AM2014/202, Transcript of Proceedings [2015] FWCTrans 732 (24 December 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009                                       1052885

JUSTICE ROSS, PRESIDENT

AM2014/202

s.156 - 4 yearly review of modern awards

Four yearly review of modern awards

(AM2014/202)

Fire Fighting Industry Award 2010

Melbourne

1.04 PM, THURSDAY, 17 DECEMBER 2015

Continued from 7/12/2015

PN15

JUSTICE ROSS: I'll take the appearances.

PN16

MR J MURPHY: I'm Jeremy Murphy for the UFU.

PN17

MR J TUCK: Tuck, initial for the MFB.

PN18

MR P BERTOLIS: Bertolis, initial P for the CFA.

PN19

MR A COLEMAN: Coleman, Alan for the CFA.

PN20

JUSTICE ROSS: Thank you.

PN21

MR G LEACH: Leach, Greg for the Metropolitan Fire Brigade.

PN22

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

PN23

JUSTICE ROSS: Thanks, Ms Gherjestani.

PN24

Can I deal with the MFB issue? This is the part time work and the shift restriction for want of a better description. I take it that you maintain the position that you're seeking a variation to the award to introduce part time work and to provide for a broader range of shift options. Is that your - - -

PN25

MR TUCK: Our position is more as to - yes, and to understand - I suppose the onus is we would say on the people objecting to those arrangements and to establish why.

PN26

JUSTICE ROSS: No, you're seeking to vary the award, so you need to put the case.

PN27

MR TUCK: Yes, but in the context of the matters that were raised last time haven't been dealt with by the Commission. At the Full Bench when the award was made, various matters were put forward and the Commission put a view forward.

PN28

JUSTICE ROSS: Sure, but I'm not really interested in onus or any of that, I just want to know what your position is at the moment. So you are seeking those changes of both parties?

PN29

MR TUCK: Yes.

PN30

JUSTICE ROSS: So you are seeking those changes of both parties?

PN31

MR TUCK: Yes.

PN32

JUSTICE ROSS: All right, so and you both agree that they're substantive issues. They're not going to be easily dealt with so they should go to a separately constituted Full Bench, is that the proposition?

PN33

MR TUCK: Yes.

PN34

JUSTICE ROSS: Fine. When would you be in a position to file your submissions in relation to those issues?

PN35

MR TUCK: You're asking me?

PN36

JUSTICE ROSS: Yes, when would you want that?

PN37

MR TUCK: We would have some difficulties with access to people throughout the next three weeks, so we would then be calculating time after that period of time. We would probably need four weeks.

PN38

JUSTICE ROSS: So, the four weeks after the three weeks?

PN39

MR TUCK: So the second week of February.

PN40

JUSTICE ROSS: Yes, so mid-February for you to file whatever you want to file in support of that position.

PN41

MR TUCK: Yes.

PN42

JUSTICE ROSS: Four weeks after the submissions are filed?

PN43

MR TUCK: Yes.

PN44

JUSTICE ROSS: Because I think you understand the issues bar the materials in there. Would there be any evidence?

PN45

MR TUCK: Yes.

PN46

JUSTICE ROSS: How much evidence?

PN47

MR TUCK: We would say potentially up to six witnesses.

PN48

JUSTICE ROSS: Any idea from the union?

PN49

MR MURPHY: Yes, as a specific number of witnesses.

PN50

JUSTICE ROSS: I'm really just after an order of magnitude and I'm not going to hold you to six, but I want to know whether it's 50 or below 10 really.

PN51

MR MURPHY: On the higher side of Ben advice.

PN52

JUSTICE ROSS: Maybe I shouldn't have said 50. But you might be 20, is that what you're suggesting?

PN53

MR MURPHY: Potentially.

PN54

MS GHERJESTANI: Sorry, I did not hear what Mr Murphy just stated.

PN55

JUSTICE ROSS: Mr Murphy's indicating that he would probably have up to 20 witnesses in a separately constituted case dealing with the part time issue.

PN56

What's the AWU's position on the part time issue?

PN57

MS GHERJESTANI: Your Honour, we support the position of the UFU and we oppose the variations being sought by the employer representatives.

PN58

JUSTICE ROSS: Are you likely to be running a case in support, or an independent - a separate case. In other words, are you going to be calling your own witnesses or are you really likely to have more of a supportive role in relation to the UFU's position.

PN59

MS GHERJESTANI: At this stage, your Honour, we're just going to have a supportive role. But if anything does change, we will inform the Commission.

PN60

JUSTICE ROSS: Okay. CFA?

PN61

MR COLEMAN: Yes, I think several witnesses, perhaps we should say four or five potentially, focussing on merit considerations also, your Honour, just to give you an idea.

PN62

JUSTICE ROSS: All right, is there anything anyone wants to say about those matters?

PN63

If we go to the submission summary and the first issue is really the part time matter that we've just dealt with. The second matter really involves the shift issue and number three seems to be a consequential amendment. By the time you take out - or maybe if ask this question. By the time you take out the part time and the shift work issues that are going off to a separate bench, where's the first concern in the exposure draft that any of you have? Mr Tuck?

PN64

MR TUCK: We have produced a table going through it in terms of differences between us. I think there was a clause 21.3, I think there was a different position expressed.

PN65

JUSTICE ROSS: Which item is that in the draft?

PN66

MR TUCK: I don't have that particular document.

PN67

JUSTICE ROSS: Is it 21.3 in the exposure draft?

PN68

MR COLEMAN: Yes it is.

PN69

MR TUCK: Where the question is raised should the reference to 50 percent of clause 21.3(a) be to 150 percent?

PN70

JUSTICE ROSS: Yes.

PN71

MR TUCK: We've expressed the view that it should be 50 percent because a worker who elects to be paid 50 percent, instead of at the higher rate in the table, is compensated by being granted an additional day's leave. This is the equivalent of 150 percent.

PN72

The UFU's submission is that it should be 150 percent. This is as per standard public holiday penalty rate in modern awards. There's a difference between us.

PN73

JUSTICE ROSS: Your point is you get the substitute day.

PN74

MR TUCK: That's our position.

PN75

JUSTICE ROSS: All right. Any other issues between you?

PN76

MR COLEMAN: Outside of that clause 9 I think there was a part of departure between us going to this question of whether public sector employees can work other than on a shift roster.

PN77

JUSTICE ROSS: Yes. Is that the public sector issue? That's really the 10.14?

PN78

MR COLEMAN: It is, that's right.

PN79

MR MURPHY: On its face, I'll talk you through. I think that is in terms of - otherwise covered by the - - -

PN80

JUSTICE ROSS: Yes, the referral.

PN81

MR MURPHY: I'm not sure that there is any substantive differences between us.

PN82

JUSTICE ROSS: Other than 150 percent.

PN83

MR MURPHY: I think we say that the definition of the rate of pay that an employee gets on annual leave would be helpful and you say it wouldn't be, but I don't think that's a major issue.

PN84

JUSTICE ROSS: Which one's that, Mr Murphy, page 16?

PN85

MR MURPHY: Rate of pay during annual leave. Around clause 22.

PN86

MR TUCK: 22.3, your Honour.

PN87

MR MURPHY: Our submission would not be necessarily the same.

PN88

JUSTICE ROSS: And the union sort of concedes that and says it might be - which isn't really the test I guess.

PN89

MR TUCK: I wasn't aware there was any other substantive matters that would not otherwise be covered by the position being put in the respective submissions. Nothing that we want to make further oral submissions about, your Honour.

PN90

JUSTICE ROSS: Even in relation to those two matters, are you content to rely on what you've said about it?

PN91

MR TUCK: I'm not sure much more can be said, is there?

PN92

JUSTICE ROSS: Could you forward that, unless there's some secret - - -

PN93

MR TUCK: I'll make sure there's no secret. I don't think there is.

PN94

JUSTICE ROSS: Just so that I can clarify the position of the parties, is once you remove the roster restriction, the absence of the part time work provision of the award from the matters that have been raised, we're down then to two issues between you. One is that 50 percent. This is 150 percent payment issue and the other is the smaller point that probably no one's excited about, about whether we specify the rate in relation to annual leave.

PN95

MR TUCK: Yes.

PN96

JUSTICE ROSS: All right, and you're content for us to resolve - for the Bench to resolve those issues on the material you've filed.

PN97

MR TUCK: That's the position of the MFB.

PN98

JUSTICE ROSS: Mr Murphy?

PN99

MR MURPHY: I just think with that penalty rate issue, it might be useful to just have a quick look at the clause.

PN100

JUSTICE ROSS: In the award or in the exposure draft?

PN101

MR MURPHY: In the exposure draft.

PN102

JUSTICE ROSS: Yes, which clause?

PN103

MR MURPHY: 21.3.

PN104

JUSTICE ROSS: Yes.

PN105

MR MURPHY: It suggests that the employees may elect to work at half pay basically and then get an additional day's leave. I'm not sure if there was some confusion on behalf of the MFB who might have thought that it was providing for an extra 50 percent.

PN106

JUSTICE ROSS: Well, is the - yes, so it's not 150 percent in addition to the ordinary rate. It's the ordinary rate plus 50 percent. If it's the ordinary rate plus 50 percent, then that's consistent with your view and it's really just an expression. If it's 150 percent of the ordinary hourly rate, that's the same as saying it's the ordinary hourly rate plus 50 percent of the ordinary hourly rate.

PN107

I understood your concern to be that they don't get the ordinary hourly rate plus 150 percent, in other words, they don't get the 250 percent and the subsequent day, which on the face of it, that would be right. So it may be an expression issue. There may not be - I don't want to mock you to this on the run, but if the intention of expressing it as 150 percent of the ordinary hourly rate is that they get the ordinary hourly rate and they get another 50 percent on top. That's the intent and that's the legal effect of it. Then you want to consider whether you've got a problem with that. Just have a think about it and let us know. That might resolve that issue.

PN108

MR COLEMAN: The CFA actually didn't have a submission on that particular point.

PN109

MR TUCK: I understand that the rates above it are 250 percent for public holiday. I understand that's the sort of standard - - -

PN110

JUSTICE ROSS: Yes, that's the way it's normally handled.

PN111

MR TUCK: Mr Murphy's point is possibly a good one in terms of 21.3(a) doesn't seem to be well expressed, to achieve 250 percent.

PN112

JUSTICE ROSS: That's right, well I think he's content that it just says 150 percent of the ordinary rate. But the way it reads at the moment looks as if they get half their pay.

PN113

MR TUCK: I'll take instructions on that. If we have anything else we want to say about it we will.

PN114

JUSTICE ROSS: Well perhaps if you can just clarify whether you're staying with the current position, or - - -

PN115

MR TUCK: We will. We'll do that in the next couple of days.

PN116

JUSTICE ROSS: That might be resolved - all of the matters in the exposure draft other than the more difficult ones.

PN117

MR TUCK: Your Honour, do you have any indication of when the matter might be heard?

PN118

JUSTICE ROSS: Well, look, partly - I doubt if we'll end up with 35 witnesses.

PN119

MR TUCK: I would be very very surprised.

PN120

JUSTICE ROSS: And I doubt if the witness statements will be your evidence in chief. Are any of the witnesses to be experts, or are they all discussing various aspects of their own experience, or something like that?

PN121

MR TUCK: We will be looking at very much on a merits basis in terms of the way in which the fire services operate, as well as what we say happened in other states. Actually, the evidence has already been prepared twice now with the award simplification and the - - -

PN122

JUSTICE ROSS: So, it's more evidence from people with operational experience in the first service side of Victoria, to talk about how part time work could operate within their current operational arrangements. Also, people with direct knowledge of the fire services in other states where presumably they operate part time.

PN123

MR TUCK: And some of our diversity issues that we need to manage. We don't think it will be very expansive. Our evidence when we put it on and we anticipate the UFU will put on certain types of evidence which we're familiar with and we might have to respond to some of it in small compass.

PN124

JUSTICE ROSS: Probably, well you're already mid-March for the filing of the material. Do you want an opportunity to file any material in response to the material that's filed by the UFU?

PN125

MR TUCK: I just think that we could be passing in the night if we don't do that.

PN126

JUSTICE ROSS: That's fine. Is two weeks sufficient after they file?

PN127

MR TUCK: Yes.

PN128

JUSTICE ROSS: That brings you to the end of March on that timetable because you're mid-Feb. Four weeks later, mid-March.

PN129

MR TUCK: End of March.

PN130

JUSTICE ROSS: End of March. I would imagine - I'm just not sure where Easter falls, but it would probably be - look, out of an abundance of caution, three days listed for the evidentiary hearing and then probably directions for the following written material. Submissions after that, then a short (indistinct).  That would be broadly the nature of it.

PN131

Look, if it assists, I can certainly put together some draft directions with dates and send it to each of you and it would give you an opportunity to comment on it.

PN132

MR TUCK: That would help.

PN133

JUSTICE ROSS: Just be mindful, I'm not going to be wildly enthusiastic about comments that your favourite counsel is not available for that period, only because it also falls at a time of years where we've got other benches - - -

PN134

MR TUCK: We haven't engaged counsel.

PN135

JUSTICE ROSS: So we'll see. I'll shoot you something out if not tomorrow, then Monday and probably give you till mid-January to comment on it, so you can get a bit of time. I think the pre-Christmas rush is always more difficult for parties to get around and make some enquiries.

PN136

MR TUCK: Thank you, your Honour.

PN137

JUSTICE ROSS: Anything else? Anything from you Ms Gherjestani?

PN138

MS GHERJESTANI: No, your Honour.

PN139

JUSTICE ROSS: Do I take it the other matters that were raised are either - or you've said everything you want to say about them, is really the short point.

PN140

MR TUCK: Yes, subject to anything we might further say in relation to 22.3, that's correct.

PN141

JUSTICE ROSS: All right. Same with you Mr Murphy?

PN142

MR MURPHY: Yes, your Honour.

PN143

JUSTICE ROSS: Ms Gherjestani, you've said pretty much everything you want to say about the matters on the exposure draft. The bench will look at those. We'll hear any further iteration of the 50 versus 150 percent issue. Then we can make a decision based on the material that's been filed on the exposure draft and then the substantive issues will be dealt with by a Full Bench and I'll send around draft directions tomorrow or Monday to give you an opportunity to comment on that.

PN144

Look, I say three days, but it will depend a bit on the evidence and you might give some thought to whether you think that will be sufficient. Bear in mind the witness statements would stand as the evidence in chief so that none of (indistinct) without leave and that will only be really if something's come up between the filing of the statement and when they give their evidence. It may be that not all of them are required for cross-examination.

PN145

So we'll probably put a mention period in at some point just so that there's an indication of the scheduling of witnesses. In the normal course, I expect the parties to sort that between themselves, but sometimes they can't. It's just really - there'll be a mention to touch base about well, what's the order, are they all required for cross-examination, what's your cross-examination estimate and if we need to separate or different hours to accommodate the witness evidence we will. We can obviously make the link available to save expense in relation to interstate visitors as well.

PN146

Okay.

PN147

MR TUCK: Thank you, your Honour.

PN148

MR MURPHY: Thank you.

PN149

JUSTICE ROSS: Anything else? All right, thanks very much. Have a good Christmas break.

ADJOURNED INDEFINITELY                                                           [1.24 PM]