AM2014/217, Transcript of Proceedings [2016] FWCTrans 256 (14 June 2016)

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PN1

JUSTICE ROSS: All right. What I propose to do in relation to – I'll make a short statement at the commencement of each of the groups which, for some of you, you'll hear three or four times over the course of the next two days but nevertheless. The main purpose of today is to confirm the summary of submissions and the report backs that have been received to get an update on any of that material as to whether parties still intend to pursue the matters they've identified. And it's probably a little early at this stage to identify substantive issues that require a separate Full Bench, but if a party is of a view that there is a particular matter that should go there immediately then we can do that.

PN2

What I envisage is that by the end of July there'll be a further exposure draft in respect of each of these awards and an update of the summary of submissions. That doesn't preclude parties from continuing to meet or conferences convened by the Commission in that period to continue to refine the matter. Then there would be a further set of conferences after the release of the revised exposure drafts in August and I'd bring the matters back on either late August or early September to identify any residual issues that are outstanding and to set down some directions at that stage. If there are any particularly urgent matters that need to be dealt with between now and then the parties should bring those to my attention.

PN3

I'll call on each award, deal with it, and I'll take the appearances award by award or actually it might be easier, given there are only seven in the first bracket, to call them all on and to seek appearances from the parties present as to which awards they have an interest in. So I'll do that. I'll call all of the awards on in group 3D and can the parties indicate firstly in Sydney starting on my left. Your organisation and which awards you have an interest in.

PN4

MR D ASTLEY: So my name is Dean Astley, that's A-s-t-l-e-y, and I'm appearing for the AMWU. Our interest in this matter is the Sugar Industry Award.

PN5

JUSTICE ROSS: All right. Thank you.

PN6

MR S CRAWFORD: If it please, your Honour, Crawford, initial S from the Australian Workers' Union, and I'm appearing in relation to all seven of the awards.

PN7

JUSTICE ROSS: Thank you.

PN8

MR B FERGUSON: Yes, your Honour, Ferguson, initial B of the Ai Group, appearing in the Sugar Industry Award and the Horticulture Award.

PN9

MS R BHATT: If it pleases, your Honour, Bhatt, initial R, also appearing for Ai Group in respect of the Wine Industry Award.

PN10

JUSTICE ROSS: Okay. Thank you, Ms Bhatt.

PN11

MR J ARNDT: If the Commission pleases, Arndt, initial J, seeking permission to appear for Australian Business Industrial and the New South Wales Business Chamber in all awards in group 3D save for Silviculture.

PN12

JUSTICE ROSS: Thank you.

PN13

MR K JACK: If it pleases the Commission, Jack initial K, appearing for the Australian Federation of Employers and Industries in respect of the Wine Industry Award, the Gardening and Landscaping Services Award, Horticulture Award, Nursery Award and the Pastoral Award.

PN14

JUSTICE ROSS: And I think you were giving some thought to whether or not you were going to be appearing in Silviculture; is that right?

PN15

MR JACK: Yes. We won't be participating in it at this stage of the proceedings but we may still later on.

PN16

JUSTICE ROSS: Okay. There may not be a later on. That might be the – all right. Can I go to Melbourne, please?

PN17

MS E BARRETT: If it pleases the Tribunal, Barrett E from the ‑ ‑ ‑

PN18

JUSTICE ROSS: I'm just having trouble picking you up on the sound.

PN19

MS E BARRETT: Barrett, initial E from the National Union of Workers in relation to the Horticulture Award.

PN20

JUSTICE ROSS: Thank you. Anyone else in Melbourne?

PN21

MS BARRETT: No, your Honour.

PN22

JUSTICE ROSS: In South Australia?

PN23

MS S HILLS: Hills, initial S seeking to appear on behalf of the South Australian Wine Industry Association in relation to the Wine Industry Award, your Honour.

PN24

JUSTICE ROSS: Thank you.

PN25

MR M BLEWETT: Blewett, initial M from United Voice in relation to the Wine Industry.

PN26

JUSTICE ROSS: Thank you.

PN27

MS K VAN GORP: Van Gorp, initial K in relation to a range of awards this morning. The Wine Industry, Gardening and Landscaping, Horticulture Award, Nursery Award and Pastoral Award, and with me is Klepper C.

PN28

JUSTICE ROSS: Thank you. Nobody else? In Brisbane?

PN29

MR G WHITING: Whiting G, in relation to Sugar Milling.

PN30

JUSTICE ROSS: Right. Thank you. And anybody else? Any other appearances?

PN31

MS McKINNON: Your Honour, in Canberra.

PN32

JUSTICE ROSS: Yes?

PN33

MS S McKINNON: The National Farmers Federation, McKinnon, initial S, with Pearsall, initial K.

PN34

JUSTICE ROSS: And in respect of which awards?

PN35

MS McKINNON: In respect of the Wine Industry Award, the Sugar Industry Award, the Horticulture Award and the Pastoral Award.

PN36

JUSTICE ROSS: All right. Thank you. No further appearances? All right. Well, let's go first to the Wine Industry Award. There's a report by Clancy DP. Are any issues taken in relation to that report?

PN37

MS BHATT: Your Honour, Bhatt for Ai Group.

PN38

JUSTICE ROSS: Yes?

PN39

MS BHATT: The report was made available to the parties late on Friday evening through the Commission's website. We have reviewed the report at pace and have identified a small number of, I'll them discrepancies, and by that I mean that the reports of the outcome of those discussions doesn't accord necessarily with our understanding of where the discussions fell.

PN40

JUSTICE ROSS: All right.

PN41

MS BHATT: But it might just be a matter of revisiting the transcript.

PN42

JUSTICE ROSS: Sure.

PN43

MS BHATT: In light of what your Honour has said earlier I wonder if we might go through the summary of submissions that the Commission has published.

PN44

JUSTICE ROSS: Sure.

PN45

MS BHATT: Which will require updating in light of the discussions that have been undertaken by the parties. I think that a further conference after that summary has been updated and a revised exposure draft is published would assist and would enable the parties to continue discussions which have been quite productive so far.

PN46

JUSTICE ROSS: All right. Any objection to that course? We'll just go to the summary document. Can I just confirm what appears in the report, and that is that the following items have been withdrawn. So if you could just follow me in relation to those, then we'll go through the others. Items 3, 5, 9, 11, 12, 38, 40, 58 and 73. Is there any dispute as to those matters being withdrawn?

PN47

MR ARNDT: Your Honour, in respect of item 9 I'm not sure that that has been withdrawn. It's a very small point. It's to do with whether the Fair Work Act 2009 should be otherwise referred to as "the Act".

PN48

JUSTICE ROSS: Well, you're right, it is a very small point. But shouldn't that just be consistent across all awards?

PN49

MR ARNDT: Absolutely.

PN50

JUSTICE ROSS: Yes. All right.

PN51

MR ARNDT: So I think that can fall in that bundle of ‑ ‑ ‑

PN52

JUSTICE ROSS: Yes. Look, it'll probably be either dealt with in this group of awards or dealt with once we've been through each of the award groups just to ensure some consistency issues around that. So that's probably how we deal with it rather than have a separate argument about this award.

PN53

MR JACK: I must just note that there's a discrepancy in the report where it's noted at paragraph 7 that 9 was withdrawn, but in attachment A it's listed as one that was agreed.

PN54

MR ARNDT: That's a good point.

PN55

JUSTICE ROSS: Yes.

PN56

MR JACK: I'm not sure how that's ‑ ‑ ‑

PN57

JUSTICE ROSS: Well, in any event, whether it's agreed or not it's still preferable that it be dealt with consistently across all awards. So we'll deal with it on that basis. Okay. All right. Well, let's go through the other matters and if you can identify where you believe they're up to. Item 1, was that agreed?

PN58

MS BHATT: Yes.

PN59

JUSTICE ROSS: Item 2? Any discussion on that?

PN60

MR BLEWETT: Blewett from United Voice, your Honour. As indicated in the report I think the parties didn't have a particularly strong view either way about item 2 which was to place the definition section within the award as opposed to as a schedule at the end of the award.

PN61

JUSTICE ROSS: Well, in any event that's ‑ ‑ ‑

PN62

MR BLEWETT: Again, it seems to me ‑ ‑ ‑

PN63

JUSTICE ROSS: Yes. Sorry, that's also likely to be a matter that will be dealt with consistently across awards.

PN64

MR BLEWETT: Exactly.

PN65

JUSTICE ROSS: All right. Item 3? I had thought that was withdrawn; is that right?

PN66

MS McKINNON: Yes, your Honour.

PN67

JUSTICE ROSS: Okay. Item 4?

PN68

MS BHATT: The Ai Group's proposal is agreed between the parties.

PN69

JUSTICE ROSS: So that's the new clause set out at paragraph 369 of Ai Group's submission is agreed?

PN70

MS BHATT: Yes, your Honour.

PN71

JUSTICE ROSS: Okay.

PN72

MR CRAWFORD: Your Honour, I should note that that agreement does constitute a variation from the standard clause that otherwise was going into exposure drafts, but the employers did mount a case, for agricultural industries, that might require a bit of tweaking, so as indicated we did ultimately agree to the amended words.

PN73

JUSTICE ROSS: Yes. Well, I mean, I'm noting your agreement. You shouldn't presume that means the Bench is going to agree with you. So we'll look at it afresh when we come to determine the matter taking into account the agreement of the parties, but we may not reach the same view that the parties have reached.

PN74

MR CRAWFORD: Yes.

PN75

JUSTICE ROSS: Okay. Item 5?

PN76

MS BHATT: Withdrawn.

PN77

MR FERGUSON: It's withdrawn.

PN78

JUSTICE ROSS: Right. Item 6?

PN79

MS BHATT: It's agreed on the basis that the definition will be retained in clause 3 and deleted from schedule H.

PN80

JUSTICE ROSS: Thank you. Seven?

PN81

MS BHATT: Is agreed.

PN82

JUSTICE ROSS: Eight?

PN83

MS BHATT: A revised proposal that was put by the NFF is agreed. It's documented in Clancy DP's report.

PN84

JUSTICE ROSS: Nine is the matter we discussed earlier. Ten?

PN85

MS BHATT: There was agreement that a reference to clause 6.6(c)(iii) be inserted in clause 5.2. And that would resolve items 10, 11 and 12.

PN86

JUSTICE ROSS: Can you just repeat that for me, Ms Bhatt?

PN87

MS BHATT: Yes, your Honour.

PN88

JUSTICE ROSS: Clause 6.6?

PN89

MS BHATT: (c)(iii).

PN90

JUSTICE ROSS: Yes.

PN91

MS BHATT: Will be inserted in clause 5.2.

PN92

JUSTICE ROSS: Okay. And that deals with 10, 11 and 12?

PN93

MS BHATT: Yes, your Honour.

PN94

JUSTICE ROSS: Thirteen?

PN95

MS BHATT: Is agreed.

PN96

JUSTICE ROSS: Fourteen?

PN97

MS BHATT: I understand that to be an agreed matter.

PN98

JUSTICE ROSS: So the proposed amendment in the NFF submission is agreed; is that right?

PN99

MR CRAWFORD: Yes. We don't really have a problem with it, your Honour.

PN100

JUSTICE ROSS: Okay. Fifteen?

PN101

MS BHATT: Is agreed.

PN102

JUSTICE ROSS: Sixteen?

PN103

MS BHATT: Agreed.

PN104

JUSTICE ROSS: Seventeen?

PN105

MS BHATT: Items 17 through to 24 deal with a redrafting of the casual conversion provisions.

PN106

JUSTICE ROSS: Yes.

PN107

MS BHATT: We're in the Commission's hands as to whether this is a matter that is referred to the casuals full Bench or set aside until that Full Bench issues its decision. The matter may be overtaken by the ACTU claim effectively.

PN108

JUSTICE ROSS: Yes. Look it's really whether – I'm content not to refer it and leave it until the casuals Full Bench has determined the issue, but that's really dependent on whether each of the parties to this award will have an opportunity to agitate whatever they want to say before the casuals Full Bench. It would seem to involve most parties. What I want to avoid is this: that – well, if the casuals Full Bench decision determines a matter that's essentially the same as this matter, then you wouldn't be precluded from arguing for a different outcome, but that wouldn't necessarily be a straight forward course. What I would do is, if I was to adopt the approach of not referring it, then when the casual/part-time Full Bench hands down its decision that would be brought to the attention of the parties, there would be a conference to see if there can be an agreed position. If there can't be then the matter would be referred to the casuals/part-time Full Bench and the parties can put whatever they wish to put to it. Rather than loading it up with another matter at this late stage I'd probably be inclined to adopt that course subject to any views that any of you have to the contrary. Anyone proposing a different outcome in relation to that? No? So where did that take us to, Ms Bhatt? Up to and including 24; was that right?

PN109

MS BHATT: Yes, your Honour.

PN110

JUSTICE ROSS: All right. Twenty-five?

PN111

MS BHATT: Is an outstanding matter that the parties should engage in further discussion about.

PN112

JUSTICE ROSS: Yes. Twenty-six?

PN113

MS BHATT: Agreed.

PN114

JUSTICE ROSS: Twenty-seven?

PN115

MS BHATT: Agreed.

PN116

JUSTICE ROSS: Twenty-eight?

PN117

MS BHATT: Agreed.

PN118

JUSTICE ROSS: You sound a little hesitant, Ms Bhatt.

PN119

MS BHATT: There are two issues in item 28. The first being the matter raised by Ai Group. That I understand to be agreed. If we then turn the page.

PN120

JUSTICE ROSS: Yes?

PN121

MS BHATT: The second row down, there's an NFF matter there. The definition of interest should be moved to the definition section. I understand that to have been withdrawn.

PN122

MS McKINNON: Yes, that is the case, your Honour.

PN123

JUSTICE ROSS: Is that right, Ms McKinnon? Sorry, is that right, Ms McKinnon?

PN124

MS McKINNON: Yes, it is, your Honour.

PN125

JUSTICE ROSS: All right. Twenty-nine?

PN126

MS BHATT: Agreed.

PN127

JUSTICE ROSS: Thirty?

PN128

MS BHATT: Still outstanding.

PN129

JUSTICE ROSS: Thirty-one?

PN130

MS BHATT: Outstanding.

PN131

JUSTICE ROSS: Thirty-two?

PN132

MS BHATT: Still outstanding.

PN133

JUSTICE ROSS: Thirty-three?

PN134

MS BHATT: We've agreed.

PN135

JUSTICE ROSS: Thirty-four?

PN136

MS BHATT: Item 34 is resolved by item 35.

PN137

JUSTICE ROSS: And 35?

PN138

MS BHATT: There are two issues in item 35. One related to clause 9.3(a).

PN139

JUSTICE ROSS: Yes.

PN140

MS BHATT: The parties have agreed to adopt wording that was proposed by Ai Group in its reply submissions. There is a separate issue regarding clause 9.4. That is not agreed.

PN141

JUSTICE ROSS: And I take it the agreed variation to 9.3(a) resolves item 34; is that right?

PN142

MS BHATT: Yes, it does, your Honour.

PN143

JUSTICE ROSS: All right.

PN144

MR CRAWFORD: Sorry?

PN145

JUSTICE ROSS: Yes.

PN146

MR CRAWFORD: Your Honour, can I just check in terms of clause 9.3(a) what was agreed between the parties? Can I just double check?

PN147

JUSTICE ROSS: This is the proposal set out in Ai Group's reply submission?

PN148

MR CRAWFORD: I believe so.

PN149

MS BHATT: Yes, your Honour.

PN150

MR CRAWFORD: So is the term "minimum hourly rate" being varied?

PN151

MS BHATT: Yes, it would.

PN152

MR CRAWFORD: Thank you. That's fine, your Honour.

PN153

JUSTICE ROSS: All right. Thirty-six?

PN154

MS BHATT: It's agreed.

PN155

JUSTICE ROSS: Thirty-seven?

PN156

MS BHATT: Agreed.

PN157

JUSTICE ROSS: Thirty-eight?

PN158

MS BHATT: I understand is withdrawn.

PN159

JUSTICE ROSS: Thirty-nine?

PN160

MS BHATT: The parties have agreed to adopt Ai Group's proposal.

PN161

JUSTICE ROSS: Forty? Part-time casual; is that right?

PN162

MS BHATT: I understand this is the same claim that has been withdrawn by United Voice.

PN163

MR BLEWETT: Blewett from United Voice, sir. That is correct. It was withdrawn some time ago.

PN164

JUSTICE ROSS: Okay. Forty-one?

PN165

MS BHATT: I think the parties agreed that there's no change necessary to the award. The matter has been discussed at length.

PN166

JUSTICE ROSS: Forty-two?

PN167

MS BHATT: Is agreed.

PN168

JUSTICE ROSS: Forty-three?

PN169

MS BHATT: Is agreed.

PN170

JUSTICE ROSS: Forty-four?

PN171

MS BHATT: Is agreed.

PN172

JUSTICE ROSS: Forty-five?

PN173

MS BHATT: Is agreed.

PN174

JUSTICE ROSS: Forty-six?

PN175

MS BHATT: Agreed.

PN176

JUSTICE ROSS: Forty-seven?

PN177

MS BHATT: Is the same issue as item 41. The parties agree that there's no change necessary.

PN178

JUSTICE ROSS: Forty-eight?

PN179

MS BHATT: The substantive claim that's been referred to the casual/part-time Full Bench.

PN180

JUSTICE ROSS: Yes. Forty-nine?

PN181

MS BHATT: Forty-nine remains outstanding.

PN182

JUSTICE ROSS: Fifty?

PN183

MS BHATT: Is agreed.

PN184

JUSTICE ROSS: Fifty-one?

PN185

MS BHATT: Fifty-one has now been referred to annualised salaries Full Bench.

PN186

JUSTICE ROSS: Yes. Fifty-two?

PN187

MS BHATT: Is agreed.

PN188

JUSTICE ROSS: Fifty-three?

PN189

MS BHATT: The parties have taken a view that the matter at item 53 is a substantive variation that is not agreed.

PN190

JUSTICE ROSS: Do you agree that it can be dealt with after the casuals/part-time Full Bench deals with the matters it has before it?

PN191

MS BHATT: We wouldn't have any difficulty with that.

PN192

JUSTICE ROSS: All right. Anyone else? No? Fifty-four?

PN193

MS BHATT: It's agreed.

PN194

JUSTICE ROSS: Fifty-five?

PN195

MS BHATT: Is agreed.

PN196

JUSTICE ROSS: Fifty-six?

PN197

MS BHATT: Fifty-six is a matter for the award flexibility Full Bench.

PN198

JUSTICE ROSS: Yes. Fifty-seven.

PN199

MS BHATT: Fifty-seven?

PN200

JUSTICE ROSS: Same thing.

PN201

MS BHATT: Annual leave Full Bench.

PN202

JUSTICE ROSS: Yes. Fifty-eight?

PN203

MS BHATT: Is not pressed.

PN204

JUSTICE ROSS: Fifty-nine?

PN205

MS BHATT: Is agreed.

PN206

JUSTICE ROSS: Sixty?

PN207

MS BHATT: Sixty is agreed.

PN208

JUSTICE ROSS: Sixty-one?

PN209

MS BHATT: This is a substantive claim that has been referred to a separate Full Bench.

PN210

JUSTICE ROSS: Which Full Bench?

PN211

MS BHATT: I understand O'Callaghan SDP is presiding. Directions have been issued and it's been set down for hearing in July.

PN212

JUSTICE ROSS: Okay. So it was constituted last year?

PN213

MS BHATT: I believe so, your Honour.

PN214

JUSTICE ROSS: Yes. Thanks. Public holidays, sixty-two?

PN215

MS BHATT: That remains outstanding.

PN216

JUSTICE ROSS: Sixty-three?

PN217

MS BHATT: Sixty-three has been referred to that same Full Bench.

PN218

JUSTICE ROSS: Yes, okay. Sixty-four?

PN219

MS BHATT: As has sixty-four.

PN220

JUSTICE ROSS: Sixty ‑ ‑ ‑

PN221

MS BHATT: Sixty-five is agreed.

PN222

JUSTICE ROSS: Sixty-six?

PN223

MS BHATT: I understand that this matter has been referred to the penalty rates Full Bench.

PN224

JUSTICE ROSS: Right.

PN225

MS BHATT: Can I explain it this way, your Honour.

PN226

JUSTICE ROSS: Sure.

PN227

MS BHATT: There was an earlier summary of the parties' substantive claims that was published by the Commission earlier this year.

PN228

JUSTICE ROSS: Yes.

PN229

MS BHATT: It indicated that the matter had been referred to the penalty rates Full Bench.

PN230

JUSTICE ROSS: Okay. It just hasn't been heard yet?

PN231

MS BHATT: I think that's right, yes.

PN232

JUSTICE ROSS: All right. So it'll be dealt with by that Full Bench after it deals with the matters that are currently before it. All right. Sixty-seven?

PN233

MS BHATT: Has also been referred to the penalty rates Full Bench.

PN234

JUSTICE ROSS: Yes. Sixty-eight? Same?

PN235

MS BHATT: So has 68 and 69.

PN236

JUSTICE ROSS: Yes.

PN237

MS BHATT: Yes.

PN238

JUSTICE ROSS: Seventy?

PN239

MS BHATT: Is agreed.

PN240

JUSTICE ROSS: Seventy-one?

PN241

MS BHATT: Seventy-one is linked with item 72 which is not agreed.

PN242

MR CRAWFORD: Your Honour, that –especially I think item 72 may be assisted by some clarification from the Commission. Just in terms of whether the intent is ultimately to include overtime rates for casuals in the schedules of exposure drafts or not.

PN243

JUSTICE ROSS: Well, I suppose that depends on what the casual/part-time Full Bench comes out with in relation to that issue.

PN244

MR CRAWFORD: All right. That's fine.

PN245

JUSTICE ROSS: Because I think that's squarely before that Full Bench, the question of overtime. Well, certainly overtime for part-timers. I think overtime for casuals. Almost everything else is before it, so I'd be amazed if that wasn't being dealt with.

PN246

MR CRAWFORD: I mean, it is, I guess, in terms of what casuals get for overtime may be before it. Just in terms of on a general level of whether the Commission is seeking to include a rates table or not.

PN247

JUSTICE ROSS: Well, it really depends on whether there's a substantive entitlement or not. Is there a substantive entitlement of this award to casuals being paid overtime?

PN248

MR CRAWFORD: Well, we certainly believe so, yes.

PN249

JUSTICE ROSS: But is that an issue that's in dispute or not?

PN250

MS BHATT: I don't think it is, your Honour, from the Ai Group's perspective. I can't speak to the position of the other parties.

PN251

JUSTICE ROSS: Sure. Sure. If it's not in dispute what's the problem with putting it in the schedule?

PN252

MS BHATT: The only problem that Ai Group made is that if those rates were to be published we would seek an opportunity to review.

PN253

JUSTICE ROSS: No, certainly.

PN254

MS BHATT: I think there might have been some opposition from other parties about the rates being published at all.

PN255

JUSTICE ROSS: All right. Is it agreed that casual shift workers are entitled to overtime? Is there dispute about that?

PN256

MR CRAWFORD: Again, we didn't understand there was.

PN257

JUSTICE ROSS: No, I know you don't. Does anybody else?

PN258

MR BLEWETT: It's Blewett from United Voice in Adelaide, sir. It's very clearly spelt out in clause 19 item (c) of the exposure draft.

PN259

JUSTICE ROSS: Yes.

PN260

MR BLEWETT: It's crystal clear.

PN261

JUSTICE ROSS: All right. Well, if there's an entitlement then why shouldn't the rates be in the schedule? Who takes a different view on that point?

PN262

MS McKINNON: Your Honour, the NFF has a view just on how those rate tables can be expressed in awards. Because of the way that hours of work can be somewhat more flexible in the agricultural industries the tables can sometimes create the impression when an entitlement is payable when it's not. So I think we'd be comfortable to adopt the AiG position that we have the opportunity to comment on the tables.

PN263

JUSTICE ROSS: Sure.

PN264

MS McKINNON: It's just that sometimes the tables are trying to make a tier of it. Actually we think they can create a wrong impression.

PN265

JUSTICE ROSS: All right. Well, perhaps we'll include in the revised exposure draft the table including the casual overtime rates and then parties can have a look at it and then have an opportunity to comment about it, whether it's accurate, whether it creates confusion, et cetera. Is everyone happy with that?

PN266

MR CRAWFORD: Yes. Thank you.

PN267

JUSTICE ROSS: All right.

PN268

MS McKINNON: Yes. Thank you, your Honour.

PN269

JUSTICE ROSS: Seventy-three?

PN270

MS BHATT: I understand it's withdrawn.

PN271

JUSTICE ROSS: Seventy-four?

PN272

MS BHATT: Is outstanding.

PN273

JUSTICE ROSS: Seventy-five?

PN274

MS BHATT: Also remains outstanding.

PN275

JUSTICE ROSS: Seventy-six?

PN276

MS BHATT: A matter for the public holidays Full Bench.

PN277

JUSTICE ROSS: Yes, part day. Seventy-seven?

PN278

MS BHATT: Yes. If your Honour would bear with me, there are multiple issues that are raised in item 77.

PN279

JUSTICE ROSS: Yes.

PN280

MS BHATT: So the first definition of wine industry has been resolved by item 6.

PN281

JUSTICE ROSS: Yes.

PN282

MS BHATT: If we just move down that same column, the issue of the standard rate has been withdrawn.

PN283

JUSTICE ROSS: Thank you. Yes.

PN284

MS BHATT: Below that the definition of wine industry using other agricultural sector awards. That remains outstanding.

PN285

JUSTICE ROSS: Just bear with me for a moment.

PN286

MS BHATT: I apologise.

PN287

JUSTICE ROSS: Standard rate. Yes. Yes, right, re wine industry. Yes, sorry.

PN288

MS BHATT: Then below that is ‑ ‑ ‑

PN289

JUSTICE ROSS: I'm sorry, what were you saying about wine industry?

PN290

MS BHATT: That that matter remains outstanding.

PN291

JUSTICE ROSS: And so that's the proposition that there should be a consistent definition in all awards; is that ‑ ‑ ‑

PN292

MS BHATT: Yes, your Honour.

PN293

JUSTICE ROSS: Which other awards does it appear in?

PN294

MS BHATT: It's a matter that's been ‑ ‑ ‑

PN295

MS McKINNON: Your Honour, it appears in the Horticulture Industry Award. I think the Pastoral Industry Award and perhaps the Sugar Industry Award. In quite a few of the agricultural awards and it's used to delineate coverage. So if you're covered by the one industry award you're not covered by one of the others. And it's clear from the reading of those provisions, the intention is to pick up the coverage of the wine industry award in each case but sometimes the definition has changed over time inadvertently it seems, and it's just a technical drafting matter, but it's a good opportunity to clean it up.

PN296

JUSTICE ROSS: Okay. Well, that might be something I'll ask the Award MOD area to have a look at and just do a short paper on where there are issues, as you've raised, Ms McKinnon, and perhaps track through some of the history of it and see if we can get to the bottom of what the intention was.

PN297

MS McKINNON: Yes. Thank you, your Honour.

PN298

MR FERGUSON: Yes, that was just in other awards.

PN299

JUSTICE ROSS: Which other? The Horticulture – the – yes, no, sure. Bit surprised it arises in the Sugar Industry Award.

PN300

MR CRAWFORD: Yes. I'm not sure that it actually - it does.

PN301

JUSTICE ROSS: There you go. No, that's fine. It's the same issue. We can just do a search of wine industry and we'll see where it comes up. All right. There were two issues in that last – there was the standard rate issue.

PN302

MS BHATT: Yes.

PN303

JUSTICE ROSS: That appears under wine industry. What's the story with that?

PN304

MS BHATT: That has been withdrawn.

PN305

MS McKINNON: Your Honour?

PN306

JUSTICE ROSS: Yes?

PN307

MS McKINNON: It's withdrawn. Just for some clarity around that, it was really a suggestion which came from NFF on the basis that we seemed to have moved away now from the percentage approach in using the standard rate. So most awards now are using fixed dollar amounts in the award. So the standard rate term is of limited utility other than for historical reference back to 2010. And because there are a number of definitions of rates, so minimum hourly wage, minimum hourly rate, standard rate as well, or to be hourly rates, we took the view that it probably wasn't necessary but we're happy to withdraw it because there it doesn't seem to be any consensus.

PN308

JUSTICE ROSS: Okay. And the last issue, this is in relation to the wine industry. This was duplication of the definition.

PN309

MS BHATT: That's been resolved by item 6.

PN310

JUSTICE ROSS: Yes. Is that is it's retained in 3.2 and deleted from the schedule.

PN311

MS BHATT: Yes, your Honour.

PN312

JUSTICE ROSS: Yes. All right. Are there any other matters in respect of the Wine Industry Award?

PN313

MR BLEWETT: Your Honour, it's Blewett from United Voice in Adelaide. I thought I should indicate, item 61 and 64 are two substantive claims from United Voice which has been referred to the Full Bench convened by O'Callaghan SDP.

PN314

JUSTICE ROSS: Yes.

PN315

MR BLEWETT: I drafted a letter. I had hoped it would be received by his Honour and the parties. We're going to withdraw those two claims. I thought (indistinct).

PN316

JUSTICE ROSS: Can I encourage ‑ ‑ ‑

PN317

MR BLEWETT: And a letter will ‑ ‑ ‑

PN318

JUSTICE ROSS: Just a moment. Can I encourage you to speak into the microphone. Can I encourage the other parties not to rattle their papers near the microphone because it causes feedback at our end so we can't hear you. So as I understood it United Voice has matters before, this is 61 and onwards, before the separately constituted Full Bench, but you were, or you had written withdrawing certain of those matters; is that right?

PN319

MR BLEWETT: It's just item 61 and 64.

PN320

JUSTICE ROSS: Yes, 61 and 64. The two United Voice claims. Yes.

PN321

MR BLEWETT: Yes. And I have drafted a letter, which I'd hoped had gone but it hasn't gone, to his Honour O'Callaghan SDP and the parties advising that we intend to withdraw those two claims and seeking directions, because there doesn't seem to be much left for that Full Bench to do. There seems to be only one other matter which I think the parties have agreed in principal before that Full Bench. So I just thought I should advise people today since we're all together.

PN322

JUSTICE ROSS: Okay. All right. Thank you. Anything further? All right. Let's move to the Sugar Industry Award. I thought I might escape the Sugar Industry Award, but – there's a Full Bench report by Asbury DP.

PN323

MR FERGUSON: Yes, your Honour. I can address where this matter is up to, because for this particular award it may not be as efficient to deal with the entire summary today.

PN324

JUSTICE ROSS: Sure.

PN325

MR FERGUSON: As I understand it I ‑ ‑ ‑

PN326

JUSTICE ROSS: I'm relieved to hear it.

PN327

MR FERGUSON: Yes. As I'm instructed there's been a number of conferences before Asbury DP that have been very productive.

PN328

JUSTICE ROSS: Yes.

PN329

MR FERGUSON: But they're probably not quite as advanced as some of the other awards are. As I understand it the last conference was on Thursday of last week.

PN330

JUSTICE ROSS: That's right.

PN331

MR FERGUSON: Deputy President then released a report on Friday night which is some 12 pages long. It somewhat overtakes the summary. But there are also a number of matters that are still being considered by the parties. Now, I for one, can say that regrettably we're not in a position to speak to the accuracy of that report.

PN332

JUSTICE ROSS: All right. Well can we approach it this way: that I'll ask the Deputy President to convene a further conference in a couple of weeks to continue the process and see where the matter gets to. Can I raise one issue with you? This is the conversion of some imperial measures to the metric system. I'd encourage the parties to adopt a sensible approach in that when you do the conversions of some of the clauses, for example, you end up with 76.2 centimetres or more of water, it seems unlikely that someone is going to be running around with a device that's going to be that accurate. And I'd suggest some rounding, simple rounding rules be adopted.

PN333

You've got the same issue in relation to height, money. It's unlikely you're going to have a dispute about 15.24 metres and 26.86 metres. Same thing about cement; it's unlikely to be packaged in amounts of 508 kilos, in my experience at least, so I appreciate it would be a change, but I don't think it's a change of much moment, and I'd encourage you to just discuss it with your colleagues to see what difference it would really make on the ground. But speaking for myself I'd be for adopting simpler measurements rather than putting people to the trouble of measuring .2 of a centimetre about whether an allowance applies or not. Okay. So if you can bear that in mind when you have the further conference. Does anyone oppose the proposition that Mr Ferguson has put forward? That you continue the conference process. I'll talk to Asbury DP and ask her to convene a further conference in the next couple of weeks. And it does seem that you've made significant progress in relation to what are quite difficult issues, and there are certainly aspects of this award that are almost incomprehensible. And the changes will assist in that process. Everyone content with that?

PN334

MS McKINNON: Yes. Thank you.

PN335

JUSTICE ROSS: All right. Thank you very much. Landscaping and Gardening? There's again a short report by Clancy DP. Look, the summary is relatively short. Are you content if I go through the summary of submissions and you can identify as we go through what's agreed and what's not? Item 1? That seems to be agreed; is that right?

PN336

MR JACK: Yes. That's right.

PN337

MR CRAWFORD: Yes.

PN338

JUSTICE ROSS: Item 2? Is this really in the category of we'll await the casual/part-time Full Bench?

PN339

MR CRAWFORD: Yes, it is.

PN340

JUSTICE ROSS: All right. Item 3? That seems to be agreed; is that right?

PN341

MR CRAWFORD: Yes.

PN342

MR JACK: Agreed.

PN343

JUSTICE ROSS: Item 4? Any movement in relation to that?

PN344

MR JACK: That's not agreed.

PN345

MR CRAWFORD: Not agreed.

PN346

JUSTICE ROSS: Okay. Bar with me for a moment. Item 5?

PN347

MR JACK: I believe AFEI was the only party opposing the AWU's ‑ ‑ ‑

PN348

JUSTICE ROSS: Looks like it. Yes.

PN349

MR JACK: And we no longer press our objection.

PN350

JUSTICE ROSS: So that would be agreed?

PN351

MR JACK: I believe so.

PN352

JUSTICE ROSS: Okay. Item 6?

PN353

MR JACK: Agreed.

PN354

JUSTICE ROSS: Item 6 is agreed; is that right?

PN355

MR CRAWFORD: Yes.

PN356

MR JACK: Agreed.

PN357

JUSTICE ROSS: Item 7?

PN358

MR CRAWFORD: I think there's an alternative ABI proposal; is that right?

PN359

MR ARNDT: That's right.

PN360

JUSTICE ROSS: AFEI, yes. And ABI intended a proposal, so where is that?

PN361

MR ARNDT: It is being proposed late on Friday evening, I believe.

PN362

JUSTICE ROSS: All right. So further discussion in relation to it?

PN363

MR JACK: For further discussion. That's good.

PN364

JUSTICE ROSS: All right. Have you received that?

PN365

MR CRAWFORD: Yes, I have seen it, and on first glance it looked okay, but maybe if we can just have a bit more time and check that.

PN366

JUSTICE ROSS: No. Yes, no, that's fine. Item 8, is that agreed?

PN367

MR JACK: Yes.

PN368

MR ARNDT: Yes.

PN369

JUSTICE ROSS: Item 9? Are you still pressing that?

PN370

MR CRAWFORD: No, that's withdrawn, your Honour.

PN371

JUSTICE ROSS: All right. Item 10. That seems to be agreed; is that right?

PN372

MR JACK: Yes.

PN373

JUSTICE ROSS: That the title be changed? Item 11? Where is item 11 up to?

PN374

MR CRAWFORD: I thought I had – the AWU had proposed alternative wording at the last conference which the parties were going to consider.

PN375

JUSTICE ROSS: Consider. Yes, that's right. So that's outstanding?

PN376

MR ARNDT: We need further time to consider.

PN377

JUSTICE ROSS: That's fine. Item 12?

PN378

MR JACK: Agreed.

PN379

MR CRAWFORD: Agreed.

PN380

JUSTICE ROSS: So you agree the second part of clause 10.2(b) should be deleted as rounding to the nearest quarter of a per cent is unnecessarily complex. Yes. Well, I think that's right. Item 13?

PN381

MR CRAWFORD: I understand that to be withdrawn.

PN382

JUSTICE ROSS: That was withdrawn, wasn't it? Same with 14? Were they both withdrawn?

PN383

MS McKINNON: Yes, your Honour.

PN384

JUSTICE ROSS: Okay. Thank you. Fifteen? I think that was agreed; is that right?

PN385

MR JACK: Yes.

PN386

JUSTICE ROSS: So the clause will be varied by deleting the words:

PN387

according to the actual ordinary hours worked each week or fortnight.

PN388

From clause 10.6(a). All right. Sixteen that's outstanding, I think; is that right?

PN389

MR CRAWFORD: Yes.

PN390

JUSTICE ROSS: This is about whether the leading hand allowance is paid for all purposes. And you're pursuing that claim?

PN391

MR CRAWFORD: At this stage, yes, your Honour.

PN392

JUSTICE ROSS: All right. Seventeen? I think it's agreed that the ordinary rate of pay be applicable; is that right?

PN393

MR ARNDT: That's right. Yes.

PN394

MR JACK: Yes.

PN395

JUSTICE ROSS: Okay. Eighteen? I think it was agreed that the clause be varied so the beginning states:

PN396

All time worked in excess of 38 ordinary hours in a week.

PN397

MR CRAWFORD: Yes, agreed.

PN398

JUSTICE ROSS: Is that agreed?

PN399

MR CRAWFORD: Yes.

PN400

JUSTICE ROSS: Clause 19? Where is that up to? I think the AFEI was the one opposing?

PN401

MR JACK: Yes. We still are opposing that change.

PN402

JUSTICE ROSS: Okay. Item 20? That's been considered in two other Benches.

PN403

MR JACK: Yes.

PN404

JUSTICE ROSS: Or in another Bench. Twenty-one?

PN405

MR CRAWFORD: Withdrawn.

PN406

JUSTICE ROSS: Twenty-two?

PN407

MR ARNDT: Agreed.

PN408

MR CRAWFORD: Agreed.

PN409

JUSTICE ROSS: All right.

PN410

MR ARNDT: I should just note, your Honour, with 22 the global change in the award system from OH&S to WH&S is probably something that needs to have a consistent approach across all awards.

PN411

JUSTICE ROSS: Yes, I agree.

PN412

MR ARNDT: Okay.

PN413

JUSTICE ROSS: But is Work Health and Safety the general expression that's now used?

PN414

MR ARNDT: To our understanding, yes.

PN415

JUSTICE ROSS: All right. Well, we'll do a search of where Occupational Health and Safety appears and propose a general variation, and see what views come out of that.

PN416

MR ARNDT: As the Commission pleases.

PN417

JUSTICE ROSS: Twenty-three? Is 23 agreed or not?

PN418

MR CRAWFORD: No, I don't think it is, your Honour. And there's, I think, perhaps a couple of different issues there.

PN419

JUSTICE ROSS: Yes, I see. You're going to circulate something. You're going to expand on your submission; is that right?

PN420

MR CRAWFORD: Yes, that does ring a bell. I mean, our initial point was to do with, again, a rates table for casuals in terms of overtime. So we were just saying that it made sense to us that there should be a table inserted, and then a broader debate arose about the terminology in schedule B. Although AiG aren't in this award, I think it's a debate they – yes, I know, but I think it affects your argument in another award. It's just about the terms, minimal hourly rate and ordinary hourly rate. And I think we did actually submit additional material on this issue which was published onto the website.

PN421

MR FERGUSON: I think it does arise in other awards. It's about the way the table is displayed and whether ‑ ‑ ‑

PN422

JUSTICE ROSS: Have we dealt with that issue?

PN423

MR FERGUSON: I don't think we have. I may be confusing it because we seem to have in some conferences for individual awards.

PN424

JUSTICE ROSS: Yes.

PN425

MR FERGUSON: But I don't know that the Full Bench has. It's just about whether the way the heading in the table was depicted could mislead. I don't think either of us argue that's a substantive issue. It's just how you read the clause as whole.

PN426

JUSTICE ROSS: Okay. So that'll be the subject of further discussion between you; is that the ‑ ‑ ‑

PN427

MR CRAWFORD: Well, we've tried and we don't seem to get very far. Would it be possible to get a bit of assistance from the Commission or ‑ ‑ ‑

PN428

JUSTICE ROSS: Sure. You can have another conference in relation to that issue. Well, and any other outstanding issues?

PN429

MR FERGUSON: I think the issue might be that it arises in different awards, so different members may well take a different view.

PN430

JUSTICE ROSS: All right. Well, perhaps if Ai Group can write to me setting out where it arises and what the issue is.

PN431

MR FERGUSON: Yes.

PN432

JUSTICE ROSS: And we'll identify it as a general matter rather than reaching a different position in each of the areas. Okay. Anything further in relation to that award? No? Let's go to Horticulture. Again, there is a summary prepared by Clancy DP. How do you want to deal with this matter?

PN433

MR FERGUSON: This matter is detailed in the ‑ ‑ ‑

PN434

JUSTICE ROSS: It is.

PN435

MR FERGUSON: We'd be content to work through the summary because I think the parties have a fairly good understanding of where things are at. We were ‑ ‑ ‑

PN436

JUSTICE ROSS: Is everyone content with that?

PN437

MS McKINNON: Yes, your Honour.

PN438

JUSTICE ROSS: All right. Item 1?

PN439

MR FERGUSON: I think item 1 is agreed. But this is an issue of general relevance across the system. It's the removal of the words "as varied" from the first clause in the award. I don't know – we agree with that change but we may end up suggesting some alternate wording be adopted across the system.

PN440

JUSTICE ROSS: I'm not sure I'm following you. You agree with this change but you might ‑ ‑ ‑

PN441

MR FERGUSON: No, no, we do. The clause at the moment says:

PN442

The modern award as varied commenced operation on 1 January 2010.

PN443

We agreed the words "as varied" should come out because it's arguably inaccurate.

PN444

JUSTICE ROSS: Yes. Yes.

PN445

MR FERGUSON: On reflection, and it just may be that there's some utility in identifying the fact that the terms of the award have been varied since that date and a simple supplementary sentence on the end of that could suffice. Haven't given a lot of thought to that and it's not a big issue but certainly the words "as varied" should come out.

PN446

JUSTICE ROSS: I'm still not sure I'm following you, Mr Ferguson.

PN447

MR FERGUSON: Yes.

PN448

JUSTICE ROSS: You think there might be some utility in having "as varied" there because it indicates that the award is not static as at a point of time.

PN449

MR FERGUSON: But as you use it in a sentence as it's written at the moment it creates a problem, because the award as varied didn't commence on 1 January 2010.

PN450

JUSTICE ROSS: Yes. I follow. Okay.

PN451

MR FERGUSON: It may be – if it said:

PN452

This modern award commenced operation on 1 January 2010. The terms of the award have been varied since that date.

PN453

We haven't given a lot of thought to that and we've not advanced it.

PN454

JUSTICE ROSS: Yes.

PN455

MR FERGUSON: But certainly we'd agree that the words "as varied" come out.

PN456

JUSTICE ROSS: Yes. I'm not sure – yes. Okay. Item 2?

PN457

MR FERGUSON: This is a similar issue. I think part of the issue here was replacing the full reference of National Employment Standards which is NES, which no-one was concerned about but I think where we landed on was that that change probably wasn't necessary given this is an issue of consistency across the system.

PN458

JUSTICE ROSS: Okay.

PN459

MR FERGUSON: So that issue is withdrawn.

PN460

JUSTICE ROSS: Okay. Item 3?

PN461

MR FERGUSON: I think it's agreed we'd adopt Ai Group proposed wording. This is that issue of the wording relating to the display of the award potentially being different in some awards.

PN462

JUSTICE ROSS: Right. Item 4?

PN463

MR FERGUSON: There are a number of parties proposing to raise coverage issues or proposed changes to the coverage clause. I think that will need to be allocated to a separate Full Bench because it's a substantive claim.

PN464

JUSTICE ROSS: Okay. Item 5? Well, that's coverage as well. So all the coverage issues, 5 through to 8.

PN465

MR FERGUSON: I think 5 is just – 5 relates to certain definitions in the coverage clause.

PN466

JUSTICE ROSS: Yes.

PN467

MR FERGUSON: Which are agreed.

PN468

MR ARNDT: Your Honour, that's also an issue that's across all awards, whether the definition of the industry is in both the definition schedule and in also the coverage schedule. So ‑ ‑ ‑

PN469

MR FERGUSON: I think that's one issue, and then the other issue is there's some changing to the definition – to the wording of the coverage provision that the NFF has proposed, which is agreed.

PN470

JUSTICE ROSS: Well, there's the change in the definition, because they do seem to be – item 5 seems to be raising the overlap issue.

PN471

MR FERGUSON: Sorry, it is the overlap issue.

PN472

JUSTICE ROSS: Okay. Item 6? Well, that's again ‑ ‑ ‑

PN473

MR FERGUSON: Same. But I think it was withdrawn.

PN474

JUSTICE ROSS: Yes. Item 7?

PN475

MR FERGUSON: Same, it's agreed. The NFF proposed change.

PN476

JUSTICE ROSS: Item 8? It seems to be the same issue.

PN477

MR FERGUSON: It is.

PN478

MR ARNDT: Yes.

PN479

MR FERGUSON: It's agreed.

PN480

JUSTICE ROSS: Item 9.

PN481

MS McKINNON: That's withdrawn, your Honour.

PN482

JUSTICE ROSS: Okay. Item 10? Part-time/casuals.

PN483

MR FERGUSON: Yes.

PN484

JUSTICE ROSS: Item 11? Is this also ‑ ‑ ‑

PN485

MR FERGUSON: Should go to casuals.

PN486

JUSTICE ROSS: Can this await the decision?

PN487

MR FERGUSON: Yes.

PN488

JUSTICE ROSS: Item 12?

PN489

MR FERGUSON: Is not agreed.

PN490

JUSTICE ROSS: Item 13?

PN491

MR FERGUSON: There are two issues here. There's a variation to clause 6.5(c)(i) which is agreed, which is deletion of the word "ordinary". I think that's the AWU proposal.

PN492

MR CRAWFORD: Yes. That's correct.

PN493

MR FERGUSON: Then there's proposed insertion of minimum hourly rates, the term "minimum hourly rates" which I assume is an Ai Group and NFF proposal but that's not agreed.

PN494

JUSTICE ROSS: What's the problem there?

PN495

MR FERGUSON: I'm just having a look. I think it's replacing the term, ordinary hourly rate with minimum hourly rate and it's contentious. Bear with me one second.

PN496

MS McKINNON: I think, your Honour, the point is raised because the wording in the current award is "minimum rate" and we're seeking to align the exposure draft with the current terms.

PN497

JUSTICE ROSS: Okay.

PN498

MS McKINNON: But there is a broader question about the minimum versus ordinary hourly rate and how that's used in this award.

PN499

MR FERGUSON: Yes. It's ‑ ‑ ‑

PN500

JUSTICE ROSS: And that's item 14 as well; is that right?

PN501

MS McKINNON: Yes, your Honour.

PN502

MR FERGUSON: Yes.

PN503

JUSTICE ROSS: Okay. Fifteen?

PN504

MR CRAWFORD: I understand that was resolved on the basis that the parties agree the table of provisions for casual shift workers should go in the schedule outlining their rates. I don't think there's any actual debate that casual employees can be engaged on a shift work basis.

PN505

JUSTICE ROSS: Right. Okay. Sixteen?

PN506

MS McKINNON: It's agreed, I think.

PN507

MR FERGUSON: Yes, agreed.

PN508

JUSTICE ROSS: Seventeen?

PN509

MR FERGUSON: Withdrawn.

PN510

MS McKINNON: Withdrawn.

PN511

JUSTICE ROSS: Eighteen?

PN512

MR FERGUSON: Withdrawn.

PN513

JUSTICE ROSS: Nineteen?

PN514

MR FERGUSON: This is an AWU proposal that we're not opposed to but I think the others are still considering. Some of the other parties are still considering at least.

PN515

JUSTICE ROSS: All right. Is there any – have the other parties landed anywhere on this issue yet?

PN516

MS McKINNON: My understanding of where we reached was we'd retain the current wording in the award.

PN517

JUSTICE ROSS: So the AWU is still pressing its proposal and it's not agreed; is that where we're at?

PN518

MR CRAWFORD: I mean, the only concern we had was that the current wording didn't seem to capture all that well occasions where overtime is payable for work outside the span of ordinary hours. I mean, if it's accepted by all the parties that the wording "in excess of the ordinary hours" would apply equally to the span of ordinary hours we'd be willing to drop that point.

PN519

JUSTICE ROSS: Well, it doesn't really matter whether they accept it here. It's whether you think the current provision is ambiguous or not. And if it is then we would need to look at it.

PN520

MR CRAWFORD: We would still say it arguably is ambiguous and given there's no real dispute, as I understand it from the parties, that you get overtime for working outside the span of ordinary hours that our amendment should be made.

PN521

JUSTICE ROSS: All right. Item 20?

PN522

MR FERGUSON: Agreed.

PN523

JUSTICE ROSS: Item 21?

PN524

MR FERGUSON: That's agreed as well.

PN525

JUSTICE ROSS: Item 22?

PN526

MR FERGUSON: That's withdrawn.

PN527

JUSTICE ROSS: Item 23?

PN528

MR FERGUSON: It's a not agreed matter.

PN529

JUSTICE ROSS: Item 24.

PN530

MR FERGUSON: That's not agreed at the moment.

PN531

JUSTICE ROSS: Item 25?

PN532

MR FERGUSON: Similarly not agreed.

PN533

JUSTICE ROSS: Twenty-six?

PN534

MR FERGUSON: Being dealt with by the part-time/casuals Full Bench.

PN535

JUSTICE ROSS: Okay. Is it dealing with the second of the matters though?

PN536

MR FERGUSON: Yes, I'm just having a look at that, now.

PN537

MS McKINNON: I think that comes up, your Honour, in item 27.

PN538

JUSTICE ROSS: Yes.

PN539

MR FERGUSON: I think in relation to piece workers what we were going to suggest is that there would be merit in a further conference to discuss the awards treated as piece workers.

PN540

JUSTICE ROSS: Okay.

PN541

MR FERGUSON: I think some of the parties are working on a proposal at the moment.

PN542

JUSTICE ROSS: All right. Are you happy with that, Ms McKinnon?

PN543

MS McKINNON: Yes, your Honour.

PN544

JUSTICE ROSS: All right. Twenty-eight? Yes, this is the quarter of one cent.

PN545

MR FERGUSON: Yes. It's agreed.

PN546

JUSTICE ROSS: Yes. It's agreed? Thirty?

PN547

MR FERGUSON: Twenty-nine is agreed.

PN548

MS McKINNON: The parties agree that no changes are necessary.

PN549

JUSTICE ROSS: Sorry, yes, 29 is agreed. And 30?

PN550

MR FERGUSON: And 30 the parties agree there's no change necessary.

PN551

JUSTICE ROSS: Thirty-one?

PN552

MR FERGUSON: That's agreed.

PN553

JUSTICE ROSS: Thirty-two?

PN554

MR FERGUSON: There's agreement to the Ai Group proposed wording.

PN555

JUSTICE ROSS: Thirty-three?

PN556

MR FERGUSON: That's agreed as well.

PN557

MS McKINNON: It's agreed.

PN558

JUSTICE ROSS: Thirty-four?

PN559

MR FERGUSON: That's withdrawn.

PN560

JUSTICE ROSS: Thirty-five?

PN561

MR FERGUSON: That's withdrawn also.

PN562

JUSTICE ROSS: Thirty-six?

PN563

MS McKINNON: Agreed.

PN564

JUSTICE ROSS: Thirty ‑ ‑ ‑

PN565

MR FERGUSON: I think the – yes, sorry, 36 has been resolved by another change.

PN566

JUSTICE ROSS: What's the other change?

PN567

MR FERGUSON: My rather cryptic notes don't help.

PN568

JUSTICE ROSS: Just bear with me for a sec. Delete the word "overtime" in clause 14.1(h).

PN569

MR FERGUSON: There's additional wording in that clause which I think we said to be deleted.

PN570

MS McKINNON: Yes So the end of the clause says:

PN571

Paid in accordance with clause 15 - overtime.

PN572

JUSTICE ROSS: Yes.

PN573

MS McKINNON: We've agreed that that phrase should come out, and that then that removes the need for the word "and" before it.

PN574

MR CRAWFORD: That's correct.

PN575

JUSTICE ROSS: Sorry, Ms McKinnon, can you just read out that expression that's been deleted? "Paid in accordance with"?

PN576

MS McKINNON: "Clause 15 – overtime".

PN577

JUSTICE ROSS: Okay. All right. Thank you.

PN578

MS McKINNON: And that then resolves 36.

PN579

JUSTICE ROSS: Yes. Thirty-seven?

PN580

MR CRAWFORD: Casual Full Bench, I think.

PN581

MR FERGUSON: Yes.

PN582

JUSTICE ROSS: Yes, okay. Thirty-eight?

PN583

MR FERGUSON: It's not agreed.

PN584

JUSTICE ROSS: Thirty-nine?

PN585

MR FERGUSON: The award flexibility Full Bench.

PN586

JUSTICE ROSS: Right. Forty?

PN587

MR FERGUSON: I think it's withdrawn.

PN588

JUSTICE ROSS: Forty-one?

PN589

MR FERGUSON: There's agreement to delete as proposed.

PN590

MS McKINNON: The effect of agreement to item 33 is that item 41 also resolves.

PN591

MR FERGUSON: Yes.

PN592

JUSTICE ROSS: Thank you. Forty-two?

PN593

MR CRAWFORD: That's the annual leave Full Bench.

PN594

MR FERGUSON: Yes.

PN595

JUSTICE ROSS: Is it?

PN596

MR CRAWFORD: The issue of the payment of leave loading.

PN597

JUSTICE ROSS: Is this the payment of – that's the one that's still hanging.

PN598

MR FERGUSON: Hanging.

PN599

JUSTICE ROSS: Yes, okay. Am I right, once Parliament's (indistinct), the bills are – they disappear, as well, so - - -

PN600

MR FERGUSON: Perhaps. I'm not sure.

PN601

JUSTICE ROSS: If it was to be dealt with it would have to be re-introduced?

PN602

MR JACK: I believe that's correct.

PN603

JUSTICE ROSS: Yes, okay. I think we left that on the basis we'll await the ACTU seeking to have the matter brought back on and we'll deal with it then.

PN604

MR FERGUSON: Yes.

PN605

JUSTICE ROSS: Forty-three?

PN606

MR FERGUSON: There's no opposition to the change proposed by (indistinct).

PN607

JUSTICE ROSS: Okay, 44?

PN608

MR FERGUSON: Yes, same issue.

PN609

JUSTICE ROSS: No, a different issue. That's been referred to a Bench, has it? There are a sweep of those and that's - - -

PN610

MR FERGUSON: There are. There are – there's going to be a specifically constituted Full Bench - - -

PN611

JUSTICE ROSS: No, I think there already has been.

PN612

MR FERGUSON: Yes. There has been.

PN613

JUSTICE ROSS: And I think I probably had a mention, either July or August, really to seek the view – but I'll put out a statement before then – to seek the views of the parties about what sort of case they're planning on running.

PN614

MR FERGUSON: Yes.

PN615

JUSTICE ROSS: And how long you think it's likely to be.

PN616

MR FERGUSON: Okay.

PN617

JUSTICE ROSS: But the statement will identify the sort of issues that I'm going to want to talk about at the mention and I'll encourage all the interested parties to have a discussion to see if you can reach an agreement about directions, et cetera, so that we don't trip over other Benches that are running at the same time.

PN618

MR FERGUSON: Yes. And that might pick up if there are any other parties, like Business SA.

PN619

JUSTICE ROSS: Sure. Yes, yes. Yes. No, no, sure. Forty-five?

PN620

MR FERGUSON: This is that same drafting issue about the way the table is displayed, the AWA (indistinct) is raised, and the contest of the Gardening Award, so the writing to you, your Honour.

PN621

JUSTICE ROSS: Yes, that's fine, 46?

PN622

MR FERGUSON: That's agreed.

PN623

JUSTICE ROSS: Forty-seven? You want to review that after the casual, part-time?

PN624

MR CRAWFORD: I had that it was agreed, so perhaps that - - -

PN625

JUSTICE ROSS: It does look like it's agreed.

PN626

MR CRAWFORD: The AMIT would put in the rates and then obviously the parties would have a chance to review them.

PN627

MR FERGUSON: I think subject to that.

PN628

MR CRAWFORD: Yes.

PN629

MR FERGUSON: Subject to having a look at the rates.

PN630

JUSTICE ROSS: All right, okay. Yes, all right, agreed. Forty-eight? This is updating the schedule.

PN631

MR FERGUSON: We just haven't confirmed that that's appropriate. It's likely to be agreed but we just need to check the agreement.

PN632

JUSTICE ROSS: Okay. Can you let us know in a week or so, would that be all right?

PN633

MR FERGUSON: We will. That'll be fine.

PN634

JUSTICE ROSS: Ms McKinnon, in your submission do you set out the precise changes to update the training packages?

PN635

MS McKINNON: Yes, we do, your Honour.

PN636

JUSTICE ROSS: And that's at 44 to 47, isn't it?

PN637

MS McKINNON: That's right.

PN638

JUSTICE ROSS: Okay.

PN639

MS McKINNON: And it just reflects the change in the model so that the decision-making person has changed in a couple of cases.

PN640

JUSTICE ROSS: Okay. Forty-nine?

PN641

MS McKINNON: I think we've provided a submission now which requires four training packages in wage level C to B, consolidated into one.

PN642

JUSTICE ROSS: So that might be outstanding for the moment but we'll see what the parties say about it?

PN643

MR FERGUSON: I think that's accurate.

PN644

MS McKINNON: Yes, I think that's right.

PN645

JUSTICE ROSS: Okay, 50?

PN646

MR FERGUSON: That's agreed.

PN647

JUSTICE ROSS: Fifty-one?

PN648

MR FERGUSON: Withdrawn.

PN649

JUSTICE ROSS: Fifty-two?

PN650

MR FERGUSON: That's withdrawn.

PN651

JUSTICE ROSS: Fifty-three?

PN652

MR FERGUSON: Look, that's that issue around the definition of the wider (indistinct) not agreed - - -

PN653

JUSTICE ROSS: Yes.

PN654

MR FERGUSON: But the course of action you propose will be helpful.

PN655

JUSTICE ROSS: Fifty-four? Yes, well - - -

PN656

MR FERGUSON: That's the same.

PN657

JUSTICE ROSS: It's the same issue, isn't it?

PN658

MR FERGUSON: Yes.

PN659

MS McKINNON: Yes.

PN660

MR FERGUSON: It is, yes.

PN661

JUSTICE ROSS: Fifty-five?

PN662

MS McKINNON: We withdrew that issue.

PN663

JUSTICE ROSS: That's withdrawn, 56?

PN664

MR FERGUSON: This is caught up with the coverage issues. It was a separate coverage issue but it's not agreed at the moment. But it will likely be a substantive issue, but there may be scope for agreement in relation to it. What it is, is there were some changes to - - -

PN665

JUSTICE ROSS: No, no, I remember.

PN666

MR FERGUSON: Yes.

PN667

JUSTICE ROSS: So the Pasture Award – I think we had varied that, hadn't we, Ms McKinnon? That variation has been made to the current award?

PN668

MS McKINNON: Yes, that's correct.

PN669

JUSTICE ROSS: Yes. So the only outstanding issue, I think out of those earlier matters is the learner shearer point?

PN670

MR CRAWFORD: The one in four stands provision, yes.

PN671

JUSTICE ROSS: Yes.

PN672

MS McKINNON: One in four.

PN673

JUSTICE ROSS: Yes, which I've got and I'll be enjoying finalising over the Queen's Birthday long weekend, so you should get that shortly.

PN674

MR FERGUSON: The difficulty is the change, or the Horticultural Award adopts certain definitions in the Pastoral Award.

PN675

JUSTICE ROSS: Yes.

PN676

MR FERGUSON: But that's defining its coverage. Now those terms have changed in meaning and have potentially altered the application of the Horticultural Award, unintentionally.

PN677

JUSTICE ROSS: Yes.

PN678

MR FERGUSON: And so that that's an amendment that we can potentially fix, or it's an issue that we can fix in the Horticultural Award.

PN679

JUSTICE ROSS: All right. So you have further discussions about that?

PN680

MR FERGUSON: On that one, yes.

PN681

JUSTICE ROSS: Yes. All right, 57?

PN682

MS McKINNON: I think we that we dealt with that earlier. It's just about the dislocation of the definition.

PN683

JUSTICE ROSS: Yes. Fifty-eight?

PN684

MS McKINNON: That one should run its course, I think, in the plain language proceedings.

PN685

JUSTICE ROSS: Yes. Fifty-nine? Yes, (indistinct) the Bench. All right. Anything further in relation to Horticulture?

PN686

MS McKINNON: No.

PN687

JUSTICE ROSS: The Nursery Award?

PN688

MS BARRETT: Your Honour, it's Elizabeth Barrett from the National Union of Workers in Melbourne. Is it possible for me to be excused?

PN689

JUSTICE ROSS: Yes, certainly.

PN690

MS BARRETT: Thank you.

PN691

JUSTICE ROSS: There's no need to ask for – in relation to anyone else, if you've – once you've dealt with the awards that concern you, you're free to go as you wish. Well, there are not a huge number of matters in relation to this award so it might be convenient just to work our way through the summary. I think there are only 21 matters. Item 1?

PN692

MS VAN GORP: Your Honour, Business SA will withdraw that matter.

PN693

JUSTICE ROSS: Okay, thank you. Item 2? Agreed?

PN694

MR JACK: Yes.

PN695

JUSTICE ROSS: Agreed. Item 3?

PN696

MR JACK: Also agreed.

PN697

JUSTICE ROSS: Item 4?

PN698

MR JACK: Agreed.

PN699

JUSTICE ROSS: So that's to add to the facilitative table, clause 6.5(d), clause F.6.1, clause 9.2(c)?

PN700

MR JACK: Yes, that's correct.

PN701

JUSTICE ROSS: Okay. Item 5?

PN702

MR CRAWFORD: Maybe in the category of awaiting the casual and part-time Bench, your Honour.

PN703

JUSTICE ROSS: Yes, all right, the same as a couple of other provisions, as well. Item 6?

PN704

MR JACK: That's agreed.

PN705

JUSTICE ROSS: Item 7?

PN706

MR JACK: That's agreed.

PN707

JUSTICE ROSS: So the words, "by the hour", should be re-inserted into subclause (a) after the words, "engaged and paid"?

PN708

MR JACK: Yes.

PN709

JUSTICE ROSS: Item 8?

PN710

MR JACK: Agreed.

PN711

MR CRAWFORD: That's agreed.

PN712

JUSTICE ROSS: Item 9?

PN713

MR JACK: Not agreed.

PN714

MR CRAWFORD: That's not agreed.

PN715

JUSTICE ROSS: So we'll revisit this after the casual, full-time Bench?

PN716

MR JACK: Yes.

PN717

JUSTICE ROSS: Or you want to run it separately? This is the issue of – 147 requires you to specify the ordinary hours for each category of employee and the AWU says it doesn't, is that right?

PN718

MR CRAWFORD: Yes, that's right. We say the current award doesn't prescribe maximum - - -

PN719

JUSTICE ROSS: Any hours?

PN720

MR CRAWFORD: Well, maximum weekly ordinary hours for a casual. I mean, they probably would get the benefit of this being perhaps a daily maximum but not a weekly maximum.

PN721

JUSTICE ROSS: Okay. What's the reason behind the opposition?

PN722

MR ARNDT: As I understand it, the position that we've put is that overtime is defined in the award, in that it's possible to determine what overtime is for a casual and therefore there's no necessity in – well, essentially the ordinary hours by the fact that overtime is defined are clearly apparent on the face of the award.

PN723

MR CRAWFORD: In clause 16.1.

PN724

MR ARNDT: That's how I understand our submission. I think it's probably worth a further discussion with the parties because I don't think there's a substantive - - -

PN725

JUSTICE ROSS: No, it's - - -

PN726

MR ARNDT: Disagreement about entitlements, it's a question of - - -

PN727

JUSTICE ROSS: It's just a question of whether it's necessary to be clarified or not.

PN728

MR ARNDT: Absolutely, yes.

PN729

JUSTICE ROSS: Okay. There can be further discussion about that. I think the overtime – item 10 will be revisited after the casuals, part-time, Full Bench. Item 11, is that agreed? I had a note, 6.2 would be amended to read, "A full-time employee is an employee who is engaged to work an average of 38 ordinary hours per week", and 11 was agreed on that basis, is that right?

PN730

MR JACK: That's right.

PN731

MR CRAWFORD: That's right.

PN732

JUSTICE ROSS: Twelve?

PN733

MR CRAWFORD: Withdrawn, your Honour.

PN734

JUSTICE ROSS: Right. Thirteen? That looks as if it's agreed, is that right? Or Business SA agrees. Does anyone have a different view?

PN735

MR ARNDT: I think our position is currently that we oppose but that it's a matter which will benefit from further discussions.

PN736

JUSTICE ROSS: Okay, 14?

PN737

MR ARNDT: Agreed.

PN738

JUSTICE ROSS: Yes, 15? I think it's the common position that no amendment is necessary, is that right?

PN739

MR CRAWFORD: Correct, yes.

PN740

JUSTICE ROSS: Sixteen? That item has been withdrawn, is that right? Business SA?

PN741

MS VAN GORP: Yes, that matter's been withdrawn based on the AWU response.

PN742

JUSTICE ROSS: Okay.

PN743

MS VAN GORP: Thank you, your Honour.

PN744

JUSTICE ROSS: That's all right. Paragraph 17?

PN745

MR CRAWFORD: That's probably the annual leave, Full Bench, too. It's the loading on termination issue.

PN746

JUSTICE ROSS: All right, 18?

PN747

MR CRAWFORD: I believe that is also being looked at by the annual leave, Full Bench.

PN748

JUSTICE ROSS: No, it's not. That's an NES point, isn't it?

PN749

MR CRAWFORD: Isn't there – there are clauses in a few awards at the moment that basically say leave has to be taken within six months or 18 months of accruing.

PN750

JUSTICE ROSS: I see. It's that provision?

PN751

MR CRAWFORD: I believe so, yes.

PN752

JUSTICE ROSS: Yes, that is being looked at. There's to be a conference before Commissioner Hampton in relation to that matter. Okay, we'll see where that gets to. Nineteen?

PN753

MR JACK: Agreed.

PN754

JUSTICE ROSS: Twenty? Is this this issue we were talking about earlier, that we will put it in the revised exposure draft and the parties can have a look at it?

PN755

MR CRAWFORD: Yes.

PN756

JUSTICE ROSS: Yes.

PN757

MS VAN GORP: That's correct.

PN758

JUSTICE ROSS: Twenty-one? I thought the – it seemed to have been agreed that the definitions of "Wine industry, Silviculture and afforestation and nursery industry" would be deleted from schedule H, is that right?

PN759

MS VAN GORP: Your Honour, the Business SA wording has been withdrawn.

PN760

JUSTICE ROSS: Yes.

PN761

MR ARNDT: I think, your Honour, there might be a discrepancy with the summary of submissions on this one.

PN762

MR CRAWFORD: Yes, they're sort of two distinct issues within item 21.

PN763

MS VAN GORP: Yes.

PN764

JUSTICE ROSS: Yes, I see. There's Business SA's, and then there's the overlap in the definitions point, is that right?

PN765

MR CRAWFORD: Yes, so the Business SA issue, I understand - - -

PN766

JUSTICE ROSS: Is withdrawn.

PN767

MR CRAWFORD: Is withdrawn and the definitions issue, I think is resolved, isn't it?

PN768

JUSTICE ROSS: Yes. Okay. Anything further? No? All right. With Pastoral, can I suggest that I convene our conference with the parties directly involved in that award, but in the meantime if you can file any comments, say by the end of next week, any comments you have or any updates to the summary of submissions, if your positions have moved in relation to any of those? And then I think it would probably benefit from a conference, just going through all the issues and we can then focus on the matters that are not agreed.

PN769

MS McKINNON: Yes, that sounds sensible, your Honour.

PN770

JUSTICE ROSS: Is everyone content with that?

PN771

MR CRAWFORD: Yes.

PN772

JUSTICE ROSS: Is there a location that particularly suits the parties involved in that?

PN773

MS McKINNON: Sydney does seem to have the most people involved. We're happy to come up.

PN774

JUSTICE ROSS: There's a slight note of resentment in your voice there, Ms McKinnon, but - - -

PN775

MS McKINNON: Not at this time of year, your Honour.

PN776

JUSTICE ROSS: No, I know, probably not. Well, it's just getting into Sydney is proving to be a challenge but - - -

PN777

MS McKINNON: That's true.

PN778

JUSTICE ROSS: I will await the parties' comments by the end of next week on the summary of submissions. We'll update the summary and then provide an agenda for a conference and we'll work our way through the matters, okay?

PN779

MS McKINNON: Yes, thank you.

PN780

JUSTICE ROSS: All right, thank you. Silviculture, can I ask firstly, are all of the items being pressed by the AWU, or not?

PN781

MR CRAWFORD: I believe so, your Honour. There may be an issue relating to the sort of applicable rate of pay controversy that we might reconsider but aside from that I think that the remainder would be.

PN782

JUSTICE ROSS: Which one is that?

PN783

MR CRAWFORD: That may be item 7.

PN784

JUSTICE ROSS: What's involved in silviculture? Is it the propagation of plant material, or something like that?

PN785

MR CRAWFORD: I think it's the growing of forests, so all of the, you know, work with making rows and planting or whatever. It's basically forestry work.

PN786

JUSTICE ROSS: And the NFF, does it have an interest in this award?

PN787

MS McKINNON: We haven't got instructions to get involved. Certainly there would be silviculture in the agriculture sector. If it assists the Commission we have reviewed the exposure draft and we would be happy to provide comment but we haven't been asked specifically by our members to be involved in this particular award.

PN788

JUSTICE ROSS: Okay. Speaking for myself, it would certainly assist me if I could get your observations on the exposure draft and then the Full Bench will – well, we'll see where AFEI lands on whether they're going to get involved or not. If the NFF has any view about any of the AWU proposals that would be helpful too, Ms McKinnon.

PN789

MS McKINNON: Yes, we'll undertake to file a document, your Honour.

PN790

JUSTICE ROSS: Thank you. Look, you needn't go into a lot of detail. Some of them appear relatively straight-forward and others seem to be a bit more substantive. I suppose what I'm anxious about is the sort of unintended consequences of what might appear to be a minor change, so I'd appreciate it if you get the opportunity to review those and let us know in due course.

PN791

MS McKINNON: Yes, happy to do that, your Honour.

PN792

JUSTICE ROSS: All right, thank you. That concludes the matters listed at 9.30. I think the next group of matters is at – not before 11.30, is that right?

PN793

MS McKINNON: Yes.

PN794

JUSTICE ROSS: All right. Is there anything else in relation to those matters that I've dealt with now? No? All right. Any questions from any party? No? All right, thanks very much for your assistance. We'll adjourn till 11.30.

SHORT ADJOURNMENT [10.50 AM]

RESUMED [11.31 AM]

PN795

JUSTICE ROSS: All right. The purpose of the mention today is to go through the reports from members who convened conferences and to check the accuracy of the summary of submissions and to update that if necessary. It's probably a little early to identify substantive matters that need to go to a separate Full Bench. What we're likely to do is release updated exposure drafts and submissions summaries around the end of July. That should provide a further opportunity for discussions between the parties facilitated by the Commission if that's necessary, and once those draft documents go out there would be further conferences and a further mention before me in either August or September. I'll call for the appearances in relation to each award separately, given there are a fairly diverse range of interests. It might be quicker to deal with the appearances in respect of all matters at the beginning, so perhaps if I begin in Sydney, starting from the left, if you can just indicate your organisation and which awards you have an interest in.

PN796

MS R WALSH: Walsh, initial R, for the AWU. We have an interest in the Fitness Industry Award and the Sporting Organisations Award.

PN797

JUSTICE ROSS: All right, thank you.

PN798

MR K BARLOW: If it please the Commission, Barlow, initial K, for the CPSU.

PN799

JUSTICE ROSS: Thank you.

PN800

MR BARLOW: The subgroup to our – we've got an interest in the Business Equipment Award, the Contract Call Centres Award, the Labour Market Assistance Award, the Miscellaneous Award, the Telecommunications Services Award, and that's it, your Honour.

PN801

JUSTICE ROSS: Okay, thank you. Yes?

PN802

MR D WILKINSON: If it please the Commission, Wilkinson, initial D, on behalf of Fitness Australia, for the Fitness Industry Award.

PN803

JUSTICE ROSS: Okay, thank you. Ms Bhatt?

PN804

MR R BHATT: If it pleases your Honour, Bhatt, initial R, appearing for AR Group in respect of the Banking, Finance and Insurance Award, the Clerks Private Sector Award, the Market and Social Research Award and the Miscellaneous Award.

PN805

JUSTICE ROSS: Thank you.

PN806

MR H LEWOCKI: Thank you, your Honour, Lewocki, initial H, Australian Property Services Association, for the Real Estate Industry Award.

PN807

JUSTICE ROSS: Thank you.

PN808

MR A JONES-VALLEDOR: Thank you, your Honour, Jones-Valledor, initial A, here with an interest in each of the awards in sub-group 3(a) listed today, from the Australian Federation of Employers and Industries.

PN809

JUSTICE ROSS: Thank you.

PN810

MR M HELM: If it please the Commission, Helm, initial M, from the Real Estate Employers' Federation, in respect to the Real Estate Industry Award.

PN811

JUSTICE ROSS: Thank you.

PN812

MR B FERGUSON: Yes, if the Commission pleases, Ferguson, initial B, for the Ai Group, appearing in the Legal Services Award, Business Equipment Award, the Commercial Sales Award, the Contract Call Centres Award, and the Telecommunication Services Award.

PN813

JUSTICE ROSS: Thank you. And in Melbourne?

PN814

MR M RIZZO: Yes, your Honour, Rizzo, M, on behalf of the ASU, and the ASU, your Honour, has an interest in the Legal Services Award, the Business Equipment Award, the Clerks Private Sector Award, the Contract Call Centres Award, the Labour Market Assistants' Award, and appearing with me on various awards are Cooney, J, and Knight, J, Your Honour.

PN815

JUSTICE ROSS: Thank you.

PN816

MR M PEGG: Your Honour, Pegg, initial M, for Jobs Australia and we have an interest in the Labour Market Assistance Award.

PN817

JUSTICE ROSS: Thank you.

PN818

MS M MOLONEY: Your Honour, Moloney, initial M, from K & L Gates, appearing my colleague, Munro, initial J. Do you require us to seek leave to appear?

PN819

JUSTICE ROSS: No.

PN820

MS MOLONEY: We're hoping to appear on behalf of Tennis Australia and Gymnastics - - -

PN821

JUSTICE ROSS: No, that's fine. It's simply a mention, so that's fine.

PN822

MS MOLONEY: Thank you. We appear on behalf of Tennis Australia and Gymnastics Australia with an interest in both the Fitness Industry Award and the Sporting Organisations Award.

PN823

JUSTICE ROSS: Thank you. In South Australia?

PN824

MS SWEATMAN: Your Honour - - -

PN825

JUSTICE ROSS: Sorry, is there someone else in Melbourne?

PN826

MS K SWEATMAN: Yes, sorry, your Honour.

PN827

JUSTICE ROSS: Yes?

PN828

MS SWEATMAN: Sweatman, or you won't see my head down the bottom of the corner, I'm - - -

PN829

JUSTICE ROSS: Yes.

PN830

MS SWEATMAN: I'm appearing on behalf of the law firms that have been referred to as Russell Kennedy & Ors, in respect to the Legal Services Award.

PN831

JUSTICE ROSS: Thank you. Anyone else in Melbourne? No? South Australia?

PN832

MS K VAN GORP: Van Gorp, initial K, for Business SA, and with me is Klepper, initial C.

PN833

JUSTICE ROSS: Thank you.

PN834

MR R CLARKE: Your Honour, my name is Clarke, initials R.D. I appear for the Registered Real Estate Salespersons of South Australia.

PN835

JUSTICE ROSS: Thank you.

PN836

MR CLARKE: Interest is only one award, the Real Estate Award.

PN837

JUSTICE ROSS: Thank you. And in Queensland?

PN838

MS L HOGG: Thank you, your Honour. My name is Hogg, spelt, H-o-g-g, initial, L, solicitor of Australian Business Lawyers, and I appear on behalf of Australian Business Industrial and New South Wales Business Chamber. We have an interest in quite a number of awards today, including the Fitness Industry Award, the Clerks' Private Sector Award, Banking, Finance and Insurance Award, Telecommunications, Business Equipment, Commercial Sales, Miscellaneous, Legal Services, Real Estate Industry and Labour Market Assistants. I have with me today my colleague, McIvor, initial E.

PN839

JUSTICE ROSS: Thank you. All right, let's go to the first of the Awards in the list, the Fitness Industry Award. Have you had the opportunity to look at the report from Deputy President Clancy, those with an interest in this award? Okay. Are there any issues taken with the Deputy President's summary? That is, noting that items 12 and 4, or item 12 has been withdrawn and 4 is not pressed – let's deal with that first – is that right? And he then sets out in attachment A, the matters that were agreed. They're items 1, 2, 3, 7, 8 – I'll come back to 9, 9(a), 13, 14, f15 and 16. Are they generally agreed between the parties?

PN840

MR WILKINSON: If I may, your Honour - - -

PN841

JUSTICE ROSS: Yes, sure.

PN842

MR WILKINSON: Wilkinson on behalf of Fitness Australia, the Fitness Industry Award.

PN843

JUSTICE ROSS: Yes.

PN844

MR WILKINSON: I note that item 16 from Deputy President Clancy, has indicated that there was no proposed wording submitted by Swim Australia and the ASCTA - - -

PN845

JUSTICE ROSS: Yes.

PN846

MR WILKINSON: Which is now known as Aussie Aquatics.

PN847

JUSTICE ROSS: Yes.

PN848

MR WILKINSON: I have been advised and have looked into that by my colleague representing Aussie Aquatics, Mr Michael Taylor, who is unable to appear today, but it comes to my attention that there was a submission made to yourself and the Full Bench, rather than to Deputy President Clancy.

PN849

JUSTICE ROSS: When was that?

PN850

MR WILKINSON: That was made on 8 March, directly to yourself, President Ross. In comments about the exposure draft where Aussie Aquatics had set out in detail - - -

PN851

JUSTICE ROSS: Just a moment.

PN852

MR WILKINSON: Sorry.

PN853

JUSTICE ROSS: All right, it would have just gone onto the AMOD website.

PN854

MR WILKINSON: Yes, it must have gone onto the AMOD website.

PN855

JUSTICE ROSS: Yes. Yes.

PN856

MR WILKINSON: So that has just to be corrected there, if I may, your Honour. That has set out in detail the classification proposal from Aussie Aquatics.

PN857

JUSTICE ROSS: All right. So that can be the subject of further discussion between the parties.

PN858

MR WILKINSON: Yes, absolutely. Yes. Thanks, your Honour. I just wanted that noted on behalf of Mr Taylor for Aussie Aquatics.

PN859

JUSTICE ROSS: Okay.

PN860

MR WILKINSON: Thank you.

PN861

JUSTICE ROSS: Yes. So there's no other comment in relation to the items that are agreed. And attachment B sets out the items that are in dispute, and it's thought that there might be further discussion and agreement around item 5, I think. If the summary is updated to reflect those matters, is there anything else in the summary that anyone else wants to comment on, at this stage?

PN862

MS HOGG: No, your Honour.

PN863

JUSTICE ROSS: No. All right. I will ask the Deputy President to convene a further conference - - -

PN864

MR WILKINSON: Yes.

PN865

JUSTICE ROSS: To seek to progress the matters further. We'll also update the summary and provide a revised exposure draft. Anything further in relation to that award? No? All right.

PN866

MR WILKINSON: No, thank you.

PN867

MS HOGG: No, your Honour.

PN868

JUSTICE ROSS: Let's move to the Sporting Organisations Award. There are only seven matters listed here which – it appears that items 1, 2, 4 and 5 are agreed, is that right? Or has anyone got a different view?

PN869

MS WALSH: Ms Walsh for the AWU. I think that's right.

PN870

JUSTICE ROSS: All right. What about item 3? It appears that that seems to have been agreed, at least between the AWU and Business SA.

PN871

MS WALSH: My understanding is that Business SA accepted that if the provision was inconsistent with section 147 they supported our submission to that extent but didn't necessarily support the submission any further than that. They can correct me.

PN872

JUSTICE ROSS: Well, 147 - - -

PN873

MS VAN GORP: That is correct, your Honour.

PN874

JUSTICE ROSS: 147 provides you'll need to specify the ordinary hours of work of each class of employees in the award. So I'm not clear on Business SA's submission as to what your position is in relation to the matter.

PN875

MS VAN GORP: Your Honour, we have no objection.

PN876

JUSTICE ROSS: All right.

PN877

MR JONES-VALLEDOR: Sorry, just to assist, your Honour - - -

PN878

JUSTICE ROSS: Yes.

PN879

MR JONES-VALLEDOR: It's Mr Jones-Valledor from AFEI. We actually entered into discussions with the AWU on their particular proposal and we did basically oppose what they were seeking, and then I believe Business SA in the last conference supported us in that.

PN880

JUSTICE ROSS: That doesn't seem to be their position now.

PN881

MR JONES-VALLEDOR: I don't think that's reflected accurately on the summary of variation. Let me - - -

PN882

JUSTICE ROSS: No, no. I'm not talking about the summary, I'm talking about what they've just said orally.

PN883

MR JONES-VALLEDOR: Okay, sure. Certainly my colleagues have had discussion with the AWU on their proposal and I am instructed that we do oppose - - -

PN884

JUSTICE ROSS: On what basis?

PN885

MR JONES-VALLEDOR: On the basis that the clause will limit the amount of ordinary hours that a casual can work, and on that basis also, and employer could not roster a casual to work more than 38 hours in any week and that would be a breach of the award to do so.

PN886

JUSTICE ROSS: Would it be a breach of the award or would you just have to pay that casual overtime?

PN887

MR JONES-VALLEDOR: In terms of the wording proposed by the AWU, it was to add that the casual "works less than 38 ordinary hours per week", and if you take that ordinary meaning it would technically be a breach of the award, if you had a casual employee work more than that.

PN888

JUSTICE ROSS: All right.

PN889

MS MOLONEY: Your Honour, Moloney, initial M, on behalf of Tennis Australia. Since the last conference we have instructions from Tennis Australia to also oppose that submission on the same grounds.

PN890

JUSTICE ROSS: All right. Item 6?

PN891

MS VAN GORP: That's Business SA and we would seek to withdraw that particular submission.

PN892

JUSTICE ROSS: All right. Item 7?

PN893

MS VAN GORP: And that one is also withdrawn.

PN894

JUSTICE ROSS: Thank you.

PN895

MS VAN GORP: Thank you, your Honour.

PN896

JUSTICE ROSS: I think that seems to leave us with – the only issue in dispute is item 3, is that right?

PN897

MS WALSH: Ms Walsh for the - - -

PN898

MS VAN GORP: That's correct, your Honour, and - - -

PN899

MS WALSH: Yes.

PN900

MS VAN GORP: Sorry, Business SA in Adelaide, we've just reviewed what we've noted on that matter and we are actually in opposition.

PN901

JUSTICE ROSS: Okay.

PN902

MS VAN GORP: And I believe there was also a comment that the AFEI also had an opposition to that, as well.

PN903

JUSTICE ROSS: No, no, I understand it's not agreed. But that seems to be the only matter left. The others are either agreed or withdrawn. Does everyone agree with that?

PN904

MS WALSH: Ms Walsh for the AWU. That's our understanding, yes. We agree.

PN905

JUSTICE ROSS: All right. Do you think a further conference would assist in resolving that matter or are you content to leave it and we'll issue directions and there'll be submissiosn and the Full Bench will make a decision? What do you want to do?

PN906

MS MOLONEY: Your Honour, Moloney, initial M, perhaps selfishly, given we just have received instructions from Tennis Australia to oppose that matter, I think there would be some benefit in having further discussions between the parties to see if we could seek a resolution.

PN907

JUSTICE ROSS: All right. Is there any opposition to that course?

PN908

MS WALSH: Ms Walsh for the AWU. Given that Gymnastics Australia have joined the conversation we'd certainly be happy at have another conference. Having said that, our position has been fairly straightforward as to why we made that submission.

PN909

JUSTICE ROSS: Yes.

PN910

MS WALSH: And it does appear to be a bit of gridlock.

PN911

JUSTICE ROSS: Except that it seems that the opposition of AFEI is predicated on the fact that casuals would not be able to work more than 38 hours per week, and whereas what you're simply seeking to do is, as I understand it, specify what the ordinary hours would be but that doesn't preclude them from working more hours than that, any more than it would a full time employee. It's what applies to them after they work in excess of the ordinary hours that are specified.

PN912

MS WALSH: Yes, that's our understanding. Should a casual employee work more than 38 hours, of course, they'd be paid overtime, and as you have suggested, it wouldn't necessarily be inconsistent with - - -

PN913

JUSTICE ROSS: But it may be just the way your proposal was phrased that prohibits that. But in any event, if the matter can be the subject of a further conference and we can see where we go.

PN914

MS WALSH: Certainly.

PN915

JUSTICE ROSS: All right, thank you. Can I go to the Real Estate Award. My understanding is that there are no outstanding technical and drafting issues and that all of the substantive matters have been referred to a separate Full Bench. Does anyone have a different understanding than that? And that matter is progressing before that Full Bench?

PN916

MR LEWOCKI: That's right, your Honour, yes.

PN917

JUSTICE ROSS: Yes.

PN918

MR LEWOCKI: We received directions from Deputy President Archer indicating that hearing dates have been set for November this year for the outstanding matters.

PN919

JUSTICE ROSS: Okay.

PN920

MR HELM: Your Honour, Helm from the Real Estate Employer's Federation.

PN921

JUSTICE ROSS: Yes.

PN922

MR HELM: If I might just raise the one question in relation to that.

PN923

JUSTICE ROSS: Sure.

PN924

MR HELM: The only item that we could see that might possibly return is in relation to the notation in clause 9.7(c).

PN925

JUSTICE ROSS: Which item number is this on the summary?

PN926

MR HELM: On Commissioner Rowe's report or?

PN927

JUSTICE ROSS: No, on the revised summary of submissions. Do you have that? What's the clause number?

PN928

MR CLARKE: I'm sorry, your Honour, could Mr Helm just speak up a bit so I could hear him from Adelaide?

PN929

JUSTICE ROSS: Sure.

PN930

MR HELM: I'm sorry, your Honour. I'm just seeing if I can locate that now.

PN931

JUSTICE ROSS: If you let me know the clause number I can find the item number for you.

PN932

MR HELM: It is clause 9.7(c), in relation to the notation.

PN933

JUSTICE ROSS: And is that from the exposure draft?

PN934

MR HELM: Yes, your Honour.

PN935

JUSTICE ROSS: 9.7(c), yes, commission only employment, is that right?

PN936

MR HELM: Yes, that's correct, your Honour. We just wish to draw to your attention the possibility that depending on what happens before the other Full Bench, that we would see that there may be a possibility that this question could come back.

PN937

JUSTICE ROSS: Yes. I doubt if it will come back, because if it comes back to me I'll just send it back to the Full Bench. So I'd encourage you to raise the consequential effect in your submissions to them that – I take it your point is that if they decide one of the substantive issues in a particular way, then that will impact on this matter, is that - - -

PN938

MR HELM: That's correct, your Honour.

PN939

JUSTICE ROSS: Okay. Yes. Look, just draw their attention to that in your submissions. I think it will be much less time consuming for the parties if one bench deals with the lot. So draw their attention to it and other parties will have an opportunity to say what they want to say about it and then the Bench can resolve the lot. Okay, but thanks for drawing it to my attention, otherwise you might have been back arguing about it later in the year. Is there anything else on the Real Estate Award? No?

PN940

MR CLARKE: I think that covers it from our point of view, your Honour. Thing are lined up to go to a Full Bench hearing, as Mr Lewocki said, the end of November.

PN941

JUSTICE ROSS: It certainly is. All right, thank you.

PN942

MR LEWOCKI: Could we be excused, your Honour?

PN943

JUSTICE ROSS: Certainly.

PN944

MR LEWOCKI: Thank you.

PN945

JUSTICE ROSS: Legal Services Award? I love this award, it always attracts the most attention.

PN946

MS WALSH: Your Honour, Ms Walsh for the AWU.

PN947

JUSTICE ROSS: Yes.

PN948

MS WALSH: We'll be returning for the 2 o'clock listing.

PN949

JUSTICE ROSS: That's fine, thank you. You will have seen the summary provided by Deputy President Clancy. It appears form that that item 12 in the summary of submissions is not longer being pursued and items 21 and 22 were withdrawn at the conference. Are there any other matters that have been withdrawn after reflection, I say hopefully? No?

PN950

MR FERGUSON: Just for clarity, was item 14 withdrawn?

PN951

JUSTICE ROSS: No.

PN952

MS SWEATMAN: Your Honour, not so much withdrawn, but – Ms Sweatman from K & L Gates speaking here in Melbourne – I've just got a couple of things just to clarify from Deputy President Clancy's summary, with respect. The first one is item 5 regarding the proposed amalgamation of the Clerks' Award and the Legal Services Award. We've sought to clarify on a couple of occasions on transcript on 30 March and in correspondence on 15 January that the law firms don't so much oppose that amalgamation as they simply don't support it. Deputy President Clancy has described there as being mixed views but you'll see form the summary there that there's varying degrees from opposing, to not supporting an amalgamation of those two awards.

PN953

JUSTICE ROSS: Sure.

PN954

MS SWEATMAN: And I'd suggest that perhaps we can put that one to bed on the basis that there is no support for that amalgamation.

PN955

JUSTICE ROSS: Yes, there's no enthusiasm for it from anybody.

PN956

MS SWEATMAN: Yes.

PN957

JUSTICE ROSS: Yes.

PN958

MS SWEATMAN: That's correct.

PN959

JUSTICE ROSS: No, no, I got that impression. That's fine.

PN960

MS SWEATMAN: The other, just a few points, I just wanted to clarify on attachment B, item 2, the definition of a "law graduate" is a substantive variation being sought by the law firms and I'm not sure whether it's accurate to have that included as one of the outstanding technical and drafting matters, as it item 18, is also a substantive matter and - - -

PN961

JUSTICE ROSS: I think he noted in his report that items 13 to 18 were substantive in nature, do you agree with that?

PN962

MS SWEATMAN: And that's accurate. That's correct.

PN963

JUSTICE ROSS: All right. So you would just add to that, item 2, to that list of substantive matters. So the substantive matters are items 2, and 13 to 18, is that right?

PN964

MS SWEATMAN: That's correct.

PN965

JUSTICE ROSS: Does everyone else agree with that?

PN966

MR FERGUSON: Yes.

PN967

SPEAKER: Yes.

PN968

JUSTICE ROSS: Okay.

PN969

SPEAKER: Yes.

PN970

JUSTICE ROSS: All right.

PN971

MS SWEATMAN: The only other points that I would raise, items 19 and 20 were points that were raised by the Commission, seeking the views of parties.

PN972

JUSTICE ROSS: Yes.

PN973

MS SWEATMAN: It was really about clarifying whether or not grandfathering provisions in the training schedules needed to be maintained and the Commission sought submissions from parties as to whether anyone still undertook the traineeships referred to and whether the training schedules were otherwise up to date.

PN974

JUSTICE ROSS: Yes.

PN975

MS SWEATMAN: None of our firms are still using those old training programs and consider that schedule to be up to date, and no other views were expressed by any other party so I wonder if we can just call that one as resolved, and not requiring any further discussion, as well.

PN976

JUSTICE ROSS: Yes. Yes, that's certainly how I had proposed to deal with it because no-one's opposing - in relation to 19, no-one was opposing the deletion from the exposure draft. Is that still the position?

PN977

MS SWEATMAN: That's correct.

PN978

JUSTICE ROSS: All right.

PN979

MR RIZZO: Your Honour, Rizzo, M, from the ASU.

PN980

JUSTICE ROSS: Yes.

PN981

MR RIZZO: I substantially agree with Ms Sweatman's submission. I think 19 and 20 are uncontroversial. I think the issue has been determined in paragraph 5 with regard to the Legal Services Award and the Clerical or Clerks' Award.

PN982

JUSTICE ROSS: Yes.

PN983

MR RIZZO: That should be removed as an issue. And those issues Mr Sweatman has identified as outstanding are correct.

PN984

JUSTICE ROSS: All right.

PN985

MR FERGUSON: Sorry, your Honour - - -

PN986

JUSTICE ROSS: Yes.

PN987

MR FERGUSON: Item 15 - - -

PN988

JUSTICE ROSS: Yes.

PN989

MR FERGUSON: As my friend just dealt with this, it needs to go to the annualised salaries Full Bench.

PN990

JUSTICE ROSS: It already has.

PN991

MR FERGUSON: It has.

PN992

JUSTICE ROSS: I think it's on the schedule and it will be reviewed by the annualised salary Full Bench.

PN993

MR CLARKE: Your Honour, your office updated that on Friday, I think.

PN994

JUSTICE ROSS: Yes.

PN995

MR CLARKE: Because it had been originally left out of your (indistinct).

PN996

JUSTICE ROSS: That's right. We've got correspondence from Ai Group identifying three or four awards and the notice to the Bench has been updated to reflect the addition of those awards.

PN997

MR CLARKE: Yes. Thank you, your Honour.

PN998

JUSTICE ROSS: In relation to, if you leave aside the substantive items for the moment, that is items 2, 13, 14, 16, 17 and 18, 15 being dealt with by the other Bench, leave those matters aside for a moment, there still seems to be some matters which are not yet agreed but could be the subject of a further conference if the parties thought that was useful. What do you think about that?

PN999

MR FERGUSON: Look, I think there'd be utility in a further conference, particularly in relation to item 11, for example. We have a strong view about where it stands but there's diversions of views. That's an issue that could perhaps be resolved between the parties at a conference. But the other benefit to a conference might be that some of the substantive issues, certainly from AR Group's perspective, may not be opposed if we then make them further at a conference.

PN1000

JUSTICE ROSS: All right.

PN1001

MR FERGUSON: And so while they may need to ultimately go to a separate Full Bench a conference to resolve, or to deal with those and any outstanding issues might be efficient.

PN1002

JUSTICE ROSS: Look, the worst case scenario, you can at least define what the issue is and what the extent of the dispute is so - - -

PN1003

MR FERGUSON: It would certainly narrow the dispute between the employer parties, I imagine.

PN1004

JUSTICE ROSS: All right. Does anyone have a different view?

PN1005

MR RIZZO: No, your Honour. The ASU can see the virtue in the conference, as well.

PN1006

JUSTICE ROSS: Is anyone opposed to that?

PN1007

MS SWEATMAN: No, your Honour.

PN1008

MS VAN GORP: No, your Honour.

PN1009

JUSTICE ROSS: All right.

PN1010

MR BHATT: No, your Honour.

PN1011

JUSTICE ROSS: Okay. I will give Clancy DP the good news. All right. Nothing further in relation to that award? Can we move to the Banking and Finance Award. The easiest way of dealing with this may be just to go through the decision summary - sorry, the submission summary - revised summary of submissions.

PN1012

MS COUNSEL: Yes, your Honour.

PN1013

JUSTICE ROSS: And if the parties can indicate where each of the matters are up to. Item 1.

PN1014

MS BHATT: Is resolved.

PN1015

JUSTICE ROSS: Item 2?

PN1016

MS BHATT: Is resolved.

PN1017

JUSTICE ROSS: Three?

PN1018

MS BHATT: Business SA submission.

PN1019

JUSTICE ROSS: Business SA. What do you want to do in relation to item 3?

PN1020

MS VAN GORP: Your Honour, this matter, we would withdraw.

PN1021

JUSTICE ROSS: Okay. Item 4? Business SA.

PN1022

MS VAN GORP: And we would withdraw this one as well, thank you, your Honour.

PN1023

JUSTICE ROSS: Thank you. Item 5?

PN1024

MS BHATT: Is withdrawn.

PN1025

JUSTICE ROSS: Thank you. Item 6?

PN1026

MS BHATT: Has been resolved.

PN1027

JUSTICE ROSS: Item 7?

PN1028

MS BHATT: It has been referred to the casual part‑time Full Bench.

PN1029

JUSTICE ROSS: Thank you. Item 8?

PN1030

MS BHATT: Has been resolved.

PN1031

JUSTICE ROSS: Item 9?

PN1032

MS BHATT: Has been resolved.

PN1033

JUSTICE ROSS: 10?

PN1034

MS BHATT: Has been resolved.

PN1035

JUSTICE ROSS: 11?

PN1036

MS BHATT: Has been resolved.

PN1037

JUSTICE ROSS: 12?

PN1038

MS BHATT: Resolved.

PN1039

JUSTICE ROSS: 13?

PN1040

MS BHATT: Also resolved.

PN1041

JUSTICE ROSS: 14?

PN1042

MS BHATT: I understand this is a substantive issue in respect of which there is not agreement yet.

PN1043

MS VAN GORP: Your Honour, Business SA will withdraw that one.

PN1044

JUSTICE ROSS: Okay. So 14 is withdrawn. 15, resolved on the basis no change required?

PN1045

MS BHATT: Yes.

PN1046

JUSTICE ROSS: 16?

PN1047

MS BHATT: Has been resolved.

PN1048

JUSTICE ROSS: So I think you wanted a further opportunity to consider the wording, but now you've agreed. Is that where we're up to?

PN1049

MS BHATT: Yes, your Honour.

PN1050

JUSTICE ROSS: Thank you. 17?

PN1051

MS BHATT: Is resolved.

PN1052

JUSTICE ROSS: 18?

PN1053

MS BHATT: This is an outstanding matter, your Honour, and it's on that Ai Group has raised in respect of multiple exposure drafts.

PN1054

JUSTICE ROSS: Is this whether it be shift penalties as opposed to shift loading?

PN1055

MS BHATT: Yes, your Honour.

PN1056

JUSTICE ROSS: It would be shift loading in most awards, wouldn't it?

PN1057

MS BHATT: I think that might be right, but the exposure draft now characterises it as a penalty, and in our submissions we've said that that may have some unintended consequences for entitlements under other legislation, such as workers compensation, long service leave, and we've sought to provide the Commission with some examples of where that might arise; but also other award provisions that currently refer to shift loadings, for example, in respect of payments for annual leave.

PN1058

JUSTICE ROSS: Yes. And that has been a common practice in the group 3 awards?

PN1059

MS BHATT: Yes, your Honour. We've identified this issue arising in group 1, group 2 and group 3 awards. We've sought to do so on a cause by cause basis wherever we can. We understand that it's a matter that has not yet been dealt with by the Full Bench.

PN1060

JUSTICE ROSS: Okay. Well, this Full Bench can deal with it, but perhaps if you can identify - because we've still got some outstanding issues on group 1 and group 2 - if you can write, identifying where it's an issue and the reasons, then we can bring it on as a discrete matter, and that way anyone with an interest can express a view in relation to it. All right?

PN1061

MS BHATT: I'm just mindful of the fact that that may include quite a number of awards and it may take us some time to report back to the Commission.

PN1062

JUSTICE ROSS: Is there anything we can do to help?

PN1063

MS BHATT: From our perspective I think it's probably a matter of us working through the submissions we've filed to date.

PN1064

JUSTICE ROSS: Yes. I don't think you need to do it by the end of next week, Ms Bhatt, if that's the concern. How long do you think you're likely to need? End of July?

PN1065

MS BHATT: That's fine. We would be content with that, thank you, your Honour.

PN1066

JUSTICE ROSS: All right. Thank you. 19?

PN1067

MS BHATT: Is resolved.

PN1068

JUSTICE ROSS: 20?

PN1069

MS BHATT: Is resolved.

PN1070

JUSTICE ROSS: 21?

PN1071

MS BHATT: Resolved.

PN1072

JUSTICE ROSS: 22?

PN1073

MS BHATT: Resolved.

PN1074

JUSTICE ROSS: 23?

PN1075

MS BHATT: Resolved.

PN1076

JUSTICE ROSS: 24?

PN1077

MS BHATT: Resolved.

PN1078

JUSTICE ROSS: 25?

PN1079

MS BHATT: Is resolved.

PN1080

JUSTICE ROSS: 26?

PN1081

MS BHATT: Is resolved.

PN1082

JUSTICE ROSS: 27?

PN1083

MS BHATT: That relates to the matter we just discussed.

PN1084

JUSTICE ROSS: Yes, okay. 28?

PN1085

MS BHATT: Is resolved.

PN1086

JUSTICE ROSS: 29?

PN1087

MS BHATT: Is also resolved.

PN1088

JUSTICE ROSS: All right. So other than the matter we've been discussing about the description of penalty versus loading, there doesn't seem to be any other matter outstanding. Is that right?

PN1089

MS BHATT: In light of the matters that have been withdrawn today, I think that's right, your Honour, subject to item 7, which is a substantive variation, but I understand that that has been referred to another Full Bench.

PN1090

JUSTICE ROSS: That's right. So that leaves item 18 and the related matter in relation to shift - - -

PN1091

MS BHATT: Item 27.

PN1092

JUSTICE ROSS: 27, thank you. All right. Does anyone disagree with that summary? No. All right, thank you. Well, a revised exposure draft - there's probably not much point in publishing a revised summary of submissions given that they've all been resolved but for those matters that you've identified, Ms Bhatt, which will be taken up more broadly. We will simply publish a revised exposure draft in relation to this award incorporating the matters that have been agreed. All right?

PN1093

MS BHATT: Thank you, your Honour.

PN1094

JUSTICE ROSS: Nothing further in relation to that award? Can I go to the Business Equipment Award. There is Roe C's report. What's the best way of approaching this matter?

PN1095

MR FERGUSON: I think for this particular award the best way is to work through the summary and just confirm it's accurate.

PN1096

JUSTICE ROSS: All right.

PN1097

MR FERGUSON: It should be able to be done quite quickly.

PN1098

JUSTICE ROSS: Okay. Item 1?

PN1099

MR FERGUSON: That's resolved.

PN1100

JUSTICE ROSS: On what basis? No change, or - - -

PN1101

MR FERGUSON: We say it's already determined by the previous decision.

PN1102

MR COONEY: Sorry, your Honour. It's just Justin Cooney from the ASU.

PN1103

JUSTICE ROSS: Yes.

PN1104

MR COONEY: The ASU no longer pursues that.

PN1105

JUSTICE ROSS: All right. Thank you. Item 2?

PN1106

MR FERGUSON: That's also resolved on the basis set out.

PN1107

JUSTICE ROSS: Okay. Item 3?

PN1108

MR FERGUSON: Again, resolved on the basis set out.

PN1109

JUSTICE ROSS: Item 4?

PN1110

MR FERGUSON: The outstanding issues to be referred to the Full Bench. Sorry, I apologise. I think we withdraw that.

PN1111

JUSTICE ROSS: Which one? Item 4?

PN1112

MR FERGUSON: Four. The Ai Group proposal will issue.

PN1113

JUSTICE ROSS: I'm sorry, I just missed what you wanted us to do with it.

PN1114

MR FERGUSON: We're withdrawing that.

PN1115

JUSTICE ROSS: You're withdrawing it, okay. Item 5?

PN1116

MR FERGUSON: I think we've left that for the Full Bench to determine.

PN1117

JUSTICE ROSS: Okay.

PN1118

MR FERGUSON: Item 6, we're pressing.

PN1119

JUSTICE ROSS: Okay. What's the view of the other parties on item 6?

PN1120

MS HOGG: It's not opposed, ABI and the New South Wales Business Chamber.

PN1121

MS VAN GORP: It's not opposed by Business SA.

PN1122

MR JONES-VALLEDOR: Nor is opposed by AFEI.

PN1123

MR COONEY: Your Honour, the ASU would just like more time to consider that and to respond.

PN1124

JUSTICE ROSS: Okay. Well, if you could let us know in seven days. Would that be all right?

PN1125

MR COONEY: Thank you, your Honour.

PN1126

JUSTICE ROSS: Thanks.

PN1127

MR FERGUSON: Item 7 is resolved on the basis set out in summary.

PN1128

JUSTICE ROSS: Item 8? No party - - -

PN1129

MR FERGUSON: No party is pressing for a variation, as indicated.

PN1130

JUSTICE ROSS: Item 9?

PN1131

MR FERGUSON: It's resolved on the basis set out.

PN1132

JUSTICE ROSS: Item 10?

PN1133

MR FERGUSON: That's also resolved on the basis set out.

PN1134

JUSTICE ROSS: Item 11?

PN1135

MR FERGUSON: That's resolved on the basis set out.

PN1136

JUSTICE ROSS: 12?

PN1137

MR FERGUSON: Same. It is resolved on the basis set out.

PN1138

JUSTICE ROSS: 13?

PN1139

MR FERGUSON: Withdrawn.

PN1140

JUSTICE ROSS: 14?

PN1141

MS COUNSEL: It has been resolved.

PN1142

MR FERGUSON: Yes.

PN1143

JUSTICE ROSS: Right. 15?

PN1144

MR FERGUSON: Resolved.

PN1145

JUSTICE ROSS: 16?

PN1146

MR FERGUSON: Resolved.

PN1147

JUSTICE ROSS: 17?

PN1148

MR FERGUSON: It's resolved.

PN1149

JUSTICE ROSS: 18?

PN1150

MR FERGUSON: That's resolved.

PN1151

JUSTICE ROSS: That's no longer being pressed. Is that right?

PN1152

MR FERGUSON: Yes, that's right.

PN1153

JUSTICE ROSS: 19 has been withdrawn?

PN1154

MR FERGUSON: Yes.

PN1155

JUSTICE ROSS: 20?

PN1156

MR FERGUSON: This is going to a separate Full Bench.

PN1157

JUSTICE ROSS: Yes. 21?

PN1158

MR FERGUSON: That has been resolved.

PN1159

JUSTICE ROSS: 22?

PN1160

MR FERGUSON: That's resolved.

PN1161

JUSTICE ROSS: 23?

PN1162

MR FERGUSON: That's resolved as well.

PN1163

MS COUNSEL: Resolved.

PN1164

JUSTICE ROSS: 24?

PN1165

MR FERGUSON: That's resolved.

PN1166

JUSTICE ROSS: 25?

PN1167

MR FERGUSON: That's resolved as well.

PN1168

JUSTICE ROSS: 26?

PN1169

MR FERGUSON: That's resolved.

PN1170

JUSTICE ROSS: 27?

PN1171

MR FERGUSON: That's resolved.

PN1172

JUSTICE ROSS: 28?

PN1173

MR FERGUSON: That's resolved.

PN1174

JUSTICE ROSS: 29?

PN1175

MR FERGUSON: That's resolved.

PN1176

JUSTICE ROSS: 30?

PN1177

MR FERGUSON: That's also resolved.

PN1178

JUSTICE ROSS: 31?

PN1179

MR FERGUSON: That's resolved.

PN1180

JUSTICE ROSS: 32?

PN1181

MR FERGUSON: That's resolved.

PN1182

JUSTICE ROSS: 33?

PN1183

MR FERGUSON: We've advanced a proposal which hasn't been included which we're still pressing.

PN1184

JUSTICE ROSS: Right.

PN1185

MS VAN GORP: Sorry to interrupt. We found that very difficult to hear.

PN1186

MR FERGUSON: Sorry.

PN1187

MS VAN GORP: If you could move closer to the microphone.

PN1188

JUSTICE ROSS: Ai Group is indicating ‑ ‑ ‑

PN1189

MS VAN GORP: So item number 33?

PN1190

JUSTICE ROSS: Yes. Ai Group is indicating that they're pressing a claim in relation to that matter. Was that in your original submission?

PN1191

MR FERGUSON: Yes.

PN1192

JUSTICE ROSS: Right. So that's still not agreed?

PN1193

MR FERGUSON: Not agreed.

PN1194

JUSTICE ROSS: Item 34 ‑ ‑ ‑

PN1195

MR FERGUSON: Well, I don't know if there's any disagreement from any party.

PN1196

JUSTICE ROSS: All right. Does any party disagree with Ai Group's proposal in 33?

PN1197

MS HOGG: It's not opposed by ABI and the New South Wales Business Chamber.

PN1198

JUSTICE ROSS: And it's agreed by Business SA?

PN1199

MS VAN GORP: That's correct.

PN1200

JUSTICE ROSS: What do the unions say?

PN1201

MR COONEY: It's agreed by the ASU.

PN1202

MR BARLOW: No objection from the CPSU, Commissioner.

PN1203

JUSTICE ROSS: It looks like it's agreed.

PN1204

MR FERGUSON: I think, to be fair, it was just the Commission itself that has a reservation about the wording.

PN1205

JUSTICE ROSS: Yes. The fact that it's agreed doesn't mean that we're going to agree to it.

PN1206

MR FERGUSON: Which I understand.

PN1207

JUSTICE ROSS: I'm just seeking to identify where the parties are up to, that's all. Item 34?

PN1208

MR FERGUSON: That's resolved and agreed by all parties.

PN1209

JUSTICE ROSS: 35?

PN1210

MR FERGUSON: That's resolved too.

PN1211

JUSTICE ROSS: 36, is Ai Group pursuing that?

PN1212

MR FERGUSON: It's not pressed. We're not going to press that.

PN1213

JUSTICE ROSS: 37?

PN1214

MS VAN GORP: Sorry, your Honour, but again we found that difficult. We're not sure what AiG ‑ ‑ ‑

PN1215

JUSTICE ROSS: All right. Item 36, Ai Group is not pressing that.

PN1216

MR FERGUSON: Yes, not pressing.

PN1217

MS VAN GORP: Thank you.

PN1218

JUSTICE ROSS: Item 37?

PN1219

MR FERGUSON: That's resolved.

PN1220

JUSTICE ROSS: Item 38?

PN1221

MR FERGUSON: That's resolved.

PN1222

JUSTICE ROSS: Item 39? What does ABI do? What's ABI doing?

PN1223

MS HOGG: That's not pressed, your Honour.

PN1224

JUSTICE ROSS: Okay. Item 40?

PN1225

MR FERGUSON: It's agreed. There was no amendment required.

PN1226

JUSTICE ROSS: Item 41?

PN1227

MR FERGUSON: Look, this is just a drafting issue where we're suggested the order of clauses should be altered. We've said we're content to leave that to the Full Bench to determine. I don't think there's a strong view from any party.

PN1228

JUSTICE ROSS: Okay. 42?

PN1229

MR FERGUSON: That's resolved.

PN1230

JUSTICE ROSS: 43?

PN1231

MR FERGUSON: That's an ABI matter.

PN1232

MS HOGG: That's not pressed.

PN1233

JUSTICE ROSS: 44? No longer pressed?

PN1234

MR FERGUSON: Not pressed.

PN1235

JUSTICE ROSS: 45?

PN1236

MR FERGUSON: That's resolved.

PN1237

JUSTICE ROSS: 46?

PN1238

MR FERGUSON: That's an ABI matter.

PN1239

MS HOGG: Your Honour, if I could just speak to item 46.

PN1240

JUSTICE ROSS: Yes.

PN1241

MS HOGG: We don't consider this to be a substantive change. I guess the intention behind the proposed change is to circumvent people trying to say that they have performed overtime in circumstances where it hasn't been required or authorised. Perhaps this is one which the parties might benefit from further conferencing and discussions.

PN1242

I feel that if there is a lack of general support for it, potentially it won't be pressed, but I think it might be something that could be further discussed.

PN1243

JUSTICE ROSS: All right. Item 47?

PN1244

MR FERGUSON: No longer pressed.

PN1245

JUSTICE ROSS: Item 48?

PN1246

MR FERGUSON: No longer pressed.

PN1247

JUSTICE ROSS: Item 49?

PN1248

MR FERGUSON: That's resolved.

PN1249

JUSTICE ROSS: Item 50? Is the ASU still pressing that?

PN1250

MR COONEY: Yes.

PN1251

MR FERGUSON: It's opposed if they're pressing it.

PN1252

JUSTICE ROSS: No, sorry, the other.

PN1253

MR COONEY: No, it's no longer pressed, your Honour.

PN1254

JUSTICE ROSS: Item 51?

PN1255

MR FERGUSON: That's resolved.

PN1256

JUSTICE ROSS: 52?

PN1257

MR FERGUSON: That's resolved.

PN1258

JUSTICE ROSS: 53?

PN1259

MR FERGUSON: It's no longer pressed.

PN1260

JUSTICE ROSS: 54?

PN1261

MR FERGUSON: That's resolved.

PN1262

JUSTICE ROSS: Leave loading.

PN1263

MR FERGUSON: Yes. No, look, that's a matter that was resolved by agreement between the parties. It was an alteration to the wording of the clause.

PN1264

JUSTICE ROSS: 55?

PN1265

MR FERGUSON: It's agreed that no change is required.

PN1266

JUSTICE ROSS: 56?

PN1267

MR FERGUSON: That's no longer pressed.

PN1268

JUSTICE ROSS: 57?

PN1269

MR FERGUSON: Look, this is a general issue similar to that raised by the AWU in other awards. It's a matter that we're going to write to yourself about.

PN1270

JUSTICE ROSS: Okay. 58?

PN1271

MR FERGUSON: That's resolved.

PN1272

JUSTICE ROSS: Same with 59?

PN1273

MR FERGUSON: Yes.

PN1274

JUSTICE ROSS: 60?

PN1275

MR FERGUSON: It's also resolved.

PN1276

JUSTICE ROSS: 61?

PN1277

MR FERGUSON: I think that has been resolved by prior decision.

PN1278

JUSTICE ROSS: Yes. 62?

PN1279

MR FERGUSON: That has been resolved also.

PN1280

JUSTICE ROSS: Okay. Anything else anyone wants to say about this matter?

PN1281

MR COONEY: No, your Honour.

PN1282

JUSTICE ROSS: So from one of the comments made earlier, you think there would be some utility in a further conference?

PN1283

MR COONEY: Your Honour, from the point of the ASU, we would be amenable to having a further conference on a couple of those issues.

PN1284

JUSTICE ROSS: All right. Anybody else? Anyone opposed to that? No?

PN1285

MR FERGUSON: We happy to do it, but there seems to be only one issue, unless I missed it.

PN1286

JUSTICE ROSS: Looks like it, yes.

PN1287

MR FERGUSON: Which is a minor issue. We happy to have a conference to finalise things, but - - -

PN1288

JUSTICE ROSS: Yes. It might be a short conference. It might be best to - rather than have it before the release of the next exposure draft, have it after the release of the next exposure draft, and that way it can deal with any translation issues, if you like, as well is the outstanding matter. Is everyone content with that?

PN1289

MS COUNSEL: Yes, your Honour.

PN1290

MR FERGUSON: Yes, your Honour.

PN1291

JUSTICE ROSS: All right. So the next exposure draft, I mentioned earlier, will probably be towards the end of July. Okay? Can we move to the Clerks Private Sector Award. A rather huge number of matters in this award, so we might - are you content to go through the summary of the submissions?

PN1292

MS BHATT: Yes, your Honour. Can I just raise one issue before we do?

PN1293

JUSTICE ROSS: Sure.

PN1294

MS BHATT: There was correspondence filed by Ai Group on 26 May, which is on the Commission's website, as well as correspondence filed by the ASU on 2 June that isn't reflected in the summary of submissions. I wonder if that might be picked up the next time this document is updated.

PN1295

JUSTICE ROSS: Yes, sure.

PN1296

MS BHATT: Other than that, I - - -

PN1297

JUSTICE ROSS: Yes. No, we will update it when we update it from the conference. What was the substance of the correspondence?

PN1298

MS BHATT: The correspondence filed by Ai Group reflected discussions that were undertaken by the employer parties. The outcome of those discussions is largely reflected in this document, but there was also one additional issue that we raised that doesn't appear in this document. The correspondence filed by the ASU is a response to matters that have been raised by the employer parties.

PN1299

JUSTICE ROSS: Okay.

PN1300

MS BHATT: That isn't reflected in this document because it has been filed afterward.

PN1301

JUSTICE ROSS: Okay, that's fine. Yes, we will update those. Let's go through the summary. Item 1? That's the amalgamation issue, I think we've dealt with that.

PN1302

MS BHATT: Yes.

PN1303

JUSTICE ROSS: Item 2?

PN1304

MS BHATT: This is a substantive variation that has been sought. I don't think any of the parties have expressed a view.

PN1305

JUSTICE ROSS: Yes. There doesn't seem to have been much in the way of submissions. All right. I will mark it down as a substantive variation at this stage. Item 3?

PN1306

MS BHATT: Is agreed.

PN1307

JUSTICE ROSS: Item 4?

PN1308

MS BHATT: Is not agreed.

PN1309

JUSTICE ROSS: Is your point there that the translation to the exposure draft is inaccurate?

PN1310

MS BHATT: Yes, your Honour.

PN1311

JUSTICE ROSS: All right. Why isn't that agree? Who opposes that proposition?

PN1312

MS BHATT: I understand the ASU does.

PN1313

JUSTICE ROSS: All right.

PN1314

MR COONEY: Yes, it's the ASU, your Honour. We just say that it should be also maintain individual employees' choice in regard to - - -

PN1315

JUSTICE ROSS: But as I understood the Ai Group's submission, you wanted to maintain the position that existed in the current award. Is that right?

PN1316

MR COONEY: Yes, your Honour.

PN1317

JUSTICE ROSS: No, is Ai Group simply saying that the description of this is in accurate, having regard to the terms of current award?

PN1318

MS BHATT: Precisely, yes.

PN1319

JUSTICE ROSS: Well, what's the ASU's - do you disagree? Do you say that the exposure draft does accurately reflect the current award; or is your argument more of the merit argument, that you think it should be majority of employees, and then individuals?

PN1320

MR COONEY: Your Honour, the position is that it should maintain what the current modern award says. That's our position, rather than a merit argument.

PN1321

MS BHATT: It happens to also be Ai Group's position.

PN1322

JUSTICE ROSS: So it's really just a case of what the current award says.

PN1323

MR COONEY: Yes.

PN1324

MS BHATT: I think it might be.

PN1325

MR COONEY: Yes.

PN1326

JUSTICE ROSS: What's the current - - -

PN1327

MS BHATT: Clause 31.2.

PN1328

JUSTICE ROSS: Of current award?

PN1329

MS BHATT: Yes.

PN1330

JUSTICE ROSS: "An employer and the employees may, by agreement, substitute another day for a public holiday." Is that the one?

PN1331

MS BHATT: Yes, your Honour.

PN1332

JUSTICE ROSS: And in the exposure draft?

PN1333

MS BHATT: In the exposure draft that provision is reproduced at 18.2 in the same terms.

PN1334

JUSTICE ROSS: Yes.

PN1335

MS BHATT: The issue arises then in respect of clause 5.2 of the exposure draft, which now includes an index of facilitative provisions in the award. It states that:

PN1336

Clause 18.2 requires agreement between an employer and the majority of employees.

PN1337

JUSTICE ROSS: Yes, all right. And what's the ASU's position in relation to it?

PN1338

MR COONEY: Your Honour, that it shouldn't be maintained as it is in the current modern award. And if that's going to be reflected by the exposure draft, then the ASU is happy to agree to that.

PN1339

JUSTICE ROSS: Well, it is reflected in the exposure draft. It doesn't change the substantive entitlement because it's expressed in precisely the same terms. It's only the descriptor of it in the table in clause 5.2, and that is that you substitute a day by agreement between the employer and the majority of employees. I'm just not sure - how else would you read clause 31.2 of the current award?

PN1340

MR COONEY: All right, your Honour. Look, the ASU will no longer oppose that.

PN1341

JUSTICE ROSS: Okay.

PN1342

MR COONEY: We accept that.

PN1343

JUSTICE ROSS: I just think - I mean, we've substituted days. I'm not sure how it will work on an individual basis, that's the reason why I raised it. I mean, either everyone is moving or - - -

PN1344

MS BHATT: I apologise, your Honour, perhaps we might be at cross purposes.

PN1345

JUSTICE ROSS: Do you think a majority can agree to it and then an individual, or what?

PN1346

MS BHATT: I think we say that the current provision and enables an agreement between an employer ‑ ‑ ‑

PN1347

JUSTICE ROSS: - - - and an employee.

PN1348

MS BHATT: - - - and an employee.

PN1349

JUSTICE ROSS: So you're at the other end, you're saying that the current exposure draft should be individual agreement?

PN1350

MS BHATT: We say that that would appropriately reflect the terms of the provision itself.

PN1351

JUSTICE ROSS: No, I follow. Okay. So your proposition is in 5.2 in the table it should be an individual rather than majority.

PN1352

MS BHATT: Yes, your Honour.

PN1353

JUSTICE ROSS: Just bear with me for a sec. It's a bit messy inasmuch as different expressions are used throughout the award, and in this instance it talks about - it certainly doesn't say, "By agreement with the employer and the majority of employees", which is the expression used elsewhere when a majority is intended; but nor does it use the - you know, the expression such as, "For substitute days or make-up time", which refers to an individual employee.

PN1354

MS BHATT: Yes. Your Honour, I think we might find as we work through the summary that there may be a few such issues which could be the subject of some further discussion.

PN1355

JUSTICE ROSS: Yes, look ‑ ‑ ‑

PN1356

MS BHATT: I'm just thinking this through, and I wonder if one alternative might be that - and I'm mindful of what your Honour has said earlier about the operation of the provision itself - that an appropriate resolution might be that the provision operates by agreement between the employer and the majority of employees or an individual employee - - -

PN1357

JUSTICE ROSS: Yes, and used the same - I think the issue goes beyond just how it's described in the table. I think it would be best to deal with the substantive matter in whatever way.

PN1358

MS BHATT: Yes, your Honour.

PN1359

JUSTICE ROSS: Otherwise it just seems odd that the language is quite different.

PN1360

MS BHATT: Yes.

PN1361

JUSTICE ROSS: And there are other clauses that operate along the lines that you've just expressed, so perhaps that matter can be the subject of further discussion between the parties. Are you content with that - that is, the ASU?

PN1362

MR COONEY: Yes, your Honour.

PN1363

JUSTICE ROSS: All right. Item 5?

PN1364

MS BHATT: Is agreed.

PN1365

JUSTICE ROSS: Item 6?

PN1366

MS BHATT: Agreed.

PN1367

JUSTICE ROSS: Item 7?

PN1368

MS BHATT: Agreed.

PN1369

JUSTICE ROSS: Item 8?

PN1370

MS BHATT: Item 8 is linked to item 39. Perhaps we can address that when we come to it.

PN1371

JUSTICE ROSS: Sure. 9?

PN1372

MS BHATT: I understand it's not agreed. Perhaps it can be marked for further discussion.

PN1373

JUSTICE ROSS: Item 10?

PN1374

MS BHATT: The same as item 9.

PN1375

JUSTICE ROSS: 11?

PN1376

MS BHATT: Agreed.

PN1377

JUSTICE ROSS: 12?

PN1378

MS BHATT: Agreed.

PN1379

JUSTICE ROSS: 13?

PN1380

MS BHATT: Agreed.

PN1381

JUSTICE ROSS: 14?

PN1382

MS BHATT: Agreed.

PN1383

JUSTICE ROSS: 15?

PN1384

MS BHATT: Agreed.

PN1385

JUSTICE ROSS: 16?

PN1386

MS BHATT: Agreed.

PN1387

JUSTICE ROSS: 17?

PN1388

MS BHATT: 17 and 18 ‑ ‑ ‑

PN1389

JUSTICE ROSS: Yes, this is the - yes.

PN1390

MS BHATT: Yes.

PN1391

JUSTICE ROSS: Well, it will either be - we will deal with it in either group 2 decision or we will pull all of them out and do with them together.

PN1392

MS BHATT: Yes.

PN1393

JUSTICE ROSS: Because they all seem to be expressed in exactly the same way, or there might be slight differences. There are at least a couple of categories, if I can put it that way. All right. 18?

PN1394

MS BHATT: It's the same issue as item 17.

PN1395

JUSTICE ROSS: 19?

PN1396

MS BHATT: Is agreed.

PN1397

JUSTICE ROSS: 20?

PN1398

MS BHATT: Agreed.

PN1399

JUSTICE ROSS: 21?

PN1400

MS BHATT: Agreed.

PN1401

JUSTICE ROSS: 22?

PN1402

MS BHATT: The parties are in agreement regarding the interpretation of the clause and they agree that no change needs to be made.

PN1403

JUSTICE ROSS: What's your agreed interpretation?

PN1404

MS BHATT: If your Honour will bear with me, I will just ‑ ‑ ‑

PN1405

JUSTICE ROSS: That's all right.

PN1406

MS BHATT: I think the parties agree that where there is an entitlement to a break under clause 14, that an entitlement to a break under clause 9.1(a) does not arise.

PN1407

JUSTICE ROSS: 23?

PN1408

MS BHATT: Deals with the same issue.

PN1409

JUSTICE ROSS: 24?

PN1410

MS BHATT: Is agreed.

PN1411

JUSTICE ROSS: 25?

PN1412

MS BHATT: Agreed.

PN1413

JUSTICE ROSS: 26?

PN1414

MS BHATT: Is agreed.

PN1415

JUSTICE ROSS: 27?

PN1416

MS BHATT: Has been referred to the annualised salaries Full Bench.

PN1417

JUSTICE ROSS: Yes. 28?

PN1418

MS BHATT: The parties agree to the Ai Group proposal.

PN1419

JUSTICE ROSS: 29?

PN1420

MS BHATT: Agreed.

PN1421

JUSTICE ROSS: 30?

PN1422

MS BHATT: Is agreed.

PN1423

JUSTICE ROSS: 31?

PN1424

MS BHATT: This is a matter that I don't think any of the parties have expressed a view, and it hasn't been the subject of discussion either.

PN1425

JUSTICE ROSS: Okay. Further discussion. 32?

PN1426

MS BHATT: The parties agree to the ABI and Ai Group proposals.

PN1427

JUSTICE ROSS: 33?

PN1428

MS BHATT: Is agreed.

PN1429

JUSTICE ROSS: 34?

PN1430

MS BHATT: Agreed.

PN1431

JUSTICE ROSS: 35?

PN1432

MS BHATT: I understand the parties agree that no change is necessary.

PN1433

JUSTICE ROSS: 36?

PN1434

MS BHATT: Agreed.

PN1435

JUSTICE ROSS: 37?

PN1436

MS BHATT: Agreed.

PN1437

JUSTICE ROSS: 38?

PN1438

MS BHATT: Agreed.

PN1439

JUSTICE ROSS: 39?

PN1440

MS BHATT: It should be the subject of further discussion.

PN1441

JUSTICE ROSS: 40?

PN1442

MS BHATT: This is that same issue, your Honour.

PN1443

JUSTICE ROSS: Yes, this is that, yes. 41?

PN1444

MS BHATT: Further discussion.

PN1445

JUSTICE ROSS: 42?

PN1446

MS BHATT: Agreed.

PN1447

JUSTICE ROSS: 43?

PN1448

MS BHATT: Agreed.

PN1449

JUSTICE ROSS: 44?

PN1450

MS BHATT: This is a substantive variation sought by the ASU that is opposed.

PN1451

JUSTICE ROSS: Is the ASU pressing it?

PN1452

MR COONEY: Yes, your Honour.

PN1453

JUSTICE ROSS: All right. 45?

PN1454

MS BHATT: Further discussion.

PN1455

JUSTICE ROSS: 46?

PN1456

MS BHATT: This is the annual leave Full Bench.

PN1457

JUSTICE ROSS: Yes. 47?

PN1458

MS BHATT: Substantive variation sought by the ASU that is opposed.

PN1459

JUSTICE ROSS: ASU pressing that?

PN1460

MR COONEY: Yes, your Honour, we are.

PN1461

JUSTICE ROSS: All right. 48?

PN1462

MS BHATT: I understand that to be an agreed matter.

PN1463

JUSTICE ROSS: Is that agreed?

PN1464

MS COUNSEL: That's my understanding.

PN1465

JUSTICE ROSS: Does the ASU agree?

PN1466

MR COONEY: Yes, we do, your Honour.

PN1467

JUSTICE ROSS: Okay. Anything further? No? All right. Thank you. Let's turn to the Commercial Sales Award. There aren't many items in this list, so it might be convenient to simply go through the revised summary. Item 1?

PN1468

MR FERGUSON: That's correct.

PN1469

JUSTICE ROSS: An agreement to make no change?

PN1470

MR FERGUSON: Yes, that's right.

PN1471

JUSTICE ROSS: Item 2?

PN1472

MR FERGUSON: Item, 2, I think the first box is inaccurate and not up to date. The second box under the note section, I'm talking about, apologies.

PN1473

JUSTICE ROSS: Yes.

PN1474

MR FERGUSON: The second box captures the current situation, which has resolved the matter.

PN1475

JUSTICE ROSS: I see. So it's resolved on the basis of "full‑time employees" to be inserted in brackets below "weekly minimum rate".

PN1476

MR FERGUSON: Yes, that's right.

PN1477

JUSTICE ROSS: Okay. 3?

PN1478

MR FERGUSON: It's a no change. That's resolved.

PN1479

JUSTICE ROSS: 4?

PN1480

MR FERGUSON: It was agreed to resolve in the manner proposed in the notes section.

PN1481

JUSTICE ROSS: Yes.

PN1482

MR FERGUSON: Although I note the second box in the notes section, I think is not accurate.

PN1483

JUSTICE ROSS: All right. So I delete the second box, and ‑ ‑ ‑

PN1484

MR FERGUSON: Yes.

PN1485

JUSTICE ROSS: ‑ ‑ ‑ it's agreed on the basis set out in the first box under the notes.

PN1486

MR FERGUSON: That's right.

PN1487

JUSTICE ROSS: All right. Item 5?

PN1488

MR FERGUSON: Item 5 was just a question, and I think some of the parties have given answers which are summarised in the notes section.

PN1489

JUSTICE ROSS: All right. 6?

PN1490

MR FERGUSON: Resolved in the manner proposed.

PN1491

JUSTICE ROSS: 7?

PN1492

MR FERGUSON: Resolved in the manner proposed.

PN1493

JUSTICE ROSS: 8?

PN1494

MR FERGUSON: It has gone to the annual leave Full Bench.

PN1495

JUSTICE ROSS: Yes. 9, same thing?

PN1496

MR FERGUSON: Same thing.

PN1497

JUSTICE ROSS: 10?

PN1498

MR FERGUSON: Resolved in the manner proposed.

PN1499

JUSTICE ROSS: 11?

PN1500

MR FERGUSON: 11, the last two sentences reflect the resolution that was reached. So it was agreed at conference that words will be restored.

PN1501

JUSTICE ROSS: Just ‑ ‑ ‑

PN1502

MR FERGUSON: Bear with me and we will ‑ ‑ ‑

PN1503

JUSTICE ROSS: So what was agreed in 11?

PN1504

MR FERGUSON: There were certain words removed, the words are, "In soliciting orders."

PN1505

JUSTICE ROSS: Yes.

PN1506

MR FERGUSON: It was agreed that they would be put back, so the words will be restored. They will be put back into the exposure draft, and they have been put back in the end of the exposure draft it has been prepared.

PN1507

JUSTICE ROSS: Okay. The note says you've agreed to delete them.

PN1508

MR FERGUSON: At the start of the paragraph, and then it seems to have been updated. That night seems to have been updated, so that the last - - -

PN1509

JUSTICE ROSS: I see, so, "No change required", so the words are not deleted. No, that's not right.

PN1510

MR FERGUSON: No, it's the last ‑ ‑ ‑

PN1511

JUSTICE ROSS: Yes, okay. Righto.

PN1512

MR FERGUSON: ‑ ‑ ‑ words, "Agreed at conference words will be restored. See report 26 May 2016."

PN1513

JUSTICE ROSS: Yes, okay.

PN1514

MR FERGUSON: That's the accurate part of the note.

PN1515

JUSTICE ROSS: All right, thanks.

PN1516

MR FERGUSON: Everything else should be deleted.

PN1517

JUSTICE ROSS: Yes. Item 12?

PN1518

MR FERGUSON: That's resolved in the manner proposed.

PN1519

JUSTICE ROSS: And item 13?

PN1520

MR FERGUSON: Resolved in the manner proposed.

PN1521

JUSTICE ROSS: Okay. Anything further in relation to that?

PN1522

MR FERGUSON: No.

PN1523

JUSTICE ROSS: Let's go to the Contract Call Centres Award. Item 1?

PN1524

MR FERGUSON: Resolved in the manner proposed.

PN1525

JUSTICE ROSS: 2?

PN1526

MR FERGUSON: It's also resolved.

PN1527

JUSTICE ROSS: 3?

PN1528

MR FERGUSON: Also resolved.

PN1529

JUSTICE ROSS: 4?

PN1530

MR FERGUSON: That's also resolved.

PN1531

JUSTICE ROSS: 5?

PN1532

MR FERGUSON: That's also resolved.

PN1533

MS KNIGHT: No, your Honour.

PN1534

JUSTICE ROSS: No?

PN1535

MS KNIGHT: It's Knight, initial J, from the ASU.

PN1536

JUSTICE ROSS: Yes.

PN1537

MS KNIGHT: In regards to item 5, we just wanted to point out that this particular item wasn't resolved. We agreed to give further consideration to the words proposed by the Commissioner.

PN1538

JUSTICE ROSS: Yes. So ‑ ‑ ‑

PN1539

MS KNIGHT: And we're still not ‑ ‑ ‑

PN1540

JUSTICE ROSS: No, that's fine. So ASU to give further consideration to it.

PN1541

MS KNIGHT: That's correct.

PN1542

JUSTICE ROSS: And when will you be able to let us know?

PN1543

MS KNIGHT: Well, at the present time our position is that we would prefer to retain the words of the current award.

PN1544

JUSTICE ROSS: Okay.

PN1545

MR FERGUSON: I just note that we're happy to have discussions about that if you want to contact Ai Group.

PN1546

JUSTICE ROSS: All right. Item 6?

PN1547

MR FERGUSON: That's resolved.

PN1548

JUSTICE ROSS: 7?

PN1549

MR FERGUSON: That's resolved.

PN1550

JUSTICE ROSS: 8?

PN1551

MR FERGUSON: That's resolved also.

PN1552

JUSTICE ROSS: 9, 10 and 11 look like they're agreed.

PN1553

MR FERGUSON: They're all resolved.

PN1554

JUSTICE ROSS: 12?

PN1555

MR FERGUSON: I think that's also resolved. Yes.

PN1556

JUSTICE ROSS: 13, 14, 15 resolved?

PN1557

MR FERGUSON: They are, as is 16, 17, 18 and 19.

PN1558

JUSTICE ROSS: Thank you. 20?

PN1559

MR FERGUSON: That's also resolved, as is 21.

PN1560

JUSTICE ROSS: 22, separate Full Bench.

PN1561

MR FERGUSON: Yes, that's right.

PN1562

JUSTICE ROSS: 23?

PN1563

MR FERGUSON: That's resolved.

PN1564

JUSTICE ROSS: 24?

PN1565

MR FERGUSON: That's resolved.

PN1566

JUSTICE ROSS: 25?

PN1567

MR BARLOW: Your Honour, Barlow, initial K, here for the CPSU. If I may just mention this one briefly?

PN1568

JUSTICE ROSS: Sure.

PN1569

MR BARLOW: The CPSU has an application on in both this award and the TSI award, your Honour, to create a new classification and wage rate and descriptors for a discrete part of the Contract Call Centre Industry, which is reflected as it has a common salary structure in the Telecommunications Service Industry, Commissioner. We've had some preliminary discussions on a number of occasions with the AiG about our application, and those discussions are basically to clarify the nature and scope of what the CPSU are seeking.

PN1570

AiG has a better understanding now, your Honour, of what we're trying to do and is conducting, I believe, some internal discussions, and it is hoped that within a month or so we should be able to progress those discussions with the CPSU and any other interested parties, such that we could avail ourselves of an invitation by Rofe C of further conference - or more if necessary, to discuss those matters, as to whether - - -

PN1571

JUSTICE ROSS: Given that most of the outstanding matters - or most of the matters that have been raised have been agreed or resolved and there are a couple left that can be the subject of further discussions, it probably would suit the parties better if any conference takes place after a revised exposure draft is published. And if you have any detail around the proposal for the classification, et cetera, you can provide that over the course of the next month or so.

PN1572

MR BARLOW: Certainly, Commissioner, our original submissions contained relevant wage rates and descriptors that we were proposing to insert in the award, Commissioner, so we've already provided some of that detail.

PN1573

JUSTICE ROSS: Okay.

PN1574

MR BARLOW: In some senses it's just explaining where that fits and how we see the application ‑ ‑ ‑

PN1575

MR FERGUSON: We've had discussions, they actually have been helpful. It is at the stage now where we need to talk to some of the members as well.

PN1576

JUSTICE ROSS: Sure.

PN1577

MR FERGUSON: But I think your suggestion, your Honour, is helpful in that if we have about that later stage, that would actually allow a meaningful period.

PN1578

JUSTICE ROSS: All right. We will look to have a conference in relation to this matter after the revised exposure draft is published, so that's probably going to be sometime in August. 26 has gone to the full bench.

PN1579

MR FERGUSON: Yes.

PN1580

JUSTICE ROSS: 27? At least the (indistinct) is driving the parties to agreement on most of these matters.

PN1581

MR FERGUSON: Yes.

PN1582

JUSTICE ROSS: The parties see no need for a variation in relation to 27, 28, 29?

PN1583

MR FERGUSON: Yes.

PN1584

JUSTICE ROSS: 30?

PN1585

MR FERGUSON: Resolved.

PN1586

JUSTICE ROSS: And that's true of 31, 32 and 33?

PN1587

MR FERGUSON: Yes, it is.

PN1588

JUSTICE ROSS: 34, 35, 36?

PN1589

MR FERGUSON: Yes, it is. And 37, 38, 39 from Ai Group's perspective.

PN1590

JUSTICE ROSS: Okay. Anything further in relation to that? No?

PN1591

MR FERGUSON: No.

PN1592

JUSTICE ROSS: All right. Let's move to the next award, the Labour Market Assistance Industry Award. There are only relatively few matters in the summary, so it might be best just to go straight to that. Item 1, whereabouts is that matter up to? Is that agreed, that it remain?

PN1593

MR PEGG: Sorry, your Honour?

PN1594

JUSTICE ROSS: Is it agreed that the note be added?

PN1595

MR PEGG: It is by Jobs Australia.

PN1596

JUSTICE ROSS: Yes. Anyone oppose that? No? All right. Item 2?

PN1597

MR JONES-VALLEDOR: Mr Jones-Valledor here from AFEI. I understand my organisation would seek to retain the current award in terms of the definition of full‑time employment. I haven't been privy to any discussions. I was actually only briefed this morning on this particular award, so my apologies. So I would like to know, I guess, if the parties have had any discussions or reached agreement.

PN1598

JUSTICE ROSS: All right. Does anyone have a view about that proposal?

PN1599

MR PEGG: Jobs Australia has no opposition to that.

PN1600

JUSTICE ROSS: Anyone else?

PN1601

MS HOGG: ABI and the New South Wales Business Chamber. We don't think it's strictly necessary. The proposed change, there's no difference in the substance of the clause as under the current award and under the ED, so we don't think it's strictly necessary, but we don't ‑ ‑ ‑

PN1602

JUSTICE ROSS: All right. Anyone else? Which unions are involved in this award?

PN1603

MS KNIGHT: Your Honour, the ASU.

PN1604

JUSTICE ROSS: Yes.

PN1605

MR BARLOW: And the CPSU.

PN1606

JUSTICE ROSS: What do you think?

PN1607

MR BARLOW: Sorry, your Honour, permit me just a moment.

PN1608

JUSTICE ROSS: You can clarify your position in seven days, each of you, if you like.

PN1609

MS KNIGHT: Thank you.

PN1610

MR BARLOW: Thank you, your Honour. There was one other item where the CPSU was going to request that.

PN1611

JUSTICE ROSS: No problem. Item 3? Anything anyone wishes to say about this? Item 4?

PN1612

MR PEGG: Yes, your Honour. We agree with the summary of the issue as it's set out.

PN1613

JUSTICE ROSS: All right. Item 5, I think that's being dealt with by the part‑time and casuals, as is 6 and 7. Item 8?

PN1614

MR BARLOW: Your Honour, Barlow, initial K, for the CPSU here. There seems to be - the summary provides some opposition between two of the employer bodies regarding whether overtime payments are paid for excursion here, so it may very well be that further discussions need to be had between the parties as to where the current provision lands.

PN1615

JUSTICE ROSS: All right. So further discussion in relation to item 8. Item 9?

PN1616

MS HOGG: My understanding is that's agreed, at least by ABI and AFEI.

PN1617

JUSTICE ROSS: All right. Anyone oppose?

PN1618

MR COONEY: No, your Honour.

PN1619

JUSTICE ROSS: All right. Item 10? I think this might be related to that earlier point.

PN1620

MR PEGG: Your Honour, same as item 8.

PN1621

JUSTICE ROSS: Sorry?

PN1622

MR PEGG: It's the same as item 8, your Honour.

PN1623

JUSTICE ROSS: Yes. 11?

PN1624

MR BARLOW: Your Honour, Barlow, initial K, here for the CPSU. This, I think, is dealing with some ambiguity between percentages overtime for public holidays, 250 per cent versus 350 per cent. The CPSU requests more time to consider the submissions and the issues here. It may or may not be a substantive change, is what I'm suggesting, your Honour.

PN1625

JUSTICE ROSS: Yes. All right.

PN1626

MR BARLOW: And we haven't yet had a chance to properly turn our mind to it.

PN1627

JUSTICE ROSS: That's fine.

PN1628

MR BARLOW: I apologise for that.

PN1629

JUSTICE ROSS: No, it's fine. You can shoot something in in seven days.

PN1630

MR BARLOW: Seven days. Thank you, your Honour.

PN1631

JUSTICE ROSS: 12? Perhaps if I can seek ‑ ‑ ‑

PN1632

MR PEGG: Your Honour, Jobs Australia here. I think that's the same issue again as item 11.

PN1633

JUSTICE ROSS: Yes. Well, if any party wants to say anything about that, then they can do so in seven days. Item 13 is before the annual leave Full Bench. Item 14?

PN1634

MR PEGG: Your Honour, Jobs Australia will be pursuing that, but we haven't yet had any discussions with any of the parties about it.

PN1635

JUSTICE ROSS: Have you put forward a detailed proposal?

PN1636

MR PEGG: No, your Honour.

PN1637

JUSTICE ROSS: Okay. Perhaps if you could do that, and once you've done that, then that might trigger the conference that can discuss the range of other issues as well.

PN1638

MR PEGG: Yes.

PN1639

JUSTICE ROSS: When do you think you will be in a position to do that?

PN1640

MR PEGG: Within a couple of weeks.

PN1641

JUSTICE ROSS: Okay. Perhaps if by the end of June, and then the conference can take place sometime in July.

PN1642

MR PEGG: Yes, your Honour.

PN1643

JUSTICE ROSS: Item 15? No? I don't think anyone had any objection.

PN1644

MR PEGG: The summary is correct in terms of our response.

PN1645

JUSTICE ROSS: All right. Anything further in relation to that matter? No? Well, let's go the Market and Social Research Award. I think most of these are - no, all of them are Ai Group, so let's just go through -is there anyone else with an interest in this award?

PN1646

MS HOGG: No, your Honour.

PN1647

JUSTICE ROSS: All right.

PN1648

MS BHATT: Your Honour, I wonder if we might be able to deal with this matter in this way ‑ ‑ ‑

PN1649

JUSTICE ROSS: Sure.

PN1650

MS BHATT: Given that the material that has been filed has been filed only by Ai Group and in light of the fact nothing has been put to the contrary, we would be content ‑ ‑ ‑

PN1651

JUSTICE ROSS: It's a bit like the Silviculture Award.

PN1652

MS BHATT: Yes. We would be content for the Commission to deal with the matters based on what is before you on the papers. There's one exception to that, however, and that is item 5, the summary of submissions. With respect, I think that summary might over-simplify the position somewhat. There is a drafting issue that has arisen in a number of provisions that we have there identified.

PN1653

At the time of preparing our submissions frankly we hadn't reached a concluded view as to whether or not that redrafting amounted to a substantive change. I think the position remains the same.

PN1654

JUSTICE ROSS: That's fine. If you want to consider your position on item 5 and let us know within the next couple of weeks. Is that what you want to do?

PN1655

MS BHATT: We wondered if the Commission might be able to assist us by listing the matter for conference so that we could work through the issue with a member with the Commission.

PN1656

JUSTICE ROSS: Sure.

PN1657

MS BHATT: In the interim there might be some research that we will endeavour to do.

PN1658

JUSTICE ROSS: All right. We will list the matter for conference probably in the next two to three weeks.

PN1659

MS BHATT: Thank you, your Honour.

PN1660

JUSTICE ROSS: The Miscellaneous Award. There aren't many issues in relation to this award. Let's go through. Item 1?

PN1661

MS BHATT: It's agreed that no change is necessary.

PN1662

JUSTICE ROSS: Just out of interest, how do you define sub-professional?

PN1663

MS BHATT: I will just turn to the relevant provision, your Honour. I think we would say that it's an employee who - I might have to take that on notice.

PN1664

JUSTICE ROSS: No, that's fine. Item 2?

PN1665

MS BHATT: Is agreed.

PN1666

JUSTICE ROSS: Item 3?

PN1667

MS BHATT: Agreed.

PN1668

JUSTICE ROSS: Item 4?

PN1669

MS BHATT: Agreed.

PN1670

JUSTICE ROSS: Okay. Anything else in relation to this matter? No? The Telecommunications Services Award. Most of these matters are Ai Group

PN1671

MR FERGUSON: Most are agreed.

PN1672

JUSTICE ROSS: Okay. Let's - perhaps if you can rattle off the ones that are agreed and ‑ ‑ ‑

PN1673

MR FERGUSON: Yes. As we come to them, people will speak up as well.

PN1674

JUSTICE ROSS: Yes, no doubt. Okay. Item 1 agreed?

PN1675

MR FERGUSON: 1 is agreed, 1(a) is agreed.

PN1676

JUSTICE ROSS: Yes.

PN1677

MR FERGUSON: 2 is agreed.

PN1678

JUSTICE ROSS: Yes. 2(a)?

PN1679

MR FERGUSON: 2(a) is agreed. 3 is an ABI matter, I think.

PN1680

JUSTICE ROSS: ABI, do you want to - are you going to pursue that matter?

PN1681

MS HOGG: Yes. Just in respect of the - again, we don't consider it to be a substantive claim, and it's not something that we propose to lead evidence on the issue. We will simply be relying upon our submissions. So whether there's any utility on the parties having further discussions, I'm interested to hear views.

PN1682

JUSTICE ROSS: All right. Are you content for them to talk to you directly about that?

PN1683

MS HOGG: Absolutely. It's the same issue that I raised in one of the previous awards, which talks about "required to work".

PN1684

JUSTICE ROSS: Yes.

PN1685

MS HOGG: It's the same issue, but I think potentially that we could have the discussions. And as I said, if the parties are not interested, then it may not be something that we press.

PN1686

JUSTICE ROSS: Okay. 4?

PN1687

MR FERGUSON: That's agreed.

PN1688

JUSTICE ROSS: 5 is ‑ ‑ ‑

PN1689

MR FERGUSON: Agreed, as is 6.

PN1690

JUSTICE ROSS: 7, are you going to pursue that?

PN1691

MR FERGUSON: Yes.

PN1692

JUSTICE ROSS: And that's not agreed. Is that right?

PN1693

MR FERGUSON: I don't believe it's agreed, but we didn't discuss it at conference. It was viewed as a general matter for the Full Bench to determine.

PN1694

JUSTICE ROSS: 8?

PN1695

MR FERGUSON: 8 is agreed, 9 is agreed.

PN1696

JUSTICE ROSS: 10?

PN1697

MR FERGUSON: Agreed.

PN1698

JUSTICE ROSS: 11?

PN1699

MR FERGUSON: I understand that's withdrawn.

PN1700

JUSTICE ROSS: 11 is?

PN1701

MS HOGG: Yes. That's not being pursued.

PN1702

JUSTICE ROSS: All right.

PN1703

MR FERGUSON: 12 is agreed.

PN1704

JUSTICE ROSS: Yes.

PN1705

MR FERGUSON: 13 is agreed.

PN1706

JUSTICE ROSS: 14?

PN1707

MR FERGUSON: Agreed.

PN1708

JUSTICE ROSS: 15?

PN1709

MR FERGUSON: Agreed or resolved.

PN1710

JUSTICE ROSS: 16? No change.

PN1711

MR FERGUSON: Yes, that's agreed or resolved.

PN1712

JUSTICE ROSS: So how is monthly pay calculated?

PN1713

MR FERGUSON: You're testing my memory.

PN1714

JUSTICE ROSS: Yes. That might be something if ‑ ‑ ‑

PN1715

MR FERGUSON: And I don't remember where we landed in the discussions beyond that, no.

PN1716

JUSTICE ROSS: I can have a look at the transcript and see, then, whether the Full Bench thinks we need to do anything further.

PN1717

MR FERGUSON: Yes.

PN1718

JUSTICE ROSS: 17?

PN1719

MR FERGUSON: That's agreed.

PN1720

JUSTICE ROSS: 18?

PN1721

MR FERGUSON: That's agreed.

PN1722

JUSTICE ROSS: 19?

PN1723

MR FERGUSON: That's agreed.

PN1724

JUSTICE ROSS: 20, ABI?

PN1725

MS HOGG: Sorry, just a moment.

PN1726

JUSTICE ROSS: That's all right. Annual salary has probably been referred to ‑ ‑ ‑

PN1727

MR BARLOW: I think it's a discrete - it was a discrete part of those discussions.

PN1728

JUSTICE ROSS: Yes.

PN1729

MR FERGUSON: Maybe I'm wrong, but I think parties thought the wording was clear, and it was a question ‑ ‑ ‑

PN1730

MS HOGG: Yes, that issue is not pressed.

PN1731

JUSTICE ROSS: Okay. Item 21?

PN1732

MR FERGUSON: That's agreed.

PN1733

JUSTICE ROSS: 22?

PN1734

MR FERGUSON: Look, this was agreed, unless the unions wanted to raise a concern. I mean, it was an answer to the FWO and it was about the calculation of overtime rates for casuals.

PN1735

JUSTICE ROSS: Yes.

PN1736

MR FERGUSON: We're content with the way the exposure draft is now dealing with it, but unions were going to think about it. I think they indicated they weren't going to press the issue, but - - -

PN1737

JUSTICE ROSS: Well, I suppose you can reserve your position, have a look at the revised exposure draft, and see what you want to do.

PN1738

MR BARLOW: Thank you, your Honour.

PN1739

JUSTICE ROSS: Okay. 23, 24 and 25, they're agreed, is that right?

PN1740

MR FERGUSON: Yes, that's right.

PN1741

JUSTICE ROSS: 26? What you want to do about that?

PN1742

MR FERGUSON: We say that's not resolved. It's caught up with that shift loading issue that Ms Bhatt addressed in relation to other awards. I think we're going to write to you.

PN1743

JUSTICE ROSS: Okay.

PN1744

MR FERGUSON: And this would be one of the examples.

PN1745

JUSTICE ROSS: 27?

PN1746

MR FERGUSON: That's agreed.

PN1747

JUSTICE ROSS: 28 is agreed?

PN1748

MR FERGUSON: Yes. 29, 30 are agreed.

PN1749

JUSTICE ROSS: 31?

PN1750

MR FERGUSON: That's agreed.

PN1751

JUSTICE ROSS: 32?

PN1752

MR FERGUSON: No, 32, bear with me. Look, we were pleased that variation that was made, but it doesn't resolve the underlying issue. This issue overlaps with that raised by the AWU in the context of other awards. It's about how tables are structured in terms of their reference to ordinary hourly rate and minimum hourly rates. I think we've already undertaken to write to you.

PN1753

JUSTICE ROSS: Okay. 33?

PN1754

MR FERGUSON: Agreed. 34 is a substantive matter, not agreed.

PN1755

JUSTICE ROSS: Yes. 35?

PN1756

MR FERGUSON: That's agreed.

PN1757

JUSTICE ROSS: 36?

PN1758

MR FERGUSON: That's agreed.

PN1759

JUSTICE ROSS: All right. Nothing further?

PN1760

MR FERGUSON: Nothing further.

PN1761

JUSTICE ROSS: All right. We will adjourn and we will deal with group 3(c) at 2 pm. Thanks.

ADJOURNED INDEFINITELY [1.00 PM]

Fair Work Commission Transcripts

AM2014/217, Transcript of Proceedings [2016] FWCTrans 256 (14 June 2016)