PN1

THE VICE PRESIDENT: Thank you. We will take the appearances. We'll start in Melbourne.

PN2

MR D HAMILTON: If your Honour pleases, Hamilton, initial D, the Australian Entertainment Industry Association, trading as Live Performance Australia.

PN3

THE VICE PRESIDENT: Thank you, Mr Hamilton.

PN4

MR SERONG: If your Honour pleases, I won't be appearing. I am just observing.

PN5

THE VICE PRESIDENT: Thank you, Mr Serong. In Brisbane?

PN6

MR J MURDOCH: Yes, thank you, your Honour. Murdoch, initials J.E. for Birch Carroll and Coyle Limited and the Hoyts Corporation Pty Ltd, and Greater Union Organisation Pty Ltd, Village Cinemas Ltd, and the Independent Cinemas Association of Australia and its members.

PN7

THE VICE PRESIDENT: Thank you, Mr Murdoch.

PN8

MS M CHAN: May it please the Commission, Chan, initial M, of Australian Business Lawyers and Advisors seeking leave to appear for ABI NSW Business Chamber, your Honour.

PN9

THE VICE PRESIDENT: Thank you, Ms Chan. We'll go to Sydney.

PN10

MR K BARLOW: If it pleases the Commission, your Honour, Barlow, initial K, appearing for the CPSU.

PN11

THE VICE PRESIDENT: Thank you, Mr Barlow.

PN12

MR S FORSTER: If the Commission pleases, Forster, initial S, appearing on behalf of the Seven Network Operations Limited, Nine Network Proprietary Limited and Network 10 Proprietary Limited and their related entities.

PN13

THE VICE PRESIDENT: Thank you, Mr Forster. And we have on the phone, Mr Chesher. Can you hear us, Mr Chesher?

PN14

MR M CHESHER: Yes, I can, thanks your Honour. Chesher, initial M, for the MEAA.

PN15

THE VICE PRESIDENT: Thank you. Now, on the last occasion when we met there were going to be discussions between the parties to try to narrow the issues even further. Have those discussions occurred?

PN16

MR FORSTER: Your Honour, it's Mr Forster on behalf of the TV networks. There have been discussions between my clients and the CPSU and my clients and the MEAA in relation to the technical and drafting issues that we have an interest in.

PN17

THE VICE PRESIDENT: Yes. Those documents have been sent to the Commission. So can you advise me where we've landed in relation to the document?

PN18

MR FORSTER: Your Honour, I think at least my clients, the CPSU and the MEAA are in a position to work through and indicate which areas of common interest we have reached agreement on and those issues where we haven't. So we can walk through that if that's possible?

PN19

THE VICE PRESIDENT: Yes. So if we want to go back to the document there which is - the last version of it is February 27 document - whatever. Republished on the 10 May. Is that the document you're working from?

PN20

MR FORSTER: Yes, we've got the 10 May version, your Honour.

PN21

THE VICE PRESIDENT: Yes, okay. Let's work through it then.

PN22

MR FORSTER: So item one is a Director's Guild item. They're not here and haven't been here. We're not really sure whether they're continuing to press that but for what it's worth my client is opposed to the submission that's made there.

PN23

MR BARLOW: Your Honour, the CPSU here in Sydney. That item while it is identified as ADG it is common to a number of issues that are between the parties later on, for example, at items 26 - excuse me - and 29. So it may very well be that that issue can be considered as part of that. This is a debate between the parties that remains a contested matter about whether there are changes in the proposed exposure draft of ordinary rates of pay as opposed to minimum rates of pay.

PN24

THE VICE PRESIDENT: Mr Barlow, at some point the discussions have to come to a close.

PN25

MR BARLOW: Yes.

PN26

THE VICE PRESIDENT: And the matter has to be referred to the Full Bench to deal with it.

PN27

MR BARLOW: Yes.

PN28

THE VICE PRESIDENT: What's your view in relation to this topic? Is it going to be useful having more discussions or is it coming to a close?

PN29

MR BARLOW: Well, I think, your Honour - I think it may very well be there could be useful discussions of that item today but it remains likely to be something that is something outstanding between the parties. And I might add, your Honour, it is probably one of a handful of items that is - you know - that may still be outstanding after this morning's proceedings, given the fact that the parties have reached agreement on a variety of others.

PN30

THE VICE PRESIDENT: All right.

PN31

MR BARLOW: I just wanted to clarify that item one, in my mind, relates to item 29 for example.

PN32

THE VICE PRESIDENT: Yes. Okay.

PN33

MR BARLOW: Or as far as I can understand it - - -

PN34

THE VICE PRESIDENT: Well, okay. Let's go down the slow path, rather than the fast path and we'll invite all the parties then to participate and we'll just go through the list again from the top.

PN35

MR BARLOW: Yes.

PN36

THE VICE PRESIDENT: That may be faster track. So item 1 you want to link when we come back to 29?

PN37

MR BARLOW: Yes. Yes, your Honour.

PN38

THE VICE PRESIDENT: All right. So item 2 is currently, on my version was agreed. Does that remain the case?

PN39

MR BARLOW: Yes, your Honour.

PN40

MR CHESHER: Yes.

PN41

THE VICE PRESIDENT: Right. Now where do we end up in item three?

PN42

MR CHESHER: Your Honour, it's Mr Chesher here. I - probably starting off in a negative way. This together with the matter just canvassed by Mr Barlow is in MEAA's position one of two or three issues that I don't believe is settled between the parties. There have been discussions. Item three is linked to items 16 and 43 in MEAA's opinion. It goes to the issue of what the minimum hourly rate is for cinema employees.

PN43

THE VICE PRESIDENT: On the last - - -

PN44

MR CHESHER: I'm happy to - - -

PN45

THE VICE PRESIDENT: On the last occasion in relation to your item 16 we didn't reach a landing there either.

PN46

MR CHESHER: No, that's correct. They're connected, your Honour. There is a difference of opinion between MEAA and the cinema representatives about the - effectively what the minimum hourly rate of pay is for cinema employees and whether it incorporates the eight percent loading in clause 13.4 of the exposure draft as part of the minimum rate of pay.

PN47

THE VICE PRESIDENT: Yes. Is that one of yours, Mr Murdoch?

PN48

MR MURDOCH: It's really our sole item so far as we know, your Honour.

PN49

THE VICE PRESIDENT: All right.

PN50

MR MURDOCH: And since our last mentioning before you we have had discussions with representatives of MEAA and it unfortunately hasn't been resolved. The current preliminary exposure draft which is dated 10 May it has a line through their last sentence of 13.4 and the deletion of that resulted from submissions which were made on behalf of our clients. The submissions made at a point in our view there had been an inadvertent substantive change which had arisen from the drafting exercise.

PN51

Now, initially, we thought we had agreement with the union but at the time of the last mention here it's emerged that so far as 13.4 is concerned that we don't have that agreement. So our categorisation of the difference is that it really is a substantive difference because there is no equivalent sentence in the current award and to introduce the sentence as we see it would change the substantive rights and obligations of the parties.

PN52

THE VICE PRESIDENT: Yes, I must say, Mr Murdoch, I see some force of that argument. It doesn't like it's a tentacle and drafting matter. It has a substantive impact. What do you say about that Mr Chesher?

PN53

MR CHESHER: Your Honour, MEAA's submission is that the eight percent is, in effect, it is compensation obviously as the clause says for public holidays and Sunday work. The cinema representatives from our last informal discussion I think were of the view that it may or may not form part of the minimum rate of pay.

PN54

I think the characterisation of it as an all-purpose loading there might be some issues there but MEAA's endeavour in this respect is to clarify that the effective minimum rate of pay in the Modern Award is the minimum rate as set out plus eight percent and that that applies to all employees, irrespective of the time of their engagement. It's a longstanding compensatory mechanism that has applied to the workforce as a whole. So we're seeking the Commission's affirmation, I imagine, of a Full Bench decision in 2009 which is canvassed in Mr Hamilton's comments some months ago that the - that it is part of the minimum rate rather than an all-purpose allowance. So that's MEAA's position. I mean there may be semantics involved but we're not content presently to have that clause suffer from lack of clarity about what the minimum rate of pay actually is.

PN55

THE VICE PRESIDENT: Yes. Mr Murdoch, anything further you want to say on this?

PN56

MR MURDOCH: No, your Honour.

PN57

THE VICE PRESIDENT: All right. Well, I think - - -

PN58

MR CHESHER: Your Honour - - -

PN59

THE VICE PRESIDENT: Yes?

PN60

MR HAMILTON: Your Honour, if - - -

PN61

THE VICE PRESIDENT: Yes, proceed.

PN62

MR HAMILTON: Sorry, your Honour - may I might be able to give some clarification as to that clause. Your Honour, in 1997, the Live Performance Australia and MEAA agreed to vary the Entertainment and Broadcasting Cinema Award to include the penalty averaging component and that was in lieu of Sunday penalties and reduced public holiday penalty. And your Honour from that point on until the award modernisation process started in 2009 and with the production of the new Broadcast and Recorded Entertainment Award the rates of pay in the entertainment and broadcasting industry cinema award was set out as a base rate of pay, a penalty averaging amount and then a minimum rate of pay.

PN63

Now, in my submissions to the Commission on the 22 February '17 I referred to the Full Bench decision which was convened on our application because in the initial draft REA award they deleted the eight percent penalty averaging component. And so therefore LPA on behalf of the industry made application to the Full Bench to reinsert that eight percent.

PN64

I have quoted some of the decision of the Full Bench in our submissions in February '17, your Honour, but technically their decision whilst restoring the eight percent penalty averaging did not really reflect the provisions of the pre-reform award. So I suppose there has been some conjecture between the parties about the definition of what a loaded rate is. Also whether it is an allowance. It was never put in to the award as an allowance. It was our submissions in 2009 that it was part of the minimum rate. So, your Honour, I suppose when the Commission came to produce the exposure draft there was none of that history that was afforded the opportunity of the people that are drafting the award and so therefore it would appear that they have introduced words that have never been there.

PN65

So I'm not sure where you want to take this, your Honour, but maybe that has assisted in determining where that eight percent came from.

PN66

THE VICE PRESIDENT: Well, have you and Mr Murdoch had discussions about what the clause should look like?

PN67

MR HAMILTON: Well, your Honour, funny you should say that we have been the main driver of the pre-reform award. If I could call them the majors were never associated with it and whenever there has been meetings with the union we have been failed to be advised or invited to those meetings. So I will leave that there, your Honour.

PN68

THE VICE PRESIDENT: Yes, but if you've got the history of it and it does seem that there ought to be a dialogue between you and Mr Murdoch to see whether this can be thrashed out.

PN69

MR HAMILTON: That would be correct, your Honour.

PN70

THE VICE PRESIDENT: Mr Murdoch, do you think that's an appropriate course?

PN71

MR MURDOCH: Your Honour, we naturally read the submission that Mr Hamilton's clients put in. Our clients are not in agreement with his view as to what the clause should be drafted to mean but having said that we're not adverse to having a discussion with him but- - -

PN72

THE VICE PRESIDENT: Well, it be a curious position if the matter becomes a substantive matter. We'll have one employer group saying one thing and the cinemas say another thing as to what was supposed to be a simple drafting exercise has stemmed from a substantive exercise as to what the clause means. It does seem to me that there might be some utility at least having that dialogue before I pull up stumps on the matter.

PN73

MR HAMILTON: Your Honour, will it assist if I handed up variation to the pre-reform award of how the Commission set out the provisions of the penalty - - -

PN74

THE VICE PRESIDENT: Well, ultimately, before it becomes arbitral matter - - -

PN75

MR HAMILTON: Yes.

PN76

THE VICE PRESIDENT: - - -you've got to convince Mr Murdoch that you can reach a landing. If you can't reach a landing then it becomes a matter that remains in dispute and will have to be resolved by the Full Bench.

PN77

MR HAMILTON: Thank you, your Honour.

PN78

THE VICE PRESIDENT: I can't make a ruling on the matter.

PN79

MR HAMILTON: Yes.

PN80

THE VICE PRESIDENT: We're here to see what's agreed. It's a process of narrowing the issues for the Full Bench. So what I propose to do in relation to this matter is to stand this matter over for a couple of weeks to see whether there is an agreement. It won't be relisted. If there is no agreement then when I prepare the report that goes back to the Full Bench it will be listed as an outstanding matter. That will give an opportunity to have discussion.

PN81

MR CHESHER: MEAA's comfortable with that, your Honour.

PN82

THE VICE PRESIDENT: Yes. Okay. Let's go back to the list then. So we were on - - -

PN83

MR CHESHER: I think we're up to item four, I think.

PN84

THE VICE PRESIDENT: Yes. Item four.

PN85

MR FORSTER: Your Honour, the television networks won't press for the deletion of the second definition. So that item can be removed from the list.

PN86

THE VICE PRESIDENT: Item five?

PN87

MR FORSTER: I understand that's agreed.

PN88

THE VICE PRESIDENT: Item six.

PN89

MS CHAN: That's not pressed, your Honour.

PN90

THE VICE PRESIDENT: Not pressed.

PN91

MS CHAN: No.

PN92

THE VICE PRESIDENT: Yes. Item seven?

PN93

MR BARLOW: Your Honour, it's the CPSU here. There appears - this is a contested matter at this stage. It's in response to a question posed in the exposure draft by the Fair Work Commission themselves and it appears that the parties have a different view as to whether or not this clause which deals with meal breaks should be a flexibility clause that an individual could agree or a group of employees can agree.

PN94

THE VICE PRESIDENT: Yes. And that clause is not just limited to this award. It has been listed in other awards but - - -

PN95

MR BARLOW: Yes, that would be correct, your Honour.

PN96

THE VICE PRESIDENT: So what do you want to do with it? Do you want to have further discussions or you can remain outstanding on it?

PN97

MR BARLOW: I think further discussions would be useful given the fact that it is a facilitative clause that requires employee and employer agreement.

PN98

THE VICE PRESIDENT: It is - that's what it is. So - - -

PN99

MR BARLOW: Yes.

PN100

THE VICE PRESIDENT: - - -well, we'll do the same process.

PN101

MS CHAN: Your Honour?

PN102

THE VICE PRESIDENT: That will be stood over for two weeks to have discussions. If we are advised that the matter is not resolved it will go to the non-resolved list and referred in my report to the Full Bench.

PN103

MS CHAN: Your Honour, if I might just clarify the ABI's position? In relation to our submission I don't actually believe we're in disagreement with the CPSU. We are still indicating that we believe that it's notwithstanding the actual words the actual text of that particular provision of that agreement can actually be reached on an individual basis as well as for the group of employees. So I'm not sure if that might assist the parties.

PN104

THE VICE PRESIDENT: Yes, well put something in writing once you've reached an agreed position so it's there on the record.

PN105

MS CHAN: Certainly.

PN106

MR BARLOW: Yes, your Honour.

PN107

THE VICE PRESIDENT: Paragraph eight.

PN108

MR FORSTER: It is agreed.

PN109

MR BARLOW: Yes, that's agreed, your Honour.

PN110

THE VICE PRESIDENT: Paragraph nine?

PN111

MR FORSTER: Is agreed.

PN112

THE VICE PRESIDENT: Paragraph 10?

PN113

MR FORSTER: Is agreed.

PN114

THE VICE PRESIDENT: Eleven?

PN115

MR FORSTER: Agreed.

PN116

THE VICE PRESIDENT: Twelve?

PN117

MR FORSTER: Agreed.

PN118

THE VICE PRESIDENT: Thirteen?

PN119

MR FORSTER: Agreed.

PN120

THE VICE PRESIDENT: Fourteen?

PN121

MR FORSTER: Agreed.

PN122

THE VICE PRESIDENT: Fifteen?

PN123

MR FORSTER: Sorry, to break a good run, your Honour. Not agreed.

PN124

THE VICE PRESIDENT: Yes.

PN125

MR FORSTER: This is something that Mr Barlow mentioned earlier. Similarly to how item one relates to item 29. This probably sits with that issue as well. There is general disagreement between the television networks and the CPSU and me or about references to time versus percentage based formulas for calculating penalty rates in the award. As well as disagreement between the parties about references in certain areas to penalties being calculated on the minimum hourly rate of pay as opposed to the ordinary hourly rate of pay which naturally includes certain other amounts such as all-purpose allowances.

PN126

So it's a matter that I suspect we will struggle to reach agreement on but can I suggest given that there have been some other matters that have been stood over for a couple of weeks that we just add that to the list as well. We'll see how we go. We'll provide something to you in writing if we can reach agreement but we don't expect to come back before you again to talk to this point and either way we will know in two weeks whether it's a matter for the Full Bench or not.

PN127

THE VICE PRESIDENT: All right. Well, the same it should have two weeks. Item 16 we've spoken about. That's in the two-week category. Item 17.

PN128

MR FORSTER: Is agreed.

PN129

THE VICE PRESIDENT: Eighteen?

PN130

MR FORSTER: Is agreed.

PN131

THE VICE PRESIDENT: Nineteen?

PN132

MR CHESHER: That's agreed from MEEA's perspective, your Honour.

PN133

THE VICE PRESIDENT: Yes. Mr Hamilton that means that's agreed, isn't it? Yes. All right. That's agreed. Twenty?

PN134

MR BARLOW: I think that's agreed, your Honour.

PN135

MR CHESHER: MEAA had a question about it but in the interests of peace we'll withdraw that question.

PN136

THE VICE PRESIDENT: All right. Twenty is agreed. Twenty-one.

PN137

MR FORSTER: Is agreed.

PN138

THE VICE PRESIDENT: Twenty-two.

PN139

MR FORSTER: Your Honour, this item is one where disagreement appears to have arisen in response to a question posed by the Commission.

PN140

THE VICE PRESIDENT: Yes.

PN141

MR FORSTER: The question is whether an existing reference to the employer's obligation to reimburse employees for the costs of renting a telephone where this is required should be updated to include a reference to mobile telephone costs.

PN142

THE VICE PRESIDENT: Yes.

PN143

MR FORSTER: We say the television networks that a mobile telephone is a telephone and so it's already caught by the provision and to the extent that an employer requires an employee to have a telephone they would be required to meet the rental costs but what they would not be required to meet as is the case in the current award is any call costs because that's a separate item. That's our position - I think - and my friends will no doubt speak to this. As I understood their submission there was more to the point that the clause should be updated to refer to mobile telephone costs but I am not sure whether I am responding to a proposal by them to expand it beyond just rental costs because that then would mean we are in a significant dispute.

PN144

THE VICE PRESIDENT: Yes. I understand that.

PN145

MR FORSTER: As opposed to just a little one, yes.

PN146

MR CHESHER: It's Mr Chesher from MEAA, your Honour. MEAA wasn't minded to extend the language of 14.3(d) simply to clarify that a telephone includes a mobile telephone.

PN147

THE VICE PRESIDENT: All right. Well, that would resolve it, wouldn't it Mr Forster?

PN148

MR FORSTER: Yes. It's a good point. It would be hard to resist the inclusion of some words, perhaps in parentheses after "telephone" - "including a mobile telephone".

PN149

THE VICE PRESIDENT: Yes.

PN150

MR FORSTER: Or words to that effect.

PN151

MR CHESHER: Perhaps "mobile" or "fixed line".

PN152

THE VICE PRESIDENT: So we can do that. So telephone rent allowances.

PN153

MR FORSTER: That's acceptable.

PN154

THE VICE PRESIDENT: Yes. To include "mobile" or "fixed line" in the definition there and that will resolve 22. All right.

PN155

MR FORSTER: Yes, your Honour.

PN156

THE VICE PRESIDENT: Twenty-three?

PN157

MR FORSTER: Just checking with my friend from the CPSU.

PN158

MR BARLOW: That's fine.

PN159

MR FORSTER: Twenty-three is agreed.

PN160

THE VICE PRESIDENT: Twenty-four?

PN161

MR BARLOW: Sorry, your Honour. Sorry, your Honour. Back to 23. I had understood - I had conversations with Mr Forster. This was where they were proposing to amend part of the annual leave clause to include what they thought was a more specific reference to "defined" or "described" which is to pick up the shift worker annual leave in the NES, your Honour. I understood Mr Forster was considering his position. It may very well be - this is clause 16.2 in the exposure draft.

PN162

THE VICE PRESIDENT: I have it in front of me. Yes.

PN163

MR BARLOW: Yes, thank you. If you can see at the bottom - well, the bottom of the page - 16.2 includes a note that says s 83(1)(b) of the Act does not apply as employees under this clause are not shift workers for the purpose of NES. Seven had proposed to put in - "Are not described or defined as shift workers for the purpose of the NES" - both in this clause and another one further down which we said - we resisted on the basis that we thought it was fairly clear from that current note and didn't require any further amendment and that was the position. That was the opposition between the parties so maybe Mr Forster can indicate whether he wants to withdraw that proposed inclusion or not.

PN164

THE VICE PRESIDENT: Yes, Mr Forster?

PN165

MR FORSTER: No, I don't want to withdraw it, your Honour. We think it makes the clause clearer. It picks up the language of the statute. I know it's a minor thing but those are my instructions at the moment and unfortunately I wasn't able to obtain instructions on whether or not we should shift that position. So - - -

PN166

THE VICE PRESIDENT: Well, then at this stage it's not agreed it will go in that two-week category.

PN167

MR FORSTER: Certainly. Thank you.

PN168

THE VICE PRESIDENT: To be resolved. All right. Let's go to 24.

PN169

MR FORSTER: That would be in the same category, your Honour. It's the same issue.

PN170

MR BARLOW: Twenty-three and 24 relate to the same issues.

PN171

THE VICE PRESIDENT: Yes, okay. Twenty-five?

PN172

MR CHESHER: I'm not sure whether, your Honour, Commercial Radio's present. MEEA doesn't support - - -

PN173

THE VICE PRESIDENT: No. There's nobody from Commercial Radio.

PN174

MR BARLOW: Well, if I may speak to this item very briefly, your Honour? Commercial Radio sought to change - made fairly significant changes regarding annual leave loading and it's certainly because of an ambiguity in the exposure draft there it's certainly the Seven Network's and the CPSU's position that the changes they propose are not required and instead there needs to be a further reference in that clause to 32.1(d) and the clause otherwise doesn't need to be rewritten. This is to clarify the operation of annual leave loading to shift penalties and so forth, your Honour. So I might just take you to 16.7.

PN175

THE VICE PRESIDENT: Yes. No, I have got that in front of me.

PN176

MR BARLOW: Yes. The issue arises at 16.7(a) and its reference to subject to 32.3(d) which picks up some but not all.

PN177

THE VICE PRESIDENT: Yes. When was the last time you spoke to the CRA, Mr Barlow?

PN178

MR BARLOW: I haven't - I'm afraid I haven't spoken to the CRA regarding this matter, your Honour. Obviously I had clarified that the union - the MEAA, CPSU, and Seven don't think their changes are required but I haven't contacted them specifically about this matter. I was hoping that would be here today to answer.

PN179

THE VICE PRESIDENT: The other employer groups for the moment are supporting the submissions of the CRA presumably. Is there a basis for that? Or are you just supporting Mr Hamilton? Or, Ms Chan? Is there a reason for that or are you just waiting to see what the CRA does?

PN180

MS CHAN: We would be content to see what the CRA does but we have no opposition to what has been agreed between the TV networks and the CPSU either.

PN181

THE VICE PRESIDENT: All right. Well, I think, Mr Barlow the approach then should be that you should speak to the CRA in the next two weeks and see if that can be resolved otherwise it will go in the outstanding category.

PN182

MR BARLOW: Yes, your Honour.

PN183

MR FORSTER: And, your Honour, it's Mr Forster for the TV networks very quickly. Just to clarify it and I think this point was clearly made but for the avoidance of any doubt there is agreement between my clients and the CPSU, at least, that the inclusion of the words 32.1(d) and in 16.7(a) is agreed.

PN184

THE VICE PRESIDENT: Yes. I follow that.

PN185

MR BARLOW: Thank you, your Honour.

PN186

MR CHESHER: That's MEAA's position as well, your Honour, what Mr Forster just spoke to.

PN187

THE VICE PRESIDENT: Yes, thank you, Mr Chesher. I will then go to 26.

PN188

MR CHESHER: It's part of our earlier discussion, your Honour, about ordinary versus minimum.

PN189

THE VICE PRESIDENT: Yes. So that's in the two-week see what's going to survive.

PN190

MR BARLOW: Yes. Yes, your Honour.

PN191

THE VICE PRESIDENT: Twenty-seven.

PN192

MR FORSTER: Your Honour, Forster, for the television networks. We'd proposed to amend this clause. Our proposed amendment is agreed. However, the CPSU has - well, so the idea that we should amend the clause is agreed. The words were not quite agreed and the CPSU have suggested a very minor amendment. We agree to add their minor amendment and with that we think the issue is settled.

PN193

THE VICE PRESIDENT: Okay. So it will become "where applicable" rather than "if applicable".

PN194

MR BARLOW: Yes, your Honour.

PN195

MR FORSTER: That's correct.

PN196

THE VICE PRESIDENT: Okay. So that's agreed. Twenty-eight?

PN197

MR BARLOW: Now, this is an area where the CPSU and Seven have almost reached agreement, your Honour. In some senses the - part of it is agreed and part of it is not agreed.

PN198

THE VICE PRESIDENT: So what does that mean? In the next two weeks you will agree to it? Or will it remain outstanding?

PN199

MR BARLOW: Sorry, I withdraw that, your Honour. I was looking at the wrong item. I can confirm 28 is agreed.

PN200

THE VICE PRESIDENT: Twenty-eight is agreed. Okay. There we go.

PN201

MR FORSTER: Yes, it is agreed. Sorry, your Honour.

PN202

THE VICE PRESIDENT: Okay. Now we'll go to 29.

PN203

MR BARLOW: This is the second branch of the "ordinary" versus "minimum" debate, your Honour, which we need the two weeks for and otherwise will remain outstanding.

PN204

THE VICE PRESIDENT: Yes. I understand that. Number 30?

PN205

MR BARLOW: I believe that's agreed, your Honour - 30.

PN206

MR FORSTER: It is.

PN207

MR BARLOW: But - - -

PN208

MR FORSTER: Just to clarify items 30, 31 and 32 which are all related what is agreed is that in relation to item 30 and item 31 the words "subject to the provisions of clause 32.1(c)" should be added to the start of each of those clauses. What is now also agreed is that the addition of the headings in each of those clauses being nightshift, morning shift and extra shift duty allowance should also be - should be removed. Those headings do not appear in the current award. We think they're unhelpful. The CPSU originally sought their attention but has now agreed that they should be removed too.

PN209

THE VICE PRESIDENT: But just so I am clear - if you look at 32.1(a) you would delete - - -

PN210

MR FORSTER: Yes.

PN211

THE VICE PRESIDENT: - - -nightshift.

PN212

MR FORSTER: Correct.

PN213

THE VICE PRESIDENT: And so the clause begins with "an employee" et cetera.

PN214

MR BARLOW: No. We would reinsert the words "Subject to the provisions of clause" - - -

PN215

THE VICE PRESIDENT: Yes. Sorry.

PN216

MR BARLOW: Yes.

PN217

THE VICE PRESIDENT: Subject to the provisions of clause 32.1(c) an employee who works.

PN218

MR FORSTER: Yes.

PN219

THE VICE PRESIDENT: Right?

PN220

MR FORSTER: Yes.

PN221

THE VICE PRESIDENT: Number (b) "morning shift" is deleted and the clause begins "subject to provisions of clause 32.1(c)".

PN222

MR BARLOW: Yes.

PN223

THE VICE PRESIDENT: That's right? And when we go to (c) we're deleting the title "Extra Shift Duty Allowance".

PN224

MR BARLOW: Yes.

PN225

MR FORSTER: Yes.

PN226

THE VICE PRESIDENT: And it just reads on "For all ordinary time work".

PN227

MR BARLOW: Yes.

PN228

MR FORSTER: Yes.

PN229

THE VICE PRESIDENT: Yes. Okay. We've got that. Let's go to clause 33. Item 33 - I should say.

PN230

MR FORSTER: So this is an item proposed by the television networks. It relates generally to the issue about how you calculate penalty rates. It's not agreed. It belongs in the two-week basket with those other items.

PN231

THE VICE PRESIDENT: Right. Okay. Item 34?

PN232

MR FORSTER: Is agreed.

PN233

THE VICE PRESIDENT: Item 35?

PN234

MR FORSTER: Is agreed.

PN235

THE VICE PRESIDENT: Thirty-six?

PN236

MR FORSTER: Just to clarify item 35, your Honour. It was a response to a question raised by the Commission.

PN237

THE VICE PRESIDENT: Yes.

PN238

MR FORSTER: I would suggest that we're agreed to the extent that I think that there were common responses that allowance is calculated on the basis of a director's salary, not a producer's rate because they're not actually covered.

PN239

THE VICE PRESIDENT: Yes, I follow that. Thirty-six?

PN240

MR CHESHER: I was of the view that that was agreed, your Honour, which was to retain the current wording of - that is in the BREA - otherwise the typographical issues raised by Mr Forster are supported and I note the CPSU that supports that submission as well. MEAA was of the view that the current clause is clearer than the revised clause in the exposure draft.

PN241

THE VICE PRESIDENT: Yes, Mr Forster?

PN242

MR FORSTER: Yes. We agree with that.

PN243

THE VICE PRESIDENT: Yes. Okay. Thirty-six is agreed. Item 37?

PN244

MR BARLOW: Your Honour, this falls into a subset of the minimum versus ordinary issue mostly because it relates to a different part of the award than what the TV networks are dealing with. This is obviously commercial radio where we say there has been a clear change from ordinary rate in the current award to minimum rate in the proposed exposure draft. Now, I know no one has put on a submission in opposition to us so I don't know where to put this in the category of whether you want me to try to have a conversation with one of the employers about this or whether it can just be fixed.

PN245

THE VICE PRESIDENT: Well, let me just have a look at 40.2. You want to delete in the current exposure draft minimum hourly rate? Is that right, Mr Barlow?

PN246

MR BARLOW: Yes, your Honour.

PN247

THE VICE PRESIDENT: And you want to replace minimum hourly rate with ordinary rate of pay in that clause.

PN248

MR BARLOW: Yes, your Honour. Yes, which we say reflects what the current clause 38.1 in the current award says.

PN249

THE VICE PRESIDENT: Yes. Does any employer have a view? Assuming there's no view then means that there is an agreement.

PN250

MR MURDOCH: Your Honour, just on that, I'd like to reserve our rights on that because that may have an interface with the issue related to the eight percent loading issue.

PN251

THE VICE PRESIDENT: All right. Well - - -

PN252

MR BARLOW: Can I just - your Honour, CPSU here. This is technical staff in radio. I don't think there is any interaction with cinema employees or employers for this part of the award.

PN253

THE VICE PRESIDENT: Well, I'll still give Mr Murdoch the benefit of the two weeks to see where there's - the problem is.

PN254

MR BARLOW: Yes, your Honour.

PN255

THE VICE PRESIDENT: If there's no problem Mr Murdoch will let us know and that clause will then be agreed as 40.2. So let's go to item 38.

PN256

MR CHESHER: Your Honour, this was in response to a further question by the Commission. MEAA's view was that that needs to be read in conjunction with clause 38 which is the rostering provision for technical staff in radio broadcasting. I am not aware of views to the contrary.

PN257

MR BARLOW: Yes. There is. Your Honour, it's the CPSU here. There is a view to the contrary and I would like to say I withdraw that. That submission was malformed, your Honour, and we agree with both MEAA and the ABI that in many ways the overtime for technical staff needs to be read consistent with the rostering and the ordinary hours of work.

PN258

THE VICE PRESIDENT: Yes. All right.

PN259

MR BARLOW: And we don't suggest there's any ambiguity there.

PN260

THE VICE PRESIDENT: So - - -

PN261

MR BARLOW: I will withdraw that submission at 38, your Honour, and we agree with ABI and MEAA.

PN262

THE VICE PRESIDENT: So, Mr Chesher, how is clause 43.1 redrafted?

PN263

MR CHESHER: I'd need to submit something, your Honour, but I think a simple cross-reference - - -

PN264

THE VICE PRESIDENT: All right. Well, can you do that in the next two weeks?

PN265

MR CHESHER: - - -to clause 38.

PN266

THE VICE PRESIDENT: Do that within the next - - -

PN267

MR CHESHER: Yes, I will, your Honour.

PN268

THE VICE PRESIDENT: - - -two weeks so that can be then an agreed position. All right?

PN269

MR CHESHER: Okay, thank you.

PN270

THE VICE PRESIDENT: Item 39?

PN271

MR CHESHER: Yes. MEAA again responded in the affirmative to clarifying midnight to dawn. We did answer "yes" as I said but I'm not going to press that response, your Honour.

PN272

MR FORSTER: And your Honour, it's Mr Forster from the television networks. There is a reference to my clients in this item of the table. I think that reference may be included in error.

PN273

THE VICE PRESIDENT: Right.

PN274

MR FORSTER: It cites the source of our submission being paragraph 3.4(c) of our - well, it doesn't specify but it could only be our reply submissions dated 22 February 2017 and in those submissions we were referring, in actual fact, to clause 48 of the exposure draft which relates to journalists. So - - -

PN275

THE VICE PRESIDENT: All right. So include - I understand that - in relation to paragraph 44.4 of the exposure draft the clause that currently is there - stands - there's no further changes proposed.

PN276

MR CHESHER: That's correct, your Honour.

PN277

THE VICE PRESIDENT: Yes. That's the position. So that's the answer to the Commission's questions. We're not making any changes - 44 point (a) as it is. All right.

PN278

MR CHESHER: Yes.

PN279

THE VICE PRESIDENT: We then go to item 40.

PN280

MR FORSTER: Yes. It's another one of the television networks items, your Honour. The reference there in the column clause exposure draft to clause 45.1 I believe is an error. It should be a reference to clause 48.1.

PN281

THE VICE PRESIDENT: Right.

PN282

MR FORSTER: And if that reference is corrected - if you go to that clause you will see that we have proposed some minor formatting adjustments which I understand are agreed between MEAA and my clients.

PN283

MR CHESHER: That is the case, your Honour.

PN284

THE VICE PRESIDENT: All right. Well - - -

PN285

MR CHESHER: As corrected.

PN286

THE VICE PRESIDENT: They're not in front of me at the moment. So the actual amendments proposed to 48.1. So that there's no confusion, Mr Forster, I might just put that in writing.

PN287

MR FORSTER: I am happy to do that, your Honour, and for your benefit I should note that attached to our first set of submissions in relation to the exposure draft dated 18 January 2017 there was a marked-up version of the exposure draft that we prepared on behalf of our clients which contains that that revised formatting. So I could still send it through subject to - - -

PN288

THE VICE PRESIDENT: The reason I want it sent through, Mr Forster, is it will avoid the problem later on because this document currently refers to 45.1 and I want to eliminate the confusion so that the table is corrected and we have got the clause clearly as a separate item.

PN289

MR FORSTER: Yes.

PN290

THE VICE PRESIDENT: In the next two weeks so it will make it just easier. So when the exposure draft is being rewritten that the people who have put these documents together will have the right foot out in front of them.

PN291

MR FORSTER: Yes, I understand. Thank you, your Honour. We'll do that.

PN292

THE VICE PRESIDENT: Just given the error that's actually in the table avoids that problem. All right.

PN293

MR FORSTER: Yes, if the Commission pleases.

PN294

THE VICE PRESIDENT: All right. Okay? Let's go to item 41.

PN295

MR FORSTER: I understand this item is agreed. Your Honour for the sake of consistency it might be appropriate if we changed, though - - -

PN296

THE VICE PRESIDENT: To "where applicable".

PN297

MR FORSTER: "Where applicable".

PN298

THE VICE PRESIDENT: Yes. Okay. So item 41 clause 49.1 adding the words "where applicable" at the end of the sentence. Okay? Item 42?

PN299

MR CHESHER: MEAA's position, in essence, is to retain the status quo, your Honour, with respect to clause 51.3 or two rather. Mr Forster might like to add something on that point.

PN300

MR FORSTER: No, I agree with my friend. Your Honour, this again is a question posed by the Commission about how the existing provisions of the award should be interpreted when calculating shift penalties for certain employees. Look, we don't think that there's given the responses much confusion between the parties so it doesn't seem to me that it needs to be clarified at all and the existing provisions can remain.

PN301

THE VICE PRESIDENT: So just so I am clear, Mr Forster, the exposure draft clause currently 51.2 - you're saying is correct and doesn't need to be amended in the light of the question?

PN302

MR FORSTER: That's correct. Can I also make this point of clarification, your Honour? It's actually clause 51.3.

PN303

THE VICE PRESIDENT: Oh, yes.

PN304

MR FORSTER: Not clause 51.2.

PN305

THE VICE PRESIDENT: Yes, right. It's 51.3 does not need to be amended.

PN306

MR FORSTER: Yes. Yes, that's correct.

PN307

THE VICE PRESIDENT: Yes.

PN308

MR CHESHER: That's MEAA's position, your Honour, thank you.

PN309

THE VICE PRESIDENT: All right. So 51.3 in the exposure draft will remain in its current form. We then go to item 43.

PN310

MR CHESHER: Your Honour, that's part of the question of the eight percent.

PN311

THE VICE PRESIDENT: Yes, that's substantive at the moment. Sort it out in the next two weeks. Item 44?

PN312

MR CHESHER: Again, your Honour MEAA does not support a change to the status quo in response to the Commission's question concerning clause 57.3.

PN313

THE VICE PRESIDENT: Well, does anyone want a change? I mean it is a response to a Commission's question, otherwise the clause stands as the part-time employee receives minimum hourly rates for ordinary hours worked. 57(3)(b). All right. Well, that's then an agreed position at 57 - - -

PN314

MR CHESHER: Sorry, your Honour. I'm just looking at my notes from previous discussions. I think in 57.3(b) MEAA did agitate that the language should be - - -

PN315

THE VICE PRESIDENT: It did agitate a change that's why I asked the question.

PN316

MR CHESHER: Yes. I'm sorry, your Honour. The part-time employee receives no less than the minimum hourly rate is what MEAA proposed I believe.

PN317

THE VICE PRESIDENT: That is correct. Yes. Is there any view on that from anybody?

PN318

MR MURDOCH: Your Honour, it seems superfluous, your Honour, because a minimum rate means just that. Many awards refer to minimum rate.

PN319

THE VICE PRESIDENT: Well, they do. That's why I am a bit troubled by it by this change, Mr Chesher.

PN320

MR CHESHER: I accept that it has restorative as well as confusing aspects so we will withdraw that, your Honour.

PN321

THE VICE PRESIDENT: Okay. So that will be withdrawn - Exhibit 3(b) is withdrawn. We then go to item 45 which is the response of the question by the Commission.

PN322

MR CHESHER: Yes. MEAA's position, your Honour, is that is superfluous to clarify the method of calculation.

PN323

THE VICE PRESIDENT: So that's an agreed position is it? From ABI and the Chamber as well?

PN324

MR CHESHER: It appears to be, your Honour.

PN325

MS CHAN: Yes, it appears to be.

PN326

THE VICE PRESIDENT: All right. We then go to item 46 - there's a climate allowance - a typographical error.

PN327

MR CHESHER: That's a typo, your Honour.

PN328

THE VICE PRESIDENT: Yes.

PN329

MR CHESHER: That appears the exposure drafts been fixed.

PN330

THE VICE PRESIDENT: Okay, that's done. Item 47.

PN331

MR CHESHER: It's Mr Chesher, your Honour. MEAA advised the Commission some months ago that having raised the question some time ago that we weren't pressing that claim. I am not able to speak for the Australian Director's Guild.

PN332

THE VICE PRESIDENT: Yes. Well, who is speaking for the Australian Director's Guild? Or who can speak - - -

PN333

MR CHESHER: Well, I think MEAA can undertake to seek a response from them. Your Honour, I am aware on the Commission's web page that the ADG has proposed pursuing this matter that there has been no contact with them in the last couple of months. But I will make contact.

PN334

THE VICE PRESIDENT: I will leave that to you, Mr Chesher, to see whether it can be resolved otherwise it remains a live issue then. All right. Item 48?

PN335

MR CHESHER: MEAA's position is that the clause should refer to gross agreed remuneration. It's effectively a term of art within the industry that's well understood and amending it to minimum rates would cause immense confusion.

PN336

THE VICE PRESIDENT: Well, ABI and the Chamber want minimum rates. Is that right, Ms Chan?

PN337

MS CHAN: Yes, your Honour. I can seek further instruction about that to see if we - they might be minded to change their position on that but at this point we would be pressing for opposition.

PN338

THE VICE PRESIDENT: All right. Well, that will be in the two-week category as well then. All right. And then the last item is item 49.

PN339

MR FORSTER: Yes, that's something from the television networks, your Honour. I think in the exposure draft in its current iteration there is a table of wages applicable to cinemas. We were suggesting that it might be helpful if there were tables of wages including penalty rates et cetera for the other strands in the award as well. That is really up to the Commission whether or not it's minded to do that.

PN340

MR MURDOCH: Could I just add there that in the current exposure draft that schedule related to cinemas has been removed.

PN341

THE VICE PRESIDENT: That is right.

PN342

MR MURDOCH: Which we support.

PN343

THE VICE PRESIDENT: Yes.

PN344

MR BARLOW: That solved the problem, your Honour.

PN345

THE VICE PRESIDENT: Yes. Well, it had been removed.

PN346

MR FORSTER: Yes. Well, it puts me out on a limb a little bit. Look, I don't think it's an item that we'd press then.

PN347

THE VICE PRESIDENT: All right. Schedule E is deleted.

PN348

MR FORSTER: That's fine.

PN349

THE VICE PRESIDENT: And that means that that matter is resolved - item 49. All right. So that then means that when the next 14 days the parties should confer on the remaining items to see whether there can be agreement. It is clear that the majority of those items - few though that they be - or are unlikely to be agreed that they would then correspond to the Commission and then I'll prepare a report on the matter about the outstanding items so the matter can then be programmed for the Full Bench to deal with the technical and drafting items that remain outstanding. Are there any other questions for today?

PN350

MR BARLOW: No, your Honour.

PN351

MR FORSTER: No, your Honour.

PN352

THE VICE PRESIDENT: All right. The Commission is adjourned.

ADJOURNED INDEFINITELY [9.59 AM]