PN1

THE COMMISSIONER: Good morning. So we've got Ms Bhatt from the Ai Group.

PN2

MS BHATT: Yes, Commissioner.

PN3

THE COMMISSIONER: And Mr Crawford from the AWU.

PN4

MR CRAWFORD: Yes, Commissioner.

PN5

THE COMMISSIONER: So, the President who is unavailable today has asked me to conduct this conference, just to see if we can further the situation with the finalisation of this award. It's not a matter I've had any involvement with, but I've endeavoured to get myself across it prior to today.

PN6

So, the state of play seems to be that there's - everything is resolved other than there is a contested amendment to the overtime provisions at clauses 19.1 and 19.2 of the exposure draft published on 14 October 2019. That's right?

PN7

MS BHATT: That's right.

PN8

MR CRAWFORD: Correct.

PN9

THE COMMISSIONER: Just bear with me for a second. Ms Bhatt. Right, so you, Ms Bhatt say that the definition of overtime that's in clause 19.1 of the exposure draft, is inconsistent with the current award because all work on a rostered day off and all work on a public holiday is treated as overtime, and that shouldn't occur.

PN10

MS BHATT: Yes, that's right.

PN11

THE COMMISSIONER: Right. 19.2 should require the payment of the rates there during overtime only and that's potentially a substantial change to clause 25. All right, and then you've got a proposal to resolve it.

PN12

MS BHATT: Yes.

PN13

THE COMMISSIONER: Which the other parties have.

PN14

MS BHATT: Yes.

PN15

THE COMMISSIONER: There's references to ABI here. Are they been involved in this?

PN16

MS BHATT: They appeared the last time the matter was called on.

PN17

THE COMMISSIONER: Right.

PN18

MS BHATT: But I've not had any engagement with them since then about the matter.

PN19

THE COMMISSIONER: Okay. Well, my notes say that they said neither the award nor the exposure draft contain a definition of rostered day off, dependant on how you structure the ordinary hours of work. They talked about a footnote in the tables at B2 and B4. They also raised the problem with the current drafting and they also said apparently, that clause 19.1 should be varied to address the issues raised, that is to clarify what is considered part of an employee's ordinary hours of work and what is overtime.

PN20

That Ai Group's proposed variations don't provide any clarity to that and shouldn't adopt those in their current form. So, all right, everyone agrees there's a problem, difference of view about how to fix it. AWU generally agree with the issues identify Ai Group, however submitted the issues best resolved by - and you've got a particular formulation, Mr Crawford, to resolve it.

PN21

MR CRAWFORD: Yes, so if it assists, Commissioner, there are, I think, some areas of agreement.

PN22

THE COMMISSIONER: Yes.

PN23

MR CRAWFORD: Turning to clause 19.19(a)(iii), we do accept that all hours worked on a public holiday and on an RDO, all of those hours may not be overtime and that the current drafting basically defines any work on those days as overtime. So we do accept that needs to be remedied.

PN24

THE COMMISSIONER: Yes.

PN25

MR CRAWFORD: In terms of the table in clause 19.2 in relation to the Saturday rates, we also agree that the intent is to indicate that effectively, the minimum engagement for a Saturday is three hours, but the way the table is currently drafted, it's got three hours next to the 150 rate and three hours next to the 200 rate, so they just really need to be consolidated so it's clear that the minimum engagement for a Saturday is three hours, not three hours twice.

PN26

THE COMMISSIONER: Yes.

PN27

MR CRAWFORD: I think the areas where there may be disagreement is just what we do with particularly the definition in clause 19.1 because I think AIG have indicated that they were proposing to delete it, but we actually think there should be a definition of overtime in the award. That appears to be the main contentious area.

PN28

THE COMMISSIONER: I should work off the 14 October exposure draft?

PN29

MS BHATT: Yes, Commissioner, I think that's the most recent one.

PN30

THE COMMISSIONER: Just, all right, Mr Crawford, just explain to me how your amendment to clause 19.1(a)(iii) works.

PN31

MR CRAWFORD: So, we say that should be amended to read on a Saturday, Sunday or an RDO, but we've inserted in brackets, unless a day off will be taken instead of the future dates. So that deals with, we think, the issue raised by AiG that it is possible under the award to work on the RDO and instead of getting an overtime rate, you get a day off at a future time.

PN32

THE COMMISSIONER: Yes.

PN33

MR CRAWFORD: So, the insertion of the brackets is intended to deal with that RDO issue. We were basically proposing to take the reference to public holidays out of the overtime clause and just insert a standard rate for public holidays being the double time and a half rate into the public holidays provision.

PN34

THE COMMISSIONER: Yes.

PN35

MR CRAWFORD: Then just allow the other provisions of the award to determine whether hours worked on the public holiday are ordinary hours or overtime. I don't think there's any dispute that either way the rate would be double time and a half. So, yes we're basically proposing amendments to clause 19.1 to deal with those specific issues about working on and RDO when you're getting another day off and taking public holidays out of the provision.

PN36

THE COMMISSIONER: Yes, and so you agree with the changes to the overtime table as proposed by AiG?

PN37

MR CRAWFORD: Yes.

PN38

THE COMMISSIONER: All right, well just starting with the first part, what's the view on the proposed amendment of 19.1(a)(iii) that AWU propose, Ms Bhatt?

PN39

MS BHATT: Read in isolation, or taking that proposal in isolation, there's no difficulty with that. I don't mean to skip ahead of the Commissioner, but I think the issue will be that the proposals that have been put, we say don't go far enough. They don't solve all the problems that we've identified. If this is not helpful, the Commissioner will stop me, but if I can just take a step back for a moment.

PN40

THE COMMISSIONER: Yes.

PN41

MS BHATT: Does the Commissioner have a copy of the current award?

PN42

THE COMMISSIONER: Yes, I will in a minute.

PN43

MS BHATT: It's clause 25 of the award.

PN44

THE COMMISSIONER: Okay, yes.

PN45

MS BHATT: So clause 25 of the award requires the payment of a higher rate in a range of circumstances, but it doesn't require that those times or that work, sorry, be treated as overtime. Clause 23 of the award regulates what can be considered or how many hours for both day workers and shift workers. Clause 11.23 and 11.24 deal more specifically with the ordinary hours of a part time worker.

PN46

THE COMMISSIONER: Right.

PN47

MS BHATT: I think the way we've conceived of this, Commissioner, is if work is performed in accordance with clause 23, or in the case of a part time employee, the part time provisions, then that work is ordinary hours. If it's not ordinary hours, then it follows that it's overtime.

PN48

THE COMMISSIONER: Yes.

PN49

MS BHATT: Clause 25, it doesn't distinguish between ordinary hours and overtime. All it tells us is that a higher rate must be paid for certain types of work. Where this becomes an issue in the context of the exposure draft, apart from the public holiday and the RDO issues, is if you take for example, 25.2 of the current award, it requires the payment of a higher rate for work performed within the times of beginning and ending of work, but in excess of eight hours.

PN50

If we go to the ordinary hours provisions and I'm looking in particular at 23.2 which deals with the ordinary hours of a day worker, there's a spread of hours there. It specifies the days on which ordinary hours can be worked, but there's no eight hour maximum for ordinary hours performed by a day worker.

PN51

So, we say that a day worker could work ordinary hours in excess of eight hours on a given day so long as they fall within the spread of hours and the award does not require that anything over eight hours must be treated as overtime. It must however, be paid at a higher rate.

PN52

THE COMMISSIONER: Just run that by me again.

PN53

MS BHATT: Sorry, Commissioner.

PN54

THE COMMISSIONER: So, this is really about a construction argument of 23.2(b)?

PN55

MS BHATT: I think that's right, so we say that a day worker can work more than eight ordinary hours in a day and unless those hours fall outside the spread of hours, the hours over eight that exceed eight, are not necessarily overtime. Except that you might have to pay a higher rate pursuant to 25.2. So, all I'm saying is that the attraction of a higher rate under the award, doesn't necessarily mean that those hours are overtime.

PN56

THE COMMISSIONER: Right.

PN57

MS BHATT: And that's what the exposure draft does at 19.1, which is a very long way of saying that the issues, we say, are not limited to public holidays and rostered days off. There are, we think, issues that likely arise from 19.1(a)(i) and (ii) as well. Then if we have a quick look at 19.2, Mr Crawford took you to an issue about the minimum payment on a Saturday. But apart from that, 19.2 is headed overtime rates and it says:

PN58

Where an employee works overtime, the employer must pay the following overtime rates.

PN59

But the issue is connected to the one in 19.1. These rates are payable not just if it's overtime. Some of these hours might actually be ordinary hours, but you still have to pay the rates under the current award. So, it's a bigger structural issue, I suppose. It's the way the entire provision has been set up. So, although the solution that we attempted to identify in our written submissions might appear a bit radical, it's because we just think there's a broader structural problem with the way clause 19 of the exposure draft has been drafted.

PN60

THE COMMISSIONER: Right.

PN61

MS BHATT: I hear what Mr Crawford - he and I had an opportunity to speak briefly before the proceedings commenced today. I hear what he's saying about there being no definition of what overtime is, if our proposal is adopted. I would ask for an opportunity to think about this a little bit further beyond the conference today.

PN62

THE COMMISSIONER: Sure, sure.

PN63

MS BHATT: But I'm just wondering if one possible solution to address that issue is that we replace what is currently 19.1(a) in the exposure draft with a provision along the lines of:

PN64

For a full time or casual employee, overtime is any time worked outside or in excess of ordinary hours, as defined by clause 13.

PN65

THE COMMISSIONER: 23, you mean.

PN66

MS BHATT: Sorry, Commissioner. I was using the exposure draft number.

PN67

THE COMMISSIONER: Okay.

PN68

MS BHATT: Clause 13 of the exposure draft.

PN69

THE COMMISSIONER: Clause 13 is the exposure draft, what is currently 23.

PN70

MS BHATT: That's right.

PN71

THE COMMISSIONER: Right. Okay. So, possible, proposal, provisional proposal. 19.1(a), the wording that's there would be the same and when I'm saying 19.1(a), I'm referring to the exposure draft. "For a full time or casual employee, overtime is any time worked." You'd leave that the same.

PN72

MS BHATT: Yes.

PN73

THE COMMISSIONER: And then you would get rid of roman (i), (ii) and (iii) and insert just one provisions which would read - - -

PN74

MR CRAWFORD: Just (i) and (ii), isn't it?

PN75

MS BHATT: No. So, we'd delete (i), (ii) and (iii) and (a) would go on to read "outside of in excess of ordinary hours as defined by clause 13". I think where that lands is clause 13 continues to regulate what ordinary hours are.

PN76

THE COMMISSIONER: Yes.

PN77

MS BHATT: Because outside that is overtime, and what this does is it goes further than the current award, because it clarifies now that that is overtime. So, clause (b) would deal with part time employees. I think we'd still need to make the changes we've proposed to clause 19.2.

PN78

THE COMMISSIONER: You don't have to change 19.1(b), do you?

PN79

MS BHATT: No.

PN80

THE COMMISSIONER: No. Yes.

PN81

MS BHATT: You'd still have to make amendments to 19.2 to deal with the characterisation of those rates as being overtime rates. They're just penalty rates that apply. They're a higher rate that must be payable in certain circumstances and then there's the minimum payment issue on a Saturday which is agreed.

PN82

THE COMMISSIONER: Yes. But you're on common ground there with the AWU on terms of the changes to 19.2, leaving aside that you may well not be onboard with the more radical suggestion in 19.1.

PN83

MR CRAWFORD: We're certainly on board with addressing the three hour minimum engagement point.

PN84

THE COMMISSIONER: Yes. All right, okay, and that's all you're proposing to do there, isn't it?

PN85

MS BHATT: In respect to Saturdays, yes.

PN86

THE COMMISSIONER: Yes. You've got other changes to 19.2? No.

PN87

MS BHATT: Yes, in respect of the heading to 19.2 and all of the references to overtime which appear in the preamble to the table and then throughout the table.

PN88

THE COMMISSIONER: Okay, so what you agree to Mr Crawford is the changes to - yes, I see. The references to Saturday. Let's just step back a bit. Any immediate reactions to the suggestion about 19.1 to, well, blow up roman (i), (ii) and (iii) and just replace it with "outside or in excess of ordinary hours as defined by clause 13"? Should be "outside of".

PN89

MS BHATT: Yes, Commissioner.

PN90

THE COMMISSIONER: I mean you might have to have a think about it.

PN91

MR CRAWFORD: We were attracted to the provisions that make it clear that time worked on the weekend is overtime, because that, somewhat unusually under this award, is the case for day workers and shift workers, but I guess that is already made clear in the ordinary hours provision in clause 13. So, it may not be an insurmountable issue. There's the issue of whether rostered days off are covered by that amendment.

PN92

THE COMMISSIONER: Yes, good point. What do you say about that Ms Bhatt? Rostered days off, where is that?

PN93

MS BHATT: So, I think the issue is that in some cases, work performed on what would otherwise have been a rostered day off, is overtime, and in other circumstances, it isn't. The intention was that the wording that we've proposed, that I've just put, would by force of the other provisions, resolve the issue. But I can give that some further thought. I mean, if the award doesn't prescribe how RDO's are accrued, given, taken, rostered, apart from a provision in the award that allows an employee to carry RDO's forward. I think that's where the issue arises.

PN94

If an employee accumulates RDO's and then takes them at a later time, but works on this Friday which was supposed to be the RDO, there might be a question about do you pay the overtime rate or you don't. I don't think Mr Crawford and I disagree about how that's supposed to work, we just need to make sure that that's reflected properly.

PN95

THE COMMISSIONER: Sure. Well, do you want to have a go at drafting up a provision, a proposed variation to the exposure draft expressed in that usual way and circulate to the parties in a week or so?

PN96

MS BHATT: I can do that later today.

PN97

THE COMMISSIONER: Okay.

PN98

MS BHATT: But I just wonder whether the Commission, subject to Mr Crawford's availability, give us a period of say two weeks to report back, because it might be that we can have some further discussions once I prepare it.

PN99

THE COMMISSIONER: Excellent.

PN100

MS BHATT: I'll do it in a track changes form; perhaps that's a little easier to follow.

PN101

THE COMMISSIONER: Well, that's fine with me, because you won't be reporting back to me, will be back to the President, I suspect. But yes, sure. I'll give you two weeks.

PN102

MS BHATT: We might - I don't think there's any fundamental issue between us. So it might be that we can just - - -

PN103

THE COMMISSIONER: No, I'm detecting that. It's a matter of getting it right.

PN104

MS BHATT: I think so.

PN105

THE COMMISSIONER: All right, look, happy with that Mr Crawford?

PN106

MR CRAWFORD: I guess so, yes, Commissioner.

PN107

THE COMMISSIONER: We'll have a report back in two weeks. In any case, the endeavour though will be, you will draft something. ABI's the only other party that's had any involvement in this. There's no other union involved, or is there?

PN108

MR CRAWFORD: Yes, correct.

PN109

THE COMMISSIONER: Is that right?

PN110

MR CRAWFORD: For this issue, yes.

PN111

THE COMMISSIONER: Yes. Best to circulate to ABI as well. I don't think - I don't want them popping up later and saying we've got another idea, and it does on and one. Yes, see if you can resolve it. Any more we can do today?

PN112

MR CRAWFORD: Probably not.

PN113

THE COMMISSIONER: Probably not, all right. Well, thank you for your time. Thanks for coming in and I'll report back that we'll schedule it for a report back in a couple of weeks' time, subject to the availability of the President or another member of the Bench that I'm not on.

PN114

MS BHATT: It might be, it's a matter for his Honour of course, if we're able to reach a resolution and his Honour doesn't have questions that he wishes to raise with us, it might be that the matter doesn't need to be listed further.

PN115

THE COMMISSIONER: Of course.

PN116

MS BHATT: I just raise that as a - - -

PN117

THE COMMISSIONER: Yes, leave that for him. But at the moment, generally I think there's a need for - there's so many of these things going on, there's a bit of a need for discipline. I'll indicate that unless he's minded to, otherwise list it for a report back even if it's by phone in a couple of weeks and you can indicate where you're up to and ideally, you'll be writing to him before then, saying you've reached consent on an agreed variation.

PN118

Thanks very much.

PN119

MS BHATT: Thank you.

ADJOURNED INDEFINITELY [10.32 AM]