PN197

JUSTICE ROSS: Good afternoon. I'm sorry for the delay. Do I have Mr Rizzo for the ASU?

PN198

MR M RIZZO: Yes, your Honour.

PN199

JUSTICE ROSS: And Mr Ferguson for Ai Group?

PN200

MR B FERGUSON: Yes, your Honour.

PN201

JUSTICE ROSS: With Ms Lawrence, and - sorry, I've got Mr Izzo with Ms Lawrence, is that right?

PN202

MR L IZZO: Yes, your Honour.

PN203

JUSTICE ROSS: And I can see Ms Lawrence, and I've got Ms Ismail for the ACTU?

PN204

MS S ISMAIL: Yes. Good afternoon, your Honour.

PN205

JUSTICE ROSS: Good afternoon. Thank you. Well, I suppose the - I'll put the short question to you, Mr Ferguson. Has peace broken out, at least in the short term?

PN206

MR FERGUSON: I think that's the right way to put it, your Honour. We've had some discussions, usually directed at more enduring changes to the award. We're certainly not there yet on that point, but we have reached a consent position in relation to the need to vary the award to extend the schedule, schedule I, until 29 March. So there's more to address you on, but one issue that falls from that is ideally we're seeking some guidance as to perhaps the most efficient way to progress that, given obviously that's a change that both ACCI and Ai Group will press.

PN207

JUSTICE ROSS: Well, let's look at that first. Mr Rizzo, is that your understanding that the ASU either consents, or however you want to frame it, doesn't oppose the extension of schedule I until 29 March?

PN208

MR RIZZO: That's correct, your Honour.

PN209

JUSTICE ROSS: So going back to your question, Mr Ferguson, how do you progress that proposition. Probably the easiest way is a - yes, let me just - look, I think rather than putting you to any further trouble I would suggest the - look, I'll talk to my colleagues. Sorry, I'm just thinking out loud for a moment. Probably I'll take to my colleagues, DP Clancy and Commissioner Bissett. I have a five-member Bench that's broader that deals with the enduring question but a subset of that Bench is the Bench that dealt with the earlier variation of the clerks' award. Ill take to them. My thinking would be to put out a short statement indicating - following from a conference today that it is agreed between Ai Group, ACCI and the ASU that the term of the current schedule be extended to 29 March.

PN210

I would be putting to my colleagues that we express the provisional view that on the basis the term of the schedule be extended. Because of the nature of modern awards, they not being respondent-based in the same way as they have been in the past, we'd provide a short opportunity for any other interested party, if they wish to content that provisional view, and I would indicate that if thee are no submissions opposing then we would vary the schedule accordingly. That's probably the cleanest way, Mr Ferguson. I'm happy if anyone has a different view about how we might do it but that seems to be - the alternative would be you put in an application, et cetera.

PN211

But I think we're all probably a bit over the application process. I don't think there is any need, really, in the circumstances to do anything more than what I've just indicated.

PN212

MR FERGUSON: I'd appreciate that approach, your Honour. It also has the benefit of giving employers and employee as much certainty as quickly as possible.

PN213

JUSTICE ROSS: Yes, absolutely - can I just check, perhaps with you, Ms Ismail - are you in this as well; that is do I say that at the conference today the Commissions was advised that the ASU and ACTU had reached an agreement with Ai Group and ACCI to the effect of which was to extend the term of the current schedule to 29 March next year?

PN214

MS ISMAIL: I think the preferred words, from our perspective, would be that there is no opposition from the ACTU and the ASU, if that's possible.

PN215

JUSTICE ROSS: No, I simply reflect what you say. I mean, our provisional view would remain the same; that is to extent it, noting there was no opposition from ASU and ACTU and noting the support for that position from Ai Group and ACCI. That's fine. I'll take care of that, the paperwork, later on this afternoon. It may not be published till tomorrow, depending on my colleagues' availability and where the discussion goes with them, Mr Ferguson. That then brings us to the question of the survey and not only the survey but I had intended to ask you, in any event, once we got through the survey content question to put to all of you a question about, well, directions for how we're going to bring the matter to some conclusion.

PN216

By that, I mean a conclusion around a more enduring solution to this issue. I think the survey issue is a bit complicated by - at least it was my recollection that there was an intention, I think certainly by ACCI, to conduct a survey of its members in any event. So that might affect the, "when", question. I'm also conscious that if - let's assume for the moment that the current schedule is extended to 29 March. That on the face of it provides at least some outer period of time within which to hear and determine any argument about what an enduring solution might look like.

PN217

On the face of it it also provides more time within which to conduct a survey. I think tit's still desirable to finalise what the survey might look like. But I think there are a couple of issues: there is finalising what the survey might look like, then there is looking at the, "when should the survey run?" That's in part - there may be utility in either - I think you're in either one of two camps: you either look to finalise the content and put the survey in the field relatively quickly or you might want to hold it until early February to run it.

PN218

I say that because you've got in that interim period - there are arguments for and against this, almost whichever way you look. I'll hear from each of you in a moment. But on the one hand it might be said that it depends a bit on when ACCI, I suppose, intended to run its survey anyway. If it's run in early February then you still get a look at current practices and what people are doing. It might be seen as being more contemporary in the sense of closer to any argument or decision point around what an enduring solution looks like.

PN219

But it really depends on what you think within the employer membership, whether they would be wanting to do it sooner or not.

PN220

MR FERGUSON: Your Honour - Mr Ferguson - I think there is one other variable in this and that is the negotiations around more enduring variation. I think there is a shared view amongst the employers that there is merit in proceeding with a survey. It is an issue of timing and content. But I think the view was that we have actually got some discussions with the unions scheduled for later this week. The view was that if that provides some greater context around perhaps what unions might be seeking for more enduring changes, then there is probably merit in postponing the finalisation of the content of the survey, until after we have a better picture of that, just in case - - -

PN221

JUSTICE ROSS: There is something you want to ask?

PN222

MR FERGUSON: Yes, that's right - if it shifts the focus, at all - - -

PN223

JUSTICE ROSS: Yes, I understand that. I suppose my anxiety is this, that I don't want - the temptation is always to think that, well, let's assume however one describes it - consent or non-opposition - let's assume that is given effect to and the schedule is extended to 29 March. The natural human response to that is, "The pressure is off and we don't need to." But if I've learnt nothing but this from the four-yearly review, it's that time moves much more quickly than you think and I don't really want to be in a position where we're sort of continually pushing out because, well, as you would all appreciate, once you get beyond the end of March, at least three of you - three of the organisations - are into the annual wage review as well and they're always other things that then start to take precedence.

PN224

So my concern is more - I see the force of what you say that there would be utility in giving further thought to what might be in the survey. I just don't want those discussions to drift into February of next year, that's all, Mr Ferguson.

PN225

MR FERGUSON: No, and, your Honour, I'm probably again based on the history of this review and the last not so nave as to assume that we will necessarily reach total agreement on matters, even if we do reach some level of agreement. So I think both employer parties are keen to potentially progress the survey but I think it's worthwhile at least seeing what the scope of this agreement is before we proceed with that.

PN226

JUSTICE ROSS: Yes.

PN227

MR FERGUSON: But I take your point, your Honour, that we don't want it to drift. We're conscious that, you know, the Christmas period and January period might be hard to get survey responses as well.

PN228

JUSTICE ROSS: Yes. No, I agree with that. Well, if the proposition is that essentially, as I understand what you're saying, Mr Ferguson, that you would see the outcome of today's conference essentially being that the Bench will put out a statement along the lines that I've indicated, which would in a relatively short space of time result in some clarity around the operative date, and if we work on the operating assumption, it would be that the schedule would extend until 29 March next year. You want to have - you've got discussions towards the end of this week with the unions around the discussion about what an enduring solution might look like, and look, I mean I share your view that whilst one would always hope for an agreement as a result of that process, it may not be a complete agreement but at least you'll know what the framework is that we're working within, even if you have issues that you want to pursue but the unions don't agree to at the moment, and they have matters that you're not in a position to agree to at the moment. At least we know what everyone's position looks like. I don't feel any particular need to want to lock any party in to a particular claim at this stage. I think it's probably worthwhile to continue to have the dialogue, because I think as soon as you start with a formal claim process, it can have a capacity to limit flexibility in your negotiating position as you go forward. But I think it's desirable to move at some point in the not too distant future to perhaps finalise the content of the survey, and then have a discussion also about when it's anticipated it should be in the field.

PN229

But it may be that the best course, given all of that, is - and I'll put this to each of you and we'll go around the table, as it were - that we'll go ahead with the statement, as I indicated. I'd reconvene a further conference, probably around the middle of next week, and then see if - at that point what I'd be looking to do, and we'll test whether that's sufficient time as we go around, but I'll at least convene a further conference either next week or at some time shortly thereafter with a view to finalising the survey instrument and what you want to say about that, and canvassing your respective views about when that instrument should be administered, when is the survey period going to be, and also at least starting the process of what do the directions look like for the hearing and determination of this matter. Is that broadly what you're seeking, Mr Ferguson? Is next week when you would see us coming back, or do you have a feel for that or not?

PN230

MR FERGUSON: Yes, I think there's utility in coming back next week (indistinct) - - -

PN231

JUSTICE ROSS: Yes. Whether we're able to wrap it up next week we'll wait and see.

PN232

MR FERGUSON: I think that's the thing. There's a big variable about where the unions are at, and Ms Ismail can probably address that. So I think there's merit in coming back to keep the matter moving. The other issue will be whether there should be further discussions and whatnot, depending on how Thursday goes, but I'm keen to come back and just, you know, keep the ball moving, so to speak, your Honour. Yes, I think we're just in the other parties' hands to some extent.

PN233

JUSTICE ROSS: Yes, okay. Well, let's - was there anything you wanted to say, Mr Izzo or Ms Lawrence, before I go to the ASU and ACTU?

PN234

MR IZZO: Nothing to indicate any opposition to that course of action, your Honour. We would be more than comfortable with that. I think you did encapsulate what ACCI's intention has been all along, which is that we were intending on conducting a survey of members this year. We effectively paused that to be subsumed into the Commission's process because of some comments that have been made and the statement issued by the Commission. From our perspective, we do want to survey the members. We think there's merit in AIG and ACCI doing it together, if that's possible, sometime - you have to see where the various parties land, but I think to the extent that we can do that, that will be good. To the extent that it's facilitated by the Commission, we're open to that course of action. So I think the process that has been suggested aligns with ACCI's intention, and I think it would be ACCI's desire to finalise the content of the survey certainly in the coming weeks so that we can then look to conduct it, whether it is this year or next year, and it may be that time's against us for this year, but at least once we've got the survey we know when we can schedule it, and that gives members more of an opportunity to put it into their comms timetables as well, because one of the challenges for ACCI in particular is we'll be using State Chambers primarily to send out the survey. Each of them will have different distribution calendars, and so it may suit our purposes to do the survey mid‑January to early February, something like that. We'll just have to see where things play out next week.

PN235

JUSTICE ROSS: All right. In terms of the time, I'd probably look at Wednesday the 18th at 2 pm, just to give you a sort of 10‑day run at the discussions. I'll check with you now, Mr Ferguson, and with you, Mr Izzo, and then I'll go back to the ACTU and ASU. Do you have any issue with that time?

PN236

MR FERGUSON: No, that works, your Honour.

PN237

JUSTICE ROSS: All right. Mr Izzo?

PN238

MR IZZO: I don't know about Ms Lawrence's availability. Are you available, Ms Lawrence?

PN239

MS LAWRENCE: Yes.

PN240

JUSTICE ROSS: Okay. Thanks, Ms Lawrence. Well, let's go to the ACTU, then the ASU. So Ms Ismail, I'll put out the statement that I've indicated, and the proposition is that we come back at 2 pm on Wednesday the 18th, and I think it would be desirable at that point to finalise the survey instrument and then I can get an indication from all the parties as to what the next step in the process is, and it may be further discussions between the parties. You may want some facilitation at those, you may not at this stage, or you may have in mind some directions, but that's what - for my part, if this makes sense, I want to proceed reasonably quickly but slowly. By reasonably quickly, I want to try and finalise the survey instrument, move that off our desk, as it were, and I'm conscious of wanting to keep the matter moving, but I don't want to be precipitous in issuing directions about filing claims or anything of that nature whilst there's some life left in the discussions between the union and employer groups.

PN241

MS ISMAIL: Yes. Thank you, your Honour. I think there's some merit in hastening slowly in this situation. You would have seen the media. We have made some progress around some principles in this space, but there's a gap between principles and where we need to be, and both the ASU and the ACTU are going through their internal processes around that. Obviously this is a matter for the ASU in front of us now, but there are broader implications that we're grappling with and so we do need a bit of time to work through those issues. But I think the pathway that has been set out is a sensible one, subject to the views of the ASU.

PN242

JUSTICE ROSS: Thanks, Ms Ismail. Mr Rizzo, are you content with what has broadly been outlined, that look, we'll come back Wednesday of next week, and that's intended to give you a further opportunity to have a dialogue with the employers and see what the scope of the issue looks like, and that would then inform the survey instrument, which hopefully we could then conclude what that looks like next week, and then it gives you all an opportunity to reflect on what the next steps might be in this process?

PN243

MR RIZZO: Yes, your Honour, thank you. There are a number of things: (1) yes, I can attend at 2 pm on 18 November next week.

PN244

JUSTICE ROSS: Thank you.

PN245

MR RIZZO: Yes, I think we should finalise the survey at that point if we can. As to when the survey should go out, whether it be this year or next February as was discussed earlier, I'm not sure but essentially I'm sure the employers can sort that one out.

PN246

JUSTICE ROSS: Yes.

PN247

MR RIZZO: The other issue, your Honour, as a specific issue here and that is that we have largely agreed to the extension of the schedule because we wanted the unions and the employers and also the Commission to consider what we've now termed as the enduring solution to working from home in a more considered fashion, rather than being truncated between now and 30 November. No one wanted that. This, as you know, your Honour, is a huge issue in society now. We want to get it right. so we want the opportunity to meet with the employers on a number of occasions and see if we can't come to some consent position or at least some common ground.

PN248

That is what we intend to do and Mr Ferguson has already indicated to you we're meeting Thursday afternoon on this issue. So that is the desire of the ASU, that we keep talking to our members, to our branches. We keep consulting with the ACTU, obviously, because they have a very particular interest in this issue. We keep talking to the employers and hopefully come to the Commission with an agreement or let's say a near agreement in the next little while and that will be our desire.

PN249

JUSTICE ROSS: Look, I think it's a very sensible approach if I might say so, Mr Rizzo, to give yourselves a bit more time and space in which to sort through these issues. It's a complex question. We're also getting some recent reference list together. We've commissioned a couple of researchers to try and gather some information about this issue that might also assist and inform the process. But certainly from my own perspective, the more closely I've looked at it the more complexity comes into it. I certainly didn't have any desire to try and sprint to the finish line and come up with some sort of finished product by the end of November. The other thing I'd like you to collectively think about is this is an evolving issue and when I've referred to a sort of a more enduring solution, I think I've inadvertently given you the wrong impression.

PN250

I meant that really an award provision that would operate beyond the short-term scope of changes that were necessary in order to deal with the restrictions imposed by the pandemic, I think I'd encourage you to think about whatever solution you come up with and then if it's not agreed in totality and issues have to be determined, whatever solution emerges from that process, there may well be merit in building in some sort of re-examination of it after time and perhaps even having a further survey 12 months down the track to see how it's working in practice, because with the best will in the world we'll try and come up with a fair, balanced and relevant term.

PN251

But I think many businesses and many employees are going to be in a position where their circumstances are going to evolve as we try and manage some form of return to normality, whatever that looks like, post the pandemic. So I doubt if we will have transitioned completely by the time we get to the end of March and it may be what the world looks like then is quite different to what it might be required to look like in 12 months' time. So it's really a long way of saying that I think in using the word or the expression, "enduring solution", I didn't want you to think that I had in mind some rigid provision that would be operating in perpetuity.

PN252

I think there is some value in thinking about this as a term that can then be re-examined in the light of everyone's experience after whatever period of time and it's always a balance. You want to provide some certainty but you don't want it to go for a decade before anyone looks at it. Somewhere in that space and that might also give all parties a bit more comfort in entering into a degree of agreement around these matters, knowing that the agreement might not lock them in forever but might be the subject of a re-examination 12, 18 months or so down the track.

PN253

So if I can leave you with that thought, but it seems to me there is general agreement about the statement that I mentioned and that the parties continue to have discussions, that you seek to narrow the issues between you, that we will reconvene on Wednesday the 18th at 2 pm and hopefully at that point we will finalise the survey instrument and then hear from the employer parties about - as Mr Izzo put it - when it might be run but at least then you'll know what the instrument looks like and we can have a further discussion about what the next steps might be in this process. Is there anything final from any party before we adjourn? No?

PN254

MR RIZZO: Your Honour - - -

PN255

JUSTICE ROSS: Yes, Mr Rizzo.

PN256

MR RIZZO: Just quickly, your Honour: I'm somewhat comforted by your expression that when you talk about an enduring solution that that could be subject to review down the track as well as things change, because as we know, every few weeks, every few months in this space recently, everything changes quite quickly. So, yes, if we did come to some resolution early in 2021, it probably would be worthwhile to have a look at it at the end of 2021 or the beginning or 2022 or something like that, to make sure it's still applicable and relevant. So I welcome that sentiment, your Honour.

PN257

JUSTICE ROSS: Look, it also protects each of you, to some extent, about whatever you might land on. It's unlikely to fully satisfy - if history is any guide - your constituents. Agreement usually involves a degree of compromise and it can make that path much easier for you internally if it's against the knowledge that, well, we'll be reviewing the position in the light of experience in whatever period of time. Again, I think it has to be a reasonable period to provide some stability and also to find out what is actually happening in practice and what is needed by both parties.

PN258

At the same time, you know, you don't want it to - this is an evolving situation. I'm sort of getting daily messages and information from different businesses, from our own employees, but different parties we interact with about how their plans are sort of changing and what that might mean and what it might look like. So I think we want to have some flexibility but try and marry that up with a degree of stability so we get some useful data about what actually happens. Well, reflect on all of that and I'll leave you to get on with it and I'll get on with drafting the statement and talking to my colleagues.

PN259

We will look to get that out either today or early tomorrow with a view to providing a short opportunity for submissions and looking to wrap that up by the end of the week so you've got some certainty for your discussions as well. Thanks very much for the level of agreement you have reached today and I wish you well in your discussions on Thursday and I'll see you next Wednesday. Thanks, we're adjourned.

ADJOURNED UNTIL WEDNESDAY, 18 NOVEMBER 2020 [2.38 PM]