AM2014/199, Transcript of Proceedings [2015] FWCTrans 581 (20 October 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052542

---

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

AM2014/199
AM2014/204
AM2014/206
AM2014/207
AM2014/209

s.156 - 4 yearly review of modern awards

Four yearly review of modern awards - Sub group 2B

AM2014/199 Animal Care and Veterinary Services Award 2010 [MA000118]

AM2014/204 Health Professionals and Support Services Award 2010 [MA000027]

AM2014/206 Medical Practitioners Award 2010 [MA000031]

AM2014/207 Nurses Award 2010 [MA000034]

Sydney

11.09 AM, WEDNESDAY, 7 OCTOBER 2015

PN1

JUSTICE ROSS: For those of you who were here at 9.30, don't get anxious if the Bench seems to be shrinking. It's just that certain members have had carriage for different awards and they'll occasionally not be here for different sections of today's proceedings. We're now dealing with sub group B. The matters listed for not before 11. That is the Animal Care and Veterinary Services Award, the Health Professionals and Support Services Award, the Medical Practitioners Award, the Nurses Award and in relation to the Pharmacy Industry Award, that's not going to be considered in these hearings, it's going through a separate process as it's part of the plain English pilot.

PN2

In respect of the awards I've mentioned, could I have the appearances please beginning in Sydney.

PN3

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

PN4

JUSTICE ROSS: Ms Gherjestani.

PN5

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

PN6

JUSTICE ROSS: Thanks, Ms Svendsen.

PN7

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

PN8

JUSTICE ROSS: Thank you.

PN9

MS DEBECKIS: If it please the Commission, my name is Debeckis, I appear for the Australian Salaried Medical Officers Federation.

PN10

MR G BOYCE: If it pleases the Commission, Boyce, initial G, seeking permission to appear for Aged Care employers in matters number AM2014/204 and 209.

PN11

JUSTICE ROSS: 209 is not being dealt with today.

PN12

MR BOYCE: Sorry, 207.

PN13

JUSTICE ROSS: 207, thank you.

PN14

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

PN15

MS G VACCARO: If the Commission pleases, Vaccaro, initial G, for the Australian Industry Group.

PN16

MR B TYLER: Tyler, initial B, seeking permission to appear for ABI New South Wales Business Chamber.

PN17

MS Z MCQUILLAN: McQuillan, initial Z, seeking permission to appear for ABI and the New South Wales Business Chamber and the Health and Nurses Award.

PN18

JUSTICE ROSS: Anyone else in Sydney? In Melbourne?

PN19

MS J BUNDARA: Yes, your Honour, Bundara, J, seeking leave to appear for the Chiropractors Association of Australia.

PN20

JUSTICE ROSS: Probably easiest if you don't stand because when you stand you seem to move away from the microphone, so it's just a bit harder to hear you. Yes.

PN21

UNIDENTIFIED SPEAKER: (Indistinct), E, from the Chiropractors Association for the Health Professionals and Support Services Award.

PN22

MR A MCCARTHY: McCarthy, initial A, for the ANMF in relation to the Nurses Award.

PN23

JUSTICE ROSS: Thank you.

PN24

MR M RIZZO: Your Honour, Rizzo, M, on behalf of the ASU for the Health Professionals Award.

PN25

JUSTICE ROSS: Thank you.

PN26

MS M ANTHONY: My name is Anthony, M, representing APESMA, and appearing in relation to the Health Professionals and Support Services Award, and also the Animal Care and Veterinary Services Award.

PN27

JUSTICE ROSS: No one else in Melbourne. In Adelaide?

PN28

MS E VAN DER LINDEN: Van Der Linden, initial E, from the South Australian Chamber of Commerce and Industry, trading as Business SA, and I'm here for the Health Professionals and Support Services Award and the Pharmacy Award.

PN29

JUSTICE ROSS: The Pharmacy Award is not being dealt with today.

PN30

MS VAN DER LINDEN: Sorry, my mistake. Not the Pharmacy Award.

PN31

JUSTICE ROSS: In Hobart?

PN32

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

PN33

JUSTICE ROSS: Thank you. In Brisbane?

PN34

MS L FISHER: Good morning, your Honour. Fisher, L, on behalf of the Private Hospital Industry Employers' Associations, in relation to the Health Professionals and Nurses Awards.

PN35

JUSTICE ROSS: Thank you.

PN36

MS L HEPWORTH: Hepworth, L, also with regard to the Private Hospitals et cetera, thank you.

PN37

JUSTICE ROSS: Thank you. Any other appearances? Is there any opposition to the applications for permission to appear? No? Permission will be granted in each case, having regard to the complexity of the issues we think they'll be dealt with more efficiently if permission is granted.

PN38

VICE PRESIDENT HATCHER: We'll start with the Animal Care and Veterinary Services Award. Firstly, does any party want to make any general submission as to how this award should be approach or should we simply move through the items on the summary? No views. We'll move through the items in the summary. Item 1, do I take it that's not pressed. Is that correct?

PN39

UNIDENTIFIED SPEAKER: Yes, your Honour.

PN40

VICE PRESIDENT HATCHER: Is that you, Ms Neutze?

PN41

UNIDENTIFIED SPEAKER: No, it's not but that item was resolved.

PN42

VICE PRESIDENT HATCHER: Item 2, what's the status of that?

PN43

MS LIGHT: It is pressed, your Honour. A general comment, this award seems to have a number of unresolved matters that relate to technical and drafting issues that we think would benefit from some conferencing of the parties. I note there are also a number of substantive matters though that potentially wouldn't be resolved at conferencing. It would need to be referred to a separately constituted Full Bench.

PN44

VICE PRESIDENT HATCHER: In relation to the technical issue which I think are 1 through to 5, would it be suitable to refer those matters to a conference to be dealt with by Roe C?

PN45

MS LIGHT: Yes, your Honour.

PN46

VICE PRESIDENT HATCHER: Does any party take a different view about that? Right.

PN47

COMMISSIONER ROE: Are any of the parties going to be involved in the 9 o'clock conference concerning the Alpine Services Award? That is any of the parties who want to be at that conference.

PN48

MS LIGHT: No, your Honour.

PN49

COMMISSIONER ROE: In which case, we can have that conference at 9 am tomorrow morning. Just to ensure that we have all the relevant parties are there any parties who are not in Sydney who want to participate in that conference? Obviously AVA in Hobart, yes. Anyone else?

PN50

MS NEUTZE: I will be - - -

PN51

COMMISSIONER ROE: Sorry?

PN52

MS NEUTZE: I will be in Sydney tomorrow.

PN53

COMMISSIONER ROE: You'll be in Sydney. Well that's good.

PN54

MS NEUTZE: Yes.

PN55

COMMISSIONER ROE: I take it we don't need any - that the parties who want to participate in the conference, it will be at 9 o'clock tomorrow morning, it'll be in Sydney. Thank you.

PN56

VICE PRESIDENT HATCHER: We'll turn to the substantive issues starting at item 6. Is the claim there pressed? This is a claim for wages adjustment on the basis of work value.

PN57

MS NEUTZE: Debra Neutze, for AVA. We won't be pursuing that as we will not be able to put a work value case together.

PN58

VICE PRESIDENT HATCHER: So not pursued. Item 7, this is an AIG claim. Is that agreed?

PN59

MS GHERJESTANI: No, your Honour. No, it's not agreed.

PN60

VICE PRESIDENT HATCHER: No. That will need the Full Bench. Is there any benefit for that to be referred to the conference tomorrow?

PN61

MS GHERJESTANI: Yes, your Honour.

PN62

MS NEUTZE: Yes.

PN63

VICE PRESIDENT HATCHER: We'll add that to the conference list. Item 8, this appears to be an identification of a - it's a typographical error. Is that agreed?

PN64

MS NEUTZE: Yes, I think that is agreed.

PN65

VICE PRESIDENT HATCHER: Anyone take a different view?

PN66

MS GHERJESTANI: Your Honour, we'd like to have a further look at that so at this stage that's not agreed.

PN67

VICE PRESIDENT HATCHER: Perhaps you can look at that before the conference tomorrow.

PN68

MS GHERJESTANI: Yes.

PN69

VICE PRESIDENT HATCHER: Item 9, this is a matter referred by the Fair Work Ombudsman. Does any party have a view about that? It doesn't seem to have been the subject of any submissions.

PN70

MS NEUTZE: It was, your Honour. The three full days is referred to in another of these issues.

PN71

VICE PRESIDENT HATCHER: Which item is that?

PN72

MS LIGHT: Your Honour, I believe it relates to item 5.

PN73

VICE PRESIDENT HATCHER: Item 5.

PN74

MS NEUTZE: Yes, going backwards, that's right.

PN75

VICE PRESIDENT HATCHER: So should item 9 be referred to the conference tomorrow?

PN76

MS LIGHT: Yes, your Honour.

PN77

MS NEUTZE: Yes, your Honour.

PN78

VICE PRESIDENT HATCHER: Item 10, what's the status of that one?

PN79

MS GHERJESTANI: That's outstanding, your Honour.

PN80

MS NEUTZE: It's outstanding, yes.

PN81

VICE PRESIDENT HATCHER: Is there any benefit in having a further conference about that?

PN82

MS GHERJESTANI: We think it may be appropriate to include it in the discussions at the conference tomorrow morning.

PN83

VICE PRESIDENT HATCHER: Any party take a different view? No, all right. Item 10A raised by the AWU, what's the status of that, that's a typographical error is it?

PN84

MS GHERJESTANI: Yes, your Honour, that's just a typographical error. The exposure draft has included the word "or" at the end of the clause. It's not in the current award so we were just submitting that that word be deleted.

PN85

VICE PRESIDENT HATCHER: Is there any disagreement with that?

PN86

MS LIGHT: We would indicate our agreement, or not, at the conference tomorrow, your Honour. I haven't had an opportunity to consider that.

PN87

VICE PRESIDENT HATCHER: All right, we'll refer to the conference but tentative agreement. Item 11, that's been agreed has it?

PN88

MS LIGHT: Yes, your Honour.

PN89

MS GHERJESTANI: Yes, your Honour.

PN90

VICE PRESIDENT HATCHER: And ditto Item 12 has been agreed, is that confirmed?

PN91

MS LIGHT: It wasn't agreed per se. There was some discussion, potentially a form of words would need to be put by the AVA for consideration before we would be willing to put a firm position on that point.

PN92

VICE PRESIDENT HATCHER: Well, can that be discussed at the conference tomorrow?

PN93

MS LIGHT: Certainly, your Honour.

PN94

VICE PRESIDENT HATCHER: Item 12A, what's the status of that claim?

PN95

MS LIGHT: My apologies, your Honour, I was referring to 12A, not 12. 12 is agreed.

PN96

VICE PRESIDENT HATCHER: Sorry. So, 12 is agreed, 12A to be referred to the conference tomorrow. 12B is a submission by an individual, and I think it appears to relate to a number of other items which appear later down the list. Can I take it that if that is pressed would be an issue of substantive dispute?

PN97

MS LIGHT: Yes, your Honour.

PN98

VICE PRESIDENT HATCHER: Clause 12, is that one pressed? Sorry, number 13. I've lost track. Number 13, is that one pressed Ms Neutze?

PN99

MS NEUTZE: That one is still outstanding and it could be conference.

PN100

VICE PRESIDENT HATCHER: Item 14, what's the status of that one?

PN101

MS NEUTZE: It would need to go to conference.

PN102

VICE PRESIDENT HATCHER: All right. Item 15, I see that's a - is there any consensus about that issue?

PN103

MS GHERJESTANI: No, your Honour.

PN104

VICE PRESIDENT HATCHER: All right, that will be a substantive issue if there's no agreement. Is that right? I will refer that to the conference. Is Item 16 agreed?

PN105

MS NEUTZE: Yes, your Honour.

PN106

MS GHERJESTANI: No, your Honour, we'd like to further consider that issue and possibly discuss that tomorrow.

PN107

VICE PRESIDENT HATCHER: All right, we'll refer that to the conference. Item 17, was that agreed?

PN108

MS GHERJESTANI: The AWU agrees.

PN109

MR ROBSON: United Voice agrees.

PN110

MS VACCARO: AIG - - -

PN111

MS NEUTZE: Yes, I think it was agreed, your Honour.

PN112

VICE PRESIDENT HATCHER: AIG first.

PN113

MS VACCARO: AI Group is of the view that perhaps there would be utility in discussing it tomorrow.

PN114

VICE PRESIDENT HATCHER: All right. Ms Neutze did you want to say something about that? You do not, all right, we will refer that to the conference. Clause 18, what's the response to that item? Does anyone have a view about that item?

PN115

MS NEUTZE: I thought that, sorry, your Honour, I thought that one was resolved.

PN116

VICE PRESIDENT HATCHER: Does any party disagree with that? Ms Light?

PN117

MS LIGHT: I understand that this is potentially a matter already dealt with by the Bench, in that this is not an award with all-purpose allowances. So, the term would be minimum hourly rate.

PN118

VICE PRESIDENT HATCHER: If that's right is it a case of the exposure draft being adjusted to reflect the Full Bench decision?

PN119

MS LIGHT: Yes, your Honour.

PN120

VICE PRESIDENT HATCHER: Anyone take a different view? Item 19, is that agreed? Is that confirmed?

PN121

MS VACCARO: That matter might relate to Item 18 as well, it appears that they deal with a similar issue.

PN122

VICE PRESIDENT HATCHER: Does anyone take a different view, that is, that's the same subject matter as - or would be resolved in the same way as Item 18?

PN123

MS GHERJESTANI: Your Honour, we would like to consider that matter further and probably discuss it tomorrow at the conference.

PN124

VICE PRESIDENT HATCHER: Anybody else?

PN125

MR ROBSON: United Voice would like to consider this further.

PN126

VICE PRESIDENT HATCHER: Anybody else?

PN127

MS NEUTZE: D. Neutze, AVA, yes, I think this needs to be conferenced.

PN128

VICE PRESIDENT HATCHER: All right, we will refer that matter to the conference. Item 20?

PN129

MS GHERJESTANI: Your Honour, that summary of the issue is incorrect. At Item 17 AWU have stated that we would like the clause to be repeated, and they have duplicated the issue, so now it appears twice. 17 is the correct one, whereas 20 is an incorrect.

PN130

VICE PRESIDENT HATCHER: So 20 should be struck out should it?

PN131

MS GHERJESTANI: Yes.

PN132

VICE PRESIDENT HATCHER: Does anyone disagree with that? All right, that will be removed from the summary. Item 20A, the submissions received seem to record agreements. Does anyone disagree with them? Ms Light and Ms Vaccaro?

PN133

MS VACCARO: No, your Honour.

PN134

MS LIGHT: Your Honour, we would like further time to consider that point and perhaps raise it tomorrow.

PN135

VICE PRESIDENT HATCHER: All right (indistinct) and report back to the conference? Clause 21, that's still in discussion is it?

PN136

MS NEUTZE: Yes, your Honour.

PN137

VICE PRESIDENT HATCHER: Perhaps they'll refer that to the conference. 21A, again, that's a major issue. Is there any benefit to that going to the conference?

PN138

MS NEUTZE: No, your Honour, that would be a substantive matter and the parties are unlikely to agree.

PN139

VICE PRESIDENT HATCHER: Number 22, that's an agreed item is it?

PN140

MS NEUTZE: Yes, your Honour.

PN141

VICE PRESIDENT HATCHER: Any disagreement?

PN142

MS GHERJESTANI: I think the AIG in their most recent submission that they made on 28 August stated that they do not agree with the views of the other parties. However, all the other parties here today met on 4 February and we looked at that provision, which is a new clause that has been added to the exposure draft. So it was never there in the first place in the current award, and we all agreed that it be removed. I guess AIG is the only party which doesn't share that view.

PN143

VICE PRESIDENT HATCHER: So AIG wasn't at the conference?

PN144

MS GHERJESTANI: They were not at the - they didn't attend the conference, no.

PN145

VICE PRESIDENT HATCHER: Ms Vaccaro?

PN146

MS VACCARO: Your Honour, it might be worthwhile for us to have a look at that and confirm with the parties our view tomorrow.

PN147

VICE PRESIDENT HATCHER: Thank you. Number 23, that was discussed at the conference. First of all, does that express the position?

PN148

MS LIGHT: The summary reflects that the parties have reached agreement to vary the exposure draft wording to replace the clause in the current award. The exposure draft hasn't been amended to reflect that agreement. I understand that our group had some concerns.

PN149

VICE PRESIDENT HATCHER: Ms Vaccaro?

PN150

MS VACCARO: Your Honour, we will have another look at that and confer again tomorrow with regard to that. Our submission there seems to focus on the outcome of the Full Bench's decision in the annual leave case, so we will have another look and get back to the parties tomorrow.

PN151

VICE PRESIDENT HATCHER: Thank you. Number 24. Have the parties held the further discussions contemplated about that matter?

PN152

MS NEUTZE: We have, your Honour, but there was no conclusion.

PN153

VICE PRESIDENT HATCHER: Is that a substantive disagreement or should it be the subject of a conference tomorrow?

PN154

MS GHERJESTANI: It may be worthwhile to discuss it further tomorrow and if no resolution is reached then the parties can think about whether we should refer that as a substantive issue.

PN155

VICE PRESIDENT HATCHER: Does anyone disagree with Ms Gherjestani? No? Number 25, does that require - and I understand this correctly, an agreed revision to the exposure draft? Or is it still in dispute?

PN156

MS NEUTZE: I think it's still in dispute, your Honour.

PN157

VICE PRESIDENT HATCHER: All right, any benefit in a conference?

PN158

MS NEUTZE: Yes, your Honour.

PN159

VICE PRESIDENT HATCHER: All right, we'll refer that to the conference. Number 26, is that agreed Ms Light?

PN160

MS LIGHT: Yes, your Honour.

PN161

VICE PRESIDENT HATCHER: Does any party take a different view?

PN162

MS NEUTZE: No, your Honour.

PN163

VICE PRESIDENT HATCHER: All right, that's agreed. Number 27, I take it that's a substantive issue is it?

PN164

UNIDENTIFIED SPEAKER: Yes, your Honour.

PN165

VICE PRESIDENT HATCHER: Should that simply be referred to a Full Bench at some stage?

PN166

MS GHERJESTANI: I think it's unlikely that the parties will reach agreement on that.

PN167

VICE PRESIDENT HATCHER: All right. 27A, this appears to be a drafting issue. Has that been the subject of any discussion or should it simply be referred to the conference?

PN168

UNIDENTIFIED SPEAKER: It may be appropriate to refer it to the conference, your Honour.

PN169

VICE PRESIDENT HATCHER: All right, thank you. Number 28 there was apparently agreement at the conference. Does anyone take a different view? Ms Gherjestani you're - - -

PN170

UNIDENTIFIED SPEAKER: No, your Honour.

PN171

VICE PRESIDENT HATCHER: Ms Gherjestani, you didn't agree?

PN172

MS GHERJESTANI: It was noted as a typographical error so we agreed.

PN173

VICE PRESIDENT HATCHER: All right. Number 28A which is an individual submission, have the parties formed any view about that?

PN174

UNIDENTIFIED SPEAKER: Some of that will be covered in the substantive clause.

PN175

VICE PRESIDENT HATCHER: Yes, I think you're right.

PN176

UNIDENTIFIED SPEAKER: A different clause.

PN177

VICE PRESIDENT HATCHER: All right, twenty - - -

PN178

UNIDENTIFIED SPEAKER: So 27? 27, so some of that will be covered under 27.

PN179

VICE PRESIDENT HATCHER: Yes. All right, thank you. So see 27. Number 29, that records agreement and the AWU was going to draft a clause. Has that happened?

PN180

MS GHERJESTANI: Not yet, your Honour.

PN181

VICE PRESIDENT HATCHER: All right.

PN182

MS GHERJESTANI: We will - - -

PN183

VICE PRESIDENT HATCHER: Well firstly, is the summary correct that that's an agreed item?

PN184

MS GHERJESTANI: It was agreed during the conference on 4 February between the parties.

PN185

MS VACCARAO: And Ai Group's position is stated there in the table in that I guess we're not opposed but we reserve our position on review, to review the wording, and form up our position then.

PN186

VICE PRESIDENT HATCHER: All right, Ms Gherjestani I think the first step is you have to supply drafting. Can you do that within seven days?

PN187

MS GHERJESTANI: That's fine, your Honour.

PN188

VICE PRESIDENT HATCHER: All right, I'll direct you to file that draft within seven days and then the parties can be directed to confer about that draft. Clause 30 again seems to be concerned with public holiday rates. Is that correct? Again I assume that would be a substantive issue if pressed. All right.

PN189

MS NEUTZE: Again, your Honour, that refers I think to clause 27 again.

PN190

VICE PRESIDENT HATCHER: Yes.

PN191

MS NEUTZE: Sorry, not clause, issue 27.

PN192

VICE PRESIDENT HATCHER: Number. Yes, all right, and again number 31 I think repeats something earlier, does it?

PN193

MS NEUTZE: I think that one was agreed to, 31, your Honour.

PN194

MS GHERJESTANI: The AWU does not agree to that.

PN195

VICE PRESIDENT HATCHER: Does not agree?

PN196

MS GHERJESTANI: We'd like the opportunity to consider that further and respond tomorrow at the conference.

PN197

VICE PRESIDENT HATCHER: All right, we'll refer that to the conference. 31A, so first of all United Voice's proposal was withdrawn. Is that correct?

PN198

MR ROBSON: That is withdrawn, your Honour.

PN199

VICE PRESIDENT HATCHER: And then there's a proposal by the VCNA(sic) for a new classification and there was a view by AVA. I take it that would be a substantive issue, would it?

PN200

MS GHERJESTANI: Yes, your Honour.

PN201

VICE PRESIDENT HATCHER: Is there any benefit in dealing with it at the conference?

PN202

MS LIGHT: I don't believe that the VNCA have put a form of words so there's probably not a lot of utility until we have a look at what the clause would look like or how they would be proposing to set the wage for that clause.

PN203

VICE PRESIDENT HATCHER: All right, perhaps the appropriate course is direct the VCNA to provide a draft of the provision it desires within seven days, or that be communicated to them? All right, we'll make a direction to that effect, and would the same apply to 31B, Ms Light?

PN204

MS LIGHT: I'm sorry, your Honour?

PN205

VICE PRESIDENT HATCHER: The same would apply to 31B?

PN206

MS LIGHT: Yes, your Honour.

PN207

VICE PRESIDENT HATCHER: Okay. What about item 32, what's the status of that one, Ms Neutze?

PN208

MS NEUTZE: We haven't identified any other training programs.

PN209

VICE PRESIDENT HATCHER: All right, so what does that mean?

PN210

MS NEUTZE: I think it was the Commission had asked if there were any other training programs that would relate to this award.

PN211

VICE PRESIDENT HATCHER: All right, so the answer is nobody has identified any, and no further modification to the exposure draft is required? Is that where it's at?

PN212

MS NEUTZE: That's right, as far as AVA is concerned, your Honour.

PN213

VICE PRESIDENT HATCHER: All right, and 33 is the same issue is it?

PN214

MS NEUTZE: Yes, your Honour.

PN215

VICE PRESIDENT HATCHER: All right. 34, should this - yes?

PN216

MS NEUTZE: This will be withdrawn at the moment, your Honour.

PN217

VICE PRESIDENT HATCHER: Right

PN218

MS NEUTZE: And we will put in outside the actual review to have a variance to the award at a later date.

PN219

VICE PRESIDENT HATCHER: All right, thank you. 34A, Ms Gherjestani, is that still pressed?

PN220

MS GHERJESTANI: Your Honour, that's just a typographical error. Within the clause the word twice appears. "On" appears twice, so it's a typographical error, nothing else.

PN221

VICE PRESIDENT HATCHER: All right, does any other party dispute that that should be corrected?

PN222

MS LIGHT: No, your Honour.

PN223

VICE PRESIDENT HATCHER: All right, we'll record that as agreed. Number 35, I'm not sure what that's about. Numbers 36 through to 39; first of all 36, is that agreed?

PN224

MS NEUTZE: That was agreed I think, your Honour.

PN225

VICE PRESIDENT HATCHER: Anybody disagree?

PN226

UNIDENTIFIED SPEAKER: Your Honour, given that these matters were discussed at the conference at which Ai Group wasn't present, I appreciate the opportunity to have a look through them and I can confirm our agreement to the parties tomorrow.

PN227

VICE PRESIDENT HATCHER: All right, is it convenient to refer all four of these issues to the conference tomorrow to ascertain their status? All right, that's what will be done. All right, any other remaining issues with the Animal Care and Veterinary Services Award? There will be a conference at 9 o'clock tomorrow in Sydney before Commissioner Roe, all right?

PN228

Next is the Health Professionals and Support Services Award. Does any party want to propose anything or the approach to handling this award, or shall we go through it item by item?

PN229

MS SVENDSEN: I think item by item would be a good idea, your Honour. Thank you.

PN230

VICE PRESIDENT HATCHER: Just give me a second. Firstly, I should say do the parties consider that a conference on issues to be identified would be useful?

PN231

MS NEUTZE: Yes, your Honour.

PN232

MS SVENDSEN: Yes, your Honour.

PN233

MS VACCARO: Yes, your Honour.

PN234

VICE PRESIDENT HATCHER: Secondly, that conference will be conducted by Roe C. Would the parties be available to do that at some convenient time tomorrow?

PN235

MS LIGHT: Your Honour, given the substantial number of issues and concerns raised in this award, there's been some discussion amongst some of the parties that potentially it would benefit from setting aside a full day for conferencing. So to that end it may not be appropriate tomorrow, given that parties have a number of other commitments.

PN236

VICE PRESIDENT HATCHER: Ms Light, Ms Svendsen wants to go through this item by item but do you think the conference would be for all the issues or particular issues that you can identify?

PN237

MS LIGHT: There's been a significant number of meanings and conferences amongst the parties already but they've primarily dealt with the issue of span of hours and shift work provisions. There are a number of other claims being pursued that haven't really been ventilated amongst the parties. So it would benefit from going through item by item but it may be that parties have not had any discussions so far about those matters.

PN238

MS SVENDSEN: I'd concur in relation to that, your Honour. We've mainly talked about the span of hours issues and that one's not going to be resolved, apart from the fact that about half the parties who have made applications in relation to those matters are not even here today, and I don't think they'd be at conference tomorrow. I don't think that that one will be resolved anyway, and I don't think any of the other parties believe it will be resolved either. There are some intersecting matters with that that may or may not be able to be resolved on their own.

PN239

I think I probably agree with Ms Light that it would benefit from a substantial proportion of time being put aside and that there are some substantive issues that we've not come anywhere near talking about that may be able to be resolved. On the other hand, I would note that there might be some technical or drafting matters in fact that we haven't actually finally ticked off on that may be able to be resolved very quickly and easily, and certainly I think we ought to identify in going through them just what we really think could benefit from conferencing.

PN240

VICE PRESIDENT HATCHER: Does any other party take a different view to what's been expressed? That is that the award would benefit from a full day conference with Roe C at a date to be established?

PN241

MS HEPWORTH: Your Honour, Hepworth, L, from the Private Hospitals Association. As the ATSU has said, we've had a number of meetings and discussions in relation to the matters identified under this award and absolutely there are some areas where we won't benefit from conferencing in front of Roe C, because our views are so varied. But it's certainly of benefit to go through point by point now. I think there's a number of issues that we can agree on as either being resolved or worthy of further discussion. Whether a full day is required, I think can we wait until we finish this review and then determine whether or not that's necessary?

PN242

VICE PRESIDENT HATCHER: All right. Any other comments about this course of action? I'll go through it. Now item 1, am I right in saying that this requires changes to the exposure draft in response to the identified Full Bench decision?

PN243

MS SVENDSEN: There are changes potentially to the exposure draft required but I think that the terms are - I think only - I think there was a definitional term of ordinary hours as pressed by the Chiropractors and that matter might be something that would require at least further discussion. We don't actually have an understanding about what they might seek in that. There seems to be a little bit of a mix up mixed together of what were comments in relation to EDs - exposure draft, technical matters and almost a substantive claim.

PN244

VICE PRESIDENT HATCHER: So refer to the conference?

PN245

MS SVENDSEN: Yes.

PN246

VICE PRESIDENT HATCHER: Well perhaps to speed this up we can put the matters into three categories; one, the matters that simply won't be agreed and will have to go to a Full Bench. Secondly, matters which will be referred to the conference and thirdly, minor typographical matters which the parties may be able to be resolved between themselves. Does that sound suitable?

PN247

MS SVENDSEN: That sounds fine.

PN248

VICE PRESIDENT HATCHER: Number 1 is conference. Number 2 is that conference as well?

PN249

MS SVENDSEN: I believe that's resolved by the decision.

PN250

VICE PRESIDENT HATCHER: Any other party take a different view?

PN251

MS HEPWORTH: We felt it was resolved, private hospitals, sorry.

PN252

VICE PRESIDENT HATCHER: Yes, thank you. That requires an adjustment to the exposure draft does it?

PN253

MS LIGHT: Yes, your Honour.

PN254

MS SVENDSEN: Your Honour.

PN255

VICE PRESIDENT HATCHER: Does the same apply to number 3?

PN256

MS SVENDSEN: Yes, and in our view number 4 - - -

PN257

MS LIGHT: Yes, your Honour.

PN258

MS SVENDSEN: - - - and number 5 as well, your Honour.

PN259

VICE PRESIDENT HATCHER: So 3, 4 and 5, does anyone take a different view? Number 5(a)?

PN260

MS SVENDSEN: These matters are substantive and I don't think they're going to be agreed at any point.

PN261

VICE PRESIDENT HATCHER: Substantive issues.

PN262

MS VACCARO: Which might also be worthwhile - - -

PN263

VICE PRESIDENT HATCHER: Sorry, Ms Vaccaro?

PN264

MS VACCARO: It might be worth noting, your Honour, that this particular substantive issue has also been scattered throughout the document, so it might - as we go through the summary document, it might be that the same issue comes up and relates in whole to item 5(a).

PN265

VICE PRESIDENT HATCHER: Well you'll put your hand up when you these. 5(b), what category does that fall in?

PN266

MS LIGHT: A matter to be referred to a Full Bench. It's unlikely to be resolved.

PN267

VICE PRESIDENT HATCHER: Substantive issue. Number 6, what's the status of that?

PN268

MS SVENDSEN: I don't think there is a status on that, your Honour. I don't think it's - I think it's just confirmation that they rely on their submissions and there was nothing that they were actually stating other than they would raise issues as they came up, but I might be wrong about that.

PN269

VICE PRESIDENT HATCHER: I see. That's you, Mr Boyce, is it?

PN270

MR BOYCE: Yes.

PN271

VICE PRESIDENT HATCHER: Is that right?

PN272

MR BOYCE: Yes.

PN273

VICE PRESIDENT HATCHER: Number 7, Ms Svendsen?

PN274

MS SVENDSEN: Those matters are substantive claims and are actually dealt with really further when they were identified in detail.

PN275

VICE PRESIDENT HATCHER: Number 8?

PN276

MS SVENDSEN: This matter was raised by the Fair Work Ombudsman about whether or not the list of the schedule C was - list of health professionals was exhaustive or inclusive. There are quite - there's quite a competition about it but it may be worth going to conference for discussion because it's not actually something we've discussed, even though there are quite substantial submissions in relation to it.

PN277

VICE PRESIDENT HATCHER: Does anyone take a different view?

PN278

MS HEPWORTH: No, I'd agree.

PN279

VICE PRESIDENT HATCHER: Refer to conference. Number 9, Ms Vaccaro, what's the status of that one?

PN280

MS VACCARO: My understanding, that one has been agreed between the parties. It just involves a typographical issue.

PN281

VICE PRESIDENT HATCHER: Any dispute?

PN282

MS SVENDSEN: No.

PN283

VICE PRESIDENT HATCHER: Number 10?

PN284

MS VACCARO: My understanding - - -

PN285

MS HEPWORTH: In item 10 - - -

PN286

VICE PRESIDENT HATCHER: Ms Hepworth.

PN287

MS HEPWORTH: Thank you. In item 10, we made the comment that the definition of health industry has been entered twice in the exposure draft, whereas previously it appeared once in the modern award. It has not been repeated under coverage at 3.2, and our comment was simply that that didn't seem to be necessary.

PN288

VICE PRESIDENT HATCHER: The HSU has proposed it be kept in one clause and removed from another. Is that agreed?

PN289

MS HEPWORTH: No, their recommendation is to remove it from definitions, where we believe it belongs, as it appeared originally under the modern award.

PN290

VICE PRESIDENT HATCHER: Ms Svendsen?

PN291

MS SVENDSEN: Your Honour, we've talked about this briefly on a phone conference and initially we had - I think the parties were comfortable with the idea that it stay in definitions which was what the private hospitals proposed. However, as a matter of consistency across the awards, the nurses had left it in 3.2 and not definitions and so the matter was then raised about whether we did that and that was just the alternate suggestion and I think it was agreed that we do it in one spot but not which one it would be - conference?

PN292

VICE PRESIDENT HATCHER: We can resolve that at the conference. Number 11, is that agreed? Is that right?

PN293

MS VACCARO: That is agreed.

PN294

MS SVENDSEN: Agreed.

PN295

VICE PRESIDENT HATCHER: Number 12?

PN296

MS VACCARO: I believe that that is dealt with by the full bench decision in this result.

PN297

VICE PRESIDENT HATCHER: Does that require then an amendment to the exposure draft, does it?

PN298

MS VACCARO: It does.

PN299

VICE PRESIDENT HATCHER: Does any party disagree? All right. Number 13: that appears to raise some substantive issues, does it not?

PN300

MS VACCARO: It does and it raises a number of different substantive issues and some of those may be worth discussion though it might be easier to identify them at conference, about what we could actually discuss.

PN301

MS SVENDSEN: Your Honour, may I just interrupt? Are we discussing - I might have just lost track - are we at 12(a) or at 13?

PN302

VICE PRESIDENT HATCHER: Yes, no, you're right; I said 13 but I meant 12(a).

PN303

MS SVENDSEN: Okay, thank you.

PN304

MS VACCARO: I answered 12(a).

PN305

VICE PRESIDENT HATCHER: Well, can we refer 12(a) to the conference on the basis that there might be some separation of issues bet5ween those that are capable of resolution and those that are substantive in nature? All right. Item 13?

PN306

MS SVENDSEN: (Inaudible) this issue. It might not be as fully expressed in the table and it's the submission on page 12 at the top. We express there that we support the ACN's proposed variation. Our position relates only to the issue of casual workers in an engagement. It doesn't extend to the other question or the other element of the question posed by the Commission, which goes to the (indistinct.) So I think this issue might be worth discussing in conference.

PN307

VICE PRESIDENT HATCHER: All right; does anyone take a different view?

PN308

MS VACCARO: I don't take a different view that it needs discussion in the conference, that would be a good idea.

PN309

VICE PRESIDENT HATCHER: All right. Item 14?

PN310

MS VACCARO: Your Honour, the clause here in relation to the minimum hourly rate; our concern relates to potential changing of entitlements for the employee. When you look at the clause from the modern award, it actually talks about the employee being paid one thirty-eighth of the weekly rate appropriate to the employee's classification in addition to the loading of 25 per cent. The translation in the exposure draft talks about:

PN311

The casual employee must be paid the minimum hourly rate and a loading of 25 per cent of the minimum hourly rate for the classification in which they are employed.

PN312

Our concern is that it's possible where classifications have more than one pay rate, the reader is automatically drawn to the minimum pay rate rather than what might be the appropriate pay rate for the employee.

PN313

VICE PRESIDENT HATCHER: So that's a drafting issue in effect, is it?

PN314

MS SVENDSEN: Basically, yes; yes, and it appears frequently throughout the award.

PN315

MS VACCARO: It also appears in several places throughout the summary, your Honour.

PN316

VICE PRESIDENT HATCHER: All right, so if possible the conference might be able to resolve agreed variation in order to clarify that?

PN317

MS SVENDSEN: Yes.

PN318

VICE PRESIDENT HATCHER: I take it it's not a substantive issue, it's a drafting issue?

PN319

MS VACCARO: It is a drafting issue.

PN320

MS SVENDSEN: Correct, yes.

PN321

VICE PRESIDENT HATCHER: Clause 15, I think, is no longer relevant; a lot of full bench decisions, is that right?

PN322

MS SVENDSEN: Yes, your Honour.

PN323

MS VACCARO: Yes, agreed.

PN324

VICE PRESIDENT HATCHER: Number 15(a); is that a substantive issue?

PN325

MS SVENDSEN: That's 5(a)(i) too.

PN326

VICE PRESIDENT HATCHER: Sorry, Ms Svendsen?

PN327

MS SVENDSEN: It relates back to the item 5(a) that Ms Vaccaro noted.

PN328

VICE PRESIDENT HATCHER: All right. Number 16?

PN329

MS SVENDSEN: This one is substantive, your Honour.

PN330

VICE PRESIDENT HATCHER: 17?

PN331

MS SVENDSEN: The whole of 17 goes for about 10 pages. All right, I might be exaggerating. But not by much! It is substantive and the issue that we are very unlikely to reach agreement on.

PN332

VICE PRESIDENT HATCHER: All right.

PN333

MS SVENDSEN: Page 21 is the next page.

PN334

VICE PRESIDENT HATCHER: But is the issue clear? That is would there be any benefit in trying to define what the issue to be determined is?

PN335

MS SVENDSEN: Your Honour, there are a number of opposing claims and differing claims; so some directly oppose each other and some are substantially different. In relation to the matter of span of hours, it's the one issue that we actually have had substantial conferencing about. I don't - the unions have taken a position that if we're going to have to argue the issue around multiple spans of hours then we need to argue that issue and just get it over and done with. While we were very close to reaching agreement with some of the major employer peaks, it was clear that in fact that we were going to still have some significant outlies and in fact subsequent to our conferencing received more outlies in relation to span-of-hours matters. I think that's the problem for us. For us, we think the matter just needs to be run and we don't think we will be able to get agreement, purely because we don't think we will be able to get all of those people in the room to sit down and talk about it. But even if we did I think we wouldn't reach agreement.

PN336

VICE PRESIDENT HATCHER: Does anyone take a different view to that? No, all right. Number 18; what is the status of that?

PN337

MR TYLER: That's a substantive issue, your Honour, that probably would benefit though from conferencing.

PN338

MS SVENDSEN: It's potentially one that's not far from agreement.

PN339

VICE PRESIDENT HATCHER: All right, well that can be put to a conference then. Number 19: there appears to be some measure of agreement there. What's the status, Ms Vaccaro?

PN340

MS VACCARO: The status of that is all states have agreed and it would be a substantive matter. I'm not sure the extent to which agreement might be reached with the union parties. The HSU has put forward a proposal that replicates a proposal that's inputting the nurses by the ANNF. Ai Group does not agree with that proposal so to the extent that the HSU's movement in that area is based on that proposal for the nurses, there is no room for movement on our part either.

PN341

VICE PRESIDENT HATCHER: Ms Svendsen, is there any possibility of moving towards agreement with this?

PN342

MS SVENDSEN: Conference; I think it actually is one that we may well be able to reach agreement on.

PN343

VICE PRESIDENT HATCHER: Thank you.

PN344

MS SVENDSEN: Excluding the MIERG part of that but that goes back to item 5(a).

PN345

VICE PRESIDENT HATCHER: All right. Yes, all right. Number 20 is substantive, is it?

PN346

MS SVENDSEN: It is.

PN347

VICE PRESIDENT HATCHER: Number 20(a)?

PN348

MS ANTHONY: It's Michelle Anthony from APESMA, your Honour. 20(a) and a number of other later items relate to an application to vary the award to cover interpreters and translators and it would be a substantive matter and it has - there have been submissions put in response to our application.

PN349

VICE PRESIDENT HATCHER: Does any party disagree with that summary? No, all right.

PN350

MS ANTHONY: If you like I could tell you the later items that that summary will also apply to?

PN351

VICE PRESIDENT HATCHER: Yes, all right/

PN352

MS ANTHONY: To item 38, 38(a) and 44.

PN353

VICE PRESIDENT HATCHER: So 38, page 50; 38(a) - what was the other one?

PN354

MS ANTHONY: And item 44.

PN355

VICE PRESIDENT HATCHER: 44.

PN356

MS ANTHONY: Item 44. Your Honour, I do believe that a correction is needed to the summary for Item 20A.

PN357

VICE PRESIDENT HATCHER: Yes.

PN358

MS ANTHONY: In the application to vary there is a proposal to insert Part A as a subclause, and also a Part B, and Part B has been left of the summary, subclause B has been left off the summary.

PN359

VICE PRESIDENT HATCHER: So that's to be found in the submission is it?

PN360

MS ANTHONY: That is in the submission and it has been left off in the summary document.

PN361

VICE PRESIDENT HATCHER: All right. 20B?

PN362

MS SVENDSEN: That is a reference back to 5A matters in the substantive, your Honour.

PN363

VICE PRESIDENT HATCHER: 21?

PN364

MS HEPWORTH: I think it was agreed, your Honour, that this be kept in.

PN365

VICE PRESIDENT HATCHER: Kept in?

PN366

MS SVENDSEN: The question was asked in the drafting whether it was still used, and the employee peak in the HIA in Melbourne identified that it was.

PN367

VICE PRESIDENT HATCHER: 22, is that just a typographical error?

PN368

MS SVENDSEN: That was more of a suggestion on - that was that there was the percentages in the exposure draft, and we argued that maybe there should be inclusion of percentages and a dollar amount, just to make it clearer and more transparent to people who were reading the award, more lay people. It's one of those issues that if it was hotly contested by a lot of people that we could probably just discuss in conference.

PN369

VICE PRESIDENT HATCHER: I will put that as conference. Number 23 is substantive is it?

PN370

UNIDENTIFIED SPEAKER: This related to the same argument as before with regards to the drafting of the exposure draft changing the intent with regards to the minimum, or their minimum, rate.

PN371

MS SVENDSEN: Item 14, your Honour.

PN372

VICE PRESIDENT HATCHER: Thank you, so that should go to the conference with - - -

PN373

MS SVENDSEN: Sorry, where it's first raised in relation to the CEA applications it does relate to that particular issue, but it also relates to our submission that the whole of the weekend clause was mis-drafted initially in that it refers only to - weekend rates of pay actually apply to - if read in black and white - day workers and not to anyone who is a shift worker. So, the matter is worth conferencing about but it's possibly substantive.

PN374

VICE PRESIDENT HATCHER: Number 24, that's business essay. What is the status of that?

PN375

MS VAN DER LINDEN: The status of that is - just bear with me for just a moment - we were concerned that the intention of the clause is not clearly reflected in the current wording, so we're just seeking to - for variation - remove the ambiguity. I don't believe that there has been agreement on this at this stage. You have to bear with me, I have just taken over this award from somebody who has left Business SA. So my understanding is that - - -

PN376

VICE PRESIDENT HATCHER: Well, it should be the subject of conference should it?

PN377

MS VAN DER LINDEN: Yes, I think so. I don't think it's anything which will be again hotly contested, and definitely at conference we'd be able to sort out any issue there.

PN378

VICE PRESIDENT HATCHER: All right. 24?

PN379

MS VAN DER LINDEN: That was 24, your Honour.

PN380

VICE PRESIDENT HATCHER: I'm sorry, 25.

PN381

MS SVENDSEN: 25 is the same issue in relation to the minimum rate or their minimum rate where there is more than one pay level problems. So that's a drafting issue.

PN382

VICE PRESIDENT HATCHER: So conference?

PN383

MS SVENDSEN: Yes, please.

PN384

VICE PRESIDENT HATCHER: 25A Ms Hepworth?

PN385

MS HEPWORTH: The same. No, sorry, beg your pardon. 25A relates to the ability for private hospitals to have employees work ordinary hours 24/7 and we would be proposing a new clause. That is a substantive matter, your Honour.

PN386

VICE PRESIDENT HATCHER: Clause 26. This is a response to an inquiry from the Fair Work Ombudsman. Could this benefit from a conference?

PN387

MS SVENDSEN: Conference.

PN388

VICE PRESIDENT HATCHER: 27 is again another drafting issue, or ambiguity issue. Is that a conference issue?

PN389

MS SVENDSEN: It should be conferenced. I'm not sure whether we will reach agreement on it but it should be conferenced.

PN390

VICE PRESIDENT HATCHER: 27A Ms Svendsen?

PN391

MS SVENDSEN: Is substantive and I don't think it's going to be agreed. It's very unreasonable of people, can I just say?

PN392

VICE PRESIDENT HATCHER: 28, is that an ambiguity issue, Ms Hepburn?

PN393

MS HEPWORTH: That related, once again, to the drafting, yes.

PN394

VICE PRESIDENT HATCHER: So conference?

PN395

MS HEPWORTH: Please.

PN396

UNIDENTIFIED SPEAKER: If I might, I just would like to seek an amendment to the summary in relation to Item 28. So, I believe that the CEA's reply submission of 21 August also addresses the (indistinct) in regard to entitlements which falls under this item as well. It's effectively captured in Item 30 but I think it bears relation to this item.

PN397

VICE PRESIDENT HATCHER: All right, we'll make a note of that. 29, that appears to be a substantive difference, but would a conference be of any utility? All right, that will be referred to the conference. Number 30, that's a substantive disagreement is it?

PN398

MS SVENDSEN: It's a question raised by Fair Work Ombudsman. I think it's ended up being substantive disagreement but it may well be worth at least talking about in the first instance.

PN399

VICE PRESIDENT HATCHER: That will be referred to the conference but if it's not resolved that appears to be a matter which belongs to the casual part-time Full Bench.

PN400

MS SVENDSEN: I did wonder about that.

PN401

VICE PRESIDENT HATCHER: I think that is the way that one will go. 30A, what's the story with that?

PN402

MS SVENDSEN: It relates to 4A again.

PN403

VICE PRESIDENT HATCHER: 31?

PN404

MS SVENDSEN: Once again a drafting issue, your Honour.

PN405

VICE PRESIDENT HATCHER: 32, name of party. Surely this is agreed, is it?

PN406

MS SVENDSEN: Initially I didn't see any problem with it but I'm actually not sure that it's an appropriate thing to do, given that other NES entitlements are also covered elsewhere in the award.

PN407

VICE PRESIDENT HATCHER: All right, conference. Number 33, Ms Svendsen?

PN408

MS SVENDSEN: That is - - -

PN409

VICE PRESIDENT HATCHER: That's substantive?

PN410

MS SVENDSEN: Not the initial one which was the expression of - sorry, it is substantive, I take that all back.

PN411

UNIDENTIFIED SPEAKER: Your Honour, if I might?

PN412

VICE PRESIDENT HATCHER: Yes.

PN413

UNIDENTIFIED SPEAKER: The CEA sort of has concerns about having to re-agitate this point again, given that a Full Bench has already upheld a decision to vary this clause to its current definition. It's our view that the HSU and the AWA, their pressing for the claim should - excuse me - cogent reasons as to why the Commission should once again deal with this.

PN414

VICE PRESIDENT HATCHER: That rings a bell actually.

PN415

MS SVENDSEN: It might, your Honour. Yes, it is but it's actually made as a new claim and when we put in substantial submissions in relation to these matters, we all put in our cogent reasons.

PN416

VICE PRESIDENT HATCHER: Substantive.

PN417

MS SVENDSEN: It is substantive. I was actually reading the first bit, being confused. I apologise for that.

PN418

VICE PRESIDENT HATCHER: 34, Ms Hepworth?

PN419

MS HEPWORTH: This one related to the Commission's decision to modify awards that didn't have an all-purpose rate and change ordinary rate to minimum rate. This appears to be a drafting error where they've left one reference in.

PN420

VICE PRESIDENT HATCHER: Does anyone disagree? Sounds right.

PN421

MS SVENDSEN: No, I don't disagree.

PN422

VICE PRESIDENT HATCHER: 35?

PN423

MS HEPWORTH: In 35 our comment here related to the exposure draft adding a new sentence in under "public holidays". I think from the Full Bench decision it's actually been resolved to remove that clause in relation to reference, back to the NES.

PN424

VICE PRESIDENT HATCHER: Does anyone disagree?

PN425

MS SVENDSEN: I agree with that.

PN426

VICE PRESIDENT HATCHER: Agree.

PN427

MS SVENDSEN: I think that that matter is actually resolved by the decision of the Bench in relation to the NES summary.

PN428

VICE PRESIDENT HATCHER: So that will require a change to the exposure draft will it?

PN429

MS SVENDSEN: Yes, it would.

PN430

MS HEPWORTH: The other comment there, your Honour, under 35, 23.3 related to the same drafting issue we've mentioned earlier. That would benefit from conference.

PN431

VICE PRESIDENT HATCHER: The "the" to "there"?

PN432

MS SVENDSEN: Yes.

PN433

MS HEPWORTH: Yes.

PN434

VICE PRESIDENT HATCHER: That will go to conference. Is 36 agreed?

PN435

MS HEPWORTH: Yes, agreed.

PN436

MS SVENDSEN: My understanding it was but I think that the AIG had some concerns, although they might have expressed it in one of the other health awards.

PN437

VICE PRESIDENT HATCHER: Ms Vaccaro?

PN438

MS VACCARO: My understanding is that that matter's agreed. My friend might be referring to the Medical Practitioner's Award.

PN439

VICE PRESIDENT HATCHER: 36(a) you mean?

PN440

MS VACCARO: 36 is what I'm - - -

PN441

VICE PRESIDENT HATCHER: Is agreed.

PN442

MS VACCARO: It's agreed, that's right.

PN443

VICE PRESIDENT HATCHER: Ms Light, is that agreed?

PN444

MS LIGHT: Yes, your Honour.

PN445

VICE PRESIDENT HATCHER: 36(a)?

PN446

MS SVENDSEN: It's an item 5(a) matter.

PN447

VICE PRESIDENT HATCHER: 37, so the first - 20 it withdrawn, is it?

PN448

MS HEPWORTH: Your Honour, yes it is.

PN449

VICE PRESIDENT HATCHER: And the - - -

PN450

MS HEPWORTH: The second one is a substantive matter but it would benefit from conferencing, I think, because I don't think it's actually significantly substantive.

PN451

VICE PRESIDENT HATCHER: 37(b).

PN452

MS ANTHONY: Your Honour, 37(b), it's Michelle Anthony from the APESMA, also relates to the application that I referred to earlier about varying the award to include translators and interpreters and that would be a substantive matter.

PN453

VICE PRESIDENT HATCHER: Just remind me what item that was?

PN454

COMMISSIONER ROE: Was that item 20?

PN455

MS ANTHONY: 20(a)

PN456

VICE PRESIDENT HATCHER: 20(a).

PN457

COMMISSIONER ROE: 20(a).

PN458

VICE PRESIDENT HATCHER: Thank you. So we've done 38 and 38(a), 39's been withdrawn Ms Svendsen?

PN459

MS SVENDSEN: Yes, your Honour.

PN460

VICE PRESIDENT HATCHER: Number 40.

PN461

MS SVENDSEN: Your Honour, this appeared to be another error where the word "ordinary" hasn't been replaced with "minimum" in schedule C.

PN462

VICE PRESIDENT HATCHER: Conference?

PN463

MS SVENDSEN: Yes, your Honour.

PN464

VICE PRESIDENT HATCHER: Number 41, what's the go there?

PN465

MS SVENDSEN: Your Honour, we actually talked about this in item 1, there's been a little bit of mixing and matching but I think we decided that that part of it should go to conference.

PN466

VICE PRESIDENT HATCHER: Right. 42?

PN467

MS HEPWORTH: Substantive.

PN468

VICE PRESIDENT HATCHER: Anyone disagree?

PN469

MS SVENDSEN: No, don't disagree, maybe with conferencing though.

PN470

VICE PRESIDENT HATCHER: Would there be any benefit in having a conference on it?

PN471

MS HEPWORTH: No. No, we don't think so.

PN472

VICE PRESIDENT HATCHER: 43, should that go to a conference.

PN473

MS HEPWORTH: Yes. I think that actually if we talked about it, it'd be resolved. I don't think it's covered by the schedule.

PN474

MS VACCARO: I'm happy to - I need to check whether it is covered by the schedule, I'm happy to discuss it but it might eventuate into a substantive change.

PN475

VICE PRESIDENT HATCHER: That's all the matters. Commissioner Roe will contact the parties to arrange a convenient date for conference. Next is the Medical Practitioners award. Does anyone want to make a general submission as to how to approach this award, and in that context does any party think that a conference would be useful?

PN476

MS DEVECCIHIS: Your Honour, I believe that may be some benefit in having a conference on some of the issues. Can I suggest that we move through the items issue by issue because certainly a couple of them (indistinct).

PN477

VICE PRESIDENT HATCHER: Does anyone take a different view?

PN478

UNIDENTIFIED SPEAKER: No, your Honour.

PN479

VICE PRESIDENT HATCHER: How long do you think a conference might require?

PN480

MS DEVECCIHIS: Fairly brief, your Honour. Perhaps an hour, couple of hours at the most.

PN481

VICE PRESIDENT HATCHER: Would the parties be in a position to have a conference tomorrow before Roe C?

PN482

MS DEVECCIHIS: I would be happy with that, your Honour.

PN483

VICE PRESIDENT HATCHER: Ms Svendsen?

PN484

MS SVENDSEN: Yes, your Honour.

PN485

VICE PRESIDENT HATCHER: Any other parties?

PN486

UNIDENTIFIED SPEAKER: I would be happy with that, your Honour.

PN487

MS VACCARO: Yes, your Honour.

PN488

VICE PRESIDENT HATCHER: Would 11 o'clock with an estimate of two hours be convenient for that conference?

PN489

MS SVENDSEN: Yes, your Honour,

PN490

MS DEVECCIHIS: Yes, thank you.

PN491

VICE PRESIDENT HATCHER: Item 1.

PN492

COMMISSIONER ROE: Are there any parties that would not be in Sydney?

PN493

MS SVENDSEN: I don't know of any parties that would not be in Sydney, given I think we're all here at the table.

PN494

COMMISSIONER ROE: Thank you.

PN495

UNIDENTIFIED SPEAKER: Your Honour, I think 1, 2 and 3 are all resolved matters by the Full Bench decisions. I think.

PN496

VICE PRESIDENT HATCHER: Yes, that looks right. Does anyone disagree with that? That requires amendment to the exposure draft, does it?

PN497

UNIDENTIFIED SPEAKER: I don't think - - -

PN498

VICE PRESIDENT HATCHER: Item 4 as well?

PN499

UNIDENTIFIED SPEAKER: Yes, I don't think that's an issue but - - -

PN500

UNIDENTIFIED SPEAKER: Your Honour, just in relation to item 4, this award does contain practice allowances.

PN501

VICE PRESIDENT HATCHER: It does?

PN502

UNIDENTIFIED SPEAKER: Yes, it does and in light of the recent decision of the Full Bench, I believe the references in the award should go to ordinary hourly rate rather than minimum hourly rate.

PN503

VICE PRESIDENT HATCHER: Does any party disagree that the exposure draft should be amended in line with the Full Bench decision on that question?

PN504

UNIDENTIFIED SPEAKER: We're happy for a revised exposure draft to be issued on the basis of the outcome of that Full Bench decision. Of course though we anticipate there'd be an opportunity to respond to that revised exposure draft.

PN505

VICE PRESIDENT HATCHER: Yes, there will be. Number 5, is that agreed?

PN506

MS SVENDSEN: Your Honour, I understood at the time that I put these in it was agreed but I also might have been mixing my conferences. I'm happy to conference about that particular matter and we may reach agreement, we may not.

PN507

VICE PRESIDENT HATCHER: Conference. Number 6, has that been resolved by the Full Bench decision?

PN508

MS SVENDSEN: I believe so, and number 7 too.

PN509

VICE PRESIDENT HATCHER: Right, so I can revise exposure draft?

PN510

MS SVENDSEN: I think number 7 is a general comment in a general situation and not relevant for this award.

PN511

VICE PRESIDENT HATCHER: Number 8?

PN512

MS VACCARO: Your Honour, it appears that number 8 night reflect the same issues that were raised in item number 4; so it's that question between minimum versus ordinary.

PN513

VICE PRESIDENT HATCHER: Yes, all right, so revise exposure draft and then further submissions. Right. Number 9 is not relevant.

PN514

MS SVENDSEN: Is not relevant?

PN515

VICE PRESIDENT HATCHER: Yes. Number 10?

PN516

MS SVENDSEN: Your Honour, there are two issues there. The matter pertaining to subclause 8.1(a) subparagraph (2) is not resolved. The variation sought by ASMOF in relation to that matter, which was in response to an inquiry, our submission from the Fair Work ombudsman; that variation is proposed by AIG but in our view would benefit from conference.

PN517

VICE PRESIDENT HATCHER: Ms Vaccaro, do you agree with that?

PN518

MS VACCARO: Yes.

PN519

VICE PRESIDENT HATCHER: The second issue, 8.1(a)(iii)?

PN520

MS SVENDSEN: We're happy for that matter to be conferenced.

PN521

VICE PRESIDENT HATCHER: Right, thank you. Number 11; this is an ASMOF claim.

PN522

MS VACCARO: Your Honour, I don't believe that our proposed variation is opposed by any parties.

PN523

VICE PRESIDENT HATCHER: Is that true?

PN524

MS SVENDSEN: Our position is that we don't oppose the position of ASMOF.

PN525

VICE PRESIDENT HATCHER: Any other party want to say anything about that?

PN526

MS SVENDSEN: No, your Honour.

PN527

VICE PRESIDENT HATCHER: I'll put that we agreed. Number 12; that's just a drafting issue, is it, Ms Vaccaro?

PN528

MS VACCARO: Yes, that is a drafting issue.

PN529

VICE PRESIDENT HATCHER: Conference?

PN530

MS VACCARO: I'm happy to have that conferenced.

PN531

VICE PRESIDENT HATCHER: Number 13?

PN532

MS VACCARO: It's unclear whether that's been opposed by any other party. We're going to have a difficulty.

PN533

VICE PRESIDENT HATCHER: Does anyone oppose that claim?

PN534

MS SVENDSEN: Yes, we don't (inaudible.)

PN535

VICE PRESIDENT HATCHER: You don't oppose it?

PN536

MS SVENDSEN: No.

PN537

VICE PRESIDENT HATCHER: Has there been any drafting proposed?

PN538

MS VACCARO: Only to the extent that it's actually suggested that the HPSS-relevant provision is adopted.

PN539

VICE PRESIDENT HATCHER: Perhaps - - -

PN540

MS VACCARO: Drafting - - -

PN541

VICE PRESIDENT HATCHER: It should.

PN542

MS SVENDSEN: Perhaps we could confirm that at tomorrow's conference.

PN543

VICE PRESIDENT HATCHER: Yes, well, perhaps the parties might try to finalise the drafting of the provision in conference tomorrow. Number 14; that's about a heading. That appears to be a drafting issue. Is there disagreement about it?

PN544

MS SVENDSEN: No, your Honour.

PN545

MS VACCARO: No, your Honour.

PN546

VICE PRESIDENT HATCHER: That's agreed?

PN547

MS SVENDSEN: Yes.

PN548

VICE PRESIDENT HATCHER: Number 15?

PN549

MS SVENDSEN: Much in the same way; so 15 and I think item 12 affect the same issue.

PN550

VICE PRESIDENT HATCHER: Item 12, conference - is 16 conference as well?

PN551

MS SVENDSEN: That's right.

PN552

VICE PRESIDENT HATCHER: Ms Vaccaro, 17; should have go to the conference?

PN553

MS VACCARO: It's not where any other parties oppose our proposition. It's simply - we've simply put an answer to one of the questions posed in the exposure draft so perhaps we can discuss tomorrow as to what we do with that.

PN554

VICE PRESIDENT HATCHER: Right. What's number 18 about, Ms Svendsen?

PN555

MS SVENDSEN: Your Honour, that was a general comment in a collective submission and not relevant to this award.

PN556

VICE PRESIDENT HATCHER: All right, so we'll strike that out. All right, that's all the matters in that award. So the conference will be before Commissioner Roe at 11 am tomorrow in Sydney. Now, Nurses' Award; is there any general proposals to deal with this award?

PN557

MR MCCARTHY: Yes, your Honour: it's Mr McCarthy in Melbourne from the ANMF. I just wanted to give a little bit of background, if I may.

PN558

VICE PRESIDENT HATCHER: Yes.

PN559

MR MCCARTHY: As far as a conference goes, just to give a bit more background; we've had about five meetings or teleconferences this year on the nurses' award, including before Commissioner Bissett. These led to documents that were referred to as agreed documents. They were attached to the ANMF's submissions of 15 July and 21 August. Some of the other parties agreed with those documents. In their written submissions - no other parties disagreed in their written submissions except AIG raised about two or three issues in relation to those documents which they disagreed with but apart from those two or three issues there were no other written comments that there was disagreement with those agreed items.

PN560

There's about 31 or so agreed items in those documents. As far as a conference - so that's background to our comment about a conference. We're hoping not to have a - our view would be we're hoping not to have a conference if possible because we think the vast majority of the items have previously been agreed in the way they should be handled. However, obviously that depends on what the other parties - what the other parties day. Apart from the 31 in the agreed items, there's - my calculation is there are about 14 to 16 substantive items which I don't think is too controversial. There's a number of items that fall out of the Fair Work Commission decisions on group one and that would be required to be dealt with via its exposure draft.

PN561

There's a few other items that have been indicated that have been withdrawn in the written submissions. So, look, if we have to have a conference we have to have a conference but my view at the moment would be that it might not be necessary and we might just be best going through the items individually and seeing at the end whether we need to have a conference or not.

PN562

VICE PRESIDENT HATCHER: All right. Will you be able to take us to each item and identify which of those categories you've identified the matters for and then see if there is anything left to discuss. Is that right?

PN563

MR MCCARTHY: Yes, your Honour. I circulated a document to other parties yesterday with my view of which letter should be in the status column. I got a couple of responses to that but no major disagreements to what I sent around. However, that depends on what people say today.

PN564

VICE PRESIDENT HATCHER: Right, as a general approach does anyone disagree with what Mr McCarthy has proposed?

PN565

MS VACCARO: Your Honour, we disagree to some extent with what Mr McCarthy has put. There have been a number of documents that have been purported as agreed documents that have been circulated and subsequently filed with the Commission. At no stage has Ai Group expressed support for those documents wholeheartedly. We raised a number of issues about them in our latest submission in August. There are other matters within those documents that we do disagree with. It appears that the parties might have taken silence to mean agreement, which is not the case at all. So we think a conference is worthwhile. It might not have to be long but it might give the parties an opportunity to finally ventilate all these issues.

PN566

VICE PRESIDENT HATCHER: So, Ms Vaccaro, does that mean none of the items that the ANMF thinks is agreed are in fact agreed?

PN567

MS VACCARO: Some we don't oppose: others we don't agree to. They've been expressed in our latest submission. There's a few others that I have also identified that I'm happy to go through today.

PN568

VICE PRESIDENT HATCHER: Does any other party have a major disagreement with the list or the position which the ANMF communicated, Ms Light?

PN569

MS LIGHT: AFEI certainly did. I had actually asked at the last conference that those documents were not filed as agreed and I'd indicated that we hadn't agreed and some parties had, but they certainly weren't agreed amongst everybody. As for the documents that Mr McCarthy forwarded through yesterday I don't believe that AFEI has received them. So if they those could be forwarded through. But we'd certainly agree with AI Group that this is a matter that would be added to the conferencing.

PN570

VICE PRESIDENT HATCHER: Does anyone else wish to give a different response? Mr McCarthy?

PN571

MS HEPWORTH: Your Honour ‑ ‑ ‑

PN572

VICE PRESIDENT HATCHER: Yes, sorry. Okay.

PN573

MS HEPWORTH: Sorry, the attachment that the ANMF circulated in there, or attached to their reply submission, they did make it clear that it was agreed by some parties and certainly not all, but the majority of what Mr McCarthy said the Private Hospitals we're in agreement with.

PN574

VICE PRESIDENT HATCHER: Right. Do you want to respond to any of that, Mr McCarthy, as a general approach before we go through these items one by one?

PN575

MR MCCARTHY: Just briefly. Yes, I'd agree that the second document we put in, based on comments made by AIG and possibly AFEI at a teleconference that we said that it was agreed by some parties, so we didn't indicate that that was completely agreed. As I said before, the only responses we've had to say that there's disagreement with those items are the ones made by AIG.

PN576

I suppose the other point is also that we're a little bit concerned that AIG has had plenty of opportunities to disagree with those agreed documents, which were put in in July and August, and if they're going today to come and put a whole range of additional matters that are disagreed then we're a little bit concerned that, you know, we're trying to move this matter along, and then, you know, just when we think we might actually be getting somewhere then there's more matters raised at the last moment, so we would be a bit concerned if there's a whole range of new matters that we now learn, as at October, are disagreed.

PN577

VICE PRESIDENT HATCHER: All right. Well, we'll note that but I don't suppose there's much we can do about that today. Mr McCarthy, to the extent that matters remain outstanding at least with AFEI and AIG, do you think a conference would be useful to try and wrap those matters up nothing that you've reached agreement apparently with other parties?

PN578

MR MCCARTHY: Well, subject to any other parties' comments about those agreed items, yes, look we're happy to go to a conference. Yes, we're happy to discuss those issues.

PN579

VICE PRESIDENT HATCHER: Well, Mr McCarthy, can I ask you to go through the items one by one and indicate what you think their status is, and then either Ms Vaccaro or Ms Light, if you take a different view and indicate they're disagreed, we'll refer them to a conference. Is that appropriate?

PN580

MR MCCARTHY: Yes, I'm happy to do that unless anyone objects.

PN581

VICE PRESIDENT HATCHER: All right. Go ahead Mr McCarthy.

PN582

MR MCCARTHY: This document that I'm reading from is the one that I sent to parties yesterday. I apologise if I didn't send it to the AFEI representative. Sorry, who was the AFEI representative?

PN583

VICE PRESIDENT HATCHER: Ms Light.

PN584

MR MCCARTHY: Jessica. I think I got a bounce back from you.

PN585

VICE PRESIDENT HATCHER: Yes. All right. Well, Mr McCarthy, we don't have your document, or I don't have it, but we have the summary of submissions, so can you go through the summary of submissions and identify by reference to that?

PN586

MR MCCARTHY: I will. I will, your Honour. Okay. Item 1 resolved. Sorry, resolved when I say resolved I'm referring to resolved by previous Full Bench decision, so this is an issue arising out of the Full Bench decisions on group 1.

PN587

VICE PRESIDENT HATCHER: All right. So, if I just stop there. Ms Vaccaro and Ms Light, unless you jump up I'm going to accept Mr McCarthy's or Mr Boyce, I'm going to accept Mr McCarthy's word for it, so I'll look to you to interrupt if you disagree.

PN588

MS VACCARO: We also consider well, I consider that to be resolved.

PN589

VICE PRESIDENT HATCHER: All right. Item 2? Mr McCarthy?

PN590

MR MCCARTHY: This one is look, this might be best dealt with after the other ones, but this is about the minimum hourly rate issue that was referred to in the Health Professionals Award as well by the Private Hospitals. This one item 2 is more of a general comment so I've put it down as agreed, because I don't think there's any substantive issue here, but this might depend on what the answer is to how the other parties respond to the specific items that we deal with later. There's probably about eight or 10 of them.

PN591

VICE PRESIDENT HATCHER: All right.

PN592

MS VACCARO: I think that's probably correct. It would probably be worth conferencing those issues that revolve around minimum hourly rate.

PN593

VICE PRESIDENT HATCHER: All right. Conference. Number 3?

PN594

MR MCCARTHY: Three, resolved by the Full Bench, R.

PN595

VICE PRESIDENT HATCHER: Yes. Number 4?

PN596

MR MCCARTHY: S, substantive. I know this is the same issue as item 27. They seem to be the same issues.

PN597

VICE PRESIDENT HATCHER: I'll just note that. Just hold on.

PN598

MS VACCARO: Your Honour, I sorry, I withdraw that.

PN599

MR MCCARTHY: All right. I'm assuming that the conferences aren't dealing with substantive issues.

PN600

VICE PRESIDENT HATCHER: Well, I thought you said that you didn't want a conference about substantive issues because they could be matters that go to a Full Bench, but if you take a different view then please tell me.

PN601

MR MCCARTHY: No. Yes. No I do think they should just go to a Full Bench. I think they've been discussed, so I don't think a conference would help with the substantive issues at this stage.

PN602

VICE PRESIDENT HATCHER: All right. Again, if Mr McCarthy identifies matters, a substantive issue, and any party thinks a conference would be worthwhile can they put their hand up, please?

PN603

MS LIGHT: We're happy to conference out the issue of meal breaks, but if Mr McCarthy is of the view there's no scope for agreement on his part it's probably not worthwhile.

PN604

COMMISSIONER ROE: Which one is the meal break?

PN605

VICE PRESIDENT HATCHER: That's 27, is it?

PN606

MS LIGHT: That's 27.

PN607

COMMISSIONER ROE: Okay.

PN608

VICE PRESIDENT HATCHER: Mr McCarthy?

PN609

MR MCCARTHY: If there are other matters worth conferencing about we're happy to discuss that at conference that issue.

PN610

VICE PRESIDENT HATCHER: All right. I'll refer that to conference. All right. Number 5?

PN611

MR MCCARTHY: Agreed.

PN612

MS VACCARO: We don't agree with that. We're happy to conference out. It concerns a few drafting issues and ‑ ‑ ‑

PN613

VICE PRESIDENT HATCHER: All right. Conference. Number 6?

PN614

MR MCCARTHY: Resolved by the Full Bench.

PN615

VICE PRESIDENT HATCHER: Yes. Number 7?

PN616

MR MCCARTHY: This was a general comment only, so no further action required, so it's either agreed or withdrawn.

PN617

VICE PRESIDENT HATCHER: Number 8? Determined by a Full Bench?

PN618

MR MCCARTHY: That was yes, R. Nine is R as well.

PN619

VICE PRESIDENT HATCHER: You're getting a bit cryptic now. R is what? Resolved is it?

PN620

MR MCCARTHY: Sorry, resolved by the Full Bench.

PN621

MS HEPWORTH: Resolved. Resolved by the Full Bench.

PN622

VICE PRESIDENT HATCHER: Resolved by Full Bench. All right. I see, there's a code there. All right.

PN623

MS HEPWORTH: Yes. It's the notes at the top, the status notes at the top of the summary that Mr McCarthy is referring to.

PN624

VICE PRESIDENT HATCHER: Yes. All right. So that was eight and nine.

PN625

MR MCCARTHY: Yes.

PN626

VICE PRESIDENT HATCHER: Yes. And number 10?

PN627

MR MCCARTHY: Ten is agreed. And in that there was no change to the exposure draft.

PN628

VICE PRESIDENT HATCHER: No disagreement. All right.

PN629

MR MCCARTHY: Eleven is resolved by the Full Bench.

PN630

VICE PRESIDENT HATCHER: Yes.

PN631

MR MCCARTHY: Twelve and 13 are the same issue. This was indicated as agreed in one of our submissions, however I understand that the AIG has a different view on this issue.

PN632

VICE PRESIDENT HATCHER: So 12 and 13 should go to a conference?

PN633

MR MCCARTHY: Yes. Fourteen, agreed. Fifteen ‑ ‑ ‑

PN634

VICE PRESIDENT HATCHER: Just hold on, Mr McCarthy. Is that agreed, Ms Vaccaro?

PN635

MS VACCARO: I understand we no longer press our objection in that matter.

PN636

VICE PRESIDENT HATCHER: Ms Light?

PN637

MS LIGHT: It's a matter that would require an amendment to the exposure draft to reword it to reflect the current award provisions. So the parties agreed to what was in the old award back into the exposure draft.

PN638

VICE PRESIDENT HATCHER: All right. Thank you. Yes, next one.

PN639

MR MCCARTHY: Fifteen, well, I said agreed, but AIG have a comment on this one.

PN640

MS VACCARO: That relates back to item number 2 about the minimum hourly rate issue that I indicated that would have value in conference.

PN641

VICE PRESIDENT HATCHER: All right. Conference.

PN642

MR MCCARTHY: Sorry, I don't think 15 relates to minimum hourly rate. This relates to the part-time clause. It's not the minimum hourly rate.

PN643

VICE PRESIDENT HATCHER: Let me have a look at this.

PN644

MS VACCARO: My apologies. I've jumped ahead. I'm talking about item number 16, and I previously discussed item 15. I think that's what Ms Light was also referring to; is that right?

PN645

VICE PRESIDENT HATCHER: So, let's go back. Item 14, was that agreed?

PN646

MS LIGHT: I think items 14 and 15 are the same issue. I think the whole clause was reworked.

PN647

COMMISSIONER ROE: So there's not an issue about 14 or 15 that it will require an amendment for the exposure draft; is that correct?

PN648

MS LIGHT: Yes.

PN649

COMMISSIONER ROE: All right.

PN650

VICE PRESIDENT HATCHER: So should there be a conference to finalise the drafting, or is it agreed what the amendment will look like?

PN651

MR MCCARTHY: The amendment was in the submissions so I thought that was agreed.

PN652

VICE PRESIDENT HATCHER: And that applies to 15 as well?

PN653

MR MCCARTHY: Correct, 14 and 15. Yes.

PN654

VICE PRESIDENT HATCHER: All right. So revise exposure draft in line with submissions; is that right?

PN655

MS LIGHT: In the line with the current part-time clause.

PN656

VICE PRESIDENT HATCHER: All right. Now, 16?

PN657

MS VACCARO: Sixteen is what I had raised earlier. It has to do with the minimum hourly rate.

PN658

VICE PRESIDENT HATCHER: That goes to a conference.

PN659

MS VACCARO: Yes.

PN660

MR MCCARTHY: Can I just clarify that AIG is disagreeing with the agreement on item 16?

PN661

MS LIGHT: If you want to put it that way. You can say that.

PN662

VICE PRESIDENT HATCHER: They don't yet agree I think is the way they put it.

PN663

MR MCCARTHY: Okay.

PN664

VICE PRESIDENT HATCHER: Seventeen?

PN665

MR MCCARTHY: Agreed.

PN666

VICE PRESIDENT HATCHER: All right. Agreed.

PN667

MR MCCARTHY: Eighteen agreed.

PN668

VICE PRESIDENT HATCHER: Yes.

PN669

MR MCCARTHY: Nineteen agreed.

PN670

MS VACCARO: We do not agree with that. That's another minimum hourly rate issue.

PN671

VICE PRESIDENT HATCHER: All right. So 19 go to a conference. Twenty?

PN672

MR MCCARTHY: Twenty is an outstanding issue. This is the issue of whether casual loading is payable on top of overtime. So this is well, it's an outstanding issue, whether it's a technical issue or a substantive issue. It may be a substantive issue. And also, as I note, it's a casual issue, so I'm not quite sure whether this would be dealt with by the casual Full Bench or by substantive Full Bench but this is outstanding.

PN673

VICE PRESIDENT HATCHER: It would be the casual/part-time Full Bench.

PN674

MR MCCARTHY: Yes.

PN675

MS VACCARO: Would there be utility in discussing the matter at conference before referring it on or are you of the view that ‑ ‑ ‑

PN676

VICE PRESIDENT HATCHER: There may be an issue of principle involved which may be dealt with generally by the Full Bench potentially. Twenty-one?

PN677

MR MCCARTHY: Just before I go on, your Honour.

PN678

VICE PRESIDENT HATCHER: Yes.

PN679

MR MCCARTHY: I might just highlight now that the casual overtime should also relate to three other items that I might raise now. Fifty-two.

PN680

VICE PRESIDENT HATCHER: So what was it? Fifty-two?

PN681

MR MCCARTHY: Fifty-two.

PN682

VICE PRESIDENT HATCHER: Just slow down.

PN683

MR MCCARTHY: Fifty-nine.

PN684

VICE PRESIDENT HATCHER: Just slow down. Fifty-two is on what page? Yes, all right.

PN685

MR MCCARTHY: Yes, 52.

PN686

VICE PRESIDENT HATCHER: Fifty-two. Fifty-nine?

PN687

MR MCCARTHY: Fifty-nine, 77.

PN688

VICE PRESIDENT HATCHER: Does anyone disagree? No.

PN689

MS VACCARO: Your Honour, we don't disagree with those items being related. I just would like to raise something to correct the record. With the expression of AI Group's summary of the issues with regard to this item, item 20, item 52 and item 59, it says there that we support ASAA's proposed variation. We no longer hold that position and we'd like the further opportunity to reconsider.

PN690

VICE PRESIDENT HATCHER: All right. Do not support. Thank you. Number 21? Again, is this ‑ ‑ ‑

PN691

MR MCCARTHY: Yes, 21, part of it is the common issues, casual/part-time common issue, because there's a minimum engagement for casuals and part time. There also is a part of the aspect that deals with full timers, so minimum engagement for full timers which would be substantive and probably should follow any decision in the casual/part-time common issue.

PN692

VICE PRESIDENT HATCHER: Does anyone disagree?

PN693

MS LIGHT: We disagree to the extent that it covers full-time employment. That certainly shouldn't follow any decision in the casual and part-time Full Bench.

PN694

VICE PRESIDENT HATCHER: Yes.

PN695

MS LIGHT: But, I mean, to the extent that it's a substantive matter I think it's unlikely that the parties would reach agreement through conferencing.

PN696

VICE PRESIDENT HATCHER: Unlikely. I think I'll just note that as a substantive issue at this stage. All right, 22?

PN697

MR MCCARTHY: 22 and 23 seem to be the same issue or they're very related. I've said agreed or withdrawn. I believe I'm not sure, it depends on what the Aged Care employers say, but I thought this was agreed or withdrawn.

PN698

VICE PRESIDENT HATCHER: Mr Boyce, yes?

PN699

MR BOYCE: I believe it's been withdrawn.

PN700

VICE PRESIDENT HATCHER: All right. That's 22 and 23?

PN701

MR BOYCE: Yes.

PN702

VICE PRESIDENT HATCHER: All right. 24?

PN703

MR MCCARTHY: Agreed.

PN704

VICE PRESIDENT HATCHER: Agreed. 25?

PN705

MR MCCARTHY: Agreed.

PN706

VICE PRESIDENT HATCHER: 26?

PN707

MR MCCARTHY: Substantive.

PN708

VICE PRESIDENT HATCHER: Any value in a conference?

PN709

MR MCCARTHY: I don't think so.

PN710

MR BOYCE: It's a minor variation.

PN711

VICE PRESIDENT HATCHER: Mr Boyce?

PN712

MR BOYCE: It's a minor variation. I think it's worthwhile discussing it at a conference.

PN713

VICE PRESIDENT HATCHER: All right. Ms Light and Ms Vaccaro, your view?

PN714

MS VACCARO: I'm happy to discuss the matter.

PN715

VICE PRESIDENT HATCHER: All right. We'll have that at a conference. Twenty-seven we've dealt with. Twenty-eight?

PN716

MR MCCARTHY: This was a proposal by AFEI. I've written down "withdrawn?" because there was no submissions made by AFEI in relation to this proposal.

PN717

VICE PRESIDENT HATCHER: Ms Light, is this pressed?

PN718

MS LIGHT: It is pressed. I understand that there are a number of issues relating to the meal break provisions that would benefit from conferencing of the parties. AI Group as well as the ANMF have claims. We had circulated to parties a proposed variation. Perhaps we've overlooked filing that.

PN719

VICE PRESIDENT HATCHER: All right. So that's conference. Twenty-nine, would that also be a conference, Mr McCarthy?

PN720

MR MCCARTHY: Twenty-nine substantive, but, yes, if other breaks issues are being discussed at a conference, then, yes. Conference.

PN721

VICE PRESIDENT HATCHER: The same applies to 30 and 31?

PN722

MR MCCARTHY: Thirty I've got down as agreed.

PN723

VICE PRESIDENT HATCHER: Sorry, 30 or 31?

PN724

MR MCCARTHY: Thirty I've got down as agreed.

PN725

VICE PRESIDENT HATCHER: All right.

PN726

MS LIGHT: With 30 it's ‑ ‑ ‑

PN727

MS HEPWORTH: That's the moving of the sub-clause, I think the bit that's agreed, your Honour.

PN728

MS VACCARO: So item 30 concerns the movement of the sub-clause. The other parties are of the view that it sits better in another location. We don't share that view, but we're happy for the Full Bench to determine that issue or if you think that we should discuss it tomorrow, we can discuss it at conference.

PN729

VICE PRESIDENT HATCHER: Well, is that something you want to argue before a Full Bench, is it?

PN730

MS VACCARO: Sorry, I don't mean a separately constituted Full Bench. I was leaving it in your hands, your Honour.

PN731

VICE PRESIDENT HATCHER: Well, if it's not agreed, I'll go to a conference. Number 31?

PN732

MR MCCARTHY: Substantive.

PN733

VICE PRESIDENT HATCHER: Number 32?

PN734

MR MCCARTHY: Agreed.

PN735

VICE PRESIDENT HATCHER: All right. I'll put that as agreed. Number 33? Agreed as well?

PN736

MR MCCARTHY: Agreed, yes. And 34 as well.

PN737

VICE PRESIDENT HATCHER: All right. 35?

PN738

MR MCCARTHY: This is withdrawn by the ANMF.

PN739

VICE PRESIDENT HATCHER: 36?

PN740

MR MCCARTHY: I believe the HSU withdrew this in their submissions.

PN741

VICE PRESIDENT HATCHER: 37?

PN742

MR MCCARTHY: Agreed.

PN743

VICE PRESIDENT HATCHER: 38?

PN744

MR MCCARTHY: Resolved by Full Bench.

PN745

VICE PRESIDENT HATCHER: 39?

PN746

MR MCCARTHY: Agreed.

PN747

VICE PRESIDENT HATCHER: Number 40?

PN748

MR MCCARTHY: Substantive.

PN749

MR BOYCE: I might just indicate, in relation to 40, it's proposed that that clause only apply in the aged care industry. So, we'll put in a new variation but it will essentially be the same clause but limited to the aged care industry.

PN750

VICE PRESIDENT HATCHER: Did you hear that Mr McCarthy?

PN751

MR MCCARTHY: Yes, I heard that, thanks.

PN752

VICE PRESIDENT HATCHER: Does that make any difference?

PN753

MS SVENDSEN: No.

PN754

MR MCCARTHY: No, your Honour.

PN755

VICE PRESIDENT HATCHER: Just reduce the number of people you're fighting with.

PN756

MS SVENDSEN: However, we are happy for them to put a new draft.

PN757

VICE PRESIDENT HATCHER: Number 41?

PN758

MR MCCARTHY: Resolved by Full Bench.

PN759

VICE PRESIDENT HATCHER: Number 42?

PN760

MR MCCARTHY: Substantive.

PN761

VICE PRESIDENT HATCHER: 43?

PN762

MR MCCARTHY: We're agreed.

PN763

VICE PRESIDENT HATCHER: Number 44?

PN764

MR MCCARTHY: I think this has been withdrawn by the aged care employers.

PN765

VICE PRESIDENT HATCHER: 45?

PN766

MR MCCARTHY: This has been resolved by a Commission decision.

PN767

VICE PRESIDENT HATCHER: 46?

PN768

MR MCCARTHY: I believe the HSU is not pursuing.

PN769

MS SVENDSEN: We are not pursuing this matter at this time, your Honour.

PN770

VICE PRESIDENT HATCHER: 46 is withdrawn. 47?

PN771

MR MCCARTHY: 47 is a little bit confusing, this item, the way it's in the table. The ANMF proposal is withdrawn, so the "W" that's next to the ANMF is correct. Then the HSU is substantive I would say.

PN772

VICE PRESIDENT HATCHER: So your claim is pressed Ms Svendsen?

PN773

MS SVENDSEN: It is, your Honour, and it is substantive. It's confusing because it's all been put together.

PN774

VICE PRESIDENT HATCHER: 48?

PN775

MR MCCARTHY: Agreed.

PN776

MS VACCARO: This is not agreed, your Honour. There's probably utility in a conferencing issue.

PN777

VICE PRESIDENT HATCHER: It will go to conference. 49?

PN778

MR MCCARTHY: Substantive.

PN779

VICE PRESIDENT HATCHER: 50, that's agreed is it?

PN780

MR MCCARTHY: 49 is substantive.

PN781

VICE PRESIDENT HATCHER: No, 50, that's agreed?

PN782

MR MCCARTHY: 50 agreed.

PN783

VICE PRESIDENT HATCHER: 51?

PN784

MR MCCARTHY: Agreed.

PN785

MS VACCARO: That's not agreed.

PN786

VICE PRESIDENT HATCHER: Conference, not agreed. We've done 52 and 53. 54?

PN787

MR MCCARTHY: 53, sorry, that's conference as well. I was going to say agreed to 53 but I assume that's conference.

PN788

VICE PRESIDENT HATCHER: 54?

PN789

MR MCCARTHY: Agreed.

PN790

VICE PRESIDENT HATCHER: Is that right, Ms Vaccaro?

PN791

MS VACCARO: That's right, so long as the exposure draft clause remains the same. That's my understanding of the agreement.

PN792

VICE PRESIDENT HATCHER: Is that right, Mr McCarthy?

PN793

MR MCCARTHY: If there's an amendment required (indistinct).

PN794

VICE PRESIDENT HATCHER: At the top of page 36 refers to an amendment does it?

PN795

MS VACCARO: Sorry, that might be my error. 54 is not agreed, that should be a matter for conferencing. 55 is what I was referring to.

PN796

VICE PRESIDENT HATCHER: So 55 is agreed, no change to exposure draft? Is that right Mr McCarthy?

PN797

MR MCCARTHY: That's my understanding, yes. 56 is substantive. 57 is actually the same issue as 55.

PN798

VICE PRESIDENT HATCHER: So agreed no change exposure draft.

PN799

MR MCCARTHY: That's right.

PN800

VICE PRESIDENT HATCHER: 58?

PN801

MR MCCARTHY: 58 agreed or withdrawn, no change required.

PN802

MS VACCARO: With 58, so long as it's withdrawn, we don't have any opposition. It's noted in the summary document that we have a problem with what's been put. But so long as the matter has been withdrawn I guess we agree to that.

PN803

VICE PRESIDENT HATCHER: That would result in no change to the exposure draft.

PN804

MS VACCARO: That's right.

PN805

MR MCCARTHY: Correct.

PN806

VICE PRESIDENT HATCHER: Number 59?

PN807

MR MCCARTHY: Resolved by Full Bench.

PN808

MS VACCARO: Sorry, your Honour - - -

PN809

VICE PRESIDENT HATCHER: 60 is, is it? Yes, Ms Vaccaro?

PN810

MS VACCARO: I am so sorry to go back to Item 59, sorry, 58. On reflection, it's go to draft replace with a reference to loadings with penalty rates, and that's the matter with which we take issue. So perhaps if we could refer 58 to conferencing.

PN811

VICE PRESIDENT HATCHER: Sorry, what was 60, Mr McCarthy?

PN812

MR MCCARTHY: Resolved by Full Bench.

PN813

VICE PRESIDENT HATCHER: 61?

PN814

MR MCCARTHY: 61 agreed.

PN815

VICE PRESIDENT HATCHER: 62?

PN816

MR MCCARTHY: This is either outstanding or a substantive. It relates to annual leave loading. This was a question raised in the exposure draft. Basically, how many weeks the leave loading is paid on. There wasn't an issue raised by the parties but it's there's differences.

PN817

VICE PRESIDENT HATCHER: Would a conference be of any utility, do any of the parties think?

PN818

MR BOYCE: Yes.

PN819

MR MCCARTHY: I'd say doubtful.

PN820

VICE PRESIDENT HATCHER: Mr Boyce says "yes" so conference. 63?

PN821

MR MCCARTHY: This relates to the same clause, so I think it should be dealt with, with 62.

PN822

VICE PRESIDENT HATCHER: Conference. 64?

PN823

MR MCCARTHY: Resolved by Full Bench.

PN824

VICE PRESIDENT HATCHER: 65?

PN825

MR MCCARTHY: Agreed.

PN826

MS VACCARO: Sorry, it's not agreed by AI Group.

PN827

VICE PRESIDENT HATCHER: So that should go to a conference?

PN828

MS VACCARO: That's right.

PN829

VICE PRESIDENT HATCHER: 66 resolved by Full Bench is it?

PN830

MR MCCARTHY: 66 I've got agreed.

PN831

MS FISHER: The issue with that one, your Honour, was to retain the wording in the existing award and not the wording in the exposure draft, because the exposure draft changed the intent.

PN832

VICE PRESIDENT HATCHER: So it's agreed that we retain current award wording?

PN833

MS FISHER: Current award, yes.

PN834

MR MCCARTHY: 67 is a common issue, public holidays.

PN835

VICE PRESIDENT HATCHER: Yes.

PN836

MR MCCARTHY: 68 and 69 are, I said agreed, but they're minimum hourly rate issues.

PN837

MS VACCARO: They are not agreed with AI Group.

PN838

VICE PRESIDENT HATCHER: They will go to conference.

PN839

MR MCCARTHY: 70 is agreed.

PN840

VICE PRESIDENT HATCHER: All right, that's agreed.

PN841

MR MCCARTHY: 71 is agreed, no change required.

PN842

VICE PRESIDENT HATCHER: Agreed, no change required. 72?

PN843

MR MCCARTHY: 72 is substantive. If we're dealing with the other issues at conference this might be dealt with at conference, I think it's less controversial than some of the other ones.

PN844

VICE PRESIDENT HATCHER: 73, that's substantive I gather is it, or not pursued?

PN845

MR MCCARTHY: That's withdrawn, yes, by the ANMF.

PN846

VICE PRESIDENT HATCHER: 74?

PN847

MR MCCARTHY: 74 I had down as (indistinct) we actually (indistinct) to discuss this one but, given the subject matter, it's probably conference.

PN848

VICE PRESIDENT HATCHER: Same with 75? That's agreed, is it, 75?

PN849

MR MCCARTHY: Agreed. It's just the order of the columns.

PN850

VICE PRESIDENT HATCHER: 75 is agreed. 75?

PN851

MR MCCARTHY: It's either withdrawn or resolved by the Full Bench.

PN852

VICE PRESIDENT HATCHER: Does that require amendments to the exposure draft?

PN853

MR MCCARTHY: Pardon, your Honour?

PN854

MS SVENDSEN: I don't think it does require amendments to the exposure draft. Does it?

PN855

MR MCCARTHY: No, I don't think so, no, I don't think so, Lee, it's just - I mean these were submissions that were made on the Group 1 awards, so it's sort of subject to Group 1.

PN856

VICE PRESIDENT HATCHER: All right. We've done 77. 78?

PN857

MR MCCARTHY: Agreed.

PN858

VICE PRESIDENT HATCHER: So there's quite a few conference notes there. How long do the parties estimate a conference might require?

PN859

MS VACCARO: Half a day perhaps.

PN860

VICE PRESIDENT HATCHER: Would the parties be available to do it tomorrow, or is that too soon, before Commissioner Roe in Sydney?

PN861

MS VACCARO: I would be available tomorrow after the medical practitioners' award, but I'm unsure when that is likely to be.

PN862

UNIDENTIFIED SPEAKER: The preference would be not tomorrow.

PN863

VICE PRESIDENT HATCHER: Does the ANMF agree with that, not tomorrow?

PN864

MR MCCARTHY: I could do tomorrow if necessary, although I'm in Melbourne. But if the other people can't do it tomorrow - - -

PN865

UNIDENTIFIED SPEAKER: I'm sorry, can I have someone else attend?

PN866

MR BOYCE: Aged care employers can attend tomorrow.

PN867

MS FISHER: Private hospitals are okay for tomorrow.

PN868

COMMISSIONER ROE: So we'll have a conference tomorrow at 1.30 pm, assuming the conference for the medical practitioners won't require a lot of time. So, I think if we have a conference at 1.30 pm tomorrow for nurses. So who would require video-link? That is, who would not be able to be present in Sydney?

PN869

MS FISHER: Your Honour, the private hospitals would request a video-link for Brisbane please.

PN870

MR MCCARTHY: And the ANMF for Melbourne.

PN871

COMMISSIONER ROE: Thank you.

PN872

JUSTICE ROSS: No other matters for that award? All right, we'll adjourn until 2 pm when we'll deal with the transport award.

ADJOURNED INDEFINITELY [1.05 PM]