PN1

THE COMMISSIONER: Mr Sivarajah?

PN2

MR SIVARAJAH: Yes, Commissioner.

PN3

THE COMMISSIONER: Are you working for ASSA or you're - do you need to seek permission?

PN4

MR H SIVARAJAH: No, no, I am a solicitor with Harmers Workplace Lawyers, representative of the association.

PN5

THE COMMISSIONER: All right. Have you been given permission as part of the proceedings?

PN6

MR SIVARAJAH: No, I haven't, Commissioner. And I would seek leave to appear today.

PN7

THE COMMISSIONER: Yes, all right. Any objection, Mr Crawford?

PN8

MR S CRAWFORD: No, Commissioner.

PN9

THE COMMISSIONER: No. I'll presume it's put on the basis that there's some complexity, Mr Sivarajah, and it will enable the matter to proceed more efficiently?

PN10

MR SIVARAJAH: Correct.

PN11

THE COMMISSIONER: Yes, all right. I agree with that. Permission is granted.

PN12

MR CRAWFORD: Excuse me, Commissioner?

PN13

THE COMMISSIONER: Yes.

PN14

MR CRAWFORD: It's not a major issue but we can't see you at the moment. The camera is on the ‑ ‑ ‑

PN15

THE COMMISSIONER: That's a very major issue if you can't see me.

PN16

MR CRAWFORD: Now we can see you, yes.

PN17

THE COMMISSIONER: Is that better?

PN18

MR CRAWFORD: It just moved back.

PN19

THE COMMISSIONER: Or worse? All right?

PN20

MR CRAWFORD: We can see you now.

PN21

THE COMMISSIONER: You can, all right.

PN22

MR CRAWFORD: Yes.

PN23

THE COMMISSIONER: Let's not spend any more time on this than we need to. Essentially we're here because the five member Bench, of which I am a Member, had made a decision in respect of the model term for the payment of wages on the termination provision, and the ASSA indicated that they wanted a variation to that model term, essentially to allow for up to 14 days from the date of termination or from the next pay period, whichever comes sooner, so, as I understand it, Mr Sivarajah, that's how it operates, that a maximum amount of time period in which one would receive a payment on termination would be 14 days from the date that they were terminated?

PN24

MR SIVARAJAH: That is correct. Commissioner, there's just probably one point of clarification. So where we refer to the next usual pay cycle that would be the pay cycle after the cycle in which the employee has been terminated.

PN25

THE COMMISSIONER: I ‑ ‑ ‑

PN26

MR SIVARAJAH: So on a seven day cycle if, for example, they have been terminated on the sixth day, then it could be eight days, but on a - it's never going to be more than 14 days as we see it.

PN27

THE COMMISSIONER: How would it be eight days if the next pay period was the day after?

PN28

MR SIVARAJAH: So, sorry, it would be payable on the next pay cycle after the cycle in which the employee has been terminated.

PN29

THE COMMISSIONER: So they get paid earlier of the 14 days or the employer's next usual pay cycle. The next day is generally tomorrow. The next day is tomorrow.

PN30

MR SIVARAJAH: Yes. Yes.

PN31

THE COMMISSIONER: If you were terminating someone on a Tuesday for argument sake and the next usual pay cycle was the - well, the next pay day - maybe this is what is a cycle, a day. Maybe that's the difference, but let's just say the next pay day is on the Thursday ‑ ‑ ‑

PN32

MR SIVARAJAH: Yes.

PN33

THE COMMISSIONER: ‑ ‑ ‑you're saying they wouldn't get paid on the Thursday, they'd get paid ‑ ‑ ‑

PN34

MR SIVARAJAH: On the following ‑ ‑ ‑

PN35

THE COMMISSIONER: ‑ ‑ ‑on the following Thursday, so nine days later?

PN36

MR SIVARAJAH: Yes. Yes.

PN37

THE COMMISSIONER: Why wouldn't they get paid on the Thursday two days after they were terminated?

PN38

MR SIVARAJAH: This is the difficulty because if it operated on that basis then we could have a situation where it's going to be the less than the seven day payment cycle as proposed by the Full Bench.

PN39

THE COMMISSIONER: Right.

PN40

MR SIVARAJAH: So if it was the day before when that cycle was meant to conclude you might only have a day to do it, and then we've got all these other factors where we put forward to say, well, we have difficulties meeting the seven day period as proposed by the Full Bench on a provisional basis, so we wanted that extra flexibility in light of those unique circumstances. So it doesn't assist if we are in a situation where we're ending up having to do it in two days.

PN41

THE COMMISSIONER: Yes, I understand. All right. But if they're on a fortnightly pay cycle and I was - perhaps we just pick some dates.

PN42

MR SIVARAJAH: Yes.

PN43

THE COMMISSIONER: Just so that we're clear about what we're talking about. So let's just say you were terminating - that someone's last day of employment was today, October 3, and let's just say that they're paid fortnightly but - and the next pay day is tomorrow, the 4th, for argument sake ‑ ‑ ‑

PN44

MR SIVARAJAH: Yes.

PN45

THE COMMISSIONER: ‑ ‑ ‑you wouldn't pay them on the 4th, you would pay them ‑ ‑ ‑

PN46

MR SIVARAJAH: By 10 days after the 4th.

PN47

THE COMMISSIONER: Yes, well, you know, if the next pay cycle would be the 18th but you wouldn't be able to go that far because that would be more than 14 days so you'd pay them on the 17th or before.

PN48

MR SIVARAJAH: Correct. Yes, because whichever is less.

PN49

THE COMMISSIONER: Yes.

PN50

MR SIVARAJAH: So it will never be more than 14 days.

PN51

THE COMMISSIONER: Yes, all right.

PN52

MR SIVARAJAH: And similarly with the seven day, if you've terminated, say, the third day in to the seven day cycle, well, on the high limit then you've got for 18 days the top limit is 14 days so you would then drop down to the 14 days, so there's no situations where they would be paid beyond 14 days.

PN53

THE COMMISSIONER: Yes.

PN54

MR SIVARAJAH: Working off a seven day or a 14 day cycle.

PN55

THE COMMISSIONER: And I've read the submissions as to the basis for that being the particular situation with the Alpine industry.

PN56

MR SIVARAJAH: Yes.

PN57

THE COMMISSIONER: Mr Crawford?

PN58

MR CRAWFORD: Yes, Commissioner, we had read the proposed ASSA clause the other way. We'd read it as that payment would be the earlier of the next pay day or 14 days whichever is earlier. So, yes, I mean, if the - I guess I only make that point for the purposes of if we end up with the term along those lines maybe the drafting should be amended to make that a bit clearer.

PN59

But in general, as we've indicated in our submissions, we do acknowledge that the current award is extremely deficient. There's basically no relevant term in there at all so we do recognise that even the term proposed by the ASSA and even the way it operates as explained this morning is substantially better than what's in the current award and factors like that do come into our thinking in terms of sort of how hard we oppose things generally, but we have, I guess, made the point in our submissions there are two sort of issues that we primarily raise: one is that a lot of these employees may leave the country or at least leave the relevant state when they finish working so we are a little bit concerned about those employees having to wait 14 days to get their termination payments because: (a) they may need the money; and (b) it may be hard for them to chase up discrepancies if they're, you know, overseas or in a different state.

PN60

Secondly, we have, through various award review proceedings, had a bit of a look at the operating arrangements for some employees in this industry and it has become apparent to us that the employers operating the largest resorts are actually quite large, are multi-national companies so we think that is a relevant factor in terms of the imposition that would be imposed on them to make termination payments, for example, just within a seven day period as provided for in the model term. We would have thought a large multi-national company could make those arrangements if required. We accept that for some of the smaller resorts the employers may not be as large but we also would suspect that the model term is going into a lot of awards where there's actually quite small businesses operating and we suspect that any business operating in an Alpine resort will, you know, not really be quite a small business, it will at the very least be a medium sized business, so I guess that sort of summarises our position, Commissioner.

PN61

THE COMMISSIONER: I hear what you say about the size of the business. I should say it seemed to me reasonably compelling the notion that there is some uniqueness about this sector inasmuch as they - I mean, I think the submissions overegg it a little bit, Mr Sivarajah, about the extent to which there's variability in terms of the length of the season in Australia. I mean, I think it always starts on Queen's birthday weekend. I don't recall for myself as a regular skier it ever not starting with the Queen's birthday weekend. It does vary as to when it ends. And of course there may well not be any snow on the Queen's birthday weekend and perhaps people - you know, you wouldn't be rostering on an army of staff in that environment. In Victoria at least I know it's running I think till the end of this week, which is a bit late, but it tends to vary a couple of weeks at the end of the year.

PN62

But that said, it is pretty apparent that there is a mass exodus of staff within a pretty short period of time, you know, over two to three, you know, maybe a four week period. I'd imagine, Mr Sivarajah, that there's, you know, probably some shedding of staff as the number of ‑ ‑ ‑

PN63

MR SIVARAJAH: Yes.

PN64

THE COMMISSIONER: ‑ ‑ ‑tows wind up and snow melts and ‑ ‑ ‑

PN65

MR SIVARAJAH: Yes. Yes, and we would agree with that, Commissioner. Just a couple of other things, we accept that there are dedicated staff dealing with these matters but they are limited in numbers, so, for example, the Falls Creek, Mount Hotham and Perisher staff, my instructions are that there's three staff dealing with all of those termination issues.

PN66

THE COMMISSIONER: Yes.

PN67

MR SIVARAJAH: And to be clear and it probably hasn't been addressed directly in the AWU's submissions, it's not simply that the difficulty or the strain on the administrative staff is not simply the calculation of payments but there are the off-boarding aspects I think you're alluding to, Commissioner, such as getting the uniforms back and the paperwork and performance reviews, and we've got three staff running between a number and a large number of people to do that in a short period of time that puts an enormous strain on, you know, sort of a limited resource.

PN68

The other thing which hasn't come out in our submissions but it certainly matters I've obtained instructions prior to this conference, is that there are times where the delay is also contributed by the employees themselves, so they may towards the end go for a ski and then take their time in dropping off paperwork, et cetera. Now, that obviously - we've got staff working to set urgent times, that throws everything else out of the spanner and that's probably a good segue to come back to Mr Crawford's submission about the - the primary submission about staff leaving and not being in a position to address any issues with it if they have to leave quickly. Now, we certainly accept that the majority of the staff are located outside of the resorts, but we don't necessarily accept that they would be leaving straight after such as, you know, a fly in or fly out sort of arrangement. They would be making use of the recreational activities.

PN69

So having sort of a short, strict timeframe is, from our end, questionable. In fairness, I mean, that would - if that argument needs to be developed we would need to get some further information but just in terms of the initial instructions we have received it's not as black and white as the AWU have put in that respect.

PN70

THE COMMISSIONER: Yes, all right. Just on the pay cycle, and I think I initially read it the same way, Mr Crawford, but Mr Sivarajah is right that if you read it that way then it's imposing an even stricter deadline than seven days in a model term. In that ‑ ‑ ‑

PN71

MR CRAWFORD: Yes, I think we'd highlighted that in our submission.

PN72

THE COMMISSIONER: Yes.

PN73

MR CRAWFORD: We thought that was intended, but apparently not.

PN74

THE COMMISSIONER: No. It would be counter to the objective that they're trying to get some more time, so ‑ ‑ ‑

PN75

MR SIVARAJAH: Absolutely. Absolutely. Absolutely. And we have no difficulty. We accept that there is a degree of ambiguity and we would be open to adding some additional words to clarify that ambiguity.

PN76

THE COMMISSIONER: Yes.

PN77

MR SIVARAJAH: Something probably along the lines of - and ‑ ‑ ‑

PN78

THE COMMISSIONER: I guess, before we get there ‑ ‑ ‑

PN79

MR SIVARAJAH: Yes.

PN80

THE COMMISSIONER: ‑ ‑ ‑Mr Crawford, is that, I mean, if we can get some clarity around that. Is this something that the union wants to die in a ditch about? Like I say, I think the concerns you raise are probably two-fold: one is well, why not just have the model term. Model terms are model terms. I think there's some compelling arguments that are raised about the uniqueness of this particular sector. You raise quite rightly concerns about I guess people heading off quickly to the Northern Hemisphere perhaps to continue in ski instructing, whatever they're doing, but, look, I think in days gone by that might be more of an issue than what it is in the world of international connected banking, you know, we're all running around the planet with bank systems which are connected up and, you know, inquiries that can be made by email and so on. It's not like we're in the days where one has to be physically able to go into the pay office and figure out what was going on. So I don't know if those things would be so significant. As you say it's an advance on what we have at the moment which is nothing. If we can clear up this issue about the - and, look, the other bit is, Mr Sivarajah, if we make some tweaking to the wording to deal with getting rid of that ambiguity ‑ ‑ ‑

PN81

MR SIVARAJAH: Yes.

PN82

THE COMMISSIONER: ‑ ‑ ‑can we look at something along the lines of, you know, something like 'as soon as possible but no later than', so in other words the default - you know, your drop dead time is the 14 days but it's quite conceivable that you won't need that long.

PN83

MR SIVARAJAH: Yes. We're happy for ‑ ‑ ‑

PN84

THE COMMISSIONER: Would that help, Mr Crawford? Something along ‑ ‑ ‑

PN85

MR SIVARAJAH: Yes.

PN86

MR CRAWFORD: Yes, that would be better. Yes.

PN87

THE COMMISSIONER: Yes. Happy with that, Mr Sivarajah?

PN88

MR SIVARAJAH: Yes. Yes. Yes, Commissioner.

PN89

THE COMMISSIONER: If you want to have a quick go at trying to draft something?

PN90

MR SIVARAJAH: I could. My preference obviously would be to - given that I wasn't involved in the initial drafting of it, and I have received instructions as to what this understanding and work that out, if it's not too much of an indulgence, Commissioner, if we could - if you could give me an opportunity to draft something up and submit it within, say, seven days for consideration?

PN91

THE COMMISSIONER: I don't think we need that long. I'll draft something now. I was - and that you can take away. You might both need to get instructions but the purpose of having a conference is to deal with things efficiently.

PN92

MR SIVARAJAH: Well, I've got one aspect I did start on and that would be - I haven't factored in the matter you've raised, Commissioner, but I would suggest - so where it says:

PN93

The employer must pay employee no later than whichever is the earlier of either 14 days after the day on which the employee's employment terminates or the employee's next usual pay cycle that commences after the day on which the employee's employment terminates -

PN94

And I'm now thinking aloud, Commissioner, to address ‑ ‑ ‑

PN95

THE COMMISSIONER: Yes, that's all right.

PN96

MR SIVARAJAH: ‑ ‑ ‑that extra point. Comma -

PN97

but would endeavour to effect payment as soon as possible.

PN98

Within this context. The last part is more thinking aloud, but ‑ ‑ ‑

PN99

MR CRAWFORD: I'm just trying to see in other awards whether it's normal to talk about the end of a cycle or whether it's normal to talk about a pay day.

PN100

THE COMMISSIONER: Yes.

PN101

MR CRAWFORD: Because couldn't your cycle end but the pay day might be a bit after?

PN102

MR SIVARAJAH: I mean, that I would certainly need to get some instructions on. If we could operate on this basis, so we put that in brackets, Commissioner. So leading on from where we've landed on the cycle that commences after the day on which the employee's employment terminates and that's to obviously give clarity we're talking about the following one.

PN103

THE COMMISSIONER: Yes.

PN104

MR SIVARAJAH: And in brackets:

PN105

But would endeavour to effect payment as soon as possible within this ‑ ‑ ‑

PN106

THE COMMISSIONER: Within those limits.

PN107

MR SIVARAJAH: Yes, within those limits. Yes.

PN108

MR CRAWFORD: Yes, I think it could start with:

PN109

The employer must pay an employee as soon as possible and no later than -

PN110

And then it goes on to the other provision, something like that.

PN111

THE COMMISSIONER: That's simpler, yes.

PN112

MR SIVARAJAH: Yes.

PN113

THE COMMISSIONER: 'As soon as possible and in any event no later than'.

PN114

MR SIVARAJAH: Yes. Okay, yes. So:

PN115

Employer must pay the employee as soon as possible and in any event no later -

PN116

And then we would still add those additional words about commencing after the day in which the employer's employment terminated to make it clear.

PN117

THE COMMISSIONER: Yes. I get what you're trying to do there. I think it's just a bit convoluted. I wonder - because what you're basically saying is we'll pay it on the next pay day that is the ‑ ‑ ‑

PN118

MR SIVARAJAH: If we can.

PN119

THE COMMISSIONER: Which is at the end of a full pay period.

PN120

MR SIVARAJAH: As a fall back and then you temper that with where that sits against the 14 days but ‑ ‑ ‑

PN121

THE COMMISSIONER: Pay periods are always going to be seven days or 14 days or ‑ ‑ ‑

PN122

MR SIVARAJAH: Monthly.

PN123

THE COMMISSIONER: ‑ ‑ ‑some other amount. We're not worried about anything long than that.

PN124

MR SIVARAJAH: Yes. Yes.

PN125

THE COMMISSIONER: Is it better then - really what you - perhaps if I just talk about what we're trying to do, it's the employee's next usual pay day provided that that's not less than seven days. Like, unless that falls within the seven days that's the issue, isn't it?

PN126

MR SIVARAJAH: Yes. But do you not see, Commissioner that - I accept what Mr Crawford is saying about the usual pay cycle and day, but I would have thought that if we just added these extra words we can still work within that context to say, well, it's in the next usual pay cycle, but we've then got the initial qualification of 'as soon as possible'.

PN127

THE COMMISSIONER: The problem I've got with pay cycle is it's not a day. The pay cycle is a - you know, in a mathematical sense is a continuum on the timeline. It's not a day. So we've got 14 days.

PN128

MR SIVARAJAH: Yes.

PN129

THE COMMISSIONER: We can count 14 days.

PN130

MR SIVARAJAH: Yes.

PN131

THE COMMISSIONER: But it's unclear - so it's either that or employer's next usual pay cycle. Well, the pay cycle is a week or a fortnight or whatever.

PN132

MR SIVARAJAH: Yes. Yes.

PN133

THE COMMISSIONER: It's not an amount of time.

PN134

MR SIVARAJAH: Yes, but if we at least set - I mean, I agree with that.

PN135

THE COMMISSIONER: Yes.

PN136

MR SIVARAJAH: I agree that that doesn't set a date, but we at least have the 14 days at the beginning so there's no question that it's never going to be more than 14 days and the rest is just a matter of flexibility. If we didn't have the upper limit then I agree it becomes all too ambiguous.

PN137

THE COMMISSIONER: It's too ambiguous now. Like, so in order to give effect to the words, 'whichever is the earlier' we need to know what those dates are, the actual day, and a pay cycle is not a day.

PN138

MR SIVARAJAH: If we said, 'conclusion of the pay cycle'. 'The next usual' ‑ ‑ ‑

PN139

THE COMMISSIONER: Yes. Or 'the conclusion' ‑ ‑ ‑

PN140

MR CRAWFORD: Yes, 'of the next pay cycle commencing after the employment terminates' or something like that.

PN141

MR SIVARAJAH: Yes.

PN142

THE COMMISSIONER: Or 'the conclusion of the employer's next usual pay cycle' ‑ ‑ ‑

PN143

MR SIVARAJAH: 'That commences after the day on which the employee's employment terminates'.

PN144

THE COMMISSIONER: Do you need the 'commences'? Wouldn't you just say 'after the day on which the employee's employment terminates'? No, you do because otherwise ‑ ‑ ‑

PN145

MR SIVARAJAH: Yes, because the same ambiguity would come back.

PN146

THE COMMISSIONER: It's back to that same problem.

PN147

MR SIVARAJAH: Yes. Yes.

PN148

THE COMMISSIONER: Yes, all right. I just want to check something. We might just take a break for 15 minutes.

PN149

MR SIVARAJAH: Yes.

PN150

THE COMMISSIONER: You guys keep having a think about it. Mr Crawford if we can land something around these lines you'd be happy to go with that?

PN151

MR CRAWFORD: To that effect, yes.

PN152

THE COMMISSIONER: I'll withdraw the word 'happy'. Content? Content?

PN153

MR CRAWFORD: Something like that, yes.

PN154

THE COMMISSIONER: Yes, all right. We'll take a break for 15. I just wanted to test something out, so we'll come back at 20 past 10.

PN155

MR CRAWFORD: Thank you.

PN156

THE COMMISSIONER: Thanks.

SHORT ADJOURNMENT [10.04 AM]

RESUMED [10.29 AM]

PN157

THE COMMISSIONER: Yes, I just wanted to have a look at - I know it was my idea but the 'as soon as possible' bit. There's been some Full Benches that I haven't been on that have ruled against language of that sort because it's unenforceable so I don't think that'll be possible to include that.

PN158

The other bit I was looking at just in terms of trying to clear this up - so, I guess in that sense, Mr Crawford, it's sort of - it probably doesn't - it actually doesn't add anything. It's not an enforceable provision. I just thought it might be of assistance but I'm pretty confident that it's not something that I would be able to get the rest of the Bench to agree to in any case.

PN159

MR CRAWFORD: I think in some instances, Commissioner, that was the extent of the protection in the relevant award, whereas at least here we've got clearly prescribed timeframes, but anyway if that's the view, I guess that settles it.

PN160

THE COMMISSIONER: Yes. Yes, well, that's right, you've got the prescribed timeframes. But I was looking at - if you've got the award with you if you look at clause 20.

PN161

MR SIVARAJAH: Unfortunately I don't.

PN162

THE COMMISSIONER: That's all right. It's only three lines. Payment of Wages:

PN163

An employer may pay an employee their wages either weekly, fortnightly or monthly by payment into the employee's nominated bank account by EFT without cost to the employee.

PN164

So the award provides that you must pay weekly, fortnightly or monthly. Right?

PN165

MR SIVARAJAH: Yes.

PN166

THE COMMISSIONER: The only - fortnightly and monthly are irrelevant in terms of this second part of what we're wrestling with because it's going to be 14 days or longer in which case the 14 days is the relevant timeframe.

PN167

MR SIVARAJAH: Yes, correct. Correct.

PN168

THE COMMISSIONER: So then we're really just dealing with people who are paid weekly because ‑ ‑ ‑

PN169

MR SIVARAJAH: Well, with one caveat, Commissioner ‑ ‑ ‑

PN170

THE COMMISSIONER: Yes.

PN171

MR SIVARAJAH: ‑ ‑ ‑that if the termination is - no, you're right.

PN172

THE COMMISSIONER: Yes.

PN173

MR SIVARAJAH: I was going to say if it's around the time of the beginning of the next pay cycle it would still drop down to the 14 days.

PN174

MR CRAWFORD: Yes.

PN175

THE COMMISSIONER: You're still going to end up with 14 days for a fortnightly pay.

PN176

MR SIVARAJAH: Yes.

PN177

THE COMMISSIONER: If you're terminated on the day of the - yes, if you were terminated - if you were fortnightly paid and you were terminated the day before the next pay day ‑ ‑ ‑

PN178

MR SIVARAJAH: Yes.

PN179

THE COMMISSIONER: ‑ ‑ ‑let's just say again, for argument sake, pay day is tomorrow, I'm terminated today, tomorrow - I get - tomorrow is pay day, Friday, well, you're going to have to pay within the 14 days so you'd have to pay on the Thursday in two weeks.

PN180

MR SIVARAJAH: Correct.

PN181

THE COMMISSIONER: Yes.

PN182

MR SIVARAJAH: Correct.

PN183

THE COMMISSIONER: So it's only for weekly employees. So to try and eliminate some of the confusion we should talk about just weekly paid employees because that's the only operative part.

PN184

MR SIVARAJAH: Commissioner, I must say that I accept that that's how it would be interpreted, but part of, I guess, the reasoning behind this was to try to get to a compromised position in light of that provision which you've referred to. So we've got monthly, fortnightly, weekly and ultimately the view is taken, well, a month is going to be too long and to be honest I don't know who many resorts are operating on a monthly. I suspect that there are some. So the falling back on the 14, notwithstanding this degree of ambiguity it was meant to enable them to also meet their framework. So it was never solely focused on the seven day cycle.

PN185

I accept that the way it's now been drafted it may be a day or two, but in a way I guess it was always about a compromised position.

PN186

THE COMMISSIONER: Yes.

PN187

MR SIVARAJAH: Sorry, day or two difference between, you know, a 14 day cycle, so it may not necessarily correlate with that, but I think from the association's point of view they looked at it as a compromised position in a sense that well, there's no way we'll try for the month.

PN188

THE COMMISSIONER: Yes, but what I'm talking about is no difference in terms of your compromised position. It's just how you write the clause.

PN189

MR SIVARAJAH: Yes, I accept that. I accept that.

PN190

THE COMMISSIONER: Yes.

PN191

MR SIVARAJAH: But it's ‑ ‑ ‑

PN192

THE COMMISSIONER: I'll tell you what, so here's another way of doing it ‑ ‑ ‑

PN193

MR SIVARAJAH: Yes.

PN194

THE COMMISSIONER: ‑ ‑ ‑so the first part is, 'The employer must pay an employee no later than' - or actually forget that, sorry. You could do it this way:

PN195

The employer must pay an employee 14 days after the day on which the employee's employment terminates.

PN196

So you just go back - that's really the same as the model term it's just 14 days, right?

PN197

MR SIVARAJAH: Yes.

PN198

THE COMMISSIONER: Provided - or something like this:

PN199

Provided that for employees paid weekly in accordance with clause 20 the employer must pay the employee at the conclusion ‑ ‑ ‑

PN200

MR SIVARAJAH: 'Of the employee's next usual pay cycle commencing after the date' ‑ ‑ ‑

PN201

THE COMMISSIONER: No.

PN202

MR SIVARAJAH: Okay, sorry.

PN203

THE COMMISSIONER: 'At the conclusion the employee's next complete seven day pay period after their date of termination'.

PN204

MR CRAWFORD: Are we still going to have 'no later than' in there, Commissioner, because I think that's in the model term?

PN205

THE COMMISSIONER: Yes. Yes, good point. 'No later than', yes, 'The employer must pay employee no later than' - 'must pay the employee' again 'no later than', you'd repeat that in the second part as well. So it's just another way of skinning the cat as it were.

PN206

MR SIVARAJAH: Yes.

PN207

THE COMMISSIONER: So you've got 14 days, but the only difference from that would be if you're on a seven day cycle then you'll pay at the conclusion of a complete seven days after the date of termination.

PN208

MR SIVARAJAH: Cycle - after the - yes. Yes.

PN209

THE COMMISSIONER: Yes.

PN210

MR SIVARAJAH: I mean, that - my initial reaction that looks good.

PN211

THE COMMISSIONER: And that just gets us away from worrying about the word 'usual' which is where a lot of the ambiguity comes from.

PN212

MR SIVARAJAH: Yes. Yes, agreed. Agreed.

PN213

THE COMMISSIONER: Yes. And since you ‑ ‑ ‑

PN214

MR SIVARAJAH: Can I - sorry, Commissioner.

PN215

THE COMMISSIONER: Since you can only pay weekly, fortnightly or monthly, and since weekly is the only relevant period where you might do better that might be a way of doing it.

PN216

MR SIVARAJAH: Yes. Could I trouble you, Commissioner?

PN217

THE COMMISSIONER: Yes.

PN218

MR SIVARAJAH: I just want to make sure I get the precise wording. So ‑ ‑ ‑

PN219

THE COMMISSIONER: Yes, I'll take it from the top.

PN220

MR SIVARAJAH: Okay.

PN221

THE COMMISSIONER: So:

PN222

The employer must pay an employee no later than 14 days after the day on which the employee's employment terminates.

PN223

And then I've got, 'Provided that', I mean, we might - there might be a better way of doing that.

PN224

MR SIVARAJAH: Yes.

PN225

THE COMMISSIONER: Or we might want to say at the end of the first part, 'subject to', you know ‑ ‑ ‑

PN226

MR SIVARAJAH: I have just put down 'provided that'. I just ‑ ‑ ‑

PN227

THE COMMISSIONER: Yes, I think we'll just stay with 'provided' for the moment.

PN228

MR SIVARAJAH: Yes.

PN229

THE COMMISSIONER: 'Provided that, for employees paid weekly in accordance with clause 20', or 'pursuant to clause 20', it doesn't matter, 'the employer must pay the employee no later than at the conclusion of the employee's next complete seven day pay period after their date of termination'. What do you think?

PN230

MR SIVARAJAH: Looks good from my end, my initial reaction.

PN231

MR CRAWFORD: Yes, I think that that seems generally okay to us. I guess if you can get it past the plain language goal keeper.

PN232

THE COMMISSIONER: Yes, well, subject to any tweaking, which I'll come back to you about if there's anything along those lines, but it's a different way of constructing it which I think ‑ ‑ ‑

PN233

MR SIVARAJAH: Commissioner, sorry, I mean, my initial reading on that, I think that's the best one put forward and I quite like it, but would I have an opportunity for, even if it's two to three days, to get some instructions on that?

PN234

THE COMMISSIONER: Yes, of course. Of course, yes.

PN235

MR SIVARAJAH: Yes.

PN236

THE COMMISSIONER: Yes. All right. Look, why don't you, say, close of business Tuesday for ‑ ‑ ‑

PN237

MR SIVARAJAH: Yes.

PN238

THE COMMISSIONER: ‑ ‑ ‑just both of you to come back to my Chambers indicating your views on the proposed draft. I'll send it out to you in writing straight after the conference, and, yes, well, provisionally, we have an accord, but give you a few days to get some instructions about it, same for you obviously, Mr Crawford.

PN239

You might look at it again and think of a word change here or there, but I think that's a better - it's a better structure, and similarly I'll be running it by the, as you called them, Mr Crawford, the goalkeepers, and I might pop out with a slightly tweaked version better than my drafting, but, you know, I think better to stick with that general structure.

PN240

MR SIVARAJAH: Yes.

PN241

THE COMMISSIONER: Yes. All good?

PN242

MR SIVARAJAH: Yes.

PN243

THE COMMISSIONER: Thanks for that.

PN244

MR CRAWFORD: Thank you, Commissioner.

PN245

THE COMMISSIONER: I'll put out a note to you this afternoon and if necessary we'll have another quick conference. If we have another one we can just do it on the phone.

PN246

MR SIVARAJAH: Yes.

PN247

THE COMMISSIONER: We shouldn't have to drag you into the court to do it, and hopefully we can wrap this up. All right?

PN248

MR SIVARAJAH: Thank you, Commissioner.

PN249

MR CRAWFORD: Thank you.

PN250

THE COMMISSIONER: Great. Thanks a lot.

ADJOURNED INDEFINITELY [10.42 AM]