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THE ASSOCIATE: Matter AM2016/8, Payment of Wages, outstanding issues, the Building and Construction (General) Onsite Award 2020, for conference.

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JUSTICE ROSS: Good morning. If I could take the appearances, first, for Ai Group?

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MR B FERGUSON: Ferguson, initial B.

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JUSTICE ROSS: Thank you. For the Master Builders?

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MS R SOSTARKO: Thank you, your Honour. Sostarko, initial R, for Master Builders Australia.

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JUSTICE ROSS: Thank you. The Housing Industrial Association?

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MS L REGAN: Thank you, your Honour. It's Regan, initial L, for the Housing Industry Association.

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JUSTICE ROSS: Thanks, Ms Regan. For the CFMMEU?

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MR S MAXWELL: Thank you, your Honour. It's Maxwell, initial S.

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JUSTICE ROSS: Thank you. For the ETU, almost representing the AMWU?

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MS Y ABOUSLEIMAN: Thank you, your Honour, it's Abousleiman, initial Y.

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JUSTICE ROSS: Thank you. Well, the purpose of the conference, and the background to the matter is set out in a statement and published on 16 June. Earlier this morning I received a copy of a proposed draft determination, filed by Mr Ferguson, on behalf of Ai Group. You'll recall, from the earlier statement that in the Full Bench decision, in May, we rejected the application to insert the model term, in lieu of the clause 31.4 in the award. We also rejected a proposal, by the CFMMEU, to replace the current term.

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We noted, in that decision, that where you seek to extend the scope of the term and, in this case, it's extended to other forms of termination, other than termination on notice, then the proposed seven day period on the model term would apply to the extended area.

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Let's just go the Ai Group's draft determination to begin with? Is there anything you wanted to say, in relation to that, Mr Ferguson?

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MR FERGUSON: Just by way of simple explanation. What we've endeavoured to do is address the outcome that we see envisaged by the Full Bench decision, at paragraph 241, which would provide that the seven day period would apply, in relation to circumstances of termination not contemplated by the current provision, in relation to any S payments, and other amounts beyond wages. We've done that through paragraphs (b) and (c).

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Paragraph (a), we've essentially tried to retain the approach adopted currently in the award. There's some additional words included, in highlighted form, just to make it clear that it's notice, in accordance with the award or the NES, which we assume to be the only notice that the award currently requires. We've also tried to make it clear, in (a), that that paragraph applies to wages under the award, for any complete or incomplete pay period, which is consistent with the CFMMEU's proposal, to some degree, that they advanced. It also means that the whole provisions operates consistently.

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What we haven't included from the model term is the provision that provides for an ability to - for the Commission to vary this by further order, in circumstances, say, for example, redundancy, assuming that doesn't have any work to do, given the industry specific redundancy scheme.

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JUSTICE ROSS: Yes.

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MR FERGUSON: But otherwise this seems like a sensible way forward. We haven't heard yet as to whether any party's opposed to it.

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JUSTICE ROSS: All right. Perhaps if I go first to the employer parties. Ms Sostarko, have you had an opportunity to have a look at the proposal and what do you think about it?

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MS SOSTARKO: Your Honour, briefly, so I would preface my comments on the fact that we - I haven't yet had a chance to seek instructions. On its face, though, I would suggest that it certainly provides a bit more clarification about what's payable when notice isn't given. But, as I say, I would seek further time, even if it's a brief amount of time. I understand that we would like to settle these matters fairly quickly, but to be able to get some further instruction about this.

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JUSTICE ROSS: All right, thank you. Ms Regan?

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MS REGAN: Your Honour, we also, similar to Master Builders, had a brief opportunity to review the draft determination this morning. We would say that it seems to reflect the comments of the Commission, in light of the CFMMEU alternative proposal. However, your Honour, we'd like to consider the Ai Group proposal in light of any comments, obviously, by the union and, of course, consider the practicalities in some greater detail. Similar to Master Builders, I'd also just need to seek some further instructions on the particular proposal.

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JUSTICE ROSS: All right, thanks. Mr Maxwell?

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MR MAXWELL: Thank you, your Honour. Your Honour, of course I only received that from Mr Ferguson this morning and I did respond about 10 minutes ago to him. There's an alternate version of the clause which follows the format that was used in the Mobile Crane Hiring Award, which follows, I suppose, the model term format. It takes into account the decision of the Full Bench so it differentiates between amounts that are paid where notice is given, and that would be limited to the amounts in 31.4(a), and - sorry, (a)(i), which would be the employees wages under this award, for any complete or incomplete pay period, up to the end of the day of the termination.

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JUSTICE ROSS: Yes?

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MR MAXWELL: It then distinguishes that the amounts described in 34(a)(ii), which would be "All other amounts that are due to the employee under this award in the NES and where notice is not given, as described in 34.1(a), must be paid", and then it would follow the model clause, in regard to the timetable of that.

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It was a very quick drafting of a clause, and there are a few errors in it, but I think we just (indistinct) to follow that format because it's then consistent with the other awards.

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JUSTICE ROSS: Mobile Crane, yes.

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MR MAXWELL: Yes.

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JUSTICE ROSS: Well, assuming there's no substantive difference, on its face it would be desirable to have a consistency of format across awards that might apply in the sector. But, obviously, the others haven't had an opportunity to have a look at that, Mr Maxwell, but I'll come back to it. If I can just go the ETU. Have you had an opportunity to look at either of the proposals?

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MS ABOUSLEIMAN: We've had an opportunity to have a brief look, they did just come in this morning, but I would need to seek instructions from the other unions on the position forward.

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JUSTICE ROSS: I follow. Well, look, I think it's helpful that we've got two draft proposals in front of us. Can I suggest this course of action? That, Mr Maxwell, if you and Mr Ferguson have a discussion in relation to your two drafts and see if you can reach a resolution in relation to it. If you can, then if you forward that to my Chambers and I'll circulate it to the other parties to seek their views on it.

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If you're unable to reach a resolution, then what I would propose is that you - I'd still propose you'd have a discussion but, at the conclusion of it, if you can't resolve any issues between you, if you can forward your preferred drafts, from the perspective of each of your organisations. I would then circulate that to the others and invite their comments and once the period for comments closes, the Full Bench would just make a decision in relation to the matter.

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Does that sound reasonable to you, Mr Ferguson and Mr Maxwell, to begin with, and then I'll go to the others? Mr Ferguson?

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MR FERGUSON: Yes, your Honour, that sounds sensible.

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JUSTICE ROSS: How long do you think you'd need to have the discussion with Mr Maxwell and see if you can come to some sort of resolution?

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MR FERGUSON: I suspect we could get that done by Tuesday of next week, at the latest, if not earlier.

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JUSTICE ROSS: All right. Mr Maxwell?

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MR MAXWELL: I'm perhaps not as optimistic as Mr Ferguson, mainly because I've got other matters on next week, but I think within seven days.

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JUSTICE ROSS: Yes, all right. Do any of the other parties have any concerns about that approach? It gives you an opportunity, while 1, to see if any technical issues can be sorted out but then you'll have an opportunity to comment on the various proposals, in any event.

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What I propose is if Mr Maxwell and Mr Ferguson advise me by 12 noon next Friday and then you'll have a further - that will be Friday the 17th and you will have until 4 pm on Friday, 24 July to make any comments, in relation to what they've come up with. Is that fine with everybody else? Anyone have an issue? No?

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MS REGAN: No, that sounds fine, your Honour, thank you.

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JUSTICE ROSS: All right. That obviously doesn't preclude any of you having a discussion with either Mr Ferguson or Mr Maxwell about any particular issues you might have.

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All right, we'll deal with it on that basis and we'll deal with it on the papers. I'll shoot out a short report, once I receive the outcome of the discussions between Mr Ferguson and Mr Maxwell.

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Thank you very much for your attendance.

ADJOURNED INDEFINITELY [10.44 AM]