AM2014/81, Transcript of Proceedings [2014] FWCTrans 765 (9 December 2014)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1051067-1

JUSTICE ROSS, PRESIDENT

AM2014/81

s.156 - 4 yearly review of modern awards

Four yearly review of modern awards
(AM2014/81)
Pharmaceutical Industry Award 2010

(ODN AM2008/42)
[MA000059 Print PR988703]




Sydney

9.33AM, FRIDAY, 28 NOVEMBER 2014

Continued from 17/11/2014

PN1

JUSTICE ROSS: Can I have the appearances please?

PN2

MR J. MORIARTY: Moriarty, initial J, from the AMWU.

PN3

JUSTICE ROSS: Thanks Mr Moriarty.

PN4

MS J. GHERJESTANI: Gherjestani, initial J, for the Australian Workers' Union.

PN5

MR B. GOVIND: If it pleases the Commission, Govind, G-o-v-i-n-d, initial B, and I appear for the SDA.

PN6

MR B. FERGUSON: Ferguson, initial B, for the Australian Industry Group and with me is MISS R. BHATT.

PN7

JUSTICE ROSS: Thank you.

PN8

MR ARNDT: Arndt, initial J, seeking permission to appear on behalf of ABI and the New South Wales Business Chamber.

PN9

JUSTICE ROSS: Any objection to the application for permission?

PN10

MR FERGUSON: No objection.

PN11

MS GHERJESTANI: No objection.

PN12

JUSTICE ROSS: Permission is granted on the basis of having regard to the complexity of the matter, the matter will be dealt with more efficiently. Look, I thought what we might do is go through the summary of submissions, and it seems that there are some issues - we shouldn't spend any time on the ones that are going off. I'm not quite sure what I'm going to do with absorption yet, but I'm pretty sure I won't be dealing with it on an award by award basis, and the other stuff in relation to the casuals bench and all that sort of stuff will eventually go there, so let's not take any time up here.

PN13

I really just want to focus on some of the technical changes and then, when we get to it, I'm not quite sure I understand the dimensions of what you're arguing about in the substantive bit at the end, nor am I sure about how you want that dealt with. Because if it's just dealt with - if it's an argument to increase or decrease the safety net in some way - that's what in essence what it is - there's no evidence, there's no material on it. You need to make a decision about whether you're going to press it or not press it.

PN14

If you're going to press it and you don't put in more material it's likely it will just get dismissed. Now I say all of that without looking at all at the merit. If I could characterise it that way, if for example you wanted to - the unions wanted to say - and I'm not suggesting that's what this is but "Instead of having to work three hours before you get higher duties, you only have to work two". If that was your claim and it wasn't based on what's in the current award - similarly if the employers wanted to go the other way.

PN15

If at the moment you had to only work two hours to get it and you wanted to push it out to three I can understand why you both might want that, but why would we do it? There's no real - there's no evidentiary basis either way, so at some point you're all going to have to decide what do you want to do with that substantive issue. I don't think there's much point in running something up a flag pole with no case, and it just sort of invites it to be, you know, belted to the boundary. So when we get to that we'll discuss where you want to go on that, and if you want time to think about it that will be fine too.

PN16

MR FERGUSON: And there may have been some developments.

PN17

JUSTICE ROSS: All right. So if we just - this all seemed like a good idea at six in the morning when I did all these tabs, but finding my way through them is going to be a challenge. If I can just deal with going off the summary document, the first item then is item 2 and this is an AWU proposition. Look, for what it's worth I won't be expressing any sort of concluded view on it but I will be making some preliminary observations as we go through that will affect both the unions and the employers by way of encouraging you to perhaps rethink your position in relation to it. In this one unless I'm wrong it seems to me that you want to repeat what is elsewhere. Yes?

PN18

MS GHERJESTANI: Yes, I (indistinct).

PN19

JUSTICE ROSS: Yes. You simply want to repeat a provision that is elsewhere in the award in the context of 6.2. Because the point you're raising, it seems, is already mentioned in clauses 8.2(a) and 8.3(b), is that right?

PN20

MS GHERJESTANI: That's correct, your Honour. We just thought to clarify the clause, however we no longer press that.

PN21

JUSTICE ROSS: Okay, I thought the risk in - I understand why you'd want to do it.

PN22

MS GHERJESTANI: Yes.

PN23

JUSTICE ROSS: The risk in a drafting sense is if you do it in this instance and you repeat for emphasis but you don't elsewhere, that might - you know, there's no end of creative lawyers. That might give a lawyer an argument to say, "Ah, well, it wasn't done here and it was done here so it means something different". Okay, so that's gone. Then we're at - we're now dealing with number 3, ABI. Look, the proposition here is - and Ai Group supports you - just bear with me for a sec.

PN24

In short, you don't like the "is required to attend for work" and would prefer the "per day per shift". I must say looking at I don't see how it has been altered. I think the language has been altered but I don't see what other construction one could put on those words other than it's when you attend. The same with the current words, "per day or shift"; well you foreshadow that the clause has arguably been altered but what you don't say is what do you think it could mean other than if you're called in for a shift.

PN25

The way I would read that, it makes it easier for the employee to understand, "If I've got to go to work, I'm there for a minimum of three hours. If I'm called in, it's a minimum of three hours". It doesn't - you don't have to complicate it by is it a shift, is it a day. But what I'm interested in is your concern that it might have altered the meaning. That might just be a cautious position on your part, that the language has changed therefore there's a risk. But I want to know in what way could it have altered the meaning?

PN26

MR ARNDT: I mean, at the risk of appearing like a creative lawyer - - -

PN27

JUSTICE ROSS: God forbid.

PN28

MR ARNDT: I mean, I think your Honour is correct in that it is really an abundance of caution. I mean, to try and conceptually think of a time when one would be required to attend work but not to work, could you say that someone would be required to attend for some other purpose, administrative or for a Christmas party or some other thing, some other - - -

PN29

MR FERGUSON: It could possibly be a Christmas party.

PN30

JUSTICE ROSS: I sometimes think ours are like that. Yes.

PN31

MR ARNDT: I hear your Honour, but it really is an abundance of caution and really we've put that because there doesn't seem any reason why it needed to change and it could be open, albeit in a very small sense - - -

PN32

JUSTICE ROSS: Well, can I put this to you? Would it meet your concern if when it's dealt with in a decision, for example, it would note the change and note some concerns were raised that this may give rise to a shift in meaning. There's no shift in meaning intended.

PN33

MR ARNDT: That would - - -

PN34

JUSTICE ROSS: And it's made express that it's not intended to change - - -

PN35

MR FERGUSON: The immediate caution that jumps to mind - and I haven't looked through the award in its entirety - is situations where attendance at work might occur at multiple times in a particular day. For example, a break in shift and I've looked and seen - - -

PN36

JUSTICE ROSS: Yes, not in this award.

PN37

MR FERGUSON: - - - the hours need to be worked continuously so it probably doesn't arise.

PN38

JUSTICE ROSS: Yes. No.

PN39

MR FERGUSON: I don't know if call backs arise as a matter of practice.

PN40

JUSTICE ROSS: Well, you wouldn't call back a part-timer, would you, if you've got a minimum three hour engagement? Because you get call back allow - it's mainly - yes.

PN41

MR FERGUSON: But they're these things that - - -

PN42

JUSTICE ROSS: Yes.

PN43

MR FERGUSON: Which arise to - - -

PN44

JUSTICE ROSS: Well, have a look at those issues and if that's - then we can deal with those. But I think - look, I'd be minded to say that it's not intended to change the meaning. But if you have a look at - and if there's that level of complication then - - -

PN45

MR ARNDT: We may need to have another look at it.

PN46

MR FERGUSON: The truth be told, that may not be an issue in this industry.

PN47

JUSTICE ROSS: No, no, but it might be in another one and, like all these things, you take a clause and if it has a settled meaning in one award, drop it into another and you might be in trouble. But is everyone content to proceed on that basis with that one? All right. Four, that's been the casuals. Five, yes this is a curious one. On the face of it I think some ambiguity arises in the draft 8.2 and it's the unions identifying (d) because - and I think Ai Group on the face of it's right too, that it shouldn't have (d) because in fact clause 6 doesn't deal with ordinary hours of work for casuals and part-time.

PN48

MR FERGUSON: No.

PN49

JUSTICE ROSS: It would be quite misleading to leave (d) in there I think, and (d) creates two problems. It creates a problem for the unions because it gives rise to an inference that clause 8 doesn't apply to casuals and part-timers, you find their provisions in clause 6, and Ai Group correctly raises, "Well, you don't find anything like that in clause 6 so where is it dealt with?" So on the face of it deleting (d) might solve both your problems.

PN50

MR FERGUSON: The ordinary hours are dealt with in a non-exclusive way - - -

PN51

JUSTICE ROSS: That's exactly right.

PN52

MR FERGUSON: - - - in another clause so - - -

PN53

JUSTICE ROSS: Yes. What do you think about that, if we delete 8.2(d)? Could I tell you how I'm proposing to - once we've finished this, there will be a new exposure draft sent to you. It will note up the changes and you'll have a sort of final run opportunity to say anything about it. But it does seem on the face of it that that might be a solution that works for both of you. Do you want to have a - anything anyone wants to say about it now? Any reservations or concerns at the moment that you want to express?

PN54

As I say, it will be circulated fairly quickly. It will be a pretty quick look at it. I'll probably get it to you either later today or Monday, or maybe Tuesday, with probably till the end of the week or, you know, a week to have a look at it type of thing. So we won't have another conference. But I don't want to close it off, but I want you to have a look at, "Oh, that's what it looks like. Do I still have a concern?" type of thing.

PN55

MR FERGUSON: We can't envisage any concerns.

PN56

JUSTICE ROSS: No, okay. Well, you have a think about it and have a look. 5A, this is an AMWU issue. This is the - I wanted to ask you about this, that when you look at the current clause - I wasn't sure what the view was of the employers. We'll maybe get that first and then you just explain to me what the problem is. It's really just saying that you maintain the spread but you might shift the start and finish point.

PN57

MR FERGUSON: Yes.

PN58

JUSTICE ROSS: And that's the intent of the clause so we want to make it clear, and whereas the current clause talks about:

PN59

The spread of hours may be altered by up to one hour at either end of the spread.

PN60

The concern is - well, the suggestion there is you might chop an hour off and have a shorter spread, which I wouldn't think would be what the employers would want to do in any event, but.

PN61

MR FERGUSON: Yes, sorry, that sort of gives the concern that you would actually shorten the spread as opposed to extending it.

PN62

JUSTICE ROSS: Yes. You might extend the start and finish but - the start or the finish but you might shorten the spread. So for example let's say your spread - it's not in this award but let's say it's 10 hours from 8 am to 6 pm, you can move it by an hour at either end by agreement. That's what the clause is intended to do. So instead of moving it from, say, seven to five or seven till whatever, you move it from seven to four. My question for the metal workers is you don't have that in the current clause, the additional words, and I'm just wondering why you think it's necessary in the new one?

PN63

MR MORIARTY: Well, it has arisen out of a case that we're running in the Manufacturing Award which was based on the helpful from the Fair Work Ombudsman that they were uncertain as to how that clause should apply. My understanding is AIG have put submissions that their interpretation of what that means is that you actually can alter the spread at both ends, that the word "either" can be broadly interpreted that widely.

PN64

JUSTICE ROSS: Okay.

PN65

MR MORIARTY: So that in the Manufacturing Award - - -

PN66

MR FERGUSON: They're both - - -

PN67

MR MORIARTY: - - - take a 10 hour span and turn it into a 12 hour span, and our concern is that it wasn't intended to do that.

PN68

JUSTICE ROSS: I see. You can expand the spread rather than - - -

PN69

MR FERGUSON: And we'd say all sorts of reasons - - -

PN70

MR MORIARTY: Yes.

PN71

MR FERGUSON: - - - for flexible work practices is why it would be warranted.

PN72

JUSTICE ROSS: No, I think - look, there's a merit argument and I'm just trying to - here I'm just focusing on - - -

PN73

MR FERGUSON: No - - -

PN74

JUSTICE ROSS: - - - not changing what's in the current award and how it works and translating it. That can be without prejudice to - if you want to argue the broader point that's fine, but here I just want to look at the language and working on the assumption the intent is not to change what's in the current award.

PN75

MR MORIARTY: So that's our submission, that we're not - the words aren't in the current award. We're not saying that they are and this is, you know, a drafting issue. It is changing it, but to provide greater clarity of what we believe the current operation of the term is.

PN76

JUSTICE ROSS: I see. Okay.

PN77

MR FERGUSON: Whereas we'll agitate that it's a substantive change.

PN78

JUSTICE ROSS: Okay, so we'll put that in the substantive change basket and probably in the context of, "Well, look, that might be".

PN79

MR FERGUSON: And then we may respond by saying, "And if it's to be changed it should be changed the way we say it should work."

PN80

JUSTICE ROSS: Sure. Sure, yes. Yes.

PN81

MR FERGUSON: Both from interpretation points and merit-based arguments.

PN82

JUSTICE ROSS: Yes. Yes, let's put that in the substantive change basket. I understand now what's being put.

PN83

MR FERGUSON: It's going to arise in many awards.

PN84

JUSTICE ROSS: Well, it might go into the award flexibility issue then. It might be conveniently dealt with in that, even if that case is dealt with in segments.

PN85

MR FERGUSON: Yes.

PN86

JUSTICE ROSS: Let's see how many times it comes up.

PN87

MR FERGUSON: The words I know are commonly adopted, but I don't know that all parties take issue with it.

PN88

JUSTICE ROSS: No, that will be the issue, whether everyone is - and that will be contextual. It will depend on the nature of the industry. Some employers might think, "Oh well, we're never going to want to do it so why would we bother having the argument" type of thing. All right. Okay, no, I understand that. That's where that will go. Number 6, yes, I'm not sure I get the - given it's really - it looks pretty consistent to the current award clause. What's the concern?

PN89

MS GHERJESTANI: Your Honour, we're no longer pressing that clause.

PN90

JUSTICE ROSS: Okay. Ai Group, number 7, the proposition here is you're making sure it's - which is consistent with the current clause. It refers to those employees and you want to make sure it's not the majority of employees in the establishment, it's those affected.

PN91

MR FERGUSON: Yes.

PN92

JUSTICE ROSS: Any issue with that? No? All right, number 8. Yes, are you content to delete those words in the supported wage, because it's not limited to those who have a disability, is that the proposition? And they're unnecessary.

PN93

MR ARNDT: I think the proposition is that the test is to be found in the schedule.

PN94

JUSTICE ROSS: It is, yes.

PN95

MR ARNDT: And there's no need to put any test in the actual awards.

PN96

JUSTICE ROSS: So if you delete the words "because of the effects of a disability" you say, "For employees who are eligible for a supported wage, see"?

PN97

MR ARNDT: That's right.

PN98

JUSTICE ROSS: Is everyone content with that?

PN99

MS GHERJESTANI: Yes.

PN100

MR FERGUSON: That's fine.

PN101

JUSTICE ROSS: All right. Nine, and the proposition here I couldn't - is it should be retained for clarity. Now 15.1(d), just bear with me for a sec. Is there any - look, 15.1(d) just says at the moment:

PN102

The following employees are not entitled to the minimum wages set out in the table in clause 15.1(a). a trainee -

PN103

because they're dealt with in schedule C:

PN104

- and an employee receiving a supported wage…

PN105

because they're dealt with in schedule D. On the face of it I don't - there's no impact on employee entitlements by putting it in and it just seems to be there for clarity, and I'm not sure why it was deleted. But does anyone object to it going in? All right, we'll put it back in. Then there's the AWU submission in relation to item 10. Just bear with me for a sec. Just before I turn it up, if you just let me know if they're still being pursued?

PN106

MS GHERJESTANI: Yes it is, your Honour.

PN107

JUSTICE ROSS: Yes. I don't know what it is. I'm just trying to find it. Ten. Yes, okay, so it's not a drafting issue, it's a substantive claim?

PN108

MS GHERJESTANI: It is a substantive claim.

PN109

JUSTICE ROSS: Yes.

PN110

MS GHERJESTANI: If I may explain?

PN111

JUSTICE ROSS: Certainly.

PN112

MS GHERJESTANI: Currently the award only allows full-timers to get the higher wage rate if they perform a higher duty. It doesn't provide a higher wage rate for casuals and part-time employees and we think this is extremely discriminatory, especially seeing that statistics show that the majority of employees who are casuals or part-timers are women and it would not be fair if, for example, I'm working alongside my colleague and just because I'm a part-timer - and we're both performing higher duties - that I do not get the higher wage. AIG has opposed it. I'm not sure what the ABI's position is at the moment, but we did provide them with a without prejudice document. I haven't - - -

PN113

MR FERGUSON: Yes, and without going through the detail of that I think there's merit in some discussions and we've got - - -

PN114

JUSTICE ROSS: All right.

PN115

MR FERGUSON: - - - a further position. I've been wrong before, but I'm optimistic that we can resolve it.

PN116

JUSTICE ROSS: All right. Well, let's - what do you think your timeframe's likely to be?

PN117

MR FERGUSON: I don't think it need be long.

PN118

JUSTICE ROSS: Okay.

PN119

MR FERGUSON: I've got a position to put. I just haven't put it.

PN120

JUSTICE ROSS: All right. Well, we can leave that for discussions between you?

PN121

MR FERGUSON: Perhaps over the next week is best.

PN122

JUSTICE ROSS: That's fine.

PN123

MS GHERJESTANI: Yes.

PN124

JUSTICE ROSS: At least if we can get a feel for - - -

PN125

MR FERGUSON: Yes.

PN126

JUSTICE ROSS: - - - how the matter is likely to - - -

PN127

MR FERGUSON: Otherwise it's going to be a substantive claim and it will have to - - -

PN128

JUSTICE ROSS: Yes.

PN129

MR FERGUSON: So - - -

PN130

JUSTICE ROSS: No, no, certainly - - -

PN131

MS GHERJESTANI: I think it's already listed as a substantive claim - - -

PN132

MR FERGUSON: Yes.

PN133

MS GHERJESTANI: - - - in the - - -

PN134

JUSTICE ROSS: It is, yes.

PN135

MR FERGUSON: Yes.

PN136

JUSTICE ROSS: But it may be when we get to that, we can see what might develop in there and whether further discussions might be of assistance.

PN137

MS GHERJESTANI: Yes.

PN138

JUSTICE ROSS: All right, then we've got 11. Yes, this is a plain English one from whilst to while and it seems caught up a bit in you've got Ai Group, "While the employee is required" and that seems to be agreed.

PN139

MS GHERJESTANI: Yes.

PN140

JUSTICE ROSS: And I'm not sure then whether that change addresses ABI's point at least in relation to that matter. So what you would have in 11.2(b) of the exposure draft, the respirator one:

PN141

An allowance of -

PN142

Blah:

PN143

- must be paid to an employee while the employee -

PN144

and insert the word "is".

PN145

MR FERGUSON: Yes.

PN146

JUSTICE ROSS:

PN147

Required to work in any area which requires the employee to wear a respirator.

PN148

Now I'm not sure where else ABI has a concern about the language shift from whilst to while.

PN149

MR ARNDT: Sorry, your Honour, are we on 11.2(b) and (c)?

PN150

JUSTICE ROSS: We're on - bear with me for a sec.

PN151

MS GHERJESTANI: Yes.

PN152

JUSTICE ROSS: Item 11. Yes, 11.2(b) and (c).

PN153

MR ARNDT: Because I'm not sure if 11.2(b) and (c) have - the change has been from whilst to while or whether just whilst has been taken out.

PN154

JUSTICE ROSS: It might have been.

PN155

MR ARNDT: So it's - - -

PN156

JUSTICE ROSS: It's put in, "must be paid to an employee engaged in". Well, if it read, "while engaged in"?

PN157

MR ARNDT: That would address the concern.

PN158

JUSTICE ROSS: Yes?

PN159

MS GHERJESTANI: Yes.

PN160

JUSTICE ROSS: Okay, so if it was "while engaged in" in each case. All right?

PN161

MR FERGUSON: Yes.

PN162

JUSTICE ROSS: So you insert the word "while" before "engaged" in 11.2(b) and (c). That takes care of items 11 and 12. Right, yes, the SDA - this is - - -

PN163

MR GOVIND: (indistinct) - - -

PN164

JUSTICE ROSS: Yes, this is a deletion of the words - of the option of providing and only reimbursing.

PN165

MR GOVIND: Well, it's not quite the case, your Honour.

PN166

JUSTICE ROSS: Yes.

PN167

MR GOVIND: The current clause commences with the words, "An employer must supply and clean or - - -

PN168

JUSTICE ROSS: "Reimburse".

PN169

MR GOVIND: - - - reimburse an employee for the purchase". If you go across to the exposure draft the opening words in that subclause reads, "An employer must reimburse an employee".

PN170

JUSTICE ROSS: Yes, so there's no option - - -

PN171

MR GOVIND: Therefore the - - -

PN172

JUSTICE ROSS: - - - to supply.

PN173

MR GOVIND: There is, but it's further along, your Honour. So perhaps I should clarify.

PN174

JUSTICE ROSS: I see what you mean. (ii) deals with the supply of - - -

PN175

MR GOVIND: That's correct. But the default position in our view, if you look at that current provision, appears to be that the employer supplies and cleans. And if you look at the existing - sorry, the exposure draft, the inference that one draws from the default position is the employer reimburses the employee for the purchase of the items. So - - -

PN176

JUSTICE ROSS: I'm not sure - - -

PN177

MR GOVIND: - - - that then is our concern.

PN178

JUSTICE ROSS: I'm not sure I read the current clause as that being the default position. I read the current clause as being there are two options. The employer supplies and cleans or if the employer doesn't supply and clean and the employee does, then they're entitled to be reimbursed up to the level provided.

PN179

MR GOVIND: We accept that the clause in the exposure draft does provide for both contingencies. That is, that where the employer - the employee purchases or the employer supplies. But we do maintain that when you compare - look at the clauses, when you put them side by side, that is the inference that one gets.

PN180

Because if one looks at the existing provision where the employer – clearly the clause commences with “employer supply” and looking across at the exposure draft it reads an employer is to imburse, in other words, the employee supply, so it’s simply about a subtle change in the wording except that the clause overall picks up and allows for both contingencies, so it’s a concern that we have, your Honour, that’s why we brought it to the attention - - -

PN181

JUSTICE ROSS: What’s the practice in the industry?

PN182

MR GOVIND: I think the default has been from my experience that the employer does supply. I mean, that varies from site to site, but - - -

PN183

JUSTICE ROSS: It probably depends on the size of the enterprise.

PN184

MR GOVIND: Yes, I think that’s probably accurate.

PN185

JUSTICE ROSS: Yes.

PN186

MR FERGUSON: (indistinct) I mean, I don’t think the drafting changes the effect really. It’s still the employer’s prerogative ultimately which one they choose it’s just whether it gives an impression of one or other being the default, as I understand, but we’re not too worried about it to be frank.

PN187

JUSTICE ROSS: If you look at the current draft what if it said, “An employer must either supply and clean or reimburse an employee for the purchasing, cleaning of”? It’s slightly - - -

PN188

MR FERGUSON: It at least alerts the reader.

PN189

JUSTICE ROSS: Yes, it’s a little clumsy, but I think the current clause is a bit clumsy and the new one’s cleaner, but understanding the concern it alerts them to the fact there’s a choice.

PN190

MR GOVIND: We would (indistinct) favourable, your Honour, that’s a good suggestion.

PN191

JUSTICE ROSS: I’ll put it in the revised draft and see what you think, yes, and we’ll see whether that - - -

PN192

MR FERGUSON: It does require a lot of reading to get down to the second option otherwise.

PN193

JUSTICE ROSS: That’s right. It highlights there are two options. Otherwise you read that and you would think it’s just reimbursement and you can’t do the other thing and you have to infer that you can supply and you don’t have to reimburse, so - - -

PN194

MR FERGUSON: Whereas at the very least you can read the whole thing.

PN195

JUSTICE ROSS: Yes. Yes, you have to pick up two.

PN196

MR GOVIND: Yes.

PN197

JUSTICE ROSS: I think AI Group is right about (v). They say the reference to that subclause there, 11.3(b)(4) should be to 11.3(b)(i) and that’s correct I think. Anyone got any different view about that? It’s just an error on the transposition. Then we go to 15. Just bear with me a moment. Yes, I’m not sure I follow this. This is an AWU – the proposition is to delete the second dot point under clause 13.1(a)(iv) in the exposure draft.

PN198

MS GHERJESTANI: Your Honour, from the reading of the clause it states that for at least six successive afternoon or night in a six day workshop which we state is inconsistent with the shift work ordinary hours of work from Monday to Friday.

PN199

JUSTICE ROSS: Just take me to the inconsistency. Which part of the exposure draft should I look at to look at that being inconsistent?

PN200

MS GHERJESTANI: Your Honour, if I could maintain our position in that and seek further instructions.

PN201

JUSTICE ROSS: No, that’s fine, yes. The only reason I’m raising it is I don’t understand the tension between the other provision and this one, so perhaps if you can consider the position, shoot in a short letter saying, “This is what it is, here is the inconsistency,” and send it to AI Group and ABI as well so they can have a look and they may agree with you and so there’s an understanding of it or they may not.

PN202

MS GHERJESTANI: Yes.

PN203

JUSTICE ROSS: Number 16. What’s the issue with this one?

PN204

MS GHERJESTANI: I think we were going to have further discussions with the AI Group in relation to this issue.

PN205

JUSTICE ROSS: Okay.

PN206

MR FERGUSON: Yes, this is the distinction between ordinary hours, overtime and penalty rates and rates for overtime and so forth. It seems that perhaps the current wording does need to be broader generally.

PN207

JUSTICE ROSS: Okay, so that’s further discussions.

PN208

MR FERGUSON: Yes.

PN209

JUSTICE ROSS: Number 17. This is instead of 15.2(a) in the exposure draft ABI is proposing that the following words, “A seven day shift worker who is regularly rostered to work on Sundays and public holidays is entitled to an additional weeks leave.” I must say my preliminary view was that that seems to be a lot clearer than the current draft and the exposure draft without any change in meaning. Does anyone have any concern about the proposed – I can put it in the exposure draft and you can have a look, but I think it is a cleaner version and we’ll probably - - -

PN210

MS GHERJESTANI: We have no objections to that.

PN211

JUSTICE ROSS: All right, we’ll run with that.

PN212

MR GOVIND: No, no objection.

PN213

JUSTICE ROSS: In 18, yes, again this is just in 15.3(b) it just seems to be some additional words have been put in, “the amounts for wages”, and I think the words “the amounts” should probably be deleted as a proposed - they don’t appear in the current award and deleting them seems to make sense, but we’ll put them in the draft and see what you think. Now, 19. What’s the position of everyone on this? Do you want to explain?

PN214

MR FERGUSON: I think, yes, actually what we’re trying to do is restore the previous approach of making it apply where someone is engaged or as working on shift work as opposed to being deemed a shift worker generally.

PN215

JUSTICE ROSS: So someone who would have worked on shift work had they not been on leave, that’s the language of the current clause.

PN216

MR FERGUSON: Yes, that’s right.

PN217

JUSTICE ROSS: You want to put that back in place - - -

PN218

MR FERGUSON: Assuming that we were conscious of the possibility that someone might move between being a shift worker and not a shift worker. I don’t know if there’s a definition of shift worker.

PN219

JUSTICE ROSS: No, but (c)(ii) would say, “An employee who would have worked on shift work had they not been on leave.” Is that the - - -

PN220

MR FERGUSON: Yes.

PN221

JUSTICE ROSS: What do the unions think about that?

PN222

MR GOVIND: No objection.

PN223

MS GHERJESTANI: We have no objections.

PN224

JUSTICE ROSS: Okay. Then we go to 20. This is in clause 20.2 of the exposure draft, at the end of – that’s a standard clause, is that right, and the change has been made in others, but not in this one for some reason?

PN225

MR GOVIND: Yes.

PN226

JUSTICE ROSS: At the bottom of the clause where it says, “An amount not exceeding the amount the employee would have been paid under this award in respect of the period of notice required by this clause,” rather than the NES.

PN227

MR FERGUSON: Yes.

PN228

MR GOVIND: Yes.

PN229

JUSTICE ROSS: Otherwise it doesn’t seem to make much sense.

PN230

MR FERGUSON: Yes.

PN231

MR GOVIND: Yes.

PN232

JUSTICE ROSS: Is everyone happy with that?

PN233

MR GOVIND: Yes, sir.

PN234

JUSTICE ROSS: The summary of hourly rates, this is number 21, the AWU.

PN235

MS GHERJESTANI: Your Honour, there was a question asked in relation to this clause stating whether a casual employee is entitled to overtime.

PN236

JUSTICE ROSS: Yes, so that will go to the casual part-time issue. That’s a matter in a number of awards about how all that would work, which I think brings us to the substantive issues and on the substantive issues there’s the higher duties question.

PN237

MS GHERJESTANI: Yes.

PN238

JUSTICE ROSS: I understand what’s put there; that’s the it only currently applies to full-timers, but your claim will be that it goes to part-timers and casuals as well, provided they meet the same requirements, minimum four hours, et cetera, and you're opposing the shift.

PN239

MR FERGUSON: Yes.

PN240

JUSTICE ROSS: But you want to have further discussion about it.

PN241

MR FERGUSON: Yes.

PN242

JUSTICE ROSS: Is that basically where you're at?

PN243

MS ..........: Yes.

PN244

JUSTICE ROSS: Okay. When you have the discussions, just have a think about what sort of - if you're not able to reach an agreement, what sort of process do you envisage for having that matter determined.

PN245

MR FERGUSON: Yes.

PN246

JUSTICE ROSS: Unfortunately all of these bloody things have to be decided by a full bench. There's not much - it's just going to be a question of the process and how. And all the other aspects of the award can be cleaned up, and then we can just note that there are some issues yet to be determined in identifying the when, so that when we come to probably post the annual wage review, come to do some sort of final version, we can sweep up these other issues and make sure that they've been determined on the way through. Are there any other - other than the higher duties one? What's the - 25, this is the one you were talking about that needs more work. Yes.

PN247

MR FERGUSON: We all have different views about it. Perhaps because of the way it is actually crafted generally. That one, I'm not as certain that we will reach agreement, though.

PN248

JUSTICE ROSS: Do you think - would it help if - who do you normally deal with in terms of commission members for pharmaceutical? There have probably not been too many disputes in recent times. No-one is the short answer, but probably someone in Sydney would suit all of you, because that's where most of you are?

PN249

MR FERGUSON: Sydney would suit.

PN250

JUSTICE ROSS: Let me know how you go with it, but it's one of those things I probably - I wouldn't want to do it. I don't think I would want someone on the bench to do it, because they need to do a bit of push and shove. And then - - -

PN251

MR FERGUSON: And there are a few clauses that - - -

PN252

JUSTICE ROSS: Yes. Ultimately it's the sort of thing that should be settled with the parties in a report that makes it clear what's the issue and what each of you are proposing, and the interaction with the clauses, and then we can decide: well, what are you going to do about it? The options might be nothing, you're just going to leave the - if there's ambiguity you were going to leave it, or we're going to address it in a particular way, and you might - when I say if there's ambiguity, you will leave it, you might largely replicate the current clauses.

PN253

MR FERGUSON: It may be that we just have to come to you.

PN254

JUSTICE ROSS: Yes, about what they mean.

PN255

MR FERGUSON: Yes.

PN256

JUSTICE ROSS: That's right. This isn't - it's not an exercise in trying to chase down every ambiguity. It's ultimately a matter for you and it's a resource issue for you, largely. We will make benches available and all the rest of it, but if it's just a different view, even if the (indistinct) might have a view something is ambiguous, doesn't mean necessarily that we have to resolve every ambiguity as we go through, particularly when it's complex, oddly enough. When it's fairly straightforward, then sure, why wouldn't you just clean it up and make it clear.

PN257

MR FERGUSON: But it might result in substantive changes in the way it's applied in the industry.

PN258

JUSTICE ROSS: Yes.

PN259

MR FERGUSON: That's the cause of concern.

PN260

JUSTICE ROSS: The other thing to think about is the extent to which there are award-reliant employees in this industry, and I can tell you it's very low. That's not to say the award is not important, because it does underpin - and especially in a penalty rate sense, so it's a significant issue from that point of view. But I think on those issues, just see how you go. Let me know where you land on the higher duties, and let me know what you want to do about the other issue once you've had a chance to think about it, and I can get a member to facilitate at some point and see how they go, and then you can consider your position as we go through. But at the moment I'll leave it as a matter that is to be resolved.

PN261

Just so you've got some idea about where all of this is going, the awards in group 1 that will be in 1(a) and 1(b), you know those early ones, I'm hoping that we can get a decision out on them by the end of the year. We're not going to do that on these ones, (c) and (d), just because of the volume and the time of year, and to give people a chance to make sure they know where they are. So if we can, I want to get rid of the general drafting and technical issues, not absorption because that will go off somewhere else, and groups (a) and (b) for these sorts of technical stuff we've been dealing with, and some of the substantive issues where parties have put what they want to say.

PN262

(c) and (d) is likely to be sometime next year, so you've got a bit of time on this. And we've still got to close off on the NES stuff that's in group 3. That's on for argument next year. You will recall we had the three categories: (1) where everyone agreed there was a problem; (2) everyone is agreed there was a problem but wasn't sure what to do about it; and (c) nobody agreed there was - some people thought it was a problem and some people didn't. It's for category (3) we've still to hear argument on.

PN263

So we will lay all that out in the draft calendar before the end of the year, so you've got a bit of time to crunch through those issues, but I do want you to think about if you can't reach agreement and do want it determined, how? I'm likely to weld it on to another bench, only because that minimises the risk that you have to be two places at the one time. If it's before - so it may look odd being grafted on to a bench that's dealing with a timber workers award, but - - -

PN264

MR FERGUSON: We appreciate that.

PN265

JUSTICE ROSS: That's so that you're not - otherwise it doesn't matter how many times I tell presiding members to consult with my chambers about listings, because we've got a lot going on and I don't want to put parties in a difficult position. Occasionally they will forget and something will go on and you will be in, having to do two things at once, apply for adjournments, it's just - so we will try and avoid that. All right?

PN266

MR FERGUSON: Appreciate that.

PN267

JUSTICE ROSS: So the outcome from this, and we will capture it in a revised summary document that will just identify the following issues are still to be resolved. I will assume the ones that we've said we're going to have a look at, I will put in an exposure draft and you will get that shortly with a turnaround time, and you will get back to me in a week or so about where you're up to, where you land on the higher duties, and really, what process you envisage for those other penalty rates and hours issues. Okay?

PN268

MR FERGUSON: Yes.

PN269

JUSTICE ROSS: Any questions? All right. Thanks very much.

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