AM2014/198, Transcript of Proceedings [2015] FWCTrans 223 (13 April 2015)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1051625-1

JUSTICE ROSS, PRESIDENT

AM2014/198 and others

s.156 - 4 yearly review of modern awards

Four yearly review of modern awards - Group 2

AM2014/198 Alpine Resorts Award 2010

AM2014/199 Animal care and Veterinary Services Award 2010

AM2014/200 Aquaculture Industry Award 2010

AM2014/201 Corrections and Detention (Private Sector) Award 2010

AM2014/202 Firefighting Industry Award 2010

AM2014/203 Graphic Arts, Printing and Publishing Award 2010

AM2014/204 Health Professionals and Support Services Award 2010

AM2014/205 Horse and Greyhound Training Award 2010

AM2014/206 Medical Practitioners Award 2010

AM2014/207 Nurses Award 2010

AM2014/208 Passenger Vehicle Transportation Award 2010

AM2014/209 Pharmacy Industry Award 2010

AM2014/210 Racing Industry Ground Maintenance Award 2010

AM2014/211 Road Transport (Long Distance Operations) Award 2010

AM2014/212 Road Transport and Distribution Award 2010

AM2014/213 Seafood Processing Award 2010

AM2014/214 Storage Services and Wholesale Award 2010

AM2014/215 Transport (Cash in Transit) Award 2010

AM2014/216 Waste Management Award 2010

Melbourne

1.01 PM, FRIDAY, 27 MARCH 2015

PN1

JUSTICE ROSS: Can I have the appearances, please. Firstly, in Melbourne.

PN2

MR M BUTLER: If the Commission pleases, Butler, initial M. I appear for the Association of Professional Engineers, Scientists and Managers Australia.

PN3

MR A McCARTHY: If the Commission pleases, McCarthy, initial A, for the ANMF.

PN4

MS K BIDDLESTONE: If the Commission pleases, I appear on behalf of the Shop, Distributive and Allied Employees Association; Biddlestone, initial K.

PN5

MS N MARTINOVIC: If the Commission pleases, I appear on behalf of the Australian Physiotherapy Association; Martinovic, initial N.

PN6

JUSTICE ROSS: Thank you. Anyone else in Melbourne? We might do Adelaide, then Brisbane, then go to Sydney. In Adelaide?

PN7

MS E VAN DER LINDEN: Van Der Linden, initial E, for the South Australian Chamber of Commerce and Industry.

PN8

JUSTICE ROSS: Thank you. In Brisbane?

PN9

MS L FISHER: If the Commission pleases, I appear on behalf of the Private Hospital Industry Employers' Associations, Fisher, L, in matters 204 and 207. Thank you.

PN10

JUSTICE ROSS: Thank you. In Sydney?

PN11

MS W CARR: Carr, initial W, for the Transport Workers Union. With me, Walton, T, also for the Transport Workers Union.

PN12

MR S CRAWFORD: If it pleases the Commission, Crawford, initial S, from the AWU.

PN13

MS S WELLARD: If it pleases, Wellard, initial S, seeking permission to appear for the Pharmacy Guild of Australia.

PN14

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

PN15

MR K SCOTT: If the Commission pleases, Scott, initial K, seeking permission to appear on behalf of Australian Business Industrial and the New South Wales Business Chamber.

PN16

MR G BOYCE: If the Commission pleases, Boyce, initial G, seeking permission to appear for the Aged Care Employers.

PN17

MS J LIGHT: If the Commission pleases, Light, initial J, for the Australian Federation of Employers and Industries.

PN18

MR P RICHARDSON: If the Commission pleases, Richardson, P, from Prosegur Australia Pty Ltd.

PN19

MS M DE VECCHIS: If it please the Commission, De Vecchis, initial M, for the Australian Salaried Medical Officers Federation.

PN20

MS D NEUTZE: If it pleases the Commission, Neutze, initial D, for the Australian Veterinary Association.

PN21

MR L HAVENSTEIN: If the Commission pleases, Havenstein, initial L, seeking permission to appear on behalf of the Australian Public Transport Industrial Association.

PN22

MR M DUNNE: If it pleases the Commission, Dunne, initial N, seeking permission to appear on behalf of the Waste Contractors and Recyclers Association of New South Wales in matter 216.

PN23

MR P RYAN: If the Commission pleases, Ryan, initial P. I seek leave to appear for the Australian Road Transport Industrial Organisation in matters 211 and 212.

PN24

MR M HARMER: If it please the Commission, Harmer, initial M, solicitor, seeking permission to appear for the Australian Ski Areas Association.

PN25

MR M GALBRAITH: If it please the Commission, Galbraith, initial M, for the Shop, Distributive and Allied Employees Association.

PN26

MR C GARDNER: If it pleases the Commission, Gardner, initial C, seeking permission to appear on behalf of Coles Supermarkets Australia Pty Ltd in matter 212.

PN27

MR J MORIARTY: If it pleases the Commission, Moriarty, initial J, on behalf of the AMWU. Appearing with me is Mr W Tegg.

PN28

MS M BLEWETT: If it pleases the Commission, Blewett, initial M, for the Printing Industries Association of Australia.

PN29

JUSTICE ROSS: Anyone else?

PN30

MS J BAULCH: Yes. Thank you, sir. I apologise for being late. Mr Fraser's funeral has blocked off a few roads. Baulch, J, for APESMA.

PN31

JUSTICE ROSS: Thank you. Is there any objection to any of the applications for permission to appear? No? Being no objection, permission is granted. Having regard to the complexity of these matters, they will be dealt with more efficiently if permission is granted. Can I make some general observations and then seek comments from any of you who wish to make them. These matters were initially scheduled for hearing - that is, the group 2 matters - in mid‑April. As a result of a range of issues that have arisen in the group 1 awards and the practices adopted by some parties, the group 1 awards have gone through a series of iterations.

PN32

When I say practices - and I don't say this critically, although I'd like to avoid it in group 2 - what has occurred is that we have gone through a series of conferences, had a hearing, then we published reviewed exposure drafts in a number of the group 1 awards. On the publication of those revised exposure drafts, just when we thought the process was almost finished, a number of organisation then raised additional comments on the exposure drafts which hadn't been raised before, so we've got a further process to resolve those.

PN33

In relation to the group 2 awards, essentially we're at this point: the parties have identified the variations they seek, although not the submissions in support of them. A number of you have been involved in Commission‑facilitated discussions about a range of issues and some of you have been involved in direct discussions with each other about issues. We have also published exposure drafts in relation to these awards and we've sought your comments on those exposure drafts. In addition, we've published revised summaries of the proposed variations that are sought.

PN34

What we're proposing for the next phase to complete the award phase of the review of the group 2 awards, is as follows: we are going to defer the hearing that was to be mid‑April. There will be a statement issued either later today or Monday detailing some of these dates and issues. Further directions will be issued. They will provide every party with a further opportunity to make whatever comments they wish to make further and hopefully a last opportunity to make comments on the exposure draft. There will be an opportunity to reply to any comments that have been made.

PN35

We will also be seeking the submissions of the parties in support of the substantive changes that they seek to have made in any one of the awards in group 2. There will also be a process for anyone interested to reply to those submissions. When you're filing your submission in support of any substantive claim - and we can separate the matters in these awards into two categories.

PN36

One is comments on the technical drafting issues associated with the translation from the current modern award to the new exemplar award format, so if there is anything that has been missed or the transposition has made a mistake or something like that - I'll characterise those as technical drafting issues. Then there are issues associated with substantive changes to the current modern award. When you are putting in your submission on those substantive claims, we'll also ask you to indicate whether you think those claims should be referred to a separately constituted full bench.

PN37

Let me explain the difference and why I refer to it as a separately constituted full bench. When we come back in late June or early July to deal with these group 2 awards, that hearing will probably only go over two days. We'll deal primarily with the technical drafting issues. They may also deal with some smaller merit arguments, for example, but if you have a claim - let me give you an example from, I think, the Stevedoring Award - to provide a substantive change in relation to hours of work - and I think in that case it was to increase ordinary hours from 35 or 36 to 38, and it was clearly going to be a hard fought issue - then that claim and a number of other claims in that award were referred to a separate full bench.

PN38

We are keeping the full bench that's managing the drafting process, if you like, from the current modern awards to the exemplar awards relatively stable throughout the four award stages. There will be some changes as people go on leave and different awards come into the mix. What we want to do is set up a process where you'll have an opportunity to put in those submissions, indicate whether you think they should go to a separately constituted full bench, in which case it's likely that that would be granted, and away they would go, and then that full bench would issue directions for dealing with that matter.

PN39

The process that I've outlined is intended to provide every party with an opportunity to see what is the substantive variation that's proposed through each award, to see what argument is put in support of that substantive variation and then to reply to it. It's also intended to provide you with an opportunity to make any further and final comments you wish to make about the exposure drafts, in terms of their technical and drafting issues. Similarly, interested parties will have an opportunity to comment on your submission on the technical drafting issues.

PN40

We'll then publish a revised summary of all of that for each award. It will have links to the various submissions in it. Then we'll proceed to deal with all the matters that you've raised. The review bench will deal with the technical drafting issues and whatever other merit issues are not referred off to specially constituted benches.

PN41

That's all I wanted to cover. I will invite anyone who wishes to comment on that, but also if you're at the point that you feel some commission facilitation of a conference might be of assistance or if there is a change in circumstances such that you're no longer pressing matters or anything like that, then this would be an appropriate time to mention either of those things. If you have a particularly pressing substantive issue that needs to be determined, then you could raise that now and we can give that some thought prior to the submission process.

PN42

Can I begin with those of you in Melbourne and then go to Sydney and the other locations, just to see if you have any observations on anything that I've covered.

PN43

MR BUTLER: Your Honour, the immediate question, I suppose, that springs to mind is if there is a submission supporting a substantive change and the proposer is not particularly seeking a separate full bench - - -

PN44

JUSTICE ROSS: I might decide to send it to a full bench, whether the proposer is seeking it or not.

PN45

MR BUTLER: Yes.

PN46

JUSTICE ROSS: But until I see with a bit more precision precisely the change that's sought and the argument in support of it, I'm not really in a position to make that judgment.

PN47

MR BUTLER: I mean, for example, your Honour, for the Health Support Services Award, we're seeking to extend the coverage of that award for translators and interpreters. We're not particularly concerned which full bench hears that.

PN48

JUSTICE ROSS: No.

PN49

MR BUTLER: But I'd imagine, as it's a coverage issue - - -

PN50

JUSTICE ROSS: What we'd probably do is to see what opposition it attracts and that will give me an indication. Look, some things are pretty obvious on their face. If there's an application to generally, on work value grounds, increase a range of wage rates or a new classification or something of that order and - I'd say coverage issues are generally going to excite the interest of more than just the proponent.

PN51

MR BUTLER: I suppose, your Honour, a supplementary question: if a matter was referred to a separate full bench, do you have any idea when those full benches are likely to start to be constituted and when - - -

PN52

JUSTICE ROSS: They can be constituted pretty much as soon as it becomes apparent that it should go to it. Probably what I would do is convene a further mention like this one. Once we've got the sweep of the submissions in support, I can identify what I think are matters that should go to a separate full bench. I can call those matters on and seek the views of the interested parties about that issue. I think we're just in the process of finalising - or that bench is - the casual part‑time employment bench and its program. Once that's done, then the programs for each of the common issue benches will have been set.

PN53

As those of you who are involved in the penalty rates bench will know, those proceedings are taking up a number of days, et cetera, so I'll be keen to make sure that if we do constitute benches to deal with particular issues, that the time they sit isn't going to bump into hearing times that other matters are on which interested parties might also have an interest in. We'll try and manage that as best we can, but I think a further mention for those matters only is probably the way to deal with that this far.

PN54

MR McCARTHY: Your Honour, just a couple of comments on questions. When you talk about the submissions in support of substantive changes, would that be with evidence or would that be something that would come as part of - if it went to a separate - - -

PN55

JUSTICE ROSS: If you identify the evidence that you propose to call in support of it in summary form only, then I imagine it's almost - well, it's highly likely if you've got a significant claim and you're going to be calling evidence in relation to it, then it will be going off to another bench. It will then be a matter for the other bench to set a program for the filing of all that material. But, if you can indicate in your written submission the scope of the case, including likely evidence and what it would cover, then that would be helpful.

PN56

MR McCARTHY: My other question, too, was if a matter is referred to a separate full bench, would the exposure draft technical issues follow on with it or they'd stay with - - -

PN57

JUSTICE ROSS: No, they stay with the one bench to ensure there's consistency, because we've found already with the group 1 awards that a range of issues that arise in some of them, then also give rise to issues in others. It's just to make sure we have a consistent treatment of the drafting and technical issues at least. If it goes off to a specially constituted full bench and they make a decision on the claim, then they'll make an order varying the award. To that extent, they'll deal with all of those issues, but then the review bench won't be reviewing the merit of that but will be finalising all the drafting issues. Okay?

PN58

MR McCARTHY: Thank you.

PN59

MS BAULCH: Your Honour, these comments just relate to the Pharmacy Industry Award.

PN60

JUSTICE ROSS: Yes.

PN61

MS BAULCH: The parties have identified that there are quite a significant number of issues which could be dealt with by further conference.

PN62

JUSTICE ROSS: Yes.

PN63

MS BAULCH: I think it would assist the parties if that process could be arranged through the Commission.

PN64

JUSTICE ROSS: No problem. We'll organise that. Thank you. Anyone else in Melbourne? No? Can I go to Sydney then.

PN65

MR CRAWFORD: Your Honour, Crawford, initial S, from the AWU. If an issue has already been referred to, for example, the casual and part‑time bench - - -

PN66

JUSTICE ROSS: Yes.

PN67

MR CRAWFORD: - - - the submission dates wouldn't apply?

PN68

JUSTICE ROSS: No. As you know, following the conference held on 2 December, a number of matters were referred to the casual and part‑time employment full bench. When I'm talking about submissions on the substantive issues, I'm not talking about those matters. The casual part‑time bench will manage the filing of submissions on all those matters, Mr Crawford.

PN69

MR CRAWFORD: Thank you, your Honour.

PN70

JUSTICE ROSS: So anything that has already gone off somewhere else, I'm not asking for submissions on those matters. I'm just trying to clarify what I've got left. Any other comments in Sydney?

PN71

MS WELLARD: Your Honour, it's Wellard, initial S, for the Pharmacy Guild. We support what was just put, I think by the SDA, in relation to the further conference. The last one, before Bissett C, was very helpful. Just in relation though to the casual and part‑time bench, there's a matter that has arisen in the Pharmacy Award and it relates to the minimum engagement of school students that may well sit better with the part‑time and casual bench.

PN72

I'm just wondering how we identify that and what the process should be for dealing with that. That was a suggestion that arose out of the discussions at the conference.

PN73

JUSTICE ROSS: Sure. You just raise it as you just have. If the parties are of that view - I'll organise a conference before Bissett C. Raise it with the Commissioner, identify precisely what the issue is and if all the parties are of the view it would be logically dealt with by the casual and part‑time bench, then that's what we'll do.

PN74

MR FERGUSON: Thank you, your Honour. It's Mr Ferguson here.

PN75

JUSTICE ROSS: Yes.

PN76

MR FERGUSON: Just one suggestion and you may have already addressed it. Obviously the parties generally do give a characterisation of the evidence that they anticipate leading.

PN77

JUSTICE ROSS: Yes.

PN78

MR FERGUSON: So that we could all, sort of, work out whether it's likely it should go to a separate bench in our respective views. I've gathered from your comments that that's what you are proposing, your Honour.

PN79

JUSTICE ROSS: I think as a matter of practicality, the review bench is probably going to devote two days to all these awards, so we're not really going to be in the position to hear evidence on a matter and everything else and then to manage that part of that process. It also means that I can then constitute a bench with members who have had some panel experience in that industry, as well. I think both of those factors would suggest, if you're going to run an evidentiary case - - -

PN80

MR FERGUSON: Yes.

PN81

JUSTICE ROSS: Unless it's a very short point, then it's likely to go to another bench.

PN82

MR FERGUSON: That's what I was just thinking. If the parties indicated that in the submissions, then we'd know fairly quickly.

PN83

JUSTICE ROSS: No, absolutely. It may be that the same bench deals with a number of substantive issues in a number of different awards. That's what we've done in the past.

PN84

MR FERGUSON: Yes.

PN85

JUSTICE ROSS: That's designed also to avoid full benches tripping over each other. If I establish a separate bench for every substantive issue in every award, I might end up with 15. The risk is they'll set down hearing dates which will - well, which run the risk of colliding with other hearing dates that are already set. I'm conscious already of the pressure on parties in relation to the common issue matters.

PN86

MR FERGUSON: Thank you for that. The second issue I suppose I wanted to address is the timing of the submissions in support of proposals and I suppose in response. In that regard, the AI Group would have two concerns: (1) that there be sufficient time to enable the parties to develop those submissions in light of the fact that obviously some of us may have many proposals that we're seeking across a raft of awards.

PN87

JUSTICE ROSS: Yes.

PN88

MR FERGUSON: But also in light of the fact that - if I can put it generally - the level of discussions and conferencing between the parties in respect of different awards is at different stages.

PN89

JUSTICE ROSS: Yes, they are.

PN90

MR FERGUSON: It would be beneficial if some time was allowed for that to mature, so that we could hopefully reduce the number of issues that we had to put submissions on in support of or in opposition of. I'm happy to discuss some of the specific awards. In some instances there is already conferencing going on and that should continue. For example, in the Road Transport Awards; both the Road Transport and Distribution Award and the Long Distance Award.

PN91

JUSTICE ROSS: Yes.

PN92

MR FERGUSON: There have been a number of conferences, a number of discussions. That has been going on today and I know we've already set, for example, a timetable for further proposals to be advanced going into late May, but those discussions have been quite productive. In that instance, we wouldn't want to have to advance detailed submissions in support of specific claims until that was exhausted, if possible.

PN93

I appreciate you're going to have to weigh that up against making sure the review is dealt with as quickly as possible, but we might have, you know, different views on different individual awards. I mean, I'm happy to speak to a few of them, if that assists specifically, but I just don't know what timetable - - -

PN94

JUSTICE ROSS: No, that's okay, Mr Ferguson. I get the general issue.

PN95

MR FERGUSON: Yes.

PN96

JUSTICE ROSS: It's not only in the transport area where there are ongoing discussions.

PN97

MR FERGUSON: No.

PN98

JUSTICE ROSS: I'll certainly give that some thought when I start to look at - I'll probably work backwards. That is, I'll look for a couple of days in relation to the hearing and then look at what directions might be made in that regard. Just to protect everyone's position, having regard to what you've put, I will put out those directions in a draft form and provide parties with a short opportunity to have a look at them and to comment. That might allow some tailoring if the directions I put out don't suit in a particular award context. Okay?

PN99

MR FERGUSON: That would be helpful, your Honour. If that's the situation, I won't deal with all the individual awards. There may be a few that we'd suggest further conferencing.

PN100

JUSTICE ROSS: Yes.

PN101

MR FERGUSON: But it might be better for me to reflect on that and then response to the draft, your Honour.

PN102

JUSTICE ROSS: Look, the statement I issue will have a general invitation. If any party at any stage is seeking further conferencing - if you want the Commission to do anything, you just need to let us know.

PN103

MR FERGUSON: Yes.

PN104

JUSTICE ROSS: You don't need to wait for a particular date.

PN105

MR FERGUSON: Thank you, your Honour. That's all I'd raise then.

PN106

JUSTICE ROSS: All right. Thanks, Mr Ferguson. Any other comment from Sydney? From Brisbane or Adelaide? Brisbane first.

PN107

MS FISHER: No, thank you, your Honour. I think you've addressed most of the queries.

PN108

JUSTICE ROSS: In Adelaide?

PN109

MS VAN DER LINDEN: Likewise, your Honour, I think you've addressed most of our queries, as well. Thank you.

PN110

JUSTICE ROSS: Okay. I think this will end up being a bit of an iterative process. As we've discovered in the group 1 awards, what I'm hoping is by the time we get to group 4, the thing will sail so smoothly that we won't have to have any mentions, directions and everyone will just automatically put in material.

PN111

If those of you - particularly the bodies with an interest in the group 1 awards - if on the reflection of the process we've adopted there, any of you see scope for improvement - I'm sure there is - or if you have any suggestions about how we might deal with this somewhat tortuous process more effectively or in a way that would better suit the convenience of parties, other than deferring it for a couple of years, then please let me know. In many ways it's difficult to work out how much time to allocate or the scheduling of matters, because it's often not apparent until some way down the process the sort of changes that are sought.

PN112

We are finding, as you've indicated, Mr Ferguson, that there's a definite benefit in providing parties with an opportunity to conference and to have an exchange of views, and to seek to reach an agreement on these matters. The challenge is also to make sure that a degree of pressure is applied to that, so that the time provided isn't endless and that we all reach a conclusion, but if you can give some thought to those general issues and, if any of you have any ideas, just get in contact with me.

PN113

As to the other matters I've covered, I'll issue a statement either later today or on Monday. It will have some draft directions in there and there will be a short period for you to comment on those. I'm conscious of Easter, so we'll get it out no later than Monday. You'll probably only have a couple of days to comment, just to make sure we try and get something settled before the Easter break, and then we can publish the final directions. Is there anything finally anyone wishes to say about any of these matters? No? All right. Thanks very much for your attendance. I'll adjourn.

ADJOURNED INDEFINITELY [1.30 PM]