AM2014/300, Transcript of Proceedings [2015] FWCTrans 722 (23 December 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009                                       1052840

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT KOVACIC
COMMISSIONER ROBERTS

AM2014/300

s.156 - 4 yearly review of modern awards

Four yearly review of modern awards

(AM2014/300)

Award flexibility

Sydney

9.34 AM, THURSDAY, 10 DECEMBER 2015

Continued from 4/09/2015

PN1835

JUSTICE ROSS: Could I have appearances, please? Firstly in Sydney.

PN1836

MS L COTTAM: If it pleases, Cottam, initial L, for the Australian Workers Union.

PN1837

JUSTICE ROSS: Ms Cotton.

PN1838

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

PN1839

JUSTICE ROSS: Thanks, Mr Maxwell.

PN1840

MR B FERGUSON: If the Commission pleases, Ferguson, initial B, for the Australian Industry Group.

PN1841

MR ARNDT: Please the Commission, Arndt, appearing for ABI and New South Wales BC, seeking permission to appear.

PN1842

JUSTICE ROSS: Thanks, Mr Arndt. Permission's already been granted at some point during the proceedings.

PN1843

MR D HAMILTON: Commission pleases, Hamilton, initial D, for the Australian Entertainment Industry Association.

PN1844

JUSTICE ROSS: Thanks, Mr Hamilton. In Melbourne?

PN1845

MS B WILES: Your Honour, it's Wiles, initial B, for the Textile Clothing and Footwear Union of Australia.

PN1846

JUSTICE ROSS: Thank you, Ms Wiles.

PN1847

MS MOUSSA: If the Commission pleases - sorry.

PN1848

JUSTICE ROSS: That's all right.

PN1849

MS A MOUSSA: If the Commission pleases, Moussa, initial A, for the Australian Manufacturing Workers Union.

PN1850

JUSTICE ROSS: Thank you.

PN1851

MS MOUSSA: Your Honour, I'm not sure if Mr Nguyen has appeared in Sydney but he might be arriving later today.

PN1852

JUSTICE ROSS: Right. Anybody else? No. Well can I go to the statement that we put out following the filing of the various submissions in this phase of the proceedings, and that indicated that some matters would be going through another process so that there can be further information or they'd be referred to another Bench. We indicated that the resources in Maritime awards would be referred to Kovacic DP for conference, to facilitate some discussion between the parties and the Higher Education Award would be referred to the Full Bench that's currently constituted to deal with substantive claims in that award, consistent with the approach we took in relation to the annual leave common issue.

PN1853

We also attached a schedule for the hearing and the matters at 9.30 really deal with Ai Group's general submission and some responses to that. I might go through the position, as I understand it, and we've obviously had the opportunity to read the material that's been filed. The Ai Group supports varying modern awards that did not previously contain TOIL provisions to include or to insert the model term, and there are 36 such awards. Are they conveniently set out in an attachment to one of the earlier decisions, Mr Ferguson. Can you recall or - - -

PN1854

MR FERGUSON: I don't recall.

PN1855

JUSTICE ROSS: I might get you to maybe subsequently just send the list that you have of those.

PN1856

MR FERGUSON: I'm more than happy to do that.

PN1857

JUSTICE ROSS: Thank you. Ai Group opposes the insertion of the model term into awards which already contain a TOIL term. There are a number of reasons advanced for that. It's put that the modern award objective does not necessitate the introduction of uniform TOIL terms and that there is a need to balance simplicity and regulatory burden issues on the one hand, from the range of other section 134 considerations. The essence of your position and much like ABI's is that while the balance, when you do that exercise, ought to favour not disturbing the status quo for those awards that have the provision.

PN1858

At paragraph 14, I'm just trying to draw a distinction between what you say at 14 and what you say at 19. What you say at 19 I understand that's put on the basis that because these provisions have been in these awards for a number of years one can assume that they're well understood. Paragraph 14, in the second sentence you've said "which have been working well over a long period", and I'm just trying to test the basis for that assertion.

PN1859

MR FERGUSON: Look, we can't point to an evidentiary basis that we've established before the Commission.

PN1860

JUSTICE ROSS: Is it more the absence of problems that have been brought to your organisation's attention rather than - - -

PN1861

MR FERGUSON: Well yes, it's based on that and the perception or the view that the organisation has formed in dealing with employers in relation to these clauses over many years but I can't say that I have an evidentiary basis to put that to the Bench.

PN1862

JUSTICE ROSS: No, no, I just want to understand what the -

PN1863

MR FERGUSON: But it is that. It's the collective view that our organisation had of the operation of those terms as our members, you know, relayed that to us over the years and the view that we've held. But I can't put it higher than that.

PN1864

JUSTICE ROSS: I might just touch on ABI's submission, Mr Arndt, for a moment and then the union's submissions in response because there are some matters in there that I wanted Mr Ferguson to go to. Look, ABI puts a specific position in relation to the Clerks Award. You also, and we'll get to this later in the morning, oppose the submissions put in relation to the SACS Awards. You support the AMA and NFF positions in relation to their areas and as is the position with Ai Group, you support the inclusion of the model term in those awards which don't currently provide for a time off in lieu of overtime provision. The AMWU vehicle division and the TCFUA and probably others put a submission in opposition to the view taken by Ai Group or at least that part of your view that relates to the variation of modern awards which currently contain a TOIL provision.

PN1865

There was one part of the AMWU, I think it is the AMWU's submission at paragraph 4. Could I take you to that, Mr Ferguson?

PN1866

MR FERGUSON: Yes. I'll confess to the Bench at this point in my eagerness to get here this morning I've picked up the wrong file, so I'm relying on Mr Arndt. So I apologise if I'm a little vague in my referencing.

PN1867

JUSTICE ROSS: No, no and look if you need to take it on notice, you can take it on notice. These things happen. You see the point that's put against you there is that in the three awards that are identified; the manufacturing, food and beverage and graphic arts, that they currently contain requirements. So they're not sort of what, for want of a better description, one might describe as the bare TOIL clause.

PN1868

MR FERGUSON: Yes.

PN1869

JUSTICE ROSS: They contain a requirement for the employer to keep a copy of the TOIL agreements as part of their time and wages records, and I think that's put against you on the basis that you say that's one of the restrictions in flexibility, for want of a better description, in the model term and that's one of the bases on which you say the model term shouldn't replace an existing term.

PN1870

MR FERGUSON: Yes.

PN1871

JUSTICE ROSS: I mean I understand the rest of their submissions are variously directed at aspects of it but this one seems to be more specific.

PN1872

MR FERGUSON: Yes, look there are obviously - I think I understand what your Honour's coming to. There are different elements of the model term that would represent in some ways an additional burden on employers, or restriction, depending on what the nature of the existing arrangement is. Now in some awards, and the TOIL provisions are of course a little bit more substantial than in others and so the burden from the imposition of the model clause is not as great. I think underlying our position or the heart of it really is that we say in all of the situations where there's what I'm going to call a more flexible approach, but in essence a less burdensome or a less restrictive approach, there's really no case being mounted for establishing that that should be restricted.

PN1873

JUSTICE ROSS: So I mean as we're required to do, we would look at each award on a case by case basis and you have some awards where it might be described as the sort of the family test case provisions bare TOIL clause.

PN1874

MR FERGUSON: Yes.

PN1875

JUSTICE ROSS: And it's gone in. Other awards on the material before us have had a long history of TOIL provisions, pastoral will be one of those, and it's in a different form to the previous standard provision, if I can put it that way. When we come to look at those issues we should be looking at the particular clause that's in there.

PN1876

MR FERGUSON: Yes.

PN1877

JUSTICE ROSS: You say despite the fact that in the three awards that the AMWU identifies, that there was that additional provision still when you balance it against the model term you shouldn't disturb - - -

PN1878

MR FERGUSON: There are other restrictions that would be introduced with the model term, such as, from memory, that the additional time restriction, in the sense that it had to be taken now within a certain period that I don't think existed before, within a six month period if you will. I'm just using that as one example.

PN1879

JUSTICE ROSS: You look at that another way, that can be a flexibility, it gives you more capacity to implement it over a longer period of time as opposed to almost being required to do it within a short period.

PN1880

MR FERGUSON: That's why I'm saying, in different awards there's a different consideration. For example, in the Vehicle Award I think currently it's quite a short time period. Now, I think on balance when you look at that provision and on consideration of the submissions that are put well, perhaps the model clause is more flexible when you weigh the two.

PN1881

JUSTICE ROSS: Well, at least in that respect.

PN1882

MR FERGUSON: In that respect.

PN1883

JUSTICE ROSS: But in other respects you say it may not be, and that's probably why you need to look at it case by case, is that the proposition?

PN1884

MR FERGUSON: That's right, and I suppose it comes to - I suppose we've put the Bench in a position that's not ideal in that we haven't, unlike in the annual leave proceedings, identified specifically a list of awards, because I think we weren't alive to some of those subtleties initially.

PN1885

JUSTICE ROSS: No, no, I think - well, that's something that we have to be satisfied of as we go through it.

PN1886

MR FERGUSON: That's right.

PN1887

JUSTICE ROSS: Now having had the model term, we need to now look at the context of each award.

PN1888

MR FERGUSON: That's right.

PN1889

JUSTICE ROSS: And make a decision on that basis.

PN1890

MR FERGUSON: Yes. And initially we thought that might be quite a simple assessment of saying, well, yes, it would go in. But as we've looked through them, and in light of the submissions, we've realised a few more subtleties.

PN1891

JUSTICE ROSS: Well, and that has come up, look, in a couple of areas, and it's really as we've got to this process, live performance is one of them, where both parties are indicating, having regard to the unusual features in that industry, a more cautious approach ought to be taken. And I think you can take it that we will be looking closely at each of those areas and we will be adopting some caution. If we don't have enough information we will be coming back. Which is partly the thinking behind the Maritime and Resources Awards because the unions have not really engaged in that, and they may have a similar view as they've had in annual leave, on maritime, for example.

PN1892

MR FERGUSON: And I think our position was driven from the idea of caution.

PN1893

JUSTICE ROSS: Yes.

PN1894

MR FERGUSON: Perhaps we've been too cautious, because there may be some merit as to a move to the model.

PN1895

JUSTICE ROSS: Indeed, and look, this may not - I doubt that this will be the last of these hearings, in relation to these clauses, that we will be having. And we want to make sure everyone has got an opportunity to put what they want to say about the context of their particular industry. Now, some have done that in detail, the Pastoral Award, NFF submission, will be an illustration of that. Others have sort of only become alive to the issue relatively late.

PN1896

MR FERGUSON: Well, then we will - - -

PN1897

JUSTICE ROSS: We need to provide some sort of process for them so that they can deal with it.

PN1898

MR FERGUSON: And that, equally, might allow us to look at some of those subtleties.

PN1899

JUSTICE ROSS: And it may be that further discussion with the unions in some of those areas may reach an accommodation that suits the nature of that industry. But I guess what nobody seems to be disputing is that at least in 36 awards that don't have anything, then - that we should proceed with the model term there. We will still be checking each of those awards and satisfying ourselves in each case, but that seems to be the area where there's no contention, really. It's the - once you go beyond that and you're dealing with awards which - well, I have to check whether live entertainment is in that 36 list, but if it is then that would be an issue still in contention. But for most of them, nobody is saying - nobody is opposing the model term. It's really in the other areas, and there are levels of difficulty in the other areas, it seems to be the position.

PN1900

MR FERGUSON: I think that's right.

PN1901

JUSTICE ROSS: Okay. So the submissions against you, the AMWU supports the variations of the awards that it has an interest in, and it identifies those, it generally opposes what AI Group says about those. Vehicle Manufacturing RS&R deals with the inclusion in the model term and awards that provide time for penalty. They make some specific comments on the draft of termination, which I will come back to.

PN1902

TCFUA make similar submissions supporting the model clause in the TCF and Dry Cleaning Award, they also make an observation that I wanted to just clarify in terms of our position. They characterise our findings as - and I suppose this is just a matter of perception if you're supporting the insertion of the model term then of course you would characterise them this way, if you're opposing it you might characterise them differently. They say that our findings indicate strongly that the inclusion of the finalised term is necessary.

PN1903

Well, the findings are intended to have settled the model term, they expressed a provision view about - that on its face it seems appropriate to go in. But to be clear, that assessment as to whether it goes into a particular award or not has been made. And the whole purpose of this process, and we've already seen in relation to some of the areas, there are arguments that are being advanced about the particular circumstances of a particular industry and award, such that would warrant a different approach. And indeed for that matter, some of the unions are arguing for the retention of some part of an existing TOIL provision as well.

PN1904

So I just wanted to make it clear from our purpose that it's not unlike the annual leave issue, we've gone through the model term issue, and now we're looking at the question of whether that model term should be inserted in particular modern awards, and that's quite a different exercise. And there would have been parties who, when we had the earlier proceedings, might not have been alive to the prospect that this model term may end up in their award, and this is the opportunity for them to put forward submissions about it. So there should be no - I don't think I'd characterise it as a strong finding in the way that it is in the submission, that was the only observation I wanted to make. Is there anything further that either AI Group or ABI want to say about their submissions before I invite the unions as to whether they've got anything further they want to say?

PN1905

MR FERGUSON: Look, there is an issue that will probably - in light - partly in response to the TCFUA submission. It relates - - -

PN1906

JUSTICE ROSS: Yes. This is this - where there's a penalty - where it's a time for penalty type arrangement and whether you need to have - yes.

PN1907

MR FERGUSON: Yes.

PN1908

JUSTICE ROSS: Whether you need the same level of protection.

PN1909

MR FERGUSON: Well, I think - that's right. There was a finding to the effect, and I - - -

PN1910

JUSTICE ROSS: Yes.

PN1911

MR FERGUSON: The reason I've said - I will be general - that it wasn't necessary to have a separate written agreement in the context, and I will come back to what was necessary.

PN1912

JUSTICE ROSS: Yes, I'm quite sure it was like that. But I know the one you're referring to, and they refer to it in their submission as well.

PN1913

MR FERGUSON: Yes. And I think we put rather ambitious, you know, and we say ideal remedies, which is either not altering those awards, not including that relevant clause in its entirety. I would suggest that the other option, if you went with us on that, would be to remove the obligation to have a separate written agreement on each occasion in those contexts.

PN1914

JUSTICE ROSS: Yes.

PN1915

MR FERGUSON: Where, if I recall correctly in the first hearing, there was some discussion about the fact that, well, there would be merit in allowing an ongoing arrangement to be put in place. Now, where you haven't got the financial incentive on the employer to use that in some inappropriate way, there would be no real justification or necessity, in the relevant sense, to limit that. So perhaps that - in those awards it could be treated a little differently through some sort of redrafting of the provision.

PN1916

JUSTICE ROSS: Yes.

PN1917

MR FERGUSON: Look, in part it depends on how you characterise the Bench's finding but - - -

PN1918

JUSTICE ROSS: No, no. Well, look, just bear with us for a moment. There are 10 awards in that category, from memory, aren't there?

PN1919

MR FERGUSON: There are.

PN1920

JUSTICE ROSS: Look, I'm conscious that not all of the people with an interest in those 10 awards are here, and it does raise an issue. And what we will - what we're minded to do is just provide a further opportunity for those parties to say something about the issue that has been raised. And we might deal with that in either a separate statement or as part of any decision that emerges from the proceedings today. But you can take it that we wouldn't determine that issue now.

PN1921

MR FERGUSON: Yes.

PN1922

JUSTICE ROSS: Well, with - I don't say this, you know, in a pejorative way, but I've got your submission about it and we've got the TCFUA, but there are interests across the other awards that may want to say something about it as well. And I think I would rather put it in a statement, put it out that, well, this is the issue, what do you want to say about it. And that gives you an opportunity to precisely identify.

PN1923

MR FERGUSON: Yes.

PN1924

JUSTICE ROSS: And it doesn't really turn on what might have been said so much in the decisions, it's a merit issue. And the merit issue is, well - well, the merit argument is that do you need the same level of safeguards and protections that are provided in the model term, in circumstances where it is not TOIL on an hour-for-hour basis, but TOIL on a penalty-rate basis. And that's the question. So - and I think we would want to hear a bit more from the parties about that.

PN1925

MR FERGUSON: Yes.

PN1926

JUSTICE ROSS: And including perhaps some material about, well, how is it worked in practice, because we've got a more confined group of awards and we might be able to get some more information about that.

PN1927

MR FERGUSON: Yes.

PN1928

JUSTICE ROSS: Okay. So I think we will just tread lightly for the moment.

PN1929

MR FERGUSON: Yes.

PN1930

JUSTICE ROSS: And rather than sort of make a decision - - -

PN1931

MR FERGUSON: I haven't got words to put to you either.

PN1932

JUSTICE ROSS: Yes. Okay. So that's the course we will take with those. Was there anything else, Mr Ferguson?

PN1933

MR FERGUSON: Look, another issue of detail comes up in the Vehicle Manufacturing and Repairs, Service and Retail Award 2010.

PN1934

JUSTICE ROSS: Yes, it does.

PN1935

MR FERGUSON: This isn't, though - I wasn't going to respond to the issue raised by the union, but to identify another matter. I think the draft determination purports to delete clause 28.3 in its entirety.

PN1936

JUSTICE ROSS: Yes.

PN1937

MR FERGUSON: Paragraph (e) of that clause is an unusual provision - - -

PN1938

JUSTICE ROSS: Just bear with me for a sec.

PN1939

MR FERGUSON: Yes.

PN1940

JUSTICE ROSS: Yes.

PN1941

MR FERGUSON: Which we say, and I don't anticipate there's going to be any objection from the union, but that shouldn't actually be deleted. I think, from discussions with the union this morning, there may have been some changes to where this clause sits in the award and the exposure draft process anyway, because it probably doesn't properly sit in a TOIL provision. But it's a provision that deals with when the clause of 28.2 actually applies.

PN1942

JUSTICE ROSS: Okay.

PN1943

MR FERGUSON: And it's nothing to do with TOIL. Now, I think our view would be that shouldn't be deleted through this process.

PN1944

JUSTICE ROSS: I see. So it actually - it relates more to the payment of penalties in 28.2.

PN1945

MR FERGUSON: That's right.

PN1946

JUSTICE ROSS: And it has been, for some reason, part of 28.3 in the current award. Yes. Well, as you say it doesn't seem to have anything to do with TOIL, so the variation determination shouldn't, on its face, have anything to do with it. Ms Moussa, do you have the same view?

PN1947

MS MOUSSA: Yes, your Honour, we do.

PN1948

JUSTICE ROSS: Okay.

PN1949

MS MOUSSA: It doesn't (indistinct) there, but I guess for the completeness it shouldn't be omitted through this process either, from the clause, just until it's - the exposure draft is settled.

PN1950

JUSTICE ROSS: Yes. Okay. Whilst we're on the draft determination, what was the point that you wanted to make about that? You make one in your written submission.

PN1951

MS MOUSSA: The point we make in the written submission is that the draft determination also proposes to insert a time off in lieu, a payment for overtime clause, in clause 43.6. And that would be a new insertion and unnecessary in the circumstances where, at the moment, that particular provision doesn't have a time off in lieu or overtime clause. And where clause 28.3 applies across all classifications in the award and covered by the award, we just don't think it's a good idea to insert a specific provision for employees covered by clause 43 in which a driveway attendance, console operators, and roadhouse attendants. Now - - -

PN1952

JUSTICE ROSS: Yes. So just on that issue, the proposition you're putting is that the variation to 28.3 would cover then anyway, is that right?

PN1953

MS MOUSSA: That's correct.

PN1954

JUSTICE ROSS: Yes.

PN1955

MR FERGUSON: I don't have a submission on that, we just haven't double checked that point, but it seems correct on the face of it.

PN1956

JUSTICE ROSS: Yes. Well, perhaps if you can have a look at it and you can discuss it with the union and if you reach a position, just send us a note. But if the other one does cover all employees then it wouldn't seem to be necessary.

PN1957

MR FERGUSON: No, on the face of it - we had a quick look and it seemed right. We just - - -

PN1958

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

PN1959

MR FERGUSON: It was that (indistinct), yes.

PN1960

JUSTICE ROSS: Just check it and we will - yes, that's okay. Is there anything else you wanted to say?

PN1961

MR FERGUSON: Look, only very generally by way of reply to some of the written submissions from the AWU, and I will put the submission in very general terms, I don't have these in front of me. But there seemed to be a submission of the general thrust which was, well, AI Group hasn't advanced actual evidence from their members that everything is working well, and so forth, some sort of negative inference - - -

PN1962

JUSTICE ROSS: Yes. But I mean ultimately you don't - there's not an issue of onus here. It's really that we have to be satisfied that the variations are necessary and you're invited to say why you say they're not, and the union is invited to say that's how they are.

PN1963

MR FERGUSON: I don't take it any further.

PN1964

JUSTICE ROSS: Yes.

PN1965

MR FERGUSON: That was the thrust of it.

PN1966

JUSTICE ROSS: Okay. Anything from you, Mr Arndt?

PN1967

MR ARNDT: ABL's position is as per written in the submissions. The only submission we were going to make, I think has already been addressed by your Honour in relation to the onus question and also some of the comments your Honour made about the TCFUA position about the Bench strongly indicating that the model term should go in. I think it has been covered.

PN1968

JUSTICE ROSS: Okay. The unions who have put in written submissions in reply to the general submissions advanced, is there anything further you wish to say, Mr Nguyen?

PN1969

MR M NGUYEN: Your Honour, for the record, may it please the Commission, my name is Nguyen, initial M, appearing for the Australian Manufacturing Workers' Union. I just wanted to draw the Commission's attention to the particular clauses which currently do require the employer to keep a record of the agreement, which, in the Manufacturing And Associated Industries and Occupations Award is clause 8.2 And similarly, in the Graphic Arts Printing and Publishing Award 2010 and the Food, Beverage and Tobacco Manufacturing Award, it's also in the facilitative provisions clause.

PN1970

JUSTICE ROSS: Yes. So it's in the front of the award which sets out the conditions that apply to the facilitation.

PN1971

MR NGUYEN: That's right.

PN1972

JUSTICE ROSS: Yes.

PN1973

MR NGUYEN: So in those clauses there's a requirement that the agreement is kept as a time and wages record. In looking at that, I think you summarised it correctly before but our position is that when you compare the current TOIL clauses, including the requirements of the facilitative provisions and the current model TOIL clause, there isn't actually any additional regulatory burden that we can identify that would be placed on employers. There are additional clauses which seem to make the clause, you know, appear longer. But I think that - - -

PN1974

DEPUTY PRESIDENT KOVACIC: I don't know that it appears longer, it is longer. But yes.

PN1975

MR NGUYEN: It is longer, but we think that those clauses actually - they don't cause or require the employer to do anything additional, it's only a statement of rights and obligations which makes it clearer for the parties engaging in the TOIL agreement to understand what their rights and obligations are in that agreement. So I think our submission is that those additional words in the model talk would actually provide for the agreements to be entered into in a more open and transparent way where the parties are clear about what their rights and responsibilities are.

PN1976

In relation to what Mr Ferguson said earlier about the time period, if I just think of an example, actually in the Graphic Arts Award there's a requirement that the time off is taken within four weeks. So the six-month period is actually, you know, a broader length of time in which the parties can determine and decide and agree on when they take the time off. But on balance we would say given the model TOIL clause has a lot clearer statements about what the parameters are for entering into the agreement, and the protection that it provides for employees, this expansion of the time period, on balance, does provide for a better safety net for employees. Those are my submissions.

PN1977

JUSTICE ROSS: Anyone else in - the unions in Sydney, wish to say anything in relation to any of these issues, Mr Maxwell?

PN1978

MR MAXWELL: Thank you, your Honour. Your Honour, we're in a somewhat difficult position in we're not sure what we're responding to. The AIG have put in a submission saying that any existing TOIL provision should remain. Our main concern today is in regard to the Mobile Crane Hiring Award, which currently has a TOIL provision, but that requires a majority agreement to implement the TOIL provision. Now, to the extent that AIG are saying that that clause should remain unchanged, that we don't have an issue with that, we support that position.

PN1979

JUSTICE ROSS: All right.

PN1980

MR MAXWELL: However, if the majority provision is to go, then we would support the inclusion of the model clause.

PN1981

JUSTICE ROSS: Well, I suppose it's difficult for our group to maintain the position that the existing clauses should remain, except the ones I don't like. But do we know the position of the MBA or HIA in relation to - - -

PN1982

MR MAXWELL: No, I don't think the HIA would have any members - - -

PN1983

JUSTICE ROSS: No, no, they wouldn't.

PN1984

MR MAXWELL: The MBA may have one or two, but not many.

PN1985

MR FERGUSON: And I think in relation to that award we probably have a primary interest, or an affiliate does.

PN1986

JUSTICE ROSS: Right. Well, your submission is that it shouldn't be varied.

PN1987

MR FERGUSON: Which is why I was also quick to clarify today that our concern was that the flexibilities in the - it isn't a shortcut, I know - not be reduced. But I understand that's put, and I've said this morning that perhaps we were too cautious in relation to that particular award Mr Maxwell raises is a particular issue which - - -

PN1988

JUSTICE ROSS: Well, in - do you want to consider your position on that award.

PN1989

MR FERGUSON: Yes.

PN1990

JUSTICE ROSS: And as Mr Maxwell said, that as I understand the union's position, that - well, perhaps I don't understand it. Are you content for the model term to go in, but what you don't want is - it's either you leave it alone or the model term goes in, you might be ambivalent about that. But what you don't want is the current clause to be varied to remove the majority provision.

PN1991

MR FERGUSON: Yes. That's correct.

PN1992

JUSTICE ROSS: Yes. Okay.

PN1993

MR FERGUSON: Yes. Well, I think, considering our position, it's the best option.

PN1994

JUSTICE ROSS: Yes.

PN1995

MR FERGUSON: I mean, that's the first we've had and – from the union on that perspective and I ‑ ‑ ‑

PN1996

JUSTICE ROSS: And, look, that's the benefit of this process.

PN1997

MR FERGUSON: Yes.

PN1998

JUSTICE ROSS: I mean, at least now you know what the model term looks like. Now, it's a case of assessing it against each award and this is an example of where you need to do that. Well, can I suggest that the two of you discuss it and perhaps put something in as to what your respective positions are.

PN1999

MR FERGUSON: Yes.

PN2000

JUSTICE ROSS: Is there any other employer organisation with an interest in this?

PN2001

MR FERGUSON: Look, there is, and I say it clearly that I don't know that organisation well, but there's one that we have a relationship, which I think is a member, or an affiliate member, The Mobile Crane council, is it?

PN2002

MR MAXWELL: Yes, the Crane Industry Council of Australia.

PN2003

MR FERGUSON: Yes, I personally just don't know them well, but there's a connection there which we would consult with.

PN2004

JUSTICE ROSS: Okay. All right.

PN2005

MR MAXWELL: And, your Honour, just on that point I do know, for the record, that when this matter was back before you on 4 September 2015 you did make a statement that if the ARG were to oppose or make a general submission that you'd put them on notice that they should come along.

PN2006

JUSTICE ROSS: Yes.

PN2007

MR MAXWELL: And you wanted to know who their members were in each of the awards.

PN2008

JUSTICE ROSS: Yes.

PN2009

MR MAXWELL: And what their interest was in a particular award and that hasn't been done.

PN2010

JUSTICE ROSS: That was the purpose of my question about what was the evidentiary basis of the submission around that they've been working sort of working well in practice, and Mr Ferguson's given the answer he's given on that. Well, let's see if we can clarify where we are with that. And, look, it may be that when you look at some of the others I doubt if this is an isolated incident, but you might want to consider the position there as well.

PN2011

MR MAXWELL: Yes.

PN2012

JUSTICE ROSS: Yes, okay. Well, anyone else in Sydney?

PN2013

MS COTTAM: Your Honour, we rely on obviously our written submissions from the AWU, however, I just wanted to note that having relooked at the model TOIL I realised I may have misspoken in my written submission saying that we support the safeguard for the requirement of the written agreement prior to the work being undertaken. It's my understanding of model TOIL clauses that it could occur prior or post the work being undertaken. It's a point we'll talk more about in relation to the agricultural awards later this morning.

PN2014

JUSTICE ROSS: Sure.

PN2015

MS COTTAM: But I just wanted to make sure that we support it post as well as prior.

PN2016

JUSTICE ROSS: Sure. Okay.

PN2017

MR G JOLLY: Your Honour, my name is Jolly, initial G. I haven't entered an appearance in the proceedings as yet. I can foreshadow though that we act for the News Limited and other publishers, who may well have an interest in the Graphic Arts Award. Having heard the AMWU's submissions this morning, it occurs to me that this is something that we need to get instructions from if the Commission pleases.

PN2018

JUSTICE ROSS: All right. And when would you be in a position to say something about it?

PN2019

MR JOLLY: I would need to take those instructions, your Honour. I will certainly try and speak to my client soon. I wouldn't assume that we would be in a position to do it ‑ ‑ ‑

PN2020

JUSTICE ROSS: No, no, no, I wasn't assuming you'd be back here in 15 minutes to put something.

PN2021

MR JOLLY: Thank you, your Honour.

PN2022

JUSTICE ROSS: It's the extent to which it's going to delay the process. How much time would you need to put something in really?

PN2023

MR JOLLY: Probably seven days.

PN2024

JUSTICE ROSS: Yes. Okay.

PN2025

MR JOLLY: If that would suit, your Honour.

PN2026

JUSTICE ROSS: All right. Thank you.

PN2027

MR JOLLY: Thank you, your Honour.

PN2028

JUSTICE ROSS: Anything further on the general submissions in Sydney? Can we go to Melbourne? Anything anyone wishes to add to what they've said in their written submission?

PN2029

MS WILES: Your Honour, it's Ms Wiles for the TCFUA. I would like to just make a couple of short comments in response to the Ai Group's submission. I should indicate, for the record, that we did file written submissions on 30 November.

PN2030

JUSTICE ROSS: Yes.

PN2031

MS WILES: And we continue to rely on those. It seems to us that the Ai Group arguments can be distilled into a couple of main contingents. Firstly, the Ai Group submit that it is not necessary, under section 138 for the model TOIL term to be included in awards which currently contain a TOIL provision. And they advance that argument basically on a generalised basis, so the point we'd make there is that no specific arguments or evidence in support has been put before the Full Bench in relation to any specific award including the TCF award or the Dry Cleaning Award in that class of awards.

PN2032

In relation to the issue of safeguards we also say that Ai Group submission gives insufficient weight to a number of the findings made by the Full Bench in relation to the necessity of additional safeguards in the development of the finalised model terms, and we went to that in more detail in our written submission at paragraph 16 to 19. The Ai Group today also have not explained why or how those additional safeguards are not necessary for awards which currently contain a TOIL provision, and particularly in an industry such as the TCF industry which is generally accepted as being low paid or dependent.

PN2033

The second main proposition put by the Ai Group is that including model TOIL term in awards which currently contain a TOIL provision reduces flexibilities and this places greater constraints on the use of TOIL by employers. In our view this argument is misconceived. The modern awards does not exist to provide flexibilities for employees as its main purpose. As we are all aware the modern awards objective in section 134 includes a range of considerations which the Commission must take into account to the extent that they are relevant. And by implication those considerations in section 134(1)(a) to (h) involve the balancing of the interests of employers and employees.

PN2034

Your Honour, in relation to the issue around clause 1.2(a) of the model term I note your earlier comments in terms of the process to proceed. I'm in your hands. Do you want me to make submissions now in relation to our award or do that as part of the process that you've outlined?

PN2035

JUSTICE ROSS: Does your award provide, or the award you have an interest in, provide for time at the penalty rate?

PN2036

MS WILES: It does, your Honour.

PN2037

JUSTICE ROSS: Yes.

PN2038

MS WILES: It's both the TCF Award and the Dry Cleaning and Laundry Industry Award both contain current provisions ‑ ‑ ‑

PN2039

JUSTICE ROSS: Yes. No you don't ‑ ‑ ‑

PN2040

MS WILES: ‑ ‑ ‑ that provide for that.

PN2041

JUSTICE ROSS: Yes. No, we'll have a separate process and we'll set out a statement about how that will work so that each party is responding to that otherwise as other parties come in they may not be aware of what you're wanting to say at the moment, so it's probably better if we have a discrete process.

PN2042

MS WILES: Thank you, your Honour. So, in conclusion, the TCFUA does support the draft determinations that have been issued for the TCF Award and the Dry Cleaning Award, and we respectfully submit that the real reasonable basis for the Full Bench to depart from its view that the TOIL long term is appropriate and for inclusion in all modern awards which provide for overtime, or the provisional period in any event. We say that if the Full Bench was to adopt the proposal as advanced by the Ai Group then that will result in the TCF Award and the Dry Cleaning Award containing a nefarious safety net in relation to the provision of time off in lieu. And unless there are any further questions from the Bench those are the submissions of the TCFUA.

PN2043

JUSTICE ROSS: Thank you, Ms Wiles. Anyone else?

PN2044

MS MOUSSA: Yes, your Honour. Just a few other issues I just wanted to add to the Full Bench's attention. In respect of the issue which has been raised by Ai Group in relation to clause 1.2(a) about whether there's a requirement for a written agreement to be reached on each occasion in the award that that provides a type of penalty TOIL time ‑ ‑ ‑

PN2045

JUSTICE ROSS: No, you don't need to make a submission about that because, as I've indicated, that'll be a separate process, and you'll have an opportunity then.

PN2046

MS MOUSSA: Okay.

PN2047

JUSTICE ROSS: Yes.

PN2048

MS MOUSSA: Thank you, your Honour. And the final point in relation to the draft determination that was published in relation to the Vehicle Award, in the decision of the Full Bench at paragraph 42 the Full Bench decided that it agreed with the proposition advanced by the AMWU that, in relation to the terminology to be adopted in awards that provide the type of penalty as well as give the provision of an example of how the type of penalty rate would be applied in TOIL arrangements in those particular awards. And this isn't a major issue, but I picked it up today when looking at the draft determination, the example that was given in the draft determination at clause 28.3(b)(ii) gives an example of where overtime is paid at 200 per cent, and in our written submissions, the AMWU provided an example at paragraph 15 of our submissions dated 21 August in relation to how the TOIL arrangement would operate with overtime as provided at time-and-a-half. And it isn't a major issue at all, I just thought I'd just draw it to the attention of the Full Bench insofar as an example provided in those awards which illustrates the operation of a more complicated calculation like time-and-a-half as opposed to double time might be used to award readers. I'm in the Commission's hands as to how you'd like to deal with that but I just thought consistent with paragraph 42 of the decision I wanted to alert your Honours' attention to the difference in example that was given by the Vehicle division in that context.

PN2049

JUSTICE ROSS: Okay. Thank you. That's probably something we can deal with in the other process as well as we come to look at the model term and how it might interact with the 10 awards that provide for time for penalty.

PN2050

MS MOUSSA: If the Commission pleases. Thank you.

PN2051

JUSTICE ROSS: Thank you. Anything further? No. I think the next scheduled matter we've got is at 10.30 with the Medical Practitioners Award. Ms Cottam, have you had an opportunity to have a discussion with the NFF about their submissions?

PN2052

MS COTTAM: No, I haven't yet.

PN2053

JUSTICE ROSS: Can I encourage you to do that during the break because at least, on the face of it, it raises a range of issues both around the history of the particular clauses, the particular features of the industry, et cetera, and at least speaking for myself, I was attracted to the idea that not so much that it goes into the award stage but that there'd be further discussions between the industry participants to see if you can come up with a tailored solution that you might be able to agree on, given the clauses are a bit unusual. In horticulture, for example, it's a right to take time in lieu as a default position and there are some unusual features about the history and current context of the Pastoral Award as well. So perhaps if you could take that opportunity while we duck in and out of the proceedings.

PN2054

MS COTTAM: Yes, your Honour.

PN2055

JUSTICE ROSS: We'll adjourn till 10.30.

SHORT ADJOURNMENT                                                                  [10.18 AM]

RESUMED                                                                                             [10.31 AM]

PN2056

JUSTICE ROSS: The next matter listed is the Medical Practitioners Award. Can I have the appearances in that matter please.

PN2057

MR G TYRRELL: If it pleases the Commissioner, my name is Tyrrell, initial G, and I appear on behalf of the Australian Salaried Medical Officers Federation.

PN2058

JUSTICE ROSS: Thanks, Mr Tyrrell.

PN2059

MR TYRRELL: Thank you.

PN2060

JUSTICE ROSS: Anybody else? No. Mr Tyrrell, there are two - as I understand it there are two areas where ASMOF is putting that the model terms should be varied if it's to be inserted into the Medical Practitioners Award. One of those is - and I understand the basis on which you put this at para 15, that you should retain the current requirement that TOIL be taken within four weeks and you set out your argument as to why that is. You mention at the beginning that the current TOIL clause is limited to doctors in training, and as I understand it, you don't think it should extend beyond doctor's in training. But there's no argument about why that would be.

PN2061

MR TYRRELL: That's correct, your Honour. These submissions were put forward by a colleague of mine, Mr Vecus who's unfortunately unable to attend today. I'm not sure exactly what the reasons would have been for that except that I guess the senior doctors have traditionally been dealt with in a slightly different way, and the doctors in training have to date been the ones that have had access to TOIL, and other than what we say about the timeframe with regard to converting that TOIL back to - - -

PN2062

JUSTICE ROSS: No, I understand the timeframe point and the issues around that and the training modules and the like, and access. I just don't understand the argument about - normally when you put a clause in it would apply to - well a clause like this, it would apply to all of the employees covered by the award. Perhaps if we can deal with it this way, and I understand the position you're in, the submission being developed by somebody else. If you can give some thought to that issue and well consider your position about whether it should or shouldn't apply more broadly, and if you say it shouldn't then set out the reasons why it shouldn't.

PN2063

MR TYRRELL: Yes, your Honour.

PN2064

JUSTICE ROSS: Would seven days be sufficient for that?

PN2065

MR TYRRELL: Your Honour, Mr Vecus is off for some time. I'll need to - - -

PN2066

JUSTICE ROSS: How much time would you like?

PN2067

MR TYRRELL: Possibly a fortnight might be easier for me to define from the executive what - - -

PN2068

JUSTICE ROSS: That's fine. Well that will be Christmas Eve, won't it, so - - -

PN2069

MR TYRRELL: Three weeks?

PN2070

JUSTICE ROSS: Yes, I'm content with - I'm not - I know it's a difficult time of year. I'm just making an inquiry. Perhaps if you can go back and find out where it's up to and then let my Associate know how much time you need but don't put it at months but just nominate a date, probably early January. I see three weeks will put you between January - between Christmas and New Year and I don't think that's going to do you much good in any event. So nominate a date early in January when you'll be able to get back in relation to it.

PN2071

MR TYRRELL: Thank you, your Honour.

PN2072

JUSTICE ROSS: All right. Just bear with me for a moment. The next matters listed for 11.45. What we might do is adjourn just so we don't - it might be the only exercise we get today sort of being up and down between these matters, but we'll adjourn to 10.50 to deal with the SACS Awards and then we'll move straight into the live performance and then the horticultural and pastoral. So I don't imagine live performance will take very long and after horticultural and pastoral we'll adjourn until 11.45 because it's to deal with any other matter. Nothing further? We'll adjourn until 10.50.

SHORT ADJOURNMENT                                                                  [10.36 AM]

RESUMED                                                                                             [10.54 AM]

PN2073

JUSTICE ROSS: Okay. The next matter on the list is the Social, Community, Home Care and Disability Services Award. Can I have the appearances in that award, please?

PN2074

MS WRIGHT: Good morning, your Honours, Commissioner, Ms Wright for the ASU.

PN2075

JUSTICE ROSS: Thank you.

PN2076

MR ARNDT: Arndt for New South Wales BC and ABI.

PN2077

JUSTICE ROSS: Thank you. I think the short point here is that the current provision provides that when there is a TOIL arrangement by mutual agreement, if later the overtime - the time off in lieu is not taken and the overtime is paid out, it's paid out at the rate that applies at that time, rather than at the time the work was performed, and you want to retain that provision?

PN2078

MS WRIGHT: That's correct, your Honour. And I've just got some really short submissions.

PN2079

JUSTICE ROSS: Certainly.

PN2080

MS WRIGHT: About the nature of the social and community services industry, which might be important in understanding the prevalence of time in lieu arrangements in this industry, and the fact that the intensification of the work often lends itself to a situation where that time in lieu cannot be taken. So the ASU submits that it's important to retain that current provision in relation to the payment, to provide an incentive to employers to ensure that that time in lieu is actually taken by employees.

PN2081

So, your Honour, I won't traverse the submissions that have already been made, I just want to provide some very brief background about the industry. We haven't actually filed any evidence in these proceedings but your Honour would be aware that there is a Full Bench decision that was handed down on 16 May 2011 in relation to the ASU and other union's application for an equal remuneration order covering the social, community, and disability services industry. And that decision describes the work carried out by workers employed pursuant to the social and community services crisis accommodation and family day care classifications in this award, and the circumstances in which that work is performed.

PN2082

Your Honour, at paragraph 225 of that decision it noted ABS statistics, which indicated that the workers and the other social assistance group, which is coded 879, any overtime work is much more likely to be taken as time in lieu than paid overtime. And that the statistics were reinforced by evidence from workers, which is referred to in appendix A of that decision, and that's the summary of evidence of the applicant's employee witnesses. That summary contains many references to workers working overtime and receiving time off in lieu or receiving no compensation at all. And it also refers to situations where workers have accrued the time in lieu but simply haven't had the opportunity to take it. And those references are at paragraphs 2, 6, 10, 27, 50, 52, 58, 62, 79, 87 and 89 of appendix A of that decision, and the evidence is uncontested.

PN2083

So your Honours, Commissioner, we submit that it is appropriate that the current benefit, whereby overtime rates are paid out on the rates of pay applying at the time the payment is made is retained. It provides a benefit to employers and an incentive to ensure that time off in lieu of overtime is facilitated in a timely fashion. This is particularly important given the high rate of overtime being taken as time in lieu in this industry, and the intensity of work, creating a situation where employees are not always provided with the capacity to take that time off. And those are my submissions.

PN2084

JUSTICE ROSS: It's a fairly unusual clause in the sense that mostly the entitlement - if, for example, there had been an underpayment claim - - -

PN2085

MS WRIGHT: Yes.

PN2086

JUSTICE ROSS: And let's assume that an employee under the award worked overtime and wasn't paid the overtime.

PN2087

MS WRIGHT: Yes.

PN2088

JUSTICE ROSS: And then some 12 months later prosecutes the employer for the underpayment.

PN2089

MS WRIGHT: Yes.

PN2090

JUSTICE ROSS: Well, the underpayment entitlement would be the rate that you would have been entitled to when you worked the overtime.

PN2091

MS WRIGHT: That's correct, your Honour.

PN2092

JUSTICE ROSS: Yes. What is the union's position - and this might be a question for Mr Arndt as well - that if we were against you on it - - -

PN2093

MS WRIGHT: Yes.

PN2094

JUSTICE ROSS: And if - then would you prefer to retain the current clause you have, or have the model term go in without the provision relating to payment at the rate prevailing at the time you take it?

PN2095

MS WRIGHT: Your Honour, given the prevalence of overtime being taken as time in lieu, and the greater protection that the model clause provides, the ASU can see the benefit in having the model clause inserted into the award, so that given that it would change the benefits available to members, I would seek leave to file some written submissions about that matter - - -

PN2096

JUSTICE ROSS: That's fine.

PN2097

MS WRIGHT: So that I can consult appropriately with the other branches and our members.

PN2098

JUSTICE ROSS: Yes. Okay. Well, if you can advise my chambers as to how much time you require for that, and any submissions will be posted on the website and we will see how we go with that.

PN2099

MS WRIGHT: Thank you. I will provide that advice today, your Honour.

PN2100

DEPUTY PRESIDENT KOVACIC: Ms Wright, just in terms of those submissions, it might be helpful to the extent that the existing arrangement in terms of being paid at the overtime rate, to what extent there's any materials you might be able to provide, that's accessed, would be helpful in that regard if it was possible.

PN2101

MS WRIGHT: Your Honour, I think the position is that overtime is rarely paid in this industry.

PN2102

DEPUTY PRESIDENT KOVACIC: Okay.

PN2103

MS WRIGHT: But the nature of that clause does provide an incentive to employers to ensure that the time in lieu is actually taken.

PN2104

DEPUTY PRESIDENT KOVACIC: Okay.

PN2105

MS WRIGHT: And that we say that absent that provision, there will be less of an incentive to employers to provide that. So there is - there will not be large amounts of evidence of employees actually claiming overtime, rather, I suspect, that the evidence would be a concern, a speculative concern. But if that provision is taken away or watered down there will be a greater incidence of employees not being given the opportunity to take time off in lieu.

PN2106

DEPUTY PRESIDENT KOVACIC: Thank you.

PN2107

JUSTICE ROSS: Thank you. Mr Arndt, is there anything you wanted to say about this? I suppose AI Group's position would be that this is one of those awards where it has got an existing TOIL clause there or it shouldn't be changed. Your submission really goes to, well, you can't have the best of both. You're either going to get the model term as it is, or you retain what you've got, it's not cherry picking what you've got and putting it into the model term, as I understood it.

PN2108

MR ARNDT: That's right, your Honour. I think the force of that submission or the basis of it is that to vary the model term would be to undercut at least one of the primary purposes of bringing in the model term, to bring uniformity and consistency to various awards.

PN2109

JUSTICE ROSS: Yes.

PN2110

MR ARNDT: Ultimately it's a balancing exercise against the whole range of the modern award's objectives. I would say that similar to what Mr Ferguson put earlier this morning about particular awards in which the model term brings in some elements of what is being termed as flexibilities and, you know, provides other restrictions. ABI perhaps deliberately didn't put a position in terms of its - its preference in terms of this award as to whether it would prefer the SACS award to remain as is or the model term. We would appreciate the opportunity to - if the submissions are to be heard on that, to be - to put a view.

PN2111

JUSTICE ROSS: Yes, no, that's absolutely fine. Well, perhaps if you can discuss between yourselves what a reasonable period is to do that and let my chambers know and we will issue some directions from there.

PN2112

MR ARNDT: Thank you.

PN2113

JUSTICE ROSS: Anything further on this award? No?

PN2114

MS WRIGHT: No. Thank you, your Honour.

PN2115

JUSTICE ROSS: Thank you. Thanks for your attendance. Can we go to the live performance industry award and the appearances, please.

PN2116

MR D HAMILTON: If the Commission pleases, Hamilton, initial D, for the Australian Entertainment Industry Association.

PN2117

JUSTICE ROSS: Thanks, Mr Hamilton. Is there anyone else in relation to this award? No?

PN2118

MR HAMILTON: Your Honour, I received an email this morning from the MEAA, I'm not sure if he has informed the Commission, but his daughter was ill so he couldn't attend today's hearing. I'm not sure if he has indicated that to the Commission at all.

PN2119

JUSTICE ROSS: I don't think so. But look, as I understand the position from your submission, it is that a TOIL provision would be inconsistent with the way work is performed in the industry. You provided some material in support of that, and some illustrations of that. The proposition is that the industry is characterised by shows or productions that have seasons that operate, rather than a traditional work cycle.

PN2120

MR HAMILTON: Yes, sir.

PN2121

JUSTICE ROSS: And as I understand it, the MEAA supports the proposition which you advance, which is that, well, it goes to the award stage or I would infer that if we're not minded to do that, then really it's a way of saying, well, we need to have a much closer look at this award and perhaps provide the direct parties with an opportunity to have a further discussion to see where it goes, rather than simply proceeding on the basis that it's like other awards and we should just insert it. Is that the nub of it?

PN2122

MR HAMILTON: Yes.

PN2123

JUSTICE ROSS: That there are complexities here that require a bit closer examination and you want an opportunity to discuss that with the others as well?

PN2124

MR HAMILTON: That's correct, your Honour. And also the union have indicated to me that in certain sections they probably agree with us, but in other areas like the production and support staff, they may have a different view. And so therefore it's probably better that they support our submission, having a look at the award review part, rather than tying up time in these proceedings.

PN2125

JUSTICE ROSS: Well, we might refer it to conference and see where the discussions between the parties can go, rather than proceed to any sort of determination of the issue at this stage. Would that suit your position?

PN2126

MR HAMILTON: Yes, we're fine with that, your Honour.

PN2127

JUSTICE ROSS: All right.

PN2128

MR HAMILTON: Yes.

PN2129

JUSTICE ROSS: Okay. Thank you very much, Mr Hamilton, that's the course we will take in relation to that matter. I think we've got Horticultural and Pastoral at 11.15, but, look, the only two parties who are likely to be involved in it are here now. Do you want more time to have a further discussion, or are you content to go on now?

PN2130

MS MCKINNON: No, we're okay to proceed. Yes.

PN2131

JUSTICE ROSS: Okay. Same for you, Ms Cottam?

PN2132

MS COTTAM: Yes.

PN2133

JUSTICE ROSS: All right. Well, my Associate will be here at 11.15 when it's listed in any event in the likely event that someone wanders in off the street to say something about the Pastoral Award, but they'll have that opportunity. Ms McKinnon, we've gone through the – the essential proposition is you, or your organisation opposes the model term going in to the Pastoral and Horticultural Award. In the alternative you want an opportunity to refine the clause to meet the particular circumstances of the sector. And I must say, speaking for myself having read your submission, having regard to the long history of TOIL in the Pastoral Award, the unusual features of the TOIL provision in the Horticultural Award and the general nature of these industries, I was attracted to the idea of providing more time so that you can have some discussions with the AWU and any other interested party through a conference process if that would assist, but otherwise to leave it to the parties directly to have a discussion about how the clause might be refined or elements of it might be introduced into your existing arrangements and to see where you could go on an agreed basis or at least to narrow the issues, because the application of the model term in these awards does have a level of complexity that's not evident in a number of other awards, so perhaps if I – I don't think we've got – I'll get a response from the AWU to your general proposition and then see whether you're both content to proceed on that basis, have further discussions, and we schedule some report back at some point, but I'd probably be guided by how long the parties want to take to that. We're not likely to refer it to the award phase only because I don't want to run the risk of having four or five different Full Benches dealing with different aspects of the one issue. That's the main reason. But have you had an opportunity to have a discussion?

PN2134

MS MCKINNON: We have, your Honour, and the power of constructive collaboration is shining through today. So we actually have made some really positive progress in the sense that we think we actually have agreement. And so I'll tell you where that gets to in a minute.

PN2135

JUSTICE ROSS: Yes, sure.

PN2136

MS MCKINNON: And then what I suggest is that the NFF file a revised draft determination in relation to both the Pastoral and the Horticultural Award and the other parties, including AiG, who hasn't had the opportunity to be party to that conversation, can seek instructions and respond.

PN2137

JUSTICE ROSS: Sure.

PN2138

MS MCKINNON: So the position that we've reached in relation to the model term is that, whilst obviously we would prefer awards to be left alone, if the model term does go in then what we would propose is that sub-section (c) of 1.2, which deals with the requirement for agreement and taking of TOIL within six months be revised to within four months or at a time otherwise mutually agreed, and that sub-clause (d), which is the capacity for a change of mind to be removed from the provision on the basis that that gives employers certainty, and there is with that shorter period the window of four months or on termination no question that if it's not taken as TOIL it will be paid anyway. So that agreement is the same both the Pastoral Award and the Horticultural Award. In relation to the Pastoral Award we also think that provision should be reflected in the piggeries section because there's currently no time off in lieu provision in the piggeries section, and if we're going to do it for chickens we might as well do it for pigs.

PN2139

JUSTICE ROSS: Yes. In the spirit of egalitarianism, that's probably right.

PN2140

MS MCKINNON: And then finally there is an issue in relation to the requirement to notify overtime within two weeks or forfeit it. And it's the longstanding provision and as we've indicated in our written submissions when it's been taken that's created a level of unrest and so it's been put back in. But we do accept that there is probably a need to revisit the operation of the clause and how we can better manage it, so what we have undertaken to do is to initiate those discussions with the AWU and progress that separately to the TOIL proceeding.

PN2141

JUSTICE ROSS: Okay. Well, can I suggest in relation to it that if you continue the discussions with the AWU, when you land on a provision that you're each comfortable with if that can be put in as a joint position and if you can support it with a submission that would no doubt draw on what you've already got in, but which then seeks to justify the departures from the model terms, having regard to the issues you've raised. Once that comes in by all means you can communicate with the Ai Group before then and they may put in a submission at the same time, but, I mean, once we've got that joint position from the AWU and the NFF, then we would probably then publish that, invite any comment, and we then may be able to determine it on the papers rather than bringing the parties back in. So we'll wait and see, but if it's done that way, I mean, the alternative is, you put your position and then we hear from the AWU and then it's just, well, as we've seen, it could go on for some time, so – yes.

PN2142

MS MCKINNON: That's right. And I understand that's the consent position.

PN2143

JUSTICE ROSS: Okay.

PN2144

MS MCKINNON: But obviously the AWU can confirm that.

PN2145

JUSTICE ROSS: Yes, okay. All right. Ms Cottam, did you want to say something?

PN2146

MS COTTAM: Yes, your Honour. Look, what Ms McKinnon has put is clearly our current agreed position. I just wanted to add that to reflect those changes we'll also need to amend the note that will be put as part of the written agreement.

PN2147

JUSTICE ROSS: Yes.

PN2148

MS COTTAM: Just to make sure that it reflects what's actually going to be said in clause (c), so we'll work out some wording that will be appropriate for that as well.

PN2149

JUSTICE ROSS: Yes. Just take your time to go through it and I think there'll be a number of periods where the process will just take a bit longer while we give some consideration to specific circumstances of each of these awards so I'm not suggesting you need to get on to it by Christmas. I don't quite understand the effect Christmas seems to have on people's thinking about everything has to be done before then, but we're only about a fortnight away so take your time to work your through it and consult through your respective organisations. Just if you can keep my Associate informed as to what the likely timetabling might be then you can take it we'll be content with that process and we'll deal with it when it comes in. Okay.

PN2150

MS MCKINNON: Thank you, your Honour.

PN2151

JUSTICE ROSS: Mr Ferguson?

PN2152

MR FERGUSON: Our interest primarily is in relation to the Horticultural Award.

PN2153

JUSTICE ROSS: Yes. Yes.

PN2154

MR FERGUSON: And in that respect I think we have quite an engaged membership.

PN2155

JUSTICE ROSS: Yes.

PN2156

MR FERGUSON: Which our only issue there is in terms of how long we might need to consult with them, just with the time of the year but that can all be accommodated.

PN2157

JUSTICE ROSS: No. Well, again – yes. Look, I think have the discussion amongst yourselves and perhaps if you can let my Associate know as to what sort of timelines we would all be looking at just so that we can keep on top of the process and manage it as we go on. Okay. Was there anything else?

PN2158

MS MCKINNON: No. Thank you.

PN2159

JUSTICE ROSS: No? Thanks, Ms McKinnon. Well, we'll adjourn until – well, now it is 11.15 and no-one has wandered in to make any further submissions, so we'll adjourn till 11.45 to deal with any remaining matters. I think there's, in relation to that, probably more for your interest, Mr Ferguson, there's correspondence from Minter Ellison as acting on behalf of 7, 9 and 10 in relation to the Broadcasting and Recorded Entertainment Award. And the short point seems to be that they have just found out about this and might want to say something about it and we'll deal with that at 11.45. Okay. Thanks.

SHORT ADJOURNMENT                                                                  [11.16 AM]

RESUMED                                                                                             [11.45 AM]

PN2160

JUSTICE ROSS: We now turn to any other award specific submissions. The only one that I'm aware of is correspondence from Minter Ellison acting on behalf of the 7, 9 and 10 networks in relation to the Broadcasting and Recorded Entertainment Award. Are there any other award matters other than that one, before I call for appearances?

PN2161

MR FERGUSON: Yes, your Honour, there is the Journalist Published Media Award, and that is also the subject of some communications to the Commission.

PN2162

JUSTICE ROSS: When were they forwarded?

PN2163

MR FERGUSON: 4 December.

PN2164

JUSTICE ROSS: Yes. I see. Also from Minter Ellison? Yes.

PN2165

MR FERGUSON: That's so, your Honour.

PN2166

JUSTICE ROSS: Yes. We have that as well. All right. Can I take the appearances in respect of those two awards, please?

PN2167

MR MEEHAN: My name is Meehan, I seek permission to appear in respect of the Journalist Published Media Award, those I seek to represent at News Limited, Bauer Media, B-a-u-e-r, and Pacific Magazines. And in respect of the Broadcasting and Recorded Entertainment Award, those I seek permission to appear on behalf of are Seven Network Operations Limited, Nine Network Pty Ltd and Network Ten Pty Ltd, and I seek permission to appear with my instruction solicitor, Mr Jolly, for Minter Ellison.

PN2168

JUSTICE ROSS: Thank you. Anyone else in those matters? No. Well, we grant permission on the basis having regard to the complexity of the matter, it will be dealt with more efficiently.

PN2169

MR MEEHAN: Please the Commission.

PN2170

JUSTICE ROSS: What we're minded to do in relation to the correspondence in each is to provide you with a further opportunity to have discussions with me or another interested parties. In relation to other matters, we have taken the course of not referring it to the award stage, mainly because then there might be four or five different Full Benches dealing with different aspects of this issue. But as we understand the essence of your applications in both - or your submissions in both of these awards is really that there's a level of complexity about the interaction of these provisions in these sectors. There are existing provisions, and you want a further opportunity to consider your position in relation to all of that, and perhaps have some discussions around that issue.

PN2171

If that's the essence of it, we're certainly content to provide you with that opportunity and subject to anything further you want to say, that's what we propose to do. IF you can give some thought to what - the 4-yearly review is going to finish at some stage, I'm assured, so we don't want it to necessarily be, you know, a matter of many months. But we understand, given the time of the year, it's obviously difficult to consult or engage on the issue, and we're not pressing it with any particular urgency.

PN2172

But if you can confer with your clients, perhaps have the discussion with Mia, and see what sort of timeframe the respective parties might require in order to work some of these issues, and if you can let my Associate know so that we can just keep the matter moving forward, and at some point next year we might call it back on for mention to see where you're up to, to see whether a conference before a Commission member might be of assistance at that time. But we don't want to pre-empt any of that, I think our preference is for you to have the direct discussions initially, and see where you land on those and just keep us informed as you go through.

PN2173

MR MEEHAN: Thank you, your Honour.

PN2174

JUSTICE ROSS: Okay. Is that course convenient in relation to both of those?

PN2175

MR MEEHAN: It's very convenient. I'm indebted to members of the Bench for mapping out that for my clients. Is it appropriate to tender the submissions such as they are, as an outline? They will be revisited, I think, if - - -

PN2176

JUSTICE ROSS: Look, the submissions - all correspondence is already loaded onto the website. We've not - because these aren't inter-party proceedings, they're a review, we've not taken the course of marking submissions or anything of that nature. We've marked exhibits that go to facts in issue, but no, all of your correspondence will be on the relevant website in any event. And as you say, it may be that your position develops over time, that has been the case with a number of the parties.

PN2177

MR MEEHAN: Yes.

PN2178

JUSTICE ROSS: So we wouldn't take that step formally, unless there was some reason to do it.

PN2179

MR MEEHAN: Thank you, your Honour.

PN2180

JUSTICE ROSS: Okay. Anything further? Are there are any other awards? Run out of puff, Mr Ferguson?

PN2181

MR FERGUSON: Well, I think I was here in case anyone else turned up.

PN2182

JUSTICE ROSS: All right. Thank you for your assistance today. We will adjourn and reserve.

ADJOURNED INDEFINITELY                                                         [11.51 PM]