AM2014/65, Transcript of Proceedings [2015] FWCTrans 200 (7 April 2015)

TRANSCRIPT OF PROCEEDINGS

---

Fair Work Act 2009                                    1051615-1

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
SENIOR DEPUTY PRESIDENT HAMBERGER
COMMISSIONER BISSETT
COMMISSIONER BULL

AM2014/65

s.156 - 4 yearly review of modern awards

Four yearly review of modern awards - Award stage - Sub groups 1A & 1B - Exposure drafts - Ambulance and Patient Transport Award 2010
(AM2014/65)

Melbourne

11.04 AM, WEDNESDAY, 25 MARCH 2015

PN655

JUSTICE ROSS: Could I have the appearances, please.

PN656

MR B FERGUSON: If the Commission pleases, my name is Ferguson, initial B, for the Australian Industry Group. With me is Ms Bhatt, initial R.

PN657

JUSTICE ROSS: Thanks, Mr Ferguson. In Sydney?

PN658

MR BULL: If the Commission pleases, my name is Bull, for United Voice.

PN659

JUSTICE ROSS: Thank you.

PN660

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

PN661

MS L SVENDSEN: Svendsen, initial L, for the Health Services Union.

PN662

JUSTICE ROSS: Anybody else? Having gone through the AI Group's submission, it does seem there are some matters that on their face at least would be uncontentious. Can I just test that proposition with the union parties. The change proposed to clause 1.3, Title and Commencement, the reference to schedule D should be to schedule E.

PN663

MS SVENDSEN: That's uncontentious.

PN664

MR BULL: Uncontested.

PN665

JUSTICE ROSS: Clause 3.5, Coverage. The issue is the note should be removed, consistent with what we've said about notes in the December decision.

PN666

MR BULL: Not opposed, sir.

PN667

JUSTICE ROSS: Clause 6.4, Types of Employment. The observation made here is that clause 10.4(c) of the current award which deals with overtime for part‑time employees has been omitted and should be re‑inserted.

PN668

MS GHERJESTANI: The AWU doesn't oppose that.

PN669

MS SVENDSEN: It's not opposed by HSU either.

PN670

MR BULL: Not opposed by United Voice.

PN671

JUSTICE ROSS: Thank you. Clause 7, in the heading, the reference to "and training plan" should be deleted because that clause does not deal with training plans. We've already made a decision about the inclusion of training plans in the award. Any issue with that?

PN672

MS SVENDSEN: Your Honour, that was our application, too. We have no opposition to that.

PN673

JUSTICE ROSS: Clause 8.4(a), Rosters. This is a proposition that the words, "Hours of duty will be worked Monday to Sunday," be replaced with an expression, "Hours of work will be worked on any days between Monday and Sunday inclusive." The purpose of the amendment is to make it clear that ordinary hours are not required to be worked on each day, Monday to Sunday.

PN674

MR BULL: We don't understand what that means. If we understood what it meant, we'd possibly not object to it.

PN675

JUSTICE ROSS: No, well, leave aside what ‑ ‑ ‑

PN676

MR BULL: You know, the shift workers and so forth.

PN677

JUSTICE ROSS: Yes. Leave aside what the proposal means. Let's look at the essence of the proposition. At the moment it says, "Hours of duty will be worked Monday to Sunday." I think the issue that's raised is that might give rise to an implication that you have to work ordinary hours on each day of the week.

PN678

MR BULL: Clearly it's an award that has shift workers, so ‑ ‑ ‑

PN679

JUSTICE ROSS: You're not working every day of the week.

PN680

MS SVENDSEN: Some people do, your Honour.

PN681

JUSTICE ROSS: What, for the whole year?

PN682

MS SVENDSEN: No, but they will work across - look, my sense is that it's probably okay, but I'm a bit confused by it because I don't think that what is there is any less or more confusing in the context of this award.

PN683

JUSTICE ROSS: Yes.

PN684

MS SVENDSEN: Ordinary hours are the hours worked up to 38.

PN685

JUSTICE ROSS: Yes.

PN686

MS SVENDSEN: A penalty might apply depending on when those ordinary hours are worked, but there are no definitional issues in this award which are problematic, which there are in some others. I can understand it in the context of some other awards, but in this one there is no definition of ordinary hours or a shift worker or a day worker or something that might confuse the issue, so I'm a little perplexed by the comment even.

PN687

JUSTICE ROSS: Yes.

PN688

MS SVENDSEN: Maybe Mr Ferguson can actually explain it better.

PN689

JUSTICE ROSS: Sure.

PN690

MR FERGUSON: The clause we're dealing with in the exposure draft is just about hours of duty and the specific paragraph doesn't go to ordinary hours, and those sorts of issues. If you literally read it, it suggests that - "Hours of duty will be worked Monday to Sunday in accordance with the roster," so it suggests that hours will actually be worked every single day.

PN691

JUSTICE ROSS: Yes, but it's conditioned by the words "in accordance with the roster".

PN692

MR FERGUSON: Yes, we'd agree they would have to be rostered, but I think the concern is that - it's a suggestion that the duties would be worked on every one of those days, albeit in accordance with the roster. I don't think what we've proposed would cause a problem. We're not discounting the possibility that people might work on every one of those days, some people on some occasions. What we've proposed would enable that to occur.

PN693

The current exposure draft wording could be read to suggest that hours of duty will actually be performed each day, albeit in accordance with the roster. That seems a ludicrous proposition. I mean, perhaps we've being very cautious in our redrafting, but I don't think what we've put forward could give rise to any sort of problem. It just makes it clearer and simpler to understand.

PN694

COMMISSIONER BISSETT: Can I just say, Mr Ferguson, if you get very literal - and I understand what you're saying if I get very literal about the words that are there.

PN695

MR FERGUSON: Yes.

PN696

COMMISSIONER BISSETT: If I look at your proposal and I get very literal about it, then you can only work Tuesday, Wednesday, Thursday, Friday and Saturday, because you're working between Monday and Sunday, not on Mondays ‑ ‑ ‑

PN697

MR FERGUSON: We've put in brackets "inclusive".

PN698

JUSTICE ROSS: Yes, but why bother - rather than say, "Hours of duty will be worked Monday to Sunday," say "may be worked Monday to Sunday."

PN699

MR FERGUSON: It's better.

PN700

JUSTICE ROSS: Doesn't that resolve the problem?

PN701

MS SVENDSEN: That seems quite logical.

PN702

MR FERGUSON: We'd be content with that.

PN703

JUSTICE ROSS: All right. God forbid we should have something logical in it, but, nevertheless ‑ ‑ ‑

PN704

MS SVENDSEN: That was really my under-voice then, your Honour.

PN705

JUSTICE ROSS: No, that's all right. I think that would be consistent with what the parties are saying happens in any event. It's conditioned in accordance with the roster, in any event. Does that resolve your issue, Mr Ferguson?

PN706

MR FERGUSON: Yes, we're consent with that.

PN707

JUSTICE ROSS: Do any of the unions have any concern with that; if it just said, "Hours of duty may be worked Monday to Sunday in accordance with the roster," as it currently does?

PN708

MR BULL: No, I wouldn't have an issue with that, your Honour.

PN709

MS SVENDSEN: I wouldn't have an issue either, your Honour.

PN710

JUSTICE ROSS: Okay. The last one that I thought seemed to be non-contentious was just the reference in schedule A.1.3; the cross‑reference to clause 11.2(a) should be amended to be 11.2(b). That's a cross-reference to the paramedic allowance.

PN711

MS SVENDSEN: I don't believe we have an opposition to that. I think that's accurate. I actually haven't double‑checked in the last day.

PN712

JUSTICE ROSS: No, that's fine. I think that one is straightforward. The balance of the points raised by AI Group are perhaps not as clear‑cut. They require some interpretation, so I've not sought to refer to those. The HSU has comments in relation to the facilitative provision issue, as well. I'm also conscious that I don't know what the view of - in previous conferences, certainly the Red Cross and others have been involved in these matters, as well. I don't know what their view is about any of this.

PN713

Can I raise with the parties how we then might approach the outstanding issues between you. There are at least a couple of options. One, I can convene a conference by video of the parties to deal with what are the outstanding issues. I would probably do that in the near future. The alternative is the parties can discuss the matters in dispute, see where they get to and we can deal with it on the papers or you can say what you want to say now about all of it and we can deal with it on the basis of what you submit. What do you want to do?

PN714

MS SVENDSEN: Your Honour, I think that at least some initial discussions between the parties wouldn't be a bad idea and I was a little surprised that only AIG were here today. There are some matters that I think would be worth at least having a conversation between ourselves first and then letting you know whether or not we would require a convened conference.

PN715

JUSTICE ROSS: Yes. What we could do, Ms Svendsen, if you can have those discussions, see where you get up to, let us know by close of business on 10 April - which is the approach we have adopted with others - about those outstanding matters. If the parties can submit a joint report about those discussions and let us know how you want these outstanding issues to be dealt with; whether it's by a convened conference, some form of written submission process or if you're content to rely on what you put in the report. Okay?

PN716

MS SVENDSEN: That sounds good. Thank you, your Honour.

PN717

JUSTICE ROSS: Is there anything any party wishes to say now in relation to any of those outstanding matters?

PN718

MR FERGUSON: I don't know if it's appropriate to deal with the HSU issues. We're content for that process to unfold if that's what the other parties want to occur.

PN719

JUSTICE ROSS: Yes.

PN720

MR FERGUSON: I just might foreshadow that we did have a concern about the issue raised in point 3 of the HSU ‑ ‑ ‑

PN721

JUSTICE ROSS: Yes.

PN722

MR FERGUSON: But it's a minor issue and I'm sure we can hopefully deal with that through that process.

PN723

JUSTICE ROSS: Okay. Can I make one observation about where they talk about the 10/14 roster. There might be an issue between you about whether it has to be a unanimous decision of the employees, which seems to be the HSU suggestion, or whether it's majority employees. On the face of it, it's difficult to see how it could be by agreement with an individual employee because to operate a 10/14 roster, you are going to need some form of collective working on it.

PN724

MR FERGUSON: Yes.

PN725

JUSTICE ROSS: You can't introduce it for one person.

PN726

MR FERGUSON: The issue we were speaking about was actually the other issue.

PN727

JUSTICE ROSS: Yes.

PN728

MR FERGUSON: In which they've said - we weren't going to put any submissions around that point. In relation to the other point, they've suggested that the clause is not a facilitated provision. It perhaps isn't expressed the way facilitated provisions often are, but I think it does meet the definition of a facilitated provision.

PN729

JUSTICE ROSS: Yes.

PN730

MR FERGUSON: It's sensible to have it in the index, but ‑ ‑ ‑

PN731

JUSTICE ROSS: It's also how you characterise it in the index, I suppose.

PN732

MR FERGUSON: Yes.

PN733

JUSTICE ROSS: If you're content to have those discussions ‑ ‑ ‑

PN734

MR FERGUSON: We're content, if that's what the parties want.

PN735

JUSTICE ROSS: Yes. Is everyone content for that course?

PN736

MS GHERJESTANI: Yes, your Honour.

PN737

MS SVENDSEN: Yes.

PN738

MR BULL: Yes.

PN739

JUSTICE ROSS: All right. Thank you. We'll hear from you on 10 April and we'll work out from that where we go forward. Thanks very much. We'll adjourn now until the next matter at 11.30.

ADJOURNED INDEFINITELY                                                        [11.18 AM]