AM2014/190, Transcript of Proceedings [2015] FWCTrans 577 (20 October 2015)

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PN1

THE DEPUTY PRESIDENT: Good morning, everybody. Can I please take appearances, starting off here in Sydney.

PN2

MR M BURNS: Your Honour, Burns in my name, initial M. I'm appearing, with your permission, for the Maritime Union of Australia.

PN3

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

PN4

MR M NGUYEN: If it pleases the Commission, Nguyen, initial M, appearing for the Australian Manufacturing Workers Union.

PN5

MR S MAXWELL: If the Commission pleases, Maxwell, initial S, for the CFMEU Construction and General Division.

PN6

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

PN7

MS G KUSUMA: If it pleases the Commission, Kusuma, initial G, for the National Farmers Federation and New South Wales Farmers Association.

PN8

MR T ANGELOPOULOS: If it pleases the Commission, I seek permission to appear on behalf of the Voice of Horticulture. Angelopoulos, initial T.

PN9

THE DEPUTY PRESIDENT: Any others at this end? No. Can we kick off in Melbourne. Thank you.

PN10

MR W CHESTERMAN: If the Commission pleases, Chesterman, W, appearing on behalf of VACC and the Motor Trades Associations.

PN11

MR D MALBASA: If it pleases the Commission, Malbasa, initial D, on behalf of the CFMEU Forestry Division.

PN12

MS A MOUSSA: If the Commission pleases, Moussa, initial A, appearing on behalf of the Australian Manufacturing Workers Union Vehicle Division.

PN13

MS V WILES: If the Commission pleases, Wiles, initial V, for the Textile, Clothing and Footwear Union of Australia.

PN14

MS G STARR: Ms Starr, your Honour, on behalf of the ACTU.

PN15

MS J KNIGHT: If the Commission pleases, Knight, initial J, from the ASU.

PN16

MR M MORETTA: If the Commission pleases, Moretta, M, from the SDA.

PN17

THE DEPUTY PRESIDENT: In Canberra?

PN18

MR R CALVER: If the Commission pleases, Calver, initial R, for Master Builders Australia.

PN19

THE DEPUTY PRESIDENT: Can I perhaps just make a few housekeeping announcements before I invite the parties to make any opening points that they may wish. Firstly, I just should highlight that I have received correspondence this morning from Ms Adler from the HIA, indicating that the HIA is unable to appear at today's proceedings and relies on its written submissions of 31 August 2015.

PN20

The other matter that I would allude to is some of you may have seen correspondence from - if I use the term - coal industry employers and the CFMEU in response which, in essence, seeks to argue the cap, if I can put it that way, in terms of what might apply in terms of accident pay in the Black Coal Industry Award. People may have also seen correspondence from the President's chambers last week indicating that in the light of Boulton J's retirement recently, the bench has been reconstituted and Watson VP will now be the Presiding Member.

PN21

I have just spoken with Watson VP this morning, who has returned just this morning from overseas and some annual leave. In terms of today's proceedings, my proposal would be to consult with Watson VP prior to finalising any orders. Similarly, for the issue that has been raised by coal industry employers to be discussed with Watson VP in terms of how he wishes to proceed, which is as was foreshadowed in the correspondence from the President's chambers.

PN22

The third issue I just wish to touch on is that Mr Moretta from the SDA contacted my chambers this morning just to advise that he had provided some written submissions to my chambers. He wasn't quite sure whether that had reached other parties. In particular, the employer representatives AIG and as ACCI is not represented here today, who obviously had questions there - Mr Ferguson, I'm not sure whether you've actually received the SDA's - - -

PN23

MR FERGUSON: I received it, but I just became aware of it shortly before leaving for the proceedings.

PN24

THE DEPUTY PRESIDENT: Okay. If anyone else wants to have a copy, we have got some spare copies available here, if that would be of assistance. I just mention that by way of opening remarks. The other point I would make is that having read the material, the various submissions and draft determinations that have been submitted in respect of finalisation of the orders, it strikes me coming out of the AIG's submission that there are arguably a number of what might be sort of common issues that are reflected in the AIG's submission around a number of the draft determinations. They go to issues such as the treatment of casuals in clauses; how you deal with circumstances where an employee who may have been injured is returning to work on a graduated return‑to‑work basis, as well as issues such as redemption and the terminology around incapacity.

PN25

Having gone through the draft determinations, I think there is only one that I detected that sort of explicitly dealt with the issue of casuals and that is the Timber Industry Award draft determination, but it strikes me that there is some substance to some of those issues there, but, nonetheless, I just sort of foreshadow that I'd be particularly interested around some of those sorts of common issues that have been flagged by AIG in particular in its submissions - in any submissions that you may wish to make.

PN26

The other question that I have, do the parties have any particular views as to how we proceed; in terms of whether it's an award by award approach or is there a particular batting order or is it just take it as it comes, so to speak?

PN27

MS STARR: Your Honour, it's Ms Starr here in Melbourne. I think you're right. I think there are some common issues that arise from the Ai Group's objections, if you like, to the draft determinations that have been put on. I think one of those is the definition, as I see, anyway, when is accident pay payable.

PN28

THE DEPUTY PRESIDENT: Yes.

PN29

MS STARR: The second is a question about what is paid and then, third, as your Honour has already identified, who is entitled to accident pay. By that, we refer to casuals. I think the first one and the definition - I think we can probably deal with that as a common question and the parties can make submissions as to why we say - and I think it's the ACT's view and also union's view that the definition that is contained in the draft determinations, which is largely consistent - and we say that that is a proper definition.

PN30

The question, I guess - what I put are two. As to what is paid, that might be a question that needs to be dealt with on an award by award basis given that there is some difference between the definitions which are in the draft determinations. There are reasons for that that need to be considered within the context of those awards. Lastly, in relation to the question about casuals, I think we could probably make some general submissions in relation to that.

PN31

In summary, we would support the draft determinations; that they do include casual employees. Again, I think some consideration of that needs to be considered in the context of each of the draft determinations.

PN32

THE DEPUTY PRESIDENT: Okay. Mr Ferguson, do you wish to respond to any of that?

PN33

MR FERGUSON: I think all I can say in relation to that is on the first point in relation to - I think the way Ms Starr put it was when is it payable. I'm not sure whether that's precisely identical - or the same issue in every award. I think I'd make the point that we've been careful in our submissions to address each claim in the context of each award. True it is that there are some common themes or at least some overlap within the award, but the way we've proceeded - and we understand how the full bench is proceeding - is that it's not necessarily assuming a uniform approach will be adopted.

PN34

Certainly we'd just highlight the point that all of our submissions are directed to the specific clause. In saying that, we don't mind if the parties want to address the bench along themes, if you will, but there may be variances between each award and we just make that point.

PN35

THE DEPUTY PRESIDENT: Sure.

PN36

MR FERGUSON: I think the only other point I could say is that in terms of the batting order, we have obviously been quite detailed in setting out our concerns. I'm not sure we can take it a lot further at this stage without hearing the unions respond to each of those claims. It may be the proper basis is that they go through and articulate anything they want to say in response to the material they put on. Of course my friends from the employers might have a different view. Otherwise, there isn't much more I can say to lead off with.

PN37

THE DEPUTY PRESIDENT: Does anyone else want to say anything?

PN38

MR MAXWELL: Your Honour, if you're looking for someone to start, I'm quite prepared to head off. In terms of the three main awards with which we have an interest - that is the Building and Construction General On‑site Award, the Joinery and Building Trades Award and the Mobile Crane Hiring Award - the only submissions that it would seem have been filed are those from the MBA, the HIA and the AIG. Generally the HIA have supported the submissions of the MBA, so perhaps if I can deal with the MBA's submissions first.

PN39

The MBA's main claim, as I understand, is that whilst they don't seek to change the provisions, they did have a concern about the way in which the - they believe that the clause could be worded in a more simpler format. They also had a suggestion of perhaps re‑arrangement in terms of putting the definition of accident pay in clause 3.1 where all the other definitions are. We don't have an issue with putting the definition of accident pay in the definitions clause.

PN40

We see no issue in that, but we don't agree with the MBA's definition. That is because the MBA's definition does not refer to the payment being a weekly payment. It refers to the employees' ordinary time hourly rate, not the award rate, and does not include the accrued RDO entitlement which I'll come to in a second. We also say that it's ambiguous in its meaning where the incapacity is for less than 38 hours. That is, is it less than 38 hours in total or less than 38 hours per week?

PN41

The further concerns regarding the MBA draft are that it does not refer to the compensation payments being made pursuant to the relevant workers compensation legislation, nor does it link the lump sum payment to the redemption of weekly payments, which may cause some confusion as lump sum payments can also be made for permanent impairment without it affecting the weekly payments. The other concern with the MBA proposal is that it doesn't require any employer‑initiated accident pay scheme to contain conditions not less favourable than the award clause.

PN42

Taking on board what the MBA did put forward, we did circulate to the employers on Friday a revised or an alternate draft order. Your Honour, the main change there is that we have put accident pay - the definition - in clause 3.1. In 27.1, we have adopted the MBA's proposal that we make it clear at the start that the clause operates from 15 October 2015. Other than that, the clause mainly reflects what was in the draft order that we submitted previously.

PN43

I have done it for both the Joinery Award and the Building and Construction Award. I haven't done it at this stage yet for the Mobile Crane Hiring Award because, that is somewhat longer and a bit more detailed. I was perhaps waiting to see the outcome of these proceedings before dealing with that one.

PN44

If I can then just touch briefly on the AIG's submissions. The first issue raised by the AIG is entitlement to accident pay. They have a concern with our wording in clause 27.2 of the Construction Award draft order. They have concern with the use of the words where weekly payments or compensation aren't payable. They say that it should only apply where the payments are paid. We believe that would be a substantial change and alter an employee's entitlement to accident pay, and should be rejected.

PN45

They refer to an employee being eligible to receive workers compensation as some sort of membership entitlement. They fail to accept that accident pay only arises where an employer is required to pay weekly workers compensation payments. We say that triggers the requirement to pay workers compensation payments. Under the AIG wording, employees would only have an entitlement to accident pay where their employer or someone on their behalf pays weekly payments or compensation.

PN46

Now, whether or not the employer pays the required amount to an employee does not remove the employer's obligation under the award to pay accident pay. If the employer breaches their obligations under the workers compensation legislation and does not pay the amount required by that legislation, this would not negate the payment of accident pay under the union's clause. This was a case under the pre‑reform award clause. This would, however, be the case under a strict interpretation of the clause proposed by the AIG.

PN47

If I can then deal with the relevant rate of pay. The AIG is mistaken in their suggestion that clause 27.3 refers to shift loadings payable under the award. What the clause actually refers to is the accrued entitlements under the hours of work and shift work clauses. The transcript clearly records the CFMEU stating this during the hearing on 28 May 2015. That can be found in PN4469 where we stated:

PN48

Our claim for accident pay is not for the payment of shift penalties and overtime, but for the ordinary time rates for the normal weekly hours worked prior to the accident.

PN49

Now, they may be confused by the reference in our draft order to the accruals under the shift work clause. That is in regard to the RDO accrual that applies to those employees who work the RDO system, where they normally actually work the 40‑hour week with accrued two hours for the RDO; so our reference to the hours of work and shift work clauses in the definition are to take up that factor of the RDO accrual.

PN50

Dealing with the issue of casuals and daily hire, which the AIG have raised, the AIG are correct to say that our clause does not expressly exclude casual or daily hire. There were no such exclusions under the pre‑reform award. We would also note that under the Construction Award, under the casuals clause, there is the requirement for the employer to inform the employee before their engagement of the normal hours of work that are to be worked, so clearly people will know what hours they should be compensated for. Also, the definition of "accident pay" refers to:

PN51

Where the incapacity is for a lesser period than one week, accident pay is the difference between the amount of compensation and the said award rate.

PN52

We say the definition of "accident pay" can exist for that type of situation. In regard to redemptions, we disagree with the AIG on the issue of redemptions and submit that no change is necessary. The issue there is the redemption being in lieu of the weekly payments and we believe the understanding as to what that means is well known given the long history of accident pay clauses in awards.

PN53

In regard to return to work, again we say the AIG's submission in regard to employees potentially receiving more when there is a partial return to work, is unfounded. We say the definition of "accident pay" is specific in stating again:

PN54

Where the incapacity is for a lesser period than one week, accident pay is the difference between the amount of compensation and the said award rate.

PN55

We say it takes into account the type of scenario that the AIG raised. Your Honour, they are the submissions we wish to make at this stage.

PN56

THE DEPUTY PRESIDENT: Can I just ask a couple of questions coming out of that, Mr Maxwell. It goes to the issue of casual daily hire. For instance, if you have a casual that may be engaged on what might be characterised as a truly casual basis where it might be an occasional situation and that person is injured at work, how would his or her sort of pre‑injury earnings be calculated? Is that something that's done by virtue of workers compensation legislation?

PN57

MR MAXWELL: My understanding is that you would look at what the workers compensation is paid for, which would then depend on, well, what is their contract; so it goes back to their written engagement to say that, "You are going to be employed for so many days, for so many hours, a week." My understanding is that is the basis on which they are then compensated for and those hours would then equate the accident pay to make up what they would earn under the award.

PN58

THE DEPUTY PRESIDENT: But is that the way that it normally happens in the industry, in the sense that a casual may be engaged - "Well, I'm going to have you working eight hours a day for three or four days per week," or is it the more likely scenario that, "I'll have you working eight hours today and when I get some more work, I'll have you coming in, as well."

PN59

MR MAXWELL: It does vary. It used to be that a casual was limited to a sum of less than five days, so it wouldn't really arise so much in those scenarios.

PN60

THE DEPUTY PRESIDENT: Sure.

PN61

MR MAXWELL: But now that we have that casuals can be employed for up to six months or longer - - -

PN62

THE DEPUTY PRESIDENT: Yes.

PN63

MR MAXWELL: - - - it varies, but generally our understanding is that the casuals are engaged for a specific number of days.

PN64

THE DEPUTY PRESIDENT: Okay. All right. The other issue I had was in terms of the graduated return‑to‑work scenario; whether that might be sort of captured by a provision around pro rata payments.

PN65

MR MAXWELL: We say our definition covers that, but we're not opposed to any additional wording that can address that scenario.

PN66

THE DEPUTY PRESIDENT: All right. Thank you, Mr Maxwell. Mr Calver, do you wish to go first?

PN67

MR CALVER: Thank you, your Honour. The draft determination as modified by the CFMEU was received by us on Friday. I thank Mr Maxwell for sending it through. We prefer the form of the draft determination which is set out at attachment B to our written submission, which was dated 28 August. We prefer it because it's simpler and because it is clearer.

PN68

We don't believe it's necessary to deal with the accrued entitlements that are set out there. The expression is ambiguous in that context and could mean a range of accrued entitlements that are prescribed by clause 34 and would cause confusion. It's unnecessary to have that matter specified. It would be much better if the simpler definition that we have put in the draft determination we proffered were to be utilised.

PN69

There is no necessity for a reference to accrued entitlements. In fact we have some evidence we'll be putting forward that the reference to accrued entitlements in the RDO provision itself raises some difficulties in practice. The other issue with the definition that Mr Maxwell has is the term "appropriate 38‑hour award rate". That appropriateness issue arose in the context of the decision by the ACTU, being recorded as saying in paragraph 214 of the decision:

PN70

It was explained by the ACTU that appropriate rate of pay would not include over‑award payments, shift allowances or overtime. We do not consider it is appropriate or necessary, in order to achieve the modern awards objective, that accident pay entitlements be included as part of the minimum safety net and the award should include over‑award payments, shift allowances or overtime.

PN71

So references to matters other than the ordinary time rate should not be permitted to be contained in the draft determination. The issue of casuals or daily hire, under clause 13.3 of the On‑site Award it's a requirement that when a casual is engaged, the employer must state the job to be performed, the classification level, the actual or likely number of hours to be worked and the relevant rate of pay; so we agree with the AIG that the calculation of that matter could be quite difficult given that the actual or likely number of hours to be worked needs to be taken into account. The matter is compounded with daily hire employees.

PN72

We apologise that our draft determination didn't encompass that, but obviously if the Commission believes that that matter should be given separate consideration, we would be happy to be part of any conference or further communications on that point. The other issue is the definition that we've inserted in our draft determination at 3.1. There is a final sentence which talks about:

PN73

For simplicity, for the avoidance of doubt, an employee will not be entitled to any payment under this clause in respect of any period of workers compensation where the statutory payment for the period exceeds the amount the employee would have received for working ordinary hours for the same period.

PN74

We think that, your Honour, would be better moved and become 27.7, because obviously there is no entitlement triggered by a definitional clause; so we would move that provision and make it 27.7. The CFMEU point about redemption, the word "redemption" doesn't need to be used. It's a confusing word for employers and our 27.5 deals with the notion of redemption, but using much simpler language.

PN75

Many of the aspects of the AIG's submission have cogency. We don't believe that Mr Maxwell has answered all of them. We do believe very strongly that simpler language needs to be used in awards, particularly the On‑site Award, and that's why we spent some time trying to draft the determination in plain English; so we commend the AIG's submission and the matters that I've just raised arising from the submissions of the CFMEU, if it please the Commission.

PN76

THE DEPUTY PRESIDENT: Thank you, Mr Calver. Just a couple of questions coming out of that; one in respect of casuals. Is your view that the award adequately deals with the issue or that there needs to be some specific provision around how you calculate the payment in respect of casuals?

PN77

MR CALVER: I think, your Honour, it would be better for clarity sake that the matter was addressed by an award provision dealing with casuals, where it would be referenced to the difference between their ordinary hours as worked and the statutory scheme - the entitlement - and the difference between those two rates. In other words, it would still be an ordinary hours calculation, but it would be based upon the difference between what the workers comp system provided and the ordinary time hourly rate that they had accrued over the history of their work.

PN78

I haven't been able to confer with the AIG - mostly because of the tyranny of distance, on that matter - but I believe that certainly both daily hire and casuals need to have a provision specific to them if they are to be included.

PN79

THE DEPUTY PRESIDENT: Mr Calver, you used some words there "period at work" in terms of casuals.

PN80

MR CALVER: Yes.

PN81

THE DEPUTY PRESIDENT: Do you have a view as to what might be an appropriate period? Just to paraphrase, I alluded previously to the draft determination in respect of the Timber Industry Award as the only one of the determinations that I saw explicitly dealt with casuals and it referred to a period of the preceding month. I'm not sure whether that's an appropriate period.

PN82

For that award it obviously is, but I'd be interested in the views of the parties in respect of other awards whether there is a particular period - whether it is a month or some longer period - if there was a view that there needs to be a specific provision dealing with the issue of casuals.

PN83

MR CALVER: Your Honour, I don't yet have any instructions on that matter. I was awaiting the submissions today both of the unions and the employer group before reaching a view. I know that 15 October is imminent, but certainly that's a matter that I can obtain some instructions about.

PN84

THE DEPUTY PRESIDENT: All right. Mr Ferguson?

PN85

MR FERGUSON: It strikes that we don't have a lot of award‑specific submissions to make in relation to what has been put by the CFMEU. To an extent if I delve into some of these issues, I may just be repeating myself many, many times this morning and it may be better that I wait for the unions to go.

PN86

In relation to this casual point - perhaps I'd just raise that - we hadn't given thought to a solution necessarily; one wasn't apparent to us. You have taken us to the Timber proposal and, truth be told, we'd need to give some consideration to that and perhaps the answer also might lie in part in the way that the workers compensation legislation calculates the compensation payments, as well. Again, that's something we'd need to give thought to.

PN87

Just building on what has been put then by Mr Calver, of course the 15th is imminent, but one issue that might flow from this is that because of these issues that have arisen and clearly weren't anticipated by any parties - and we say that in the context that the case that was run was largely run in broad terms. There was very little put by the unions in support of their particular claims and obviously very little specific consideration of the elements of the claims in the decision. We think it seems to be inevitable that if there is some merit to our concerns, that a process may need to be developed for resolving those before the orders come into place.

PN88

Our preference may be that the Commission potentially provides - at least on a provisional basis - a view of what a potential solution might be and the parties are then afforded an opportunity to address in relation to that view; but it certainly seems that there is going to be a need for a further process of that nature if there is any merit to our concerns. Unless the Deputy President thinks it assists, I probably wasn't going to respond to the actual themes that were raised by the CFMEU and I don't have anything more specific to put.

PN89

THE DEPUTY PRESIDENT: Do you have any views in terms of the revised draft clause that Mr Maxwell circulated on - - -

PN90

MR FERGUSON: We don't raise any objections other than to note that it hasn't addressed the various issues that we've raised in our submissions. We don't put submissions either way in response to the other matters.

PN91

THE DEPUTY PRESIDENT: Okay. Mr Maxwell, do you wish to respond to any of the issues raised by Mr Calver or Mr Ferguson?

PN92

MR MAXWELL: Your Honour, in regards to Mr Calver, he didn't address the issue of his 27.6 and not referring to it being at least equivalent to the award clause in any other scheme, but perhaps if I can make a more general suggestion and that is that the parties know that the full bench has handed down their decision and granted the union's claim. We are now dealing with the finalisation of the draft orders.

PN93

Normally in these situations the parties are able to resolve the matters by way of conference, so my suggestion would be that if the parties are agreeable, it may be more appropriate to arrange conferences between the parties to finalise. Rather than going through formalisation of written submissions and responses, it may be that on some of the key points such as the issue of casuals' entitlement, if the bench makes some observations, that will then guide those discussions between the parties.

PN94

THE DEPUTY PRESIDENT: Thank you. Look, I, too, am very mindful of the fact that 15 October is not very far away. I think clearly to the extent that finalisation of a draft determination order can be expedited, that would be helpful. I think there is some merit in respect of particularly the On‑site Award, but generally in terms of the three awards relating with the broader construction sector, if I use that terminology, around casual and daily hire in terms of the On‑Site Award which need to be addressed.

PN95

To the extent that if there is a fix which is applicable beyond these awards, to the extent that I would presume that workers compensation legislation from a practical perspective needs to deal with the issue of casuals who are injured at work, then there may be some mechanism for dealing with that. Now, I tried this morning to at least have a look at one of the state pieces of legislation and I got lost in the definition section of the Victorian Accident Compensation Act, so there was no magic pudding that jumped out at me this morning - but I think the suggestion that perhaps the parties might confer around those issues with a view to resolving the outstanding issues.

PN96

I also see merit in terms of what Mr Calver is saying around language being as simple and as understandable as is possible, but clearly that needs to be crafted in a way such that it doesn't diminish entitlements, if I can put it that way; where it's clear enough for everyone to understand. It just strikes me from looking at most of the draft orders, the issue of casuals is one where there is a legitimate issue as to how an employer will calculate what they pay to a casual employee where that employee is injured and incapacitated for a period of time that falls within the period of the accident pay provision in the award.

PN97

I suppose the question I would suggest is how quickly can the parties - and this might be problematic for Mr Ferguson in the sense that AIG has its fingers in many pies, if I can put it that way, and not disrespectfully - how quickly might that usefully be. I presume there is a period of lead time that's needed here for employers that are covered by the relevant award to at least be made aware of their obligations prior to 15 October.

PN98

MR FERGUSON: That issue is in my mind, as well, in that we obviously don't want this necessarily settled the day before it's due - - -

PN99

THE DEPUTY PRESIDENT: Yes.

PN100

MR FERGUSON: - - - and people only hearing about it after the event, especially when there are very real questions about how this will operate in substance. It's not just an issue of making the words simpler and easier to understand. The timing is an issue because we do have other award review matters on foot and other proceedings in other tribunals, so I don't want to hazard a guess, but I know that we have some significant dates coming up - I think in two weeks - which would make a long process of conferencing in the next two weeks somewhat unachievable, I would think, especially if it was involving multiple awards - - -

PN101

THE DEPUTY PRESIDENT: Sure.

PN102

MR FERGUSON: - - - because we would have an interest in most of them.

PN103

THE DEPUTY PRESIDENT: Yes.

PN104

MR FERGUSON: One would think this casual one is going to come up many times.

PN105

THE DEPUTY PRESIDENT: Consistently.

PN106

MR FERGUSON: For that to be productive, as well - I mean, I don't say this just to delay things. The reality is if they're going to be productive, we need to prepare and engage with them, and probably an opportunity for a couple of conferences at least to occur. I don't think by the 15th is going to be achievable.

PN107

MS STARR: Your Honour, can I just say two things - - -

PN108

THE DEPUTY PRESIDENT: You certainly can, Ms Starr.

PN109

MS STARR: - - - which hopefully might assist and might mean that we don't need to push out the commencement day. I think the first way that I hope I can assist is our inquiries, albeit this morning, suggest that the workers comp legislation in the different jurisdictions does obviously deal with how you pay casuals.

PN110

That's usually by means of an averaging system depending on how many hours obviously they've worked in the relevant period. I can't say that this is the case for all jurisdictions, but we understand that that averaging period is usually about 12 months. That might help and I just hope that that helps sort of frame any further submissions in relation to how you might pay casuals.

PN111

The second way that we might be able to assist to expedite and resolve the draft determinations is that from what I understand - and we haven't heard all the employer parties and I don't want to put words in their mouth, but from what I understand from what we have heard, the Ai Group and MBA are not opposing that casuals or daily hire employees would be eligible for accident pay, so it then becomes a question as to how we might define what a casual employee is paid.

PN112

The ACTU would be happy to consult with the affiliates and draft a form of words that would clarify what a casual would be entitled to. That way our friends at Australian Industry Group would only have to review one definition of what a casual is paid and that might assist to expedite that particular issue.

PN113

THE DEPUTY PRESIDENT: Mr Ferguson and other employer representatives, any comments on that proposition?

PN114

MR FERGUSON: If a form of words were put forward, that might expedite things. As I said at the start, it may be that there is a solution in the workers compensation legislation. I just don't have a view about that to put.

PN115

THE DEPUTY PRESIDENT: Yes, I accept that.

PN116

MR FERGUSON: If that was put as shortly as possible, that might apply. That's assuming though of course that that solution would then be relevant in every sector in the context of every award and it may well be that it's not, but we would want an opportunity at least to consider that. If the ACTU are able to do that in short order, that might help the process.

PN117

THE DEPUTY PRESIDENT: Okay.

PN118

MR ANDROPOULOS: Your Honour, just in respect to the Horticulture Award, in fact there is an issue for that award, because we say that the award on which the accident pay provisions were based - which is the old Horticulture (AWU) Award - didn't extend accident pay to casual employees at all. By extending it, it's not just about how you define the casuals, but we say casuals are intended to be excluded and if the intention was to just apply the old provision, then it shouldn't be extended to casuals; so there is a slight definition in that context.

PN119

THE DEPUTY PRESIDENT: Did everyone in Melbourne and in Canberra hear those particular comments?

PN120

MR CALVER: Yes, thank you, your Honour.

PN121

MS KUSUMA: Yes, we did at this end of the bar table, your Honour, but I'm not sure about my friends at the other end.

PN122

MR CHESTERMAN: No, can we just have that again, your Honour, please.

PN123

MS KUSUMA: It's from the National Farmers Federation and we share the same view with Voice of Horticulture, in that the pre‑modern award provisions for accident pay was not extended to casual employees. Therefore, we submit that casual employees should not be included in the consideration of accident pay.

PN124

THE DEPUTY PRESIDENT: Did people in Melbourne get the gist of that?

PN125

MS STARR: Yes, thank you, your Honour.

PN126

MR CHESTERMAN: Your Honour, it's Bill Chesterman from the VACC. We share a similar sentiment with the last two advocates. The Federal Vehicle Industry Repair Services and Retail Award 2002, which was the predecessor award to the modern award, didn't cover casuals and whilst we've had discussions with the AMWU vehicle division and we're relatively comfortable with the format of what's been set out in the draft determination, we would have problems with casuals, pending discussions with my fellow MTA colleagues. If the Commission pleases.

PN127

THE DEPUTY PRESIDENT: Just before you leave the microphone, Mr Chesterman, you indicated you'd have problems. What would those problems be?

PN128

MR CHESTERMAN: The problem is basically casuals weren't included in the award, the predecessor award. That's my issue, based on the two previous advocates.

PN129

THE DEPUTY PRESIDENT: I suppose the practical difficulty here from the Bench's perspective is that we've gone through a lengthy process of hearings and submissions around issues to do with accident pay and certainly the applications and the draft determinations, albeit that they may have changed during the course of those proceedings, I think were crafted in such a way that they covered all employees covered by the relevant awards that were subject of the applications.

PN130

At one level I make the observation that it is somewhat frustrating that at this stage the issue of whether casuals are covered or not is only now agitated by some - - -

PN131

MR CRAWFORD: Your Honour, can I briefly add to that sentiment a little bit - - -

PN132

THE DEPUTY PRESIDENT: You can, Mr Crawford.

PN133

MR CRAWFORD: - - - particularly in relation to the horticultural award.

PN134

THE DEPUTY PRESIDENT: Sure.

PN135

MR CRAWFORD: Because on my reading in the Full Bench's decision of 18 August 2015, that very issue was clearly determined by the Full Bench at paragraph 200. Do you have the decision there, your Honour?

PN136

THE DEPUTY PRESIDENT: I'm getting there as quickly as I can, Mr Crawford.

PN137

MR CRAWFORD: Thank you.

PN138

THE DEPUTY PRESIDENT: Fire away with that.

PN139

MR CRAWFORD: So you'll note in paragraph 199 there's reference to essentially the awards whereby the AWU - I'll call them applications � were granted. The horticultural award is obviously included there. In that paragraph 199, it does state in the second sentence:

PN140

It is clear that a significant number of workers covered by the awards are entitled to accident pay under pre-reform instruments which applied in most states, or at least several states.

PN141

So it's apparent that the Full Bench was aware that they were extending accident pay entitlements further than what previously applied under the pre-reform awards. Then in paragraph 200, the decision goes on to refer to the "abovementioned awards" which I interpret as not just being confined to the AWU awards listed in paragraph 199, but also the ones above, which would probably include the vehicle award as well. In the second sentence of paragraph 200, the decision clearly states:

PN142

We're also satisfied that it is necessary to meet the modern award's objective that the accident pay entitlements apply generally to all employees covered by the awards.

PN143

So it's hard to imagine how the Bench could have really expressed more clearly that on reading through all the voluminous material that the entitlement should apply to all employees, including casuals. That being the case, I would submit it's not really appropriate for these subsequent proceedings to be used as a vehicle to try and reargue the case.

PN144

I mean the point, particularly for the horticultural award, about casual employees not being covered by the main pre‑reform federal award was pointed out by the Australian Federation of Employees and Industries in their submissions in March this year. I mean, it was before the Full Bench. The Full Bench was fully aware of that issue and they've made their decision and it's captured in paragraph 200. Obviously, if a party disagrees with a decision of the Commission, they can appeal, but aside from that process, the task we have here is just finalising draft determinations and we strongly submit that that process should not be used to re-agitate issues that have already clearly been decided by the Full Bench.

PN145

THE DEPUTY PRESIDENT: I see Mr Ferguson chomping at the bit.

PN146

MR FERGUSON: I think my friend � well, let me refer you to paragraph 217 of the decision, which I think is perhaps more illustrative. It says:

PN147

The variations to the relevant awards to give effect to this decision should generally be in the form of those sought by the applicant union and which, in most cases, have been drafted having regard to accident pay entitlements under the pre-reform instrument.

PN148

So, firstly, it's only generally and that leaves a little bit of room, one would suspect, but it then goes on to talk about the AMWU and the Airline Operations Award, but the last sentence is important:

PN149

The variations to the awards will need to reflect the decisions we've made in relation to the length and quantum of accident pay entitlements and the provisions which applied in the main pre-reform instrument relative to the particular modern award.

PN150

Now, where the pre-reform instruments didn't provide for an entitlement, it's difficult to see why a case is � the Full Bench has accepted that there should be a substantive variation to extend the entitlement on to casual employees in the current context. I don't recall, and I may be wrong and my friends will correct me, if there were any arguments put by the unions expressly that supported that sort of extension. So I think it's a little bit difficult to now accept that the Full Bench knew that's what it was doing and made a decision that that's what was warranted, but I'm sure my friend will correct me if I've overstated that.

PN151

THE DEPUTY PRESIDENT: Before we lose the seed of the suggested way forward that Ms Starr put before in terms of coming back to the issue of casuals, possibly developing what might be a draft provision, Ms Starr, how quickly do you think you might be in a position to share something with the employer groups?

PN152

MS STARR: I'm getting some agreement; probably by the end of Wednesday we should be able to circulate and have agreement from the affiliates.

PN153

THE DEPUTY PRESIDENT: Okay. Which would then in terms of - I'm looking at Mr Ferguson in particular, in terms of a capacity to � if you get something by close of business on Wednesday, how quickly thereafter do you think you might be in a position to have a sit down and talk about it?

PN154

MR FERGUSON: I'm sure we could form a view within a week in relation to it and I was thinking it may be that when we do that, we can even respond on papers. I think sitting down and talking about it is where we might have a difficulty, to be frank, just because we've got hearings for the group 2 and the casuals' case coming.

PN155

THE DEPUTY PRESIDENT: Sure.

PN156

MR FERGUSON: But I think within a week we would likely form a view about that and it may well be that we can have a discussion directly with the ACTU about that.

PN157

THE DEPUTY PRESIDENT: Yes, sure.

PN158

MR FERGUSON: And there may be no issues. As I said, our primary concern was to achieve clarity in relation to this.

PN159

THE DEPUTY PRESIDENT: Look, I understand the issue.

PN160

MR FERGUSON: Yes.

PN161

THE DEPUTY PRESIDENT: And I think it's a legitimate issue in the sense of it's not something that is covered off explicitly in all bar one of the draft determinations and I think for many industries where casual employment is a feature of employment arrangements in the industry, it's a point that's well made.

PN162

MR FERGUSON: So, look, I do anticipate that within a week we'd have a position. I don't know where that takes us dates wise, but - - -

PN163

MS STARR: Your Honour, we would urge the Ai Group to be able to respond in a more reasonable time frame. If we're going to do that within 48 hours, I don't see why the Ai Group would need a further week to consider that, other than if they're just trying to push out any resolution for as long as possible so that we end up going past October 15.

PN164

MR FERGUSON: We'll endeavour to do it faster, but quite frankly, we have other proceedings with timetables that are set.

PN165

MS STARR: As does every other party at the bar table.

PN166

THE DEPUTY PRESIDENT: Thank you, Ms Starr. I've actually got to put the hard word on Mr Ferguson. I think it would be � in the sense that there's a draft provision to respond to, if you're in a position to at least respond by close of business Friday. I acknowledge that next Monday is a public holiday in New South Wales, which potentially complicates issues for some, but if you could do it, you know, Friday or - - -

PN167

MR FERGUSON: We will. We certainly will undertake that.

PN168

THE DEPUTY PRESIDENT: That applies equally to � I mean, I know there's issues that NFF and also the Voice of Horticulture which to agitate in respect of the horticultural award, and we've touched on those and I'll give you another opportunity to raise those issues, but nonetheless, I still think it would be suitable for employer interests in terms of the effect of the awards, to the extent that they have any views around those, to share those with the ACTU by close of business on Friday; acknowledging that AIG has got an interest in many awards.

PN169

MR FERGUSON: Certainly.

PN170

THE DEPUTY PRESIDENT: Does that sound reasonable to everybody?

PN171

MS STARR: Thank you, your Honour.

PN172

THE DEPUTY PRESIDENT: Does that deal with all of the construction and industry awards at this stage? Mr Calver, I know that it's a public hospital in Canberra and you're welcome to stay, but equally, if you wish to depart, I completely understand.

PN173

MR CALVER: Thank you, your Honour. We have an interest in the Timber Industry Award, so I need to hang around, if it pleases the Commission.

PN174

THE DEPUTY PRESIDENT: Can I perhaps suggest that we might actually turn to the Timber Industry Award one now and deal with that so that we minimise the impact on your day, if I can put it that way? Mr Crawford, do you wish to say anything in particular? No, sorry, it's the CFMEU Forestry Division, sorry.

PN175

MR MALBASA: Thank you, your Honour. In relation to the FPD's response, we would seek permission to provide a written response and I'm conscious of the time frame, but I think we need to sort of confer and provide a sort of written response to paragraphs 135 to 146 of the AIG's objection. I only inherited this file on Thursday night, so I really have not had a chance to look into this in depth and I think, given the importance of the casual issue in respect of the Timber Industry Award, we really need to provide - - -

PN176

THE DEPUTY PRESIDENT: With all due respect, I mean, the notice of listing was issued on 18 September. It's not as if it happened yesterday.

PN177

MR MALBASA: I understand that, your Honour.

PN178

THE DEPUTY PRESIDENT: I mean, this is a common problem that I encounter with the Forestry Products Division. I have to say, it's not good enough.

PN179

MR MALBASA: I guess from my end, we really just - I'm not prepared to give an oral submission on this because I really have not been involved in this myself and we would need that time to provide a written response.

PN180

THE DEPUTY PRESIDENT: Frankly, that's just not good enough. You know, every other party has come to the table prepared, and whilst there may have been some shifts, everyone else has sort of done their best to not only provide submissions, but respond to submissions where they've been made and I just find it frustrating that you haven't found fit to do so as well.

PN181

MR MALBASA: Your Honour, I do apologise, but that's the way things are, I'm afraid, from my end. I really have not had the chance over the weekend to look at this.

PN182

THE DEPUTY PRESIDENT: Mr Ferguson?

PN183

MR FERGUSON: I mean, our primary view would be that that opportunity should not be afforded to the union, but if it is afforded, I think the inevitable consideration that will arise is that we'll need an opportunity to respond to the written material that's put on, which � I mean, I'm in the Commission's hands, but we'll need a reasonable opportunity.

PN184

MR MAXWELL: Your Honour, if I may just interject. From my reading of paragraphs 136 to 139, the very first issue they're entitled to accident pay, which I think is really a common issue across all the awards and it may be that if the ACTU in their written submissions � sorry, in their proposal to be filed by close of business on Wednesday deals with the issue they're entitled to accident pay, then that may put that matter � hopefully deal with that matter in a more expeditious manner.

PN185

MR FERGUSON: Yes. I'm not sure � is the ACTU's proposal contemplating various issues or just casual employment?

PN186

THE DEPUTY PRESIDENT: I just thought it was limited to casuals.

PN187

MR FERGUSON: So did I, I'll confess.

PN188

THE DEPUTY PRESIDENT: Ms Starr, have I misinterpreted?

PN189

MS STARR: No. I did make the suggestion only in relation to the casuals, but given that, as we proceed through, I'm happy to add other matters to the list that we might also include as part of the, if you like, the common issues and we'd be happy to resolve those on behalf of the other affiliates and I'd support what Mr Maxwell has just said, particularly in relation to the entitlement to accident pay. I think that's something which I'd initially flagged as perhaps a common issue around the definition and that's something that we can address.

PN190

THE DEPUTY PRESIDENT: Before I give Mr Ferguson an opportunity to respond, I'm perhaps adding to the common issue sort of provision, I'll give Mr Calver an opportunity to say anything he may wish to in respect of the Timber Industry Award.

PN191

MS STARR: If I might just add, and I should just for completeness, with the return to work, which is 146, in relation to the Timber Industry Award, I think that's also a matter which would fall under the common issues as well, which is something that we can resolve, which means if the CFMEU Forestry Division is afforded the indulgence to put on something further, it's really only in respect to the actual rate of pay and what would be paid within the context of that award. So it wouldn't be anything too lengthy.

PN192

THE DEPUTY PRESIDENT: I'll come back to those two propositions in a moment, thanks, Ms Starr. Mr Calver, did you wish to say anything about the Timber Industry Award?

PN193

MR CALVER: Only to endorse the AIG's submission in respect of the definitions, particularly the definition of accident make up pay. We believe to the extent possible between awards based on the decision, that definition should be the same. It shouldn't be a definition which varies award from award. There's no rationale for that, unless there is entirely something specific to that award, which has not been pointed out in this context, so that we'd commend the definition we've used elsewhere and it should not be a rate other than the rate for 38 hours of ordinary time and, therefore, both paragraphs 139 of the AIG's submission, but substantially simplified and harmonised by way of definition and 142 of the AIG's submission we endorse, but again substantially simplified along the lines of the drafting we proffered to the Commission. If it please the Commission.

PN194

THE DEPUTY PRESIDENT: Thank you, Mr Calver. Mr Ferguson?

PN195

MR FERGUSON: In relation to the proposal now embracing other elements, such as the entitlement to accident pay, I've got to make the point firstly that we've actually put a proposal in relation to this which parties are free to respond to today and, no doubt, will. Of course, we'd consider any proposal from the ACTU and generally we see that there may be merit � there may be merit � before you in relation to those things, but we'd need to give consideration to each award.

PN196

I'm happy to look at that, but again it is making my task more and more difficult by Friday from a timing perspective. Look, we aren't saying this with some bigger agenda to try and delay the 15s, but the reality is we are dealing with significant issues. I mean, these are then going to be legally enforceable entitlements throughout Australia and if a little bit of time is required in order to settle them, that's better, we'd say, than rushing this and perpetuating an uncertainty on an ongoing basis, especially when the review process is still going.

PN197

I mean, I don't know quite what context the exposure drafts of the awards will play. It may be that that will disturb this anyway. I think there'd be real merit in trying to fix this once and for all at this point and if that necessitates a slight movement, well, that's something that may just have to occur. But we'd welcome that opportunity and we make the point we've put a clause and people should today say what's wrong with that.

PN198

THE DEPUTY PRESIDENT: Do any other employer groups or representatives wish to say anything about Ms Starr's proposition of adding a couple of extra areas where model words or proposed words which might be applicable across a number of awards are added and they go to the issues of definition or when accident pay is payable and also the issue of return to work? I'll take silence as nobody objects to the ACTU coming up with some suggested words around those two additional areas in addition to casuals; acknowledging Mr Ferguson's point that clearly the longer the list of common issues, the sort of the greater the risk in terms of the time frame.

PN199

MR FERGUSON: And I think the other point that I probably should just raise is in relation to casuals, it may be that underlying all of that is a degree of commonality and the intention between both parties. It seems that in relation to the issue about when someone is entitled, we may just be diametrically opposed to each other and then obviously we have it applying when someone is paid accident pay and I'll speak to that once I've heard the rest of the unions, but I assume the ACTU is going to try and flip that and say when it's payable or an entitlement is there.

PN200

So I just don't know if a form of words without a decision by the Bench is going to get us there, so there may be little merit in the ACTU advancing a further proposal. We're just going to have to have another opportunity. If they can put it to us and we'd look at it, but there may be little merit in that area.

PN201

THE DEPUTY PRESIDENT: Yes. Look, I think that's a valid point, but nonetheless I think there's probably some value in at least the ACTU putting together some words. Does that change your time frame at all, Ms Starr?

PN202

MS STARR: No, just with this caveat, though: I think what I'm referring to, the definition as to when accident pay is payable, which wouldn't necessarily include � and we can have further discussion, but not necessarily include what is to be paid.

PN203

THE DEPUTY PRESIDENT: Yes.

PN204

MS STARR: I see them as two distinct points. I'm not sure if Mr Ferguson - - -

PN205

THE DEPUTY PRESIDENT: No, I think that's right.

PN206

MS STARR: - - - in his submissions made it - - -

PN207

THE DEPUTY PRESIDENT: All right. If we can try and stick to the same time. Mr Malbasa, can I just ask you to take some instructions in respect of those issues in terms of the suggested wording in paragraphs 139 and 142? And I'd encourage you to do that now and sort of see if you can come back during the course of these proceedings?

PN208

MR MALBASA: Deputy President, I'm happy seek instructions from officials on that, if it's - I think we can do that in the next 15 minutes.

PN209

THE DEPUTY PRESIDENT: That would be good if you could do that. Thank you. And we'll have to return to that.

PN210

MR MALBASA: Okay.

PN211

THE DEPUTY PRESIDENT: Mr Crawford, can I suggest we deal with the various ASU awards, perhaps as a job lot?

PN212

MR CRAWFORD: AWU?

PN213

THE DEPUTY PRESIDENT: AWU awards, sorry.

PN214

MR CRAWFORD: Your Honour, our draft determinations are essentially in the same terms and that is because they are basically based upon the wording in the Black Coal Industry Award for accident pay at the moment. The only issue that varies is the maximum weekly entitlement because I think for two of our awards, the Bench has determined that the entitlement will be a maximum of 52 weeks. The AIG have criticised various aspects of the wording in that provision, but I would make the point that the wording has been in the Black Coal Industry Award, presumably, since 2010. So it's been around for a lengthy period of time and a lot of the � it seems that a lot of the issues that the AIG are speculating about haven't actually come to fruition in terms of how the provisions have applied under the Black Coal Award. So I think that is a relevant point.

PN215

In saying that, I would state that we don't have an issue with potentially some amendments to those words based upon a common position put by the ACTU and I also make the point that we do think there is merit in the point that it is not easy under the current wording we propose to determine what a casual employee would receive. So we think that the AIG are right. There is merit in clarifying that issue and we're certainly supportive of the process of the ACTU drafting some wording and some exchanges with the employer groups to try and clarify that issue. I think that does make a lot of sense.

PN216

Without sort of pre-empting what is put forward, it does seem on the face of it that there would be merit in linking the calculation of hours or whatever with the relevant workers' compensation legislation. That does appear to make sense on the face of it. Aside from that, I'm not sure if I need to say much more about the horticultural award. I mean, I've made the point that on my reading the Full Bench has already clearly determined that casual employees will get accident pay entitlements under that award.

PN217

If the door is reopened on that issue, I mean, where does it end? In the second category of awards identified by the Full Bench in their decision, it is clear that the entitlements are being extended, either on a state by state basis or, you know, for the horticultural award, also to casual employees. So I mean if that issue gets reopened, where does it end? Do we start, you know, allowing exemptions for certain states? I just say it's been clearly understood that there was some extension of the pre‑reform entitlements. That's been laid up.

PN218

The modern award review is a discretionary exercise. The Act clearly prescribes that. It's apparent from the decision that the Bench has, you know, carefully weighed up all the competing issues and they've made that decision and the reality is that the Federal Pre-Reform Horticultural Award � I mean, there are a number of aspects that are not appropriate in 2015. For example, for schedule A employees, it was a 40-hour week still in that award. So there was always going to need to be some updating in terms of what is prescribed in the pre-reform award. Yes, I'm not sure I can say much more on that issue, your Honour. Are there any questions you had about other awards?

PN219

THE DEPUTY PRESIDENT: No, I'm going to go to Mr Ferguson.

PN220

MR FERGUSON: Just if I can respond to one element of that, and it may be that it's common to other submissions from the other unions, and that is we don't think that just simply pointing to the fact that some of these words have been in the awards for some period of time provides any real solution to an identified issue with the actual wording on the papers. I mean, it's clear from the drafting that there's an uncertainty or that they are, to be frank, not simple and easy to understand, that's a matter that the Commission ought address in this review.

PN221

We know from the context of other proceedings, for example, the proceedings in relation to inconsistencies in awards between the awards and the NES that there are problems in the awards and these things should be addressed. It's not solution to just say, "Well, there's no evidence that it's a problem or they've been there for a long time, so they must have been dreamt up." We say that the issues we've identified are clearly issues from the terms of the documents and they should be addressed by the Commission.

PN222

THE DEPUTY PRESIDENT: Just perhaps going through some of those issues, I mean, one of the issues that's identified was the use of the word "incapacity" and that's the piece of terminology that's used in a number of the draft determinations. Is there anything specifically you want to say around that particular issue, beyond what's in the written submissions?

PN223

MR FERGUSON: We do rely on our submissions because we've been careful in relation to that, but one issue that we'd point out is not just the word "incapacity" in itself being somewhat unclear, but the inconsistencies with the use of references to incapacity and references to injury where some awards will say the period, the 26 weeks, if you will, arises from injury in one instance, but then another point will say from incapacity. I think that is clearly an issue that should be addressed and some unions have said, "Perhaps the way to address that would be to apply incapacity consistently across it."

PN224

Now, obviously from an employer's perspective there might be some expansion to the entitlement on one view there, but in saying that, that may be a reasonable solution to the situation. We don't think it terribly likely that in a great number of circumstances there'd be a significant impact on employers, but that's a solution we wouldn't oppose, but we'd leave that to the Commission.

PN225

Beyond that, I mean, I think our submissions have probably dealt with that to the extent possible. We make the point that it is a complex issue to determine when someone is incapacitated, but there's nothing further to put.

PN226

THE DEPUTY PRESIDENT: Yes, okay. Ms Starr, there's two issues that I think came out of what Mr Ferguson has sort of said is that the notion of incapacity and the consistency around its use, but also in the context of coming back to the issue of when sort of - you know the date of eligibility, if I can use those words. There's some variations across the awards where it sort of might be from the date of injury or in some cases it's from the date of capacity, which can be sometime after the date of injury. Can you just please make sure that to the extent that there is a common view among affiliates that those issues are perhaps addressed if possible in the draft words that you can come up with?

PN227

MS STARR: Certainly, your Honour. I think in relation to the definition of incapacity, I don't know that we can do much, make it much clearer or do much work to what's currently proposed in the draft determinations because we say that it is clear that the meaning of incapacity is taken within the context of the relevant workers' comp legislation and the clause already does that. But in relation to when it's actually paid, I think that � and this isn't the confirmed position because I haven't spoken to all the affiliates, but I anticipate and I hope that that's something which we might be able to resolve in a consistent manner.

PN228

THE DEPUTY PRESIDENT: Sure. Mr Ferguson?

PN229

MR FERGUSON: Look, I think there's one other issue that I just might raise so that the ACTU can give consideration to it. It is linked to the entitlement issue as well in that, you know, under a number of the awards there's a preamble that talks about in the sense of receiving accident pay when you're entitled to workers' compensation. Subsequently in the clause, it suggests that you received it when you're incapacitated. Now, the reality is there may be circumstances where the individual is incapacitated in, say, the ordinary meaning of the word, but not actually receiving compensation because, for example, they don't comply with the relevant requirements and so forth.

PN230

It may be that whatever the ACTU is coming up with can address that issue because we'd, of course, strongly oppose any entitlement to accident pay in circumstances where you weren't receiving the workers' compensation, but accident pay � there's another inconsistency in the clauses.

PN231

THE DEPUTY PRESIDENT: I'll make two points: (1) I don't think � and if any of the applicants wishes to correct me, my interpretation of the various applications and submissions was that accident pay was payable in circumstances where an employee was eligible for workers' compensation payments.

PN232

MR FERGUSON: I accept that, yes.

PN233

SPEAKER: Yes.

PN234

MS STARR: Yes, that's correct, your Honour. And I think that's clear on the face of the preamble in that. So if it's the case that, Mr Ferguson, you read the preamble in the context of that inconsistency, which we don't accept arises, but you consider the preamble deals with and provides any clarification, if that's needed, as to when it's payable, and I guess that forms part of the reason why we say that there's no issue with the definition as it currently stands because it is clear from the preamble when an entitlement is triggered.

PN235

THE DEPUTY PRESIDENT: If we can just be mindful of making sure that there is no scope for misunderstanding and I just come back to an issue that was flagged in the context of the Timber Industry Award, I think if we can use consistent language and I think applicable workers' compensation legislation as opposed to some variation of that in some, I think the terminology "accident compensation legislation" is used - I think if we can just use perhaps the form or a common form of words, but I think "applicable workers' compensation legislation" is probably something that's going to be easily understood by those that are going to be covered by awards, I think that would be helpful from a practical perspective.

PN236

MS STARR: Yes, we would agree, your Honour.

PN237

THE DEPUTY PRESIDENT: Mr Angelopoulos, Ms Kusuma, do you wish to say anything further in respect of - - -

PN238

MR ANGELOPOULOS: Yes. Just in respect of the horticulture award. First of all, if I could address what Mr Crawford has said in respect of paragraphs 199 and 200 of the decision, if your Honour turns to paragraph 201, which is the next paragraph, it says:

PN239

In relation to those awards, where accident pay provisions have only applied to a limited number of workers covered by the awards, a substantive case would need to be presented that it is necessary to extend the accident pay entitlement to all workers to achieve the modern award's objective.

PN240

What's quite clear, your Honour, is that as this case � I didn't participate in the hearing, but from what I understand it was run on a general basis that there were no specific submissions made about specific awards. What the Commission is contemplating is that first of all that, you know, there may be a need to actually extend it, but then if that happens, an application would need to be made, an application to extend it to meet the modern award's objective.

PN241

That's the first issue, your Honour. So we say that it was not intended that the accident pay automatically extend beyond what was in the pre-reform award. That's the first - - -

PN242

THE DEPUTY PRESIDENT: Can I actually just � my reading of clause 201, or paragraph 201 of the decision, is that it relates to category 3 of the awards that are cited earlier on in the decision. If you look at the particular awards that are referenced in paragraph 201, that reinforces that sense.

PN243

MR ANGELOPOULOS: Yes. In any event, your Honour, if you look at the other two paragraphs, that really is designed to be about � 199 and 200, that really is about where the award is only limited to certain states in terms of accident pay. It's not referable to casuals. That's the first submission. The only other submission, your Honour, that we make is what appears in paragraphs 6 and 7 of our written submissions, which simply is about the fact that the draft clause deals with the fact that the clause extends to circumstances when the employment is terminated, but doesn't deal with the issue where the employment is not terminated, but ends, you know, because it's an out of limit contract, it's a contract for a specified period of time, we say that this intention was not to actually extend it beyond that period of employment in those circumstances.

PN244

THE DEPUTY PRESIDENT: So let me ask a question around that submission. What happens in those circumstances from a workers' compensation perspective if you have a seasonal worker that is injured?

PN245

MR ANGELOPOULOS: I can't really answer that question, your Honour.

PN246

THE DEPUTY PRESIDENT: It would strike me as being a particularly relevant question in the sense that if a seasonal worker is injured and continues to receive workers' compensation payments after their seasonal engagement may have concluded, that that would be a relevant consideration in this context. Presumably, the nature of the workers' compensation payment would be to compensate for the loss of earnings and that loss of earnings may continue beyond the employment period to the extent that an individual is precluded from performing other work.

PN247

MR ANGELOPOULOS: Your Honour, then it wouldn't necessarily refer to the clause that there's been a � that extends even if there's a termination of employment because in my understanding, most workers' compensations do extend even beyond the termination of employment, in any event.

PN248

THE DEPUTY PRESIDENT: I suppose the question that flows from that that I would ask of you is: in circumstances where under workers' compensation legislation as a continuing entitlement, what does that mean in terms of an accident pay provision?

PN249

MR ANGELOPOULOS: Your Honour, I would actually have to get back to you on that answer.

PN250

THE DEPUTY PRESIDENT: Can I actually ask you to take that question on notice and perhaps come back to the Commission?

PN251

MR ANGELOPOULOS: Yes, sir.

PN252

THE DEPUTY PRESIDENT: Ms Kusuma?

PN253

MS KUSUMA: Just in addition to that, your Honour, if I can refer your Honour to paragraph 211 of the Full Bench decision, it does contemplate the ability to consider special circumstances on which there may be circumstances that can detract if the proceedings today come up with model provisions for accident pay. The Full Bench considered that there may be special circumstances that can justify a detraction from the model provision and we would argue that specifically for the horticultural award, there is a special circumstance that needs to be considered in regards to the casual employment due to the nature of the injury and the high level of seasonal workers and the cost impost and complexity that businesses would need to incur on administering accident pay to transient work and at certain time during � the really busy and intense period of harvest period. It may be very difficult then for businesses to administer accident pay that is needed in that situation.

PN254

THE DEPUTY PRESIDENT: So the issue is one of administration, from your perspective?

PN255

MS KUSUMA: That and, I think, there is an argument that it warrants special consideration for that particular circumstance.

PN256

THE DEPUTY PRESIDENT: Do you wish to say anything around the issue I've just raised with Mr Angelopoulos in respect of seasonal workers?

PN257

MS KUSUMA: In terms of the fact that when it is seasonal work and it's really busy, I think it would be � in terms of administrative costs and the burden on employers, it would outweigh the benefit of extending accident pay to transient workers or casual workers.

PN258

THE DEPUTY PRESIDENT: Do you want to take � just because I've provided the opportunity to Mr Angelopoulos to perhaps provide some further submissions on the issue of what workers' compensation legislation might deal � how it may deal with the issue of seasonal workers? Do you wish to similarly - Mr Ferguson, do you wish to say anything on the issue?

PN259

MR FERGUSON: Look, without getting into the issue of what the workers' compensation legislation might say, I'd simply put that in the context of accident pay, there may be certainly less force to the argument that the entitlement should accrue post-termination where you're dealing with the context of seasonal employment or fixed term or specific task of contract of employment because in those circumstances it wouldn't necessarily be a termination being visited upon the employee at the employer's election, but rather, the employment would have come to its natural conclusion by the nature of the engagement. Of course, the employer may well never have considered the ongoing costs of employment beyond that stage. We'd say that alone would add force to the contention that the accident pay entitlement shouldn't extend beyond the termination where both parties agreed that employment would end at that stage in any event. We note that in some awards, such as the dry cleaning award, it is only where termination is at the initiative of the employer where the entitlement extends beyond. We would see little justification, in order to do what is necessary re the modern award's objective, extending the entitlement beyond the agreed termination date.

PN260

MR CRAWFORD: Your Honour, if you please, I might also take the opportunity to have a look at that specific issue about how the various workers compensation legislation regime deal with seasonal workers.

PN261

THE DEPUTY PRESIDENT: Can I just perhaps ask the AWU, NFF, New South Wales Farmers' Federation, and the Voice of Horticulture to look at that issue expeditiously and provide anything that you may wish to on that issue by close of business Friday. Mr Ferguson, I don't know if you want to add anything or whether you wish to provide anything?

PN262

MR FERGUSON: I'll take the opportunity, but if we do, we will do it by Friday.

PN263

THE DEPUTY PRESIDENT: I think that deals with the AWU group of awards, unless there is anything that I've overlooked. I'm just going to work my way around the table here in Sydney and then we will do similarly in Melbourne. Mr Nguyen?

PN264

MR NGUYEN: Your Honour, we support the ACTU's proposal for the way forward in terms of dealing with some of the common issues and we also support and adopt the submissions of Mr Crawford, made on behalf of the AWU. I would just make a few comments in relation to the airline operations ground staff award draft determination. We have made written submissions in reply to the AO group submissions, but I'll just add a few more points which were not addressed in the written submissions. In relation to casuals, we rely predominantly on the Aircraft Engineers General Aviation Award 1999, which had a code AP765552. That was the pre-reform award, which applied for the maintenance stream of employees and was the only award considered during the award modernisation which applied to the maintenance stream of employees in the airline operations ground staff award. And in that award, there was no explicit exclusion for casuals to accident make up pay. In relation to the rate of pay, that award provided for salary and allowances for ordinary time at clause 32.2.1. In relation to the air group's proposal that accident pay not apply for the first two weeks, that was not a restriction which applied to maintenance employees under the award, which I have just listed for your Honour. In relation to accident make up pay not payable where a medical practitioner provides information, this is also not a restriction affecting maintenance stream employees under the Aircraft Engineers General Aviation Award 1999. The air group also lists a number of other restrictions including for industrial diseases, reductions in workers' compensation and a cessation of entitlement due to termination. None of those restrictions apply or were a part of the accident make up pay entitlement in the Aircraft Engineers General Aviation Award 1999.

PN265

On the length of the entitlement, the pre-reform award provided for 52 weeks in respect of incapacity, so in terms of whether there is any ambiguity in the draft determination that we provided about whether it is from the date of injury or from the date of incapacity, the pre-reform award provided for 52 weeks in respect of incapacity. I will just note also that, in terms of an idea about whether there is an effect due to termination of employment, the pre-reform award did contain a clause about termination, but it didn't say that the entitlement ceased upon termination, it only said that:

PN266

Nothing in this clause will affect the right of an employer to terminate an employee's employment, in accordance with clause 37, termination of employment.

PN267

That was the only clause which was in the accident make up pay entitlement. It didn't say that the entitlement to accident make up pay would cease at the point of termination. They are the only comments that I'd make just in relation to drawing attention to the pre-reform award entitlement. We say that that supports the draft determination that we have put forward for the Commission, and subject to the outcome of the ACTU's process, we would be supportive of those common issues being addressed in that way.

PN268

THE DEPUTY PRESIDENT: Ms Knight, given the ASU's interest in this award, I might also invite you make any comments you might wish to initially as well.

PN269

MS KNIGHT: Thank you, your Honour. The ASU also support the submissions the ACTU have made on the common issues and we support and adopt the submissions made by the AMWU in relation to the maintenance stream. In relation to the clerical and administrative stream, we say that the majority of our clerical employees were covered by the pre-reform instruments of the Overseas Airlines Interim Award 1999 and the Airline Officers Qantas Airways Limited Award 2000, both of which had a pre-reform entitlement of 26 weeks. However, we also say that a significant minority of employees have had an entitlement to 52 weeks pre-reform and this forms the basis on which the ASU has submitted a draft determination for a quantum of 52 weeks.

PN270

THE DEPUTY PRESIDENT: Is that it, Ms Knight?

PN271

MS KNIGHT: Thank you, your Honour.

PN272

THE DEPUTY PRESIDENT: Mr Ferguson?

PN273

MR FERGUSON: In relation to this award, I think the point has been made that, as I understand it, there were quite a number of enterprise awards that were in existence preceding the introduction of the modern award, so we don't know with clarity on what is before the Bench how prevalent the awards referred to by my friends actually were. They haven't put forward that sort of material to satisfy the Bench that they were the awards that applied to the majority or even to a significant number of employees. That is the first issue, which I think means that they'll face real difficulty in establishing that a higher number of weeks should apply, but to be fair, there were two industry awards, if I can call it that, that would be relevant and that applied prior to the modern award.

PN274

One was the Aircraft Engineers General Aviation Award 1999. As my friend from the AMWU put, that does provide for 52 weeks, although we don't know to what proportion of people that actually applied to. The important point is that, at best, only applied to maintenance workers. The other award was the Overseas Airlines Interim Award 1990, which, if you will, covered the clerical stream. That only provided for 26 weeks. So we say that a case hasn't been made out in either context for adopting the more beneficial 52 week measure. There is no basis for the Commission to accept that that is what generally applied, but certainly, absolutely no case has been made out for the clerical stream receiving the higher entitlement, so 26 weeks should apply, we say, in both contexts.

PN275

My friend from the AMWU did put something in relation to the rate of pay and I think made reference to including salary and allowances and so forth. I don't know precisely what the contention is there, but we wouldn't see any real need. The risk there is that that might catch over-award payments and so forth, if you will, amounts beyond the base rate of pay. As such, we say that that should not be accepted and it is difficult to see any justification for including additional amounts beyond what would be the base rate of pay, assuming, if I can put it this way, that the award was all that applied for the purposes of accident pay. That is the approach being adopted in, we'd say, other awards, and there is no reason for a distinction to be drawn here. There is nothing further.

PN276

THE DEPUTY PRESIDENT: Mr Nguyen and Ms Knight, the question that I have, and it flows from the issue that is raised by AIG in terms of the quantum or the period of accident pay, the airline operations ground staff award was included in category two in the Full Bench decision, which largely fell into that category where 26 weeks was the maximum. I just invite any comments you may wish to make about how the award was dealt with in the Full Bench decision and how that impacts on the quantum of accident pay or the period of accident pay, together with any other points you may wish to make in response to what Mr Ferguson has said. Mr Nguyen, do you want to go first?

PN277

MR NGUYEN: Your Honour, in relation to the quantum, we did put together a table, which was provided during the hearing. I did find out that the full table wasn't uploaded to the website subsequently, but I did send an email to them, which it has been corrected now and the table which analyses the awards is now on the website. In terms of which awards applied for the maintenance stream, the Aircraft Engineers General Aviation Award is the primary instrument. We did acknowledge in our submissions that were enterprise awards applying to Qantas which had 26 weeks, however, the Qantas enterprise agreements all provide for 52 weeks presently, and that was only one enterprise award where the aircraft engineers general aviation award applied to 468 respondents. So there was a significant number of respondents who had the pre-reform applied to them, even though it wasn't a common law award. And we say that that particular circumstance should mean that the maintenance stream at least should have 52 weeks. The current award does provide for the streams to have differing entitlements and conditions and there is ability for the Commission to provide for the various streams to have their entitlements and conditions as they are translated from the pre-reform instruments to the modern award.

PN278

THE DEPUTY PRESIDENT: Just in terms of the 468 respondents to the pre-reform award that you cited, Mr Nguyen, what proportion of operators in the industry does that represent? If it is 468 of 469, I acknowledge that is a significant proportion, but if it is 268 of 2,000, that's a different contest.

PN279

MR NGUYEN: I'm not aware of the total number that are currently active in the industry, but from our estimates, that would be a significant number in terms of roping in prior to award modernisation.

PN280

THE DEPUTY PRESIDENT: I'm actually going to give you an opportunity to try and put some context to what proportion it represents and again, I'll give you until close of business on Friday to provide that information to the Commission. Ms Knight, do you wish to respond and say anything?

PN281

MS KNIGHT: The ASU would just like to acknowledge that the AMWU proposal that a different quantum for the maintenance work strain could apply and we would concede to a separate quantum for the maintenance, if the Commission was minded to award the 52 weeks.

PN282

THE DEPUTY PRESIDENT: Is that it from you on that award?

PN283

MS KNIGHT: Thank you.

PN284

THE DEPUTY PRESIDENT: Mr Ferguson?

PN285

MR FERGUSON: Can we just have an opportunity just a couple of days beyond Friday to perhaps respond to what Mr Nguyen might put in relation to that award?

PN286

THE DEPUTY PRESIDENT: If I can give you until close of business Tuesday?

PN287

MR FERGUSON: I know it is not a round robin, but you might note in our submissions we also set out a raft of clauses that were in the ASU's claim that were not replicated. It may well be, of course, that they have more relevance to the clerical stream and that that is something that should be built into any entitlement.

PN288

THE DEPUTY PRESIDENT: I noted those. Ms Knight, is there anything you wish to say in terms of those particular aspects of the AIG submission that go to provisions in the original determination that were submitted or the original application and those being the most recent version of the determination? They are set out at paragraph 54 through until 57 of the AIG submissions.

PN289

MS KNIGHT: Thank you, your Honour. The ASU has responded to the AIG's submissions and in relation to the words of the Airline Operations Ground Staff 2010 clause, the AIG's submissions, they deal with the suspicion that the AIG have about the ASU and the AMWU submitting a common position for the draft determination. The ASU speaks to our written submission on that, put on 23 September 2015, that throughout all proceeding, it is on transcript and in our submissions, that we have consistently sought a common clause for accident make up pay in the modern award, so it shouldn't surprise the AIG that we have adopted a common position with the AMWU after we've conferred on what the draft determination should be. We respectfully submit that, in the absence of any alternative construction preferred by the AIG for the Airline Operations Ground Staff Award 2010, the Commission should accept the words of the AMWU and ASU draft determination.

PN290

THE DEPUTY PRESIDENT: So if I am to interpret what you've said there, Ms Knight, in essence, the key difference is largely as a result of support for a common approach across clauses in awards rather than anything else.

PN291

MS KNIGHT: That's correct, your Honour.

PN292

THE DEPUTY PRESIDENT: Mr Burns?

PN293

MR BURNS: Thank you, your Honour. I'm dealing with the MUA's three awards, which were all in group one: the marine towage award, the professional diving industrial award, and the stevedoring industry award. Of those awards, the stevedoring industry award, the predecessor awards had provided for 104 weeks. The other two awards provided for 52. The draft determination all seek 52 weeks, in line with the Commission's request. In relation to the submissions I will make, you can see from the AIG submissions that the submissions of the AWU really apply to us as well. The reasoning being and, you know, I've explained this during the proceedings, that the origin of these clauses came out of the AWU's initial crack at the stevedoring industry award clause which we took over from there, and after analysing an award history on the MUA awards I conceded the direct predecessors in the other two awards, so I made the application. The stevedoring award actually goes back to the 1960s. I've provided in MUA2. there's the immediate predecessor award provisions in MUA � it's a bulk attachment on the website, MUA3 to 9. There are award histories and EBA analysis and information which was posted at your Honour's request.

PN294

Now, I think in relation to the issues that the AIG has raised in relation to MUA awards, it's consistent with the AWU and I think that most of the issues will be covered off by the ACTU's documentation which is put forward in the next of couple of days in dealing with issues that may require a look at, in particular, the issue of the casual employment which is not articulated on having reviewed the submissions of the AIG, and listening to what's been said here today, I do believe that the casual work does require articulation in these award clauses. The casualisation in the industry particularly on the waterfront with the large scale of redundancies and moving into automotive work it means that the whole nature of the work in particular in stevedoring is changing over to casuals. Even with solutions to industrial disputes are moving from full-time to, you know, to shared work situations as we're trying to deal with industrial disputations.

PN295

Now, in relation to � we may first just deal with The Maritime Industry Australia have put on a small submission. I accept what they say however I don't believe that the amendments that they asked to be made to the MUA's draft determination really assists. They seek 杋n paragraphs 8 and 9 of The Maritime Industry Australia submission they identify some changes that could possibly � that they would seek to be made. Firstly, the addition of the word � this is at the bottom of their paragraph 8, they suggest for clarity there in � and in this is in the Tug Marine Towage award, that the words "up to 52 weeks" be inserted into the meaning of accident pay clause, so that we would say that 17.2 of the draft determination for the Marine Towage:

PN296

For the purpose of this clause actual pay means for a period of up to 52 weeks.

PN297

I don't believe that those words are necessary. It's quite clear. I think that just adds an area of fuzziness to the clause that doesn't assist. It's quite clear in paragraph 17.1 that the period of the accident pay is 52 weeks from the date of injury, and in relation to these accident pay clauses what needs to be understood is that they are � it's a derivative system. First of all, a person has to be on worker's comp, so there's the whole nature of worker's compensation which needs to be taken into account. A person gets injured first, the worker's compensation is active, and it's only once the worker's compensation is active that this clause essentially comes into play. So I don't think adding the word "up to" in 17.2 assists.

PN298

In relation to � there's The Maritime Industry Association's suggestion, at their paragraph 9, that our proposed clause 17.7 be deleted, now they say that that clause 17.7 doesn't have any work to do, however it actually does, because in 17.7 the phrase:

PN299

Intermittent absences arising from the one injury are to be accumulated in the assessment of the 52 week limitation.

PN300

That's actually quite an important clause wording for the employer, because that eliminates the possibility of every time someone comes in around an injury, making further � like, the 52 weeks starting again, so that's actually an important clause for the purposes of the accident pay system. So that clause, again, should stay in. Mind you that these clauses - that all three clauses that the MUA have put in are consistent with the AWU clauses, are consistent with the black coal award clauses and therefore no issue has been taken with that. We say that these clauses, as they stand, are valid. Again, in relation to the background it has to be understood that there's a worker's compensation system in the background of this. The issues with the wording of "incapacity", "injury", et cetera, "redemption", they are common terms used within the worker's compensation system. No-one who is in receipt of accident pay is not in receipt of worker's compensation.

PN301

Also, might I say, just in relation to the issue of this � the potential that's been flagged as confusion between the use of the word "incapacity for work" and "date of injury" or "date of incapacity for work". They're actually two different things. Like, in the MUA's clauses the 52 week period starts at the date of injury and ends at the date of injury, but the person is only entitled to accident pay during their periods of incapacity which may be sub-sets in the period of that week. The boundaries are the date of injury and 52 weeks from the date of injury. The date of incapacity: that's in the weekly payments, or that accident pay may start, so they are different concepts, and they can't necessarily be merged into one, however, that's one of the issues that we'll be looking at the wording with the ACTU, I think, and clarifying, so the issues of that which, I think, it was just, you know, the start, the beginning, when is accident pay paid, plus the issue of casuals, and the nature of determination of casuals, whether it's an average over four weeks, an average over a year. I think that the worker's comp system, in my memory, they're all pretty much similar in the way that they determine the calculation of weekly payments, whether it be Federal or State and how they actually calculate the entitlement of a casual to worker's compensation is insistent, but obviously different States and different legislations use different words, and that could be something we can look at over the next 48 hours.

PN302

So I think that � I appreciate the work that the AIG has done, but I think that you can't � we're dealing with an award under the Federal Industrial Relations or Workplace Relations system. Looking into it it's basically State industrial related � State Worker's Compensation legislation, and where there's a cross-over you can never have it perfect in our award, because the wording in each of the legislation, at least the worker's compensation legislation is going to be little bit different. So there needs to be a bit of intelligence, and perhaps that's why we get these smart lawyers involved in these things, to be able to interpret what things mean, particularly, you know, for example one of the clear things about these clauses, is you don't get accident pay unless you're on worker's comp, so I don't, you know, really think that that needs any dispute about that. I think it could batted out by most parties.

PN303

But, again, these are issues that will be just looking short-form by the ACTU, so I don't think � I think we rely on our original clause for all three awards. We don't see any need for modification except for the issue of the definition of the appropriate calculation of pay for casuals and the rate of pay, which was built in by the ACTU. Your Honour, if there's anything further I think our issue is quite simple because it's the same as a lot of other members.

PN304

THE DEPUTY PRESIDENT: Thank you, Mr Burns.

PN305

MR BURNS: Thank you.

PN306

THE DEPUTY PRESIDENT: Mr Ferguson, do you wish to say anything?

PN307

MR FERGUSON: No.

PN308

THE DEPUTY PRESIDENT: Okay. All right. I think that concludes the round the � sorry, Mr Ferguson change ‑ ‑ ‑

PN309

MR FERGUSON: I was going to respond. I could maybe take you to the general issue about eligibility which we didn't raise each time, but now is the appropriate time.

PN310

THE DEPUTY PRESIDENT: Yes, that's fine.

PN311

MR FERGUSON: It is obviously attached to our proposition to the entitlement to accident pay should be dependent, if I could put it this way: on the individual being in receipt of worker's compensation payments and I take it that there's some issues raised by some parties that it should be about eligibility rather than receipt and we say that's inconsistent with the whole approach, which, if you look to the preamble, and paragraph 10 of our submissions sets out one of the common preambles. It talks about an employee in receipt of weekly payments:

PN312

under the provisions of the principal worker's compensation legislation will be entitled to receive accident pay from the employer subject to the following conditions and limitations.

PN313

And I think the unions say they don't take any issues with that unless the ACTU does. And I think that's an important point. We say that that's the trigger if you're in receipt of it, then these things occur. And that of course aids in making the award simple and easy to understand and it aids in a burden that is imposed upon employers in terms of determining when to actually pay it and probably even deals with the requirement under section 139(2) to the extent that any allowance included in the modern award must be separately and clearly identified in the award.

PN314

THE DEPUTY PRESIDENT: Yes.

PN315

MR FERGUSON: To an extent that it answers that proposition we say, you know, aside from that we've also just had my friend from the MUA say that accident pay only applies once worker's comp is active. That's when the clause comes into play, and he's been very clear on that. And that no-one who's in receipt of accident pay is not in receipt of worker's compensation. So I think the high point is that you don't get accident pay unless you're on worker's comp, and that any issue about that would be batted out by most parties. Now, I think that's what we're saying, is you only get accident pay when you're actually getting worker's compensation, because if you make it about eligibility it adds another level of complexity especially where the employer isn't going to necessarily be the arbitrator of whether or not someone is eligible or not. Of course, the insurers will have a role to play in this. They'll only know once there's actually the obligation to pay and that is actually then enacted pursuant to a notification from the insurers et cetera.

PN316

So we don't think that there's any merit to the CFMEU contention that it should be about eligibility because otherwise the employer doesn't pay it. There is no entitlement, because the reality is they'll be under a legal obligation to pay it. So it will be paid and, if not, there'll be an avenue for addressing that issue, and we can't start now dealing with situations where people are non-compliant with relevant legislation, if that occurs. And we don't have any evidence that that is actually occurring in any event, and I don't think we need to start re-writing things in order to deal with that hypothetical scenario. So for that reason we say that it should be linked to whether you get the payment. Clearly, there's perhaps an inconsistency in some of the approaches through the wording, and it is a wording issue, but the overarching point is that this whole case is about people getting worker's comp, and it being topped up. That's all I want to put in relation to that.

PN317

THE DEPUTY PRESIDENT: Thank you. And whilst this issue was one that might be addressed by virtue of a common provision, given your comments earlier this morning, Mr Maxwell, is there anything you just want to say in response to that?

PN318

MR MAXWELL: Well, the response I'd make is that the problem that we have with what's been put forward by Mr Ferguson is that if the clause only refers to accident pay or the client to pay accident pay arising where the worker's compensation is paid it then becomes an issue in terms of, well, what is the legal obligation under the award where an employer doesn't pay the accident pay. And that's the situation we want to make sure is covered by the definition of accident pay. So if there is a legal entitlement under the award to accident pay in all situations whether the employer pays worker's compensation or not.

PN319

THE DEPUTY PRESIDENT: Yes. There's clearly an issue. There's a sequencing issue in the sense that an employee's injured and quite often the determination of worker's compensation may take a period of time. Presumably in the interim period then the employee takes personal leave?

PN320

MS STARR: Your Honour, I don't think that that's actually correct. I think that there's actually assumed liability in some, if not all, worker's comp legislation which means that the employer is obliged to pay worker's comp whilst the matter might be in dispute. I think that's provisional liability.

PN321

THE DEPUTY PRESIDENT: Yes.

PN322

MS STARR: Is that ‑ ‑ ‑

PN323

MR FERGUSON: Your Honour, I may not be across this, but there may be a procedure where provisional liability has to be accepted subject to certain circumstances where I think the insurer cannot, but the point is that a decision has to be made, not necessarily by the employer, as to whether or not it is actually compensatable, so there is a sequence issue. I don't know what happens in the interim if the person ‑ ‑ ‑

PN324

THE DEPUTY PRESIDENT: Well, assuming what Ms Starr has put in terms of provisional liability, I mean, if you look at the wording in paragraph 10 in those circumstances, you know, as in receipt of weekly payments under worker's comp legislation. That would be the trigger which would activate an accident pay provision. Presumably that's what you're submitting.

PN325

MR FERGUSON: I this it's rare. I think we're also thinking about circumstances where somebody didn't make the claim, that they might have had eligibility but it just never proceeded. I mean, it raises all ‑ ‑ ‑

PN326

THE DEPUTY PRESIDENT: Well, in the circumstances I can't see that happening, but I think there's an issue there in terms of just - perhaps one for you, Ms Starr, and your affiliates in terms of capturing the sense of that what I'm hearing, and it's not being disputed by any of the applicants, is that eligibility for accident pay is only where an employee is receiving or entitled to worker's compensation payments and if that's reflected in there and sort of I think that might go a long way to addressing Mr Ferguson's concerns, and, you know, without sort of wanting to step into your shoes. All right. Look, we've concluded going around the table there. Can I suggest before we start doing around table in Melbourne, we might just take a short 10 minute adjournment just freshen up, so if we can resume at 12.15 if that's okay.

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RESUMED牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋 [12.17 PM]

PN327

THE DEPUTY PRESIDENT: Thank you, everybody. In terms of Melbourne, Ms Moussa, did you want to kick off?

PN328

MS MOUSSA: Sure. Thank you, your Honour. We filed our draft determination on 26 August and it's indicated in our correspondence attached to that draft determination our initial determination was redrafted in order to make the provision simple and easy to understand, and in doing so, we adopted terms of the black coal provision, which were mirrored in ACTU3, and it's these parts of the draft determination which the Ai Group have primarily objected to in their submissions on 8 September.

PN329

We filed reply submissions to the Ai Group's submissions on Friday and those were up there on the website late Friday afternoon, and we continue to rely on those submissions. We support and adopt the submissions of the unions given here today, including the written submissions of the AMWU to the extent that they relate to the same issues raised by the Ai Group in relation to the vehicle award, namely the preamble, Entitlement to Accident Pay Provision Casual Employees, Pro Rata Payments for Redemptions and Return to Work. We also support the proposal for the ACTU to consult with its affiliates in order to address the common issues that have been raised by the Ai Group.

PN330

I might make a particular note in relation to two of those issues, or three of those issues rather; that the Ai Group have addressed in their submissions. In relation to the pro rata payment provision and the redemption provision and the way that those provisions are worded and can be read I'd just make the brief submission that the terms of those provisions mirror exactly what was in the pre-modern award vehicle accident pay provisions, so I do note my friend's comments about the fact that just because the provisions were in the award for a number of years doesn't hinder a review of those provisions. We would just say that you'd want to tread carefully in upsetting provisions which have been around for a while which have common understanding, simply on the basis that it might be a good opportunity to review it to make it clearer for certain parties who are new to the provisions.

PN331

In our written submissions we also addressed a specific submission made by the Ai Group at paragraph 150 of their written submissions about clause 22.15(b) of our previous draft determination which is exhibit AMWUVD1 of our written submissions, and those submissions of the Ai Group address their concerns about the return to work provision and how you deal with the scenario where an employee has modified duties and can work part of the week. We continue to rely on the written submissions we filed on Friday, but essentially we would agree with your Honour's suggestion earlier today about that return to work scenario being addressed by way of the direct pro rata provision. We've made written submissions to the effect that we think that clause 22.6 of our draft determination, which is entitled Pro Rata Payments, and which I believe mirrors what other pro rata payment provisions have been used by other unions in their draft determinations adequately addresses the scenario where someone works part of the week but is off work for the rest of the week. So we just make that brief point.

PN332

I would also just like to draw to your Honour's attention an inadvertent drafting error which you've identified in our written submission. Sorry, in our draft determination. We have noted at paragraph 10 of our reply submissions filed on Friday that the words "from the date of injury" should be removed from clause 22.1(a)(ii) and that's on the basis that there's a number of conditions upon which an employee would be entitled to receive accident pay under the draft determination and those conditions are consistent with what existed under the pre-reform instruments. They've simply been replicated in the draft determination but in order to ensure consistency and alleviate any interpretation issues, we would just ask that those words be removed from the draft determination.

PN333

In relation to the issue of casuals which was ventilated earlier this morning, it's our submission that we don't agree with the view of the VACC and any other employer organisation to the extent that they submit that the accident pay provision was not intended to apply to casuals. The pre-modern accident pay provision and the draft determination don't expressly deal with casuals, but they also don't exclude casuals. We've made submissions all along throughout these proceedings that the accident pay entitlement was intended to apply to all employees across the vehicle industries and that would include casuals and so to this extent we support the submissions and adopt those made by the AWU this morning in respect of paragraph 200 in the decision of the Full Bench as they relate to what was intended by the Full Bench to apply in the vehicle industry and how the accident pay provision was intended to apply to all employees across those awards where accident pay was granted.

PN334

So that's kind of all I wanted to say, your Honour. We will willingly and happily participate in the process of attempting to address the concerns of the Ai Group through conferencing with the ACTU, but just want to make the point actually, finally, in relation to casuals that the MTA and the VACC organisations did not expressly make submissions, to the best of my recollection, about the fact that casuals should be excluded from the accident pay provision. Without having reviewed their submissions in front of me, and without having them in front of me, but to the best of my knowledge they made no specific submissions excluding casuals from any accident pay entitlement in the vehicle industry, so if there are no further questions, your Honour, they are my submissions.

PN335

THE DEPUTY PRESIDENT: Thank you, Ms Moussa. Mr Chesterman?

PN336

MR CHESTERMAN: Yes. Thanks, Deputy President. The VACC and the Motor Trades actually had discussions with Ms Moussa about the terms of the draft determination, and we'd like to say for a start that, looking at the previous provision which existed under the predecessor award, that the draft determination goes a long way to establishing a provision which is clearer to understand than that which existed under the old award.

PN337

In terms of casuals and the other matters raised it's quite obvious from discussions today that there's going to be some issues relating to maybe a commonality across awards. I did say earlier that I was unaware that casuals weren't included in the provision under our predecessor award but having said that two of the people that were involved in drafting our submissions actually have just returned from leave, so I'll make further inquiries on that. I think that it would be appropriate if I did that to clarify that situation. But basically they're the submissions that I'd want to make apart from the fact that we're open to have further dialogue with the AMWU vehicle division and the Ai Group if we can clarify and simplify the terms of the clause. If the Commission pleases.

PN338

THE DEPUTY PRESIDENT: Thank you, Mr Chesterman. Can I ask that you make those inquiries around coverage of casuals via the existing award provisions or the pre-existing award provisions, if I can put it that way, if you can inform the AMWU vehicle division together with AIG by close of business, Wednesday.

PN339

MR CHESTERMAN: That won't be a problem, Deputy President.

PN340

THE DEPUTY PRESIDENT: Thank you.

PN341

MR CHESTERMAN: Thank you.

PN342

THE DEPUTY PRESIDENT: Mr Ferguson?

PN343

MR FERGUSON: Just one point in that I think it was perhaps floated by the vehicle division that the reference to pro rata payments made deal with the situation where someone returns in some capacity. I don't know that it will because it's a different concept. One is dealing with incapacity in the relevant sense but that's that clause, but what we're talking about is a situation where they might come back on different duties; still being incapacitated in the relevant sense, but performing some sort of other work and as we said that is an issue that was, to some extent, dealt with in the relevant predecessor award which we pointed to, so we'd welcome whatever suggestions are put forward, but I don't think that's the cure. Nothing further.

PN344

THE DEPUTY PRESIDENT: Thank you. Ms Moussa, anything you wish to respond to?

PN345

MS MOUSSA: No, your Honour. Thank you.

PN346

THE DEPUTY PRESIDENT: Okay. All right. Thank you. We might now return to the Timber Industry Award. Mr Malbassa?

PN347

MR MALBASSA: Thank you, Deputy President. So we have had had a chance to confer and this is the position from the Forestry division. Basically we support and adopt the Construction and General's submissions that accident pay entitlement arises where employer is required to pay WorkCover, not where they actually pay it. So we adopt and support Construction and General's position in this regard and will address further in the ACTU's joint submission.

PN348

With respect to relevant rates we believe everything in our draft determination is clear and sufficient. If the Commission is not minded to agree and believes there's some ambiguity, we suggest (indistinct) the determination by saying:

PN349

the usual weekly rate of pay not including over work payments, shift loadings or overtime.

PN350

Which is consistent with the Full Bench decision in paragraph 214. With respect to piece workers the Full Bench decision at 217 requires the parties to file a draft determination in the same form as that previously filed. We've done that in our draft determination. We don't propose to raise substantive new issues at this point. We believe our draft determination is sufficient with the effect of reinstating the previous accident pay entitlement in the pre-formed instrument in line with the Full Bench decision.

PN351

With respect to return to work on modified basis, again, we support the construction in generals position in that the Australian Industry Group's claim is unfounded. We adopt their position in this regard and will address further in the ACTU's joint submission as this is a common issue across all affiliates. That is all, Deputy President.

PN352

THE DEPUTY PRESIDENT: Thank you, Mr Malbassa. Mr Ferguson?

PN353

MR FERGUSON: I rely on previous submissions, but just one issue, it's just been canvassed as the ACTU submission. I took it that we weren't opening the door to another round of submissions in relation to this. The ACTU is sending us some draft words.

PN354

THE DEPUTY PRESIDENT: That's right.

PN355

MR FERGUSON: That hopefully we can reach agreement in relation to it, but it's not an opportunity to re-ventilate the whole case.

PN356

THE DEPUTY PRESIDENT: Yes. I know I think submissions is used very loosely, so ‑ ‑ ‑

PN357

MR FERGUSON: Yes. I just want to � yes.

PN358

THE DEPUTY PRESIDENT: Yes. No, that's fine. Mr Calver, did you wish to say anything?

PN359

MR CALVER: No, your Honour, but I appreciate the clarification from the representative. If it please the Commission.

PN360

THE DEPUTY PRESIDENT: Okay. And thank you for getting those instructions, Mr Malbassa. All right. Mr Calver, please feel free to leave if you wish to now. You know, it's up to you. You're welcome to stay if you like.

PN361

MR CALVER: No, thank you, your Honour. Unless there's anything further from the CFMEU.

PN362

THE DEPUTY PRESIDENT: I think that's called leading with your chin there, Mr Calver. Enjoy the rest of the day.

PN363

MR CALVER: Thank you, your Honour.

PN364

THE DEPUTY PRESIDENT: Just before we move on, Ms Cercha, it was remiss of me not to provide you with an opportunity to comment or speak to your written submissions or to Mr Burns' submissions, or in terms of the MUA's sort of draft orders, so I apologise for that, but is there anything you wish to say?

PN365

MS CERCHA: No, not a problem at all, your Honour. I should have jumped in but I didn't want to stop everyone having a break. I think, from what we've heard this morning, that there's some words to be considered by the ACTU and the AIG. With regards to Mr Burns' submission about our paragraph 8, the insertion of a couple of extra words, we're not going to push that. We just thought it would help to clarify and I think with regard to our outstanding concerns I think they'll likely be addressed through the ACTU providing some draft words on a number of those common issues that were identified in the AIG's submission. Thank you very much for getting back to me, your Honour.

PN366

THE DEPUTY PRESIDENT: Thank you, Ms Cercha. And, again, apologies. Ms Knight, any other awards that you wish to speak to?

PN367

MS KNIGHT: Thank you, your Honour. The Business Equipment Award 2010 the AIG has raised concerns in relation to the entitlement and the relevant rate of pay as well as to casuals. The ASU support the submissions of our affiliate unions that have been put in relation to reaching commonality by conciliation on those issues. In relation to the relevant rate of pay, I apologise, your Honour, I'm just seeking some assistance to check what the pre-reform entitlement was in the Business Equipment Clerical Officers Award, and if I can see your indulgence to just confirm that I'll have an answer for you in relation to what I can say about determining the issues on relevant rate of pay.

PN368

THE DEPUTY PRESIDENT: Okay. All right. I'll come back to you before we finish up today. Hopefully you'll have some clarity around that. Any other awards at all, Ms Knight?

PN369

MS KNIGHT: No other awards, your Honour. Thank you.

PN370

THE DEPUTY PRESIDENT: Okay. Mr Ferguson?

PN371

MR FERGUSON: Nothing further.

PN372

THE DEPUTY PRESIDENT: Okay. All right. We'll move on. Ms Riles?

PN373

MS WILES: Thank you, your Honour. Just for the benefit of the transcript it's actually Wiles, W-i-l-e-s.

PN374

THE DEPUTY PRESIDENT: I apologise.

PN375

MS WILES: No problem. Thank you, your Honour. Look, the TCFUA filed a draft determination on 25 August and, other than in relation to the quantum of weeks, that determination is in identical form to the draft determination filed by the union as part of its original application on 29 September 2014. So in relation to the draft determination the only change is a change from the quantum of 39 weeks to 26 weeks, and other than that there's no further amendment.

PN376

As the TCFUA outlined in its extensive written and oral submissions at the previous hearings the union's original draft determination was crafted based on the terms of the accident pay provisions of the preeminent Federal awards in the TCF industry, however the clause was simplified and shortened for ease of use, also having regard to the accident pay provision in the black coal mining award, and we've maintained that approach in relation to the most recent draft determination filed.

PN377

In relation to the Ai Group's submissions in relation to the TCF award they make a number of submissions in relation to six areas: one is the entitlement to accident pay; the second is calculating the period of weeks; the third is over award payments; the fourth is casual employees; the fifth is pro rata payments; and the sixth is return to work. Many of the submissions raised by the Ai Group in respect to the TCF award are similar in effect to those made in relation to various other awards and as relevant we support and adopt the submissions of the ACTU, the CFMEU, Construction and General, AMWU and the AWU in that respect.

PN378

Just in relation to the entitlement to accident pay and the issue around incapacity, we just note that clause 24.2 our draft determination, which is the preamble part is materially identical to the opening preamble of the accident pay term in the Black Coal Award. Ai Group's contention that the concept of incapacity will invariably lead to disputation regarding the meaning of the term and the circumstances in which it will apply is rejected by the TCFUA. We also not that the concept of incapacity, or the term, existed in all the preeminent TCF Federal awards and for that matter pre-simplified awards, and has operated in practice in the industry over many decades. The Ai Group nor any other employer association has brought any evidence that the operation of accident pay clauses for reduced term incapacity has caused any confusion or disputation.

PN379

Going to the second issue, this is the calculation of the period of weeks. Now, in their submission, the Ai Group rely on their written submissions in respect to the AWU's draft determinations. Now, applying those same submissions to the similar provisions in the TCF award, in essence, we understand that the Ai Group's concerns is that clause 24.2.1 of our draft determination needs to be read in conjunction with clause 24.2.3 and that somehow causes confusion. Again, we reject this contention. As a matter of statutory construction, the accident pay clause must be read as a whole. Further, we note that the structure of, and relationship between, the two provisions is similar to that found in clause 18 of the Black Coal Award.

PN380

Moving to the third issue, which relates to over award payments, in relation to clause 24.2.2 sub-section (2) the AI group seek deletion of the words:

PN381

and weekly over award payment, if any, the combined rate of pay.

PN382

The TCFUA has considered its position, or further considered its position in relation to the AIG's submissions, and in light of the Full Bench decision and the AIG's submissions the union is prepared to concede the AIG's proposal in that respect.

PN383

In relation to the fourth issue which is the issue around casual employees: the Ai Group observe that the TCFUA's proposed draft determination does not expressly exclude casuals from its applications. We say that in all the pre-reform or the major pre-reform Federal awards in the TCF industries casuals were not excluded from the accident pay provisions. The Ai Group have presented no evidence or persuasive submissions as to why casuals should be excluded, and in the context of the modern award objective, casual workers in the TCF industry are almost universally award dependent and low paid. In any event, we say that the decision of the Full Bench is clear in that the accident pay entitlements were intended to apply to all employees. Again, just on the issue of the further discussions here today we obviously support the process outlined by your Honour in terms of the ACTU seeking to draft a common provision in relation to all the determinations.

PN384

In relation to the fifth issue, which is the pro rata payments, again, the Ai Group seek to rely on their written submissions in respect to the AWU's draft determinations. Again, we reject the Ai Group's concerns that there is some confusion as to how the pro rata calculation is made. We say that those concerns are speculative and without foundation. Terms dealing with pro rata payments were contained in all the TCF industry preeminent Federal awards and there's no evidence before the Full Bench that such terms if not operated successfully in practice or are otherwise anomalous.

PN385

In their submissions the AIG at paragraph 37 include an example regarding a part-time worker. We say that that example would have no application in context of the part-time provisions under the TCF award.

PN386

Clause 13 of the TCF award requires that at the time of engagement the employer and a part time employee will agree in writing on a regular pattern of work specifying the hours worked each day, which days of the week the employee will work and the actual starting and finishing times each day.

PN387

And lastly, to the sixth issue which is the return to work issue. Again, the AR Group rely on their written submissions in respect to the AWU's draft determinations. That's at paragraphs 43 to 44 of their submissions.

PN388

Again we say that those concerns are speculative and we say that there's no evidence before the Commission that the return to work provisions have caused any anomalies in the application and operation of award accident pay provisions.

PN389

So to summarise, other than the AIG's proposal for the removal of those words that I indicated in relation to over-award payments we submit that no other changes are necessary to the TCFUA's draft determination.

PN390

And we also support the process outlined by your Honour in terms of the process of the ACTU conferring with us fully about those three matters, being entitlements to accident pay, casual employees and return to work.

PN391

Unless there are any questions those are the submissions of the TCFUA.

PN392

THE DEPUTY PRESIDENT: Thank you, Ms Wiles. Mr Ferguson, is there anything you wish to say?

PN393

MR FERGUSON: Look, only as a point of clarity. We don't in the context of this award argue that this doesn't apply to casuals. The approach we have taken is pointing out that there is an absence of clarity as to how to calculate the entitlement. Our view would be that if it applied in the past then it (indistinct), it didn't and it shouldn't. But we haven't identified that it shouldn't.

PN394

In relation to that and I don't want to harp on the point but we've obviously already addressed the point that the issues around uncertainty and so forth aren't dependent on establishing an evidentiary case in this context.

PN395

We say they arise from the documents themselves and I think we should say that the parties that are making submissions that these things are operating swimmingly, if you will, should be given very little weight in circumstances where all they do is point to an absence of evidence but provide no explanation as to how any of these provisions actually work. And we say there's obvious issues with their drafting. We don't take that further.

PN396

THE DEPUTY PRESIDENT: Thank you, Mr Ferguson.

PN397

MS WILES: Your Honour - - -

PN398

THE DEPUTY PRESIDENT: Ms Wiles.

PN399

MS WILES: Your Honour, could I just make a response to that. I mean, it's really by way of background but I mean the employer parties had nearly twelve months to consider the terms of the draft determinations filed by the unions.

PN400

Early on in the proceedings there was an offer made by the unions to the employer organisations to meet and discuss the terms of our draft determinations and that offer was rejected.

PN401

And certainly from my recollection the employer parties, if any, made very few submissions and certainly provided no evidence about the actual terms of the draft determinations and when the TCFUA was making its submissions I think on the first day of the last batch of the hearings, we went into some detail about the sub-clauses in our draft determination and those matters weren't responded to by the employer organisation in any detail.

PN402

So I reiterate that these provisions effectively have been in operation in the TCF industry for over forty years and one would have thought if there was any major issues about their operation that they would have come to the party's attention and the Commission's attention way before now. If the Commission pleases.

PN403

THE DEPUTY PRESIDENT: Thank you, Ms Wiles. I might just make a general observation. I think there's a fair degree of shifting sands all round in these proceedings so we'll just leave it at that. All right. Mr Moretta, the last cab off the rank.

PN404

MR MORETTA: Thank you, Deputy President. I did provide and filed a written submission this morning so I'm basically going to talk to that and just elaborate on some of those issues in the written submission, especially in light of the discussions that have occurred today. So I'll just be very brief.

PN405

In relation to the ACTU accident pay provision the SDA felt that, you know, the Full Bench had always expressed its desire of a standardised clause of accident pay which would also be consistent with the modern award objective.

PN406

In response to the AIG submissions at paragraph 83, 84, 109, 110 with the regards to the SDA's originating claims, the SDA, yes, had filed simplified draft determinations in support of its applications and they were marked as SDA10 in the proceedings, which represented the entitlements to accident pay in the pre reform awards listed in the SDA's application.

PN407

Now subsequently on 28 May in the proceedings before the Full Bench the SDA confirmed that it would adopt the Exhibit ACTU3 accident pay provision based on the accident pay clause in the black coal mining industry award and which at the time it was viewed, and it is viewed, that it satisfies the modern award objectives.

PN408

The SDA filed this draft determinations based on the ACTU3 provision for the fast food industry award, the mannequins and models award and the storage services and wholesale award on 24 August in order to achieve a standardised clause as what was discussed in those proceedings and consistent with the modern award objective.

PN409

We submit that the ACTU3 accident pay provisions generally in the form sought by the SDA's application as required by the Full Bench and the entitlement as drafted does not diverge in any way from the substantive submissions made by the SDA throughout the entire proceedings and therefore supporting the originating claims.

PN410

The SDA rejects the AIG submission at paragraphs 84 to 85 and 110 to 111 that the removal of the clauses 20.4 and 20.5, and 18.4 and 18.5 from the draft determinations of accident pay that we had submitted, respectfully provides a more generous entitlement, especially in view of the decision in light of the Full Bench with respect to accident pay or an entitlement to accident pay applying to an employee beyond the termination of employment. And also on that basis with respect to the claim that it's a more generous entitlement because of the removal of those two sub-clauses in each of the draft determinations. Let's remember that the Full Bench has determined that the appropriate safety net accident pay entitlement to apply is a period of 26 weeks.

PN411

The period of accident pay that applied in the pre reform awards listed in the SDA's application was a period of 39 weeks. So this is a, let's say, significant reduction to the entitlement of accident pay for those same employees covered by the pre reform awards.

PN412

Furthermore, clause E in relation to the redemption provision is reinstated in the draft determinations filed on 24 August which had been removed and the simplified draft determinations filed on 18 February.

PN413

So I think when you adopt the ACTU3 accident pay provision and look at it in its entirety, that provision is not more generous than compared to the SDA's original claims.

PN414

The SDA rejects the AIG's submission that there is uncertainty and ambiguity in the application of the ACTU3 provision. I know we've had a lot of discussion on that and that will be addressed with the common issues in the next 48 hours.

PN415

Just to reiterate though, Deputy President, that the ACTU3 provision has operated in the black coal mining industry award and its predecessor award for a significant period without difficulty and the SDA will be inclined to adopt the ACTU3 accident pay provision in future reviews of awards, obviously subject to the draft determinations that are ordered in this case.

PN416

In terms of the entitlement to accident pay preamble and incapacity, I have to say that our - probably our originating claims filed on 18 February, clauses 20.1 and 18.1 in the fast food industry award and the storage services and wholesale award, it makes clear that the entitlement to accident pay would occur when an employee is in receipt of the weekly compensation payments under the legislation.

PN417

Also the SDA rejects on the same basis the AIG's claims that there is uncertainty in relation to reference incapacity, in relation to the ACTU3 provision that we've adopted, since the term is read in reference to the relevant workers' compensation legislation.

PN418

Now the heading with the commencement of "period of weeks," the SDA rejects with respect to its submission in particular to the SDA application and the fast food industry award and the mannequins and models and the storage services and wholesale award, the inconsistency between the operation sub-clause (a)(ii) and sub-clause (g), simply because if the AIG read our draft determinations they can see that that consistency as it's been mentioned today was already removed.

PN419

So in other words the commencement of the period of weeks, the 26 weeks, is really determined by sub-clause (g). So there is definitely no inconsistency with sub-clause (a)(2).

PN420

And in terms of the appropriate rate of pay, in the same proceedings that we alluded to and reference is made in terms of the paragraph numbers in the proceedings of this case before the Full Bench but the SDA clarified that the appropriate rate of pay would be adapted to the relevant awards as an employee's usual weekly wage.

PN421

The SDA also clarified in the proceedings that the ACTU3 provisions appropriate way to pay had reflected the draft determinations previously filed by the SDA, especially with the exclusion to overtime and over-award payments and shift allowances where it matched the draft determinations that we had provided in our originating claims.

PN422

The SDA submits that so this is true for the fast food industry award and the mannequins and models award. However, Deputy President, the SDA has also been consistent in its draft determinations for the storage services and wholesale award during the course of these proceedings where the weekly wage in the accident pay provision did include shift allowances but excluded overtime.

PN423

So in response to that, to the AIG's submission and in relation to the storage services and wholesale award, the SDA's draft determinations were drafted having regard to the main predecessor awards where significant employees had the level of entitlement to accident pay reflected in the draft determinations filed on 24 August.

PN424

In response to the AIG's submissions at paragraph 87 and 88 in relation to the relevant rate of accident pay in the fast food industry award the SDA's simplified draft determinations filed on 24 August reflects the ACTU3 provision endorsed by the SDA in the proceedings.

PN425

The SDA also submits that the exclusion of bonus payments, fares, special rates or similar payments, fall within the same exclusion of over award payments. I, looking back at modern awards, couldn't see reference to bonus payments or fares or at least special rates or similar payments so we would say that they, in terms of for the purpose of simplicity, that those terms that we had put in the originating claims are covered by the exclusion of the over award payments.

PN426

And in response to the AIG's submission, paragraphs 26 to 28 in relation to the relevant rate of pay, the SDA rejects a change to the meaning of "accident pay" in sub-clause (b) as proposed by AIG at paragraph 27 for the awards listed in our application and that is where they have proposed the reference to base rate of pay.

PN427

We definitely absolutely reject that inclusion of those terms and as it would be made clear with the application of accident pay to casual employees specially covered by those awards listed in the SDA's application.

PN428

Again we relied on the previous union affiliate's application and submission in relation to casual employees. The draft determination filed by the SDA does not exclude casual employees and they were never excluded in the pre reform awards. In fact, if you look at our current enterprise agreements which are basically based on the awards, casual employees have never been excluded in relation to the provision of the accident pay entitlement in the provisions in the agreements which reflect the accident pay entitlements in the awards, the predecessor awards.

PN429

Also with respect to the pattern of work for casuals the SDA submits that in industries covered by the awards listed in our application, a pattern of work for casuals can always be ascertained over a particular period and the weekly wage can therefore be calculated for the purposes of accident pay.

PN430

In the experience that has been advised to me by organisers of the SDA is that usually the casual � where there are irregular hours of work, and not a lot of irregular hours but where they made change from � in terms of certain periods of the year due to the retail sector's business cycle where usually the average is taken over the preceding 12 months of the casual's hours of work and that's never been a problem in relation to that approach.

PN431

So I've got nothing more further to add to casual employees, simply that we support the ACTU's comments in relation to working out some form of resolution to the drafting.

PN432

Also, can I say with return to work and sub-clause (c) pro rata payments, the SDA rejects the claims made at paragraphs 33 to 38, 43, 44 and 90 at 116 in the IAG submissions that an anomaly will exist in the calculation of accident pay from an employee who engages in returning to work while receiving pro rata weekly payments under the relevant Worker's Compensation.

PN433

The AIG alluded earlier in terms of the scenario that they were contemplating. Can I say, I point the Deputy President and the AIG to look at our submission that was dated on 5 December 2014 where we, the SDA, comprehensively made an analytical analysis of that scenario where they are � I haven't listed � yes, at paragraphs 25 to 50 in that submission so we went meticulously to the scenario as contemplated by the AIG to see what would be the amount of accident pay that would be paid to the employee by the employer and I can tell you, Deputy President, with much confidence and guarantee that there was no anomaly, that no-one would have got paid more than their PIAWW, their pre injury average weekly wage, if I've got that right, but in fact, the accident pay was reduced accordingly.

PN434

So where an employee returned on part time, on light duties, the actual accident pay paid by the employer is reduced accordingly and that calculation is there for the AIG to analyse. And that's really all that I've got to say on those main points.

PN435

In terms of the redemption we rely on the CFMEU's submission and that ends the submission of the SDA.

PN436

THE DEPUTY PRESIDENT: Thank you, Mr Moretta. Mr Ferguson, do you wish to say - - -

PN437

MR FERGUSON: Yes, just briefly. Look, we've received only this morning and it's no criticism of the union, the written submissions. I'm not going to respond to every element of that but take it that we don't necessarily accept of all of that to be right and nor do we necessarily accept some of the factual assertions that he made about practices in industry and so forth. You obviously can't verify them on your feet. I will just speak to some of the crucial points and beyond that we just rely on our written submissions.

PN438

Dealing first with the issue of the change in claim, if you will, and the reliance on ACTU3, you may recall that there was significant confusion on that occasion when that matter was first ventilated. I think it arose when we were about to respond to our feet(sic) and we made the point that it was inappropriate at that point to change the nature of the claim, given we wouldn't have had a proper chance to respond and we wouldn't be able to call on evidence and so forth, and we note that those sorts of concerns were raised in paragraph 215 of the decision and to an extent, the need for further consideration of claims like ACTU3 was acknowledged in paragraph 216 of the decision.

PN439

We made the point that obviously what the SDA are seeking to now do is simply omit clause 18.4, taking the storage services award for an example, 18.4 and 18.5 of the originating claim, because they're the parts that are beneficial to the employers. 18.4 had all sorts of exceptions where the clause would not apply and 18.5 similarly limited the circumstances, for example, where on termination the entitlement would continue.

PN440

That was the basis on which the claim was advanced, originally. That was the case that was run in relation to those clauses. We say that the union ought not be now able to rely on ACTU3 which is, in effect, what they're trying to do. That was the case that was initially advanced. That was the case that was met and those provisions should be inserted into the relevant award.

PN441

Certainly we're not aware of what justification was mounted to support the removal of those provisions and on that basis we say they should be retained.

PN442

There is nothing else. We just rely on our written submissions.

PN443

THE DEPUTY PRESIDENT: Okay. Thank you, Mr Ferguson. Mr Moretta, do you wish to respond to anything?

PN444

MR MORETTA: No, there's no further response. I think I made it clear in terms of my submission what our position was.

PN445

THE DEPUTY PRESIDENT: Thank you. Look, just before we wrap it up, can I do two things. One, there's just a few technical drafting issues that I might just bring to the parties' attention in respect of some relevant awards. And the first issue applies both to the timber industry award and also to the mobile crane hiring award.

PN446

In both cases they use � in the timber industry award it uses language, "make up pay". And in the mobile crane hiring award, "accident make up pay". Just a question I'll put to the parties as to whether "accident pay" might be the terminology that is used consistently across awards.

PN447

In respect of mobile crane hiring award, clause 14.5, sub-clause (k) of the draft determination defines the term, "part of a week payment of accident make up pay" but it appears as though that term doesn't appear elsewhere in the clause so I just � I may have missed it but if it's not referred to, just a question mark as to whether that definition is relevant.

PN448

In respect of the labour market assistance industry award, Mr Crawford, I think that's one of yours. Whose is it, can I ask?

PN449

MR CRAWFORD: Is that ASU?

PN450

THE DEPUTY PRESIDENT: ASU. Ms Knight, is that one of yours?

PN451

MS KNIGHT: That's correct.

PN452

THE DEPUTY PRESIDENT: Can I just � clause 18.1 just doesn't seem to make sense. Now it might be captured by some of the sort of work that the ACTU is doing but you might just sort of have a close look at that, whether there's some words missing or it's just an amalgamation of provisions which just don't hang together well. If you could do that.

PN453

And finally, in respect of the TCF award, Ms Wiles, clause 24.2 sub-clause (g), I just wonder whether the reference there to, "pay to public holiday" should be, "to a paid public holiday". But they're just some technical issues if I can raise it in that way.

PN454

The other thing I'd just like to do is just perhaps wrap up in terms of who's going to do what in the aftermath of today. So firstly dealing with the work that the ACTU is going to co-ordinate with affiliates is, by close of business Wednesday the ACTU will provide to employer parties, draft words around three broad issues: when the entitlement to accident pay kicks in, around the issue of how accident pay is calculated for casuals and also around the issue of how the issue of return to work is dealt with.

PN455

Can I perhaps also add into return to work, "pro rata", as well. And employer representatives are to respond by close of business Friday around those issues.

PN456

In respect of the horticulture award, the Voice of Horticulture, together with NFF, NSW Farmers' Federation, AIG if it wishes, will by close of business Wednesday, provide advice as to how the Workers' Compensation system deals with seasonal and/or casual workers in terms of payments beyond when their employment terminates and Mr Crawford will provide anything in response to that advice by close of business on Friday.

PN457

Mr Nguyen will by close of business Friday, provide some advice as to what proportion the 468 respondents to the relevant pre reform award represented in terms of industry employment, with AIG to provide anything it may wish to in response by close of business next Tuesday.

PN458

And I think that covers off all the actions arising, coming out of today unless I've missed anything. Can I thank you all for your assistance this morning.

PN459

MS KNIGHT: (Indistinct).

PN460

THE DEPUTY PRESIDENT: Sorry?

PN461

MS KNIGHT: Sorry, your Honour. I think � I'm just interjecting for � Ms Knight, I (indistinct) one moment.

PN462

THE DEPUTY PRESIDENT: Ms Knight, sorry. It's remiss of me again. Go for it.

PN463

MS KNIGHT: That's okay, your Honour. I don't think I'm going to say anything that will surprise you. In relation to relevant rate of pay for the business equipment awards 2010, I just wanted to affirm that the relevant predecessor instruments were business equipment industry clerical officers' award 2000 and I neglected the business equipment industry technical officers' award 2000.

PN464

The pre reform entitlement for clerical officers at 18.2.1(d) of the predecessor instrument does state award rate of remuneration and on that basis the AFC concedes that the pre reform entitlement did not include above award entitlements. And that concludes the submissions on business equipment for the ASU.

PN465

THE DEPUTY PRESIDENT: All right. I suggest we leave it there and I'll await the sort of further advice in terms of what develops over the course of the next � or the remainder of this week and perhaps I'll also have a conversation with Vice President Watson in terms of not only the issues raised by coal industry employers which will be relevant to the CFMEU in respect of the black coal mining industry award but also to the extent that, you know, developments don't go smoothly over the next few days and what might be the next few steps, or the next steps around that, as well. So thank you very much, again.

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Fair Work Commission Transcripts

AM2014/190, Transcript of Proceedings [2015] FWCTrans 577 (20 October 2015)