|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Fair Work Commission Transcripts |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009
COMMISSIONER CIRKOVIC
s.156 - 4 yearly review of modern awards
Four yearly review of modern awards
(AM2014/264)
Dry Cleaning and Laundry Industry Award 2010
Sydney
2.34 PM, MONDAY, 27 MARCH 2017
PN1
THE COMMISSIONER: Good afternoon. I'll take appearances, please.
PN2
MS R WALSH: If it pleases, Walsh, initial R, for the Australian Workers Union.
PN3
THE COMMISSIONER: Thank you, Ms Walsh, isn't it?
PN4
MS WALSH: Yes, yes.
PN5
THE COMMISSIONER: Walsh, thank you.
PN6
MR M ROBSON: If it please the Commission, Robson, initial M, for United Voice.
PN7
THE COMMISSIONER: Thank you, Mr Robson.
PN8
MS J ZADEL: If the Commission pleases, Ms Zadel, initial J, for the Australian Federation of Employers and Industries, and I have with me this afternoon assisting, Ms Hunt, initial S.
PN9
THE COMMISSIONER: Thank you, Ms Zadel. I see, so Ms Hunt's appearing with you?
PN10
MS ZADEL: That's correct.
PN11
THE COMMISSIONER: All right, and in Melbourne?
PN12
MS V WILES: If the Commission pleases, Wiles, initial V, for the Textile Clothing and Footwear Union of Australia.
PN13
THE COMMISSIONER: Thank you, Ms Wiles, and that leaves Newcastle.
PN14
MS K THOMSON: Ms Thomson, initial K, on behalf of ABI and New South Wales Business Chamber and I seek leave to appear, Commissioner.
PN15
THE COMMISSIONER: You seek permission to appear?
PN16
MS THOMSON: Yes, that's correct?
PN17
THE COMMISSIONER: On the basis that you're a paid agent?
PN18
MS THOMSON: A lawyer, Commissioner.
PN19
THE COMMISSIONER: I'm sorry, could you repeat that.
PN20
MS THOMSON: Yes, I'm a lawyer, Commissioner.
PN21
THE COMMISSIONER: Thank you, so you're seeking permission under 596 to appear. Does anyone have a - - -
PN22
MS WALSH: No objection.
PN23
THE COMMISSIONER: - - - view as to - no objections to that?
PN24
MS WILES: No.
PN25
THE COMMISSIONER: Thank you. Permission is granted. Thank you.
PN26
MS THOMSON: Thank you, Commissioner.
PN27
THE COMMISSIONER: This is the first of the conferences, I believe, in the Dry Cleaning and Laundry Industry Award. The AMOD team has published a summary of submissions, technical and drafting. There's a summary of proposed substantive variations as well. We are dealing today with just the technical and drafting aspects. The team has also published an exposure draft of 27 March, both documents ‑ no, well, that can't be right actually. It's 22 February, does that sound - - -
PN28
MS WALSH: I've got 3 November for my exposure draft.
PN29
MS WILES: Sorry, Commissioner, it's Ms Wiles in Melbourne. The last exposure draft, I think, was in November 2016.
PN30
THE COMMISSIONER: All right, bear with me a moment. I'll just make sure that we're all operating - - -
PN31
MS WILES: Unless I'm wrong.
PN32
MR ROBSON: I think we may have filed reply submissions on 22 February.
PN33
THE COMMISSIONER: Is it correct that the exposure draft then that the parties have has been published is dated 3 November 2016?
PN34
MS WALSH: That's right.
PN35
THE COMMISSIONER: That's correct, all right. 3 November 2016 and then 8 March 2017 was the summary of both the technical and drafting issues and the substantive issues. Does that accord - - -
PN36
MS WALSH: Yes, Commissioner.
PN37
THE COMMISSIONER: All right, thank you. I intend to go through each of the items on the summary item by item and ask for views and ask each of the parties for their views. At the conclusion of this conference, I will then be asking the team to update the summary of submissions and the exposure draft to reflect what's taken place today and I'll be preparing a report that will also be made available on the website reflecting the matters that have been considered today.
PN38
The purpose is to see, to the greatest extent possible, of course, as to whether or not the issues in dispute between the parties can be narrowed and then from there if it turns out that another conference is considered appropriate then I'm happy to do that but it's really to give everyone an opportunity to hear from each other as to their views on the various items and see, to the greatest extent possible, how we might reach some sort of narrowing of the issues. Starting with item one, who would like to - - -
PN39
MS WILES: Commissioner, it's Ms Wiles in Melbourne. That was an issue raised by the TCFUA in its first submission in January. What we're simply suggesting is that the title, and this is in the contents as well, that the title for part four be amended to read "Wages and Allowances and Superannuation". We think that will assists readers of the award to identify where the important issue of super is located and would assist them to go to those provisions.
PN40
THE COMMISSIONER: But currently is in clause four is it of the exposure draft and it is headed "Wages and Allowances", is that - - -
PN41
MS WILES: Sorry, Commissioner, I didn't quite catch what you said then, my apologies.
PN42
THE COMMISSIONER: Apologies. Is this a matter that's currently dealt with in clause four of the exposure draft or it's not dealt with at all?
PN43
MS WILES: It's not dealt with at all. I'm not sure where clause four came from. It's an issue that affects two parts of the exposure draft, seems to take - - -
PN44
THE COMMISSIONER: That's what I'm trying to ascertain. Which part of the exposure draft does it affect?
PN45
MS WILES: The table of contents and then the actual heading of part four.
PN46
THE COMMISSIONER: All right. The table of contents and the heading of part four you're saying should be amended to include the word Superannuation, so it reads Wages, what, comma, Allowances and Superannuation or Wages and Allowances?
PN47
MS WILES: Look, we're not fussed, Commissioner. I guess grammatically it probably should be Wages comma Allowances and Superannuation.
PN48
THE COMMISSIONER: You're saying that that change is nothing but a strict technical change to assist in the easier interpretation of the award?
PN49
MS WILES: That's correct, Commissioner. We think it would be a useful sign post given the importance of superannuation to award dependent workers and in our experience it's also conditioned on entitlement. It's often ‑ well the compliance with that clause is often not as good as it should be so we say that anything that assists both employers and employees to identify where those obligations and entitlements are is a good thing.
PN50
THE COMMISSIONER: All right. Do the other parties have a view?
PN51
MS ZADEL: AFEI doesn't oppose.
PN52
THE COMMISSIONER: Thank you.
PN53
MS THOMSON: Yes, Commissioner. I think it's not currently ‑ ‑ ‑
PN54
THE COMMISSIONER: I'm sorry to interrupt, apologies, but would you mind just, for the record, identifying yourself before you actually make a submission. It's just better. It will be much easier when the transcript is read to - - -
PN55
MS THOMSON: Sorry, Commissioner.
PN56
THE COMMISSIONER: No, problem. Ms Thomson.
PN57
MS THOMSON: Yes, so it's Ms Thomson for ABI and New South Wales Business Chamber. The current heading and the reference in the table of contents doesn't have a reference to superannuation in it. It does refer to "Related Matters", I think is the expression, "Minimum Wages and Related Matters" which does then include superannuation as one of the items under that heading, or that part heading, so we would question whether it's necessary to make the amendments sought by the TCFUA.
PN58
THE COMMISSIONER: But the table of contents that I'm looking at has part four, "Wages and Allowances".
PN59
MS THOMSON: Yes, that's correct, Commissioner. This is Ms Thomson again. In the award as it currently is, part four is entitled "Minimum Wages and Related Matters".
PN60
THE COMMISSIONER: In the body of it as opposed to the contents, yes, the table of contents, is that what you're saying?
PN61
MS THOMSON: Well the table of contents as the award currently stands is "Minimum Wages and Related Matters". In the exposure draft that's now part four, "Wages and Allowances", so it is true to say that the wording has been amended but it's not the case that it currently contains the word "Superannuation" and that has been omitted from the exposure draft so that's the basis upon which we would question whether or not it's a necessary amendment.
PN62
THE COMMISSIONER: You're saying position is that the award, as it stood before the exposure draft was amended, did not, in fact, include the word "Superannuation" or did not omit it either so there's nothing to do with superannuation and that this now is an unnecessary change, is that ‑ ‑ ‑
PN63
MS THOMSON: Yes, Commissioner. There is, of course, a clause heading, which is "Superannuation", which was clause 20 in the current award and is now 21 in the exposure draft so there's still a reference to superannuation in both tables of contents in the context of each clause heading. We're just, I think, talking about the part headings.
PN64
THE COMMISSIONER: Thank you. Do you have a view on any of this, Mr Robson, or anyone?
PN65
MS WALSH: Look, I think we wouldn't oppose the change. In our view, if any change assisted navigation of the award and the entitlements that are there, then we would obviously support that course. I don't think it's overly important given that we're in an exposure draft process where we're trying to make the award work. Whether or not superannuation appeared previously in the way that the current award is drafted, so I think we'd have to say that it would be useful to have that word in there in the title and we'd be happy to see that change.
PN66
THE COMMISSIONER: You support - - -
PN67
MS WALSH: The TCFUA.
PN68
THE COMMISSIONER: - - - the position of Ms Walsh?
PN69
MS WALSH: Yes, yes.
PN70
THE COMMISSIONER: Mr Robson.
PN71
MR ROBSON: The only think I'd add is that I don't think it would have any legal effect and so in many ways to us it's a bit - it does go back to the arguments about does it help read the clause. Other than that it seems not irrelevant, but not a matter that I think we should spend too much more time worrying about.
PN72
THE COMMISSIONER: Anyone else? Ms Zadel?
PN73
MS ZADEL: Just that AFEI wouldn't oppose either amending it to include the reference to superannuation or amending it to what it had previously been expressed as "and Related Matters".
PN74
THE COMMISSIONER: Thank you.
PN75
MS ZADEL: We similarly don't consider it a significant issue.
PN76
THE COMMISSIONER: Ms Thomson, if you consider this a significant issue, then what I'll do is I suggest that it's handled - I won't be spending any more time today on it but I suggest you handle it by way of submission and circulate that to the parties and then it could be a matter that's tabled at the next conference, which I imagine will be in a few weeks anyway. Are you happy to proceed on that basis?
PN77
MS THOMSON: Yes, yes.
PN78
THE COMMISSIONER: In the meantime, hopefully the parties, once they do get your submission, you can perhaps have some discussion. There might be some other submissions that are received and we can go from there. Item two.
PN79
MS WALSH: Yes, Commissioner. Ms Walsh for the AWU.
PN80
THE COMMISSIONER: Thank you.
PN81
MS WALSH: A basic amendment to correct the phrasing "Overtime and penalties rates" just to "Overtime and penalty rates", so just to change the "ies" really. Very straightforward.
PN82
THE COMMISSIONER: Just straightforward - - -
PN83
MS WALSH: Yes.
PN84
THE COMMISSIONER: - - - almost typo. Does anyone object to that amendment?
PN85
MS WILES: No, Commissioner.
PN86
THE COMMISSIONER: Thank you. That will be recorded then in the transcript. Item three.
PN87
MS ZADEL: Item three, AFEI made a submission that the duplication of the - - -
PN88
THE COMMISSIONER: I do apologise, would you just identify yourself, sorry.
PN89
MS ZADEL: Sorry. Ms Zadel for - - -
PN90
THE COMMISSIONER: It's not that I don't know who you are. It's so that when the transcript's read - - -
PN91
MS ZADEL: Not a problem.
PN92
THE COMMISSIONER: Thank you.
PN93
MS ZADEL: Ms Zadel from AFEI.
PN94
THE COMMISSIONER: Thank you.
PN95
MS ZADEL: Item three is a submission that the duplication of the definition of Dry Cleaning and Laundry Industry is unnecessary. It appears that matter is agreed between AFEI, AWU and the TCFUA. Whether the definition is located in clause four or clause two of the award is not significant. The crux of it is really that we're of the view that the definition should only appear once in the award.
PN96
THE COMMISSIONER: Does everyone agree then? There's no objection that the definition appear only once and that there be no issue as to whether it's in 4.2 or clause 2, is it, am I right, Ms Zadel, is that - - -
PN97
MS ZADEL: That's right.
PN98
THE COMMISSIONER: Yes. No objection to that position?
PN99
MS WALSH: No objection.
PN100
MS WILES: Ms Wiles here, no objection, Commissioner.
PN101
THE COMMISSIONER: Thank you.
PN102
MS THOMSON: Ms Thomson here, no objection, Commissioner.
PN103
THE COMMISSIONER: Thank you, all right. That will be noted.
PN104
MS WALSH: Yes, no objection from us obviously. Just to note, I suppose we would normally see that description in the coverage rather than in the definitions section, so I suppose for the purpose of consistency across - - -
PN105
THE COMMISSIONER: You would prefer it in clause?
PN106
MS WALSH: In clause 4.
PN107
THE COMMISSIONER: Clause 4. Can I then take it that we have agreement that it appears in clause 4 and appears once?
PN108
MS WALSH: Yes, Commissioner.
PN109
THE COMMISSIONER: Thank you. Item four.
PN110
MS THOMSON: I think we're happy with the response in the notes on that from our part. This is Ms Thomson, sorry, Commissioner.
PN111
THE COMMISSIONER: Thank you, Ms Thomson. That's not being pressed anymore?
PN112
MS THOMSON: No, Commissioner.
PN113
THE COMMISSIONER: Anyone else have a position?
PN114
MS WILES: Ms Wiles. No, we don't.
PN115
THE COMMISSIONER: Thank you, Ms Wiles. Item five.
PN116
MS WILES: Commissioner, this was an issue raised by the TCFUA. Is that - - -
PN117
THE COMMISSIONER: Again, is that you - just, sorry, one moment. That's you, Ms Wiles?
PN118
MS WILES: Ms Wiles.
PN119
THE COMMISSIONER: Thank you.
PN120
MS WILES: It is, Commissioner, sorry.
PN121
THE COMMISSIONER: No, that's okay. Item five.
PN122
MS WILES: Yes, so this relates to clause 7.1.
PN123
THE COMMISSIONER: Yes.
PN124
MS WILES: Relates to the preamble which we say, and I know this isn't the intention and we acknowledge that a previous Full Bench has considered the wording of this preamble, but on reflection, we considered there may be an inadvertent potential for some ambiguity about the way that clause operates or would then operate following.
PN125
That facility provisions could apply either on an individual or majority basis in relation to those provisions. We did suggest in our 18 January 2017 submission a small amendment, which is on page two of the table in our submission, which would be to the effect of that "Each facility provision can only be used in the circumstances listed in the right hand column below" which then refers to that right hand column in cluse 7.2.
PN126
THE COMMISSIONER: The proposed change of wording in 7.1 is what?
PN127
MS WILES: Sorry, that, to clarify, it would be an addition to 7.2, so following it currently states in the exposure draft "Facility provisions in this award are contained in the following clauses" and what we're proposing is an additional sentence to 7.2 which states "Each facility provision can only be used in the circumstances listed in the right hand column below".
PN128
THE COMMISSIONER: Responses?
PN129
MS ZADEL: Ms Zadel for AFEI. Our submission is really just that we're not certain why the proposed amendment would be necessary. For the legal effect of any of the clauses, you would refer back to the body of the award in order to determine how the facilitative provision actually applies so we're not certain how the amendment proposed by the TCFUA would assist in reading the award.
PN130
MS THOMSON: This is Ms Thomson. We agree with AFEI on that point.
PN131
THE COMMISSIONER: All right. Ms Walsh.
PN132
MS WALSH: Look, I don't think we'd be overly concerned with the preamble staying as it was. It is a preamble and I think it's relatively clear that, yes, the substantive provision is in the body of the award. While we don't see anything wrong with the proposed amendment, we're also not concerned to leave that - - -
PN133
THE COMMISSIONER: You're in Ms Zadel and Ms Thomson camp there? Is that - - -
PN134
MS WALSH: Yes.
PN135
THE COMMISSIONER: You don't see any need for the amendment being sought by Ms Wiles?
PN136
MS WALSH: Yes. We're fairly neutral though. I can't see any problem with the change in the same vein, yes.
PN137
THE COMMISSIONER: Do you have a view, Mr - - -
PN138
MR ROBSON: We're neither opposed or unopposed. It's the same, we don't really have a strong view either way.
PN139
THE COMMISSIONER: Ms Wiles, if you are still keen to press this matter, I suggest again that it's done by way of submission and we can note that it will be considered at the further conference. Are you happy to proceed on that basis?
PN140
MS WILES: Thank you, Commissioner. Yes. Yes, we are, thank you.
PN141
THE COMMISSIONER: Thank you. Item six, is that - - -
PN142
MS WILES: It's Ms Wiles for the TCFUA. Yes, that's another issue that we raised. This is to do - we're still at clause 7.2. The way that the provision is described there refers to clause 14.9 in the top box.
PN143
THE COMMISSIONER: It refers to what? I'm sorry, you just broke up there for a second.
PN144
MS WILES: In 7.2, if you look at that box, the table, so the top under the headings, the subheadings, that first line, it refers to 14.9.
PN145
THE COMMISSIONER: Yes, ordinary hours of work or ordinary workplaces rostered days off, rostered day off, yes.
PN146
MS WILES: Yes, and when you go to that clause, our view is that it's not quite an accurate description of 14.9. What we say is that the heading should read "Ordinary Hours of Work - Laundry Workplaces - Substitution of a Rostered Day Off" is a more accurate description.
PN147
THE COMMISSIONER: You're suggesting that the description in 7.2 of the 14.9 clause is inaccurate?
PN148
MS WILES: We say it can be clarified better, yes. Yes, Commissioner.
PN149
THE COMMISSIONER: It ought be clarified by?
PN150
MS WILES: Where it's got "Laundry Workplaces - Rostered Days Off", we suggest that it says "Laundry Workplaces ‑ Substitution of a Rostered Day Off".
PN151
THE COMMISSIONER: "Substitution of a Rostered Day Off".
PN152
MS WILES: That's correct, yes.
PN153
THE COMMISSIONER: Do the parties have a view on this?
PN154
MS ZADEL: Ms Zadel from AFEI, we don't oppose.
PN155
THE COMMISSIONER: Thank you.
PN156
MS THOMSON: Ms Thomson. Also don't oppose.
PN157
THE COMMISSIONER: Thank you. Ms Walsh.
PN158
MS WALSH: Yes, I think we'd be supportive of that change. The purpose of the table is certainly to get a quick idea of how you can or which provisions do operate differently and I think that works well. We'd be supportive of that change.
PN159
THE COMMISSIONER: Terrific. You're the same, Mr Robson?
PN160
MR ROBSON: Yes, we're in support.
PN161
THE COMMISSIONER: All right. All agreed then. That is noted. Item seven.
PN162
MS WILES: It's Ms Wiles here from the TCFUA. If I could just have one second. This is clause 11.4 of the exposure draft and our concern there is that 11.4 has changed from the current award whereby the word "ordinary" has been inserted and the word "all" has been deleted and we say that that potentially substantive change to the clause itself, so we say that the word "all" should be re-inserted back in clause 11.4 of the exposure draft.
PN163
MS WALSH: Commissioner, Ms Walsh of the AWU. We would concur. We've made the same submission. Obviously casual employees are only paid the entitlement on their ordinary hours and the change is significant. It would appear on the reading now of the exposure draft that they're not paid the 25 percent loading on their overtime.
PN164
THE COMMISSIONER: Can you read me 11.4 please that you're reading from.
PN165
MS WALSH: Yes. "A casual employee must be paid at the minimum hourly rate prescribed for the appropriate classification plus a loading of 25 percent for all ordinary hours worked".
PN166
THE COMMISSIONER: Thank you. The proposal is that this matter be referred to the substantive matters?
PN167
MS WALSH: For the wording to return as it was in the current award to read the casual loading is paid for all hours worked.
PN168
THE COMMISSIONER: I don't have a copy of that.
PN169
MS WALSH: That's all right.
PN170
MR ROBSON: I've got a spare copy of the comparison between the exposure draft and the current award, if I hand that up.
PN171
THE COMMISSIONER: I just want to make sure that I'm operating from the same document. Thanks. Thank you so much. What - - -
PN172
MS WALSH: Commissioner, Ms Walsh again for the AWU. It's clause 10.5(c) of the current award.
PN173
THE COMMISSIONER: 10.5(c). The current award says all hours worked, yes.
PN174
MS WALSH: Correct, and then - - -
PN175
THE COMMISSIONER: Then the exposure draft - - -
PN176
MS WALSH: At 11.4 says for all ordinary hours worked and so that's the change that the two unions have picked up.
PN177
THE COMMISSIONER: It could be though that the exposure draft is seeking to pick up on the issue of whether or not there are allowances included in the minimum rates or the ordinary rates payable. Is that something that has been considered? Whether there's an all purpose rate in this award and - - -
PN178
MR ROBSON: Robson for United Voice. I'm not sure that's the case. In that case, if you look at 11.4, it says "A casual must be paid at the minimum hourly rate prescribed". In the sort of standardised terminology coming out of the award review process, the standard clause is that if there is an all purposes allowance, then the casual rate is calculated from the ordinary hourly rate and where there is no all purpose allowance in the award it would say minimum hourly rate.
PN179
THE COMMISSIONER: That arose from that September Full Bench decision?
PN180
MR ROBSON: Yes.
PN181
THE COMMISSIONER: That's been confirmed.
PN182
MR ROBSON: That's been confirmed.
PN183
THE COMMISSIONER: Confirmed, yes.
PN184
MR ROBSON: I'm not sure if there is an all purpose rate in this award but my guess is if the award modernisation has put in minimum hourly rate, I think that's where they'd be seeking to deal with the all purposes allowance issue. I think using the words "all ordinary hours" worked. Like, I believe this may be a misunderstanding on AMOD's behalf.
PN185
I believe it's - the award, I think, is less than clear and it would be a matter of interpretation and proper construction to understand that the casual loading would be added to any overtime or penalty rates earned under this award. Whereas if you took the reading of the casual employment clause in the exposure draft, casual rates would be absorbed by overtime and penalties.
PN186
THE COMMISSIONER: Should it perhaps best, given the sorts of issues that have been identified by the parties, if this matter is now reported as with the issues raised by the parties and it's referred to the AMOD team for further clarification and then can be the subject of further discussion at the next conference once that material's been provided to the parties? Is that - - -
PN187
MS WALSH: I'm not sure I understand what that process is.
PN188
THE COMMISSIONER: If these concerns then are referred on to the AMOD team for there to be some clarification as to what was, in fact, intended to ensure that it is, in fact, as Mr Robson has articulated but we can't be certain at this stage.
PN189
MS WALSH: That sounds good to us, yes.
PN190
THE COMMISSIONER: All right, okay. Are you okay with that, Ms Thomson and Ms Wiles?
PN191
MS WILES: Yes, Commissioner.
PN192
MS THOMSON: Yes. Ms Thomson here as well. I think this is an issue which we would be looking to agitate further but are happy to await the advice of the AMOD team, Commissioner.
PN193
THE COMMISSIONER: I have to say that you certainly are not agreeing or being taken to be putting a position that ends your position today so if you wish to agitate something further at any other stage, then it's certainly open to you. We're nowhere near that position yet, if that helps you.
PN194
MS THOMSON: Thank you, Commissioner.
PN195
THE COMMISSIONER: Thank you. Item eight.
PN196
MS WALSH: Ms Walsh for the AWU, Commissioner. That is the same issue as item seven.
PN197
THE COMMISSIONER: Once we seek the determination in item seven it will assist item eight as well. We'll seek the same information. Item nine.
PN198
MS WALSH: Ms Walsh again. Just one moment. This is a submission about clause 13.1 of the exposure draft which reads "The ordinary hours of work for a full time employee will average 38 hours per week". The difficulty with that clause is that there are no averaging provisions in clause 13 and so our submission is that those words "will average 38 hours per week" should be replaced with "will be 38 hours per week", given that there is no capacity for averaging of ordinary hours. It's very difficult to see how that clause is supposed to operate and we've also said, I think it's section 147 of the Fair Work Act which requires each employment type, or requires it to be clear what the ordinary hours are for each employment type, would not be satisfied on the current wording there and so that's ‑ ‑ ‑
PN199
THE COMMISSIONER: You're proposing to take out the word "average"?
PN200
MS WALSH: Correct.
PN201
THE COMMISSIONER: And insert?
PN202
MS WALSH: Well essentially to leave it like that.
PN203
THE COMMISSIONER: It will be - the word "be" will be inserted?
PN204
MS WALSH: Yes.
PN205
THE COMMISSIONER: Thank you for that. Does anyone have a view?
PN206
MS ZADEL: Ms Zadel from AFEI. AFEI opposes the AWU's submission in relation to this item. In our opposition, we rely on the averaging that's currently provided for in the award in the ordinary hours provisions under clause 21.1 of the, I think, current award and clause 13.1 - - -
PN207
MS WILES: Sorry, Commissioner, it's Ms Wiles in Melbourne. I just missed what the representative for AFEI was saying then.
PN208
THE COMMISSIONER: I'll ask Ms Zadel to repeat that. In essence, she's opposing the position and I'll ask her to repeat the reason.
PN209
MS WILES: Thank you.
PN210
MS ZADEL: We're relying on the ordinary hours provisions, so that's clause 21.1(a) of the current award and it is clause 13.1 of the exposure draft which provide for averaging.
PN211
MS WALSH: Ms Walsh here. I have to say I'm perplexed as to where the averaging provisions are at 13.1.
PN212
THE COMMISSIONER: Of the exposure draft.
PN213
MS WALSH: Of the exposure draft.
PN214
MS ZADEL: Ms Zadel from AFEI. Clause 13.1 of the exposure drafts states that "The ordinary hours of work for a full time employee will average 38 per week".
PN215
THE COMMISSIONER: As I understand the position of Ms Walsh, it's that very word that is being objected to, the word "average" in that clause.
PN216
MS WALSH: There is normally an averaging cycle or some method of determining how to average those 38 hours and we say that's not there for those employees.
PN217
THE COMMISSIONER: Whereas I understood you, Ms Zadel, to be saying that 13.1 does show how that will be averaged.
PN218
MS ZADEL: Sorry, it reflects the current award which does provide for averaging but no - - -
PN219
THE COMMISSIONER: It reflects the current award.
PN220
MS ZADEL: - - - it doesn't provide for how it would be averaged.
PN221
THE COMMISSIONER: Where in the current award?
PN222
MS ZADEL: Clause 21.1(a), "The ordinary hours of work will average 38 hours per week".
PN223
MS WALSH: Ms Walsh again. I'm just going to work with the exposure draft here to which I don't think there are any differences from the current award. There are averaging provisions in laundry workplaces and that, at clause 14.2.
PN224
THE COMMISSIONER: Of the?
PN225
MS WALSH: Of the exposure draft.
PN226
THE COMMISSIONER: Exposure draft.
PN227
MS WALSH: If you go there to subsection (c) it reads "A roster system averaging 38 hours worked per week over a four week cycle" and those are the sorts of averaging provisions, or provision, that I'm talking about and that doesn't exist for dry cleaning workplaces. We don't see that clause 13.1 is an adequate provision and it would appear that there is no such arrangement in the dry cleaning stream and so that's the basis of our submission, that there is a difference between those two streams.
PN228
MS THOMSON: Commissioner, Ms Thomson here. The absence of an averaging provision is something which does occur in other awards and the fact that it is then referred to in the next stream suggests that there might have been a reason why that occurred in the first place. Notwithstanding that, the fact that there's no current averaging period for those employees in the current award would suggest that if the AWU or the union parties would like to include an averaging provision for those employees, then that should be a substantive change. It's not a technical or drafting issue.
PN229
MS WILES: It's Ms Wiles here from the TCFUA. We support the AWU's submission. We think the AWU identified an important issue, both in the current award and the exposure draft and we are also of the view that reading the text of both of those documents, there does not seem to be a capacity for averaging as submitted by the AWU.
PN230
THE COMMISSIONER: Do you have anything to say, Mr Robson?
PN231
MR ROBSON: Look, I suppose we're supportive of the AWU's submission on this. I think that there may be, and I suppose this gives rise to an issue that was raised previously by the Commission and I refer to the summary of proposed substantive variations where it's noted that some of the items contained in the substantive issues might be dealt with the technical and drafting by a single member while others might be referred to a separately constituted Full Bench.
PN232
Perhaps this might be a space where the parties would have a discussion about whether we want to deal with substantive issues here and then refer them to the Full Bench or if we want to pursue a separate substantive process because it ‑ look, to us it does seem like it is a substantive change. We think it has merit and it may not be one that requires much evidence. It may be an anomaly from modernisation.
PN233
It may be something that's genuinely is something that needs to be rectified in the award and can be fixed, can be advanced through submission or potentially through evidence but it would change, I think, the substance of the text and while I'm sympathetic to my friend's argument there is no averaging provision, I think, in my experience the award system, that doesn't stop an averaging clause from being applied and while that's not the best circumstance of the world if you're an employee advocate sometimes that stands and I think we're going to come to a position here where people opposing and supporting need to put on submissions anyway.
PN234
THE COMMISSIONER: What I was going to suggest, and it might be something I suggested earlier this morning in another round of these conferences, is that we deal with it as a first step by way of submission. If it eventuates that the parties do determine that it's something that they're adamant is a substantive matter, then it could go on the substantive matter program. Within that program, it might be something that will be conducted via conferences as a first step in any event before either a single member or ultimately by determination by a single member or Full Bench, so that's something that has yet to be determined on some of these things, or at least I'm not privy to, so would that be a position the parties are happy with on this one at this stage?
PN235
MS THOMSON: Ms Thomson here, Commissioner. We're going to press that that's a substantive change so we're in the Commission's hands about whether you'd like some further submissions on that in the first instance or whether you'd like to just sort of refer that one off and skip that step.
PN236
THE COMMISSIONER: Anyone else have a view?
PN237
MR ROBSON: May I make a suggestion?
PN238
THE COMMISSIONER: Yes.
PN239
MR ROBSON: It seems like this may be something that's resolved by looking into the history of the award and what pre-modern award that clause was taken from because that may very quickly - I think often these things are easily fixed when it turns out to be an anomaly from modernisation.
PN240
THE COMMISSIONER: Which is why I suggested submission first and then determine. That was my original - - -
PN241
MR ROBSON: I was going to suggest if you're going to ask the AMOD team to do some research into another clause, maybe they could look into this provision.
PN242
THE COMMISSIONER: Yes, I was going to do that as well.
PN243
MR ROBSON: My apologies, Commissioner.
PN244
THE COMMISSIONER: Not at all. Ms Thomson, you naturally will be able to pursue the matter as a substantive matter during the course of the process I've suggested that I'd be asking for some submissions and some clarification and assistance from the AMOD team on some of the issues first.
PN245
MS THOMSON: Thank you, Commissioner.
PN246
THE COMMISSIONER: Are the parties happy to proceed on that basis? Yes?
PN247
MS WILES: Yes. Ms Wiles here.
PN248
THE COMMISSIONER: Thank you. Ms Thomson?
PN249
MS THOMSON: Yes, we certainly think that the assistance of the AMOD team would be useful. Would you like us to reserve our position or reserve our submissions in that respect until after you've obtained that information or would you like them in advance of that?
PN250
THE COMMISSIONER: It'd probably be useful to have the AMOD view first and then you can respond to that.
PN251
MS THOMSON: Yes, thank you, Commissioner.
PN252
THE COMMISSIONER: Are the parties happy to proceed on that basis?
PN253
MS WALSH: Yes, Commissioner.
PN254
MS WILES: Yes, thank you.
PN255
THE COMMISSIONER: Item, is it 11?
PN256
MS WILES: I think it's 10. It's Ms Wiles here.
PN257
THE COMMISSIONER: 10. I'll skip one. Item 10.
PN258
MS WILES: Look, probably didn't articulate our concern very well.
PN259
THE COMMISSIONER: Who is that? Is that Ms Wiles?
PN260
MS WILES: Sorry. It is Ms Wiles of the TCFUA.
PN261
THE COMMISSIONER: Thank you.
PN262
MS WILES: My apologies.
PN263
THE COMMISSIONER: Yes.
PN264
MS WILES: The issue, and it may not be an issue, I'm just trying to articulate what our concern was, if you look at 13.1, it says that "The ordinary hours of work for a full time employee will average 38 hours per week" and then 13.2 then says "Ordinary hours may be worked between" and it sets out the periods in (a), (b) and (c). Our concern was that as 13.1 only refers to full time employees, that then 13.2 may be read to only applying to full time employees. But look, it's probably not an issue that we're really going to press. It was just an issue identified that it may be read inconsistently.
PN265
THE COMMISSIONER: Anyone else?
PN266
MR ROBSON: I might add that there's actually an inconsistency in the exposure draft. Clause 13.1, which my friend from the TCFUA has noted, that deals with the ordinary hours of dry cleaning workplaces, refers to a full time employee whereas clause 14.1 simply says that the ordinary hours of work will average 38 hours per week. It seems that - - -
PN267
THE COMMISSIONER: Yes. There's no mention of whether it's a full time, part time or any other kind.
PN268
MR ROBSON: We're supportive of the TCFUA's position.
PN269
THE COMMISSIONER: That will be noted. Ms Zadel, are you ‑ ‑ ‑
PN270
MS ZADEL: AFEI does not oppose the TCFUA's position.
PN271
THE COMMISSIONER: Thank you. Exposure draft and the summary will be amended to reflect that position. Item 11.
PN272
MS ZADEL: Ms Zadel from AFEI. Item 11 concerns clause 14.4 of the exposure draft. At clause 14.4, it provides for payment for where a roster system of averaging the hours applies. We've submitted that the exposure draft has removed the word "average" from the start of the phrase "Weekly wage rate" and so we submitted that that is a change from the current award, so it would be simply inserting that word back into the clause.
PN273
THE COMMISSIONER: Where would the - if you could read out where the word would be inserted. 14.4, "Where such a roster system".
PN274
MS ZADEL: Yes. "Where such a roster system of averaging the hours applies, the weekly wage rate for ordinary hours of work applicable to the employee will be the weekly wage rate for the employee's classification" and it goes on. It would be just before "weekly wage rate" and then by inserting "average" before "weekly wage rate" it would reflect the current award provision.
PN275
THE COMMISSIONER: Will be the average weekly wage rate?
PN276
MS ZADEL: That's correct.
PN277
MS WALSH: Ms Walsh for the AWU. We would oppose that position. We see the exposure draft as correcting a problem in the current award. The weekly wage rate is expressed without that word better as wage rate is set rate which obviously attaches to the classification level than one employee. That wage rate isn't supposed to be averaged and, in fact - - -
PN278
THE COMMISSIONER: You're saying that the meaning's changed by Ms Zadel's proposed addition?
PN279
MS WALSH: Yes. Well I don't know how you would average the wage rate in any case. The purpose of that provision is to ensure that the same rate is paid regardless of how many hours of work in each week. It's the hours that are averaged not the wage. Does that make sense?
PN280
THE COMMISSIONER: Yes. What do the other parties have to say?
PN281
MS WILES: It's Ms Wiles for the TCFUA. We support the submissions of the AWU.
PN282
THE COMMISSIONER: Thank you.
PN283
MS THOMSON: Ms Thomson, Commissioner. We support AFEI.
PN284
THE COMMISSIONER: Thank you, Ms Thomson. Given what's been put, Ms Zadel, now that you understand how that submission's been put, does that change your position? In that it's been put as a position that the word actually there would change - the addition of the word would potentially change the meaning in a way that was not intended and that it's not the wage rate that's averaged, it's - - -
PN285
MS ZADEL: It doesn't change AFEI's position for the purposes of this conference. Just questioning, after hearing the views of the AWU, really the purpose of this clause. I think we'd appreciate the ability to potentially make some submissions on this particular clause.
PN286
THE COMMISSIONER: All right. Parties can make submissions on the clause and can be subject to further discussion at the next conference. Are you happy with that, Ms Walsh?
PN287
MS WALSH: I'm, of course, happy to consider any submissions that come through. We're happy with the short submission that we've made in our reply submission of 24 February. We do see the clause as being quite straightforward and so just to pre-empt, I don't think we'll add anything more prior to the next conference.
PN288
THE COMMISSIONER: I think it's Ms Zadel that's talking about wanting to make a submission.
PN289
MS WALSH: Yes, of course, that's fine for - - -
PN290
MS ZADEL: Thank you, Commissioner.
PN291
THE COMMISSIONER: Thank you. Item 12.
PN292
MS WALSH: Ms Walsh for the AWU. This is clause 14.9 of the exposure draft. There's a cap on the number of rostered days off that can accrue.
PN293
THE COMMISSIONER: 12 days and - - -
PN294
MS WALSH: Yes.
PN295
THE COMMISSIONER: - - - in each 12 month period, yes.
PN296
MS WALSH: I think we were unclear as to why that was there given that you could only accrue one in each four week cycle. We're unclear how you could accrue more than 12 in any case.
PN297
THE COMMISSIONER: Is that a query for the AMOD team or do you have an alternative suggestion that you're putting, or?
PN298
MS WALSH: I suppose our suggestion would be to remove it given that it creates no particular entitlement or otherwise.
PN299
THE COMMISSIONER: The clause should read, you say, "By mutual agreement between the employer and employee another day may be substituted for a rostered day off" - - -
PN300
MS WALSH: Yes, full stop.
PN301
THE COMMISSIONER: Full stop. That's what you're suggesting?
PN302
MS WALSH: Yes, Commissioner.
PN303
THE COMMISSIONER: Thank you. Anyone else have a view on that?
PN304
MS THOMSON: Commissioner, it's Ms Thomson here.
PN305
THE COMMISSIONER: Thank you.
PN306
MS THOMSON: My understanding would be that number 12 relates to the fact that while there would be 13 four week cycles, it would be envisaged that one of those four week cycles is taken as annual leave which would affect the accrual of rostered days.
PN307
THE COMMISSIONER: Even if that were the case, do you then object to the amendment being sought by Ms Walsh?
PN308
MS THOMSON: Yes, Commissioner.
PN309
THE COMMISSIONER: All right. Ms Zadel?
PN310
MS ZADEL: AFEI would oppose at this instance.
PN311
THE COMMISSIONER: Are you wanting to reserve your position and consider this further? Is that the - - -
PN312
MS ZADEL: That would be appreciated, Commissioner.
PN313
THE COMMISSIONER: Mr Robson, do you have a view?
PN314
MR ROBSON: We support the AWU.
PN315
MS WILES: Ms Wiles for the TCFUA. We support the submissions of the AWU.
PN316
THE COMMISSIONER: Thank you. Given what you've heard, Ms Walsh, is your position still that the clause should be amended?
PN317
MS WALSH: Yes, at this stage position remains the same, Commissioner.
PN318
THE COMMISSIONER: We'll have to record that matter then as ‑ or require further conferencing between the parties and further - if there's any submissions that need to be provided before the next conference, I suggest that be done.
PN319
MS WALSH: Yes.
PN320
THE COMMISSIONER: Item 13.
PN321
MS WILES: It's Ms Wiles for the TCFUA. This relates to clause 18.1 of the exposure draft. The words "worked by the employee" have been added to clause 18.1 so that's a change from the current award clause.
PN322
THE COMMISSIONER: You're opposing the addition of the words "worked by the employee"?
PN323
MS WILES: Sorry, Commissioner, I couldn't hear what you said then.
PN324
THE COMMISSIONER: Do you oppose the addition of those words in the exposure draft?
PN325
MS WILES: We do, Commissioner. In our submissions, we raised the issue that the inclusion of those words would have potential consequences for the position of employees who have been prevented from performing work due to circumstances such as an unlawful stand down and that would potentially affect their rights to be paid for those days in question and on that basis, we submit that the words should be removed. We say that the clause should provide simply that an employer must pay full time adult employees weekly wages for ordinary hours exclusive of penalties and allowances.
PN326
THE COMMISSIONER: Anyone else? Ms Zadel, do you - - -
PN327
MS THOMSON: I'd like to - sorry, Commissioner, Ms Thomson here. I'd like to reserve our position on that point if I may.
PN328
THE COMMISSIONER: Yes, that will be noted.
PN329
MS ZADEL: Ms Zadel from AFEI. AFEI does not oppose.
PN330
THE COMMISSIONER: Mr Robson, I presume you're supporting ‑ ‑ ‑
PN331
MR ROBSON: We are supporting that - - -
PN332
THE COMMISSIONER: - - - that position of Ms Walsh. The summary of issues will reflect the position of the parties and note, Ms Thomson, that you're reserving your position at this stage and be subject to a further conference if necessary for next conference. Is that suitable to the parties?
PN333
MS WILES: It is. Ms Wiles here, thank you.
PN334
THE COMMISSIONER: Thank you.
PN335
MS THOMSON: Yes, and Ms Thomson as well. Thank you, Commissioner.
PN336
THE COMMISSIONER: Thank you. Item 14.
PN337
MS ZADEL: Item 14 is a submission by AFEI. It relates to clauses 18.1, 18.2 and 18.3 of the exposure draft. The exposure draft has now, at 18.1, introduced minimum hourly rates of pay for adult employees. At 18.2 and 18.3, the rates of pay for juniors are expressed to be a percentage of the weekly rate of pay. We've submitted that that's somewhat misleading and it should rather be a percentage of the minimum adult rate of pay, whether that be weekly or hourly. It looks like, in their submissions as well, that United Voice has proposed that the wording should be "percentage of the minimum rate of pay" and we'd be agreeable to that wording as well.
PN338
THE COMMISSIONER: I'll hear from Mr Robson in a moment but assuming that he's agreeable, the only change would be the change proposed as minimum rate of pay to the words.
PN339
MS ZADEL: That's right.
PN340
MR ROBSON: We just think that reflects the language used in the award. I think it's certainly easier to understand than the appropriate wage rate.
PN341
THE COMMISSIONER: Thank you. If no one challenges that, then the exposure draft and the summary will reflect that change. I'll take that as no - - -
PN342
MS WALSH: Sorry. Sorry, Commissioner, can I just catch up there. Is the proposal to change the wording "appropriate wage rate" to "minimum adult rate" or I thought that's what the submission, the written submissions, were.
PN343
THE COMMISSIONER: Ms Zadel, if you could just clarify exactly.
PN344
MS ZADEL: It's a change, yes, the percentage of the appropriate - percentage of the weekly rate of pay was my understanding the concern was and we'd be changing that to the percentage of the minimum rate of pay or the minimum adult rate appropriate.
PN345
THE COMMISSIONER: Minimum rate of pay?
PN346
MS ZADEL: That's right.
PN347
MR ROBSON: I think that would cover both the hourly and ‑ yes.
PN348
THE COMMISSIONER: That's what I thought the change that was being proposed.
PN349
MS THOMSON: Ms Thomson here. Just to clarify, that's the heading of the column not the actual preamble referring to the rates in 18.1?
PN350
MS ZADEL: That's my understanding, yes.
PN351
MR ROBSON: Yes, that's my understanding too.
PN352
MS THOMSON: Thank you.
PN353
MS WALSH: Apologies, we just was - I think I misunderstood the submission.
PN354
THE COMMISSIONER: Where did you think it was going to be placed, just to make sure that - - -
PN355
MS WALSH: I had understood the submission to change the phrasing "appropriate wage rate" to "minimum adult rate" and we were just concerned that the appropriate rate wouldn't reflect the classification level but it appears that we misjudged the submission.
PN356
THE COMMISSIONER: I've understood it to be a very simple amendment and that the words "minimum rate of pay" would be used instead of - - -
PN357
MS WALSH: Percentage of weekly, yes.
PN358
THE COMMISSIONER: - - - "percentage of appropriate wage rate". Is that correct?
PN359
MS ZADEL: It's the percentage of weekly rate of pay.
PN360
MS WALSH: Just in the heading not in the preamble? In the table itself, the change will appear.
PN361
THE COMMISSIONER: Where it says "Minimum weekly rate" and "Minimum hourly rate"?
PN362
MR ROBSON: No, this is clause 18.2 and 18.3.
PN363
THE COMMISSIONER: Yes, the percentage of weekly rate of pay.
PN364
MR ROBSON: Yes, and that would say - - -
PN365
THE COMMISSIONER: That will say "Minimum"?
PN366
MR ROBSON: Yes.
PN367
THE COMMISSIONER: Yes, okay.
PN368
MS WALSH: Yes.
PN369
THE COMMISSIONER: That's clear.
PN370
MS ZADEL: That's right, Commissioner.
PN371
THE COMMISSIONER: Thank you. Item 15.
PN372
MS WALSH: Ms Walsh for the AWU. I apologise, I'm just wrapping my head around this one. This is a submission relating to clause 18.4(d) of the exposure draft. We've proposed the deletion of the words stated there in the summary of submissions.
PN373
THE COMMISSIONER: In the exposure draft you mean?
PN374
MS WALSH: Correct.
PN375
THE COMMISSIONER: Which words are you - - -
PN376
MS WALSH: The words "or the rate prescribed by clause 18.4(b) for the relevant year of the apprenticeship whichever is the greater" can be deleted. The reason we've given - - -
PN377
THE COMMISSIONER: Just bear with me. That's in 18.4.
PN378
MS WALSH: 18.4(d).
PN379
THE COMMISSIONER: (d), "The minimum rate for an adult apprentice who commenced their apprenticeship on or after 1 January 2014 and is in the first year of their apprenticeship must be 80 percent of the rate" - - -
PN380
MS WALSH: For the dry cleaning.
PN381
THE COMMISSIONER: - - - "including employee level five or the rate prescribed by clause 18.4(b) for the relevant year of the apprenticeship".
PN382
MS WALSH: The reason we've given is that the first year apprenticeship rate of 50 percent or 55 percent of the level five cleaning rate will never be above 80 percent of the level five dry cleaning rate.
PN383
THE COMMISSIONER: You want those words from "or" - - -
PN384
MS WALSH: Deleted.
PN385
THE COMMISSIONER: - - - deleted. Because it's not going to happen.
PN386
MS WALSH: Correct.
PN387
THE COMMISSIONER: Do the other parties have a view on Ms Walsh's position?
PN388
MS WILES: It's Ms Wiles here from the TCFUA.
PN389
THE COMMISSIONER: Yes, Ms Wiles.
PN390
MS WILES: In our reply submission at page five, we noted that the current clause 14.4(d) of the dry cleaning award was inserted as a result of the apprentices Full Bench decision in 2013 as part of the transitional review and we refer in our submission to paragraph 258 of that decision where the Full Bench noted that:
PN391
A number of awards provide for the first year adult apprentice to be paid between 80 percent and 90 percent of the base trade rate
PN392
and then provided an example, and then went it on to hold at paragraph 259:
PN393
We have decided with respect to the applications before us that the appropriate minimum rate for an adult apprentice who is not an existing employee at an enterprise in the first year or stage of the apprenticeship should be 80 percent of the C10 or base trade rate unless an award already provides for a higher rate.
PN394
Look, we just really included that in our submissions to alert the parties, if they weren't aware of it already, and the Commission that the wording in the current award has arisen in context of a previous Full Bench decision.
PN395
THE COMMISSIONER: That, in fact, it can be higher than the 80 percent is your position? You're basically saying that it's not quite as Ms Walsh has put it? Is that - - -
PN396
MS WILES: Look, it was really just an issue of alerting parties to the fact that there was a model clause that was developed and that if we're going to agree to amend something, we should probably think about that in context of that Full Bench decision. That's probably the extent of our submission really.
PN397
THE COMMISSIONER: Thank you. Would you like to take that on board, Ms Walsh, and - - -
PN398
MS WALSH: Yes, I'd - - -
PN399
THE COMMISSIONER: - - - re-consider that given what you've heard and then we can note it as something that could be either agreed to or - - -
PN400
MS WALSH: Or withdrawn.
PN401
THE COMMISSIONER: - - - or withdrawn, yes, depending on how - - -
PN402
MS WALSH: Yes, I'll definitely have a closer look at that and report back.
PN403
THE COMMISSIONER: All right, thank you. If no one has anything to say on that, I'll move to item 16.
PN404
MS WILES: It's Ms Wiles here for the TCFUA.
PN405
THE COMMISSIONER: Thank you.
PN406
MS WILES: Again, this is to do with - sorry. If you just bear with me, I've just lost my place. Yes, sorry. There's been a previous Full Bench decision (2015) FWCFB 4658. That was a decision of 13 July 2015 which noted that regulations 3.33(3) and 3.46(1)(g) of the Fair Work Regulations state that an employer must separately identify an allowance and that the Full Bench then held that:
PN407
To ensure that employers are meeting their obligations under these regulations, a note will be inserted into the exposure draft drawing attention to these regulations and to the fact that employers must separately identify any allowance in a pay record.
PN408
In this instance, we're alerting the parties to the fact that a note in the form that the Full Bench made hasn't been included in this exposure draft.
PN409
THE COMMISSIONER: Thank you, Ms Wiles. That certainly the report and the summary will reflect that. I suspect that the other parties don't have a submission to make at this stage on that.
PN410
MS WILES: Thank you.
PN411
THE COMMISSIONER: Thank you, Ms Wiles. Will that suffice if the report and the summary document are - - -
PN412
MS WILES: Yes.
PN413
THE COMMISSIONER: - - - are amended to reflect that? Thank you. Item 17.
PN414
MS WILES: A number of parties raised this in their submissions and that's that clause 22.3 of the exposure ‑ ‑ ‑
PN415
THE COMMISSIONER: That's, Ms Wiles?
PN416
MS WILES: Sorry?
PN417
THE COMMISSIONER: Is that you, Ms Wiles?
PN418
MS WILES: It was. There was somebody coming out from another court so that was the noise that you heard, I think.
PN419
THE COMMISSIONER: No, not a problem. I'm just ensuring that we've got the right person.
PN420
MS WILES: Fine, okay. So, yes, this is an issue raised in relation to 22.3.
PN421
THE COMMISSIONER: Yes.
PN422
MS WILES: This is the time off instead payment of overtime and that there's been a new model clause inserted in to the Dry Cleaning Award on 14 December 2016 which obviously is not reflected in the exposure draft.
PN423
THE COMMISSIONER: All right. So this is another matter that needs amendment so that the clause and the summary reflect that position.
PN424
MS WILES: Yes. That's right.
PN425
MR ROBSON: Excuse me, Commissioner?
PN426
THE COMMISSIONER: Yes.
PN427
MR ROBSON: I might say that United Voice would have to reserve our position on that. If I remember correctly the model clause has time off in lieu taken at hour for hour rather than value for hour whereas this provision provides for the time off to be taken, calculated as value time, i.e., if an employee works for one hour at time-and-a-half penalty rates they'll be entitled to take one-and-a-half hours off. I understand there's room in the TOIL decision to tailor that to individual awards where people have a, you know, value for hour ‑ ‑ ‑
PN428
THE COMMISSIONER: A particular type of ‑ ‑ ‑
PN429
MR ROBSON: Yes.
PN430
THE COMMISSIONER: Yes, all right.
PN431
MR ROBSON: We might need some tailoring there.
PN432
THE COMMISSIONER: All right. Why don't we the exposure draft and the summary will be amended to reflect what's been put today noting that you've reserved your position and that it might be something that needs to be tailored down the track for this particular award, and can be dealt with at the next conference.
PN433
All right. If there are no other submissions or no objection ‑ ‑ ‑
PN434
MS WILES: Sorry, it's Ms Wiles here.
PN435
THE COMMISSIONER: Yes.
PN436
MS WILES: Sorry, I just wanted to check something. Sorry, that reference in the submission for item 17 should actually say, I think, 22.2 rather than 22.3.
PN437
THE COMMISSIONER: Point 2.
PN438
MS WILES: So 22.2 of the current award that's been amended since 14 December does have the model clause and it does have an entitlement at the overtime rate.
PN439
THE COMMISSIONER: So as far as the submissions is concerned, the clause should be 22.2 not 22.3. That's the point?
PN440
MS WILES: Yes.
PN441
THE COMMISSIONER: All right. Thank you. Is that ‑ ‑ ‑
PN442
MR ROBSON: So will it be I hadn't thought about this previously, your Honour, excuse me, Commissioner. Let me consider this and report back at the next conference.
PN443
THE COMMISSIONER: All right. Thanks. That will be recorded then both in terms of the summary document and the exposure draft to the extent that that's relevant. All right. Item 18?
PN444
MS WALSH: Ms Walsh for the AWU. So we might benefit from some discussions just looking at some of the parties' submissions here. But our submission was to change the wording at clause 22.4 subclause (b) of the exposure draft. At the moment this clause reads:
PN445
An employee who works so much overtime between finishing work on one day and starting work on the next day
PN446
And then it goes on to talk about needing ‑ ‑ ‑
PN447
THE COMMISSIONER: Ten consecutive hours off, et cetera.
PN448
MS WALSH: Correct. So we've made the submission that we change the wording to clarify that the 10 hour break is between the completion of overtime and the commencement of ordinary hours of your next shift rather than the next day. So it would be good to hear from the TCFUA as to how they see that might alter the legal effect.
PN449
THE COMMISSIONER: All right. Ms Wiles?
PN450
MS WILES: Yes. We've had another look at this and now we wouldn't mind an opportunity to have another look at it as well. I guess in principle what we're trying to say is that the employee gets 10 hours off between one day of shift and the next one. It's just about the best way to reflect that. So, yes, we wouldn't mind another ‑ ‑ ‑
PN451
THE COMMISSIONER: Is it perhaps preferable then that the parties take some time, consider appropriate wording before the next conference?
PN452
MS WALSH: Ms Walsh again. We've just suggested that the words "or shift" be added so the clause will read, "work on the next day or shift" and so that wording is there, in our submissions, if anyone wants to work off those.
PN453
THE COMMISSIONER: All right. Is that something then if the summary of issues paper records that the parties will consider this proposed wording and either make a submission if they wish to object, and if not then it's something that we can table for further discussion at the next conference? Are the parties happy to proceed on that basis?
PN454
MS THOMSON: Ms Thomson here, Commissioner. I'm just not sure, and perhaps Ms Walsh can clarify for me, as I see it, the wording proposed at paragraph 13 of the AWU's submissions differs in a number of respects from the wording in the exposure draft, including the words, as Ms Walsh just pointed out, is the AWU's submissions that they're pressing the wording in that clause, or just the small amendment that Ms Walsh just pointed out then?
PN455
THE COMMISSIONER: I think it was, as I understood Ms Walsh, that she'd like some time to consider that.
PN456
MS WALSH: I suppose my suggestion would be, you know, for the purposes of ultimately coming to an agreement, maybe we can work with the words that we've submitted and then we can take into account any problems that the parties flag with the entirety of that clause. So for everyone's benefit that's paragraph 13 of our 20 January submission. So we're not tied to that wording, but we are tied to, I suppose, the substantive claim which is to ensure that that 10 hours break occurs between ‑ ‑ ‑
PN457
THE COMMISSIONER: You'd be happy to consider an alternative wording.
PN458
MS WALSH: Certainly.
PN459
THE COMMISSIONER: But you want something to happen.
PN460
MS WALSH: Correct.
PN461
THE COMMISSIONER: As I've understood what you're putting.
PN462
MS WALSH: Yes.
PN463
THE COMMISSIONER: So I think the invitation there is for the other parties to consider what's been put by Ms Walsh already, if they have an alternative wording to suggest, then they should do that, and then it can be something that is subject to further conference if it's necessary. Is everyone happy to proceed on that basis?
PN464
MS WALSH: Yes, Commissioner.
PN465
MS WILES: Yes, Commissioner. It's Ms Wiles in Melbourne.
PN466
THE COMMISSIONER: Thank you.
PN467
MS THOMSON: Ms Thomson. Yes, Commissioner, thank you.
PN468
THE COMMISSIONER: Thank you. All right. Item 19?
PN469
MS WALSH: Ms Walsh here. Clause 22.5 of the exposure draft is about circumstances where you're recalled to work. Our proposal is to delete the words "from home" at that clause to show that the recall entitlement would still be there despite that an employee might not actually go home in that time.
PN470
THE COMMISSIONER: So it's a recall. The issue is the recall, not from where you're being recalled.
PN471
MS WALSH: Yes.
PN472
MS ZADEL: Ms Zadel for AFEI. AFEI oppose on the basis that the proposal would be a substantive change from the current award which currently triggers the entitlement where it's a return from home.
PN473
THE COMMISSIONER: So you're saying that that's the actual significant part of the ‑ ‑ ‑
PN474
MS ZADEL: That's right. That's right.
PN475
THE COMMISSIONER: Yes, all right.
PN476
MS WALSH: Ms Walsh, our response would just be that, you know, the location of where people live and how far they may have travelled seems to be arbitrary compared to the entitlement which is essentially to be recalled to perform overtime. You might have gone to the hospital. You might have gone to pick up, you now, children or whatever it might be, but you might not have actually gone home, and so the difficulty in returning to work has nothing to do with whether or not you've, you know, travelled home or not.
PN477
MS ZADEL: Ms Zadel from AFEI. I can understand the concerns of the AWU, but I don't consider that the deleting of the phrase "from home" is necessarily going to address that, and it may introduce further ambiguity into the clause where we start looking at - rather than from moving from one location to another, and that triggering the recall, whether we start looking at what is the meaning of "work" and whether someone has been recalled and they're still at their home. So perhaps AWU might want to think about a different wording, and that's potentially something we'd be agreeable to where it's not necessarily from home, but you are being recalled from a location that isn't work.
PN478
THE COMMISSIONER: I mean, you know, I think that the very fact of this sort of discussion that you're having suggests that you do need to consider these things further. The operative point there being that you're being asked to come back to work. It seems to me self-evident that there needs to be some discussion, you know, given that the words "from home" are there that location might be an issue for you somewhere along the way, so, the position is, from one extreme, that is, it doesn't matter where you're recalled from, it's a recall; to the other extreme, which is, you can only be recalled from home. So you might want to consider, it seems to me, some appropriate form of wording. Do the other parties have any views?
PN479
MS WILES: It's Ms Wiles here for the TCFUA.
PN480
THE COMMISSIONER: Yes.
PN481
MS WILES: We support the AWU's submission. For the reasons that Ms Walsh has outlined we think the "from home" is anachronistic and the important point is that the employee has left the premises of the employer and the point of the clause is to compensate that employee when they're required to return to their workplace.
PN482
MS THOMSON: Ms Thomson, Commissioner. Again, like AFEI, I do have some sympathy for the view advanced by the union parties, but, as it stands, that's the wording that's currently in the award so any variation would represent a substantive change and should be appropriately dealt with through that mechanism.
PN483
THE COMMISSIONER: Do you have a view, Mr Robson?
PN484
MR ROBSON: No, we support the AWU, Commissioner.
PN485
THE COMMISSIONER: The summary of issues will reflect that the parties, some of the parties at least, regard this as a substantive change, if it's indeed pressed by the AWU. I take it that it will be pressed and supported by United Voice, so for the time being the summary of issues will reflect that. Item 20?
PN486
MS WALSH: Ms Walsh. So we have a proposal for clause 23.1 of the exposure draft which is to insert the following words at the end of clause 23.1(b):
PN487
However, an employee who is receiving a higher penalty rate under clause 24 will continue to receive that higher rate.
PN488
The basis of that submission is that there is potential for employees to suffer a pay reduction performing ordinary hours on a Saturday due to the shift work entitlements at 24.4 which are higher than at 23.1.
PN489
THE COMMISSIONER: So you're suggesting that there be an insertion, are you, to 23.1(b)? Is that ‑ ‑ ‑
PN490
MS WALSH: Yes. Yes.
PN491
THE COMMISSIONER: Do you have a form of words?
PN492
MS WALSH: Yes. So that's at paragraph 19 about exposure draft submissions.
PN493
THE COMMISSIONER: All right.
PN494
MS WALSH: So dated 20 January.
PN495
THE COMMISSIONER: All right.
PN496
MS ZADEL: Ms Zadel from AFEI. One again, AFEI opposes on the basis that the proposal by the AWU would represent a substantive change.
PN497
THE COMMISSIONER: All right. Is it appropriate then that this also, and I haven't asked for your views, Ms Thomson and Ms Wiles, but assuming it's like the one before, is it appropriate that the summary of issues record that the parties believe this to be a substantive change item?
PN498
MS THOMSON: Yes, Commissioner.
PN499
THE COMMISSIONER: Yes, thank you. Ms Wiles?
PN500
MS WILES: Yes, in terms of the TCFUA's position we do support the submissions of the AWU in their proposal, but clearly the employer parties do think it's a substantive change.
PN501
THE COMMISSIONER: Yes.
PN502
MS WILES: So your suggestion is probably an accurate reflection of that.
PN503
THE COMMISSIONER: Thank you. Mr Robson, I take it you support.
PN504
MR ROBSON: Yes.
PN505
THE COMMISSIONER: The summary will record the views of the parties and the fact that what perhaps has probably been too, a substantive variation item. Item 21?
PN506
MS WALSH: Ms Walsh of the AWU. So, again, we'd be open to alternative wording. We have proposed wording taken from the TOIL term in the current award, but our suggestion is to have a payment on termination provision or wording where an employee's employment comes to an end and they haven't taken all of their TOIL.
PN507
THE COMMISSIONER: Yes. Thank you. Ms Wiles, I take it you agree with that position?
PN508
MS WILES: We do. Sorry, Commissioner, I'm just trying to find my notes on this point. Sorry. Sorry, Commissioner, I'm not sure, are we up to item 21 or 22?
PN509
THE COMMISSIONER: We are. We are.
PN510
MS WALSH: Yes.
PN511
THE COMMISSIONER: Twenty-one.
PN512
MS WILES: Twenty-one? My apologies.
PN513
THE COMMISSIONER: Yes, clause 23.4 of the exposure draft. While you're considering your position I'll move to the others and see.
PN514
MR ROBSON: I suppose first I might clarify our position in relation to 17. I ‑ ‑ ‑
PN515
THE COMMISSIONER: In relation to which one?
PN516
MR ROBSON: Item 17 because it bears on my response to item 21. I was unaware of the decision on 13 December 2016 by the award flexibility Full Bench, which provided a model term for TOIL taken at overtime rates, and we'd be in support of the inclusion of that term in this award. I think a way forward for 23.4, because this seems to be actually quite a unique type of a provision in that it's actually compensating for what appears to be ordinary hours taken on a Saturday, Sunday or a public holiday. We may need to rework the model TOIL clause for ‑ ‑ ‑
PN517
THE COMMISSIONER: For this particular award?
PN518
MR ROBSON: Exactly.
PN519
THE COMMISSIONER: So if the parties were to work on that between now and the next conference, is that an appropriate outcome?
PN520
MR ROBSON: Yes, Commissioner. Thank you.
PN521
MS WALSH: Yes. Yes. Yes, Commissioner.
PN522
MS WILES: Yes, Commissioner. It's Ms Wiles here.
PN523
THE COMMISSIONER: All right. Thank you. Ms Thomson, you're happy to proceed on that basis?
PN524
MS THOMSON: Yes. Thank you, Commissioner.
PN525
THE COMMISSIONER: Thank you. All right. That then takes us to item 22.
PN526
MS WALSH: Ms Walsh. So our position is basically that there's a lot of uncertainty not having a finishing time which is quite unusual and the example we gave in our submissions is that a shift commencing at 6 pm the previous evening is arguably a shift which commences before 6 am, but this would not ordinarily be considered a morning shift, and we've not come to a particular view, other than to say some options to resolve the issue could be to either insert a span for the commencing time of the shift or otherwise reference to the shift finishing after a particular time which is what it looks like for the dry cleaning definition. So we'd be open to discussions with the parties as to what course would be appropriate. AFEI have said that they oppose. I've not heard from the other parties.
PN527
THE COMMISSIONER: No. We'll hear ‑ ‑ ‑
PN528
MS WILES: It's Ms Wiles here for the TCFUA.
PN529
THE COMMISSIONER: Yes.
PN530
MS WILES: We support the AWU's submissions to the extent that we think they have identified a practical issue in the definition of morning shift for laundry workplaces. I think one of the proposals that the AWU suggested as the consideration was to actually insert a span for the commencement time of the shifts. They suggested, for example, 4 am to 6 am. We would be supportive generally of a variation that basically defined, or dealt with that problem that the AWU raised; that example that they raised.
PN531
THE COMMISSIONER: Thank you.
PN532
MS WILES: So we would be supporting a change that, for example, said 4 am to 6 am.
PN533
THE COMMISSIONER: You're supporting of the change but you're not wedded yet to a particular form of the change?
PN534
MS WILES: We're not wedded. Those are my instructions as recently as this morning but obviously I can take any further options, you know, back to our union.
PN535
THE COMMISSIONER: All right. Thank you.
PN536
MS ZADEL: Ms Zadel for AFEI. I think we'd appreciate the opportunity to make comment on any formulations that might be put forward as to a potential definition for the morning shift. I've just done some recent and very brief research on this point. It looks like morning shift didn't really appear in a lot of the pre-modern awards, and it was something that was introduced on request of employers. There was a submission that AFEI made as part of award modernisation and a definition was put forward for the morning shift, and that was just one that was commencing prior to 6 am, and that's consistent with what's in the exposure draft at the moment. So we'd appreciate the opportunity to make comment, but we are concerned whether any further definitions could be a substantive change from the current award.
PN537
THE COMMISSIONER: So perhaps as a way of moving forward before we make any determination as to whether it's a substantive matter or not that there be some consideration by the parties on what sort of change might be appropriate, and once that's considered then I can give some consideration as to whether or not it should be moved over to the substantive variation basket. Are you happy to proceed on that basis?
PN538
MS WALSH: Yes, Commissioner.
PN539
MS WILES: Ms Wiles. Yes. Thank you, Commissioner.
PN540
THE COMMISSIONER: Thank you. Ms Thomson?
PN541
MS THOMSON: Yes, Commissioner. I think our ultimate answer, well, ultimate position, will still be that any variation on the provision from the current award does represent a substantive change. I don't necessarily agree that it's unclear as to how the clause is meant to operate because I think if the clauses are all read in conjunction with each other, so, for example, the morning clause with the nightshift clause and those kinds of things, we do arrive at a landing where it's relatively clear how they're meant to operate, but we're in the Commission's hands on that, and if you'd like to proceed on that basis we don't object.
PN542
THE COMMISSIONER: All right. Thank you. Your position will be recorded though in the summary document.
PN543
MS THOMSON: Thank you.
PN544
THE COMMISSIONER: All right. Item 23?
PN545
MS WILES: It's Ms Wiles here for the TCFUA. So this involves submissions in response to a question raised by the Commission at 24.8 which related to a variation to the Dry Cleaning and Laundry Award made by the Commission on 28 September 2012, and essentially the Commission asks whether this clause has any more work to do.
PN546
THE COMMISSIONER: Yes.
PN547
MS WILES: So the TCFUA's position is that it still does have work to do, and the reason for that is that the six year statutory limitation period would continue to run until 28 September 2018. So that's the statutory limitation period in relation to any claim against an employee arising from that clause.
PN548
THE COMMISSIONER: I follow that. Ms Walsh?
PN549
MS WALSH: Yes. We've made the same submission. So our position would be exactly the same.
PN550
THE COMMISSIONER: That it ought remain?
PN551
MS WALSH: Correct, yes.
PN552
MR ROBSON: We support the position of the AWU and the TCFUA.
PN553
THE COMMISSIONER: Thank you, Mr Robson. All right. Ms Zadel?
PN554
MS ZADEL: AFEI does not oppose the clause remaining.
PN555
THE COMMISSIONER: All right. Ms Thomson?
PN556
MS THOMSON: We continue to press our, I suppose, support of the removal of the clause. Notwithstanding the fact that the variation was made in 2012 it had effect from 1 January 2010 so we don't see that the clause has any further work to do.
PN557
THE COMMISSIONER: Notwithstanding what you've just heard from Ms Wiles?
PN558
MS ZADEL: No, Commissioner.
PN559
THE COMMISSIONER: All right. Your position will be recorded. If you wish to maintain that position then perhaps a submission on your positon ‑ ‑ ‑
PN560
MS ZADEL: Thank you, Commissioner.
PN561
THE COMMISSIONER: All right. Thank you. Item 24?
PN562
MS WILES: Commissioner, it's Ms Wiles here for the TCFUA. The issue we raised here is that the word "job" in the heading transferred to lower paid job on redundancy in clause 35 has a different characterisation from the word "duties", and may have a different legal effect, and we say that the heading of the clause should revert to the current award clause which is, transferred to lower paid duties, so that the heading would be consistent with the terminology used in the body of the clause.
PN563
MS ZADEL: AFEI does not consider the exposure draft wording to be a substantive change from the current award. It's not a significant matter for us ‑ ‑ ‑
PN564
THE COMMISSIONER: Does that mean you don't oppose?
PN565
MS ZADEL: We don't oppose, no. But, yes, the exposure draft wording, we're not concerned with the wording at that clause.
PN566
THE COMMISSIONER: I'll take that as being not opposed and I'll note your comments. Ms Thomson?
PN567
MS THOMSON: Thank you, Commissioner. We do consider that the wording is appropriate, so we do oppose.
PN568
MS WALSH: Ms Walsh from the AWU. We certainly support the TCFUA proposition to revert to the current award.
PN569
MR ROBSON: Robson for United Voice, we support the TCFUA's position. I certainly think when there's disagreement between the parties that the change is so minor. Reverting to the current award is probably the best course.
PN570
THE COMMISSIONER: Ms Thomson, if you continue with your position then again it might be something you'll need to make a submission about - - -
PN571
MS THOMSON: Thank you, Commissioner.
PN572
THE COMMISSIONER: And it can be considered at the next conference. Item 25?
PN573
MS WILES: Commissioner, it's Ms Wiles here for the TCFUA. The concern that we raise here is that the formulation in clause 36 of the exposure draft is different to clause 12.3 in the current award and we do think it changes the meaning of the clause and therefore it is a substantive change. We outline that in more detail at pages 6 and 7 of our 18 January 2017 submissions and we note the proposed change suggested by the AWU and we think there is some merit in that proposal. Otherwise we say that the clause should go back to the current wording, you know, to make the effect consistent with the current award.
PN574
THE COMMISSIONER: Thank you. Ms Walsh?
PN575
MS WALSH: Thanks, Commissioner. Yes, so our proposal is just to reference the correct entitlements that would apply and so that would include clauses 34, 35 and 37 of the exposure draft, and so we have proposed wording in our submissions. Clause 34 should be amended to read, "The benefits and payments they would have received under clause 34, 35 and 37." So the wording is not changed, it's the let me make sure that's right so the wording won't change other than to include the additional clauses 35 and 37 to be referenced at clause 36.
PN576
THE COMMISSIONER: Okay, so 35 and 37 will be referenced at 36?
PN577
MS WALSH: Yes.
PN578
THE COMMISSIONER: Otherwise the wording is not changing?
PN579
MS WALSH: Correct.
PN580
THE COMMISSIONER: All right. Does anyone - - -
PN581
MS ZADEL: AFEI have submitted that the proposal to include the reference to both 35 and 37 at clause 34 is unnecessary. I'm happy to be corrected if I'm wrong but it sounds like what is being proposed is that an employee leaving during the notice period, the AWU is wanting to ensure that they would still have access to the entitlement of transfer to a lower paid job on redundancy, or job search entitlement and I'm just not certain how that would occur in practice if they've left employment.
PN582
MS WILES: It's Ms Wiles here. I mean, it's clearly a substantive change because currently in clause 36 of the Dry Cleaning Award there's four types of benefits and payments that are captured, being redundancy pay, transfer to lower paid duties, employee leaving during the notice periods, and job search entitlement. Whereas the current clause 36 of the exposure draft is much narrower and basically is expressly limited to redundancy pay. So we say that the legal meaning has changed. Now whether that was intended or not it's unclear but on any reading I think that that's a valid concern.
PN583
MS THOMSON: It's Ms Thomson here. I don't have the benefit, unfortunately, I having a full copy of the existing award in front of me. I am inclined to agree with AFEI's submission in that regard because it would appear that in any event, even if the previous clause did capture in theory those entitlements, they're not appropriate for someone who has already been given notice of termination, who is then terminating their own employment. Those things are applicable well, presumably clause 37, so job search entitlement is available to that employee once they've been provided with notice, but we're dealing with the situation where they have already been provided with notice and then they subsequently decide to terminate their employment, so I don't see and as I said, I say that with the caveat that I don't have the full copy of the award in front of me, how practically that would be, the effect of the current clause in any event.
PN584
MS WILES: I think that's a misreading of the clause and I appreciate you don't have the current award clause in front of you but the current clause says, "Employee given notice of termination in circumstances of redundancy may terminate their employment during the period of notice. The employee is entitled to receive the benefits and payments they would have received under this clause had they remained in employment until the expiry of the notice but is not entitled to payment instead of notice." So what we say is that clause is intended to ensure that an employee who shortens their notice period, if you like, in circumstances where they've been given notice of redundancy, is still entitled to access, you know, the job search entitlement, et cetera, for the time of the notice that they remain in employment. So if they're given five weeks' notice, for example, they may say, well, actually, I want to leave one week earlier than that at four weeks, and what this clause does is just ensure that the entitlements to redundancy pay and the other benefits are preserved, so that an employee in that situation could still access a job search entitlement during that four weeks, for example.
PN585
THE COMMISSIONER: Ms Wiles, does the exposure draft not actually do that in 36? Well, it doesn't refer to the job search.
PN586
MS WILES: (Indistinct) It's Ms Wiles. I don't think it does because clause 34 only provides for redundancy pay.
PN587
THE COMMISSIONER: Clause 34 or clause 36? Clause 34.
PN588
MS WILES: Clause 36 refers back to it says that the "employee is entitled to receive the benefits and payments that they would have received under clause 34 redundancy."
PN589
THE COMMISSIONER: Yes. So you're saying that because clause 34 only refers to redundancy pay as per the NES, that somehow clause 36 is constrained to just that, is that your point?
PN590
MS WILES: Yes. I think it's potentially narrower, or that's a potential reading - - -
PN591
THE COMMISSIONER: As distinct from the award, you're saying?
PN592
MS WILES: Yes.
PN593
THE COMMISSIONER: Can you refer me to the award clause?
PN594
MS WILES: Just one moment.
PN595
MR ROBSON: If I might assist, it's sorry, Robson for United Voice, it is clause 12.3 of the current award. Unfortunately it's not reproduced in the comparison document which I think if - - -
PN596
THE COMMISSIONER: I think I'd asked you that a few minutes ago.
PN597
MR ROBSON: That's all right.
PN598
THE COMMISSIONER: I'm racking my braining, thinking - - -
PN599
MR ROBSON: We haven't been playing with our phones, we've been - - -
PN600
THE COMMISSIONER: Well, I've been wondering what's going on because the document that the comparison between the award and the current award and the proposed award - - -
PN601
MR ROBSON: Yes.
PN602
THE COMMISSIONER: I've been - - -
PN603
MS WALSH: Can I offer you my clause here, the current award?
PN604
THE COMMISSIONER: If it's not too long, perhaps read it out because Ms Thomson, you don't have a copy either, do you?
PN605
MS THOMSON: No, I'm hamstrung by the same issue. My copy of the summary document doesn't have that those clauses in it.
PN606
THE COMMISSIONER: No, and I'm the same and I don't seem to have a copy of the award in my materials.
PN607
MR ROBSON: I suppose rather than read it out, there is one difference I suppose there is one difference between the clause the current award and the exposure draft. The exposure draft refers to clause 34 redundancy.
PN608
THE COMMISSIONER: Yes.
PN609
MR ROBSON: So it says, "The employee is entitled to receive the benefits and payments they would have received under clause 34 redundancy had they remained in employment till the expiry of notice."
PN610
THE COMMISSIONER: Correct, so 34 refers to NES redundancy.
PN611
MR ROBSON: Yes, the - - -
PN612
THE COMMISSIONER: Right, and what about the actual award then in clause 12?
PN613
MR ROBSON: In clause 12, and I think in the context, part 8 of the exposure draft deals with termination of employment and redundancy, so both ways of ending your job.
PN614
THE COMMISSIONER: Yes.
PN615
MR ROBSON: Clause 12 of the award only deals with redundancy and it deals with them as clauses 12.1 through 12.6. Clause 12.3 is employee leaving during notice period. It says:
PN616
An employee given notice of termination in circumstances of redundancy may terminate their employment during the period of notice.
PN617
The same as the exposure draft:
PN618
The employee is entitled to receive the benefits and payments they would have received under this clause had they remained in the employment until the expiry of the notice but is not entitled to the payment instead of notice.
PN619
THE COMMISSIONER: So the word, "benefits", is there and not in the exposure draft?
PN620
MR ROBSON: No. "Benefits and payments" are also in the exposure draft. I think the significant difference here that has perhaps tried to be fixed in the exposure draft is, it refers to this clause in the current award, and this clause, I think, means everything from 12.1 through to 12.6.
PN621
THE COMMISSIONER: Whereas in the other one it's only 34.
PN622
MR ROBSON: Yes.
PN623
THE COMMISSIONER: That's the point.
PN624
MR ROBSON: And it can't save this clause any more and I think a useful solution is always, go back to the old one. So we need to refer specifically and I think my you know, my friend's comments about, you know, how is someone entitled to, you know, a job seeker's entitlement after they've already left employment well, I think it's quite clear and it's probably an issue with the way the clause is drafted. Even in the old award that would be unreasonable. I don't think any Commissioner would interpret it if you brought a dispute to say that after you've left employment you're entitled to a job seeker's entitlement. It is clearly directed to the period before one leaves.
PN625
THE COMMISSIONER: All right. Would the parties benefit from considering this further given what's been put today and the summary document will, of course, reflect the position of the parties and then this can be something that's subject to further discussion at the next conference?
PN626
MS ZADEL: Ms Zadel from AFEI. I think that would benefit the parties. I think it would be worthwhile us going back really to look at how we've reached this point of this general redundancy clause to begin with, whether there was any sort of decision at an earlier stage about this clause.
PN627
THE COMMISSIONER: Right. Ms Thomson, are you happy to proceed on the basis outlined?
PN628
MS THOMSON: Yes, Commissioner. I think having another look, part of the issue might be that if we don't read the clause 37 in the exposure draft with clause 36, because it does provide so this is the job search entitlement:
PN629
Where an employer has given notice of termination to an employee, an employee must be entitled to up to one day's time off.
PN630
So in any event, even if we're not referring specifically to that clause in 36, it's also enlivened by the giving of notice. So 37 is already an entitlement, so I think perhaps if we could perhaps amend our position slightly, being that we wouldn't necessarily be opposed to a reference to clause 37 but certainly 35 has no work to do in a situation where notice of termination has been given.
PN631
MR ROBSON: Robson for United Voice. I have to disagree with ABI's position. I think it's got a very live work if you were transferred to lower paid duties, potentially you could agree to commence those duties before your notice period had expired. I think that would probably be considered a voluntary termination of your notice period, or certainly in some circumstances it could be. I think in that case it makes it clear that you're still entitled to the benefit of that position even if you agree to start that job earlier.
PN632
THE COMMISSIONER: Okay, Ms Wiles, do you have anything further to add?
PN633
MS WILES: Yes, well we'd just reiterate our earlier comments and submissions that we think that the exposure draft clause is narrower and that that is the substantive change, but also supporting the comments of United Voice about the issue to do with clause 35 of the exposure draft.
PN634
THE COMMISSIONER: All right. I'll proceed on the basis as outlined earlier then that this is a matter that will need further consideration and discussion at the next conference. In the meantime, if the parties could consider their respective positions. Clause 26?
PN635
MS WILES: Sorry, is that item 26?
PN636
THE COMMISSIONER: Apologies, item 26, yes.
PN637
MS WILES: Yes, sorry - - -
PN638
THE COMMISSIONER: Thank you.
PN639
MS WILES: Yes. Look, this is an issue that we raised, the TCFUA raised.
PN640
THE COMMISSIONER: Yes.
PN641
MS WILES: In the exposure draft sorry, to go back a step, in the current award there are separate job search entitlements applicable in circumstances where an employee is terminated and a different job search entitlement - - -
PN642
THE COMMISSIONER: In the current award, not the exposure draft? That's the current award? Ms Wiles?
PN643
MS WILES: Sorry, I misheard what you said, your Honour.
PN644
THE COMMISSIONER: Apologies. Were you referring then to the current award, as distinct from the exposure draft?
PN645
MS WILES: Yes, so in the current award there's two separate - - -
PN646
THE COMMISSIONER: At which clause?
PN647
MS WILES: It's just bear with me, sorry okay, so in the current award at clause 11.3 there's a job search entitlement which applies in circumstances of termination other than redundancy. And then in clause 12.4 there is a different and separate job search entitlement which applies in circumstances of redundancy.
PN648
THE COMMISSIONER: Yes, the 11.3 one is under the "termination of employment" head in 11.
PN649
MS WILES: Yes.
PN650
THE COMMISSIONER: And 12.4 is under the "redundancy" heading.
PN651
MS WILES: That's correct and they have different entitlements.
PN652
THE COMMISSIONER: Yes.
PN653
MS WILES: So the redundancy one is more generous.
PN654
THE COMMISSIONER: Yes.
PN655
MS WILES: So our view is that we are not supportive of those two provisions being collapsed into one job search entitlement. Clause we say that in terms of ease of navigation around the award that they should remain as separate entitlements either under the termination clause or under the redundancy clause. In substance that's our submission.
PN656
THE COMMISSIONER: So you're saying they should be separate entitlements - - -
PN657
MS WILES: Yes.
PN658
THE COMMISSIONER: Both under the termination and the redundancy head?
PN659
MS WILES: Yes. Yes, Commissioner, that's that's about right, yes.
PN660
THE COMMISSIONER: Because you're saying, in effect, under the award that they're different entitlements?
PN661
MS WILES: Yes.
PN662
THE COMMISSIONER: Any other comments or views on that position? Do I take it - - -
PN663
MS THOMSON: It's Ms Thomson - - -
PN664
THE COMMISSIONER: Then that no one opposes or - - -
PN665
MS THOMSON: Yes, it's Ms Thomson, Commissioner and no, we don't oppose. I think the explanation for that is going along from something we discussed earlier which was that the termination of employment and redundancy provisions are now under part 8, as opposed to two separate clauses which had multiple sub parts, so I think it's just a drafting thing that the AMOD team perhaps have tried to separate out clauses into their own separate clauses, however, you know, if the TCFUA are particularly concerned that I would be interested to know how we should go back and re-order the clause if the proposal is pressed.
PN666
THE COMMISSIONER: So in essence, you have no opposition to the position but you would like to see how the clauses would be worded and where they would be placed in the award?
PN667
MS THOMSON: Yes.
PN668
THE COMMISSIONER: And Ms Wiles, do you have a form of wording that you'd suggest, or a form of order that you could suggest as to how the exposure draft should be amended to reflect the award?
PN669
MS WILES: Commissioner, we don't but we can certainly turn out minds to that and hopefully draft something prior to the next conference.
PN670
THE COMMISSIONER: All right, I think that will need to happen and that can be circulated to the parties for their comment.
PN671
MS WILES: I appreciate that, thank you.
PN672
THE COMMISSIONER: Is everyone happy to proceed on that basis?
PN673
MS WILES: Yes, Commissioner.
PN674
MS THOMSON: Yes, Commissioner.
PN675
THE COMMISSIONER: All right, item 27? You again, Ms Wiles, is that your - - -
PN676
MS WILES: It is, Commissioner.
PN677
THE COMMISSIONER: Yes.
PN678
MS WILES: Hopefully you're not getting sick of my voice but so this is the proposed note. So the note for schedule C, which is the beginning of the pay rates tables so the note says:
PN679
Employees who meet their obligations under this schedule are meeting their obligations under the award.
PN680
And so the note was considered by the Full Bench in 2015 and it was in response to an issue raised by the Ai Group regarding the enforceability of the pay rates schedules, and the Full Bench held, and I quote:
PN681
Contrary to Ai Group's submissions schedules of hourly rates appended to most awards will be legally enforceable.
PN682
And a note will be inserted into the schedule stating that, and I quote again:
PN683
That employers who meet their obligations under this schedule are meeting the obligations under the award.
PN684
So, look, we understand and acknowledge that this matter has been considered by the Full Bench but on further reflection we do think that the note is potentially misleading in that it may imply that an employer meeting the obligations in relation to wage rates under schedule C encompasses all the obligations under the award in respect to all other provisions. So in that sense - - -
PN685
THE COMMISSIONER: So are you saying you disagree with the Full Bench decision? Is that the position?
PN686
MS WILES: Look, it wasn't it was just it really was a relatively recent reflection on the note. You know, some people are very literal, so if they read that they think, that's all I've got to do. And certainly in our industry, unfortunately there are some employers who may only think about wage rates and not much else in the award. So look, it may be an issue, the horse has bolted and it's not going to be something that's going to be looked at again. It was just a reflection on on potentially, it can be misleading.
PN687
THE COMMISSIONER: I guess from my perspective of what we're doing within this forum, I you know, I need some clarity as to what where you'd like to go with that. Certainly the summary will record that you it will note your comments as a reflective comment but to the extent that something will happen, from that position you might need to think about how you wish to proceed.
PN688
MS WILES: I appreciate that, Commissioner, and as I said, the horse may have bolted on this already, but we'll give some thought to - - -
PN689
THE COMMISSIONER: Would you like some time to consider your position on this matter, given that there are a number of other things that are going to have to happen before the next conference, and if there's something that you wish to make a submission on then you're free to do so and the other parties can comment? Having said that though, the Full Bench has considered the question and determined the question and then you've got to bear that in mind, as well, and consider how you wish that dealt with.
PN690
MS WILES: Yes, I fully understand that, thank you. Yes.
PN691
THE COMMISSIONER: All right, thank you. Are the parties happy to proceed on that basis, on item 27?
PN692
SPEAKER: (Indistinct)
PN693
THE COMMISSIONER: Thank you. Item 28? Ms Wiles?
PN694
MS WILES: Yes, I'm just trying to get my head around this again 28. Okay, so in our submission of 18 January 2017 we made the point on page 8 that the various tables in schedule C did not contain cross references to the relevant substantive provisions in the body of the award. Clause or schedule C.1.2 contains a column on the right-hand side entitled, "non rotating shifts", which is then broken into two further sub columns titled, "first three hours", and "after first three hours", respectively. So in essence what we say is that the description in the column as "non rotating shifts", is an inaccurate description as a substantive provision in clause 23.8 of the current award. So for example, a worker could be engaged on rotational shifts, day, afternoon and night, however that rotation occurs on a weekly basis according to a monthly roster, and in that case (indistinct).
PN695
THE COMMISSIONER: Where is this in the exposure draft, I'm sorry?
PN696
MS WILES: Bear with me for a minute. So it's at schedule C.
PN697
THE COMMISSIONER: Right, so schedule C of the exposure draft?
PN698
MS WILES: Yes, and then that's the tables - - -
PN699
THE COMMISSIONER: Where in particular?
PN700
MS WILES: It's C.1.2.
PN701
THE COMMISSIONER: C.1.2. "Full time" - - -
PN702
MS WILES: Yes.
PN703
THE COMMISSIONER: "And part-time shift workers, ordinary and shiftworkers' rates." You've got, "Day, morning, afternoon" - - -
PN704
MS WILES: Yes, and then in - - -
PN705
THE COMMISSIONER: "Permanent, non rotating."
PN706
MS WILES: Yes, and we say that the characterisation of that far right column ad "non rotating shift", is not an accurate reflection of the substantive provision.
PN707
THE COMMISSIONER: In what way? Why is it not accurate?
PN708
MS WILES: Because - - -
PN709
MS ZADEL: If it assists the Commission, AFEI's understanding is that the phrase, "non rotating shifts", doesn't otherwise appear in the award and perhaps that's where the proposal from the TCFUA has come from.
PN710
MR ROBSON: Robson for United Voice. I think the other problem is that "non rotating" is an inaccurate description of the shift pattern that's being compensated by those penalties.
PN711
THE COMMISSIONER: So is the position that and the parties all seem to be in agreement that if the "non rotating" was taken out of it, out of C.1.2, that that would fix the problem, or does it require the addition of other words?
PN712
MS ZADEL: Ms Zadel from AFEI. I think it would require the addition of other words, perhaps a reference back to the relevant clause where the entitlement is coming from.
PN713
THE COMMISSIONER: So Ms Wiles, do you have a form of words there that you suggest, instead of "non rotating shifts", in C.1.2?
PN714
MS WILES: Commissioner, we don't.
PN715
THE COMMISSIONER: No. Do you want to think about that perhaps until before the next conference? Think about a form of words that might be circulated to the parties for their comment.
PN716
MS WILES: Yes, we can do that, Commissioner.
PN717
THE COMMISSIONER: All right, thank you.
PN718
MS WILES: The other thing I was going to say is that in our submission on 18 January we did say that either that the wording be reformulated or that it refer back to the substantive provision, which I think is the point that AFEI have just made, so we weren't particularly fixed about which option was the preferable one to - - -
PN719
THE COMMISSIONER: Think about a form of wording. It doesn't sort of whether it's referred back to the substantive provision or it's another heading, and circulate that to the parties for comment.
PN720
MS WILES: Yes, we can do that, thank you.
PN721
THE COMMISSIONER: And then that can be the subject of, with any luck, some agreement prior to the next conference, or at least, at the next conference.
PN722
MS WILES: We can do that, yes.
PN723
THE COMMISSIONER: All right. Are you happy with that, Ms Thomson?
PN724
MS WALSH: Yes, thank you, Commissioner.
PN725
THE COMMISSIONER: Item 29? It's C Ms Wiles, is that in C.2.4?
PN726
MS WILES: That's correct, yes.
PN727
THE COMMISSIONER: C.2.4, "Full time and part-time shift workers-penalty rates."
PN728
MS WILES: So essentially our submission here, unless we've completely missed an issue here, is that the rates of pay for the public holiday penalty rates, we think, are wrong and in our submission (indistinct) at page 10 we outline what we think are the correct rates.
PN729
THE COMMISSIONER: So has that just been a mistake made by the AMOD team or is that something deeper than - - -
PN730
MS WILES: Look, I can't work out how they've come to these calculations. Maybe that can explain to us the method of their calculation and that would probably assist me, at least.
PN731
THE COMMISSIONER: So is that something that, in summary, can record that there be some explanation by the AMOD team as to how that rate was calculated and where that came from?
PN732
MS ZADEL: Ms Zadel from AFEI. That sounds appropriate, Commissioner. I'll just note that AFEI did also get different rates for public holidays in that particular table. We've agreed with the TCFUA on levels 1, 2 and 4. We've gotten a different calculation for level 3, however.
PN733
THE COMMISSIONER: All right, so I think perhaps then some clarification from the AMOD team and that can be circulated and then we can go from there. Are the parties happy to proceed on that basis?
PN734
MS WILES: Yes, Commissioner, Ms Wiles here.
PN735
THE COMMISSIONER: Ms Thomson?
PN736
MS THOMSON: Ms Thomson. Yes, thank you, Commissioner.
PN737
THE COMMISSIONER: Thank you. Item 30?
PN738
MS WILES: Ms Wiles here for the TCFUA.
PN739
THE COMMISSIONER: Yes.
PN740
MS WILES: These relate to a number of schedules and this in substance this relates to a contest as - - -
PN741
THE COMMISSIONER: Casual adult employees? Is that correct?
PN742
MS WILES: Sorry, did you say "casual employees"?
PN743
THE COMMISSIONER: Yes.
PN744
MS WILES: Yes.
PN745
THE COMMISSIONER: Is that the schedule that deals with casual adult employees, C.3?
PN746
MS WILES: Yes, C.3.1, that's right, and then 3.2.
PN747
THE COMMISSIONER: 3.2.
PN748
MS WILES: 3.3 and 3.4, so basically the schedules that have rates for casuals.
PN749
THE COMMISSIONER: Yes.
PN750
MS WILES: We say that the rates should be calculated on a compounding basis and it appears that the exposure draft rates have been calculated on a sort of cumulative basis.
PN751
THE COMMISSIONER: Calculated on a which basis?
PN752
MS WILES: Like a cumulative basis. So they're adding the 25 per cent loading at the end and we say that the casual the 25 per cent casual loading should be added at the start. We set that out in some detail in our submissions at pages I think it's 10 sorry, 13 to 17. Sorry, no that's 10 to 17, yes. So, I mean, that's a you know, that's a substantive difference, I guess, in what we say that the current award provides for.
PN753
THE COMMISSIONER: I'll hear from Ms Zadel then, thank you.
PN754
MS ZADEL: Thank you, Commissioner. AFEI opposes the proposed calculations of the TCFUA. We're of the view the casual loading is not expressed to apply for purposes in the award and so the compounding calculation proposed by the TCFUA we would consider as not consistent with the current award. So to apply the shift premiums, the overtime and penalties on the casually loaded rate, we consider is an incorrect calculation.
PN755
THE COMMISSIONER: Mr Robson?
PN756
MR ROBSON: We support the TCFUA. We certainly think in the way the casual loading is expressed in the award and the way that the shift penalties are expressed to reach the appropriate rate for a casual employee of a Saturday or a Sunday would be to take the if a casual if the ordinary work for a Saturday before midday is 125 per cent, then it's 150 per cent for a casual. Afterwards when it's 150 per cent, it's 175 per cent. I suppose that's our position. I'm not sure whether - - -
PN757
THE COMMISSIONER: It's the method of calculation, I think, that's the issue.
PN758
MR ROBSON: Yes.
PN759
THE COMMISSIONER: It's whether or not it's calculated on the minimum - - -
PN760
MR ROBSON: I suppose the conflict between the parties seems to be whether the shift loadings or the sorry, not the shift loadings, if the penalty rates for the shift loadings absorb the casual rate, or if they are if they're cumulative and I suppose, you know, a good example of the difference is, I think AFEI would submit that the penalty rate for ordinary work on a Saturday after midday for both a permanent and a casual employee would be 150 per cent. I would submit, and I believe so would the TCFUA, that the correct rate for a casual employee on a Saturday after midday, would be 175 per cent because you take 150 per cent as the penalty. That doesn't absorb the casual loading and I would note that the penalty rates Full Bench has made comments about that being the default of the standard position across modern awards. I think this is probably something that's going to have to go to further submission.
PN761
THE COMMISSIONER: Yes, I think so. Ms Thomson, I haven't heard from you yet but I'm inclined to ask for further submissions on this issue in any event, so would that assist your position?
PN762
MS THOMSON: Yes, Commissioner, we would press our objection to the TCFUA's calculation for the reason expressed by AFEI.
PN763
THE COMMISSIONER: I will be asking for further submissions on this issue. Would some clarification from the AMOD team on any aspect of this item be of assistance to the parties?
PN764
MS WILES: It's Ms Wiles here. Yes, that would be also useful, I think, just to be really clear on what basis they have made the calculations.
PN765
THE COMMISSIONER: Yes. If the parties are happy to proceed on that basis, item 30 will be dealt with on the basis of the summary reflecting the position of the parties, of course, seeking some further clarification from the AMOD team as to the method of calculation of these rates and then there will be a need for further submissions and then we can discuss that at the next conference, those things. Are the parties happy to proceed on that basis?
PN766
MS WILES: Yes, Commissioner.
PN767
MS THOMSON: Yes, Commissioner.
PN768
MR ROBSON: Yes, Commissioner.
PN769
MS ZADEL: Yes, Commissioner.
PN770
THE COMMISSIONER: All right, item 31? That's - - -
PN771
MS WALSH: Yes, well - - -
PN772
THE COMMISSIONER: Ms Walsh?
PN773
MS WALSH: Yes, so this amendment is proposed to reflect the ordinary hours provisions, so clauses 13 and 14 of the exposure draft. In the dry cleaning stream there is a provision, 13.2(c) which provides for ordinary hours to be performed on a Saturday but that's not the case for the laundry stream and so our proposal is to remove the columns in the schedules that set out ordinary hourly rates for the laundry stream.
PN774
THE COMMISSIONER: So all of C.2.1, laundry employee level 1 through to 4, you'd be suggesting be taken out, did you say?
PN775
MS WALSH: Just the columns that provide ordinary rates.
PN776
THE COMMISSIONER: So the first column?
PN777
MS WALSH: Yes.
PN778
THE COMMISSIONER: There are four columns in C.2.1.
PN779
MS WALSH: Yes, so public holidays would stay. I'd just need to make sure that they occurred elsewhere as overtime rates. So our submission is solid but I would want to just confirm exactly which columns we did away with based on the entirety.
PN780
THE COMMISSIONER: Did you want to take that away with you and - - -
PN781
MS WALSH: Yes, I'm happy to do that.
PN782
THE COMMISSIONER: Write to the team and the parties write to the AMOD team, actually, and then the parties will get that as to what it is that you're actually saying in relation to that issue.
PN783
MS WALSH: Yes.
PN784
THE COMMISSIONER: Do the other parties have anything they wish to say in relation to item 31 at this point, given that Ms Walsh has a position that she's not yet able to articulate clearly but will do so via submission to the AMOD team?
PN785
MS ZADEL: Ms Zadel from AFEI, we'll reserve our position on that item.
PN786
THE COMMISSIONER: Thank you.
PN787
MS THOMSON: Ms Thomson, likewise, thank you, Commissioner.
PN788
THE COMMISSIONER: All right, thank you, and Ms Wiles, you're happy to proceed on that basis? Ms Wiles?
PN789
MS WILES: Ms Wiles? Sorry, I thought you said, "Mr Walsh."
PN790
THE COMMISSIONER: Sorry.
PN791
MS WILES: Yes, we are, thank you.
PN792
THE COMMISSIONER: Thank you. I take it, Mr Robson, you're happy to proceed on that basis?
PN793
MR ROBSON: Yes. Thank you.
PN794
THE COMMISSIONER: All right, thank you. There will be a number of items arising from this conference today that will be reflected in the summary of submissions document and a report will be prepared that will be circulated to the parties, summarising those positions. So in terms of a time for another conference are the parties able to indicate their preference? I'm considering a date in late April.
PN795
MS WILES: Commissioner, it's Ms Wiles, I'm just checking dates. Sorry, Commissioner, it's Ms Wiles. Do you have any particular dates in mind or just - - -
PN796
THE COMMISSIONER: I was thinking, Friday the 28th?
PN797
MS WILES: That's fine with us, specifically.
PN798
THE COMMISSIONER: All right. How does 10 am, Friday the 28th sound?
PN799
MS WALSH: That's fine for the AWU.
PN800
MS THOMSON: Ms Thomson. That's fine for us, thank you, Commissioner.
PN801
MR ROBSON: Yes, that's fine for us, Commissioner.
PN802
MS ZADEL: That's appropriate for AFEI.
PN803
THE COMMISSIONER: All right.
PN804
MS WALSH: Commissioner, Ms Walsh again. The only thing I did want to clarify, given that United Voice have a number of although they lodged them as proposed variations, AMOD have sort of flagged that some of those items may be considered together with the drafting and technical claims might it be a good idea for the parties to review those and perhaps come to at least a position, whether they state that this batch of claims or otherwise be referred to the Full Bench, or is - - -
PN805
THE COMMISSIONER: You'll have to you appear to be ahead of me in that submission. What are you saying the AMOD team have said to you? I - - -
PN806
MS WALSH: So just on the summary of proposed substantive variations which are actually - - -
PN807
THE COMMISSIONER: You've gone to the other one?
PN808
MR ROBSON: Yes.
PN809
MS WALSH: Which are actually only - - -
PN810
THE COMMISSIONER: I thought you were still on this summary and it was something that wasn't on my document so I was it's the summary of proposed substantive variations, yes?
PN811
MS WALSH: Yes, and they're actually only United Voice propositions but it might just be that they were a bit ahead of time, and some of those matters AMOD have flagged could be drafting in technical matters.
PN812
THE COMMISSIONER: Yes, they could be. I've taken a few in some of my other AMOD matters, certainly some of the matters that started off in technical, and drafting became substantive and so then they've morphed into conferences on the substantive issues.
PN813
MS WALSH: Yes.
PN814
THE COMMISSIONER: So - - -
PN815
MS WALSH: So should we go the other way, as well, and just see if any of those can be pulled into the drafting and technical - - -
PN816
THE COMMISSIONER: I'm in your hands there. If you feel that there's some benefit in doing that I'm happy to proceed. I'm happy to list this one can be listed for the second which I did in my other one, one of my other ones, sorry, they're starting to merge a bit but I listed one in the morning, say, for technical, which was say, no. 2 of technical, and then I had no. 1 of substantive in the afternoon. So I'm happy, for example, to list this at 10 am on the Friday for technical, say, and 2.00 or 2.30 on the Friday for substantive, if the parties - - -
PN817
MR ROBSON: I suppose there's a number of items in the technical section of this award that may be referred to the substantive so - - -
PN818
THE COMMISSIONER: I'm in your hands, really. If you tell - - -
PN819
MR ROBSON: Look, I suppose I'm not really sure what's being proposed. Like, I'm happy to have it dealt with by whatever Bench or individual Commissioner - - -
PN820
THE COMMISSIONER: Yes.
PN821
MR ROBSON: Just as long as I'm given the opportunity to have sufficient time to prepare, you know, proper submissions and file.
PN822
THE COMMISSIONER: I completely understand. I certainly wouldn't be suggesting for one moment that someone would be - - -
PN823
MR ROBSON: Yes.
PN824
THE COMMISSIONER: There will be any attempt by me to stop people arguing their case or - - -
PN825
MR ROBSON: Yes.
PN826
THE COMMISSIONER: If they need to I won't prevent them from doing it. The feeling I get in terms of what we're trying to achieve, is to get as much conversation happening with a view to limiting - - -
PN827
MR ROBSON: Of course. I - - -
PN828
THE COMMISSIONER: The issues in dispute and the arbitrations that are necessary. So to that extent that's where these conferences have been aimed at, so - - -
PN829
MR ROBSON: I completely understand that, Commissioner. I suppose it's a bit hard when ostensibly you're the only person to have made substantive claims. I suppose it's really in the hands of the other parties if they would like to talk to me about what I've put.
PN830
THE COMMISSIONER: Yes. Perhaps I'll ask the other parties. Would the other parties like to talk on the Friday, the 28th - at some point after the technical matters, would the other parties like to explore some of the substantive matters that have been raised by United Voice with a view to assisting them move forward?
PN831
MS THOMSON: It's Ms Thomson here, Commissioner. It would be my preference, though of course we are in the Commission's hands, to perhaps have another conference in relation to the technical or drafting issues, merely because there appear to be quite a few of those issues which may yet end up in the substantive claims basket and we may not have a complete solid landing on that in advance of the next conference.
PN832
THE COMMISSIONER: So you'd prefer to do one at a time, finish the technical and then start?
PN833
MS THOMSON: Not necessarily finish, Commissioner, just perhaps have one further conference.
PN834
THE COMMISSIONER: More, all right.
PN835
MS THOMSON: Or a further discussion.
PN836
MR ROBSON: I certainly think that's sensible. Maybe we ought to actually work out what are the substantive matters because it seems there has been some dispute over the technical and drafting status of some thing today, and maybe if we can put them all together on the table as substantive or not substantive and then we can discuss everything one once and not, you know, discuss my items and then, you know, we work out a little further down the line that there's some things that we probably could have also discussed in that context. But I'm happy to have these matters conciliated if that's possible.
PN837
THE COMMISSIONER: We'll list it on that Friday the 28th, in the morning. There are a number of technical and drafting matters that are still on the table. If in the meantime there are some matters that are quite clear to the parties, should be on the substantive side of things, or vice versa, then perhaps notify the AMOD team and we can go from there, but we'll continue with the conferences only in terms of technical and drafting, at this stage, I think.
PN838
MS THOMSON: Yes.
PN839
THE COMMISSIONER: All right. Anything else from any of the parties before I adjourn?
PN840
MS WILES: Commissioner, it's Ms Wiles here.
PN841
THE COMMISSIONER: Yes?
PN842
MS WILES: It's probably a question to United Voice, just in relation to the substantive matters, it's a question of clarification really. So the claim I understand that the claim in relation to Saturday work has been withdrawn but in terms of the claim to do with clause 22 overtime, is that claim still pressed by United Voice?
PN843
MR ROBSON: Yes, these are the clauses for which we filed draft determinations in November last year, I believe November.
PN844
MS WILES: It's got "marked."
PN845
MR ROBSON: Marked.
PN846
MS WILES: Of 215.
PN847
MR ROBSON: Yes, these are still pressed.
PN848
MS WILES: And I asked that because I unless I can't see it. I don't think there is a draft determination for the overtime claim. So I got a bit confused. I didn't know whether - - -
PN849
MR ROBSON: No, that's all right. Can I come back to you and confirm that?
PN850
MS WILES: Sure. Great. Thank you.
PN851
THE COMMISSIONER: All right. If there's nothing else then, thank you, and I'll see you on the 28th.
PN852
MS WILES: Thank you for your assistance, Commissioner.
ADJOURNED UNTIL FRIDAY, 28 APRIL 2017 [5.05 PM]
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/other/FWCTrans/2017/154.html