AM2014/201, Transcript of Proceedings [2015] FWCTrans 580 (20 October 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052544

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

AM2014/201
AM2014/202
AM2014/205
AM2014/210

s.156 - 4 yearly review of modern awards

Four yearly review of modern awards Sub group 2D

AM2014/201 Corrections and Detention (Private Sector) Award 2010 [MA000110]

AM2014/202 Fire Fighting Industry Award 2010 [MA000111]

AM2014/205 Horse and Greyhound Training Award 2010 [MA000008]

AM2014/210 Racing Industry Ground Maintenance Award 2010 [MA000014]

Sydney

3.08 PM, WEDNESDAY, 7 OCTOBER 2015

PN1

JUSTICE ROSS: Can I have the appearances for the four awards listed for 3 pm today, starting in Sydney?

PN2

MR M ROBSON: Robson, initial M, for the United Voice.

PN3

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

PN4

JUSTICE ROSS: Thank you.

PN5

MR B FERGUSON: Ferguson, initial B, for the Ai Group. With me is MS R BHATT. We're not appearing in the Firefighting Award.

PN6

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

PN7

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

PN8

JUSTICE ROSS: Thank you, and in Adelaide?

PN9

MS E VAN DER LINDEN: Van der Linden, initial E, for the South Australian Chamber of Commerce and Industry trading as Business SA, and I'll just be appearing in the Racing Industry Ground Maintenance Award.

PN10

JUSTICE ROSS: Well, that's the last one on the list. Does anyone have a problem if we deal with that one first? Are the rest of you involved in all of them? Pretty much. No, you're just - - -

PN11

UNIDENTIFIED SPEAKER: No, your Honour. I'm only for corrections and firefighting.

PN12

JUSTICE ROSS: All right, you're sort of stuck in the middle really. We'll deal with racing and then corrections and firefighting?

PN13

MS VAN DER LINDEN: Thank you, your Honour.

PN14

JUSTICE ROSS: Let's deal with the Racing Industry Ground Maintenance Award first. Can I take you to the revised summary of submissions?

PN15

MS VAN DER LINDEN: Yes.

PN16

JUSTICE ROSS: And the first item, Business SA noting that the award be updated and it will be in line with the Full Bench decision. In relation to item 2, Business SA is proposing to add the words "over a four week period" to clause 6.3. The AWU notes that it doesn't oppose it but says that it appears to be unnecessary. Why do you say that?

PN17

MR CRAWFORD: We don't really have an issue, your Honour. We'd agree to that.

PN18

JUSTICE ROSS: All right, is everyone else in the same position?

PN19

MR FERGUSON: No, and I don't think in this case we addressed this in our submissions, but we do oppose that. I don't want to speak to all the detail of it but we think - - -

PN20

JUSTICE ROSS: Well, now is the time to speak to the detail of it.

PN21

MR FERGUSON: Yes, I'm just trying to remember it and it has been a long day. I think our concern, if I recall correctly, arises from the interaction with the other clause relating to the definition of full‑time employees, and perhaps those words aren't necessary in this instance. We say that's because it's a definition of full‑time employment you shouldn't have reference to the average of 38 ordinary hours of work. That is dealt with in the hours of work clause.

PN22

JUSTICE ROSS: But 6.3 does say:

PN23

A full‑time employee is engaged to work an average of 38 ordinary hours per week.

PN24

MR FERGUSON: But the difficulty, by putting it in this provision here it would mean that if you didn't average them over 38 ordinary hours, over a four week period, they may no longer be defined as a full‑time employee. So that's why you don't need to - - -

PN25

JUSTICE ROSS: The four week period is dealt with in 8.1(a).

PN26

MR FERGUSON: Yes.

PN27

JUSTICE ROSS: Yes, I see.

PN28

MR FERGUSON: So it can be up to that period, and that's right that it has that in the ordinary hours of work provisions. We don't need to assume for the purposes of the definition that everyone is.

PN29

JUSTICE ROSS: That everyone is working it averaged over a four week period.

PN30

MR FERGUSON: Because you may be narrowing the definition.

PN31

JUSTICE ROSS: Yes, you might be restricting it. No, I follow.

PN32

MR FERGUSON: That's right.

PN33

JUSTICE ROSS: What does Business SA say about that, having heard Ai Group's position?

PN34

MS VAN DER LINDEN: Yes, look I think that's possibly a valid argument. Obviously it wasn't in their submissions so I haven't had time to have a look at it closely enough. If this does go to conference then it may be something I can have a look at before the conference and we can have a look at it. But I'm pretty confident it's something that can be resolved.

PN35

JUSTICE ROSS: Yes, I'm not sure this award is one that needs to go to a conference.

PN36

MS VAN DER LINDEN: Okay.

PN37

JUSTICE ROSS: But I can be persuaded to the contrary. But most of the issues are fairly straightforward.

PN38

MS VAN DER LINDEN: Sure.

PN39

JUSTICE ROSS: And save for this one, have been articulated in the written submissions. Can I leave item 2 then on the basis that - am I right in assuming, Mr Crawford, that the AWU really doesn't care one way or the other particularly whether this goes in or not, and if Ai Group can talk to Business SA and let me know within seven days what the position is. But look, on the face of it I think there may be some merit in what Ai Group is putting.

PN40

MR CRAWFORD: Yes, I might just note, your Honour, I probably got convinced a bit by Mr Ferguson, in fairness.

PN41

MR FERGUSON: It occasionally happens.

PN42

JUSTICE ROSS: Well, you've got a reservation in your submission anyway because you're not sure why it's necessary and Business SA can consider their position. In relation to item 3 is that item agreed?

PN43

MR FERGUSON: Yes.

PN44

MR CRAWFORD: Yes.

PN45

MS VAN DER LINDEN: Yes.

PN46

JUSTICE ROSS: All right. In relation to item 4, that seems to be agreed as well?

PN47

MR CRAWFORD: Yes.

PN48

MR FERGUSON: Yes.

PN49

JUSTICE ROSS: Item 5 and item 6 are agreed?

PN50

MR FERGUSON: Yes.

PN51

JUSTICE ROSS: And then we've got seven and eight turn on I suppose the implementation of the Full Bench decision.

PN52

MR FERGUSON: That's right.

PN53

JUSTICE ROSS: About ordinary hours versus minimum.

PN54

MR FERGUSON: Yes.

PN55

JUSTICE ROSS: And then it looks as if item 9 is agreed?

PN56

MR CRAWFORD: Yes.

PN57

MR FERGUSON: Yes.

PN58

JUSTICE ROSS: Item 10 is again that minimum versus ordinary hourly wage. Then item 11, the late payment, everyone says what they say about that. Is there anything anyone wants to add? The essence of the AFEI's position is that the current wording of the clause incorrectly translates the original drafting of the term that was contained in the AIRC exposure draft. I've taken from the submissions that there's broad agreement that the current provision is a bit odd. There's a slight difference of view between the AWU and the employers about how you might fix that, but that's really the nub of the issue. All right, item 13, is that agreed? I think it appeared to me that everyone was regarding that as an expense‑related allowance?

PN59

MR CRAWFORD: Yes.

PN60

MS VAN DER LINDEN: Yes.

PN61

JUSTICE ROSS: All right. Item 14 is again this issue of the July decision, the minimum wage and the ordinary hourly rate. Item 15.

PN62

MR CRAWFORD: I agree that we'd agree to the AiG proposal there.

PN63

JUSTICE ROSS: All right, so you'll agree with AiG?

PN64

MR CRAWFORD: Yes.

PN65

JUSTICE ROSS: So is that an agreed item? Does anyone have a different view? Item 16, is that agreed?

PN66

MR FERGUSON: It appears to be.

PN67

MR CRAWFORD: Yes.

PN68

MS VAN DER LINDEN: It appears to be.

PN69

JUSTICE ROSS: Item 17, that again was the July Full Bench, as is item 18. Item 19, look it appeared as if that's a matter that can probably be dealt with by the annual leave Full Bench in considering the application of the model terms in this award.

PN70

MR FERGUSON: Yes.

PN71

JUSTICE ROSS: And look, if that turns out not to be the case it can be brought back here.

PN72

MR FERGUSON: Yes, we might just note that we're opposed to the Business SA proposal but not to that course of action.

PN73

JUSTICE ROSS: All right.

PN74

MR FERGUSON: I just don't know that our submissions actually identified it.

PN75

JUSTICE ROSS: No. Well, I'll note in the updated version that - so your position is you're opposed to the Business SA proposal?

PN76

MR FERGUSON: Yes.

PN77

JUSTICE ROSS: Item 20, again minimum versus ordinary. Item 21, look part of this is the ordinary hourly rate versus the minimum. Business SA says the wage tables are of concern. What is your concern in relation to them?

PN78

MS VAN DER LINDEN: My understanding of this matter was that there was a couple of the rounding issues were right at the very beginning. There was a bit of conflict between how for example the Fair Work Ombudsman rounded the - our historical review on how wages were rounded and how the Fair Work Commission had rounded them in the tables. My understanding is that that has actually been resolved now, that there's a consistent approach across all of the awards. This is a matter which was raised I must - and this isn't a cop out by any means - but prior to me starting at Business SA. So that's my understanding is that it has now been resolved because there's a consistent approach for all of the rounding of the awards. I think it just resulted from the fact that there didn't used to be wage tables in the awards, so I would be happy for that one to be withdrawn.

PN79

JUSTICE ROSS: Is 23 agreed?

PN80

MR FERGUSON: Yes.

PN81

MR CRAWFORD: Yes.

PN82

JUSTICE ROSS: And 24?

PN83

MS VAN DER LINDEN: Yes.

PN84

MR FERGUSON: Yes.

PN85

JUSTICE ROSS: Twenty-five, 26 and 27 appear to be agreed?

PN86

MR FERGUSON: Yes.

PN87

JUSTICE ROSS: And the same with 28. Does anyone have a different view? 29, look I think Ai Group and Business SA correctly point out that the late payment of wages issue is a penalty not an allowance. The AWU says there should be some reference to it but perhaps properly described. That seems to be the essence of it.

PN88

MR CRAWFORD: I'd be prepared to withdraw that, your Honour.

PN89

JUSTICE ROSS: All right, and I'm starting to think Business SA and Ai Group may need to get together a bit more frequently.

PN90

MR FERGUSON: Yes.

PN91

JUSTICE ROSS: The last item is really an argument between the two of you. Does the AWU have a view about this issue?

PN92

MR CRAWFORD: No, not really, your Honour.

PN93

JUSTICE ROSS: Well perhaps we can deal with this on the same basis as the earlier matter. If I can leave it to Ai Group and Business SA to have a discussion in relation to this issue, and see if one of them can persuade the other, and if you can let me know within seven days and we'll post that on the site and include it in the revised summary. Is there anything further in relation to that matter?

PN94

MR CRAWFORD: There isn't, your Honour.

PN95

JUSTICE ROSS: Yes?

PN96

MR CRAWFORD: But can I just check in terms of potential conferences, I think for seafood processing and aquaculture? Are they occurring tomorrow or they're not?

PN97

COMMISSIONER BULL: No, no, we won't be able to - I'm available but I don't think you are, are you, or anybody has said that they're available?

PN98

MR CRAWFORD: I was available but I think we only firmly set 9 am for the Alpine Resorts Award and we left the others in the air.

PN99

MR FERGUSON: I think that's right.

PN100

COMMISSIONER BULL: That's correct, yes. Yes. Yes, I was intending to list the other two at a later date.

PN101

MR CRAWFORD: Okay. Thank you.

PN102

COMMISSIONER BULL: Yes, all right.

PN103

JUSTICE ROSS: Can we go to Corrections and Detentions Private Sector Award, and can I go to the revised summary and just go through the various items.

PN104

MR ROBSON: Excuse me, sir, before we begin?

PN105

JUSTICE ROSS: Yes?

PN106

MR ROBSON: Might I say something?

PN107

JUSTICE ROSS: Sure.

PN108

MR ROBSON: United Voice hasn't filed submissions in this matter and that's purely by mistake. We actually completely missed one and this is our fault. We're supporting the submissions of the AWU.

PN109

JUSTICE ROSS: All right.

PN110

MR ROBSON: But we ask to participate simply because we are the only union with coverage in the private sector detention. Thank you.

PN111

JUSTICE ROSS: All right, as we go through it if there's anything you want to add to what the AWU has said, or if you've got a different position or you want an opportunity to put something in, in relation to an item, just let me know as we go through it, okay?

PN112

MR ROBSON: Thank you, your Honour.

PN113

JUSTICE ROSS: The first item is a proposal by Ai Group which is really the insertion of "ordinary hours" after "38" in clause 6.4(b)(i) to be consistent with clause 6.3. Is there any opposition to that?

PN114

MS GHERJESTANI: We note that in the current award the words "ordinary hours" don't appear either. However just to ensure consistency between the clauses, we don't object to it.

PN115

JUSTICE ROSS: All right. If we go to item 2.

PN116

MS GHERJESTANI: The AWU does not oppose.

PN117

JUSTICE ROSS: So that item is agreed?

PN118

MS GHERJESTANI: Yes.

PN119

JUSTICE ROSS: Item 3?

PN120

MS GHERJESTANI: We're not opposed to retaining the current wording of the clause.

PN121

JUSTICE ROSS: Consistent with Ai Group's submission. Item 4.

PN122

MS GHERJESTANI: We do not agree with the Ai Group.

PN123

JUSTICE ROSS: This is the application of the span of hours issue to part-time day workers. My recollection is Ai Group's submission goes to the language of the clause. It says it only applies to full‑time employees. Can I take you to two things? One, you also make the submission I think in your August submission at paragraph 80 that you say that it's only to the extent that such provisions apply to them. If paragraph 8.2(a) does not apply to part‑time day workers then what work does paragraph 14.2(a) do? Because it refers to - you'll recall that paragraph 14.2(a) talks about, "A full‑time" - relevantly for our purpose:

PN124

A part‑time employee is paid at overtime rates for any work done outside the spread of hours set out in clause 8.

PN125

The only place in clause 8 that deals with the spread of hours is 8.2(a), and can I also take you to 13.1, span of hours, and it says, "The day span is between 6 am and 6 pm". And it says, "In this award a span refers to - - - ".

PN126

MR FERGUSON: Yes, I'd like to think through some of that but looking, for example, at the first point in relation to 14.2.

PN127

JUSTICE ROSS: Yes.

PN128

MR FERGUSON: It makes the point that:

PN129

Full‑time or part‑time is paid overtime rates for any work done outside the spread of hours or rostered hours.

PN130

Now I think it might not be clear that both of those second terms, spread of hours and rostered hours, applies to both full‑time and part‑time. It may be that one simply applies to one - I would like to think through the points you've raised.

PN131

JUSTICE ROSS: Sure, yes.

PN132

MR FERGUSON: Before altering it.

PN133

JUSTICE ROSS: Yes.

PN134

MR FERGUSON: And I note there's one other party that seems to be taking issue with this.

PN135

MS GHERJESTANI: Yes.

PN136

MR FERGUSON: So we could perhaps have a discussion about it.

PN137

JUSTICE ROSS: With the AWU?

PN138

MR FERGUSON: With the AWU.

PN139

JUSTICE ROSS: Now United Voice is supporting the AWU so - - -

PN140

MR FERGUSON: Yes.

PN141

MR ROBSON: We are supporting the AWU in this.

PN142

JUSTICE ROSS: But I think you need to look at 13.1 as well.

PN143

MR FERGUSON: 13.1.

PN144

JUSTICE ROSS: And just see where you go to in relation to that. But perhaps if you can let me know.

PN145

MR FERGUSON: Yes.

PN146

JUSTICE ROSS: In seven days or so. Item 5. Yes?

PN147

MS GHERJESTANI: We think that the words "subject to clause 8.2" actually clarify the clause and we don't think that it should be deleted or that it's unnecessary.

PN148

JUSTICE ROSS: Yes. In Ai Group's submission of 4 March paragraph 7 you say that:

PN149

The insertion of these words may give rise to confusion.

PN150

I'm not following why that would be the case.

PN151

MR FERGUSON: Look, I think we were looking at the interaction between 8.1 and 8.2(a) - sorry, 8.1(a) and 8.2(a) and 8.1(a) provides in the second sentence that that provision "operates subject to the terms of this award". Then 8.2(a) being another term of this award says it "operates subject to 8.1(a)". Now we might have lost something - - -

PN152

JUSTICE ROSS: Yes, but if you don't have the words "subject to clause 8.1" then are you suggesting that (b) doesn't apply? That you can be required to work up to 10 ordinary hours per day? What is the interaction between that and 8.2(a)?

PN153

MR FERGUSON: I must say I might need to take a few minutes and come back to you just a little bit later today, just to sort of read through this.

PN154

JUSTICE ROSS: All right.

PN155

MR FERGUSON: I just don't want to do it on the hop.

PN156

JUSTICE ROSS: No, no, that's fine. Item 6, this is the proposition that the rest breaks in 9.7 are in substitution for the unpaid breaks in 9.1.

PN157

MS GHERJESTANI: We oppose that, your Honour. 9.1 specifically says it's a meal break, it's unpaid. 9.7 is a 10 minute rest break that's provided to workers, and they're two different types of breaks.

PN158

JUSTICE ROSS: Then what do the words "unless clause 9.7 applies" mean, because that's also in the current award?

PN159

MS GHERJESTANI: I have looked at those words that say "unless 9.7 applies" and it just doesn't make sense for an employee to only get the 10 minute break but not the meal break.

PN160

JUSTICE ROSS: The difference is they get the 10 minute crib break if they're on the roster, the shift roster, but it's paid time whereas the other meal break is unpaid. So it's a crib break taken during the shift of at least 10 minutes.

PN161

MS GHERJESTANI: So an employee would be entitled to that crib break for 10 minutes?

PN162

JUSTICE ROSS: At least 10 minutes.

PN163

MS GHERJESTANI: At least 10 minutes.

PN164

JUSTICE ROSS: Paid time.

PN165

MS GHERJESTANI: Which is paid.

PN166

JUSTICE ROSS: If they're a shift worker. That's what I've taken the words:

PN167

Employees working in accordance with the shift roster -

PN168

So that's really shift workers:

PN169

- will be granted rest breaks of at least 10 minutes in duration, such breaks to count as ordinary time.

PN170

So it's talking about a paid crib break, in the old language, I think. But I think the difficulty for your position is that you're reading 9.1 and 9.7 as if the words "unless clause 9.7 applies in clause 9.1" weren't there.

PN171

MR FERGUSON: It'd just provide different entitlements.

PN172

JUSTICE ROSS: Well do you want to have a think about your position and United Voice and perhaps let me know in seven days, and let's see where we go with item 6.

PN173

MR FERGUSON: There's one matter I was going to raise at the start but I thought we'd work through it, but I think one of the difficulties we might continue to have is that the unions haven't necessarily put on their position in writing in relation to some of our claims. We were initially going to suggest a conference. I didn't want to keep going round - - -

PN174

JUSTICE ROSS: Yes, well let's - we can certainly have a conference in relation to the issues that we've canvassed but let's see if we can clean up a few of them on the way through.

PN175

MR FERGUSON: Yes.

PN176

JUSTICE ROSS: Can I ask, there are AWU claims in relation to 7 and 8, are they still being pressed?

PN177

MS GHERJESTANI: Your Honour, at this stage we'd like an opportunity to think about that and I can get back to the AIG and the Bench within seven days.

PN178

JUSTICE ROSS: Then we'll have a conference at some point after seven days so we've clarified some of the issues. Clause - yes, the dog handlers allowance. This has generated a bit of excitement. Item 9, if I can deal with the Ai Group's first point. You say that it introduces a new obligation on employers and I wasn't sure how. What is the new obligation?

PN179

MR FERGUSON: I have to confess, we're just going to have to look at it again. My memory has failed me in relation to this.

PN180

JUSTICE ROSS: Then if you can take it on notice and we'll deal with it at the conference.

PN181

MR FERGUSON: Yes.

PN182

JUSTICE ROSS: There's no - item 10 seems to be agreed. It's just adding the word "and security" after the final bullet point, and that's consistent with the current award. Is that right?

PN183

MR FERGUSON: Yes.

PN184

JUSTICE ROSS: Item 11, that was really in response to the question posed in the exposure draft and the parties seemed comfortable with the position taken in the draft and that doesn't require any amendment. In relation to item 12, does the AWU have a position in relation to this issue, or United Voice?

PN185

MS GHERJESTANI: Your Honour, we do not have any concerns with the current wording of the clause being retained. That's that the AIG has - - -

PN186

JUSTICE ROSS: Yes.

PN187

MR FERGUSON: It's a situation where it's currently payable if the employee's required to be on duty as opposed to if they're just on duty.

PN188

JUSTICE ROSS: Yes. Look, I realise that's what the current award says but they were only getting the allowance when they're on duty.

PN189

MR FERGUSON: Well and where they've not merely been working as such but where they've actually been required to be on duty.

PN190

JUSTICE ROSS: Yes, but (iv) provides - (iv):

PN191

An employee will be paid an allowance if on duty away from their normal place of work.

PN192

Well they're only going to be on duty if the employer's - - -

PN193

MR FERGUSON: Look, I take the point that it's a subtle point but - - -

PN194

JUSTICE ROSS: It certainly is subtle.

PN195

MR FERGUSON: I think there is a distinction in that one would be where there's been a direction, if you will, by the employer to be on duty, not merely the performance of work. I'm not sure that it adds a complexity by saying that you have to be required to be.

PN196

JUSTICE ROSS: So you would put - do I take it that you would all be comfortable if it read:

PN197

An employee will be paid an allowance if required to be on duty away from -

PN198

MR FERGUSON: Yes.

PN199

JUSTICE ROSS: Item 13 is probably to be dealt with by the award flex Full Bench?

PN200

MR FERGUSON: Yes.

PN201

JUSTICE ROSS: In relation to item 14, do I take it - well Ai Group and the AWU seem to be in agreement. Do I take it from that that there's no need for any amendment to the exposure draft?

PN202

MR FERGUSON: Yes.

PN203

JUSTICE ROSS: Item 15. I had a bit of trouble following this point, Mr Ferguson. What is the change you're seeking?

PN204

MR FERGUSON: I see, so I think the issue is that clause 15.1 will end up being deleted because it's a summary and I think where we landed was that they weren't going to be included. The problem then is 15.2(a) refers to 15.1, rather than the relevant provisions of the Act.

PN205

JUSTICE ROSS: So it's a shift worker for the purposes of section blah blah.

PN206

MR FERGUSON: Yes, whatever.

PN207

JUSTICE ROSS: Of the NES, is that the proposition?

PN208

MR FERGUSON: That's right, that's right, your Honour.

PN209

JUSTICE ROSS: I see. So is it section 87(1)(b), is that - - -

PN210

MR FERGUSON: Yes, it is.

PN211

JUSTICE ROSS: A shift worker for the purpose of section 87(1)(b) is an employee who et cetera.

PN212

MR FERGUSON: Yes, that's right.

PN213

JUSTICE ROSS: Does anyone have any problem with that? Consequentially, 15.1 would be deleted consistent with our earlier decision that we wouldn't be summarising the NES. Is that the essence of it?

PN214

MR FERGUSON: Yes, yes, your Honour, that's correct.

PN215

JUSTICE ROSS: Ms Gherjestani, do you have anything you want to put about that?

PN216

MS GHERJESTANI: Not at this stage, your Honour.

PN217

JUSTICE ROSS: Well this - you might not get better than now but we will be having a further conference in relation to this issue, so you can come back to it then.

PN218

MS GHERJESTANI: I will come back to it.

PN219

JUSTICE ROSS: Item 16 is agreed, is that right? It's a typographical error.

PN220

MR FERGUSON: Yes, that's right.

PN221

JUSTICE ROSS: So there are some of the matters that have been identified that you'll come back to me in seven days, just clarifying your position and whether certain items are pressed. Once I've received that, we'll look to have a conference. It will probably be the last week in October, in Sydney after the hearing of the penalty rate case on one of those days.

PN222

MR FERGUSON: There are two days that we've just listed conference for the Road Transport Awards for the 28th and 30th.

PN223

JUSTICE ROSS: I'll make sure that it won't be on those days. Just bear with me for a sec. I'll come back with some dates before we adjourn. I think the next award is the Firefighting Award. I think let's - before we really get into the Firefighting Award at all, there have really only been two submissions put. The AWU and the MFB and the submissions pass like ships in the night. The MFB doesn't respond to any of the questions in the exposure draft or to the AWU's submissions. Their claim essentially is to insert part-time work in the award. Stripped back, that's what their submission argues. The UFU has not put anything in and I would have thought they would have had an interest in this award.

PN224

I think the safer course is to - unless there's anything you want to correct, Ms Gherjestani, in relation to the summary, the safer course would be to have a conference and see if we can get all the parties along, and see where they're up to. All right?

PN225

MS GHERJESTANI: That's sounds - - -

PN226

JUSTICE ROSS: Because I think you're the only representative here with an interest in that award.

PN227

MR ROBSON: I'm sorry sir, we do have an interest in the Northern Territory.

PN228

JUSTICE ROSS: Right. Because of your coverage?

PN229

MR ROBSON: Yes.

PN230

JUSTICE ROSS: Okay. Well, we'll make sure that United Voice, the AWU, the UFU and the MFB and it will be generally open to any other State or Federal fire service that wants to attend and we'll have a conference in the next few weeks. All right?

PN231

And if we can deal with the Horse and Greyhound Training Award.

PN232

MR ROBSON: Excuse me, so I might withdraw because I don't have an interest.

PN233

JUSTICE ROSS: Sure.

PN234

MR ROBSON: Can I please be kept in any email discussions about confidence in the Corrections and Fire Fighting Awards, please?

PN235

JUSTICE ROSS: Sure. They'll be listed in any event.

PN236

MR ROBSON: I believe that your associate would have my email address. I can contact her.

PN237

JUSTICE ROSS: Okay.

PN238

MR ROBSON: Thank you.

PN239

JUSTICE ROSS: All right, thanks. The last award is the Horse and Greyhound Training Industry Award. If we go to the award specific items, item 4, that seems to be agreed. Is that's correct?

PN240

MR FERGUSON: Yes.

PN241

JUSTICE ROSS: Item 5?

PN242

MR FERGUSON: I think there's two elements of that that we oppose. There's the AWU claim in relation to notifying employees of relevant matters before the commencement of employment. And then there's the exposure draft proposal to require employers to notify employees of the terms of their engagement.

PN243

JUSTICE ROSS: Yes.

PN244

MR FERGUSON: So both there are substantive changes that shouldn't be made.

PN245

JUSTICE ROSS: Well, let me just go to the first one. If the clause doesn't specify when the employer will inform them, what utility will it have? I understand why you'd want to say before their employment, but presumably, upon the commencement of their employment or as soon as practicable thereafter. If you don't have something like that, what's the utility of a clause?

PN246

MR FERGUSON: I think the opposition would be the first one was in relation to whether you could have an award clause requiring obligations before they're actual employees.

PN247

JUSTICE ROSS: Sure, because they're referred to as employees, yes.

PN248

MR FERGUSON: And we thought about the bigger issue in the sense that it may be a reasonable proposition to say that there should be some timeframe around it, as soon as practicable. That might overcome some of our issues. We wouldn't want, you know, a time issue by not happening straight away, meaning someone's in breach.

PN249

JUSTICE ROSS: Yes.

PN250

MR FERGUSON: But one would think these things would probably be clarified within short order.

PN251

JUSTICE ROSS: But also, in the normal course, they're going to be told, "We're going to employ you as a full-time employee in classification X". You're going to be whatever you're going to be. And I understand your concern about the terms of their engagement being, you know well, it's an extension of a current award but it also runs the risk of being a bit open-ended.

PN252

MR FERGUSON: Yes. And something that people may not necessarily address immediately either, as we know in practice.

PN253

JUSTICE ROSS: Yes. But they'd be more likely to be told whether they're part-time, full-time or casual and what broad position they've got.

PN254

MR FERGUSON: Certainly more likely, and if there was some words around just making sure that you weren't automatically in breach if it didn't happen straight away, that would probably not that we'd thought about that but that may well address our concerns.

PN255

MS GHERJESTANI: Well, generally when an employee, anyone who applies for a position would apply the position would clearly state you're a casual, we're looking for a casual, full-time or part-time.

PN256

JUSTICE ROSS: Yes.

PN257

MS GHERJESTANI: So it does occur before you commence employment. And a number of awards have that provision, before commencement of employees, they will be told. And the Aluminium Award is one award which has that provision. So we are just seeking to make that clause clearer, rather than leave it ambiguous and vague.

PN258

JUSTICE ROSS: All right. Well, we'll see how we go with the rest of it, but one option is, having regard to what's been put, we can include a variant in a revised exposure draft and give the parties an opportunity to have a look at it.

PN259

MR FERGUSON: We'd just like that opportunity just to think through that.

PN260

JUSTICE ROSS: Yes, I know. Certainly, I understand that.

PN261

MR FERGUSON: Yes.

PN262

JUSTICE ROSS: And the AWU will want the same opportunity and the ATA is not here at the moment. So that would also deal with their any issues they might have. Probationary employment.

PN263

MS GHERJESTANI: That issue's been resolved.

PN264

JUSTICE ROSS: That's been resolved? On what basis?

PN265

MS GHERJESTANI: The Full Bench decision.

PN266

JUSTICE ROSS: Well, the AFEI's submission came in after the Full Bench decision. Have the parties discussed it and they've resolved it on that basis?

PN267

MR FERGUSON: No, I don't think it was actually in discussions between the parties.

PN268

JUSTICE ROSS: Okay. Well, in any event, they're dealing with two separate things. The Full Bench decision dealt with the NES inconsistency issue, not this issue and there'll be an order finalising the NES issue shortly, but there's still a question of whether the clause remains, and if so, why.

PN269

MR FERGUSON: In its entirety.

PN270

JUSTICE ROSS: So perhaps if we, with this one, if we await the determination variation arising from the NES inconsistency case and then give the parties an opportunity to say what they want to say about whether that's retained or not.

PN271

MR FERGUSON: Yes.

PN272

JUSTICE ROSS: All right? Item 7 seems agreed.

PN273

MR FERGUSON: Yes.

PN274

JUSTICE ROSS: Item 8, well, I think we've got the AFEI and the AWU agreeing to remove the, "May be terminated at any time". We've got the ATA's proposal which no one seems to support and AI Group, in their initial submission, saying that the words simply refer to an employee's ability to terminate the employment of a casual without the requirement to give notice, and to that extent, to argue it's consistent with Section 123. Well, if it's in the NES, why do we need it in the award?

PN275

MR FERGUSON: I hadn't anticipated arguing the substance of the matter today, but I think one of the issues might be that I don't want to go- - -

PN276

JUSTICE ROSS: Well, the problem is everyone's had a crack with submissions. At some point we're going to make decisions.

PN277

MR FERGUSON: Yes. One issue may be that it actually serves to clarify that an employer does have a right to terminate, rather than just reflecting the NES, ie, which may be an exclusion. I don't have the Acts with me.

PN278

JUSTICE ROSS: It does excuse it.

PN279

MR FERGUSON: It excludes them, that's fine, and it's consistent with that, so there's no inconsistency. But this actually creates a capacity for the employer to terminate, regardless of what may have been put, say in a roster, or some other arrangement like that.

PN280

JUSTICE ROSS: Yes. This is the only award that I'm aware of that says an employer can terminate a casual's employment without notice.

PN281

MR FERGUSON: I terms of Modern Awards, that's I'm not aware of any others that don't. But it robs, in their substantive change, an employer's rights. Now, I can't speak- - -

PN282

JUSTICE ROSS: No, there would be no change in an employer's rights, because you've got the right now.

PN283

MR FERGUSON: Well, there's no limitation in the EES restricting that. It may well be dependent on what the arrangement between the parties are, in terms of let's say you have an arrangement that says you'll work from this time to this time.

PN284

JUSTICE ROSS: Well, you might, then you're on a fixed term contract, you're not a casual.

PN285

VICE PRESIDENT HATCHER: Well, the usual fear with casual employment is that it's daily, so that termination without this right would presumably be not permitted until day it completed.

PN286

JUSTICE ROSS: Or engagement. So you might be employed for 4 hours and that's your shift.

PN287

MR FERGUSON: Well, I think that that's the issue. I mean, potentially it's whether this enables you to terminate on an hourly basis so you're engaged by the hour, as it were, as opposed to by the day. So this appears to allow termination at any time during the course of the day.

PN288

VICE PRESIDENT HATCHER: Is there a minimum engagement period?

PN289

MR FERGUSON: Yes, there is 3 hours.

PN290

VICE PRESIDENT HATCHER: So a minimum engagement period would be ineffective if you can terminate at any time? That you could theoretically- - -

PN291

MR FERGUSON: At least within the 3 hours there's a tension between those two.

PN292

VICE PRESIDENT HATCHER: And you could simply have a new employment the following day and effectively terminate him everybody after 2 hours and avoid the minimum engagement clause.

PN293

MR FERGUSON: That's right, there's a tension between those two in relation to the 3 hours. But outside of the 3 hours, there's not.

PN294

VICE PRESIDENT HATCHER: Well, sure, but- - -

PN295

MR FERGUSON: It would operate subject to the minimum engagement provisions, and the clause could survive without changing employer's right. Again, I can't speak to the frequency in which this is used in the industry.

PN296

VICE PRESIDENT HATCHER: But if you said something like it's subject to the minimum engagement period, then it doesn't do any work.

PN297

MR FERGUSON: Well I think it simply does. I mean, I- - -

PN298

VICE PRESIDENT HATCHER: What work does it do?

PN299

MR FERGUSON: I think it allows you to terminate them at any time, outside of 3 hours. So you don't have to you, the employer, can't be required to give them 6 hours if there's been something on the roster that says you'll have 6 hours. It's an award power.

PN300

VICE PRESIDENT HATCHER: All right, well I think you're going to need to give some more thought to it and get some evidence about how it works, because, on the face of it, I'm struggling to see how it adds anything. And it's a very narrow what you're positing is a very narrow sphere of operation and why should it be in this award, particularly? Is there some odd practice, and given that no one else supports it- - -

PN301

UNIDENTIFIED SPEAKER: They're not using for live bait, are they?

PN302

VICE PRESIDENT HATCHER: Casuals. That's one way of terminating an engagement, I suppose. But I think that might be the safest course, if you can have a look at it and see whether you want to persist with your position, and if you do, then I think we'll need to list it and provide you with a further opportunity to bring evidence about how this somehow will be removing or will be taking something meaningful away.

PN303

JUSTICE ROSS: Paragraph 9, this is the ordinary versus minimum issue. Are there any all-purpose allowances in this award?

PN304

MS GHERJESTANI: Yes.

PN305

JUSTICE ROSS: Okay. Clause 11, none of them seem to be specified of their all-purpose allowances.

PN306

MS GHERJESTANI: There's a definition of casual ordinary hourly rate.

PN307

JUSTICE ROSS: Yes, but that's a separate issue though.

PN308

MS GHERJESTANI: The casual loading - the casual ordinary hourly rate is defined as casual loading, which is payable for all purposes.

PN309

JUSTICE ROSS: Yes. No, but I'm looking to see whether because often the distinction between a minimum hourly rate and an ordinary hourly rate is, the ordinary hourly rate includes any well, is really the minimum hourly rate plus any all-purpose allowances. That was really the question.

PN310

MS GHERJESTANI: I think there is an all-purpose allowance in this award.

PN311

JUSTICE ROSS: That might be an issue that might be the subject of further discussions between the parties, I think.

PN312

MS GHERJESTANI: Yes, that would be appropriate.

PN313

JUSTICE ROSS: Okay. Clause 10. The AWU opposes AI Group's proposal and you say it's consistent with - the exposure draft provision is consistent with the current award. Is that right?

PN314

MS GHERJESTANI: Yes.

PN315

JUSTICE ROSS: And AI Group takes a different view. So looking at the two, we should be able to decide that issue.

PN316

MR FERGUSON: By discussion.

PN317

JUSTICE ROSS: Yes. Numbers 11 and 12 seem to be agreed. Is that right?

PN318

MR FERGUSON: Yes, 11 yes.

PN319

JUSTICE ROSS: Does the AWU agree yes.

PN320

MS GHERJESTANI: Yes.

PN321

JUSTICE ROSS: You don't oppose the retention of the current wording? Item 13, what's the AWU's position on that?

PN322

MS GHERJESTANI: We would not be opposed to retaining the current wording of the clause.

PN323

JUSTICE ROSS: All right. Item 14, what's the AWU's position on that?

PN324

MS GHERJESTANI: We would not be opposed to that either.

PN325

JUSTICE ROSS: All right.

PN326

MS GHERJESTANI: So we would agree to retaining the current wording of the provision.

PN327

JUSTICE ROSS: All right. Item 15?

PN328

MS GHERJESTANI: Your Honour, I think we were up to item 13, that we agreed with the AIG.

PN329

JUSTICE ROSS: Right.

PN330

MS GHERJESTANI: In relation to 14.

PN331

JUSTICE ROSS: What do you say about14?

PN332

MS GHERJESTANI: We wouldn't not be opposed to maintaining the current wording of the provision, so we agree with the AIG.

PN333

JUSTICE ROSS: Item 15?

PN334

MS GHERJESTANI: We do not agree with the AIG.

PN335

JUSTICE ROSS: And this is about the correct rates in relation to adult apprentices, is that right?

PN336

MS GHERJESTANI: That's correct, your Honour. This was inserted into the award last year and I was involved in its insertion with the ATA and the Racing Industry representatives.

PN337

JUSTICE ROSS: Yes.

PN338

MS GHERJESTANI: So through the discussions with those parties, when we did insert that, our position was the agreed position at that time. But that's something that we can discuss with the AIG.

PN339

JUSTICE ROSS: I'm not quite sure I'm following you. Was it inserted as a result of the apprenticeship case?

PN340

MS GHERJESTANI: No. So the rates this award- - -

PN341

JUSTICE ROSS: Well, how was it inserted into the award?

PN342

MS GHERJESTANI: This award did not have rates for apprentice jockeys, so the ATA proposed a variation to the award outside of the 4 Yearly Review to insert rates for apprentice jockeys. So that's when it came into the award.

PN343

JUSTICE ROSS: And that was a consent application?

PN344

MS GHERJESTANI: Yes.

PN345

JUSTICE ROSS: And did the rates in the exposure draft reflect the rates now in the current award?

PN346

MS GHERJESTANI: That's correct. But the issue in here is, the percentage of the rates which percentage of the classifications do they form from? So which percentage are they based on?

PN347

JUSTICE ROSS: All right. Well, that sounds like that might be an issue for a conference as well. Item 16?

PN348

MS GHERJESTANI: We think that the clause should be retained in its current form, that's 9.4(e) and 9.4(d) should be one clause as it currently is.

PN349

JUSTICE ROSS: And does that address the issue that AI Group's identified?

PN350

MR FERGUSON: Yes, I think they're separate issues. We're dealing with 9.5(a).

PN351

JUSTICE ROSS: Yes. Well, 9.5(a), let's deal with that issue first.

PN352

MR FERGUSON: Yes, sorry.

PN353

JUSTICE ROSS: You say there's a drafting error. What's the drafting error?

PN354

MR FERGUSON: If you look at 9.5(a) it's just text being repeated unnecessarily

PN355

JUSTICE ROSS: Yes, okay.

PN356

MR FERGUSON: I don't think it's controversial.

PN357

JUSTICE ROSS: No, all right, so you would - "All conditions of employment specified in this award". And you'd take out, "Apply to all employment conditions in this award".

PN358

MR FERGUSON: Yes.

PN359

JUSTICE ROSS: And so it would just read:

PN360

Apply to apprentice jockeys when they're undertaking their duties.

PN361

MR FERGUSON: That's right, yes.

PN362

JUSTICE ROSS: Well, that seems straight forward enough. And what about the AWU's proposition that 9.4(e) and 9.4(d) should be in the one clause?

PN363

MR FERGUSON: We agree with that. It's connected, I think, to item 14.

PN364

JUSTICE ROSS: Okay, so both of those look like they're agreed.

PN365

MR FERGUSON: Yes.

PN366

JUSTICE ROSS: Item 17 is a cross-reference, the reference to clause 9.5(a) should be replaced well, where does this appear? Is that in 9.4(a)?

PN367

MS GHERJESTANI: I think it's 9.5(b)(ii).

PN368

JUSTICE ROSS: Just bear with me.

PN369

MR FERGUSON: It's just saying that clause- - -

PN370

JUSTICE ROSS: 9.5(b)(ii), yes.

PN371

MS GHERJESTANI: And that 9.5(a), "Will not apply where the apprentice could" I think that's what the AIG is referring to.

PN372

JUSTICE ROSS: What should it say?

PN373

MR FERGUSON: It should say "9.5(b)".

PN374

JUSTICE ROSS: You each agree with that?

PN375

MR FERGUSON: It's this clause, so it's just a limitation on this clause and when it applies.

PN376

MS GHERJESTANI: Yes, we agree.

PN377

JUSTICE ROSS: So it can just say "this clause will not apply"?

PN378

MR FERGUSON: No. Well, because I think to be fair I'm sorry if I've misspoken - but it's paragraph (b) that won't apply.

PN379

JUSTICE ROSS: Paragraph (d)?

PN380

MR FERGUSON: (b) B for Bob.

PN381

JUSTICE ROSS: Yes. So it's a change to clause 9.5(b).

PN382

MR FERGUSON: To make the reference within it I see what you're saying.

PN383

JUSTICE ROSS: Well, in that last para- - -

PN384

MR FERGUSON: Yes.

PN385

JUSTICE ROSS: - - -after (ii)- - -

PN386

MR FERGUSON: Yes, the (a) should be replaced with (b).

PN387

JUSTICE ROSS: Yes, I see. Okay. And the AWU has a proposal at item 18 to 9.5(d).

PN388

MS GHERJESTANI: That's a typographical error, your Honour.

PN389

JUSTICE ROSS: Yes. And what's the typographical error?

PN390

MS GHERJESTANI: So at 9.5(c), 5(e) my apologies, your Honour. I was just speaking with Mr Ferguson and he said that the exposure draft is correct. It's actually the comparison document, so we withdraw that.

PN391

JUSTICE ROSS: Okay. Item 19 is about 9.5(f). Aren't those limiting words at the end of (ii)?

PN392

MR FERGUSON: Yes. The difficulty is, they should be separate to paragraph, or (ii), because the words of limitation apply to both the subparagraphs. So (f)(i) and (f)(ii).

PN393

JUSTICE ROSS: So it should read:

PN394

All fees charged by an RTO and the cost of all prescribed text books for the apprenticeship which are paid by the apprentice will be reimbursed by the employer, unless there is unsatisfactory progress: (i) and (ii).

PN395

Is that the- - -

PN396

MR FERGUSON: Yes, that would be better that would be the better, yes.

PN397

JUSTICE ROSS: What do you think about that, Ms Gherjestani?

PN398

MS GHERJESTANI: We wouldn't object to that, your Honour.

PN399

JUSTICE ROSS: Item 20, 9.5(g). You say the cross-reference is to 9.5(f).

PN400

MR FERGUSON: Yes.

PN401

JUSTICE ROSS: And what does the AWU say about that?

PN402

MS GHERJESTANI: I think our submission might be in the wrong place, because we're talking about loadings.

PN403

JUSTICE ROSS: Yes. And on the face of it, it seems as if AI Group's right, that it is that cross-reference.

PN404

MS GHERJESTANI: Can we just check that, your Honour, today, and I can get back to the parties?

PN405

JUSTICE ROSS: Yes, certainly. That's fine. And item 21 is about clause 11.1(b) of the exposure draft. And the reference to clause the AI Group puts their reference to clause 11.1 should be to 11.1(a). And on the face of it, that seems correct. What is the AWU's position in relation to that?

PN406

MS GHERJESTANI: We agree, your Honour.

PN407

JUSTICE ROSS: Twenty-two, seems to be agreed. Twenty-three seems to be agreed as are 24 and 25. Is that right?

PN408

MS GHERJESTANI: Yes.

PN409

MR FERGUSON: Yes.

PN410

JUSTICE ROSS: 26, what do the others with an interest say about that?

PN411

MS GHERJESTANI: We oppose the AIG submission. I think this issue is maybe related to the previous issue of casual ordinary hourly rate.

PN412

JUSTICE ROSS: All right.

PN413

MS GHERJESTANI: So those two issues can be dealt with together perhaps.

PN414

JUSTICE ROSS: All right. And is that also the case with 27?

PN415

MS GHERJESTANI: Yes.

PN416

JUSTICE ROSS: 28 seems to be agreed and 29 seems to relate to 27 as well.

PN417

MR FERGUSON: Yes.

PN418

JUSTICE ROSS: Well, perhaps a revised exposure draft can be issued and we can identify in a revised summary what appear to be the issues in dispute. And the parties can give some consideration about whether they want to press some of those matters, okay? And we can organise a conference once all of that is done.

PN419

Can I go to was it the Corrections one we were going to have a conference about?

PN420

MR FERGUSON: Yes.

PN421

JUSTICE ROSS: That can be at 4 pm on October 27 in Sydney.

PN422

MR FERGUSON: Yes, your Honour, that works.

PN423

JUSTICE ROSS: Okay? Nothing further?

PN424

MR FERGUSON: Nothing further.

PN425

JUSTICE ROSS: All right, thanks very much. We'll adjourn.

ADJOURNED INDEFINITELY [4.09 PM]