AM2014/203, Transcript of Proceedings [2015] FWCTrans 524 (23 September 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052380

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JUSTICE ROSS

AM2014/203

s.156 - 4 yearly review of modern awards

Four yearly review of modern awards

(AM2014/203)

Graphic Arts, Printing and Publishing Award 2010

Sydney

9.36 AM, WEDNESDAY, 2 SEPTEMBER 2015

PN1

JUSTICE ROSS: We might just get you to record your appearances even though it will be an informal conference because it's being transcribed just so as we go forward everyone's got a record of what everyone else has said. So perhaps in Sydney first?

PN2

MR B FERGUSSON: Fergusson, initial B, for the Australian Industry Group. With me is Ms BART, initial R.

PN3

MR D ASTLEY: My name is Astley, initial D, for the AMWU.

PN4

MS J KIM: Kim, initial J, for the Printing Industries Association of Australia.

PN5

MS M CHAN: Chan, initial M, for mother, of Australian Business Lawyers and Advisors appearing on behalf of Australian Business Industrial and the New South Wales Business Chamber.

PN6

JUSTICE ROSS: Thank you. In Perth?

PN7

MS POLE: Pole, initial B, from Allion Legal, I'm seeking leave to represent West Australian Newspapers, and I have here with me BARKER, initial R, from West Australian Newspapers.

PN8

JUSTICE ROSS: Thank you. Can I apologise for the time difference. I didn't appreciate that we'd have anyone from WA. For reasons I'll explain in a moment, this is likely to be the first in - well there will be at least one more of these and I'll make sure that we don't list it as early in the morning having regard to interstate interests.

PN9

MS POLE: Thank you.

PN10

JUSTICE ROSS: There's no one in South Australia but we've got an apology, I think.

PN11

THE ASSOCIATE: Yes.

PN12

JUSTICE ROSS: Can I just explain at the outset that I had eye surgery on Monday which has done wonders for my long term vision or long-sightedness but is playing havoc with my short-sightedness at the moment. I'm getting some other glasses tomorrow but they said that this may happen but I wasn't really aware of the extent of it. It's proving to be a bit challenging. I went over some of this material a while ago when it came in, when I was making a decision about the conference but it seemed that there were so many issues and sort of such a level of outrage that I thought I should start the process.

PN13

I've got some familiarity with particularly what each of you say about part 4 of the exposure draft, the hours of work. I'm less familiar with the others because I intended to read that beforehand but that proved a bit too challenging over the course of the last couple of days. Nevertheless, I'd like to work through the whole document. I think you've all got the revised document. Can I just raise, in relation to Ms Pole in WA, does the West Australian Newspaper - does your client have a particular interest in a particular issue here? Because I'm not seeking to limit your participation but it occurs to me that if it's more narrowly focused then it might be convenient for us to deal with that. Is that - - -

PN14

MS POLE: Sir, we don't have a particular interest. We're really here today just to observe. We thought it would be best for everyone if we did sit on this conference, just in case something was raised that we did have an issue with. But really I think the primary focus for our client is in relation to the hours of work and metropolitan daily newspapers, but I believe Mr Astley will probably speak more to that and then we can contribute after his - he has spoken.

PN15

JUSTICE ROSS: No, that's fine, that's fine. As I understand it, part 5 of the current award, if we just deal with the hours of work issues, the issues upfront, I think 1 to 16 in the revised document. It contains, if you like, five streams with some differences in relation to the hours of work provisions and what the award modernisation team endeavoured to do was to - in an effort to simplify them sort of collapse them down. It's that collapsing that's created the issue and there seems to have been - I don't say this critically but a shift in view of some of the parties over time about this issue.

PN16

There was an initial attraction to it, because when you look at it you think well that looks simple, but then once you've given it some more thought, no doubt consulted, then there's been more resistance to the change. Is that a fair summary of where we're up to? Is it reasonable that I think all of the parties now would prefer to go back to the delineation into the streams?

PN17

Now there are still some issues about the drafting within those streams which you go through but as a general proposition you prefer to go back to the delineation because you think it's clearer and it also allows you to check against the current award to see whether there's been any change in - unintended change in substantive provisions. Is that where you're up to broadly?

PN18

MR FERGUSSON: I think that we're okay with either approach, but if the new approach taken (indistinct) but we're comfortable (indistinct).

PN19

JUSTICE ROSS: Then probably - we'll go through the specific - if you can take it that what I'll get them to do is go back to the streaming. Can I say in relation to that there may still be some scope - I don't want to quite give away the avoidance of repetition if I can. There are some definitions in each of the streams that are common, so we may be able to - we'll see and I'll have a look at it before it goes out and that may avoid some repetition.

PN20

Repetition is one of those things that whether it's a problem or a benefit's a bit in the eye of the beholder and we'll put out another exposure draft and I'll have another conference with you and you can talk to your members in each of these streams and see what they think. It may be that they have a preference almost for a standalone, they want to know if they're in a particular stream, they can go to that part and it's got everything in it, even though it repeats what's in some others.

PN21

I think probably while repetitions desirable to cut it down, I don't think the number of pages in an awards the overriding objective. The main thing is if we've got the same concept expressed then it should be expressed in the same language. What I don't want to have is some subtle but unknown and unintended difference in definition for different streams because that's only going to generate disputation and uncertainty later on. So we may sort of chance the arm a little but don't get too concerned about that. It's intended to be an iterative process, we'll just work our way through it and we'll seek to resolve as many of the issues as we possibly can before the report goes to the Full Bench.

PN22

So having that as a general proposition on that first bit, do you want to go through - and I'd be assisted by you letting me know if you go through the item numbers, which item numbers are dealt with by what we've just discussed and which might need - I think there is some proposed subheading changes et cetera and they may require some discussion. So with what I've just discussed deal with item 1 effectively?

PN23

MR FERGUSSON: Yes, it would. Your Honour, I think one issue, just talking to Mr Bart, I suspect the vast majority of the issues are going to go away but it might be difficult to find (indistinct) whether they do or don't in this process.

PN24

MS POLE: Sorry, we can't hear that in Perth.

PN25

MR FERGUSSON: Sorry, I'll speak up. I was just suggesting that the vast majority of issues may disappear as a result of this approach but it might be hard to pick up whether they all fall into that category or not.

PN26

JUSTICE ROSS: What about the - if we go to item 3, your item, does that disappear, the subheading change? It does?

PN27

MR FERGUSSON: I think it might, yes.

PN28

JUSTICE ROSS: Well do any of the other parties have anything in these items 1 to 17 that you don't think or that you think is going to remain after we revert back to - there's one in 17 that I want to talk to you about but we'll come to that in a minute.

PN29

MR FERGUSSON: Eleven and 12.

PN30

JUSTICE ROSS: Yes, which one?

PN31

MR FERGUSSON: Eleven and 12. It was the omission of some words.

PN32

JUSTICE ROSS: So it's to reinsert the words "all time worked".

PN33

MR FERGUSSON: "All time worked". So just clarifying you get paid double time for all time worked until expiration of 48 hours rather than just (indistinct) 48 hours.

PN34

JUSTICE ROSS: That's broadly supported by - the employer groups of printing organisation support that too?

PN35

MS CHAN: We do not object to it, no.

PN36

JUSTICE ROSS: Has the metal workers got a different point?

PN37

MR ASTLEY: I don't believe that there's any substantial disagreement on the part of the AMWU, that is unless Margaret wishes to add anything else?

PN38

MS HOGAN: No, I'm having a little bit of difficulty hearing some of the discussion. I wasn't sure what the IAA - - -

PN39

JUSTICE ROSS: It's item 12 that we're looking at, at the moment, in the revised summary document.

PN40

MS HOGAN: Okay. No, I have nothing further to add to what Dean has said, thank you, Mr Astley.

PN41

JUSTICE ROSS: Perhaps for my benefit are they - are these ships passing in the night or are you - is the AMWU content to reinsert the words "all time work that is proposed by the AFEI?

PN42

MR ASTLEY: I believe so at this case.

PN43

JUSTICE ROSS: But your point is that okay, you can reinsert them, they're missing, that's fine but you think the clause itself is a bit clumsily worded and could do with some drafting.

PN44

MR ASTLEY: Yes, yes. I believe so.

PN45

JUSTICE ROSS: So if we reinsert and have a go at only in which drafting.

PN46

MR ASTLEY: I think the AMWU has two alternates in relation to the drafting, and I think the first proposal changes the meaning, whereas the second proposal we wouldn't have a problem with but I think the change is - - -

PN47

JUSTICE ROSS: So the second proposal, "if an employee is required to change their working hours".

PN48

MR ASTLEY: Yes, their working hours, that's right.

PN49

MR FERGUSSON: Depending on what the employee's required to do whereas the first one talks of what the requirement of the employer is.

PN50

JUSTICE ROSS: Yes, I follow. Does anyone have a preference on that? If you had a preference it would be for the second of the alternatives that's proposed by the AMWU.

PN51

MR ASTLEY: Just to clarify that would be if an employee is required to change their working hours as opposed to - - -

PN52

JUSTICE ROSS: That's right.

PN53

MR ASTLEY: Yes, yes, that's right.

PN54

JUSTICE ROSS: Anyone else what to say anything about that? What was the next one?

PN55

MR ASTLEY: The next one I think is 13 we can deal with as well.

PN56

JUSTICE ROSS: Yes.

PN57

MR ASTLEY: Addition of words, "on that day or shift" I think we're just clarifying you don't get a meal break where it's six hours - not more than six hours on that day or shift.

PN58

JUSTICE ROSS: Do you need that? It's only going to be ever - isn't the point that it's after six hours? You don't accumulate. Each day stands alone for overtime purposes. That's probably somewhere else in the award. It's in most.

PN59

MR ASTLEY: I think that's right, sorry.

PN60

JUSTICE ROSS: Is the parentheses in the current award? Is that - yes.

PN61

MR ASTLEY: Because it doesn't really matter because you've only - there's day or shift (indistinct) the sentence before, so (indistinct) - - -

PN62

JUSTICE ROSS: That's right, yes.

PN63

MR ASTLEY: So it's not a problem.

PN64

JUSTICE ROSS: Yes, okay.

PN65

MR ASTLEY: 14.

PN66

JUSTICE ROSS: Yes.

PN67

MR ASTLEY: The question, and we were asked to clarify whether it was time and a half extra i.e. 250 per cent or whether it's just paid at time and a half, but I think it's not extra. It's just at time and a half. We went back, and I think others did too.

PN68

MS CHAN: Yes.

PN69

MR ASTLEY: To the predecessor instruments.

PN70

JUSTICE ROSS: Right, so it's 150 per cent.

PN71

MR ASTLEY: Yes. Yes.

PN72

JUSTICE ROSS: Now I know there's a debate later about per cent and double time but we've sort of moved past that debate now, and there was a decision on 23 December which deals with the percentage versus the other matters.

PN73

MR ASTLEY: Yes, I think all of us went to the predecessor instrument.

PN74

MR FERGUSSON: I believe so.

PN75

JUSTICE ROSS: No, no, that's fine.

PN76

MR ASTLEY: That's right.

PN77

JUSTICE ROSS: Anything else before 17?

PN78

MS CHAN: It's a similar issue, your Honour. Item 15, we hold the view that the word "extra" should be deleted. The meal breaks worked during break as well.

PN79

JUSTICE ROSS: Okay, and you say you don't agree with it?

PN80

MR ASTLEY: Well, I believe the - yes, I believe that that's what we've put in written submissions but I think at the last meeting between Ai Group and PIAA, we didn't actually voice any objection to the deletion of the word "extra". So I think that we could potentially amend that because I do believe that that's what the predecessor award did say.

PN81

MR FERGUSSON: Look, and there is one other issue in references to the - - -

PN82

JUSTICE ROSS: Sorry, can you just clarify that?

PN83

MR ASTLEY: Yes.

PN84

JUSTICE ROSS: The predecessor award said extra or?

PN85

MR ASTLEY: No, it didn't. It didn't.

PN86

JUSTICE ROSS: Okay.

PN87

MR ASTLEY: It was just that the time and a half I believe or the - yes.

PN88

JUSTICE ROSS: How did it creep into the exposure draft?

PN89

MR ASTLEY: I just think it might have been a drafting oversight perhaps.

PN90

JUSTICE ROSS: Yes, okay. Yes.

PN91

MR ASTLEY: In any case I don't think that it is paid at that rate, regardless.

PN92

JUSTICE ROSS: Yes, okay, so it is at one hundred and - - -

PN93

MR ASTLEY: In terms of practice, no.

PN94

MS KIM: Yes. The pre-modern award, your Honour, says one half extra on the hourly rate which equates to 150 per cent.

PN95

MR ASTLEY: Yes.

PN96

JUSTICE ROSS: Yes, okay. All right.

PN97

MR FERGUSSON: One other issue that probably - I don't know if we've raised it or not. We may have, but if you're going to reference the hourly rate it should probably be the minimum hourly rate?

PN98

MR ASTLEY: This is a bit of an issue actually because the term "minimum hourly rate" could refer to the minimum award hourly rate.

PN99

MR FERGUSSON: That's what we're saying - - -

PN100

MR ASTLEY: Which obviously goes back to the more - - -

PN101

JUSTICE ROSS: I don't think it could. I think it's intended. - - -

PN102

MR ASTLEY: - - - substantive issue.

PN103

MR FERGUSSON: Or it should be.

PN104

MR ASTLEY: Right.

PN105

JUSTICE ROSS: Yes.

PN106

MR ASTLEY: Okay.

PN107

JUSTICE ROSS: Bear in mind that these are minimum rates awards and they're intended to be a safety net.

PN108

MR ASTLEY: Right, so - - -

PN109

JUSTICE ROSS: It's one of the things we touched on in the December decision last year. Now how it applies in practice and whether there are over-award arrangements or negotiated arrangements is a matter that will be dealt with at each enterprise.

PN110

MR ASTLEY: I suppose one of my concerns is that could this potentially lead to people being paid less if their over‑award payment is more than what it would otherwise be, if that makes any sense perhaps?

PN111

JUSTICE ROSS: I suppose it depends how you interpret the current award. I don't think - well, I'm struggling to see how it would be intended that the current award would be applied to actual rates rather than the rates of pay in the award. But I've not looked at this award closely so that would be a construction argument.

PN112

MR ASTLEY: Sure. Sure.

PN113

JUSTICE ROSS: But that's something you can reserve your position on and we'll see where we go with it.

PN114

MR ASTLEY: Okay, sure.

PN115

JUSTICE ROSS: I wasn't sure what the issue was about 16.

PN116

MR FERGUSSON: I think it's just a typo. Repetition of the word "paid" is it?

PN117

MR ASTLEY: Yes.

PN118

JUSTICE ROSS: Is that right?

PN119

MR ASTLEY: Yes.

PN120

MR FERGUSSON: So the second reference to - the inclusion of the word "paid", "if it was paid time" could come out because it's already referred to as a paid meal break.

PN121

JUSTICE ROSS: Right

PN122

MR FERGUSSON: Yes. We could probably talk about 17 as well.

PN123

JUSTICE ROSS: Yes. Let me just - - -

PN124

MR ASTLEY: Break, rest, pause.

PN125

JUSTICE ROSS: Yes, I did - yes I think this is something we might come back to. I mean, for my part I do find time provision for refreshment a bit quaint and I'm not sure I share the concerns that are raised by the employer interests about the provision doesn't currently provide for a break in the ordinary sense et cetera, and you think there will be a cessation of work, for two reasons. One is the definition of pause which the Macquarie Dictionary describes as "A temporary stop or rest", so I'm not sure how that helps you:

PN126

A cessation from proceeding from doubt or uncertainty, delay, hesitation or suspension"

PN127

et cetera, "To stop wait, hesitate, temporarily halt." So I'm not sure that, you know, pause versus break makes much difference and I thought it had been dealt with. When you look at - yes, I mean truly you've got A to E which make it pretty clear that it's not going to interfere with the performance of work and it's not going to interfere - productivity is not to be reduced, there has to be continuous running of the process, quality, et cetera. I mean you don't normally have that level of detail around what might be referred to in, say, continuous manufacturing as an in-place break, that you just grab a glass of water or do whatever you want to do.

PN128

But it's not a defined - we're not talking about a 15 minute morning tea break or anything of that nature. We're talking about a short break that doesn't interfere with the performance of work. That's normally how it would be expressed. You've certainly done the belts and braces on this one, no doubt reflecting some tortuous negotiation process in the dim, dark past. I might be a bit sensitive about it because one of the criticisms levelled at this process has been one is about some tuberculosis hospital working allowance in the Onsite Building Award.

PN129

MR FERGUSSON: Yes.

PN130

JUSTICE ROSS: And that was dealt with during the transitional review, or not dealt with, and I'll certainly be dealing with that issue in this review. And the other is this expression, "Time provision for refreshment". The other one that I've been hit with is the - you might remember. It's in one of those odd offshore awards. It was a victualling allowance, whatever that is. But the industry parties assured me they knew what it meant and it sort of meant a meal and other stuff. So I think it's desirable to look at an alternative to that heading and it's really how we do that.

PN131

So I'm interested in alternatives to it and something short that gets the message across. But I do think it's not the heading that's going to govern the clause and the clause is very, very specific. Probably if we were dealing with this issue as a completely new merit matter and if it was arbitrated, I don't think you'd end up with that level of specifity but you'd end up with something that reflects the underlying intention. That is there's no cessation of work or impact on the productivity of the enterprise. But we've got that and I'm not - I'm not seeking to agitate the parameters of it. I'm just wanting to look at the heading.

PN132

So have a look at that issue and see if we can come up with something that's slightly - and I'm not even sure that would have time provisions for refreshment. I don't think that sort of catches the eye and you know takes you to what you might think it might mean. You know, short refreshment breaks? So I don't know but - - -

PN133

MR FERGUSSON: No. We'll do that.

PN134

JUSTICE ROSS: Yes.

PN135

MR FERGUSSON: So I think your assessment of the source of opposition is right.

PN136

JUSTICE ROSS: Yes. Okay. Well, is there anything else then on those ranges of hours issues before we go to the range of other matters that we might look at?

PN137

MR ASTLEY: I don't believe that there's anything else from the AMWU regarding the Part 4 matters. Part 4 hours of work matters.

PN138

JUSTICE ROSS: Okay.

PN139

MR ASTLEY: If only I could raise perhaps the issues in relation to penalties and overtime.

PN140

JUSTICE ROSS: Yes. Which item is that?

PN141

MR ASTLEY: Well, I'm not sure what item it is but if I could just say, perhaps, as a general comment that similar problems do arise in relation to penalties and overtime, as we do note that in the current award, Part 5, hours of work also concerns penalty rates, overtime - everything like that as well. So I'd just like to say this as a comment that perhaps this is something that we should consider when we are talking about the problems with Part 4 as well.

PN142

JUSTICE ROSS: Yes.

PN143

MR ASTLEY: In relation to upcoming (indistinct).

PN144

JUSTICE ROSS: Okay.

PN145

MR ASTLEY: That's all.

PN146

JUSTICE ROSS: All right. Well, if we go to, I think, starting on page 10, PIAA makes a general comment, then the AMWU - what's the NES concern here?

PN147

MR ASTLEY: I believe that this matter has been decided upon.

PN148

JUSTICE ROSS: (Indistinct)

PN149

MR ASTLEY: Yes, that's right. That was decided upon. And so I think we've agreed that that one is no longer in issue.

PN150

JUSTICE ROSS: What was the issue?

PN151

MR ASTLEY: I'll see if I can find it for you. I believe it was just the retention of - it's clause 5 in the current Award which was the access to the award in the National Employment Standards. But I think that that was dealt with by the decision so - - -

PN152

JUSTICE ROSS: One of many. Okay. So clause 5 retained, is that right?

PN153

MR ASTLEY: I believe it is.

PN154

JUSTICE ROSS: Yes. All right.

PN155

MR ASTLEY: I believe so.

PN156

JUSTICE ROSS: All right.

PN157

MR ASTLEY: I think item 20 now is at issue.

PN158

JUSTICE ROSS: Yes.

PN159

MR ASTLEY: The words reference in the occupational coverage have been omitted from clause 3.5 and the exposure draft is where it arises. It refers to people engaged in and employees engaged in the industry but parts of the industry but should also reference "and occupation".

PN160

JUSTICE ROSS: So this Award has both an industry and occupational?

PN161

MR ASTLEY: Yes, it does. And that was reflected in the corresponding provision of the old Award referred to. Well, the words "and/or occupations" have been omitted.

PN162

JUSTICE ROSS: All right. What does everyone else think about that?

PN163

MR ASTLEY: I believe that the AMWU is also in support of that, although I will just go to Margaret Hogan just for her input into this matter as well.

PN164

MS HOGAN: Sorry, I'm having difficulty hearing. Is this the coverage? The industry and occupational coverage.

PN165

MR ASTLEY: That's right.

PN166

JUSTICE ROSS: The reference being omitted to - the references of words "and/or occupation" being omitted from the coverage clause.

PN167

MS HOGAN: Yes. Yes, we would concur with that.

PN168

JUSTICE ROSS: Okay. And then there's an issue that - can you hear me?

PN169

MS HOGAN: Yes.

PN170

JUSTICE ROSS: Okay.

PN171

MS HOGAN: Yes, your Honour.

PN172

JUSTICE ROSS: Then there's an issue about - it seems to be the impact of the Full Bench decision to modernise the News Limited Enterprise Awards and as I understand the proposition that other metropolitan newspapers, that is, other than News Limited may no longer be covered in some way by this award. Is that right?

PN173

MR ASTLEY: Yes, that's right.

PN174

JUSTICE ROSS: What's happened? What were they covered by before?

PN175

MR ASTLEY: Well, prior to that they were covered by obviously their enterprise awards.

PN176

JUSTICE ROSS: So their enterprise awards are not being modernised.

PN177

MR ASTLEY: I don't believe so, no. But actually I think that this too is Margaret's area as well.

PN178

JUSTICE ROSS: Okay. So what's happened with the enterprise awards?

PN179

MS HOGAN: Yes. The applications for some Fairfax Enterprise Awards either didn't get up or we withdrew them. There was a bit of - in News Limited's case there was a very strong employer support for those to be modernised. It wasn't the case in the others - particularly, Fairfax - so, yes the situation is those enterprise awards no longer exist. So hence our submission about the coverage coming under this - the Graphic Arts Printing and Publishing Award and Metro Papers Section, your Honour.

PN180

JUSTICE ROSS: Okay.

PN181

MS POLE: Sir, perhaps I can just speak quickly as well?

PN182

JUSTICE ROSS: Yes. Absolutely.

PN183

MS POLE: We have conferred with the AMWU in relation to this matter. The AMWU did approach West Australian Newspapers previously in an effort to modernise their old enterprise awards and this was resisted by West Australian Newspapers on the grounds that West Australian Newspapers has always understood itself to be covered by the Graphic Arts Award since it came into being in 2010 but the end result, I think, is that the parties are in agreement that regardless of the past coverage, going forward, certainly from West Australian Newspapers' perspective it has no objection to being covered by the Graphic Arts Modern Award and has always treated itself as being covered by that since 2010.

PN184

JUSTICE ROSS: Right. So just to put it beyond doubt there should be an amendment to the coverage clause to make it clear that it covers - well, what? Certain specific metropolitan newspapers?

PN185

MS POLE: I think the confusion may arise. In the definition section there's a definition of "regional daily newspaper office". It refers to every office in which a daily newspaper is printed and/or published on more than four days a week. Technically speaking that would - if read exactly on its face - that would probably cover West Australian Newspapers, which is a metropolitan based daily newspaper.

PN186

However, from our client's perspective and potentially other newspaper employers as well the term "regional", is generally, taken to mean "country" newspapers. So while the definition in the award doesn't necessarily refer to country newspapers, that's how it may have been interpreted by other entities previously. So, I suppose our client's view is that to put it beyond doubt as you said it would be preferable if a further definition could be included, or somehow the definition of "regional daily newspaper office" could be amended to clarify that metropolitan daily newspapers are covered by this award.

PN187

JUSTICE ROSS: I think it's better to be clear, rather than as you say, the definition of "regional" might, on its face cover it but it doesn't really fit within the concept, if you like. It might fit within the wording. So, perhaps, it's better to be much more direct in relation to it.

PN188

Can I suggest in this, that you might confer with the AMWU and come up with a proposed coverage provision that meets both of your needs and then that can be circulated to the other interested parties for comment. But I don't think there's any dispute around the table that the intention is that the award would cover them. So if you're not covered by a modernised enterprise award then you would - and you're a metropolitan newspaper then you would be covered by this award. As a general proposition that seems to be agreed. It's just what's the language? How do we give effect to that agreement?

PN189

MR FERGUSSON: And just thinking it through - - -

PN190

MS HOGAN: Yes. Can I just perhaps add, your Honour - and just following on from the comment from Western Australian Newspapers and the definition of "regional daily newspaper office". I think I'm the only one around the table who was involved when the award was modernised, and that definition was literally picked up out of the Regional Daily Newspaper Printing Award and just dumped in without any thought. We never turned our mind to metropolitan newspapers at all.

PN191

It wasn't on our radar, so it's perhaps an unintended consequence of picking up that definition. That old award only every covered regional newspapers in New South Wales, Victoria and Tasmania, so I would agree with the Western Australian Newspaper position that we do need to come up with a definition that would cover the metro newspapers, so it's separated out from the old regional daily definition that could be read, on its face, to cover the metro. But yes, I think it's a good idea to come up with something and circulate it.

PN192

JUSTICE ROSS: Okay.

PN193

MR FERGUSSON: The other thing to probably think through is whether there are the consequential amendments for the different - part of the hours of work provisions that apply to the different newspapers. So whatever has developed, we should probably clarify all of that as well.

PN194

JUSTICE ROSS: Yes, which one would apply to ‑ ‑ ‑

PN195

MR FERGUSSON: To which, yes. We haven't talked through that.

PN196

JUSTICE ROSS: This won't be the last one of these. Once we get the definition we will be able to look at the ripple effect, and you will have a look at part IV as it's redrafted. But yes, you would have to make it clear which of the hours of work streams applies to the metro papers to be covered by the award. All right. Anything else on that? No. Can we go to item 22. That seems to be agreed.

PN197

MR FERGUSSON: Yes. That's one that was agreed.

PN198

JUSTICE ROSS: Then we've got item 23.

PN199

MR FERGUSSON: I think that's agreed as well.

PN200

MR ASTLEY: I believe so, yes.

PN201

JUSTICE ROSS: Anyone else? No. And item 24.

PN202

MR FERGUSSON: Our view is that there might be issues of amendments being required, depending on what other changes get made as part of this process.

PN203

JUSTICE ROSS: So we might leave that for the moment.

PN204

MR FERGUSSON: Yes.

PN205

MR ASTLEY: Because that was the level 3 facilitation for the hours of work, so yes. That's sorted out.

PN206

JUSTICE ROSS: All right. 25 has gone off the bench. 26, is this the clause in the exposure draft that tells you what casual loading ‑ ‑ ‑

PN207

MR FERGUSSON: Yes.

PN208

JUSTICE ROSS: I think that has gone, hasn't it?

PN209

MR ASTLEY: That has gone. That's right.

PN210

JUSTICE ROSS: Then we have the AFEI proposal at 27.

PN211

MR FERGUSSON: Agreed.

PN212

MR ASTLEY: That was all agreed, yes.

PN213

JUSTICE ROSS: 28.

PN214

MR FERGUSSON: Withdrawn.

PN215

MR ASTLEY: That matter has been withdrawn.

PN216

JUSTICE ROSS: Then 29 - that has been removed. 30.

PN217

MR FERGUSSON: I think that's going to the casuals bench.

PN218

JUSTICE ROSS: It is. It's certainly looking at the casual conversion question, so it makes sense to deal with it ‑ ‑ ‑

PN219

MR FERGUSSON: Subsumed by another proposal ‑ ‑ ‑

PN220

JUSTICE ROSS: Yes, I think that might be right. 31.

PN221

MR FERGUSSON: This is a substantive claim. It's about - our view that this clause should be amended to clarify that certain groups are exempt from its application. I think it flows on from the apprentices case, but it's not likely to be agreed at this point.

PN222

MR ASTLEY: Yes.

PN223

JUSTICE ROSS: So substantive claim?

PN224

MR FERGUSSON: Yes, that's right.

PN225

JUSTICE ROSS: Are there any substantive claims in this?

PN226

MR ASTLEY: There are not that many substantive claims.

PN227

MR FERGUSSON: There are two each.

PN228

MR ASTLEY: I believe so.

PN229

JUSTICE ROSS: What are they?

PN230

MR ASTLEY: The AMWU is seeking to update the schedule of competencies, and also the change of the coverage as per the daily metropolitan newspapers. Those are the two from the AMWU, and I believe the Ai Group.

PN231

MR FERGUSSON: We've got an exemption in relation to this training clause, saying this training clause isn't about vocational training, put simply. Then we've got a - the payment of wages on termination, saying that payment of wages should be made not immediately, but at some later point.

PN232

JUSTICE ROSS: It's not that issue about leave payments on termination, is it?

PN233

MR FERGUSSON: No. There's an overlap in the logic in some of the issues, perhaps, but it's broader. And I think we've been happily putting it aside a little bit till we got a decision on leave.

PN234

JUSTICE ROSS: I don't see any light at the end of that tunnel.

PN235

MR FERGUSSON: No.

PN236

JUSTICE ROSS: Mainly because the ACTU is the claimant, and their most recent correspondence suggests that they don't want it called on, and no one else is disputing that.

PN237

MR FERGUSSON: No one is going to it.

PN238

JUSTICE ROSS: Yes. No one really wants it dealt with until we know where that amendment bill is up to, because otherwise we will just be relitigating the matter as soon as it's dealt with. I don't see any acceleration in the legislative process, so I don't think that will be dealt with any time soon. Your coverage substantive claim, is that the one we were talking about earlier?

PN239

MR ASTLEY: That's right.

PN240

JUSTICE ROSS: That's probably going to be resolved by the sound of it.

PN241

MR ASTLEY: Yes. Sure.

PN242

JUSTICE ROSS: Okay. So there will be a couple of - we will make a note of those matters and perhaps we will send something to you next week clarifying that these are the substantive claims, because we may as well get them off to another bench and get some progress on those matters. Then we've got 32. Is that caught up with the training allowance issue, Mr Fergusson, or is that different - that's just a typo?

PN243

MR FERGUSSON: That's a typo.

PN244

JUSTICE ROSS: Does everyone agree?

PN245

MR ASTLEY: That's right.

PN246

JUSTICE ROSS: So 32 is agreed. 33, abandonment of employment.

PN247

MR ASTLEY: This one was more of just a drafting suggestion by the AMWU. We note in the current award abandonment of employment takes place just prior to termination of employment, so that's grouped together; whereas I believe in the exposure drafts it falls under hours of work, if I'm not mistaken.

PN248

JUSTICE ROSS: I see.

PN249

MR ASTLEY: Sorry, it falls under - just bear with me - under Part IV, I believe.

PN250

JUSTICE ROSS: Okay. But the logic is that it should be - it's really a termination issue.

PN251

MR ASTLEY: That's right, yes.

PN252

JUSTICE ROSS: It's an act that brings the employment relationship to an end.

PN253

MR ASTLEY: Yes.

PN254

JUSTICE ROSS: And everyone is broadly comfortable with that? Yes. Okay. 34.

PN255

MR ASTLEY: That's right. This is to do with Part III of the exposure draft. That's really just to emphasise that these clauses are minimum rates. I believe that there was agreement in this matter at the meeting of the parties on the 18th, and we had just proposed the return to the title "minimum wages and related matters".

PN256

JUSTICE ROSS: All right. Then 35. Yes, this might be an exemplar award general format issue.

PN257

MR FERGUSSON: Might be.

PN258

JUSTICE ROSS: I will check that. 36. This is PIAA's

PN259

MS KIM: Yes, your Honour. We found a typo in this clause, 21 of the exposure draft. It says, "Subject to clause 10.3", we believe this should be ten point ‑ ‑ ‑

PN260

JUSTICE ROSS: 10.6?

PN261

MS KIM: 10.5(c).

PN262

JUSTICE ROSS: I see. 10.5(c).

PN263

MS KIM: Yes, your Honour.

PN264

JUSTICE ROSS: Which clause of the exposure draft is that?

PN265

MS KIM: 10.6, where it says, "Subject to clause 10.3", we hold that this should be amended to 10.5(c).

PN266

JUSTICE ROSS: What does everyone else think?

PN267

MR FERGUSSON: We agree, yes.

PN268

MR ASTLEY: We would also be agreeing with that as well.

PN269

JUSTICE ROSS: All right. The junior rates? This is a calculation issue in 37.

PN270

MR FERGUSSON: Yes. Firstly there's an issue with the rates that require recalculation.

PN271

JUSTICE ROSS: Yes. Is that agreed, that there's an issue with the rates?

PN272

MR ASTLEY: That's agreed.

PN273

SPEAKER: Yes, your Honour.

PN274

MR ASTLEY: We've all done the calculations.

PN275

MR FERGUSSON: We haven't worked out what the nature of the error is, it's just that they're wrong.

PN276

JUSTICE ROSS: Yes, probably doesn't - yes, okay.

PN277

MR FERGUSSON: On the source of it. Then we did put that - there were some words within ‑ ‑ ‑

PN278

JUSTICE ROSS: Parenthesis.

PN279

MR FERGUSSON: ‑ ‑ ‑ parenthesis that should be inserted. We're not sure, perhaps, that the heading solves the problem anyway. We were just looking at it again this morning.

PN280

JUSTICE ROSS: Right. Well, you might want to reflect on that and see how we go.

PN281

MR FERGUSSON: I think that takes us to 38.

PN282

JUSTICE ROSS: Yes.

PN283

MR FERGUSSON: It's just cross-referencing issues.

PN284

MR ASTLEY: There's essential agreement there as well.

PN285

JUSTICE ROSS: They're agreed? Okay.

PN286

MR FERGUSSON: 39 is withdrawn.

PN287

JUSTICE ROSS: Yes. 40, is that agreed?

PN288

MR FERGUSSON: We thought words are missing but on a similar note I'd say on reflection they might not be so maybe we should come back to you on that one as well.

PN289

JUSTICE ROSS: All right. Then 41 is withdrawn?

PN290

MR FERGUSSON: Yes - actually, this one was to do with the deletion of the reference to, "From 1 January 2014 to 31 December", as those dates have passed. The 52.5 per cent has already been implemented so we just propose that those words be deleted.

PN291

JUSTICE ROSS: Yes.

PN292

MR ASTLEY: In that we just raise it - it's not walk-past and the rates are lower. It's whether or not there is some utility to referencing that for parties to know that not long ago there were lower rates that applied during that period.

PN293

JUSTICE ROSS: Well, yes, but bear in mind that by the time we actually make all these variations it's more likely to be the middle of next year, only because we'll work our way through - I'm not saying that's how long it will take this process. We'll be through this process this year. There may be some amendments to this award to reflect the outcome of leave and the flexibility decisions but the complete reworking of the award and the - it's not the creation of a new award; it's the substantive variation to put it in the new format. It's probably going to be post next year's annual wage review, only for convenience, really, that that will be when it will be done.

PN294

Because you've also got the range of casual and part-time issues that will impact of this award as well. So when it actually comes into operation it's not as if it's going to be a launch-off and it'll be out by the end of this year. So they will have it in place until then.

PN295

MR ASTLEY: Yes, I mean, I'm thinking the main purpose it will serve is that people will be checking what they'll be paid.

PN296

JUSTICE ROSS: Yes.

PN297

MR ASTLEY: That's probably the list of references - that's probably it if you think about it.

PN298

JUSTICE ROSS: The problem - you take the logic of that and extend it, then do we include the phasing?

PN299

MR ASTLEY: Yes, but it's only because this is almost not typical.

PN300

JUSTICE ROSS: Yes, but most of the phasing completed in 1 July 2014. It's not that different. It might be a general advice that you send out letting them know what it was. So what happened on 31 December? Did the first-year rate drop?

PN301

MR FERGUSSON: It went up.

PN302

MR ASTLEY: I believe it went up from 50 per cent initially to 52.5.

PN303

JUSTICE ROSS: 52.5.

PN304

MR ASTLEY: Yes, 52.5.

PN305

JUSTICE ROSS: Yes.

PN306

MR ASTLEY: I should note that it's not something that the AMWU is particularly pressing. It's just something that we thought could perhaps potentially - - -

PN307

JUSTICE ROSS: Yes, and I think that's probably right. It does need to be looked at.

PN308

MR ASTLEY: Yes.

PN309

MR FERGUSSON: On the next review, certainly.

PN310

JUSTICE ROSS: But there might not be another review. I'll put a note to delete the words, "in the next exposure draft but to invite comment", so it's not on the basis it's agreed, et cetera. 42?

PN311

MR ASTLEY: I think that there was agreement at the meeting about this.

PN312

JUSTICE ROSS: Yes, it looks like it. Everyone else comfortable with that?

PN313

MR FERGUSSON: Yes.

PN314

MS KIM: Yes, your Honour.

PN315

JUSTICE ROSS: 43? Look, that might be - I just want to check whether that's a standard clause. That doesn't mean it shouldn't be revisited but it may have an impact across other awards. If it does, then what we would do is - well, firstly, we might put it forward on this basis; that if this is the case if the parties here agree then we'll say look, this was agreed but it's an issue that affects potentially a range of awards and so we're inviting broader comment and we would probably deal with it at the full bench level then and just see what everyone else thinks, because I don't think we just amend one award to deal with this. It doesn't mean that it may not have merit but it's a bit like the absorption question.

PN316

The AMWU raised it in the manufacturing award but then all hell broke loose, so - and I don't think we'll have the same reaction to this but nevertheless supported wage has got a level of complexity because of that Federal Court decision and there is still some work being done on the formula. So what do the other parties think about the proposition first?

PN317

MR ASTLEY: Well, the AMWU would be against it. From the awards I've looked at myself, I do believe that that is a fairly common phrasing. It's also present in most of the pre-modernised awards as well, reading into it. Also, without that particular phrasing I think that it lacks a particular definitional aspect which is crucial to the supported wage system so we would be opposing that application.

PN318

JUSTICE ROSS: How attached is ABI to the issue?

PN319

MS KIM: I probably need to get better instructions from my initial review of this. I believe we are to be attached.

PN320

JUSTICE ROSS: Okay, well, if you can - I'll get ABI to confirm position. We'll look at the general implications. Just bear in mind - I don't say this to deter you - but if you are attached to it it's likely you're going to be running it across the system rather than just this award. So that might - yes, how attached might come to light. Okay, anything else about that? Then we've got 44. I think it would be useful just for me to find out where this supported wage thing is up to because I remember establishing a bench to deal with it and it seems to have gone into the ether and I think because it's waiting for some department to publish something was the last I heard of it. So we should track that down.

PN321

All right, 44? Is this about obsolete/not obsolete? What did we say is obsolete?

PN322

MR ASTLEY: Well - actually, I'll leave that to you, I think; this clause.

PN323

MS KIM: Yes, your Honour. We hold the view that this clause is obsolete. It leads to a classification system that is 10 years old as it was introduced as a result of the 2005 variation into the pre-modern award.

PN324

JUSTICE ROSS: Was that a result of the awards in publication or the end period of it or - - -

PN325

MS KIM: I believe that was after a decision by Senior Deputy President Marsh in the Graphic Arts General Award decision, PR 964271 in 2005. Yes - - -

PN326

JUSTICE ROSS: So it's the reclassification clause?

PN327

MS KIM: Yes, your Honour.

PN328

JUSTICE ROSS: To translate to the eight-level classification structure in the award?

PN329

MS KIM: Yes, your Honour, which is to be a five-classification structure.

PN330

JUSTICE ROSS: Yes.

PN331

MS KIM: But we do not see the adequate basis to have this provision into the award.

PN332

JUSTICE ROSS: So which - is it just 23.1?

PN333

MS KIM: That's for the current award, yes. And in the exposure draft 15.1

PN334

JUSTICE ROSS: Yes, but if we look at the current award, what does 23.2 do?

PN335

MS KIM: This allows consultation.

PN336

JUSTICE ROSS: Yes, but about what?

PN337

MS KIM: About the classification structure.

PN338

JUSTICE ROSS: But I'm just not sure - the classification structure is set in the award.

PN339

MS KIM: Yes.

PN340

JUSTICE ROSS: My question really is: is that linked to 23.1? Are you consulting about the transition to the eight-level structure, or are you consulting about something different? Did Marsh SDP give a decision when this was inserted?

PN341

MS KIM: Sorry?

PN342

JUSTICE ROSS: Did Marsh SDP give a written decision when this clause was inserted into the award?

PN343

MS KIM: Yes, I believe so.

PN344

JUSTICE ROSS: That might be the answer to that.

PN345

MS KIM: Yes. I have to - I actually don't have that ‑ ‑ ‑

PN346

JUSTICE ROSS: No, that's fine. If you wouldn't mind sending the reference through to my associate, and we will make sure the other parties get it. But that might explain which bits went in at which time, and it will give me a better idea about the scope of your obsolete argument.

PN347

MS KIM: Yes, sir.

PN348

JUSTICE ROSS: If these were somehow connected, then your proposition is that they're obsolete because the transition has taken place. All right. And the other employers, except Business SA, agree with you, and the AMWU doesn't.

PN349

MR ASTLEY: No.

PN350

JUSTICE ROSS: What's your ‑ ‑ ‑

PN351

MR ASTLEY: Our view is that the classification structure in many workplaces has yet to take effect. So we would probably be proposing that the date be extended, perhaps. I suppose that in its current form it is somewhat obsolete, because it says that, "By 30 June 2010." But from what my understanding is, many workplaces still use - I believe it's the eight-level, as opposed to the five-level classification structure - sorry, it's the five-level classification structure, as opposed to the eight level. As it was today ‑ ‑ ‑

PN352

JUSTICE ROSS: Can you get us a list of those workplaces that currently use the five and not the eight?

PN353

MS HOGAN: Can I just add to that, your Honour. In a lot of cases, too, it's not even the five-level structure. A lot of enterprises would - particularly small to medium ones - would use their own in-house classification structure they've built up over the years. Some of the bigger employers, prior to striking classifications in enterprise agreements, also had their in-house classification structures.

PN354

So we would say really the eight-level structure in the award is not really widely practiced or understood in the industry, and so it's ‑ ‑ ‑

PN355

JUSTICE ROSS: Yes. I guess there are a couple of things that occur to me from that. One is what are you doing about that? There's nothing to stop you agitating a dispute, coming into the commission, getting the thing sorted, or having direct discussions with the employer. But perhaps the more fundamental thing is then they're in breach of the award, potentially, and it may become and underpayment issue if people are inappropriately classified or paid, but difficult to make an assessment about that.

PN356

I don't think they would necessarily get belted just because they haven't put them at a particular level. The real issue is: is the work they are doing, that puts them into the - at some point in the eight-level structure, which means they have an entitlement to a minimum rate of pay at a certain amount. The real question is whether they're getting paid less than that.

PN357

That's going to be an issue. That's an issue in almost every award, most spectacularly with 7-Eleven. So there are always issues about that. I'm just not sure how this question - I mean, they've had five years, it's a bit ‑ ‑ ‑

PN358

MR FERGUSSON: People have agreed to develop their own classification structures for their own purposes. If they're paid at over award rate ‑ ‑ ‑

PN359

JUSTICE ROSS: Sure.

PN360

MR FERGUSSON: So if you're not looking at a claim to say, "No, everyone has got to go and put people in a classification", that's really producing a new substantive obligation to do that, to align people to the award. I just don't see how that needs to be done through the exposure draft proposals. If people aren't paying the award rate, that's the real issue. They may not be following this, but it seems that the unions want a substantive change.

PN361

JUSTICE ROSS: Yes. Well ‑ ‑ ‑

PN362

MR FERGUSSON: There may be a case for it.

PN363

JUSTICE ROSS: Just have a think though what we've discussed, because even on your proposition, I don't think it's going to make any difference.

PN364

MR FERGUSSON: Sure.

PN365

JUSTICE ROSS: AS a matter of practicality, I don't think anything is going to happen. If we extended that by 12 months, nothing will happen in 12 months. Is the - that's just for - you might have a couple that you pick up, but frankly, you can pick them up anyway. Even if this wasn't in the - bearing in mind we're not going to - the comments I made earlier that these structural changes in this award are unlikely to come into effect till some time next year, so you've got between now and then anyway if you want to chase up employers.

PN366

But the point Mr Fergusson makes is right, that it's the legal obligation to pay a minimum amount of money based on the exercise - or the work that's carried out and the skill level, et cetera, of the employee, irrespective of - they might have a three-level structure. That doesn't matter. If, when you look at the work that person does, they are in, for example, level 6 of the classification structure in this award and they're not being paid that, they're being paid down here on a work value assessment, then they're in breach.

PN367

They're not in breach just because they call it something different. They're only in breach if they're paying less than someone properly classified under the award would receive. So I'm not sure where - you know, it's - and what do you think is the likelihood that if you got an extra six months, you're going to be able to tidy everybody up?

PN368

Because, I mean, you wouldn't even - how many enterprises are covered by this award? Quite a few, from memory, and employees. A significant number wouldn't have a union presence, so we're going to have this issue irrespective. But just reflect on what I've said. And it might not be right, so think that through. And just give some thought to: well, what do you want to do in relation to this.

PN369

MS KIM: Your Honour, I'm not quite sure. But has an issue in relation to this clause - has it been around for the past 10 years? I don't ‑ ‑ ‑

PN370

JUSTICE ROSS: I'm not aware of any ‑ ‑ ‑

PN371

MS KIM: I don't think this has been an issue from ‑ ‑ ‑

PN372

JUSTICE ROSS: No, but the time has sort of passed, so I wouldn't have expected to hear anything for the last five years in any event. It really gave six months - which is a bit short, but nevertheless - to translate into a new structure. I doubt if there has been any dispute notified since 30 June. It's not uncommon for there to be disputes about the appropriate classification of an employee. There's nothing to stop that dispute being agitated.

PN373

Under the dispute resolution provision it can only be dealt with by conciliation, but most of them are sorted out, particularly if there are organisations on each side. And there's nothing to stop you prosecuting.

PN374

I just don't think - even if your position was accepted and granted, I don't think it's going to deal with the underlying problem, which is there are lots of employers out there who are just going to ignore it because it doesn't suit them or they've got their structure and they don't see the need to move to the new one, which is, on what you've said, seems to be the case now; or there's no actual - where's the legal obligation to align and provided they're paying the minimum. So have a think about it but it sounds like it might generate into a substantive claim if you want to pursue it, that's all. Forty-five?

PN375

MR FERGUSSON: It's just a typo. We're in agreeance there.

PN376

JUSTICE ROSS: Okay. Forty-six?

PN377

MR FERGUSSON: It's been withdrawn by Business Australia.

PN378

JUSTICE ROSS: Right. Forty-seven.

PN379

MR FERGUSSON: We just sort of thought the (indistinct) might have been fixed in the schedule but - - -

PN380

JUSTICE ROSS: So what the exposure draft takes out the calculation method?

PN381

MR FERGUSSON: I think it's set out in the schedule.

PN382

JUSTICE ROSS: So it's okay?

PN383

MR FERGUSSON: Yes.

PN384

JUSTICE ROSS: So the change is not needed? The first aid allowance?

PN385

MR FERGUSSON: It was an API issue originally but I think we've supported - might raise - it's similar. It's about moving.

PN386

JUSTICE ROSS: I see. Nominating a person as the holder.

PN387

MR FERGUSSON: No, it's about whether someone is qualified as opposed to the current holder and about an expiry of the qualifications. I'm just trying to find the two words. So the current award clause refers to an employee as being trained to enter first aid and who is the current holder of an appropriate first aid qualification such as the certificate from St John's Ambulance. That's all.

PN388

Whereas, I think the new clause provides that an allowance is payable to an employee who is qualified in the first aid (indistinct) notwithstanding a small issue but I think with (indistinct).

PN389

JUSTICE ROSS: What's the exposure draft wording? Because you wouldn't be the holder of a qualification if it's expired.

PN390

MR FERGUSSON: It's talked about a person who is qualified to render. Whether you're qualified or not - depending on it - look, it just seems to be that the old wording doesn't alert you to the fact that it has to be current. But I know there's this issue that we're dealing with but - - -

PN391

JUSTICE ROSS: Probably not. Yes, nevertheless.

PN392

MR FERGUSSON: And that - - -

PN393

JUSTICE ROSS: Yes, okay. Well, check the language.

PN394

MR FERGUSSON: Yes. Our preference is the former.

PN395

JUSTICE ROSS: Yes.

PN396

MR FERGUSSON: But nothing else directs people to the fact that there is a bit of a currency issue in terms of it.

PN397

JUSTICE ROSS: Yes. Yes. Yes. And there's no doubt that they expire after a certain period.

PN398

MR FERGUSSON: That's so.

PN399

JUSTICE ROSS: And then you can get refreshers and all the rest of it. So - all right. Anyone else have any views about that? One way or the other?

PN400

MR ASTLEY: I don't believe the AMWU is particularly opposed to this application, although I think that we would have a preference just to it to revert back to the way that it was in the current award. So, effectively, the same.

PN401

MS HOGAN: Yes. Can I add, I think, our preference would be to revert to the current wording in the current award.

PN402

JUSTICE ROSS: Anybody else? Then 49?

PN403

MS KIM: Your Honour, just a housekeeping matter. Is that then an appropriate time if our submission or our concern in relation to this item can be amended?

PN404

JUSTICE ROSS: Yes.

PN405

MS KIM: Our position - I think there was a typo just on
- - -

PN406

JUSTICE ROSS: Which is this - 49?

PN407

MS CHAN: For item 49.

PN408

JUSTICE ROSS: Yes. Okay.

PN409

MS KIM: For the summary of issue I think there was - - -

PN410

JUSTICE ROSS: Yes, it looks like it.

PN411

MS KIM: A copy and paste issue.

PN412

JUSTICE ROSS: Yes. Yes.

PN413

MS KIM: Our position is that we wish to maintain the status quo and an employee is entitled to meal breaks under those sub-clauses. This position is in the revised table - is for another clause that - - -

PN414

JUSTICE ROSS: Yes, it is. Yes. No, no problem. We'll update that.

PN415

MS KIM: Thank you.

PN416

JUSTICE ROSS: Okay. So - - -

PN417

MR FERGUSSON: This is about whether you get meal allowance under both clauses.

PN418

MS KIM: Yes.

PN419

MR FERGUSSON: And do you think then to get - you get two meal allowances?

PN420

MS KIM: Well, we hold the view that an employee is entitled to a meal break under both circumstances. It doesn't have any erroneous or ambiguity or ambiguous interaction between the two sub-clauses.

PN421

JUSTICE ROSS: What - - -

PN422

MR FERGUSSON: What meal allowances?

PN423

JUSTICE ROSS: Yes, the AMWU says when you say interaction is clear that only one applies and it seems that ABI and peer support - your proposition, I think, is that right?

PN424

MS KIM: Well, you know we can't find anything that makes the two clauses ambiguous or - because - just from the wording of it. Yes. We don't find - we do not find it ambiguous at all.

PN425

JUSTICE ROSS: Yes. And that's really the ABI point. The use of the word "or" makes it clear.

PN426

MR ASTLEY: I don't believe that our position has changed either. I think that it still is clear that just the one does apply. I suppose perhaps the word though can be - - -

PN427

JUSTICE ROSS: Both are retained but they apply in different circumstances.

PN428

MR ASTLEY: Yes.

PN429

JUSTICE ROSS: What does anyone else think?

PN430

MR FERGUSSON: We're not proposing an amendment. We didn't think it operated to give you entitlement to two allowances as I think - - -

PN431

MS KIM: It's not two allowances.

PN432

MR FERGUSSON: Yes. Yes.

PN433

MS KIM: It's just different situations.

PN434

MR FERGUSSON: Yes, that's right.

PN435

MS POLE: That sounds like a review than agreement, that there's only one.

PN436

MR FERGUSSON: (Indistinct) may be we would have discussions (indistinct).

PN437

JUSTICE ROSS: Yes. Well, that might be not a bad idea.

PN438

MR FERGUSSON: Yes.

PN439

JUSTICE ROSS: See, I'm a little puzzled by - without going to the full submissions you've got ABI saying their submissions based on the use of the word "or", between (iv) and (v). You've got Business SA who suggest removing the word "or" after four, because they're not alternate. Then you've got ABI in a later submission supporting Business SA. I'm not sure where that leaves me.

PN440

MS CHAN: I need to clarify that with the person who drafted the submissions at the time. I wasn't actually employed at that particular point in time but just based on my reading of it - sort of right now - and I'll definitely come back to the Commission in relation to this. I believe the second and third submission, that is those supporting Business SA and AMWU's submissions in March would probably be the position that we would be relying upon as opposed to those of February where we have relied on the use of the word "or".

PN441

JUSTICE ROSS: Okay.

PN442

MR FERGUSSON: How does - well, I'm just trying to - just looking at the words now - how the word "or" between four and five fixes the distinction between clause one. Because I think that when you're reading them it looks like you could qualify her point twice. Qualify it at (i) and then at (iv) - which it would seem a very broad outcome if that was the case. It may be that you need to put more "or's" in earlier on.

PN443

JUSTICE ROSS: Yes. And they're actually asked to clarify the interaction between (i) and (iv).

PN444

MR FERGUSSON: Because it's theoretically an overlap which doesn't make clear which (indistinct).

PN445

JUSTICE ROSS: So "(iv) An employee works overtime for three hours after their ordinary finishing time and doesn't take a meal break."

PN446

MS KIM: That's (iv). But (i) is talking about an employee who hasn't been notified on the previous day.

PN447

MR FERGUSSON: So it's an earlier threshold if you haven't been notified.

PN448

MS KIM: Yes. The earlier one is about when you haven't been notified and the latter one is about if you haven't just taken a meal break. So I fail to see - - -

PN449

JUSTICE ROSS: What if you work four hours overtime at the end of this shift?

PN450

MS KIM: Right.

PN451

JUSTICE ROSS: Right? And you don't take a meal break and you've been asked to - you weren't notified the previous day. I must admit the - yes, well, anyway - so you weren't notified the previous day: do you get two meal breaks? Two payments of meal allowance or one?

PN452

MS CHAN: I'd say you'd get one on the basis of A1 because more than one and a half hours contemplates that it could be up to, say, four.

PN453

MS KIM: What if we take away - this is slightly different but - take away the phrase, "on each occasion?" Would that qualify - - -

PN454

JUSTICE ROSS: "On each occasion" - where would that come from?

PN455

MS KIM: You can change that - 18.3(a); maybe re-word that so it says - - -

PN456

JUSTICE ROSS: Yes, I'm not sure what, "on each occasion", would add but - yes, I know it's there but I'm not sure what work it does there. But what would be the answer to that question, do you think? Leave aside merit issues; just have a think about - because, the not notified the previous day is intended to reflect the fact that you might not be able to prepare and take a meal, therefore you've got to purchase it. So you've got - historically those sort of clauses are about circumstance and 4 is about where you don't get a meal break after working a certain amount of time.

PN457

MR FERGUSSON: I think you could read it to say because there's a list and there's only in the last one but whenever one of this trips up that's when you get a meal allowance. But I don't think you get it each - separately. But it could be clarified because you could read it either way.

PN458

JUSTICE ROSS: Yes, but I just need - I want to know, (1) how you read it but (2), what do you think it should say? What is the outcome that is a reasonable outcome? I know what you'll say.

PN459

MS CHAN: Maybe as AI Group suggests the parties should go away and work on the wording of that.

PN460

JUSTICE ROSS: I think so. Yes, I think have a discussion amongst yourselves. To my mind, there is at least the potential for you to read this clause - and I'm not making any comment about the merit of this - that someone in the circumstance I mentioned, they've worked let's say for three hours. After their ordinary finishing time they've worked three hours overtime. They don't take a meal break and they were not notified the previous day that they were going to be required to work overtime. IN those circumstances I think it's at least arguable on the current drafting that they would get two meal allowances.

PN461

MR ASTLEY: Even though they don't have a meal break.

PN462

JUSTICE ROSS: Yes, but that's more of a merit point, given that (i) is intended to compensate if you're going to have to buy a meal. You're not going to get a chance if you're not going to get a break. Yes, it seems unlikely but nevertheless, what is the intent here? If it was as it was earlier put, "No, these are different circumstances", then maybe you can agree on - well, then, I don't think the word, "or", solves the problem so it may be a short note, saying an employee is not entitled to a meal allowance under 4 or however you frame it if that's the position you end up in.

PN463

MR FERGUSSON: That actually could come up in relation to multiple clauses in consideration. The junior could work more than one and a half hours but then you've got three.

PN464

JUSTICE ROSS: Okay, well, if the parties confer about this then let's see where we end up. 50? Training allowances - - -

PN465

MR FERGUSSON: This is our substantive claim.

PN466

JUSTICE ROSS: Okay. All right, then we've got 51.

PN467

MR FERGUSSON: It's a typo. We support it. I think everyone - - -

PN468

JUSTICE ROSS: All agree? 52? This was dealt with in the December decision, I think. 53?

PN469

MR FERGUSSON: This is the - it interacts with the (indistinct). We want to put it back to the old approach. If we put it back to the old approach it may disappear.

PN470

MR ASTLEY: Which clause was this in the - - -

PN471

JUSTICE ROSS: 24.1.

PN472

MR ASTLEY: 24.1. Yes, I believe in previous discussions we've just decided that this issue could be related to the hours of work issue.

PN473

JUSTICE ROSS: Okay, so it may disappear and we'll just revisit it if need be once you see the revised draft. 54?

PN474

MR ASTLEY: It's the same. I believe it's the same issue.

PN475

JUSTICE ROSS: 54(a)?

PN476

MR ASTLEY: This is the issue that this chap has raised, I think, across multiple awards. I think it's in relation to every award, he's put a submission? Is it every award?

PN477

JUSTICE ROSS: What's the point? Not immediately clear?

PN478

MS CHAN: Maybe my friends will table that, really.

PN479

JUSTICE ROSS: Is there any enthusiasm for anyone else to - - -

PN480

MR FERGUSSON: No.

PN481

MR ASTLEY: I think I might need to take some time off to have a read of it, actually.

PN482

JUSTICE ROSS: Yes.

PN483

MR ASTLEY: Is it just expressing that he thought the provisions were confusing?

PN484

JUSTICE ROSS: He's probably right about that. Maybe I should get him in here. He might support my pause for refreshment as well. Well, I'll have a look at it as well if you want to have a look at it.

PN485

MR ASTLEY: Sure.

PN486

JUSTICE ROSS: Others have had a look at it and don't share the concern so we'll see where we go with it. 55? Is this something that might be resolved with the reworking of the hours provision or not?

PN487

MS KIM: We believe the clause applies to employees other than daily and regular - barely useful and so as it covers the majority of the employees in our industry - the industry itself is such a diverse - - -

PN488

JUSTICE ROSS: Yes.

PN489

MS KIM: - - and has a lot of niche subsectors and separate provisions for daily and regional daily news - - -

PN490

JUSTICE ROSS: Yes, but what change do you want?

PN491

MS KIM: We're just answering the question. I think necessarily by reworking part 4 there will be flow-on effects in part 5 which be sufficient.

PN492

MS CHAN: Yes, if the one streams as the - - -

PN493

JUSTICE ROSS: Yes, yes, yes. Okay.

PN494

MR FERGUSSON: There was therefore 12(a) - just the word, "shift", has been replaced with the word, "or", I think. So it should say, "An employee on morning shift, afternoon shift or night shift", rather than, "morning or afternoon shift." I assume they're separate. Yes. Morning, afternoon and night shifts, under the award; they're three things, which is a very small wording change, rather than referring to a morning or night - afternoon shift or night shift, it should just say "morning shift, afternoon shift or night shift".

PN495

UNIDENTIFIED SPEAKER: So it's the "or" that is after the word "morning".

PN496

MR FERGUSSON: Yes. It's usually a morning shift.

PN497

JUSTICE ROSS: Is that in the heading?

PN498

MR FERGUSSON: No, it's ‑ ‑ ‑

PN499

JUSTICE ROSS: Whereabouts is it in the exposure draft?

PN500

MR FERGUSSON: The first line in 24.2(a).

PN501

JUSTICE ROSS: 24.2(a), "An employee on morning ‑ ‑ ‑"

PN502

MR FERGUSSON: "‑ ‑ ‑ or afternoon shift, or night shift ‑ ‑ ‑"

PN503

JUSTICE ROSS: You say should be, "Morning, afternoon shift or night shift." Yes, I see. Just too many ors.

PN504

MR FERGUSSON: Yes.

PN505

JUSTICE ROSS: What does everyone think about that?

PN506

MR ASTLEY: I think we're all in agreeance on that.

PN507

JUSTICE ROSS: Yes.

PN508

MR FERGUSSON: In 24.2(b), it's in the body of the paragraph, the last ‑ ‑ ‑

PN509

JUSTICE ROSS: Is this a permanent night shift?

PN510

MR FERGUSSON: Yes, permanent night shift. I think in the last line it talks about "ordinary hours they perform during the engagement period or cycle"; it should say, "Ordinary hours they perform on such night shift", and that's the old words. Because the penalty is going to apply to the hours they perform on the shift, not to all hours in the period or cycle.

PN511

JUSTICE ROSS: This is - yes.

PN512

MR FERGUSSON: So it's "on such night shift".

PN513

JUSTICE ROSS: Yes. Except this is not rotating, this is just permanent night shift. So you would be on the engagement or cycle, you would be on night shift.

PN514

MR FERGUSSON: For the whole ‑ ‑ ‑

PN515

JUSTICE ROSS: Yes.

PN516

MR FERGUSSON: I see, "Engagement on night shift where ‑ ‑ ‑ "

PN517

JUSTICE ROSS: It would be different if you were in (a), on a rotating shift, when it says they perform on that shift. "During the engagement period or cycle on night shift."

PN518

MR FERGUSSON: I'm just looking at the definition of permanent night shift and whether it captures arrangements where you only work night shifts, or whether it could capture - I don't have a fixed view on this.

PN519

JUSTICE ROSS: It says "night shift only".

PN520

MR FERGUSSON: And not one that rotates.

PN521

JUSTICE ROSS: No.

PN522

MR FERGUSSON: I think that's right, so we probably don't have an issue.

PN523

JUSTICE ROSS: And 58? 24.2. This is the reference to the earlier point about whether it applies.

PN524

MR ASTLEY: Yes. I think that this one - according to my note, this one was dealt with at - previously, I believe, that was during PIAA's submission, I think, at item 95.

PN525

MR FERGUSSON: Just reading the last issue, I think we did come up with some better words for the night shift.

PN526

JUSTICE ROSS: (Indistinct)

PN527

MR FERGUSSON: It talks about "engagement in the period or cycle", but I think you were confining it to the period or cycle on night shift.

PN528

JUSTICE ROSS: "Engagement period or cycle on night shift", and just add the words "on night shift" if you want, an abundance of caution.

PN529

MR ASTLEY: Yes. This one was just in response to the question which was posed at clause 24.2, sorry.

PN530

JUSTICE ROSS: Yes, okay.

PN531

MR ASTLEY: Yes, so that one was dealt with with the agreeance at item 55, I believe.

PN532

JUSTICE ROSS: Yes. Then 59.

PN533

MR FERGUSSON: I think everyone agrees about proposing to put back the old wording.

PN534

JUSTICE ROSS: But it might need to be re-drafted a bit to make it a bit clearer.

PN535

MR FERGUSSON: Yes.

PN536

MR ASTLEY: Just at the meeting, I believe that there was agreeance just to maintain the provisions in the current award for 59.

PN537

JUSTICE ROSS: We will have a look at it.

PN538

MR ASTLEY: Sure.

PN539

JUSTICE ROSS: At 60?

PN540

MR ASTLEY: There are words omitted in the exposure draft from the current award that we say should go back in; 24.4(a), the words, "Notwithstanding any industry provision in this award", have been omitted.

PN541

JUSTICE ROSS: Do you need that?

PN542

MR FERGUSSON: I've got that now, your Honour.

PN543

JUSTICE ROSS: You would normally read the general down to the specific, and this is a specific provision, so.

PN544

MR FERGUSSON: Yes. It's only (indistinct) clarity, but I can't point to anything else that specifically (indistinct).

PN545

JUSTICE ROSS: No. All right. 61? It seems the opposite point.

PN546

MR FERGUSSON: We say the heading - oh, I see. 24.4 - 24.5, the heading makes it clear that this word is redundant.

PN547

JUSTICE ROSS: Yes. So they've gone for the double-whammy on that, but - yes. All right. 62? What do the AMWU think about this one?

PN548

MR ASTLEY: This one, I think it goes to our concerns about expressing penalties in terms of a percentage rather than in the terms time and a half, double time, et cetera.

PN549

JUSTICE ROSS: Sure, but that she might have sailed, so.

PN550

MR ASTLEY: Yes, I understand. I think that the central concern was the construction of 200 plus 17.5 per cent of the level 5 rate. I note that during meetings with the parties there was some initial concern as to whether or not that could potentially be read as 217.5 per cent of the level 5 rate, or some other ambiguity around that.

PN551

I'm not sure that any conclusion was reached whilst at the meeting, but I suppose that's just something which we might still need to workshop, as to what the specifics ‑ ‑ ‑

PN552

JUSTICE ROSS: What would be the change that you would make, or that the proponents of it would make?

PN553

MR ASTLEY: I think the issue - when we looked at the old award it makes it clear that its 200 per cent of the ordinary daily rate of the employee, plus then 17.5 per cent of the classification level 5 rate. So there might be a distinction if you're reading it as 217.5 per cent or the exposure draft now.

PN554

JUSTICE ROSS: It probably makes it clear, doesn't it? Yes.

PN555

MR FERGUSSON: We didn't raise it. Not really able to - - -

PN556

JUSTICE ROSS: No. But do you think an example might clarify it? We will have a go at an example and we will see what people think about it. I know how enthusiastic you are other examples generally, so. 63?

PN557

MS CHAN: Sir, I think this is in response to the question raised - - -

PN558

MS KIM: Yes.

PN559

MS CHAN: - - - as to whether the words that they would be paid ordinary time plus an amount equal to four times the ordinary hourly rate of pay classification level rate with the employee means that they get paid at 150 per cent for an eight-hour shift or whether the allowance is - - -

PN560

JUSTICE ROSS: So when ordinary hours are worked on a Saturday, they'll be paid at ordinary time plus an amount equal to four times the ordinary rate of pay. Is that in the current award?

PN561

MR FERGUSSON: Yes, I believe it is.

PN562

JUSTICE ROSS: Is that five times the - - -

PN563

MR FERGUSSON: It's equal to four times the ordinary rate of pay.

PN564

MS CHAN: The current award says the ordinary hours worked on Saturday an employee would be paid at ordinary time plus an amount equal to four times the ordinary hourly rate of pay calculated on the award classification - - -

PN565

JUSTICE ROSS: I see. The argument is - is it five times the rate of pay or is it four hours on an eight-hour shift, so time and a half? Or is it something else?

PN566

MR ASTLEY: The problem from the AMWU's perspective is that an amount equal to four times the ordinary hourly rate indicates almost like a lump-sum approach, regardless of how many hours they worked, they get that four hours.

PN567

JUSTICE ROSS: It might be a four-hour minimum provision?

PN568

MR ASTLEY: That's right. That's right, whereas if they were to work beyond that then that could potentially change the 150 per cent penalty.

PN569

JUSTICE ROSS: Well, why don't I get some work done on the history of that provision; where did it come from, is there any arbitral history at all? We'll do something up on that and send it to all of you and see whether that crystallises some thinking. I think whatever we do we've got to change that wording because - does anyone know what that means, really? I mean there must be - - -

PN570

MS HOGAN: Can I just add there, your Honour, this does come straight out of the old, original days which had a very sort of limited application in only three states. The industry - the people involved in that industry would understand that clause, because it's very, very particular to them so - they would understand that. We'll go with that clause, that they would understand that, is my understanding of that part of the industry.

PN571

JUSTICE ROSS: And who would they be?

PN572

MS HOGAN: Sorry?

PN573

JUSTICE ROSS: Who would they be?

PN574

MS HOGAN: That would be like your Bendigo Advertiser newspaper, your Warrnambool Standard, your Launceston Examiner, Wagga Daily Advertiser; those sort of regional, daily newspaper where they print a paper for five, six days a week.

PN575

JUSTICE ROSS: Who would they be members of?

PN576

MS HOGAN: In the award modernisation proceedings in the late 2009 it was the Country Press Association.

PN577

JUSTICE ROSS: They might have gone the way of the dodo, I think. Are they still with us?

PN578

MS HOGAN: Well, I think they are but the woman behind them (indistinct) I believe has retired so I'm not sure who took over but she had a very close connection with those papers and they were very familiar with that regional diaries award because my memory of the regional diaries award - it was made out of the restructured inefficiency principle under the Country Printing and Publishing Award. They were very involved in that Country Printing and Publishing Award also.

PN579

JUSTICE ROSS: Do any of the employer organisations here have any membership amongst that group?

PN580

MS KIM: Yes, I've just been told that we look after them.

PN581

JUSTICE ROSS: Okay, well, can you get in touch with them and see what their understanding of the - or how at least they apply it in practice and if they can assist and point to any particular history we'll include that in the document we produce and then the parties can have a look at that. But I think even if they might have an understanding of it I don't think any of the - well, speaking for myself, I don't - I don't know what that means at all. SO I think we need to reach a view, if we can, by agreement about what is the intention? What is intended to be paid when ordinary hours are worked on a Saturday by an employee in a regional, daily newspaper office? Then we'll draft something to reflect that agreement, rather than even doing minor surgery on the current one. I think we just come up with a provision that reflects the agreed position. SO I would encourage you to for PIAA and the metal workers to have a conversation about that in conjunction with the regional papers that have some familiarity with it and see if you can reach an agreed position on it, okay?

PN582

MS HOGAN: Okay.

PN583

MS POLE: Sorry, excuse me; Ms Pole here.

PN584

JUSTICE ROSS: Yes, that's all right.

PN585

MS POLE: Can I just ask how if things like the following clause, 24.6(b), is also a little unclear? It refers to ordinary time plus 25 per cent of the resultant calculation of the night work allowance prescribed in 24.4(b).

PN586

JUSTICE ROSS: Yes, that's a good point. That's not a model of simplicity either, is it?

PN587

MS POLE: My guess is it probably has similar origins to 24.6(a), so possibly when that discussions occurs in relation to 24.6(a) questions can also be asked about how 24.6(b) came to be and how that is applied as well because ideally that would be clarified so that it can be applied easily.

PN588

JUSTICE ROSS: Well, ideally if the parties were able to reach an agreement we'd just get rid of the complexity and this sort of cross-referencing to, "it's a bit of this other thing and it's something else", and we might be able to just express it as a straight amount or a straight penalty.

PN589

MS POLE: Yes, that would certainly be the preference.

PN590

JUSTICE ROSS: Yes, I think - I understand why everyone wants to retain everything but it would be undesirable to retain something like that, even if we all knew what it meant. But you have to go to somewhere else to work out what the payment is. It would be much better if it said, "Any work done after 5 pm on a Sunday is paid at 175 per cent, 200 per cent", or whatever it is of the ordinary rate rather than having to go to this - it's their ordinary rate of pay plus some loading that's 25 per cent of the resultant calculation of the night work allowance. For example, I don't even know if that means that you look at - is it the night work allowance - it gets even worse: 17.5 per cent of the level 7 minimum hourly rate. SO you apply that to the hours worked after 5 pm and then you divide that by four.

PN591

MS POLE: Yes, it's unclear as to, I suppose, whether it's cumulative or a loaded rate or it's 25 per cent plus.

PN592

JUSTICE ROSS: Indeed, yes.

PN593

MS POLE: Yes.

PN594

JUSTICE ROSS: I'm sure if we could work at it we could make this more complicated but I'm not quite sure how. So let's find out in the first instance how it works and what they pay and then let's see if we can get rid of all this and just end up with a simple expression of what they'll get. We'll probably find out that no-one works after 5 pm on a Sunday and all this is for not very much. But let's make the inquiry and see and we'll revisit it but I think our objective should be to simplify and express in plain language both (a) and (b), all right?

PN595

MR FERGUSSON: 64 was AI Group and it arises from a change in the wording, which is currently 33.3(b) changed from the previous 35.3(b). The old wording talked about a weekly employee being notified the employee will be required to work overtime on a Saturday and so reports and then it goes on to provide minimum engagement requirements and so forth. The new wording is different in that it talks about an employee who reports to work on a weekend and is ready, willing and able to perform. So it doesn't have any of that notion of being notified that they're required and then in accordance with that requirement - it's just if you turn up. Our preference is to revert back to the old wording, that has the line, "the requirement of the employer", rather than just when the person attends.

PN596

JUSTICE ROSS: Yes, I follow. What do the others say about that?

PN597

MR ASTLEY: The AMWU would be supporting it, although we did have some initial concerns about the proposed wording; that was the proposed wording by the AiG, which was that, "An employee who has been notified by the employer of the requirement work overtime", we would just prefer to see the original wording in 33.3(d) adopted, just because the requirement to work overtime doesn't really necessitate any kind of conclusions as to the reasonability of that requirement to work overtime.

PN598

MR FERGUSSON: I don't know that we had intended to introduce different ‑ ‑ ‑

PN599

JUSTICE ROSS: So you're quite content to go back to 33.3(b)? All right. Anyone else?

PN600

MR CHAN: We've already indicated our support of that particular submission, I think.

PN601

JUSTICE ROSS: Yes. 65 is a cross-referencing issue. Anyone - - -

PN602

MR FERGUSSON: It may be taken over by the drafting.

PN603

MR ASTLEY: I believe that the same is true of item 66.

PN604

JUSTICE ROSS: 67?

PN605

MR FERGUSSON: It becomes - it's one of those issues were we've previously said "notwithstanding any other shift provision" - sorry, I withdraw that. In the exposure draft 25.6(b) has omitted a reference that was in the old award at 23.6(b) where in the old award it clarified that paragraph (b) ‑ ‑ ‑

PN606

JUSTICE ROSS: Yes, notwithstanding clause - - -

PN607

MR FERGUSSON: (a) - I'm just reading through the (indistinct) - it clarifies the relationship between the two. You can work six. (a) says you can't work - - -

PN608

JUSTICE ROSS: Yes. Let's just work through. So you can't work overtime for longer than five hours without a break.

PN609

MR FERGUSSON: Yes.

PN610

JUSTICE ROSS: When you're working overtime, if you can complete it within three hours you can continue to work with it. Why would there be an overlap? Not more than six and a half hours from your previous meal break.

PN611

MR CHAN: I don't know if this might have something to do with the meal allowance that we were talking about previously at 18.3(a)(iv), where it talks about an employee working overtime for three hours after their ordinary finishing time and not taking a meal break.

PN612

JUSTICE ROSS: Yes. Yes, probably does. But it's really whether (a) and (b), how you read those together.

PN613

MR FERGUSSON: I understand after three hours it's saying you can't get to five hours of overtime because it's - - -

PN614

JUSTICE ROSS: No.

PN615

MR FERGUSSON: Yes, that's probably right, on reflection. You can't work more than five, yes.

PN616

JUSTICE ROSS: I think that's right, isn't it?

PN617

MR FERGUSSON: I think that is right.

PN618

JUSTICE ROSS: Okay.

PN619

MR FERGUSSON: (Indistinct) before that.

PN620

JUSTICE ROSS: But you're right, that would be the cross-referencing on the allowance, I think. That seems to be the - - -

PN621

MR FERGUSSON: Maybe that's where it - - - yes.

PN622

JUSTICE ROSS: Maybe, yes. Okay. Then 64. Is that agreed?

PN623

MR FERGUSSON: Yes.

PN624

MR ASTLEY: I believe that's agreed.

PN625

JUSTICE ROSS: 65? Did I mean 68? When I said agreed, I meant 68, not - for cross-referencing, I'm ‑ ‑ ‑

PN626

MR FERGUSSON: There have just been words omitted in 25.9, paragraph (a). It should say, "An employee may choose (indistinct) with the consent of the employer to take time off instead." And in 33 - - -

PN627

JUSTICE ROSS: Yes. Probably, but we will see where all this lands after the TOIL case, won't we? So we will review. Right. Then 70. I should say on the TOIL case, particularly for Ai Group, ABI and the metalworkers, we will put out a statement today with the summary, but I'm proposing we adopt some approach that we adopted in leave; that is that Friday, we will just focus on the modern term.

PN628

We won't look, then, at the flow in to other awards, we will just at the submissions on the modern term. A number of parties suggested caution and dealing with the modern term first. We will then publish a decision about the modern term, and then there will be free for all about where it goes and what it's inserted into.

PN629

It should shorten the proceedings on Friday, and had we thought about it earlier, it makes sense to resolve, and so the parties know what model term we're talking about, and then they can have an argument about that, rather than having an argument about what the modern term might look like, because there are a number of changes proposed to it.

PN630

It may be that if the bench is persuaded to make changes, then the position of parties might shift about whether they think should be in or not. Anyway. 70. Do you want us to have a go at amending it?

PN631

MR FERGUSSON: Yes.

PN632

JUSTICE ROSS: So redraft, and then everyone can reserve their position and have a look at it.

PN633

MR FERGUSSON: (Indistinct) works. Same approach, perhaps, for the next one.

PN634

JUSTICE ROSS: All right. Then 72, that seems to be agreed.

PN635

MR ASTLEY: Next one is agreed.

PN636

JUSTICE ROSS: 75 is agreed?

PN637

MR ASTLEY: 73.

PN638

JUSTICE ROSS: Sorry, 73. Yes, righto. 73 is agreed. Then 74.

PN639

MS KIM: (Indistinct) decision.

PN640

JUSTICE ROSS: Yes.

PN641

MR FERGUSSON: Then the next one is a substantive claim.

PN642

JUSTICE ROSS: Okay. I see. So we've dealt with the payment of leave during the cycle, but not the ‑ ‑ ‑

PN643

MR FERGUSSON: We just thought there might be some overlap of argument. Not estimating how long it was going to take, we're keen to have an argument about the decision.

PN644

JUSTICE ROSS: Yes.

PN645

MR FERGUSSON: It might be a different situation, of course (indistinct).

PN646

JUSTICE ROSS: No, absolutely, it wouldn't just be - the annual leave decision doesn't really deal with it.

PN647

MR FERGUSSON: Just some of the justifications.

PN648

JUSTICE ROSS: Sure. Yes. Is this a general claim, though?

PN649

MR FERGUSSON: I don't think it's general, but I think it's in several awards.

PN650

JUSTICE ROSS: It would probably - those awards that provide for EFT. So that suite of awards were varied for EFT and annual leave - or that will be - this provision might affect there?

PN651

MR FERGUSSON: Yes. I don't think we put it in as many - three awards are identified there, or raised there. It might be relevant to others, but we haven't - - -

PN652

JUSTICE ROSS: I might get you to write to me then indicating which awards, because we'll probably just deal with it as a discrete issue.

PN653

MR FERGUSSON: I'll write to you. Manufacturing Storage Services - - -

PN654

JUSTICE ROSS: Yes. Have a think about the others that are affected.

PN655

MR FERGUSSON: Yes.

PN656

JUSTICE ROSS: Look, only because we want to avoid having a bench deal with an issue and then someone else jumps up later, and we've got to have another bench dealing with it because they all have to be dealt with by full benches. Okay. What does the current provision say, payment on termination? 28.5.

PN657

MR FERGUSSON: 28.5. Different awards take different approaches. Some talk about "immediately" or - "forthwith", I think is - "forthwith" was going to be changed. I think there was going to be an argument about what "forthwith" gets changed to.

PN658

JUSTICE ROSS: Yes, okay. 76?

PN659

MR FERGUSSON: Cross-referencing and agreed, I think.

PN660

MR ASTLEY: That' right. That's agreed, yes.

PN661

JUSTICE ROSS: 77?

PN662

MR ASTLEY: In relation to this one, we're just concerned about the usage of the term, "Proportionate leave on termination of employment." I think there was a bit of confusion as to what exactly that "proportionate" referred to. We've just suggested the re-wording as, "Payment of leave on termination of employment", just for the sake of simplicity, I suppose.

PN663

JUSTICE ROSS: Yes, "proportionate" doesn't seem to - - -

PN664

MR ASTLEY: I'm not quite sure what it adds here.

PN665

JUSTICE ROSS: Yes. If anything, it would be payment of accrued leave on termination, but - - -

PN666

MR ASTLEY: From a time when you probably accrued full year entitlements.

PN667

JUSTICE ROSS: No doubt, yes. That's right. Now it's a continuous accrual. What do you want to do; "Payment of accrued leave on termination of employment", or just, "Payment of leave on - - -"

PN668

MR ASTLEY: Yes. The wording that we've suggested is, "Payment of leave on termination of employment." Obviously we are happy to workshop that if the parties do have different suggestions.

PN669

JUSTICE ROSS: Anyone else got a strong view about this? No? All right. Anyway, we'll put it in the re‑draft, "Payment of leave on termination", and we'll see what everyone thinks. 78. Is this your substantive claim?

PN670

MR ASTLEY: That's right. This is the proposed updating of competencies. My understanding is that the current competencies go back to about 2005, I believe. They were meant to be undated. I think it was in 2010, but at this point I might just pass over to Margaret Hogan, if I can.

PN671

JUSTICE ROSS: Yes, sure.

PN672

MS HOGAN: Yes, the passage was ICP10 and that was reviewed. It was approved in April and it's now just called ICP. There have been some changes to it, but, yes, it's really just a case of inserted the current training package into the award. I think we had a bit of discussion when we met in June with the parties on this, because the package had been approved at that stage. We see it as hopefully not a controversial matter. It's really just a case of reflecting the package as is.

PN673

MR ASTLEY: I can't indicate our agreement or otherwise. At this stage it will be for others that are closer to that - my organisation to check perhaps for next time.

PN674

JUSTICE ROSS: Have have you got a worked up proposal?

PN675

MR ASTLEY: I believe that we do at this stage. Whether or not it's ready right now - Margaret, perhaps?

PN676

MS HOGAN: You mean just a listing of the competencies and the - - -

PN677

JUSTICE ROSS: No, I mean what would the award variation look like?

PN678

MS HOGAN: It would simply be to - where the competencies are now in the schedule, to simply replace that schedule with the current ICP package.

PN679

JUSTICE ROSS: Can I get you to send to me - if you were doing it up as a proposed order varying the award, what would it look like.

PN680

MS HOGAN: Okay, yes.

PN681

JUSTICE ROSS: We'll publish that and the other parties can have a look at that, then you can have a discussion about it and we'll see the extent to which it's going to be contested. Can I encourage you to just put some background in the letter that might provide the links to the new competency framework so the other interested parties can have a look at it and know the context. Okay?

PN682

MS HOGAN: Okay, sure. Yes, sure.

PN683

JUSTICE ROSS: That just gets published on the subscriber list or gets published - subscribers are notified. Is that how that works? All right. We don't need to send it to anyone. 79 is just a cross‑referencing. 80?

PN684

MS KIM: Your Honour, we don't see the necessary - or the assistance that the summary of - or the inclusion of such summaries will have in the award.

PN685

JUSTICE ROSS: I might get you to have a chat to the Fair Work Ombudsman. I'm getting belted for not including massive summaries in the RS ad R Award, I think.

PN686

MS KIM: Right.

PN687

JUSTICE ROSS: But it would lead to an extra 26 schedules or something like that.

PN688

MS KIM: We were thinking it - unnecessary additional content.

PN689

JUSTICE ROSS: Well, perhaps if you can identify which ones you think are most useful and then we can see what the parties say about that. 81?

PN690

MR ASTLEY: I believe this was in response to the questions proposed in the exposure draft. The AMWU isn't actually aware of any of those training programs. I believe that's reflected with PIAA, a well.

PN691

MS KIM: Yes.

PN692

JUSTICE ROSS: So should we just delete them? I mean, bearing in mind we're only putting things into the award if they're necessary to give effect to the modern award objective. If nothing is actually happening, is there any reason we shouldn't take them out?

PN693

MS KIM: We do not object to this being taken out of the award.

PN694

JUSTICE ROSS: So that schedule would come out? What would actually come out of the award? Schedule F.

PN695

MS CHAN: I think the exposure draft actually omits those words in italics which formerly appears in the current award.

PN696

JUSTICE ROSS: I see, so it's those words that would come out; so delete the italicised words.

PN697

MS CHAN: Correct, which have already been deleted, anyway.

PN698

JUSTICE ROSS: Right. We'll probably leave them out and we'll see what anyone thinks. Okay. 82? That's agreed?

PN699

MR ASTLEY: Yes.

PN700

JUSTICE ROSS: 83?

PN701

MR FERGUSSON: This is the definition of "hourly rate". It is largely similar to the old definition. It has now added the words "for all purposes" in the last sentence of the definition which talks about - include the hourly rate for shift work penalties. I think it's a bit complicated to say it definitely causes problems. It depends on how (indistinct) discussion, for example, about using the term "minimum hourly rate" rather than "hourly rate".

PN702

JUSTICE ROSS: Is this something that might be useful to have further discussions between the parties?

PN703

MR FERGUSSON: Yes.

PN704

JUSTICE ROSS: 84? Same issue, I suppose, so further discussions about that, as well.

PN705

MR FERGUSSON: Yes.

PN706

JUSTICE ROSS: And 85. Well, I don't think the default fund provisions are going to be reviewed any time in the near future because there is a vacancy for an expert panel member that hasn't been filled for 16 months. I don't get the impression it's around the corner. What is the issue here? I'm just wondering if there is power to fiddle with this bit or is it the subject of the separate scheme dealing with the review of the default super provisions.

PN707

Can I get ABI and Ai Group to have a think about that. I mean, that might answer the question that we just have to translate it in completely as it is in the current award, pending the review. I just don't know what the overlap is and whether there is an ability to do it. Okay?

PN708

MR FERGUSSON: Yes.

PN709

JUSTICE ROSS: Is there anything else? All right. Thanks very much. We'll put out a revised summary seeking to capture what has been discussed and we'll give you an idea, when we put that out, when the revised exposure draft will come out and a sort of work list about what work you will do. I'll give some time frames around that to report back and then we'll schedule another conference. For the sake of our WA colleagues though, we'll have it at 11.00 rather than 9.30, or it will be in the afternoon, okay? Anything else?

PN710

MR ASTLEY: Yes, sorry. Just in relation to the upcoming directions about this, I note that the submissions for the casuals common issue is due on 12 October. I was just hoping that any future submissions in relation to the drafting of this matter could be perhaps about two to three weeks after that, just because there are a few issues in terms of resources and working through those issues.

PN711

JUSTICE ROSS: I think some of the others around the table are probably involved in award flex and annual leave and the flow on from that, as well as the penalty rate matter. Yes, we'll look at a process that towards the end of October all the material is in and then perhaps sometime early November, we're actually having a conference to work our way through it. All right. I have to re‑look at the scheduling generally of the group 2 awards so that I don't end up killing people as I go through. That might have a ripple effect on group 3. I'll probably look at that over the course of the next couple of weeks.

PN712

It's difficult to predict, because we don't know how many substantive issues are going to come. I'd want to tease out the substantive issues quickly in the group 2, so I might have an initial run at doing that. Possibly group 3 later, so those parties can tidy those matters up and we don't leave them to the end. Yes, we'll do what we can. At the end of the day if people need more time and they want to work their way through it, they'll get more time. Okay? Thanks very much.

ADJOURNED INDEFINITELY [11.46 AM]