PN1

JUSTICE ROSS: If I go through the appearances that I have. Mr Ferguson with Ms Bhatt for Ai Group. Ms Cruden and others for Life Without Barriers. Ms Lo and Mr Lin for the AFEI. Mr Pegg for NDS. Ms Bailey for Leading Age Services Australia, represented by ABI. Mr Redford for the UWU. Mr Scott for ABI. Mr Robson for the ASU. Ms Svendsen for the HSU. Have I missed anybody? No. All right.

PN2

Well, the way we're proposing to proceed this morning is to work our way through background paper 3, so to deal with the issues in the order they appear there. When we have dealt with the matters arising - the last issue in the background paper - the matters arising from the August 2021 decision, we will go to the issue - the remaining issues around broken shifts, which is really the interaction with the shift provisions and the range of matters that we identified earlier that are still outstanding there, other than broken shift allowances. So we'll go to each of you about each of those matters thematically as we deal with them.

PN3

I firstly - is there any questions - are there any questions about any of that? No. All right. I might mark the three statements filed by the ASU as exhibits. I'll mark the witness statement of Mr Fergus John McBeth Manning as ASU3. The statement of Paul McKenzie as ASU4. The statement of Daniel Trickett as ASU5.

EXHIBIT #ASU3 WITNESS STATEMENT OF FERGUS JOHN McBETH-MANNING

EXHIBIT #ASU4 WITNESS STATEMENT OF PAUL McKENZIE

EXHIBIT #ASU5 WITNESS STATEMENT OF DANIEL TRICKETT

PN4

We've provided an opportunity for parties to indicate whether they wish to cross-examine any of those witnesses and no one wanted to take up that invitation. We're proceeding on the basis that parties will make submissions about the weight that we should attach to those statements when we come to deal with the issue to which they relate. All right, perhaps if we can go firstly to the damaged clothing matter which starts at paragraph 19 and following of the background paper, and you should indicate as we deal with each of these issues whether your submission has been mischaracterised or there's an amendment or a correction that needs to be made to the background paper. The only question that we had for you in relation to the background paper on the damaged clothing question appears on page 11, and that was really a question for parties other than ABI and probably we would go to you first, Mr Ferguson, as Ai Group was the proponent of the clause, of the proposed clause, and you will see there that ABI has made some minor drafting changes, and they're set out at paragraph 24. Do you have any objection to those changes?

PN5

MR FERGUSON: Only one, your Honour. I think broadly speaking we're supportive of them, but there's one change that I think gives rise to new difficulties. That's the proposed deletion of the word 'daily' in the second one.

PN6

JUSTICE ROSS: Just bear with me, is that in - if we go to paragraph 24, Mr Ferguson, do you see that?

PN7

MR FERGUSON: Yes.

PN8

JUSTICE ROSS: Is that in the third line in 20.3(a) where they have said, 'Under clause 20.2(b) per' - and they have deleted the words 'day or'?

PN9

MR FERGUSON: No, the preceding reference.

PN10

JUSTICE ROSS: The daily?

PN11

MR FERGUSON: The daily laundry allowance.

PN12

JUSTICE ROSS: Yes, I see. They will be paid the - right.

PN13

MR FERGUSON: And the issue is this, if I can explain it. This clause cross references clause 20.2(b) of the award. Clause 20.2(b) has a number of allowances in it - - -

PN14

JUSTICE ROSS: It does.

PN15

MR FERGUSON: - - - relating to laundry. In particular, and I might perhaps just read the relevant sentence. It's the last sentence of clause 20.2(b). It says:

PN16

Where such employees uniforms are not laundered by or at the expense of the employer the employer will pay a laundry allowance of 32 cents per shift or part thereof on duty or $1.49 per week - - -

PN17

JUSTICE ROSS: Yes, I see that.

PN18

MR FERGUSON: Yes. Our intention had been to make it clear that we're calling up the 32 cents. I think that intention is obvious from an earlier draft, which is set out at page 42 of our submissions where we actually just inserted a reference to the dollar amount, but I think in the conferencing there was a shared view of people that there was some merit in a cross reference. For our part I think we could suggest and interpolate dealing with this and to say after the comma the following words could be inserted: 'The employee will be paid a laundry allowance of $0.32 per shift provided that' - so we could just call up the dollar amount. But I don't sort of want to throw out the one consensus that we have all reached in these proceedings.

PN19

JUSTICE ROSS: Yes. So would it be, 'The employee will be paid a laundry allowance of 32 cents per shift or part thereof'? Is that what you're putting?

PN20

MR FERGUSON: No, I think - the issue is this; it's a per shift amount. The reason why it doesn't quite - the cross referencing (indistinct) - here we're talking an amount that arises each occasion, each shift where clothing is soiled.

PN21

JUSTICE ROSS: Yes.

PN22

MR FERGUSON: So simply on the occasion that it happens on that day you get paid an amount. But when I say 'day' I understand the force of what ABL is putting, there is probably some clarity in saying per shift rather than per day. So we would strike out the second reference to day or shift - to day or.

PN23

JUSTICE ROSS: Yes. So it would be paid a laundry allowance of 37 cents per shift provided that - - -

PN24

MR FERGUSON: Yes, although 32 cents.

PN25

JUSTICE ROSS: Yes, sorry. We will go to the others and see if they have got a view about this, but assuming that's the effect of, or that's the intention of the clause and the cross referencing, and I hadn't proposed to raise this because it seemed to be one of the few areas where the parties have reached unanimity, so I didn't want to blunder into, but I am not a fan of cross referencing allowance amounts, because I think particularly for small employers and for employees they have to go to a different part of the award to find out what is covering them. I accept that in some cases it's desirable because you can't include the whole of the other clause and it gets very repetitive, but in this instance what you propose, if that was the intent of the parties, it seems to be a neater solution to the problem and they wouldn't have to look at another clause to find out the amount, and by looking at the other clause they may apply the wrong amount. If I go firstly to ABI because they have raised the issue, and then I will go to the unions. What do you say about that, Mr Scott?

PN26

MR SCOTT: I am comfortable with that, your Honour, in terms of what Mr Ferguson has indicated.

PN27

JUSTICE ROSS: All right. Can I go to the ASU and then HSU and UWU.

PN28

MR ROBSON: Thank you, your Honour. The HSU has been taking the lead in this and we defer to their submissions.

PN29

JUSTICE ROSS: No problem. All right. Ms Svendsen?

PN30

MS SVENDSEN: Your Honour, the only reason there was cross reference in this was around raising what was around any flow on of national wage, minimum wage rises, and into allowance, and - - -

PN31

JUSTICE ROSS: No, that will be fine, Ms Svendsen, we can take - - -

PN32

MS SVENDSEN: Yes, and I absolutely understand your position in relation to the cross reference stuff and fine with it this way.

PN33

JUSTICE ROSS: Can I just deal with your annual wage review because it comes up in relation to the consequential changes on remote response. What we would do is once we are through - hard to imagine when that might be - but once we are through this process then the award goes through reformatting, et cetera, following on from the other restructuring exercises that have been done in the review, and as part of that we have normally included a table, usually as a schedule, which lists all of the allowances in the award and specifies the proportion of the standard rate in respect of that allowance, or the method of adjustment. So it's transparent about how they're adjusted, and then when the annual wage review comes up there's an increase awarded, then you've got a framework to automatically apply. But, look, you will all have an opportunity to see what that looks like and how it works, but you can take it that we will be making sure in respect of each allowance in the award that the method for adjusting the allowance is made clear, as is required by the Act. Okay, thanks, Ms Svendsen. Do I take it the ASU and UWU, consistent with the HSU's point, don't have any difficulty with this?

PN34

MR ROBSON: No, your Honour.

PN35

MR REDFORD: No, your Honour.

PN36

JUSTICE ROSS: Thank you. Is there any other employer interested that has a different view to the one that's been expressed by Ai Group? No? All right. Well, let me be clear, if you go to paragraph 24 of the background paper, in the second line, second and third lines of 20.3, paragraph (a) of the proposed clause, the second line would read:

PN37

Course of the performance of their duties, the employee will be paid a laundry allowance of 32 cents per shift, provided that - - -

PN38

And then the clause would go on. Have I correctly stated that, Mr Ferguson?

PN39

MR FERGUSON: Yes, your Honour, you have.

PN40

JUSTICE ROSS: All right. Well, that's the change and we'll proceed on the basis that that's agreed. And I think you were saying there was no issue about the other amendments - - -

PN41

MR FERGUSON: No, we're supportive of the other amendments.

PN42

JUSTICE ROSS: Okay. Is there any opposition to any of the other amendments? Ms Svendsen?

PN43

MS SVENDSEN: No, your Honour. I did wonder if it was a bit superfluous but I'm really fine with them.

PN44

JUSTICE ROSS: Yes, I think - well, I think there's a bit in the clause that I could probably redraft for you but I don't think at this stage in the day I'm wanting to get into that. If there's nothing further on the issue of damaged clothing, anything anyone else wants to say about that before we move on? All right, then we'll move on to remote response.

PN45

In respect of remote response, just bear with me for one moment, I just wanted to check with you. Mr Ferguson the Ai Group's second proposal that's referred to.

PN46

MR FERGUSON: Yes.

PN47

JUSTICE ROSS: I've been working on the assumption that that's the proposal that you forwarded to Clancy DP on 17 August.

PN48

MR FERGUSON: Yes, your Honour, and that's the proposal that - - -

PN49

JUSTICE ROSS: No, that's fine. So it runs to - well X.8 is the last - - -

PN50

MR FERGUSON: Yes.

PN51

JUSTICE ROSS: No, no, I had assumed that. All right, thank you. Well, we set out - I think we'll deal with it as it appears in the paper. That is we'll go through the joint proposal including the disputed aspect of the - the outstanding aspect of the joint proposal and then we'll turn to Ai Group's specific points and its proposal. Its specific points with respect to the joint proposal and anything further Ai Group wants to say about the proposal that it's advancing.

PN52

MR FERGUSON: There's a small number of issues in the joint proposal which we don't oppose.

PN53

JUSTICE ROSS: Yes.

PN54

MR FERGUSON: Do you want me to just take that off the plate and we'll clarify the extent of the opposition very quickly.

PN55

JUSTICE ROSS: Has that changed from what's in the background paper?

PN56

MR FERGUSON: It's not dealt with in the background paper. It's in my points (indistinct) at the end.

PN57

JUSTICE ROSS: Yes. No, look, that's all right. I think deal with it all - we'll deal with it all at the end.

PN58

MR FERGUSON: Yes.

PN59

JUSTICE ROSS: Might be the easiest way, Mr Ferguson. If we go to the first questions on page 18, just above paragraph 43, you'll see what's above is ABI has, at paragraph 22 of its submissions, made a number of observations about the joint proposal and how it's intended to operate. I just want to - well, the question is whether any party takes issue with ABI's observations. Now this isn't - to be clear, this isn't about whether or not you oppose the joint proposal. It's whether you have a different view to ABI about how it would operate. Anybody? No. All right, well - - -

PN60

MS SVENDSEN: Your Honour - - -

PN61

JUSTICE ROSS: Yes.

PN62

MS SVENDSEN: Your Honour, I just will put on record very clearly from the HSU's perspective that particularly in relation to the incidental matters maintaining employment - of maintaining employment, things like checking whether you have a roster or picking up a new shift, there's absolutely no way that we consider that to be remote work and it's not the intention for that to be covered. So I just want to highlight that we agree with their 22(k) effectively.

PN63

MR ROBSON: Yes, your Honour, if I may. Robson for the ASU. We agree with the HSU's submission, and this is a point we'd make in reply to both AFEI and AiG later in the proceedings anyway, so it's worth raising it here. We considered these - what's been characterised as administrative tasks and then the specific callouts have been things like checking your roster, accepting additional hours and so on. Saying that the award requires a specific callout for that.

PN64

JUSTICE ROSS: Yes.

PN65

MR ROBSON: We quibble with the description of those tasks as administrative but what we would say is that they're personal activities that are incidental to employment and we wouldn't say they would fit within a normal definition.

PN66

JUSTICE ROSS: Yes. Well, they're not personal activities.

PN67

MR ROBSON: Well, no, but - - -

PN68

JUSTICE ROSS: But look, in any event the short point is that you don't disagree with ABI's characterisation and observations at paragraph 22.

PN69

MR ROBSON: No.

PN70

JUSTICE ROSS: No. Well, that's all the question's asking. We can deal with the carve out question. I understand that Ai Group's got a different view about whether that's made express or not. We can deal with that when we get to Ai Group's issues in respect of the joint proposal. Does anyone else have any - take any issue with the observations? No.

PN71

MR FERGUSON: Your Honour, Mr Ferguson, just quickly. We obviously can't speak to the intent of the provisions but I think in our submissions where we think that there is a deficiency in the clause that isn't answered by the submissions, we've set that out and dealt with it carefully. So I wasn't proposing to do it now. But just to provide an example, you know, the submissions indicate that the clause deals sufficiently with the issue of the application of the provision to casuals and we've gone in by waying that it only implies to work outside the designated shift. In our submissions we've gone through, for example, and explained why notwithstanding that submission we don't think the wording gets there. But I haven't understood that there's much utility in Ai Group now sort of (indistinct) - - -

PN72

JUSTICE ROSS: No, that's right. No, no, I know you've put that submission about casuals. All I'm asking at the moment is - because if we do accept it in full or part it would be appropriate for the decision in that respect to make clear what the intent of the clause is.

PN73

MR FERGUSON: Yes, (indistinct) - - -

PN74

JUSTICE ROSS: For future reference, that's all.

PN75

MR FERGUSON: No, no, I appreciate that.

PN76

JUSTICE ROSS: So at the moment I'm only wanting to see whether there's any dispute about - it's probably more directed at the parties to the joint proposal.

PN77

MR FERGUSON: That's why (indistinct).

PN78

JUSTICE ROSS: Whether there's any dispute about the intent, that's all.

PN79

MR FERGUSON: No, thank you, your Honour, that's what I wanted to say.

PN80

JUSTICE ROSS: Okay. All right, well then let's move to the - paragraph 44 and the consequential amendments. Can I go to you, Mr Scott, about this. There are two questions really. One, the consequential amendments remove the percentage of the standard rate and insert a monetary amount. Do I assume that the monetary amount reflects what was the standard rate? So in other words 2 per cent of the standard rate is $20.63?

PN81

MR SCOTT: Yes, that's right, your Honour. The intention is to reflect the current rate rather than change the quantum.

PN82

JUSTICE ROSS: All right. Well, how do you deal with section 149?

PN83

MR SCOTT: Well, I don't think - I don't think we can, your Honour, is the short point. I can't recall why we expressed the amounts in dollar terms - - -

PN84

JUSTICE ROSS: Well, you can do both of course. You could have the standard rate and then in brackets what the dollar amount is. I imagine it's just - it's a clarity issue. But look, in a range of other awards we've expressed that as a standard rate, you know, 2 per cent of - or put the dollar amount and then in brackets 'which is 2 per cent of the standard rate', and that way it provides the method for adjustment.

PN85

MR SCOTT: Well, my clients would have no difficulty with that. My best guess is that we converted it to dollar figures for clarity and ease of understanding.

PN86

JUSTICE ROSS: Yes.

PN87

MR SCOTT: I think section 149 is a barrier to doing that, but if the Commission was minded to express it as a percentage of the standard rate and then have in brackets for example the current dollar figure, then provided that obviously that's updated - - -

PN88

JUSTICE ROSS: Yes, it would be.

PN89

MR SCOTT: - - - from year to year, then certainly we would have no issue with that, because that simply reflects the terms of the joint proposal. It just resolves the section 149 issue.

PN90

JUSTICE ROSS: All right. Do any of the other parties to the joint proposal have any objection to that, specifying - - -

PN91

MS SVENDSEN: The union - - -

PN92

JUSTICE ROSS: Sorry - - -

PN93

MS SVENDSEN: Sorry, your Honour. The union - - -

PN94

JUSTICE ROSS: I just want to make clear what you might be agreeing to. That we would express the allowances there as dollar amounts as shown, but in brackets - sorry, as percentages of the standard rate, and then put in brackets what the current dollar amount would be.

PN95

MS SVENDSEN: Your Honour, we don't have an objection to either way, dollars with the percentage in brackets, or the other way around. We understood that it was a reflection of the 2 per cent and the 3.96 per cent currently when we were negotiating the clause and that that was still the intent, but that we were doing it for consultation purposes, and I think a little bit because there has been some drafting that puts the dollar amount in to the clause even when it's based on a percentage of the standard rate.

PN96

JUSTICE ROSS: Yes. It's a bit all over the place at the moment, but it would be sorted out in the finalisation and the reformatting exercise of the award. Okay. Well, does anyone have a different view to that expressed by Mr Scott and Ms Svendsen? No? All right. If we can then turn to - - -

PN97

MR FERGUSON: Your Honour, can I interpose?

PN98

JUSTICE ROSS: Yes.

PN99

MR FERGUSON: This might be a convenient time to take one issue off the plate in terms of matters that need to be decided.

PN100

JUSTICE ROSS: Yes.

PN101

MR FERGUSON: Our proposal, if I could just highlight this, our proposal in relation to these two clauses is in virtually the same terms. It may be that our wording, that the wording in the joint proposal was actually taken from our earlier proposal and we might have been the cause of this insertion of dollar amounts. To be very clear we support the alternate approach that you proposed, your Honour, in terms of the treatment of the dollar amount.

PN102

JUSTICE ROSS: Yes.

PN103

MR FERGUSON: The only issue - - -

PN104

JUSTICE ROSS: The same issue would arise with your proposal.

PN105

MR FERGUSON: Yes. As set out the wording in the joint proposal is virtually identical. There is one issue of substance I think between is, and that is in relation to clause 28.4. In the second line it refers to - and I'm looking at paragraph 44 - a request by the employer to attend a workplace. In our proposal we had referred to a request by the employer to attend a designated workplace.

PN106

JUSTICE ROSS: Workplace, yes.

PN107

MR FERGUSON: Because we had proposed (indistinct) comprehensives where to change a definition, and that obviously is intended to reflect the fact that a workplace could be someone's home, and this clause is about (indistinct) workplaces, (indistinct) or broadly. That is the only difference between us. I am not sure if that omission was deliberate.

PN108

JUSTICE ROSS: I don't know. Mr Scott, can you illuminate whether or not the word 'designated' was a deliberate decision?

PN109

MR SCOTT: Not off the top of my head, your Honour. I know that the AiG proposal has a definition for designated workplace, which the joint proposal does not have. It may simply be that because there was no adoption of this defined term that it was effectively just deemed unnecessary to have it spell out in terms of the word 'designated'. I mean I am not sure that too much turns on it. I am not sure that the parties necessarily have any different intention in terms of how the clause is intended to operate, it's just about the best words to achieve that objective.

PN110

JUSTICE ROSS: Yes, okay. If we can go to what is the disputed issue between the joint parties, if I can put it that way, and discussion about this commences at paragraph 48 on page 21 of the background paper, and the first question appears following paragraph 55, and that's where the ASU has set out what it wishes to say about the witness evidence, and the question to all other parties is what do they want to say about the evidence filed by the ASU. Can I go first to you, Mr Robson, was there anything further you wanted to say about what you - or the findings you propose on that evidence other than what's set out at paragraphs 54 and 55?

PN111

MR ROBSON: No, your Honour. We have made our submissions and we don't think there is anything we can add to that.

PN112

JUSTICE ROSS: All right, and I am assuming - I will just take it that the other unions are supporting what you say there. Can I go to you firstly, Mr Scott, and then to any other of the employer parties. What do you say about the evidence filed by the ASU?

PN113

MR SCOTT: Yes, thank you, your Honour. What we say about the evidence filed by the ASU is that it's supportive of the making of a remote work clause. We say that the weight that can be attributed to it by the Commission is possibly modest in the sense that it's evidence from three employees across two workplaces, and setting out their individual experiences.

PN114

I think in respect of the McKenzie and the Trickett statements, they're the two Karinga employees, their evidence effectively tells a story of Karinga being responsive to the views of employees and their concerns in the sense that concerns were raised about workload when on-call, which resulted in Karinga changing its practices in relation to how it deals with on-call work. There is a kind of analysis in the McKenzie statement of hours worked, and I think that was done in 2020. It appears that the analysis is over a three day period, which was I think a public holiday, a long weekend, because - - -

PN115

JUSTICE ROSS: Is that the Queen's birthday weekend reference?

PN116

MR SCOTT: That's right, yes. I mean what we say about that is that firstly it's potentially helpful evidence for the Commission about the nature of remote work and in at least one individual's circumstances the amount of work that was done on one particular weekend. The analysis is obviously not over a particularly long time period. If anything, turning to obviously the area of dispute between the ASU and my clients, we say that the evidence is supportive of the making of a remote work clause on the terms proposed in the draft determination that the joint parties have filed.

PN117

In respect of the one matter in dispute, which is the minimum payment that should apply where employees are on-call and performing work between 10 pm and 6 am, we would say that if anything the McKenzie statement and the time analysis log supports a shorter minimum payment applying during the hours of 10 pm and 6 am, rather than there being some longer minimum payment. Clearly that analysis seems to indicate that Mr McKenzie did quite a bit of work, and I haven't endeavoured to extrapolate or quantify how much Mr McKenzie would have been paid for that long weekend if the remote work clause as proposed by our clients was in the award, but I think it can be safe to assume that it would be a significant amount of money.

PN118

Then in respect of Mr Manning, the third statement, Mr Manning appears to be a roster clerk. His statement shows the types of variability of working patterns in parts of the industry. He talks about there being a mix of day work, night work, sleepovers, active night shift, broken shifts, et cetera. It attaches a couple of rosters. It's unclear from the rosters whether the same employees are working the shifts or whether the shifts are divided up and given to different employees. It's not particularly clear from my perspective at least what factual propositions are said to arise from the Manning statement or the rosters that are attached to it.

PN119

In my general terms, the statement's going to make some broad statements about the impact of on-call work on individual's lives, concerns around fatigue, potential interruptions, restrictions in their movement et cetera. In our submission, the evidence is not sufficient for the Commission to make any factual findings about the impacts of on-call work at large. The evidence is again of three individuals working across two businesses, nor do we say that the Commission needs to make any broad findings of fact at this stage of the matter particularly. The reality is that the ASU are a party to the joint proposal.

PN120

The ASU support a 15 minute minimum payment for on-call employees during the day. The ASU support the rates of payment that are set out in the joint proposal. As I said, the only area of dispute between the parties or between my clients and the ASU and the other unions relates to that minimum payment during the evening period, and again we'd say that the McKenzie statement at least only seems to support a shorter minimum payment during the evening rather than during the day.

PN121

Your Honour, if I can just turn to paragraph 55 of the background paper, I think that extracts the ASU's submissions about the points that they wanted to make about the evidence that was filed. In the context of the scope of the dispute between my clients and the ASU, and that is, you know, minimum payment during the evening and the potential extent of disutility, of remote work during the evening period between 10 pm and 6 am, the ASU have indicated that, you know, in respect of Mr Trickett and Mr McKenzie, their statements have indicated that they both need to remain close to home when they're rostered on-call etc, etc.

PN122

I think the point to be made about that is that suggests that the disutility during the evening period is, at least in some respects, lower than the disutility of being on-call during the day. Because most people, and I appreciate I'm generalising here but most people during the day that's when they want to get out of the house and go and do activities. Most people between 10 pm and 6 am tend to spend more time at home than during the day, and so in that respect this inconvenience of needing to remain close to home is really only - and predominantly and issue during the day or when the sun is shining and you want to get out. It's not necessarily to the same extent during the evening because most people tend to be at home anyway. So I'll just make those observations about the evidence, your Honour.

PN123

JUSTICE ROSS: All right, thank you. Any other employer representatives who wish to make any observations about the evidence?

PN124

MR FERGUSON: Mr Ferguson, your Honour. I endorse the submissions from Mr Scott and just make four short points confined to observations about the evidence of Mr McKenzie and Mr Trickett. The first akin to the submission of Mr Scott is that essentially it depicts the experience of just two employees, largely by reference to a short period of time and the operations of one employer. It obviously can't be extrapolated out to establish what happens generally in the sector.

PN125

The second point, the evidence seems to establish that that particular employer was responsive to the employees' concerns about fatigue when raised. It does seem that it took measures to rectify the issue and I think it's relevant that it did so absent any of the new provisions that are being proposed being in the award.

PN126

Thirdly, I think the ASU submitted to the effect that the evidence of Mr McKenzie and Mr Trickett demonstrate that it's possible to organise work in the disability sector without relying on supervisors to work on-call. We simply say that overstates the value of the evidence or the finding that can be reached, given it relates only to one employer. For our part, we don't contest a proposition that some employers can and do arrange remote response work in a way that does not require employees to be on-call or to perform that work. They arrange their operations so as to limit the performance of remote response work, but we don't accept that all employers have that option available to them, and the evidence doesn't establish that.

PN127

JUSTICE ROSS: Sorry, Mr Ferguson, can you just go back to what you would accept, that some employers?

PN128

MR FERGUSON: Some employers can arrange work for their operations in a way that limits the requirement on employees to perform remote response work.

PN129

JUSTICE ROSS: Yes.

PN130

MR FERGUSON: I think that's a more succinct way of putting it, your Honour.

PN131

JUSTICE ROSS: Yes.

PN132

MR FERGUSON: But the point is we don't accept that that's available to all employers in the sector. The final point which we make is that to a large extent the evidence appears to go to the disutility associated with being on-call. Now, that evidence just isn't relevant to the matter at issue which is what payment should attach when an employee actually performs remote response work. It really just doesn't advance the union's case or the party's case in any respect. They're the short points I wanted to raise about that evidence.

PN133

JUSTICE ROSS: So the last point is it's not relevant to the dispute at issue.

PN134

MR FERGUSON: No, it's not. Not to the extent that it's about the disutility of being on-call.

PN135

JUSTICE ROSS: Yes. Any other employer organisation want to say anything about the evidence? No. All right, well I'll go to you, Mr Robson. Is there anything you want to say in response to what's been put about the evidence?

PN136

MR ROBSON: Yes, your Honour. Look, very briefly, we filed in these proceedings four witness statements that are relevant to the on-call claim, that's the statement of Deborah Anderson and the statement of Emily Flett that were filed in 2019, in the first stage of these proceedings. We filed two additional statements to - well, three additional statements that are intended to flesh out some of the disutility associated with on-call work, in the context of a dispute between Australian Business Industrial and the union's - the minimum rate of payment that should apply to night work.

PN137

We don't agree with AiG's submission. There's very little evidence before the Commission about remote response work. There are a sufficient number of witness statements, the Commission's relied on those to make its decisions and where the Commission has identified some gaps in the evidence in its decisions we've provided more to correct that. It's consistent with practices in these reviews not to burden the Commission's processes with repetitious evidence from individual employees. You know, it's similar in respect of, you know, employer claims that that submission could be made that one employee, you know, smaller - the amount of witness evidence before the Commission is inadequate to make any decision.

PN138

We say this illustrates the problems that exist across the industry but also presents solutions to the problem. Most importantly, highlights that there are more efficient work practices than on-call work that can be adopted. We say there's been an over-reliance on on-call from team leaders, specifically in disability. But there are alternative arrangements and, for example, using rostering clerks to take some of the burden off the team leaders so that they can, you know, actually practice as disability practitioners during the week and remove some of those practice elements from out at night. And then having a rostering team available to do those administrative tasks of filling shifts and finding people to work sick. We do say that the evidence does go to the disutility associated with work.

PN139

I note Mr Ferguson's submission about - that our evidence goes to the disutility associated with being on-call, not about the work that's performed. Well, we say that there's a clear connection between the nature of the circumstances I which the work is performed. Being on-call imposes certain burdens on the employer, that's well established, and that means that when the employee is performing that work, the disutility of it is greater. It can be, even though it's notified to an employee that they should be available to work, it can be late at night, it can be extended hours. That's all relevant to the Commission's decision about the disutility associated with work while on-call, the rate of pay that's applicable and the minimum payments.

PN140

JUSTICE ROSS: All right, thank you. Does anyone else wish to say anything further before we move on to the next item, anything further about the evidence filed by the ASU? No? The next question relates to that part of the ASU's submission in support of its contention about the disputed issue, which deals with remote work terms in other modern awards, and AFEI at attachment A to its reply submission contains a commentary on the modern awards to which the ASU refers, and they make a submission which is set out at paragraph 58 of the background paper, and question 5 is to you, Mr Robson, whether you wish to say anything in reply to AFEI's commentary on the modern awards which contain remote work provisions.

PN141

MR ROBSON: Yes, your Honour, thank you. So the first point I want to make is that the ASU's submission is that the joint proposal would be not unusual. I think AFEI overstates the submission from the ASU, and the purpose of highlighting these remote response provisions is to put the joint proposal into context, and we say that when you consider the provisions that apply to remote work in those awards that do provide for them, what we're proposing with API, NDS and the other unions is moderate and relevant to the circumstances in the SCHADS industry.

PN142

Just in relation to some of the specific comments about specific awards, in relation to the contract call centres and the Telecommunications Award the objection from AFEI seems to be that the scope of the award is different to the scope of the SCHADS Award. That is true, but we don't say that's particularly relevant to the Commission's consideration.

PN143

If there are workers who in the Commission's consideration require a minimum safety net, then a safety net should be set for them, and that's clearly the case in the SCHADS Award where there are more senior managers who are being paid all award rates of pay. And more importantly there are the entitlements provided by the Telecommunications Award and the Contract Call Centres Award in many ways equivalent to or more favourable than those proposed by the joint position. And certainly the Contract Call Centres Award does provide for a structured scheme of minimum payments and overtime rates for work that's performed at different times of the day. So you're not entering into normal ground when you're dealing with this proposal.

PN144

Going to the Nurses Award that provides a more favourable position in the joint proposal, and it's relevant in this case as a contextual consideration in that it covers everyone from the most junior assistant in nursing through to relatively senior managers such as nursing managers, assistant directors of nursing, who provide professional care and might be called on to do that outside of their ordinary hours of work, and it provides for regulation in both circumstances when an employee is on-call, but also when they're not, and it's also an award that applies to nurses when they work in the SCHADS industry. Employers in the sector will hire nurses for various reasons. It might be in disability, it may be in home care, it may also be in a women's refuge or another organisation that has need of a nurse, and they will be covered by the Nurses Award. So it's relevant that these are some of the conditions that apply already to some employees of employers to whom this award applies, and noting that the Nurses Award is specifically culled out as an exception to the coverage of the SCHADS Award.

PN145

Then in relation to the five modern awards I identified at (iv), yes, we do agree that there are different provisions that apply in that case, but the position in the joint proposal is relevant to the SCHADS industry and is supported by the entirety of the employee interest in these proceedings, and the significant proportion of the employer interest, and as we have canvassed before, and other parties to the proposal have made submissions, it's what's fair and relevant to the circumstances of the SCHADS industry.

PN146

JUSTICE ROSS: All right. Thank you. Was there anything AFEI wanted to say in response to any of that?

PN147

MS LO: Thank you, your Honour. I only have three brief points in response, and in response to the ASU's submissions that the remote response provisions are not unusual we just wish to highlight that only eight awards have been identified by the ASU that contain remote work provisions, and we observe that it's more out of the eight awards identified by the ASU don't have (indistinct) provisions for remote response work other than rounding up payment for actual time worked to the nearest 15 minutes.

PN148

My final point is that the remote response provisions in the SCHADS Award would apply to the full spectrum of employees, including those in executive management roles. So this would make the remote response provisions in the SCHADS Award more onerous, and that's all I wanted to say on that, thank you.

PN149

JUSTICE ROSS: Okay. In relation to the second point that the joint proposal would apply throughout the award structure you say that that would make it more onerous. I am just not sure about the expression 'more onerous.' Do you mean by that that it would mean that the cost implication of the joint proposal is greater than it would be if it was confined to a more discrete range of employees; is that the proposition that's put, Ms Lo?

PN150

MS LO: Your Honour, so that's in a way 'Yes', and the reason behind that is the Contract Call Centres Award and Telecommunications Award, the remote response provisions only apply to employees - so they don't include senior employees, unlike the SCHADS Award. So there's limited coverage of employees, and specifically the Telecommunications Award the remote response provisions only apply to one out of three streams of employees. So due to the differences in coverage, and also the differences in rates of pay, that creates a more onerous provision in the SCHADS Award.

PN151

JUSTICE ROSS: Well, I suppose we don't know the circumstances, but in the Telecommunications Award it may be that it's only those in the technical stream that are required to do remote response work.

PN152

MS LO: So my understanding is in terms of employees engaged in that industry, because the Telecommunications Award doesn't cover more senior employees those senior employees who do undertake remote response work would not be covered by the award, and in that case - sorry.

PN153

JUSTICE ROSS: No, sorry, Ms Lo, I am just trying to clarify - so the Contract Call Centres Award doesn't cover senior managers at all?

PN154

MS LO: No, that's right.

PN155

JUSTICE ROSS: Okay. But the SCHADS Award does?

PN156

MS LO: Yes, including those in executive management roles.

PN157

JUSTICE ROSS: All right. Thank you. Nothing further on that issue before I move on? No? You will see then from 59 and following, particularly at 61. ABI sort of conveniently summarise it as, well from its perspective, the arguments advanced by the unions in respect of the disputed issue. The question just seeks to put to the unions whether they accept that that's a reasonably accurate summary of the arguments they advance.

PN158

MS SVENDSEN: Your Honour, the first point in relation to attracting a shorter minimum payment isn't even engaged with in relation to this. It is a separate provision. I note that AiG also make comment around - - -

PN159

JUSTICE ROSS: No, I accept it's not an argument, but I think that's more ABI's subsequent - - -

PN160

MS SVENDSEN: Yes, and we'd be making - - -

PN161

JUSTICE ROSS: It's more of a statement of fact really.

PN162

MS SVENDSEN: Yes, look, I agree it's a statement of fact, but we made no comment about that and I just think it's - yes - - -

PN163

JUSTICE ROSS: No, no.

PN164

MS SVENDSEN: Yes.

PN165

JUSTICE ROSS: Yes.

PN166

MS SVENDSEN: Points 2 and 3 are correct. I'm not sure that we said anything about - point 4 was indicated in - sorry, in (indistinct) position, and I have certainly - (indistinct) certainly indicate at point 5.

PN167

JUSTICE ROSS: Okay.

PN168

MS SVENDSEN: But I don't know that it's - I mean, we - it's not unfair to say that they - collectively that's essentially some of the things, the points we made.

PN169

JUSTICE ROSS: All right. Thank you. Anything else any of the other unions want to say about that if you've got a different view? No? All right. Then the ABI's reply from paragraph 62 onwards is set out and it addresses each of the arguments advanced by the unions, and then question 7 asks the unions what they wish to say in reply to those submissions. Before going to that, was there anything either Ai Group of AFEI wish to say in addition the arguments advanced by ABI in respect of this issue?

PN170

SPEAKER: Nothing beyond what's in our written submissions, your Honour.

PN171

JUSTICE ROSS: Yes.

PN172

SPEAKER: No, your Honour. Thank you.

PN173

JUSTICE ROSS: All right. Well, then let's go to - what do the unions want to say in reply to the ABI argument about their submissions, so the material that appears from para 62 through to 71?

PN174

MS SVENDSEN: Your Honour, I will start the process.

PN175

JUSTICE ROSS: Yes.

PN176

MS SVENDSEN: And the other unions may wish to add anything to what I say. The union parties agreed on the basis of seeking to reach a consensus position as far as possible to a 15‑minute minimum during the day. That position is not our favoured position, but it was one that we were prepared to accede to given that we were in those conversations, and that had nothing to do with why we then put a position in relation to the disutility of working later at night, and in fact our, you know, previous positions are clearly - were for more than that and for higher rates of pay for anybody receiving on-call. The provisions in relation to other awards are clearly set out in several submissions and are better than the ones that are postulated here. We don't ask for anything more than the hour that was put provisionally. We do note that from our point of view we think the 15‑minute at minimum classification rates - we want the base rate, but at the rate an employee works at - was a significant concession for us. We believe that the disutility - and it's easy to say that they're home at 10, but when you're woken at 3 in the morning it's not so funny - the disutility of working overnight and receiving calls and being woken is actually significant. We therefore believe that people should be receiving rates that ensure two things I think: that employers are not encouraging people to ring for no reason at all, which is also relevant, but also that those payments - at 71 the ABI position is set out - the night rate minimum payment cannot be viewed or established in a vacuum and that it should be proportionate to the daytime minimum payment. I don't believe that we're setting or proposing a rate that's in a vacuum. We are setting and proposing rates that are not inconsistent with other awards, and you know, we can go to the Nurses Award or the Ambo's Award or other health awards that show rates that are significantly in excess in relation to those sorts of on-call provisions. We understand that at the end of the day a person who is not on-call would be remunerated ultimately less than an employee who was on-call, and that is actually unfortunately a fairly standard position, and the provision in relation to people receiving at immediately an hour's minimum payment at overtime rates is intended to absolutely be a disincentive for people to actually have people on-call and - are not on-call and being called, and we think the chances of them being called later at night are minimal, whereas the person who is on-call is rostered on-call. Their number is distributed for people to contact; they are their first port of call when something's going wrong, and they're much more likely to be woken in the middle of the night or asked late at night to respond. The ABI proposal is for receiving 50 per cent of minimum payments which - of the - 50 per cent of what we're proposing, which would mean that all levels of the SCHADS Award would be in fact receiving less than any of the other health award for instance, if we're setting this in the context of other health and welfare‑based awards. So we make those comments about that. I don't know if there's anything else that - - -

PN177

JUSTICE ROSS: Just on the last point, Ms Svendsen, what is the difference with the other health awards? I take it that here you're referring to the Nurses Award in particular. What - - -

PN178

MS SVENDSEN: Well, the Nurses Award provides for a higher percentage of the standard rate, and it provides for a minimum of one hour regardless of when it is and at overtime rates. I note the comments in relation to it not applying to the senior levels of nurses, but then they're not ever put on-call so I guess that doesn't matter. That's a bit flippant, I apologise, but they receive at minimum 150 per cent for a full hour, so they receive an hour and a half's payment plus their on-call rate regardless of when they're contacted and each apply separately. There are usually people do not - it doesn't say it specifically but triggering events are not so carefully set out in the Nurses Award, it's a fairly short provision in relation to how it applies.

PN179

The ambulances have an hourly rate of $3.25 so it's $78 over a 24 hour period for being on-call and they receive double time for any time that they're called or working. So, you know, like it actually - it does actually change quite markedly. There are - - -

PN180

JUSTICE ROSS: Ms Svendsen, can I just - sorry. Aren't the ambulances working a 10/14 roster?

PN181

MS SVENDSEN: Yes, but they're also working on-call. Depends on where they are. So if they're in the city - - -

PN182

JUSTICE ROSS: No, no, I guess - yes. No, no, I get that it's different in the rural but with a 10/14 roster you would expect the higher on-call rate, wouldn't you? Because everyone (indistinct) 14 hours - - -

PN183

MS SVENDSEN: Yes, I'm not suggesting it's inappropriate or - I'm just saying that when you put each of those things together, I mean there are - it's no use having a comparison and saying those people don't get it in the higher echelons or that award only applies to people that don't include senior managers. Each of those things are taken in context, I think, of the award and requirements in relation to that award. The evidence before the Commission in relation to the - the evidence before the Commission in relation to the disutility of being on-call in this sector is markedly varied, in the sense that there is evidence of people receiving calls which are simply about I can't come to work and you need - and then that person needs - a replacement needs to be provided for that person, and that's one form of call.

PN184

But there's also people who are on-call who are called out because an incident's happened at work and they then - all right, they then arguably are flipping to attending work often, although more of that work is being done from home at the moment. Because you would then get into bigger incidents and bigger occurrences, and so it depends on where it goes. But the provision is intended to enable people to do counselling on - so we have mental health nurses, for instance, who actually conduct two to three hour counselling sessions from home at two in the morning. That would be caught by this provision if it was covered under this award and similar things happen. They might not be on counselling of a client but they will be with - on and off the phone to ensure that an emergency situation is covered and all of the bases are covered.

PN185

That's the sort of evidence that's been given and provided to the Commission, and I'm not trying to re-state any of those things. I'm just saying that we're having these arguments about two minute calls when that's actually not principally what occurs. So I mean even the two minute call to say I am not able to work tomorrow is not a two minute call once I then have to replace that person who is - with somebody else because that's then - then becomes a much bigger matter.

PN186

It's around those sorts of things that we're trying to make sure there's no vacuum in relation to it, but I'm actually just saying that ABI's kind of concept of it being viewed in a vacuum and only doing it in relation to an applicable rate of the 15 minutes during the day, which was a concession by the unions, we'd prefer more. The concession by the unions was that we wouldn't be looking for a greater amount in the morning and that we would only dispute that evening/night rate and that's what we have done.

PN187

JUSTICE ROSS: Thanks, Ms Svendsen. Is there anything from any of the other union parties? No. All right. Anything from ABI in reply?

PN188

MR SCOTT: Yes, thank you, your Honour. Ms Svendsen raised a couple of submissions around the clause seeking to not encourage particular behaviours or disincentivising, you know, an employer calling someone who's not on-call. I think the point I'd like to make about that is that the task of the Commission is to establish terms and conditions that meet the modern award's objective, that provide a fair and reasonable set of minimum terms and conditions. I'm not sure that the task of the Commission is to set about creating terms that encourage particular behaviours. Of course that may be a consequence of the Commission's decision but that's not the purpose for which the Commission undertakes its activities.

PN189

There were some references to some other awards and other health awards. The submission I make about that is that the Commission should exercise some caution relying on terms in other awards. There's no evidence of practices before the Commission in respect of those other industries, and so in that sense we say the Commission should not take too liberally or place too much weight on terms in other awards in those circumstances. I think a couple of examples that have been raised only prove that point.

PN190

Your Honour referred to a 10/14 roster in the ambulance sector, I think that's a good reason why the Commission should exercise caution before placing too much weight on those terms and the other one was in respect of senior managers. I mean the reality is at this stage of the proceeding, the Commission shouldn't place much weight at all on terms in other awards in circumstances where no detailed submissions have been put in respect of those matters.

PN191

JUSTICE ROSS: Okay, thanks, Mr Scott. Before we leave this question, was there anything anyone else wished to say? No. All right. If we can go then to - there is ABI's submissions from paragraph 72 on to 75 and the table is set out there to illustrate ABI's point. Question 8 is to the union parties as to what they say about the table and ABI's submissions in respect to it. The question about what do you say about the table is really directed well, do you think the table accurately describes the situation or do you take issue with any of the calculations. The second part of the question is what do you say about ABI's submissions regarding the table? Who'd like to deal with this?

PN192

MS SVENDSEN: Your Honour, I don't think we have any beef with the calculations and I'm cool with those calculations, they're good. The table assumes - I note - I will just make - no, I won't. The union parties only again reiterate, I think, the issue around what we did in relation to the 15 minute proposal, which meant that there is a much bigger jump. But it also means that people who - the proposal for ABI is that minimum payments should be 50 per cent less than what they've set out in their table, so the total would - you know, payment would go from $71.93 to $46.28 at SACS level 3 during the week, for instance. So all it does is tell us that that's actually the amount that will be payable if people are being contacted.

PN193

I think that in relation to what we say about it is that we're - yes, we're really comfortable with those rates, we don't believe (indistinct) inappropriate under the circumstances. We think that the rates are in fact appropriate to the disutility of working, and remembering that the majority of hours that we're talking about are actually during the hours of somebody who is on-call would be asleep, even if they're not asleep at 10 pm. And finally that I guess I am making a comment in relation to what actually happens is that, you know, people at very high levels would not usually be put on-call, and so therefore the really high rates are not going to apply. I don't think there is anything else that we can say about that that we have not said in our submissions.

PN194

JUSTICE ROSS: All right. Thanks, Ms Svendsen. Do any of the other unions wish to say anything about that? No?

PN195

MR ROBSON: Yes.

PN196

JUSTICE ROSS: Yes, Mr Robson.

PN197

MR ROBSON: Thank you, your Honour. Look, I think I agree with Ms Svendsen's submissions. What I have to add is that the rates of pay proposed for work between 10 pm and 6 am are not unprecedented in this award. The example I want to direct you to is in the case of work performed during a sleepover, and that's 25.7 of the award. That provides at 25.7(e):

PN198

That in the event of an employee on sleepover being required to perform work during the sleepover period the employee will be paid for the time worked at the prescribed overtime rate with a minimum payment as for one hour worked. Where such work exceeds one hour payment will be made at the prescribed overtime rate for the duration of the work.

PN199

That would be the overtime rate. That would mean that any of those employees identified in the table by Mr Scott would be paid those rates of pay if they've worked during a sleepover, and it's so likely as to be almost certain, and I don't believe any employer party would quibble with this, that work is most likely to be performed between 10 pm and 6 am. An example of sleepover shifts is provided by Mr Encabo in the attachments to his witness statement. They describe work that's paid work that finishes about 10 pm, and then a period of sleep of a continuous eight hours. That finishes at about 6 am.

PN200

So the award already deals with work performed during that period of time in a situation where an employee is otherwise sleeping or not required to perform duties and may have that sleep interrupted.

PN201

MS SVENDSEN: Your Honour, I would just add that that also applies to the 24 hour clauses redrafted by the Commission.

PN202

JUSTICE ROSS: Yes. All right, thank you. Mr Scott, anything in reply?

PN203

MR SCOTT: Yes, just briefly, your Honour, thank you. I think the analogy with the sleepover provision and the 24 hour care provision is a very helpful one. It's instructive for the Commission resolving the current dispute, or the element of the dispute between the parties to the joint proposal. And again we say that these submissions that were just put would support my client's position on minimum payment rather than the union's position, and I say that for a few reasons.

PN204

Firstly, there's a clear difference between the work that we're talking about regulating, and to give you some examples if we take the sleepover clause, clause 25.7, what's here is that the person is at a workplace rather than at their home, or to use AiG's formulation at a designated workplace. They're not sleeping in their own bed, they're sleeping at a particular workplace, generally in a home with clients for whom they're tasked with caring. If their sleep is interrupted the nature of the work that they perform is quite different.

PN205

It's obviously going to vary on a case by case basis, but the type of interruptions that employees would have when they're on a sleepover would be clients waking in the middle of the night, there being interruptions, assisting clients to use the bathroom, dealing with situations, and I think some of the ASU evidence about what takes place and the nature of the work that was referred to this morning is instructive. I can't recall the particular witness, but one of the Karinga employees who gave a statement talks about working in a very challenging group home with people with very high levels of needs and some of the circumstances that those employees are faced with.

PN206

That type of work and those types of challenges are not going to be faced when we're talking about remote work. So I think there's a very significant difference in terms of the nature of the work. Whether we're talking about sleepovers that are interrupted or 24 hour care we're talking about employees who are physically at a designated workplace physically dealing with people, dealing with clients. There's work health and safety obligations and expectations that are quite different to an employee in their own home receiving a phone call. So quite the contrary to the characterisation that the unions seek to put on the matter. These clauses that they have referred to do not support a one hour minimum payment in respect of remote work worked during the evening. It just doesn't, and I say that for the reasons I have just indicated, your Honour.

PN207

JUSTICE ROSS: All right, thank you. Is there anything further in relation to this question before we turn to Ai Group's remote response proposal? No? All right. Ai Group's proposal is set out from paras 76 and following. Ai Group identifies some similarities between its proposal and the joint proposal, and it agrees with some aspects of those. Those are set out at 84 and 85 and we have heard Mr Ferguson earlier about the consequential amendment point. And then at 86 and following the background paper identifies 11 other areas of difference between Ai Group's proposal and the joint proposal, and what Ai Group says about those.

PN208

Then there's a question on page 42 inviting a response to Ai Group's - I think they're described as criticisms and proposed amendments, but it's really going to what Ai Group says are the 11 areas of difference from paragraphs 86 and following, and I will go to you shortly, Mr Scott, about what you say about those criticisms. But can I go to you first, Mr Ferguson, and this is really whether the background paper accurately sets out what you say in your submission are the areas of difference between Ai Group's proposal and the joint proposal. So it's really the material from 86 and following, whether anything is missed there or mischaracterised.

PN209

MR FERGUSON: Yes, your Honour. I don't see that anything is mischaracterised in relation to our submissions. There's a degree of summarisation, but we don't quibble with that. Just to be clear I think we haven't necessarily been exhausted in identifying every difference between the two proposals. I have spoken to some additional issues this morning, but if it can assist there are some elements of our proposal that are just not reflected in the joint proposal. They have been addressed in one of our three sets of submissions dealing with this issue generally. One of those issues I would highlight for example is we had proposed a transitional arrangement which drew very heavily upon the wording of the (indistinct) provision that was in clause 2.2 of awards. We've set that out in our - that is set out in the proposal, we've addressed it in our earlier submissions. I just make the point that that's not set out in the background paper but that's because it's not addressed in our more recent tranche of submissions if you will.

PN210

We also did have an element of our proposal which suggested that there should be some sort of mechanism which deals with instances of very short periods of work, and we've got (indistinct) factual assertion from the Bar table that that just doesn't happen. We did have a provision dealing with, you know, effectively carving out the minimum payment provisions in the award and any remote response clause situations where people do very, very brief instances of work. We have in mind, for example, responding to text messages and so forth. But I'm (indistinct) the background paper, they're just additional issues that we didn't identify specifically in our most recent submissions. I think we'd come to the or we'd focused on the big picture.

PN211

JUSTICE ROSS: No, no, I accept that. Mr Ferguson, can I just get you to - in your second proposal - - -

PN212

MR FERGUSON: Yes.

PN213

JUSTICE ROSS: - - - the one sent to Clancy DP on 17 August, where do you deal with the two issues you've just raised? The transitional arrangement and the short period.

PN214

MR FERGUSON: Yes. Clause X.6.

PN215

JUSTICE ROSS: Yes.

PN216

MR FERGUSON: Clause X.8. And there's been no focus on either provision but the intent of both provisions is described in our submissions.

PN217

JUSTICE ROSS: Yes, okay.

PN218

MR FERGUSON: But I also note, to simplify things, X.7 differs very slightly from the joint proposal but we would accept the joint proposal approach to that issue.

PN219

JUSTICE ROSS: Bear with me for a moment.

PN220

MR FERGUSON: X.7.

PN221

JUSTICE ROSS: And - - -

PN222

MR FERGUSON: I'm sorry to jump around, your Honour.

PN223

JUSTICE ROSS: No, no, that's all right. Just give me a moment. So that's really paragraph (f) in the joint proposal.

PN224

MR FERGUSON: Yes, but I think, your Honour, I'm jumping between documents but I think the difference is the joint proposal picked up one extra clause but it should be included in there that we had missed (indistinct) - - -

PN225

JUSTICE ROSS: Yes, the rostered days off.

PN226

MR FERGUSON: Yes.

PN227

JUSTICE ROSS: (Indistinct), I think, yes.

PN228

MR FERGUSON: Yes, there might be some things around I think - I'm not sure the word work is used in that clause. I think from memory it refers to duty but - - -

PN229

JUSTICE ROSS: No, it refers to work.

PN230

MR FERGUSON: Does it? Sorry, I'm talking about the substantive clause of the award.

PN231

JUSTICE ROSS: I'm sorry, yes, okay.

PN232

MR FERGUSON: Those sorts of things are wording issues rather than intent issues.

PN233

JUSTICE ROSS: Yes.

PN234

MR FERGUSON: So I think, you know, we certainly endorse the intent of the joint proposal, it seems to have picked up one other provision that we just missed.

PN235

JUSTICE ROSS: Yes. All right, thank you.

PN236

MR FERGUSON: The only other point of difference I'll just say for completeness seeing as we're doing it, in particular, is we have a different mechanism is X.4, the calculation of payments when remote work is undertaking on multiple occasions.

PN237

JUSTICE ROSS: Bear with me a moment. Yes.

PN238

MR FERGUSON: Again, we hadn't focused on that difference. It's sort of caught up with the different approach of the schemes, particularly with the different approach to minimum rates and so forth. We proposed a mechanism that we say operates properly in the context of the scheme we proposed. They take a different approach. I think one of the issues of substance though is, you know, under our proposal there's a greater capacity to roll if you will in different periods of work into the one minimum payment.

PN239

JUSTICE ROSS: Yes.

PN240

MR FERGUSON: I think under the union's proposal, under the - sorry, the joint parties' proposal it'll all have to happen within the same hour, whereas we've committed to be over an extended period. But then we provide a mechanism for also saying well, that traverses a different minimum - different periods in time, for example, that hour, you know, goes past the 10 o'clock threshold, well how do you work out which one to apply? But it's just a very different approach. We haven't tried to, you know, press this point too much because it's sort of caught up in a different scheme and I think we had anticipated that the Commission may you know pick and choose from different parts of the clauses and come up with a proposal that's different altogether. But I think it's clear what we've proposed anyway, your Honour.

PN241

JUSTICE ROSS: Okay, thanks, Mr Ferguson. Well, if I go to you, Mr Scott. In relation to what Ai Group - well has just said orally but also the 11 areas of difference and its comments from paragraphs 87 and onwards, what do you say in response to those and Ai Group's proposals in respect of each of them?

PN242

MR SCOTT: Yes, thank you, your Honour. I will accept the invitation to comment on some of them but not all of them, so if I just work through the 11 issues and your Honour's indicated that the issues raised by Ai Group have been described as criticisms in the background paper. I've perceived them to be constructive criticisms and I'm dealing with them in that way.

PN243

JUSTICE ROSS: Sure.

PN244

MR SCOTT: The first issue which appears at paragraph 87 of the background paper under the heading of 'Scope of Activities', our position in relation to the scope is that we're supportive of the scope of the remote work clause as set out in the joint proposal, and we say that that's fair, reasonable and appropriate. In relation to the second issue described as definitional issues, the issue that this raises around casual employees and the use of the phrase 'designated shift' in the joint proposal, there's some criticism about the clarity of the potential ambiguity of that phrase. I don't think there's any issue of - the issue's not around intent.

PN245

The issue seems to be around drafting. I think the reality with casual employees is that the award does not require their hours to be rostered in advance and a lot has been said about the nature of casual employees and casual employment over the last couple of years. But the reality is that there must be some communication between an employer and an employee around the working hours of casual employees and their shift. There must be an offer of a shift put to a casual employee and the casual employee freely accept or reject that offer. But where an offer of a shift is accepted by a casual, in the general sense at least, we'd describe that as a designated shift and in general terms, at least, one would assume that that's how casual work is organised in the industry. At some point a shift is offered and the shift is accepted.

PN246

That's what we're trying to get at in terms of the use of designated shift. Remote work is work that is different to a designated shift performed by a casual employee, in the sense that remote work will be largely unplanned in my cases, and it involves an employee receiving a phone call and being required or directed to undertake some work that does not require them to attend the designated workplace. So that is what we're trying to get at. There may be some criticism of the phrase 'designated shift' in terms of whether or not that's sufficiently clear. I think if we set that standard for ambiguity in the modern award system, I think we'd have issues with just about every sentence and every paragraph of the modern award. But I understand the point that they have raised.

PN247

My view is that the language is sufficient for employers and employees to understand. The Full Bench decision in this matter may assist in terms of articulating what the intent is so that if there is any dispute around the interpretation of the provision in the future, the parties can refer back to the decision which resulted in the clause being inserted into the award. I don't have any great solutions to the issue. My submission is that I don't accept that there's necessarily an issue with the language. If the Commission is minded to come up with a different form of words to achieve what we're intending to achieve then we have no opposition to that, subject to being given an opportunity to comment, but those are my submissions in relation to the designated shift issue.

PN248

In relation to issue 3, AiG raised an issue around how the proposed remote work clause would interact with clause 10.5. I think it's - I would certainly hope that it's abundantly clear to all the parties that the intention is for the minimum payments in the remote work clause to apply to the exclusion of the minimum payments at clause 10.5 of the award. However, if the Commission is minded to make that expressly clear, we would have no opposition to inserting a subclause in a remote work clause to the effect that where remote work is performed the minimum payments at clause 10.5 do not apply. I think that resolves the issue that Ai Group have raised.

PN249

Your Honour, I'll move to item 5, or issue 5. I don't have a comment in respect of issue 4. At paragraph 98 of the background paper, there's an extract of the Ai Group's submission around 25.10(d)(i)(b) and (c) indicating that they failed to distinguish between ordinary hours of work and overtime. I don't quite understand the issue that has been raised there, so I'm not sure whether there's an issue. If there is an issue, it appears to be a matter of drafting rather than a matter of substance.

PN250

JUSTICE ROSS: It might be convenient to ask Mr Ferguson to clarify what the issue is and then you can respond to it.

PN251

MR SCOTT: Yes. I'm comfortable with that, your Honour.

PN252

JUSTICE ROSS: All right. Mr Ferguson?

PN253

MR FERGUSON: Sorry, your Honour, I was just on mute. I'm just looking back to the clauses to make sure I'm addressing the right issues, your Honour.

PN254

JUSTICE ROSS: The clause is on page 15(?) of the background paper.

PN255

MR FERGUSON: I think we elaborate on this in our submissions, but it seems to be an attempt in a short‑form way to say in effect that overtime rates will apply where the hours aren't overtime, or outside the ordinary hours. I think you get into difficulties then when you do it this way rather than through the usual structure of the award, because it raises complex issues of: if this work was done before other work, which rates - you know, which hours do the overtime rates apply to, in what circumstances. So I think in (b) they use the words 'where remote work results in an employee working in excess of 38 hours per week.' The question then is which hours are ordinary hours, which ones are overtime; do you get - it just sort of seems to raise all sorts of complex issues, whereas under the award normally you have this arrangement of ordinary hours that dictates which hours will be overtime and which will be ordinary.

PN256

JUSTICE ROSS: All right. Mr Scott?

PN257

MR SCOTT: Your Honour, it's possible that this particular issue kind of - it relates to the issue that's raised at paragraph 108 of the background paper. So, I might try and deal with point 5, or at least the first part of point 5 when I deal with point 8, if that's okay, your Honour.

PN258

JUSTICE ROSS: Sure. That's fine.

PN259

MR SCOTT: Turning to the second paragraph of page 35 of the background paper, so issue 5 here is effectively - there appears to be two issues, so it's the (indistinct) - my comments in relation to (indistinct). The second - Ai Group say there's a further problem in the remuneration being described as a percentage.

PN260

JUSTICE ROSS: Yes.

PN261

MR SCOTT: This simply appears to be an issue around expression. What we endeavour to do is effectively adopt language that's consistent with the terms of the current award, and in saying that I realise that we haven't actually done that necessarily anyway, because the current award uses phrases like 'time‑and‑a‑half' or 'double‑time' rather than expressing rates as a percentage. I think that the prime criticism here is that there might be a potential ambiguity or uncertainty if we express something as a percentage but don't refer - what it is that the percentage relates to. If your Honours turn to the joint proposal at 25.10(d), (i) says that remote work will be paid at the minimum hourly rate unless one of the following exceptions applies. It then details between (a) and (f) various scenarios where a premium rate will apply. The intention is that those premium rates that are expressed, for example, at (a) as 150 per cent for the first two hours is intended to be 150 per cent of the minimum hourly rate relevant for the classification for the employee. We've resisted the temptation to go through and put the words 'of the minimum hourly rate' after every percentage in the clause, because it would appear to just make the clause longer and not necessarily any clearer, but if the Commission was minded to resolve the issue by indicating in each place where there's a percentage that a percentage is a percentage of the minimum hourly rate then we would have no difficulty with that, because that's the intention under the joint proposal.

PN262

JUSTICE ROSS: Yes.

PN263

MR SCOTT: I have no comments in relation to issues 6 or 7, but I'll turn to issue 8, and as I understand it the concerns raised around the interaction between the minimum rates and the minimum payments and, you know, the methodology for calculating that in certain scenarios, it appears to be a drafting concern rather than an issue of substance, although when I say that I appreciate that there is an Ai Group proposal on foot, but at least in respect of the joint proposal, the issue that has been raised appears to be a drafting concern. My assessment of this submission leads me to the conclusion that we may need to tidy up the drafting at 25.10(d)(i)(b) and (c).

PN264

JUSTICE ROSS: Sorry, what was the reference again?

PN265

MR SCOTT: It's 25.10(d)(i) subclauses - or sub‑subclauses (b) and (c), and I might turn to those in a moment in terms of what might need to be tweaked in the wording there. But as I understand it, Ai Group have raised an issue around, well, how do we - what is the rate of pay that would apply to the residual of a minimum payment period where work was not in fact performed, so for example, if there's a 15‑minute minimum period and 11 minutes of work is performed, the issue that seems to be raised is, well, at what rate do you pay the remaining four minutes, and then secondly, where a particular portion of work or a minimum payment period straddles that 38‑hour mark as an example, and AI use that example at paragraph 108 in the background paper. They're valid issues that are raised. They're quite technical, and I think the position is by reference to the joint proposal. At 25.10C(i) it indicates that where an employee performs remote work they will be paid for the time spent performing remote work with some minimum payments applicable.

PN266

So the starting point is they are paid for the time spent performing the work. Where that time is less than the applicable minimum period then they receive a minimum payment. So for example the starting point is if someone works 12 minutes work and the relevant minimum is 15 minutes the employee is paid for 12 minutes, save that the minimum payment period is triggered and they receive a payment in respect of 15 minutes.

PN267

The rate of pay is set out at clause 25.10(d) and indicates that remote work will be paid at the minimum hourly rate as a default position, unless one of the relevant exceptions apply. So just from a matter of drafting and construction of the proposed clause remote work is paid at the minimum hourly rate for the time spent performing the work, save that there may be a minimum payment period that is triggered.

PN268

JUSTICE ROSS: If the minimum payment period is triggered, let's say the 15 minutes, so on your example they work 11 and so the minimum payment period is triggered. They're paid at the minimum hourly rate for 15 minutes unless one of the exceptions in (d)(i)(a) through to (f) applies?

PN269

MR SCOTT: That's right, your Honour, yes. So from a construction perspective in terms of drafting we accept that it's not the most straightforward clause in the world, and I think that's a fair statement to acknowledge. However, we don't see any difficulty from a drafting perspective in terms of getting to the outcome that your Honour has just identified.

PN270

The second element of the concern that's raised is, well how do you apply the relevant point where it might straddle a particular circumstance. So to adopt the AiG example at paragraph 108 if an employee undertakes 35 minutes of remote work in circumstances where they have already performed 37 and a half hours of work that week we say that they would receive 35 minutes pay, assuming there's no minimum payment period that's greater than 35 minutes that would be triggered. The rate at which they would get paid, certainly the intention of my clients and I suspect the intention of the other subscribers to the joint proposal, is under this example, well the first 30 minutes would not trigger a premium, but the last five minutes would, and that leads me to 25.10D(i)(b) and (c), and the comment I made earlier which is that there may be some benefit entirely in (indistinct). At the moment - - -

PN271

JUSTICE ROSS: Would you propose tidying it up by an example or some other way?

PN272

MR SCOTT: No, I would hope that we would be able to avoid the use of an example. I think the difficulty is with the phrase 'Where the remote work results in an employee working in excess of 38 hours.'

PN273

JUSTICE ROSS: Yes.

PN274

MR SCOTT: That's probably poor drafting on my part more than anything else. I think a more accurate expression would be something like where the remote work involves work or consists of - not consists of work because it's not about bundling the 35 minute portion up, it's whether remote work is in excess of 38 hours or 76 hours.

PN275

JUSTICE ROSS: Rather than have you do that on the run it might be appropriate if you discuss it with the other parties to the joint proposal and come up with some alternate drafting. For that matter discuss it with Mr Ferguson as well. Mr Ferguson, the discussions - it's not intended to compromise your position - - -

PN276

MR FERGUSON: No.

PN277

JUSTICE ROSS: - - - with respect to the proposal. It's just on this issue, would the drafting address that issue, that's all.

PN278

MR FERGUSON: I understand, and many of our issues are drafting related. Even if you don't accept our proposal we obviously want a clause that's here.

PN279

JUSTICE ROSS: No. I think we all - well, we all aspire to that, whether we end up with it. What sort of timeframe would you need to do that task, Mr Scott?

PN280

MR SCOTT: Your Honour, I would hope that we could do that within the week, and I think that's obviously sensible in terms of not trying to fix drafting issues on the run.

PN281

JUSTICE ROSS: Yes.

PN282

MR FERGUSON: Can I seek one clarification just as to intent, because I think this goes to whether there's a more fundamental issue between us than drafting.

PN283

JUSTICE ROSS: Yes.

PN284

MR FERGUSON: The issue is really - it's not clear to me, and I maybe have just not followed, but how do you intend the 15 minutes minimum payment to be calculated in C, because I think to explain it by reference to our approach, because we grappled with this in trying to come up with something that works, we proposed that whatever the applicable rate, to use that controversial word, applies to the time it's worked, you then have to grapple with what happens to other time.

PN285

Is the minimum payment just a (indistinct) threshold issue? So is the proposition that it's just 15 minutes pay for example at the minimum rate, that's the minimum entitlement, but if you work at particular hours at an attractive premium you might get more? Or do you, when we're looking at clause C, intend that the minimum payment is calculated by reference to (indistinct) rates? Because I understood from the broader context of the submissions advanced, including the table and so forth, and I might be wrong, that the minimum payment was to be calculated as including penalty rates and so forth, and I think that's the issue between us, and I just wasn't sure given Mr Scott's articulation, and I don't mean to put him on the spot, it may be that we all need to think through this a bit more, but - - -

PN286

MR SCOTT: Well, your Honour, I'm happy to address that. I think the intention for AiG's benefit is that the rate applies in respect of the work that's performed, rather than the applicable minimum, and I submit so much is clear at 25.10(d)(i) where it says, 'Remote work will be paid at the relevant rate.' So the rate is referable to the work that has been performed, rather than the minimum payment period.

PN287

MR FERGUSON: In C the word 'pay', I suppose that's what I'm coming to, to be clear. What's the pay?

PN288

JUSTICE ROSS: Where in C?

PN289

MR FERGUSON: So in C there's variably referenced 15 minutes pay and one hour's pay. What does that pay?

PN290

JUSTICE ROSS: I see. You mean capital C?

PN291

MR FERGUSON: It's C, your Honour, (i)(a) and (d).

PN292

MR SCOTT: I think the reference to that pay is the rate of pay as set out in (d). We might be able to take it off (indistinct) and deal with it in the context of trying to resolve the drafting issue, because I don't know that us necessarily going around in circles on what we think the clause is intended to do or what it does is particularly - - -

PN293

JUSTICE ROSS: No, I accept that. It's probably best dealt with by giving you an opportunity to consider it and then to confer. If we deal with it this way, Mr Scott, if you can talk to the other proponents of the joint proposal and talk to Ai Group and then file in effect a report which sets out firstly what the joint parties would propose by way of any drafting change, and then it can also - it can be a joint proposition between yourself and Mr Ferguson. It can also set out whether Ai Group says, well that resolves the drafting issue, or it doesn't, without going into the broader debate about Ai Group would prefer its own proposal. Let's just focus on the drafting issue, and if you can file that by 4 pm next Wednesday.

PN294

MR SCOTT: I'm happy to do that. Thank you, your Honour.

PN295

JUSTICE ROSS: That will give you a chance just to - it avoids potential debate with the other proponents to the joint proposal about intent. It's probably better that you sort all that out between yourselves rather than ventilate it before us. All right, well, we'll deal with that in that way. What did you want to say about the other matters raised by Ai Group?

PN296

MR SCOTT: That was all that I wanted to say about those 11 issues. I didn't wish to take the invitation to comment in respect of 9 through 11.

PN297

JUSTICE ROSS: Well, they are really a difference of approach and merit, aren't they?

PN298

MR SCOTT: I think that's right. I think that was all I wanted to say in respect of question 9, your Honour, in terms of the constructive criticisms that AiG have raised.

PN299

JUSTICE ROSS: Okay. Is there anything any of the other parties to the joint proposal wish to say about Ai Group's 11 points that have not already been covered by Mr Scott?

PN300

MS SVENDSEN: Your Honour, there is one thing. I suspect that some of the issues that are raised by AiG relate to the fact that they appear to be, in my view, equating the remote response work with working from home. The reason I say that is that there appears to be an intent in the Ai Group - not just submissions, but in the clause - to enable work to be rostered. I mean, one of the things that they object to relates to even the minimum payments issue around the reference to the new clause 10.5 or the need to make a differentiation between that because this work being done at home doesn't need to have the minimum payment period applied to it.

PN301

The scope of activities that they talk about, those sorts of things, seem in our view to be looking rather than at an on‑call to do work that is not claimed to be done because it needs to be responded to now, which is what an on‑call premise is and what remote work is about. It seems to us that there is a premise underlying some of the AiG submissions that go to a broader working from home concept. It's why they think that the scope of the activities - so all work undertaken remotely at the direction or authorisation of an employer - should fall within this clause I presume, like I am currently doing.

PN302

The Ai Group can confirm or deny that, but that seems to be the concept that is somewhat inherent in (a) their proposition and (b) their objections to the joint proposal and some of the concerns that are raised in (a) drafting and (b) in relation to consequential amendments. Again, at (3), the interaction with clause 10.5, I think that the concept that there needs to be a specific exclusion at 10.5 - I don't have a problem with ABI's suggestion that if you believe we need to do that, that we should do it, but I just don't think that it's actually around those concepts and therefore around the minimum payment periods that apply, because this is about that emergency work in response to a call, not about planned work.

PN303

I think that we would also just like to say finally that in relation to the carve‑out proposals - which is probably not final. I'm trying to find which number raises this. Now I've lost it.

PN304

JUSTICE ROSS: You mean in Ai Group's proposal or - - -

PN305

MS SVENDSEN: Yes, in the - well, in the paper.

PN306

JUSTICE ROSS: It's in Ai Group's second proposal under the definition of 'remote response work' saying:

PN307

It does not include an employee's performance of administrative tasks associated with maintaining their employment -

PN308

et cetera.

PN309

MS SVENDSEN: That's exactly right. We did talk about this and the reasons it isn't there is because the administrative work is often the sorts of work that is required to be done and we were concerned about there being a lack of clarity around those issues. I think that has actually been covered, but we certainly don't like the concept of those carve‑out clauses.

PN310

I think that we have in our responses really responded to the concepts around the minimum rates proposal that AI puts in and it seems that they are attempting to get that up again having been excluded by the provisional views of the Bench, but I will just say one thing: the interactions described at 108 that the technical difficulties that flow is there is actually a provision in the Nurses Award at 16.4 that may be of some assistance, but we can talk about this in drafting. It actually has a provision that provides that the penalty rate applicable is that on the greatest portion of the shift.

PN311

It's applying much more at the level of what happens at midnight on a public holiday, so if the greatest proportion of the shift is on the public holiday then the public holidays rates are paid, whereas if the greatest proportion of the shift is so you actually start work on the public holiday and finish work the day after, the greatest proportion of that shift is on the non‑public holiday and they are the rates that apply. I agree that that's a drafting matter, but it's actually one that struck me as something that could assist in relation to this.

PN312

I definitively don't agree with the rounding down proposal. That should be of no surprise to anybody and we think that the other requirements are just differences of opinion principally. I don't know if either of the other unions would like to say anything else.

PN313

JUSTICE ROSS: All right. Thanks, Ms Svendsen. Anything from any of the other unions? No? Is there anything from any other party before I go back to Ai Group in respect to the observations that have been made about the points that it is advancing in favour of its proposal as opposed to the joint proposal? No? All right. Mr Ferguson, anything you wish to say in reply to what has been raised?

PN314

MR FERGUSON: Just a small number of points. I think one of the issues that has arisen between Mr Scott and Ms Svendsen's submissions is the issue of coverage. Obviously we have - and we have certainly not been secretive about this - adopted a coverage that is based on the work performed, based in short form on whether or not it's remote and so forth. We have set out in our submissions why we say there are sort of merits grounds for adopting that approach.

PN315

It was intended when we first filed to operate sort of in conjunction with the provision we had argued for in the last tranche of proceedings, but a general sort of exemption from the minimum engagement provisions for work done at home, to use the short form. This was intended in part to fill the vacuum, if you will, because I think you'll find that it was in the back of the original ABL proposal from the proceedings in I think 2019 or whatever. It wasn't constructed around this notion of just being work outside of designated shifts for a casual, or outside of particular hours for permanent employees. It was particular activities, and we see that, as a matter of merit, that is the sensible approach that should be taken to this. In our submissions we've been at pains to point out we appreciate the landing the Full Bench reached in relation to how minimum payment - exemption provisions last time around, and the findings it made about the evidence and it wasn't persuaded to include that but that we could run a case at a later point. We've adopted the approach that we have because we think it's open, (indistinct) considerations for the industrial merit of what we've advanced, to adopt the approach to remote response that we proposed, and we say that especially in circumstances where from our perspective there is no workable definition being advanced by the joint parties, and I'll come in that respect to the submissions of Mr Scott.

PN316

I understand that he believes that there's - you know, the issue has been sufficiently dealt with through the drafting or that it could just be rectified in the drafting. It doesn't seem apparent to us. There doesn't seem to be an articulated, even intended clear line between, in the context of casual employment, what work is remote work and what work is not. I don't think there is - the evidence doesn't give the Full Bench a picture of all the variable ways in which casual employees are engaged. I think we'd point to the submissions of, you know, one employer higher up that isn't on one platform. I don't know how to reconcile that with any of the submissions of Mr Scott. I think where we're then left is with - the joint proposal just doesn't advance a workable line for which work for a casual will be remote and which will not, but nonetheless, certainly we say the minimum engagement provisions that will be inserted into the award wouldn't be appropriate to some of this work that is done remotely. So because of this ongoing controversy, notwithstanding what the Bench found in the last tranche of proceedings, we've said that it's still open to adopt our approach, accepting that we haven't advanced further evidence, and acknowledging that the Bench has said we could run another application on that point.

PN317

JUSTICE ROSS: Sorry, Mr Ferguson, in relation to that, I understand what you've just said, but your position in the alternative is that if we were to accept in some form or other the joint proposal, that shouldn't be taken to close the debate on the issue and that you should be at liberty to pursue a broader proposition around - well, to use Ms Svendsen's characterisation of working at home, so something that deals with this issue in a broader context than the way the joint proposal seems to have been advanced.

PN318

MR FERGUSON: Yes, your Honour. I mean, that's the position in the alternative course, but the point we're making is we wouldn't want then to be met with an argument, you know - - -

PN319

JUSTICE ROSS: No, I understand.

PN320

MR FERGUSON: - - - (indistinct), et cetera.

PN321

JUSTICE ROSS: Yes. No, I understand what's the sort of argument that you might advance in different circumstances.

PN322

MR FERGUSON: It is, your Honour.

PN323

JUSTICE ROSS: Yes.

PN324

MR FERGUSON: But the balance here is we're conscious that continuing to contest it to the full extent in these proceedings would have caused us probably to utilise the (indistinct) to reply and say we want more time to advance evidence - - -

PN325

JUSTICE ROSS: Yes. No, no - yes, I understand, and look, I think, well at least from my perspective, a not dissimilar issue arises in relation to this broken shift interaction problem. No, but I understand what you're putting. Your proposition is a different - leave aside the individual differences that you've highlighted, but it's fundamentally different in terms of its coverage.

PN326

MR FERGUSON: Yes.

PN327

JUSTICE ROSS: Yes. No, I follow.

PN328

MR FERGUSON: We didn't want to retreat based on, you know, our views as to the inherent merit, but also in the absence of a workable alternate, in our view, because what is certain is we do need to have a carve‑out for this work in the minimum payment provisions.

PN329

JUSTICE ROSS: Yes.

PN330

MR FERGUSON: That seems to be common ground. It's just we say the carve‑out is bigger than the joint parties.

PN331

JUSTICE ROSS: Yes. No, I follow that.

PN332

MR FERGUSON: If that makes sense. So that's the definition, which I can leave that there. I think the issues that's then arisen are in relation to the minimum payment provision. I'm not sure that all that's between us is drafting. I think we can do the productive work that has been contemplated around narrowing the differences on drafting issues, and I understand the other parties are going to give consideration to this issue, but we raise arguments why as a matter of merit minimum payments that apply where people are not working for the full duration shouldn't necessarily adopt the inclusion of additional penalties and so forth that are referable to the disutility associated with actually working them. We think it is unjustifiable and unnecessary in the relevant sense, and we think that when you look at the issue of the interconnection between the rate of pay and the time periods are made - let's describe it that way; the minimum payments - it ends up resulting in, you know, just a frankly grossly unfair entitlement from the perspective of an employer in some circumstances, and we point to one example, admittedly an extreme one, but no doubt real, that of, you know, a very short period of work on a public holiday.

PN333

A casual employee picks up a phone or sends a text message, takes a minute or two, if the minimum payments were calculated based on penalty rates, they would in some circumstances get two and three‑quarter hours' pay for that one minute of work, and we think there's an unfairness there and that the better approach is to provide for minimum payments at minimum rates so that, you know, you get a half hour, 15 minutes, an hour, whatever it may be, that reflects in totality the disutility of the disruption and so forth, but where work is performed the relevant penalties and so forth would actually apply to the time spent performing that work. So that if it was a longer period of remote response work, you may well get more than the minimum payment, and that would in totality compensate for the disruption and so forth, but if you only do a very short period, well the minimum payment kicks in to ensure you get a reasonable entitlement. So I think there is that issue of real substance between us that I'm not sure can just be fixed through drafting, but I understand the joint parties are going to give some consideration to all of these issues. I don't want to dig in further. We've ventilated these points clearly in our submissions and our proposal, sort of give the counter point that might be adopted.

PN334

JUSTICE ROSS: Mr Ferguson, what would at least assist me is when you put the joint report in with Mr Scott if you can identify - well by all means the extent to which the drafting deals with it, but it would assist if you then articulate what is the remaining merit issue, in just the terms that you have described there.

PN335

MR FERGUSON: Yes.

PN336

JUSTICE ROSS: Then that will just make it easier to separate what's a drafting concern with what's a substantive merit - - -

PN337

MR FERGUSON: I think we can do that, and what might also assist is I appreciate our submissions have evolved over three tranches - - -

PN338

JUSTICE ROSS: Yes.

PN339

MR FERGUSON: - - - and in the timeframes we just haven't been able to consolidate.

PN340

JUSTICE ROSS: That's exactly what I'm going to (indistinct), that - - -

PN341

MR FERGUSON: Yes.

PN342

JUSTICE ROSS: And, look, if you do articulate what your merit concern is in that joint - is due by 4 pm next Wednesday - then I think it would be appropriate to provide the parties to the joint proposal with an opportunity to respond to that merit argument or issue, so a short opportunity, and they can do so by 4 pm next Friday. It's just that I think with the way your proposition - and this isn't a criticism - but the way it has emerged, and the different proposals and the different submissions, I think you crystallising that merit difference would be helpful, and then - well, I think I can anticipate what the submission in reply would be but I think they should be given an opportunity to put - - -

PN343

MR FERGUSON: No objection. No party's engaged with the various submissions (indistinct), just perhaps a product of the way it's unfolded and the timeframes.

PN344

JUSTICE ROSS: Yes.

PN345

MR FERGUSON: In any event, we're not going to oppose giving people an opportunity to - you know, another opportunity to have a shot at that so it's all ventilated.

PN346

JUSTICE ROSS: All right. Was there anything further you wanted to say in relation to this issue, Mr Ferguson, before we go to the quantum of the broken shift issue?

PN347

MR FERGUSON: No, we'll rely on our written material and what's included in that report to come.

PN348

JUSTICE ROSS: All right. Anything from any other party on the remote response before we move to the issue at page 43 of the background paper? No. Well, to be clear then the steps are to be taken in relation to the remote response proposition is that by 4 pm next Wednesday, Mr Scott after conferring with the other parties to the joint proposal, Mr Ferguson will file a joint report setting out any proposed drafting changes. As part of that Mr Ferguson will set out what Ai Group says is the merit differences, as I articulated them and essentially they go to both the coverage question and also the payment question.

PN349

Then the proponents of the joint proposal, that that material is to be filed by 4 pm next Wednesday. Then the proponents of the joint proposal will have an opportunity to respond to what Ai Group says about the merit and they should file that response by 4 pm on Friday, 10 September. All right, if there are not questions about those directions and no other issues on remote response, we'll move to the question about the quantum of broken shift allowance and that material is set out at paragraphs 126 through to 136. I think the addition - and the various submissions that the parties have set out. The additions to that material would be in Ai Group's most recent submission, it also supports a reduced quantum in respect of the proposed broken shift allowances. Was there anything you wanted to say about that, Mr Ferguson, before - - -

PN350

MR FERGUSON: Yes, I think here's two issues that appear (indistinct) if I can just (indistinct) to this. There's the controversy around whether shift workers can work broken shifts.

PN351

JUSTICE ROSS: No, no, we're not going to touch on that right now. Here, I'm only talking about the quantum.

PN352

MR FERGUSON: I'm not going to go to that. Then there's the quantum issue.

PN353

JUSTICE ROSS: Yes.

PN354

MR FERGUSON: The reason I say this is we have advanced a proposal that I think is different in it's framework to any other party.

PN355

JUSTICE ROSS: Yes.

PN356

MR FERGUSON: And I'm not sure if the Bench is aware, also filed a draft determination.

PN357

JUSTICE ROSS: I know, I've got that in front of me, yes. I'll come to that when we get to the broader question.

PN358

MR FERGUSON: Yes. So if it's just to the quantum it's all caught up in a sense, that we've supported the submissions advanced from some other parties that the quantum as proposed for the broken shift allowance is too high. But then we've advanced, if you will, supplementary submissions that it should be even lower than perhaps some of those we're proposing if our broader arrangement is adopted because we say one, the amount that was provisionally accepted by the or put forward by the Full Bench assumed that you weren't also getting a shift allowance.

PN359

JUSTICE ROSS: Yes.

PN360

MR FERGUSON: And took that point into account. We proposed a shift allowance albeit different to the way it works now. So that - - -

PN361

JUSTICE ROSS: Yes. But Mr Ferguson, do you - I read your earlier - leave aside the draft determination for the moment.

PN362

MR FERGUSON: Yes.

PN363

JUSTICE ROSS: I've read your most recent submissions but you supported the lower provisional broken shift quantums that were advocated by the ABI and AFEI but you then say that essentially where someone also gets a shift allowance, they should get a broken shift payment which is lower again. Is that the - - -

PN364

MR FERGUSON: Yes. That's the short point, and there's one supplementary argument there around - and the fact that the award already prescribes a premium for work after 12 hours, which goes to the disutility around extended shifts to some degree, but perhaps were not contemplated when the loading was first set. But your Honour that's right, you've (indistinct) our proposal.

PN365

JUSTICE ROSS: All right. Look, we've set out the arguments by ABI and AFEI and what they're proposing. Was there anything ABI or AFEI wish to add before I go to the unions for any response?

PN366

MR SCOTT: Just one matter, your Honour, it's Mr Scott here.

PN367

JUSTICE ROSS: Yes.

PN368

MR SCOTT: I think our position is broadly consistent with the Ai Group position that we in our 25 August submission indicated that - I'm just turning to it now, at paragraph 82 of our submission we suggested a variation to clause 29.4 to resolve the apparent tension.

PN369

JUSTICE ROSS: Just bear with me for a moment. Yes, which apparent tension are you addressing here?

PN370

MR SCOTT: The apparent tension between clause 29.4 and 25.6.

PN371

JUSTICE ROSS: Which is?

PN372

MR SCOTT: I might be jumping the gun, your Honour. If we - - -

PN373

JUSTICE ROSS: I think you are, yes. Because I'm not - look, I think we need to - it's a much bigger discussion around both, you know, what happens - the NDS proposal, what happens after - I don't really want to canvass them now. I just want to focus on the micro point of what's been said about the quantum, that's all.

PN374

MR SCOTT: I understand that, your Honour. Can I - I think it might assist the other parts just to clarify my client's position on this point.

PN375

JUSTICE ROSS: Yes.

PN376

MR SCOTT: The point I did just want to make was that we've seen the Ai Group proposal in respect of resolving the issue and we're effectively abandoning our drafting around 29.4 in preference for the Ai Group drafting. So I appreciate we'll deal with that matter in due course but I thought it might assist the unions to understand our position on that issue.

PN377

JUSTICE ROSS: Okay. No, no problem.

PN378

MR SCOTT: Thank you.

PN379

JUSTICE ROSS: I suspect when we get to it some parties are going to want further time to give consideration to Ai Group's draft determination, given it was only filed yesterday. So as I understand it, is that - so your outlined with Ai Group and their draft determination in total?

PN380

MR SCOTT: I can't express a view in total. I was merely wanting to indicate that multiple parties have suggested a tweak to 29.4.

PN381

JUSTICE ROSS: Yes. No, we've got - I think that's part of the problem is we've got, you know, not that I'm expecting much sympathy from the parties but the challenge for us has been - and understandably I guess, this issue's evolved over time and parties have adopted different positions at different points in time and trying to crystallise - that's why I found Ai Group's framing of the questions and we'll come to whether the parties, you know, agree with the framing. But that's a useful way of looking at it. What are the issues we're trying to solve here and what are the potential solutions? Because it's a bit like trying to untangle a bowl of spaghetti at the moment. I understand what you say, Mr Scott. It may be that your clients also need some time to consider the balance of Ai Group's proposal. When we get to that we will work through what needs to happen to provide everyone with a reasonable opportunity to respond on this issue, but I think we need to at least have a landing on a clear articulation about what the questions are that we're trying to answer, and we will come to that, but for the moment let's just focus on the quantum question and the provisional views that have been expressed about that. Can I go to the unions. Is there anything on the quantum of the broken shift allowances, and this is the material set out at 126 to 136, that they wish to say anything about?

PN382

MS SVENDSEN: I think principally, your Honour, we have dealt with the quantum issue in our submission. Now going back to it, I just need to find where we're at, in relation to the quantum of the broken shift allowance that we have principally put our points in, in support of a provisional view and don't believe there is a necessity for adjustment downwards of that, given that the intent of the Commission was to provide for an allowance to compensate for the disutility of having to front up to work on multiple occasions in a day and over the course of a longer period of work in a day. So that they were actually being paid more than just the short period of time earlier in the day, and we don't believe there's anything inconsistent with those - that anything changes in relation to the disutility that the Bench identified when it made its provisional view about the quantum of the broken shift allowance itself.

PN383

We understand on this occasion that the employer parties believe that it is appropriate to compare to other awards and other sectors and say that it's too high because others are lower. I don't know that - well, some are, some are lower, some are not lower, but I don't know that that necessarily helps us any at all. Nor do I think that making the point that we actually would have the highest broken shift allowance in modern awards or essentially is something against the quantum, the provisional amounts set by or proposed by the Commission, because most of this award is below just about every other modern award. We would quite like to get something that would be reasonably positive against other awards, but that again is neither here nor there. I don't think we would have other things to say in relation to that, or maybe only that the two hour minimum engagement term of working broken shifts, if people believe that is a significant matter quite a lot of other awards have a four hour minimum for a proportion of a broken shift. Again I am not sure that it helps us comparing those awards.

PN384

JUSTICE ROSS: Okay. Thanks, Ms Svendsen. Anybody else? No?

PN385

MR REDFORD: Your Honour - sorry, Ben Redford for the UWU. We would support that submission that has been made by the HSU. The question seems to be whether or not the provisional view expressed by the Commission should be adopted or departed from. We agree that the provisional view should be adopted, and to that end just make this short point. There is nothing that has been put, your Honour, to the Commission in relation to the provisional view that wasn't already before the Commission when it reached the provisional view. There is in effect two submissions being made; one is that the level is too high, and the other is in relation to the way the quantum of the allowance would compare to other awards, and both of those two matters were before the Commission when it formed the provisional view. The Commission was well aware of the level of the allowance, and it also in its decision refers specifically to a range of other awards in terms of determining the quantum. So on that basis we say there is no reason for the Commission to depart from its provisional view and it should be adopted.

PN386

JUSTICE ROSS: Thanks, Mr Redford. All right. Nothing further in relation to that issue. If we go to the matters arising from the August decision, and there are two matters. There's the provisional view regarding the particular characteristics of the transitional arrangements applying to the minimum payment for part-time employees, and any technical amendments to the revised draft determination. You will see at 142 the ASU puts forward some changes to the draft term dealing with the transitional arrangements, and they're set out. They're at both 151 and 153, and the submissions in support are put forward. The marked up version of the draft transitional term with the ASU's proposed amendments is at 156, and the HSU supports that broadly, but goes further and its proposed change relates to - on the HSU's submission the transitional arrangements should only apply to employment arrangements made before 1 October 2021, and its proposed changes set out at 153.

PN387

The questions really go to the parties who haven't already expressed a view about the provisional view regarding the content, or the provisional view at para 139 of the background paper; that is about the characteristics of the transitional arrangements, and whether you have any comments on the draft term. You can probably combine questions 10 and 11. So whether you have any comments about the characteristics of the transitional arrangements or the draft term in particular, and also what you say about the unions' proposals to amend the draft term. So let's go through the employer organisations about that and we will hear from the unions in reply. So, Mr Scott, what did you want to say about this issue?

PN388

MR SCOTT: Yes, thank you, your Honour. We are comfortable with the transitional arrangement that has been put forward by the Commission. We are supportive of that transitional arrangement. We don't have any comments in respect of the draft term, we're content with that. We think it's fair, reasonable and appropriate and resolves the concerns or issues that our clients raised on the last occasion.

PN389

In respect of question 11 the proposed amendments that have been put forward by the ASU and the HSU, I might just briefly go through those. In short, our position is that those changes are not necessary and should not be made. The first issue relates to when the transitional clause should come into effect. The Commission indicates provisionally that the view is that 1 March is appropriate, 1 March 2022, and the unions seek to effectively change that to either January or October.

PN390

Our view on that is it's not necessary. March seems an appropriate date to have the transitional arrangement commence. Clearly, employers will have varying levels of knowledge of these proceedings. The membership of my clients are - I'd like to think are very well informed of the progress of this matter but the reality is there will be employers out there who are not tracking this as closely and may not become aware of the changes until much closer to the 1 July 2022 date.

PN391

Just at paragraph 156 of the background paper which outlines the ASU's proposed amendments to the clause. Working through that at 10.5A(b), we say that it's unnecessary to have an inclusion on those terms. At (e) we say that's also unnecessary, particularly in light of what is in their drafting, 10.5A(c) which effectively encompasses the notion of consultation. At 10.5A(h), we say that that seems unnecessary in terms of having a dispute mechanism. One would think that the dispute provision of the award generally would apply.

PN392

I make the observation - - -

PN393

JUSTICE ROSS: I don't think that's their point there, Mr Scott. It's that they want the disputes to be able to be resolved by arbitration.

PN394

MR SCOTT: We're not supportive of that. We say that that's unnecessary. I make kind of a generalised observation that the unions throughout this matter have sought enhanced minimum engagement periods for employees. They've achieved enhanced minimum engagement provisions for employees and they seem to - the proposals seem to want to make it difficult for employers to transition to working patterns that are consistent with the enhanced minimum engagements, and we say that's not fair or reasonable and we've already made submissions in support of there needing to be a transitional arrangement. We're supportive of the Commission's transitional provision and provisional view, and we say the unions changes are unnecessary. Those are my submissions in relation to that issue, your Honour.

PN395

JUSTICE ROSS: Thank you. Ai Group, Mr Ferguson?

PN396

MR FERGUSON: Yes, thank you, your Honour. Ai Group does not contest the provisional view regarding the transitional arrangements related to minimum payments of part-time employees, nor do we propose any amendments to the draft. The approach differs from that which we proposed. We acknowledge and will address the issue that we've raised regarding the compatibility of existing arrangements and the new minimum payment obligations.

PN397

We also acknowledge that there's significant merit in an approach that facilitates the alignment of industry practice with the new requirements within a confined period, and the proposal negates some of the other difficulties that the Bench identified with our previous proposal, or proposals. But we do, however, submit that we anticipate that there will be a not insignificant burden upon employers to close from the need to comply with the new requirements relating to consultation and attempts to reach agreement in a relatively confined period. But we appreciate that that will mitigate some of the adverse impacts on employees that will flow from the necessary implementation of the reforms.

PN398

In that perspective we accept that it strikes a reasonable balance in our anticipation between the interests of employees and employers in implementing the change. We do oppose the various alterations proposed by the ASU. We say they're not necessary in the relevant sense but also going to disturb that balance that I've just referred to between the interests of the parties.

PN399

I think if I come just to the specific proposals and make some brief comments, we're certainly opposed to that element that seeks to move the March date back to 1 January - forward to 1 January for the two relevant purposes. I think the short point is here that the changes that employers are going to have to make to implement the new minimum payment requirements are potentially significant.

PN400

It's going to be changes potentially to their operations, to their staffing arrangements, even to the structure of their workforces potentially. And I think it's quite foreseeable on the evidence, without too much on the operative date issue, that demonstrate it's going to take time to identify what changes will be need to be made and then to implement them. And in that case we say it's reasonable to afford employers to at least 1 March to work out how they're going to or what they're going to need to do in order to start engaging people on arrangements that align with the new provisions.

PN401

We'd also make the point that, and I don't think it can be contested, that there are a raft of other issues that employers covered by this award are currently grappling with and that are taking up their resources. Obviously there is the pandemic which presents - and associated public health orders which presents particular difficulties for the sector. There's also grappling with the implementation of all of the other changes to the award that will be made and of course, at least at the moment, there's the implementation of the casual employment reforms to the Fair Work Act and the award that the Commission and the Full Bench were well aware of. So people's resources are already stretched, in our submission, and so a reasonable period of time is sensible.

PN402

We also make the point that the time of year proposed by the ASU in particular is not particularly helpful. In fact, it's quite problematic because it obviously falls around the Christmas, New Year period where, you know, while we accept that lots of employees covered by this award and the nature of work will have to be working but nonetheless many people in these organisations will try to take some period of leave at or around those times.

PN403

That will further hamper employers' abilities to meet an earlier deadline, especially in the context of what's required is that you have discussions with parties. That's going to be made much more difficult if employees or managers are not at work at that time. So having regard to all of that, we say that the dates shouldn't be moved, it certainly shouldn't be moved to the much earlier date proposed by the HSU.

PN404

Coming next to the proposal in relation to written notice and the proposed new clause 10.5A(b), we just say that's unnecessary, it just further complicates the clause and the Commission should resist adopting an over-prescriptive approach. The clause already requires discussions of the relevant issues and we think that's sufficient.

PN405

That then takes me to the proposed variations to clause 10C. That's the proposed extension of the notice period required for a unilateral variation to eight full days or three months. I think that proposal will fundamentally undermine the utility of the transitional arrangement. It'd mean that an employer would in effect, as we read it, have to have all the relevant discussions and try to reach agreement, you know, within a month of that clause commencing. If it was to be able to comply with the 1 July commencement for the variation and really that's clearly not going to be realistic.

PN406

If that were to occur we'd say that well, there'd be a need to push the operative date for some of the award variations back, which you know I think there would be technical reasons why that might be difficult but we assume that that's not a proposition that would be entertained, given it's a decided matter. So we say that that extended notice period in particular should certainly be rejected.

PN407

Then the dispute resolution proposal. We would firstly echo the comments of Mr Scott that there is an established mechanism for dealing with disputes under this award. We don't see that there's any need to deal with disputes around this issue in a different way. That provision already provides a degree of oversight with these sorts of issues and facilitation and resolution of those disputes by the Commission. We say it's a satisfactory approach. We do reject the ASU submissions. What they have put forward in effect amounts to arbitration by agreement or consent arbitration. That doesn't seem to be at all what the proposal would require and on that basis we don't accept that there is a basis for even including such a provision in the award.

PN408

In any event, we say that this clause is going to only operate for a short period of time. It's not the sort of provision that should be the subject ideally of arbitrated outcomes and so forth by the Commission. I think it's better dealt with through the established practices, so we would strongly oppose the dispute resolution proposal. They are the submissions on that point, if the Full Bench pleases, unless there are any questions.

PN409

JUSTICE ROSS: No, thanks, Mr Ferguson. AFEI?

PN410

MS LO: Thank you, your Honour. We support the Commission's provisional view and we don't propose any amendments to the draft terms in the provisional view. We oppose the ASU's and the HSU's amendments to the draft provision for the reasons already stated.

PN411

JUSTICE ROSS: Thank you. NDS?

PN412

MR PEGG: Yes, your Honour. We have previously indicated in our written submissions that we support the provisional view. We don't support the proposed amendments from the unions. We support the submissions already made by ABI and AiG. There are just a couple of things I would like to add very briefly, just to emphasise that one of the problems that we would see with an earlier date of either January or October is that this process is not just about discussing or negotiating with an employee their individual hours of work. The employer and Mr Ferguson touched on this; the employer has to figure out what new arrangements will apply. That just adds to the complexity of the discussions. We would just like to make that point.

PN413

In relation to the proposed notice of any change in the ASU draft, under the ASU's (d) changing the notice to 24 days, we just point out that what we're talking about here is notice of a change to hours of work to fit within a two or three‑hour minimum engagement. We're not talking about notice of termination. We're generally going to be talking about either an increase in hours or a rearrangement of hours, so we would say that 84 days is just disproportionate to the matter being dealt with.

PN414

Other than that, we agree with the submissions from AiG and ABI that the other proposals are unnecessary and the draft determination as it stands is sufficient. Thank you.

PN415

JUSTICE ROSS: All right. Thank you. Is there anything further in relation to this issue; the transitional arrangements? Anything else from the employers before I seek to get any reply from the unions? No? All right. Anything from the unions in reply to what has been put about their proposed amendments?

PN416

MR ROBSON: Yes, your Honour. Robson for the ASU. There are a few points I would like to make in reply and I'll start with the 1 January operative date. The way we have approached this is, you know, taking into account the Bench's comments at the last proceedings about balancing the unfairness between employers and employees and that there will be some unfairness visited somewhere. It seems to us that the value in this transitional arrangement is that there is a mechanism to implement the decision.

PN417

The ASU's initial position was that we didn't need one. The employers had plenty of mechanisms in their grasp to adjust their business practices, restructure if they didn't want to pay people the minimum payments for engagements that were less than that, but it seems to us if there is going to be a transitional arrangement start it as early as possible so that there isn't a situation which would happen if the March dates were adopted by the Commission where a person could be engaged to work in February and then within a very short period of time be asked to change those hours all over again.

PN418

We don't think there is any particular unfairness that would be visited on employers by the 1 January date. Certainly it's a clear date before which they have to get their house in order and start employing people on new arrangements. Really after that point in time - you know, the employers will have known that this has been coming since May of 2021 and they all have had until 1 July 2022, more than a year, to actually put that decision into effect. That's plenty of time to address the issue and really pushing it after the end of this year is extreme.

PN419

We think this offers a really good balance in that it gives more time for discussion. The transition arrangements start to apply. I think one of the things that employers have missed is that if discussions fail, directions can be given at a longer period of notice. You know, I think the 1 January date gives us a better chance that arrangements will be sorted before the decision comes into effect.

PN420

Just in reply to a point Mr Scott made about the notice periods, he said that if the position was pulled back to 1 January and the extended notice period were adopted then it would give employers a very short period of time to use the transitional arrangements before the decision came into effect on 1 July 2022.

PN421

JUSTICE ROSS: I think that was Ai Group's submission and it was that it would undermine the utility of the proposal, and would only provide a month, but that's predicated on a 1 March operation date.

PN422

MR ROBSON: Indeed, and so we say more time for everybody involved in response to that. Now, going through some of the other points, your Honour, we have proposed a new clause (b) that would require an employer to give notice to an employee that they're exercising a right under this clause. We don't see that this would add any unnecessary complexity and it would serve as a guide to employers in this sector how to go through the steps in this procedure, and put employees on clear notice that there are consequences for not reaching an agreement.

PN423

I think what we could see without it is the process isn't properly explained as people are implementing this decision and all of a sudden, you know, employees are suddenly caught with a notice under this provision that their hours have been changed. This just seems to us a simple measure to make sure that everyone understands what is happening.

PN424

JUSTICE ROSS: Speaking for myself, it seems a slightly odd proposition that they must be given a written notice that they are an employee to whom the clause applies before the discussions are held and the genuine attempt to reach agreement. Wouldn't it become apparent to them when the discussions are held that it's a clause which applies to them and what would be the utility - - -

PN425

MR ROBSON: I don't think it's necessary - - -

PN426

JUSTICE ROSS: Yes, but under your proposition they could get a written notice at 10 o'clock and at 11 o'clock the discussions can commence. It may be that under (c) an alternate would be the employer must, you know, inform the employee that they are an employee to whom this clause applies and must discuss, and go on. Why would you need a written notice? What is the point of that?

PN427

MR ROBSON: Look, I think a written notice gives an employee something that they can take away and consider, and is a clear statement that this transitional arrangement will apply to them. I understand your - I understand where you're coming from, your Honour, when you say well they should surely be informing them during the discussions. What we'd say in response to that is employers and employees in the sector have discussions about changing agreed patterns of work all the time. It happens when a client leaves the service. It happens when they ask for an employee to work additional hours.

PN428

It's important to place this particular discussion into a clear context where refusing to make an agreement means that your hours of work may be unilaterally varied. That's a significant departure from the expectation employees would have under the current - under the normal award provisions that their agreed pattern of work can't change without the agreement.

PN429

This is a significant difference from that, and they should be on notice of that when they're trying to reach agreement with the employer about what those hours look like, that there is an unusual consequence that they may not be aware of if they don't reach agreement. Certainly, a written notice is something that they can take away, seek advice, have someone explain it to them, rather than trying to remember, you know, some procedural point raised in an oral discussion.

PN430

JUSTICE ROSS: Yes. So the proposition is that they should be put on notice and you say in writing, that this clause applies to them and that there's a process where there has to be a discussion and a genuine attempt to reach agreement, and that if having followed that but no agreement's reached then their work arrangements could be unilaterally altered by the giving of the notice.

PN431

MR ROBSON: Yes, that's right, your Honour.

PN432

JUSTICE ROSS: Yes, okay.

PN433

MR ROBSON: Which brings me to the next point. This is paragraph (b) in the Commission's draft term, which would be paragraph (c) of our amendments. We don't propose any changes here but the point we make is that seek an agreement is not consultation. Agreement requires both parties to consent to the ultimate outcome and you know many options could be canvassed within those discussions but significantly there's no connection in the clause between discussions under paragraph (b) and then the subsequent notice that's given under paragraph (c) in the Commission's draft term. There's no limitations on what pattern of work can be notified under paragraph (c). So we've identified some of those issues in our submissions. It could be changed days of work, changed starting and finishing times. There's nothing in the draft term as it stands that limits the notified working arrangements to minor amendments to so that, you know, working arrangements reflect those, you know, that are now sort of countenanced by the minimum payment period.

PN434

The draft term doesn't say you can add on an hour of work where you need to so the person's working two hours or three hours, you know, every time a minimum payment period is engaged. It sort of offers a complete and open scope to notify new working arrangements. So that's where we say the concept of consultation comes in and it's I think important that in your - in the Full Bench's provisional view it did, you know, it did separately identify discussions and consultation.

PN435

Consultation is really about responding to a decision by an employer that doesn't require your consent. If there is going to be such an expanded power to notify hours, then surely employees should be put on notice what those hours would be, and before the decision is implemented, there should be consultation and we say we can achieve that by a clear reference that clause 8A of the award applies, which deals with consultation with a change to a regular roster or hours of work. That is normal and just should be the clause.

PN436

This comes to our point about the notice period. The draft term provides for 28 days, which is four weeks, roughly a month. We've provided 84 days which is 12 weeks or roughly three months. We say this is particular important for our members, many of whom choose part-time work and value the agreed pattern of work because it means they have certainty about when they are and aren't working, and those hours can't change at short notice. A particular piece of feedback that we have had is that 28 days is insufficient time to, you know, make alternative childcare arrangements. Twenty-eight days, people might simply not be able to work the notified pattern of work.

PN437

We're not sure that 84 days necessarily corrects this but three months seemed to give people enough time to try and find a way to solve it. Whether it's a different centre, different hours or even grandparents, there's some way to make it work. But the alternative from our perspective is that under this clause, once hours have been notified an employee would be stuck with them and they're only genuine sort of way of resolving that would be to quit their employment. We think that's an undesirable outcome from both the perspective of employees but also employers who are facing a significant problem with attracting workers to the sector.

PN438

Beyond that, the only outstanding issue from our perspective is the submissions about arbitration. We say that there's no need for an employer to exercise their rights under this clause. We fully believe that they're - you know, anyone who's exercising this would understand what the clause is, how it works and know that there are other alternatives to it. If they're restructuring their business they can provide - they can go through that normal process of consultation and redundancy. They can agree to pay the person the minimum payments or they can continue negotiating with the employee to find an agreeable pattern of work.

PN439

It's particularly important that they - and again this strengthens our argument about the 1 January operative date for these transitional arrangements. But it's made in the context where there isn't really any recourse to an employee who's been notified a pattern of work that is unfair, that is - seems to be - that doesn't take into account their circumstances. It seems to be directed at driving them from their employment. That causes them real injustice other than leaving the job, and there needs to be some easy, quick way of resolving that dispute. We say that is an arbitration power in the clause.

PN440

Those were all the points I wanted to make, your Honour, but I'm happy to answer any questions.

PN441

JUSTICE ROSS: All right, thank you. Anything from any of the other unions?

PN442

MS SVENDSEN: Yes, your Honour. I'd just like to talk a bit about the date in clause A. I think that there seems to me to be a - maybe it's a misunderstanding on my part, but it seems to me that - that this clause applies in relation to agreements made under 10.3(c) before a date, is only about when those employment contracts were made, and it doesn't limit the opportunity for people to have negotiations, and while they may not have at all figured out what they're yet going to have as a process around rostering they can enter a new employment agreement with a new employee on the basis that these hours are only available for this period of time. 'We are restructuring the work of the way that work is performed in this organisation, and you are on notice that we will need to talk about this because' - from, you know, whenever it is that they decide they're going to have those consultations or have their organisation restructured, but that the caveat in relation to that employment agreement can be quite clear and they never have any problems doing it normally, that the hours agreed between the parties will apply until a period of time when they have to start negotiating new hours based on new organisation of work.

PN443

And it seems to me that if employers are entering employment relationships for an hour or less portions of work, given that they know that they are going to be moving towards some form of other grouping or organisation of employment that takes account of the two hours minimum payment in the very near future, that they're being disingenuous in terms of the employment contract they're entering into with those employees. You know, it's a bit like what happens when you buy a property, you need to be on notice that there are plans for the property to be acquired by VicRoads or whoever else at marginal rates, so that you know you shouldn't be buying that. And this is the same sort of thing, they should be put on notice that the terms of the agreement that they are entering into with the employer will be subject to negotiations and change if it isn't within their parameters of the organisational change that will be being undertaken in the next six to eight months.

PN444

And therefore I see no reason why it should apply openly without - there should be an ability for, I should say, an employer to continue to enter into arrangements that they know they will not be able to keep, and they would then have the open slather that Mr Robson has pointed to in relation to changing those hours ultimately unilaterally if agreement is not reached.

PN445

JUSTICE ROSS: All right. Thank you, Ms Svendsen. Any other - no? Anything in response by the employer bodies?

PN446

MR FERGUSON: Just briefly, your Honour. Just in relation to the point that I understand Ms Svendsen to be advancing. I understood it to be in effect that an employer should reach some sort of temporary agreement with an employee in contemplation of the fact that hours might subsequently - I just don't see how that accords with the requirements of the award in 10.3 that require a high degree of specificity around the agreement as to particular hours that need to be reached. Put aside the contract point and I am conscious that the Bench made that distinction decision.

PN447

The award requires reaching agreement on specific hours, and then they can only be varied by subsequent agreement. So an employer (indistinct) that problem, and that's why it's not going to be possible to have some sort of temporary agreement that may be varied in some other way or that could be subject to negotiation. I think the other point that we would reiterate, and I think (indistinct) depends on our opposition to the various points the union just raises.

PN448

Employers still quite possibly won't know and won't know for some time what kinds of changes that they're going to need to make to their broad operations in order to be able to afford the new minimum payment provisions or the new minimum periods of work to someone. And so they do need some - in our assessment some quite significant period of time, we think at least March. Obviously we have only been able to have limited engagement with members about this, but we think that's the point that everyone is missing. It's not like employers can just know this now and be forthright with employees, but I think that point is understood.

PN449

JUSTICE ROSS: I understand both those points, and I understand the point, the difficulty with a temporary agreement, but as I understood the thrust of Ms Svendsen's proposition is that, well employees who accept a part-time position under the SCHADS Award, let's say November this year, or October or whenever, once the variation determination has been made should be put on notice in some way when they're employed that, well this clause is going to apply and the arrangements we have agreed to may need to change. That's the thrust of the proposition.

PN450

MR FERGUSON: In terms of that element of it I think - obviously this is a public document - the question is really to what extent employers should have to be the ones to advise every employee about the provisions that might apply under the award.

PN451

JUSTICE ROSS: Yes. Employers have to give them an information - - -

PN452

MR FERGUSON: Yes. There is some burden, a (indistinct) burden that flows from that. To pick up a point that fell from your Honour as well around the discussions and formal notice, to the extent that the Bench was minded to - some sort of obligation on an employer when they're having those discussions to make employees aware of these provisions, we would prefer that it did not extend to necessarily having to set all that out in writing. It is just another administrative burden, and I emphasise that for small employers setting out things in writing in a way that clearly, you know, meet these sorts of requirements are not always an easy task, or one that they're not troubled by, and we see that (indistinct) as far as possible where the clause is really going to make people sit down and have a discussion in any event and these things will, we think, be ventilated, but that's probably a different point.

PN453

JUSTICE ROSS: Okay. Is there anything further on the transitional provision? No? Then one of the other issues, or the only other issue arising from the August decision is whether there are any technical amendments proposed in relation to the revised draft determination which is set out in attachment 1 of the background paper. I don't think any party addressed this in their reply submissions, but a number indicated they may wish to make an oral submission about it. Does any party wish to do that?

PN454

MR SCOTT: Your Honour, it's Mr Scott for ABI. One thing that we have become aware of which does not arise from the August decision, it arises from the May decision and the draft determination that was issued at that time, but it's an issue that no other party has raised. It relates to paragraph 987 of the May decision. I apologise. Perhaps if it's easier at this stage I can take you to the part of the draft determination or the revised - - -

PN455

JUSTICE ROSS: Sure. Yes.

PN456

MR SCOTT: It's item 1 of the revised draft determination that relates to clause 10.3, part-time employment. It's subclause (f), 10.3(f). This subclause arose or was put into the draft determination as a result of the findings of the Commission on the conclusion made at paragraph 987 of the May decision, and what that part of the decision says is, it expresses a provisional view that the award be varied in two respects. One was that there be a part-time hours review mechanism, and the other was to make it clear that working additional hours is voluntary.

PN457

JUSTICE ROSS: Yes.

PN458

MR SCOTT: And that provisional view is given effect by the inclusion of 10.3(f).

PN459

JUSTICE ROSS: Yes.

PN460

MR SCOTT: There appears to be a disconnect between the provisional view and the drafting that gives effect to it. The provisional view was to make it clear that working additional hours as a part‑time employee was voluntary. It wasn't something you could be required to do.

PN461

JUSTICE ROSS: Yes.

PN462

MR SCOTT: 10.3(f) appears to deal with a different matter entirely, which is around whether or not an employee can be required to agree to a change to their agreed pattern of work.

PN463

JUSTICE ROSS: Yes.

PN464

MR SCOTT: I'm happy to now propose some alternate drafting at point 3(f), and - - -

PN465

JUSTICE ROSS: I think probably the most appropriate course would be for you to file a note, and you know, it can be done reasonably shortly, so let's say by 4 pm - I'll put the proposition to you, and then you can see whether the timeframe fits - but by 4 pm tomorrow a note about the issue you've just raised and the proposition that it doesn't reflect the provisional view and the proposed change to the drafting, and then any other interested party would have until 4 pm next Wednesday to make any comment they wish to make in response to your note, and if you want to say anything about their comments then you would have till 4 pm on Friday of next week. We would issue short directions tomorrow just to confirm the directions in respect of that issue and anything else that arises. That's probably - unless you've got, you know - it just gives you an opportunity. I think it would be easier for parties if they can see it in writing and see what the short argument is for it.

PN466

MR SCOTT: Absolutely. Those directions are fine for us. Thank you, your Honour.

PN467

JUSTICE ROSS: All right. Was there anything else about the draft variation determination that you wanted - - -

PN468

MR SCOTT: No, not at this stage.

PN469

JUSTICE ROSS: All right.

PN470

MR SCOTT: No. Thank you, your Honour.

PN471

JUSTICE ROSS: Any other party?

PN472

MS SVENDSEN: Yes, your Honour. It's Leigh Svendsen from HSU. There were two matters that I looked at that I wasn't 100 per cent sure of, and I'm happy to comply with those - I actually made some notes about what could be proposed drafts, but it was very late last night, to comply with the proposals you've just made about a note tomorrow. The first was at paragraph 11 in relation to client cancellation (f)(v). In the last - - -

PN473

JUSTICE ROSS: Just bear with me for a minute. I just want to turn it up.

PN474

MS SVENDSEN: Page 58.

PN475

JUSTICE ROSS: Yes.

PN476

MS SVENDSEN: In the last sentence it says, 'In these cases, clause 25.5' blah will apply.

PN477

JUSTICE ROSS: Just a sec. So you're at 11(f). Which roman number?

PN478

MS SVENDSEN: Five.

PN479

JUSTICE ROSS: Yes, got it. 'The make up time arrangement can only be used where', et cetera?

PN480

MS SVENDSEN: Yes.

PN481

JUSTICE ROSS: Yes. Right.

PN482

MS SVENDSEN: The last sentence refers back to the application of 25.5(s)(iv)(a), and I just thought that possibly it needs to say 'where the 24 hours' notice is not provided', that that's where 25.5(s)(iv)(a) applies. Happy to propose that.

PN483

JUSTICE ROSS: Yes, okay, which you can follow the directions that were just settled with Mr Scott. That's fine.

PN484

MS SVENDSEN: Yes. The second one is under point 12 at 25.6 Broken shifts (b)(ii).

PN485

JUSTICE ROSS: Yes.

PN486

MS SVENDSEN: Again in the last words, it seems that either it should stop at 10.3 or it should say 'or subsequently' there either at 10.3(e), but again I'm happy to put a draft in a note and send that around for comment.

PN487

JUSTICE ROSS: Thanks, Ms Svendsen. Anybody else? No? The remaining matter, and we might adjourn for a luncheon adjournment shortly, but I wanted to give you something to think about over the break - you know, God forbid you should have a rest - I think from our perspective the first thing that we want to try and test whether there's an agreement about is in relation to the relevant questions that are before us in this interaction issue, if I can call it that, between what we have determined on broken shifts, what happens with shift premiums, overtime, working of broken shifts during times where shift premiums are payable. Ai Group has framed the questions at paragraph 5 of its submission of 25 August. I think there's an additional question in after the question posed, 'Does the award permit an afternoon or night shift to be broken', so can you have broken shifts on an afternoon or night shift - you've each put various views about that - I think the next question is, well, if the award does not currently permit broken shifts to be worked on an afternoon or night shift, should the award be varied to permit that, and that's sort of a related question in the next one, (b), that Ai Group has proposed.

PN488

What I'd encourage you to do over the break is to discuss two things amongst your respective groups, mainly to avoid I suppose three different positions from the unions, but what are the questions, and secondly, Ai Group has circulated a draft determination giving effect to what it sees as the way forward, and when we come back at 2 o'clock I want to hear from each of you about, one, the questions, and two, what's the best way forward in relation to this issue given that the respective positions of parties have shifted a bit from time to time. We've now got a draft determination from Ai Group that crystallises how it sees the path forward. We don't have draft determinations from each of the parties in respect to each of their positions. We have some of those.

PN489

But how do you propose we resolve this issue? I don't mean by that on the merits. I mean as a matter of procedure. Do parties want us to finalise the questions after what they say and then provide a short period for the parties to say what they want to say are the answers to those questions? Do you want an opportunity to comment on Ai Group's draft determination? Is there some other way forward? This interaction issue, it seems to me, is an important issue. It's an important practical issue in the industry and I think it's a significant issue for us to determine. If we determine that you can't work broken shifts on an afternoon or a night shift and that's the end of the issue, and we confine the working of broken shifts to day work, that may have a significant impact - well, no doubt would - on the sector, and we just want to be sure about the next step in the resolution of this issue.

PN490

I think all the other issues are relatively defined, and we've got the short directions to deal with the remaining issues that will put us in a position to be able to determine all of those, but the determination of these issues is a bit more opaque because parties' submissions have moved a bit and even in the last few days, so we want to hear from you about what the process is to resolve that point. We will adjourn now and we will resume at 2 o'clock. Thanks.

LUNCHEON ADJOURNMENT [12.57 PM]

RESUMED [1.53 PM]

PN491

JUSTICE ROSS: All right, as I indicated before the break, if we can begin by dealing with the questions that are to be answered, and I think the starting proposition with that are the questions set out at paragraph 5 of Ai Group's submission of 25 August, with the addition of the question that I suggested before the break regarding, in essence, that if the award does not permit an afternoon or nightshift to be broken, then should it be varied to permit an afternoon or nightshift to be broken.

PN492

I'm not asking you to comment on what the answers are to the questions, at the moment, but I want you to say what you wish to say about the questions, firstly, the formulation of the questions, and secondly, about what the process from here should be including an opportunity to comment on the draft determination filed by Ai Group. I might start with you, Mr Scott.

PN493

MR SCOTT: Your Honour, I've had a quick discussion with Mr Ferguson and I might, if it's okay, allow him to lead off.

PN494

JUSTICE ROSS: Sure. Yes. Mr Ferguson?

PN495

MR FERGUSON: Yes, your Honour. I think I might say at the outset one of the difficulties from the employer parties is to some extent I think there's a shared view that we've gone a case that answers these questions and there seems to have been a - everyone part from the NDS, a coalescence random view that the position ultimately pressed by Ai Group is supported. I think in that context, you know, we were - we're ready for the matters to be determined but I think the unions' position might alter our position.

PN496

JUSTICE ROSS: Yes.

PN497

MR FERGUSON: We didn't reach a landing on words but if I can explain to you our thoughts around the question issue. I think there is some concern that we had apprehended that the first question, Question A, might allow the Full Bench to reach a conclusion that the terms of the award are uncertain or ambiguous.

PN498

JUSTICE ROSS: Well, let's assume we don't reach that, and let's assume that we - if we find that that answers the answer that is no, then what do we do?

PN499

MR FERGUSON: Well, we certainly think that a question should be asked then should the award be varied to permit it.

PN500

JUSTICE ROSS: Yes.

PN501

MR FERGUSON: And I think our answer was that question might in one way or another need to arise, even if the answer was yes to that previous question. You know, the question needs to be answered - - -

PN502

JUSTICE ROSS: Yes, I agree because even if - well, in fact you propose that with the amendment - you propose that 29.4 be deleted, don't you? Mr Ferguson?

PN503

MR FERGUSON: Sorry, I seemed to have gone on mute for some reason. Yes, we proposed that that 29.4 be amended, so that arises regardless.

PN504

JUSTICE ROSS: Yes. No, that's fine. So however that first question is framed, does the award permit as defined to be broken or is it ambiguous or - - -

PN505

MR FERGUSON: Yes.

PN506

JUSTICE ROSS: If it doesn't permit it and it's not ambiguous should it be varied to permit it?

PN507

MR FERGUSON: That's right, your Honour.

PN508

JUSTICE ROSS: Yes. No, I appreciate that you think you've answered the questions because you framed them but - - -

PN509

MR FERGUSON: Yes, that's why and we were conscious that the Bench was raising, you know, the (indistinct) for this.

PN510

JUSTICE ROSS: Yes.

PN511

MR FERGUSON: But we also read the material, it seemed to be that there was perhaps more consensus than we thought around the first question but I think it's better for the unions perhaps to weigh in - - -

PN512

JUSTICE ROSS: Well, even if you all agree, that doesn't mean we're going to agree, so that's why I need to structure the questions to accommodate different scenarios, that's all.

PN513

MR FERGUSON: Yes.

PN514

JUSTICE ROSS: So that's your position and ABI's and AFEI's. What's the position of NDS?

PN515

MR PEGG: Your Honour, I think we're pretty much at the same point as the other employer parties. Without going through in too much detail, I'm not sure I particularly agree with the framing of the first question from AiG but I don't think it really matters. I think as a practical matter the answer to that question yes, the broken shift can be worked in a way that's analogous to an afternoon shift as defined by clause 29, and that the current provisions of the award enable that.

PN516

I think from reading the submissions of the other employer parties and in our reply submission and most recent reply submission, we largely supported the submissions of AiG and ABI around this, and at first reading we think the draft determination from AiG at least broadly speaking gets us there. So to some matter, I think we're pretty much on the same page as the other employer parties at this point.

PN517

JUSTICE ROSS: Okay. Look, at some point and the employer parties might want to think about this, what I'm longing for is one submission that you can sign up to that doesn't involve me reading the five previous submissions you've filed in relation to this issue, and then trying to distil what the nuances of difference might be between your respective positions. If you can give some thought to that then I'll go to the unions while you might think about how we get to that point. Which of the unions wants to go first?

PN518

MS SVENDSEN: Your Honour, I'll give it a crack and we'll see how we go. I think that primarily we believe that you don't actually need to know whether it currently enables afternoon or night shift but given that the questions arise and we all have put slightly different slants on whether it does or it doesn't, it is at least ambiguous and that the Commission should therefore decides it's ambiguous and make a decision about it, - - -

PN519

JUSTICE ROSS: Just on that - - -

PN520

MS SVENDSEN: - - - about going forward.

PN521

JUSTICE ROSS: Ms Svendsen, just on that. Leave aside whether it's ambiguous or what it currently means, do you agree with the proposition that the award should permit afternoon or a night shift to be broken?

PN522

MS SVENDSEN: Generally in regulated terms yes, I do. Not as an unregulated - - -

PN523

JUSTICE ROSS: No, no, I follow that. I appreciate that. How that's done, well, that's a matter of contest between all of you. But you're not saying that there should be no broken shifts on afternoon or night, rather you're saying there should be - that broken shifts are permitted for this class of employees but it should be regulated in the way that you have advanced.

PN524

MS SVENDSEN: Yes.

PN525

JUSTICE ROSS: Is that the position of all the unions? Because if it is then we may not need to trouble ourselves with the construction argument or ambiguity, we can go straight to the proposition that whatever it means now doesn't really matter because the parties are in a general agreement that the award should permit an afternoon or night shift to be broken.

PN526

MS SVENDSEN: Your Honour, I'll just let both ASU and UWU make the statement here because we unfortunately didn't really get a chance to (indistinct) given that Mr Redford had to rush off to get a COVID test.

PN527

JUSTICE ROSS: Okay. Mr Robson.

PN528

MR ROBSON: Thank you, your Honour. Look, our submission about the first question was covered in our submissions of two weeks ago.

PN529

JUSTICE ROSS: Look, I'm not - - -

PN530

MR ROBSON: No, no, sorry, I'm coming to my point directly here.

PN531

JUSTICE ROSS: Yes.

PN532

MR ROBSON: Look, our position on this is there are two courses of action the Commission could take we'd support. The first is that shifts are worked continuously. The other is that broken shifts are permitted for disability support workers and home care workers but the regulation that applies to day workers or should apply to them as well, and the broken shift allowance should be paid in addition to the shift penalties that currently exist in the award, as the award currently provides for them.

PN533

JUSTICE ROSS: Yes. Mr Redford?

PN534

MR REDFORD: Thanks, your Honour. I appreciate your Honour's attempting to confine the question so I make the submission - - -

PN535

JUSTICE ROSS: Not with much success, Mr Redford, so knock yourself out.

PN536

MR REDFORD: Thanks, your Honour. Our position is this, we would not support the award being varied to permit broken shifts being worked on an afternoon or night shift, in circumstances where the award does not permit that at this point in time. If the implications of that, your Honour, are the significant - - -

PN537

JUSTICE ROSS: All right. So in other words, you only - so in other words, your position and Mr Robson's is that yes, they can be worked provided we determine the way in which they're worked in the way that suits you?

PN538

MR REDFORD: Well, I'd put it a different way, your Honour.

PN539

JUSTICE ROSS: I'm sure you would but I think that's the import of it.

PN540

MR REDFORD: UWU would prefer that the award remain in a state prohibits broken shifts being worked on an afternoon or night shift if the implications of a variation are to change fundamentally the way in which the shift allowance works.

PN541

JUSTICE ROSS: Well, sure, but that's the same thing. You're prepared to countenance broken shifts on afternoon or night shifts provide the Bench agrees with you about how they're regulated.

PN542

MR REDFORD: Well, that's not the way in which I'm putting it.

PN543

JUSTICE ROSS: No, but that's the way in which I'm hearing it.

PN544

MR REDFORD: I understand what you're saying.

PN545

JUSTICE ROSS: All right. What about the timing and the next steps. I think we'll just determine the questions for ourselves and put them to you. I don't think there's likely to be much agreement about the form of questions, so we'll formulate them as we see fit and we'll let you know how much time if you need to respond to those and to make any comments on the draft determination that has been filed by Ai Group.

PN546

MR SCOTT: Your Honour, it's Mr Scott here. I mean, for my client's part, I would think that if the questions could be formulated this week we wouldn't need more than a week to respond and say what we want to say about those questions.

PN547

JUSTICE ROSS: And is there any - well, I tell you what, don't respond by referring me to half a dozen different submissions you've filed over the course of the past two years. If that's what you're thinking of doing and that's why you only need a week, you might need to re‑think that.

PN548

MR SCOTT: No, not at all. I clearly understand why your Honour wants the parties to make their positions clear, and we can do that within a week.

PN549

JUSTICE ROSS: Okay. Anyone else on the employer side?

PN550

MR ROBSON: Yes, your Honour. I was being a little bit more realistic. If we're going to attempt to try - and I think employer parties should - reach agreement on a common set of submissions, perhaps the more sensible course is to give us at least a week and a half, 10 days or two weeks. The thing I'm very conscious of is we don't want, like anyone in these proceedings, to drag on because the actual substantive issues we're talking about affect employers' ability to take steps to meet the 1 July deadline. So, you know, let's say (indistinct) 10 days or two weeks. I'm just speculating, because there's three parties working together at least, or four. The only thing I'm apprehensive about is if the unions now advance a whole raft of additional evidence. I don't know if your Honour was contemplating evidence.

PN551

JUSTICE ROSS: No, because you were supposed to have put anything in you wanted to put in - - -

PN552

MR ROBSON: We're content with that. Just given the gravity of the matter if they did, then we would have needed to respond to that. We would have hoped that there was a bit more common ground around factual propositions, or there could be some common ground around factual propositions, but I feel like that's banging my head against a brick wall. But anyway - so perhaps 10 days or two weeks, your Honour.

PN553

JUSTICE ROSS: All right. Well, on the union's side, what's envisaged is the Bench will formulate the questions by the end of the week, provide them to the parties. There would be a period of time - the employers are saying variously between one and two weeks in which to file submissions. We would then provide a period in which parties could file reply submissions. The first date would be everyone. So it's not a case of unions going first or employers going first. You would all - well, if we take what Mr Ferguson has suggested, then the dates would look like this: it would be by Monday 13 September all parties would file what they wish to say in response to the questions, without referring to a previous submission, so go to the trouble of actually writing it out again, and any comments you wish to make and submissions about Ai Group's draft determination by 4 pm on Monday 13 September, and then if that was the date that was adopted then the replies to that probably by Wednesday 22 September, with liberty to apply in any case. So that's broadly the proposition. What do the unions say about that?

PN554

SPEAKER: No objection from me, your Honour.

PN555

MS SVENDSEN: No objection from me either, your Honour.

PN556

JUSTICE ROSS: Thanks.

PN557

SPEAKER: No objection from me, your Honour.

PN558

JUSTICE ROSS: All right. Is there any chance the unions can put in a joint submission?

PN559

MR PEGG: I was just thinking the same thing, your Honour, but I'd obviously need to put that to my colleagues in the other unions.

PN560

JUSTICE ROSS: Yes. I mean that's why the slightly longer period than the one that Mr Scott had gone for. So it's really - if you can endeavour to do that then that would be helpful, because there's often not a lot of difference. It's the same on the employers' side in respect of some of these issues, but it saves us trying to put a question about what the difference in language might mean. But if you can give some thought to that? Now, you should have received, I think - I did the directions over the lunch break about the filing of the material - - -

PN561

MS SVENDSEN: Yes, your Honour. We did.

PN562

JUSTICE ROSS: Yes, okay. I'm mainly concerned here about Ms Svendsen and Mr Scott. Have you had a look at that, because I made a sort of a scribbled note as we were going through, but do those directions reflect your understanding of what was put during the hearing?

PN563

MR SCOTT: Yes, they do from my perspective, your Honour.

PN564

JUSTICE ROSS: Okay. Mr Ferguson? You're the other one (indistinct).

PN565

MR FERGUSON: I think so, your Honour. Just one point perhaps to clarify, (indistinct) employer parties as well, we'll endeavour to put joint positions.

PN566

JUSTICE ROSS: Sure.

PN567

MR FERGUSON: But we'll certainly prepare consolidated, if that makes sense.

PN568

JUSTICE ROSS: Yes. Ms Svendsen, have you seen those?

PN569

MS SVENDSEN: Yes. I'm looking at them, your Honour, and it does reflect what I understood.

PN570

JUSTICE ROSS: Okay. Well, in any event, look, if something arises just let my Chambers know and we'll sort it out. We'll adjourn on that basis. The Bench will put the questions out. We'll do that probably on Friday in the morning, and the directions will be subs by 4 pm Monday the 13th, reply subs by Wednesday the 22nd, and encourage the parties to file joint submissions on the employer and union side. Is there anything else, any questions before we adjourn? No? At this stage we would propose to finalise - well, we've heard you on everything else, but these questions around the broken shifts and the interaction with afternoon and night shift, we would propose to determine that matter on the papers absent a request from any of you to have a short oral hearing. Look, we may change our own minds on that issue, depending on the nature of the submissions, but that would be the intention. If you want to have an oral hearing following the filing of the reply submissions on the 22nd, then you should advise us by 4 pm on 22 September. Nothing further? Thanks for your attendance. We'll adjourn.

ADJOURNED INDEFINITELY [2.21 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #ASU3 WITNESS STATEMENT OF FERGUS JOHN MCBETH-MANNING PN3

EXHIBIT #ASU4 WITNESS STATEMENT OF PAUL MCKENZIE................ PN3

EXHIBIT #ASU5 WITNESS STATEMENT OF DANIEL TRICKETT............. PN3