PN1

VICE PRESIDENT HATCHER: Can I take appearances? In no particular order, Ms Sostarko, you appear for the MBA?

PN2

MS R SOSTARKO: Yes, your Honour.

PN3

VICE PRESIDENT HATCHER: Ms Adler, you appear for the HIA?

PN4

MS M ADLER: Yes, your Honour.

PN5

VICE PRESIDENT HATCHER: Mr Maxwell, you appear for the CFMMEU and the AWU, I think. Mr Maxwell, your microphone's not on.

PN6

MR S MAXWELL: sorry, your Honour. Yes, your Honour, I do.

PN7

VICE PRESIDENT HATCHER: Ms Paul, you appear for AiG?

PN8

MS V PAUL: Yes, your Honour.

PN9

VICE PRESIDENT HATCHER: And Ms Abousleiman, you appear for the CEPU.

PN10

MS Y ABOUSLEIMAN: Yes, your Honour.

PN11

VICE PRESIDENT HATCHER: All right. Just before we start, you should have received an email about 15 or 20 minutes ago from the Commission. Have you seen that?

PN12

MS SOSTARKO: Yes.

PN13

MS ADLER: Yes, your Honour.

PN14

VICE PRESIDENT HATCHER: All right. We'll raise that as we go, but who would like to go first? Ms Sostarko?

PN15

MS SOSTARKO: Your Honour, I'm happy to start off, yes.

PN16

VICE PRESIDENT HATCHER: All right, good.

PN17

MS SOSTARKO: Thank you, your Honour. Your Honour, we're not entirely certain how the Commission wanted to proceed today, but I'm hoping that the Bench and the parties have received an overview of our submissions this morning, which we thought might just assist the process.

PN18

VICE PRESIDENT HATCHER: Yes. Yes, we have seen that.

PN19

MS SOSTARKO: Thank you, your Honour. I'm happy to provide an overview of those submissions if you like.

PN20

VICE PRESIDENT HATCHER: Yes.

PN21

MS SOSTARKO: In summary, the issue derives today from a revision that was made by the Full Bench to the distant work travelling entitlements within the on-site award, which is current clause 25.4, during those award stage proceedings.

PN22

We would submit that the revised clauses have resulted in some uncertainty with respect to the circumstances in which the distant work travel allowance is to be triggered. We note that during those award stage proceedings submissions were made by a number of the employer parties, including Master Builders, seeking to amend elements of then clause 25.

PN23

Those submissions included but were not limited to claims that the notion of radial areas was outmoded and should be removed or extended. Several employer parties also submitted that the allowance shouldn't be payable in circumstances where the employee was either absent from work, required to start, finish at a depot, workshop or a yard or provided with a vehicle, transport of accommodation on site.

PN24

In addition it was submitted by some of the employer parties that clause 25 was overly complex and a source of confusion amongst award users. It should be noted that during those proceedings no union party sought to make amendments to clause 25.

PN25

So taking you back to the decision of 26 September 2018, quite some time ago, at paragraphs 181 to 183 of that decision, the Bench determined not to remove or extend the radial areas under the award, however did hold that it couldn't identify any legitimate rationale for payment of the distant work allowance in circumstances where the employee is absent from work, including for leave or on an RDO, when they are provided with free transport by the employer to and from site, provided with a fully maintained vehicle to travel to and from site or not required to start and finish work at the site but rather at another fixed location, meaning that actual travel to and from the site occurred in paid working time.

PN26

So in addition then, at paragraph 184 of that September 2018 decision, the Commission determined that clause 25 was unnecessarily complex and that it should be varied so that the fares and travel pattern allowance and other travelling time entitlements were simplified. Following on from this, in that same decision, at paragraph 184, the Bench published a revised version of clause 25 to give effect to those changes as referenced within the Full Bench's decision.

PN27

The redrafted provision was then issued by their determination and that, of course, took effect, along with a raft of other changes to the on-site award, on 1 July 2020. While the revised provision was significantly less complex than its predecessor, after the changes took effect we received notification from a number of members that were somewhat confused about the interpretation of clause 26.4(a)(ii) of the on-site award.

PN28

This confusion was derived from the new distant work allowance provision being interpreted by some members as no longer simply being payable from the radial boundary to the distant worksite and return but, save for some very specific exclusions, from the employee's home and return, and it would appear that that confusion is derived from the removal of reference to the words from the previous clause 25.2(b) "in respect of travel from the designated boundary to the job and return to that boundary".

PN29

So on its face, therefore, this could be interpreted as giving rise to an additional entitlement, as previously the distant work allowance clearly only applied for travel from and beyond the radial boundary and return, and if this ‑ ‑ ‑

PN30

VICE PRESIDENT HATCHER: Ms Sostarko, can I just pause there?

PN31

MS SOSTARKO: Certainly.

PN32

VICE PRESIDENT HATCHER: Is the underlying logic of that position that the payment in paragraph - so the allowance in 25.1 effectively compensates you for the travel within the radial boundary, or the first 50 Ks, and then you say ‑ ‑ ‑

PN33

MS SOSTARKO: Correct, your Honour.

PN34

VICE PRESIDENT HATCHER: ‑ ‑ ‑ (indistinct) paid for what's in addition to that?

PN35

MS SOSTARKO: Yes.

PN36

VICE PRESIDENT HATCHER: Is that the underlying logic of it?

PN37

MS SOSTARKO: That's correct, your Honour. That's absolutely right, and ‑ ‑ ‑

PN38

VICE PRESIDENT HATCHER: So is it your concern, in effect, that you don't get paid twice by getting the 25.1 allowance for the first part of the travel and then getting paid for the whole of the travel, which would mean, in effect, a double‑counting. Is that the essence of your position?

PN39

MS SOSTARKO: Absolutely, your Honour. That's exactly our argument, yes.

PN40

VICE PRESIDENT HATCHER: Right, okay. Go ahead.

PN41

MS SOSTARKO: That's right. Thank you, your Honour. So therefore, as you say, we would submit that if that interpretation were to be applied, it would result in a double‑dip outcome, being that the employee would now receive both the conventional, as you say, travel allowances, as well as the distant work allowance.

PN42

It's important to note that we submit that the current - that particular interpretation, we would submit, is by no means intentional, and although the revised travelling time entitlement provisions are significantly less complex, we submit that clarification is sought as to their correct interpretation.

PN43

It's worth noting, in addition, that during the award stage proceedings that the unions concurred with the conventional - what we would say is the conventional interpretation of when the distant work allowance is payable, and we would continue to submit that this is the correct interpretation of how that is the case.

PN44

In submissions during the award finalisation proceedings to that Full Bench, Master Builders and HIA both proposed similar but slightly different solutions to address this anomaly within current clause 26.4. Our proposed clarification, which is presented within our outline of submissions we filed this morning, doesn't seek to, by any means, reduce the entitlements of employees but merely resolve the ambiguity which is clearly now confusing award users.

PN45

Otherwise, if there's nothing further, those are our submissions this morning, your Honour.

PN46

VICE PRESIDENT HATCHER: In the document we sent you, Ms Sostarko, you'll see there's two options. Perhaps option 2 is a redrafted version of what you've proposed, but can I just take you to the first option?

PN47

MS SOSTARKO: Yes.

PN48

VICE PRESIDENT HATCHER: That is in effect saying you would be paid the distant work payment for the whole of the distance but you would not (indistinct) 25.1 allowance. That's another way of avoiding the double‑counting, which would, on my view, be the simplest form of doing it. Do you want to express a view about that?

PN49

MS SOSTARKO: If you don't mind, your Honour, I've just been handed a full copy. If the other parties wish to make any submissions, if you don't mind, I'll just take that question on notice and come back to you shortly once I've had a chance just to digest that.

PN50

VICE PRESIDENT HATCHER: Yes.

PN51

DEPUTY PRESIDENT GOSTENCNIK: And, Ms Sostarko, you need to read what is under option 1 and option 2, both, with the amendments that are proposed to 25.1(b).

PN52

MS SOSTARKO: Yes, thank you, your Honour.

PN53

DEPUTY PRESIDENT GOSTENCNIK: They would apply in respect of both versions.

PN54

MS SOSTARKO: Thank you, your Honour.

PN55

VICE PRESIDENT HATCHER: All right. Ms Adler, do you want to go next?

PN56

MS ADLER: Thank you, your Honour. Having read Master Builders' outline of submission and hearing Ms Sostarko's oral submission this morning, we would support those submissions. I would just note that HIA made a submission regarding the same issue on 26 October. The position and issue is outlined in those submissions at paragraph 2.11.5 and point 6, noting that we also proposed a solution, again, slightly different terms from Master Builders.

PN57

We have also, since the commencement of that variation in July, received feedback from members that the provision is unclear and seeking our view on what the appropriate application and interpretation of the provision is, and as Ms Sostarko has outlined, we are just seeking clarity regarding the application of the provision.

PN58

We also submit that it was not the intention to substantially change the operation and effect of that clause, noting that HIA did, in our December 2016 submission, submit a draft determination for consideration by the Full Bench. We note that that proposal, while - considered in terms of the redraft, it's noted in the decision that the Commission primarily took into account the way existing clause 25 was drafted, in terms of coming to a view about a reformulated fares and travel patterns allowance.

PN59

Unless the Bench has any questions, that's all I wish to add.

PN60

VICE PRESIDENT HATCHER: All right, thank you. Ms Paul?

PN61

MS PAUL: Yes. Your Honour, we would simply be supporting the submissions put by the MBA and HIA in this regard.

PN62

VICE PRESIDENT HATCHER: All right, thank you. Mr Maxwell?

PN63

MR MAXWELL: Thank you, your Honour. Your Honour, the CFMMEU and the AWU do not support the variations sought by the MBA. The current clause 25.4, or 26.4, as it's in the new version of the award that came into force today, was determined by a construction awards Full Bench and is based on the clause proposed by the HIA (indistinct) J of its 2 December 2016 submission.

PN64

The clause does not limit the payment of the travel time in kilometre payments to travel from a 50 kilometre boundary. This is the way the clause has been interpreted by the CFMMEU and others since the original 26 September 2018 Full Bench decision in (2018) FWCFB 6019 and the variation determination PR715 to 725 issued on 20 March 2020.

PN65

During the initial Full Bench proceedings, and speaking to the proposed variation, Ms Adler for the HIA said on 3 April 2017 at PN72:

PN66

Finally, we propose to amend the current distant work condition to condense a number of subclauses that rely on the radial areas mentioned at the outset. Under the proposed revision, an employee - under our proposed revision, I beg your pardon - will be entitled to payments for time spent in travelling and other expenses when they travel more than 50 kilometres from the employee's usual place of residence.

PN67

That is what the clause provides. There is no suggestion that the payments only apply to the distance travelled after or in excess of 50 kilometres.

PN68

When Ms Adler was questioned by Deputy President Gostencnik on the HIA proposed clause on 11 April 2017 the following exchange occurred, and this is found in PN4690 to PN4707. During the exchange they discussed a hypothetical employee who lived at Mount Eliza and who travelled to Kinglake, and at PN4698 the Deputy President said the following:

PN69

So, yes, they would receive the allowance under 25.1 and that distance is more than 50 kilometres from Mount Eliza to Kinglake.

PN70

MS ADLER: Is it more than 50 kilometres?

PN71

DEPUTY PRESIDENT: Yes, it is.

PN72

MS ADLER: Okay.

PN73

DEPUTY PRESIDENT: They would also receive the distance, subject to the exclusion - let's assume this is not their first engagement. They would also receive the 25.3 allowance.

PN74

MS ADLER: Yes.

PN75

DEPUTY PRESIDENT: Which is more than what the award currently provides.

PN76

MS ADLER: Is it more than the current award?

PN77

DEPUTY PRESIDENT: It is more than what the current award provides.

PN78

MS ADLER: Okay. I'd have to take that notice to double‑check it, but if that's the proposition that you're putting, then it might be I couldn't disagree with it.

PN79

VICE PRESIDENT HATCHER: Mr Maxwell, just so I follow all that, where were those locations? They're Melbourne locations, I gather, are they? I know where Kinglake is. Where's Mount Eliza?

PN80

MR MAXWELL: My understanding is Mount Eliza is in the eastern suburbs.

PN81

VICE PRESIDENT HATCHER: Okay, right.

PN82

MR MAXWELL: North of Melbourne.

PN83

VICE PRESIDENT HATCHER: So it's from a place within the Melbourne radial zone to a place outside the radial zone. Is that what it is?

PN84

MR MAXWELL: That's correct, yes. The CFMMEU has always recognised that employees would be paid more under the HIA proposed clause than under the previous arrangement. That the employers failed to recognise the size of the increase is not the fault of the CFMMEU and is, we submit, insufficient justification to now vary the award. Should the Full Bench, however, decide to vary the clause, then we would wish to say further in regard to the actual variation that should be made.

PN85

DEPUTY PRESIDENT GOSTENCNIK: Mr Maxwell, can I ask you this. Does the CFMMEU accept that an employee shouldn't receive compensation for travelling a distance for which compensation is already paid?

PN86

MR MAXWELL: Your Honour, if I can perhaps put it this way. The CFMMEU believes that employees should be fairly compensated.

PN87

DEPUTY PRESIDENT GOSTENCNIK: So if you look at the document that the Full Bench circulated this morning, if I take you to option 2 ‑ ‑ ‑

PN88

MR MAXWELL: Yes, your Honour.

PN89

DEPUTY PRESIDENT GOSTENCNIK: So under that option the employee - I'll withdraw that. I indicated earlier that the amendment to 25.1 would apply to both. It would only apply to the first option. I misspoke earlier. Under that proposal the employee would receive their - assuming they didn't start in a circumstance where 25.4(c) applied, in all other respects that they were engaged on a site within the radial area and then they are told to work at a site that's outside the radial area.

PN90

Under that proposal, under option B they would receive the travel allowance under 25.1 as usual, and in addition they would receive the allowance in 25.4(b), but only for that additional travel period. That is, so if they start inside the radial area and they have to travel 20 kilometres to the radial area, they wouldn't be paid for that distance or time. They would only get paid for the actual travel or the distance between the radial area and the site, whichever's the greater.

PN91

MR MAXWELL: Yes, your Honour. Your Honour, for my reading, the option 2 is perhaps a rewrite based on the previous clause of the award, in that they only receive the payment for the travel and kilometres that are in excess of the 50 kilometres.

PN92

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN93

MR MAXWELL: Yes, I understand that. Your Honour, I ‑ ‑ ‑

PN94

DEPUTY PRESIDENT GOSTENCNIK: Having already received the other payment for within the radial zone under 25.1.

PN95

MR MAXWELL: Your Honour, I recognise that that is more in line with the previous condition that was contained in the award.

PN96

VICE PRESIDENT HATCHER: Mr Maxwell, do you accept this, that if it's either option 1 or option 2, in both cases the worker would be fully compensated for the cost of the travel from the residence to outside the radial zone of 50 kilometres?

PN97

MR MAXWELL: Your Honour, I would suggest that there is a question whether they are compensated under option 2, because that presumes that the $17.43 is adequate compensation for travel within a 50‑kilometre zone - for the first 50 kilometres. We would suggest that given the propensity of tolls on motorways and freeways around the capital cities, that there is a question as to whether that is adequate compensation. We would prefer option 1 to option 2.

PN98

VICE PRESIDENT HATCHER: All right. Anything further?

PN99

MR MAXWELL: The only other thing I would seek to address, that if the Full Bench is mindful to vary the clause, then I would suggest that they also look at 26.4(c).

PN100

VICE PRESIDENT HATCHER: So which numbering are you talking about now?

PN101

DEPUTY PRESIDENT GOSTENCNIK: So that's 25.4(c) in the drafting that's been circulated.

PN102

MR MAXWELL: Yes.

PN103

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN104

MR MAXWELL: (c) provides that, despite paragraph (a), the distant work payment is not payable when at commencement of employment the employee's usual place of residence was more than 50 kilometres by road from the construction site on which the employee was initially engaged.

PN105

It's clear that the understanding of the parties, as expressed during the transcript and also by the MBA's submission that was submitted today, that that only applies for the initial site at which an employee is engaged and it doesn't apply to any subsequent site that an employee is then moved to.

PN106

There is concern that there is ambiguity in 25.4(c), and we suggest that it would be preferable, if the clause is to be varied, that the wording in (c) also be tightened to make it clear that it only applies for the first site that an employee attends and doesn't apply to a subsequent site that an employee then travels to.

PN107

DEPUTY PRESIDENT GOSTENCNIK: So something along the lines, Mr Maxwell, that "This clause applies only for the period during which the employee is engaged on that construction site".

PN108

MR MAXWELL: Yes, but I suggest that we also then say that it doesn't apply to any subsequent site which an employee then travels to.

PN109

VICE PRESIDENT HATCHER: Isn't this clause directed at somebody who might live fairly remotely from a normal working area and nonetheless is prepared to do the travel and the employer accepts them and says, "But obviously we're not going to pay you distant work allowances for travelling to work"?

PN110

MR MAXWELL: Your Honour, it was raised, I think, during the exchange that I referred to with the Deputy President and Ms Adler, that it seeks to address the situation where someone applies for a job knowing that they live outside that 50‑kilometre distance. So in that sense, people don't get a windfall, knowingly applying for jobs that are far from home, however it doesn't then apply to any subsequent site that that employee's then transferred to with the same employer.

PN111

VICE PRESIDENT HATCHER: But using a Sydney example, if a worker living in the Blue Mountains chooses to work for a builder who maybe words in the CBD, the logic of it is, isn't it, that they don't distance work payments at all? That is, it's not just the first job, it's the fact that someone in the Blue Mountains has voluntarily decided to work, you know, in CBD construction sites, isn't it?

PN112

MR MAXWELL: Your Honour, the problem with the clause is that, taking your example, if someone lives in the Blue Mountains and their first job is in the CBD, under the current arrangement they don't get the payment.

PN113

VICE PRESIDENT HATCHER: Yes.

PN114

MR MAXWELL: But if that work is then transferred to a site on the Central Coast, then under the current proposal they would get paid the distant work payments, whereas under what you are suggesting is that they wouldn't get the additional payment if they then worked on the Central Coast.

PN115

VICE PRESIDENT HATCHER: Yes, all right.

PN116

MR MAXWELL: Your Honour, other than that, I have nothing further to say.

PN117

VICE PRESIDENT HATCHER: All right. Ms Abousleiman?

PN118

MS ABOUSLEIMAN: Thank you, your Honour. The CEPU supports the CFMMEU and has nothing (indistinct).

PN119

VICE PRESIDENT HATCHER: So you've got nothing further to add?

PN120

DEPUTY PRESIDENT GOSTENCNIK: You were breaking up a little bit, so ‑ ‑ ‑

PN121

VICE PRESIDENT HATCHER: And your microphone's off now.

PN122

DEPUTY PRESIDENT GOSTENCNIK: And you seem to have frozen as well. Yes.

PN123

VICE PRESIDENT HATCHER: All right. Well, we might have to come back to - I think she said she had nothing further to add. So, Ms Sostarko, do you want to say anything in reply, and also deal with the question on notice?

PN124

MS SOSTARKO: Thank you, your Honour. In response to Mr Maxwell's submissions, I certainly would say that we certainly submit that we have had no reason to believe that there is any ambiguity with respect to 25.4(c). I would reiterate the point that - on two points with respect to Mr Maxwell's submissions.

PN125

As to whether or not the daily fare allowance within the radial area is sufficient, I think is separate to any matters that I would have expected that we'd be dealing with today. Those submissions were not made during the award stage proceedings and we would seek that the Bench confine its consideration to the ambiguity with respect to 25.4(b).

PN126

In terms of the options presented, we certainly think that they go some way to clarifying the ambiguity. As I think I mentioned when I gave a brief outline earlier, we obviously put forward an option, as did the HIA. We don't necessarily have a preference. We simply want (indistinct) ambiguity for the membership ‑ ‑ ‑

PN127

DEPUTY PRESIDENT GOSTENCNIK: Option 1 ‑ ‑ ‑

PN128

MS SOSTARKO: ‑ ‑ ‑ and it's very this morning that the Bench ‑ ‑ ‑

PN129

DEPUTY PRESIDENT GOSTENCNIK: Ms Sostarko, option 1 seems, at least to me, to be the neatest solution, in the sense that you get one or the other, and in the case of distant travel, when that applies you get the actual period of travel.

PN130

MS SOSTARKO: I think that's right and that obviously it's a simple option, your Honour, however I would certainly say that option 2, as Mr Maxwell reiterated, certainly, I think, reflects more what the previous clause gave effect to, and I think for that reason, given that that wasn't the intent, to actually change the interpretation of that previous provision, it would be our preference, I think, if pressed, that actually option 2 be applied for that reason.

PN131

VICE PRESIDENT HATCHER: So that requires some identification of the distance from a notional point somewhere, does it?

PN132

MS SOSTARKO: Yes. So that's - sorry, your Honour, what was your question?

PN133

VICE PRESIDENT HATCHER: If you go back to that example Mr Maxwell referred to of Mount Eliza to Kinglake, so that requires some identification of either a distance from the metropolitan radial area somewhere along the route between Mount Eliza and Kinglake, or the 50 Ks, and then a calculation of that and then the addition of the 25.1 allowance. That seems to involve some complexity, doesn't it? Wouldn't it just be easier to calculate from the employee's home to the site?

PN134

MS SOSTARKO: Perhaps, your Honour, but as I said, all I can say is that when this came into effect, definitely the removal of reference to the boundary seems to be the source of this confusion. There is no question. That provision, although complex previously, it was certainly understood that that's when the distant work entitlement kicked in, and given that you have proposed in option 2 that those words be effectively reinserted, I would expect that our membership will feel more comfortable with that particular amendment.

PN135

VICE PRESIDENT HATCHER: I'm just trying to think of the practicalities of this. Using the Melbourne example again, if it's a location in Kinglake and say your entire workforce is really somewhere in the Melbourne CBD within the radial boundary.

PN136

MS SOSTARKO: Yes.

PN137

VICE PRESIDENT HATCHER: Does that mean that you only have to calculate - you calculate the same amount, that is, on the second option, that additional bit from the radial boundary to Kinglake.

PN138

MS SOSTARKO: Yes.

PN139

VICE PRESIDENT HATCHER: That is, you're calculating the same amount for every single worker.

PN140

MS SOSTARKO: Yes, that's right, your Honour, and that, in our outline ‑ ‑ ‑

PN141

VICE PRESIDENT HATCHER: But often one would require an individualised calculation for different workers and where they live.

PN142

MS SOSTARKO: Correct.

PN143

VICE PRESIDENT HATCHER: All right.

PN144

MS SOSTARKO: Thank you, your Honour, and I thank you for picking up on that point, which actually I didn't reference this morning but actually referenced within our outline of submissions, that that was a secondary source of confusion and issues that we've had, in exactly that point, that now that changed the administration of how employers are having to calculate the entitlements for each and every employee, which is obviously quite burdensome and wasn't the case previously.

PN145

VICE PRESIDENT HATCHER: And option 1 would still require that.

PN146

MS SOSTARKO: Yes, your Honour.

PN147

VICE PRESIDENT HATCHER: Right, okay. Anything further?

PN148

MS SOSTARKO: I have nothing further at this point, your Honour.

PN149

VICE PRESIDENT HATCHER: Ms Adler, do you want to add anything?

PN150

MS ADLER: Thank you, your Honour. I guess just briefly in response to Mr Maxwell's comments, it certainly was not our understanding that the Full Bench had adopted HIA's proposal that was attached to our 2016 submission. Also, if you examine the transcript, Mr Maxwell, in an exchange with Deputy President, does indicate that even under HIA's proposal at that time the distant work payment would only be for the kilometres travelled beyond the 50 kilometres, even under our proposal. For reference, that's at PN4583 from 11 April 2017.

PN151

Just in respect of the two options sent through this morning, our preference would be option 2 also. As Ms Sostarko has indicated, we feel that that would better respond to the issues that we've seen come through since the middle of last year. That's all, your Honour.

PN152

VICE PRESIDENT HATCHER: Thank you. Just for completeness, Mr Maxwell, do you want another go about anything?

PN153

MR MAXWELL: Your Honour, I just wanted to respond in regard to the exchange between you and Ms Sostarko. Even under option 2, it would still require some calculations. You would still have to calculate the distance from the ‑ ‑ ‑

PN154

DEPUTY PRESIDENT GOSTENCNIK: To determine which is the greater distance.

PN155

MR MAXWELL: Yes, from the GPO to the site, construction site, but also from the employee's home to the site, to determine which is the greater. So there's no benefit either way between those. It's really - well, given that my understanding is that the whole change in the clause was to move away from radial areas to travel based on the distance from the employee's home, then we don't believe the radial boundaries should come (indistinct) based on the distance from the employee's home.

PN156

VICE PRESIDENT HATCHER: Right. I understand. I think I might go back to you, Ms Sostarko. That seems to be right, doesn't it, that if it's the greater of the two amounts then there is a double calculation and potential different calculations for different employees.

PN157

MS SOSTARKO: Your Honour, yes, I need to think that - I need to really think that through, but I'd certainly dispute, though, Mr Maxwell's assertion that the Bench determined to remove any reference to radial boundaries. I recall certainly that that notion was - Mr Maxwell actually reiterated that that was an established principle under the award and that it had existed within the award for a very long time.

PN158

I certainly don't think that it's correct to say that its removal was in any way the intent of the Bench. As I mentioned in my summary of the outline this morning, it was very clear, very, very, very clear, that the intention was to limit when the allowance was applicable, however, the notion of the radial areas being outmoded or, for that matter, be extended, was rejected, however, the Bench determined that it was complex and therefore needed to be simplified.

PN159

So I certainly would argue that that was absolutely not the intention, to remove that reference, and therefore, as I've said earlier, and as Ms Adler has said, it certainly is clearer, there is no question. Whether that administrative burden of calculating from the employee's residence is (indistinct) I would like to be able to take on notice, but certainly our primary concern and point for clarification that we would be seeking today, first and foremost, is that that's very clear, that that double‑dip entitlement doesn't actually exist. That is all I would say, your Honour.

PN160

VICE PRESIDENT HATCHER: All right. I thank the parties for attendance today. We propose to consider what's been put and we'll issue some sort of decision or statement fairly shortly. We'll now adjourn.

ADJOURNED INDEFINITELY [9.40 AM]