, so to the extent to which I can minimise that, obviously I will try to do that. So I commend the parties on their approach today. I will consider what has been said, I'll make a report to the tribunal, and either by way of that report or by other directions that might be issued by the President, we will provide an opportunity for parties to come in on the matter generally, including what is currently drafted as schedule. The tribunal will be adjourned.

<ADJOURNED INDEFINITELY [3.35PM]