PN1

THE DEPUTY PRESIDENT: Good morning. Where are we at?

PN2

MR CHESHER: Thanks, your Honour. We have used much of the time since you last convened our two organisations to work through our various proposals and points of difference. The good news is that the areas that are outstanding most probably fall into the bracket of both organisations doing their final due diligence on the consequences of several of the proposed and agreed changes, acknowledging of course that simply because the parties have reached agreement on that, that is not in and of itself equating to the Commission's endorsement of those things.

PN3

THE DEPUTY PRESIDENT: Yes.

PN4

MR CHESHER: We most recently displayed a bit of extra initiative in preparing an exposure draft for ourselves to consider based on the exposure draft that was circulated by the Commission some time ago of the Live Performance Award. To go through the issues that we want to highlight to you today – and there are approximately 10 of those – the clauses that I'll be referring to won't necessarily match those in the Commission's version of the exposure draft, so we would like to refer to the issues just by giving a brief description rather than adhering to clause numbers that may or may not work in the version that you have.

PN5

THE DEPUTY PRESIDENT: Perhaps a description by reference to subject matter of the clause.

PN6

MR CHESHER: Yes. I think that's fair, your Honour. I should say with your concurrence we would be hoping to present a variant of the document that we're working to for your and the Commission's consideration down the track.

PN7

THE DEPUTY PRESIDENT: Yes. I hope not too far down the track.

PN8

MR CHESHER: No, not too far down the track. Addressing final issues first, I recall some time ago that you sought our input on the inclusion of drag performers within the award.

PN9

THE DEPUTY PRESIDENT: Yes, well, the applicant – if I can describe the person in that way, because I'm not sure – in any event, was advised that that was an outstanding issue and was invited to attend the conference today, and indicated attendance today.

PN10

MR CHESHER: Yes.

PN11

THE DEPUTY PRESIDENT: But there doesn't appear to be any appearance, in any event.

PN12

MR CHESHER: For the record, MEAA's position is that we would have no objection to the inclusion of those performers to be covered by the award.

PN13

THE DEPUTY PRESIDENT: Yes.

PN14

MR CHESHER: There are some unclear areas as to within which part those performers ought to be covered and whether the rates of pay should reflect those others. We're not underestimating a bit of work, but having reviewed the applicant's paperwork, all we're able to do is indicate our agreement in principle to their inclusion; but it is up to them.

PN15

THE DEPUTY PRESIDENT: Yes, it is. Mr Hamilton, does your organisation have a view?

PN16

MR HAMILTON: Your Honour, we don't have such organisations or individuals as members and have not been approached to be members, so - - -

PN17

THE DEPUTY PRESIDENT: In any event, whatever else might be said of the application, it's hardly a technical and drafting issue matter.

PN18

MR CHESHER: Correct.

PN19

THE DEPUTY PRESIDENT: This is a standard variation and I'll add it to the list of substantive issues that will need to be determined at some point. Even if there was no opposition as such, there were some significant issues that need to be considered, so that's what I propose to do with that matter.

PN20

MR CHESHER: Thanks, your Honour. Onto the matters in – and I actually think these matters deal with both technical and drafting and substantive - - -

PN21

THE DEPUTY PRESIDENT: Yes, I'm content to resolve substantive issues if there was a modicum of agreement.

PN22

MR CHESHER: Yes.

PN23

THE DEPUTY PRESIDENT: But, Mr Chesher, the matters that you're going to take me to are matters that are in dispute or are these things that are agreed?

PN24

MR CHESHER: Both, but there are no more than 10 and I'll be extremely succinct.

PN25

THE DEPUTY PRESIDENT: Yes, all right.

PN26

MR HAMILTON: If I could add, your Honour, they're not necessarily going to be matters that will require arbitration. It just needs more clarification from either side.

PN27

THE DEPUTY PRESIDENT: Yes. Mr Chesher?

PN28

MR CHESHER: Clause 3, your Honour, the definitions in the award. We propose six variations. The inclusion of a reference to "double time", meaning twice the ordinary hourly rate, as a definition; a definition of "local show"; a definition of "musician" - - -

PN29

THE DEPUTY PRESIDENT: Just in relation to double time, the approach that has been taken by the drafters of the exposure drafts across awards has been to use a formulae which provides for a percentage, so that in this case double time would be 200 per cent of the ordinary rate of pay.

PN30

MR CHESHER: In our initial conference with you last year, your Honour, we indicated that we were contented with the status quo rather than the percentage.

PN31

THE DEPUTY PRESIDENT: Yes.

PN32

MR CHESHER: And the double time definition that's in the parties' working draft is double the negotiated rate, which is different again.

PN33

THE DEPUTY PRESIDENT: Yes.

PN34

MR CHESHER: So again it will be a matter for the Commission.

PN35

THE DEPUTY PRESIDENT: I understand. All right.

PN36

MR CHESHER: A definition of "musician". There is not presently one within the award. Consequential changes to the definition of "performer" to eliminate the word "musician"; a definition of "time and a half". That refers to the ordinary hourly rate.

PN37

THE DEPUTY PRESIDENT: Yes.

PN38

MR CHESHER: And a definition of "whole time performance", which is of use within our sector.

PN39

THE DEPUTY PRESIDENT: Are you proceeding with "local show"?

PN40

MR CHESHER: And a definition of "performance", I should add, your Honour.

PN41

THE DEPUTY PRESIDENT: "Performance"?

PN42

MR CHESHER: "Performance", yes.

PN43

THE DEPUTY PRESIDENT: You had earlier foreshadowed a "local show" definition.

PN44

MR CHESHER: Yes. That is currently set out as meaning a show specified as such by the employer where the production is scheduled to take place in one location only and where the employer shall engage for such production only employees who reside in that local area. Does that bear any further description?

PN45

THE DEPUTY PRESIDENT: You indicated six. On my count, with the addition of "performance", that would be seven.

PN46

MR CHESHER: Yes.

PN47

THE DEPUTY PRESIDENT: Yes.

PN48

MR CHESHER: My error.

PN49

THE DEPUTY PRESIDENT: No, that's all right. I have that document you gave me on the last occasion which had some agreed changes.

PN50

MR CHESHER: Yes.

PN51

THE DEPUTY PRESIDENT: All right.

PN52

MR HAMILTON: Of those seven, your Honour, the only ones really in contention, if I can put it like that, is the definition of "performance" and "musician".

PN53

THE DEPUTY PRESIDENT: When you say in contention - - -

PN54

MR HAMILTON: We're still in discussion.

PN55

THE DEPUTY PRESIDENT: Yes. All right.

PN56

MR HAMILTON: We're close, but not there.

PN57

THE DEPUTY PRESIDENT: But no cigar.

PN58

MR CHESHER: Within clauses 8, 9, 10, 11 and 12 of the present exposure draft, your Honour might recall that there has been a bit of gymnastics in an effort to convert those four clauses from separately regulating the employment terms of a range of employees covered by the award. The consequence of that is that in the parties' working draft there are now part specific references and clauses dealing with the types of employment, termination and other matters by area rather than having potentially conflicting provisions in the early part of the award where there is general application and those provisions that are within current parts 5, 6, 7 and 8 of the award; so these will plainly be a matter for your review along the way when the detail is submitted.

PN59

There is some modification that we need to engage in also to our proposed clause 8 that deals with types of employment in terms of the level of information that needs to be provided to employees. Those issues are the hours of each working day, the days of the week and start and finish times. It appears to be on track, I'd submit, your Honour.

PN60

THE DEPUTY PRESIDENT: Yes. Mr Hamilton?

PN61

MR HAMILTON: That's correct. In the Commission's summary of submissions back in March, your Honour, that issue wasn't agreed. It was agreed to move to the substantive issues. We probably could say now that that could be moved back to the technical and drafting issues as we have had successful discussions with MEAA on that.

PN62

THE DEPUTY PRESIDENT: Which items - - -

PN63

MR HAMILTON: That was item 5.

PN64

THE DEPUTY PRESIDENT: This is in the substantive list.

PN65

MR HAMILTON: S2, it was, I think, your Honour.

PN66

THE DEPUTY PRESIDENT: S2, which deals with types of employment.

PN67

MR HAMILTON: Types of employment.

PN68

THE DEPUTY PRESIDENT: Yes. So that matter S2 comes off the substantive list and onto the technical and drafting?

PN69

MR HAMILTON: Correct or - - -

PN70

THE DEPUTY PRESIDENT: Well, agreed, yes.

PN71

MR HAMILTON: - - - basically agreed.

PN72

THE DEPUTY PRESIDENT: Yes. When it is actually agreed rather than basically agreed, we will remove it, shall we, but, yes, I understand that. So you're foreshadowing that that matter will be resolved?

PN73

MR HAMILTON: Correct, your Honour.

PN74

THE DEPUTY PRESIDENT: Yes, all right.

PN75

MR CHESHER: Clause 14 of the Commission's exposure draft is simply an updating for accuracy purposes, your Honour, the table therein.

PN76

THE DEPUTY PRESIDENT: Yes.

PN77

MR CHESHER: Expense‑related allowances, your Honour, that's clause 15 of the current award.

PN78

THE DEPUTY PRESIDENT: Yes. This again was moved to the substantive list, but you're making progress.

PN79

MR CHESHER: I venture that we've agreed, bar a technical final review, your Honour.

PN80

MR HAMILTON: It was S5, your Honour.

PN81

THE DEPUTY PRESIDENT: Yes.

PN82

MR HAMILTON: As Matthew said, basically it's now agreed.

PN83

THE DEPUTY PRESIDENT: Yes, all right.

PN84

MR CHESHER: By dint of the adjustment that we just referred to about having part‑specific types of employment and employment arrangements, your Honour, there are some modifications that would be required. In the first instance, for performers and company dancers. That is part 5 of the award.

PN85

THE DEPUTY PRESIDENT: Yes.

PN86

MR CHESHER: Those issues – and these are all clearly tracked for when you seek a submission of this – deal with the questions of weekly employment, part‑time employees and casual employment to make them more relevant to the sector. There are some final adjustments that MEAA is going to seek to those provisions, but again those are on track between the parties. The next item, your Honour, is one that hasn't been advanced by either party to date, but we find ourselves in furious agreement. That is the use of the expression "juveniles". Can someone point to me where that is in the exposure draft? That's the Commission's version.

PN87

MR SPOORS: It's clause 31.5 of the current exposure draft.

PN88

MR CHESHER: We have for some time embraced the use of the term "child performer" rather than "juvenile". There is no material change beyond that, your Honour. It was a matter that was only canvassed in our conference earlier today.

PN89

THE DEPUTY PRESIDENT: Yes.

PN90

MR CHESHER: So that will be reflected in a marked up version also.

PN91

THE DEPUTY PRESIDENT: We'll just save that term for adults who behave poorly.

PN92

MR CHESHER: Yes, or dual citizens. I withdraw that. In clause 31.6 of the Commission's exposure draft, your Honour, that's regarding casuals.

PN93

THE DEPUTY PRESIDENT: Yes.

PN94

MR CHESHER: We have advanced that there be definitions of "whole time" and "short performances" to reflect what happens within the sector. With respect to rest breaks, there is some language that we initially proposed which was that a casual employee can undertake a number of performances during a single three‑hour call and then we used the language "provided that adequate short rest breaks are provided". We're now advancing that we use the term "provided that adequate rest breaks are provided" rather than the embellishment that was there by using the word "short". Again that's reflected in the parties' draft.

PN95

MR HAMILTON: Your Honour, if they were highlighted in the substantive issues S7, S8, S9 and S10, and basically they've all been agreed.

PN96

THE DEPUTY PRESIDENT: Thank you.

PN97

MR HAMILTON: Sorry, your Honour, and S11.

PN98

MR CHESHER: Just bear with me, your Honour.

PN99

THE DEPUTY PRESIDENT: That's all right.

PN100

MR CHESHER: The next issue is in – the issue here, your Honour, is the persistent one of time based formulas versus percentages. I'm looking at it in respect of overtime and penalty rates, which would be clause 35 of the Commission's exposure draft.

PN101

THE DEPUTY PRESIDENT: Yes.

PN102

MR CHESHER: It's a re‑statement of our position that we don't wish to progress with the percentage formulas. Rather, that we use the time based formulas that we first mentioned last year.

PN103

THE DEPUTY PRESIDENT: Because those terms will have been defined and so on your proposal, for example, paragraph 35.1(a) would simply read, "Full‑time work in excess of eight hours on any one day would be paid for at time and a half - - -"

PN104

MR CHESHER: Correct.

PN105

THE DEPUTY PRESIDENT: - - - "for the first two hours."

PN106

MS ANGUS: "Of the ordinary rate."

PN107

THE DEPUTY PRESIDENT: "Of the rate" is already incorporated in the definition there.

PN108

MS ANGUS: Yes.

PN109

THE DEPUTY PRESIDENT: So we just say "will be paid for - - -"

PN110

MR CHESHER: "Of the ordinary rate."

PN111

THE DEPUTY PRESIDENT: "Of the ordinary rate?"

PN112

MR CHESHER: Yes, I think so, your Honour.

PN113

MS ANGUS: I mean, as we point out, the definition of "time and a half" will include a reference to the ordinary rate. It's tautological.

PN114

MR CHESHER: Okay.

PN115

THE DEPUTY PRESIDENT: It would just create confusion.

PN116

MR CHESHER: Well, I'll pull back on that, your Honour.

PN117

THE DEPUTY PRESIDENT: Yes. Given that you have defined the term, you just need to use the term.

PN118

MR CHESHER: Yes.

PN119

THE DEPUTY PRESIDENT: Because the definition includes how it's calculated and, likewise, it would be double time instead of 200 per cent.

PN120

MS ANGUS: Yes.

PN121

THE DEPUTY PRESIDENT: And the words "of the minimum hourly rate" would be removed so it would be double time thereafter. Time and a half for the first two hours, double time thereafter.

PN122

MR HAMILTON: Yes.

PN123

THE DEPUTY PRESIDENT: The old‑fashioned way.

PN124

MR HAMILTON: Yes.

PN125

MR CHESHER: Yes.

PN126

THE DEPUTY PRESIDENT: Yes, all right.

PN127

MR HAMILTON: Just like our industry, your Honour.

PN128

MS ANGUS: It's cutting edge, that's what it is. It has just come back in fashion.

PN129

MR CHESHER: We're nostalgic, if nothing else. We're up to the second last one, your Honour. That's our clause 33 and it goes to minimum wages.

PN130

THE DEPUTY PRESIDENT: Yes.

PN131

MR CHESHER: It's just calculation matters, your Honour.

PN132

THE DEPUTY PRESIDENT: Yes.

PN133

MR CHESHER: Finally, with respect to part‑time employees. This is clause 49.2 in the Commission's exposure draft – for production and support staff, I'm sorry. Part 8 in the exposure draft.

PN134

THE DEPUTY PRESIDENT: Yes.

PN135

MR CHESHER: With respect to part‑time employees - - -

PN136

MS ANGUS: There is some language from the head "Types of employment" that needs to be re‑inserted back into that part.

PN137

MR CHESHER: Which is - - -

PN138

MS ANGUS: Around reasonable predictable hours.

PN139

MR CHESHER: Yes, that there be some statement about the part‑time employee working an agreed usual number of ordinary hours, less than 38 hours per week, arranged on a reasonable and predictable basis, is the term that – again this is working on a parties' draft rather than what has been proposed by the Commission. I stand corrected, but I believe that that is the totality of the issues that MEAA and the AEIA have to work through for your consideration.

PN140

THE DEPUTY PRESIDENT: Yes, all right.

PN141

MR HAMILTON: Your Honour, if I could just tidy up the substantive issues summary.

PN142

THE DEPUTY PRESIDENT: Yes.

PN143

MR HAMILTON: S13 has been agreed, as has S14; that is travelling home. S15, the parties have agreed to include travel on a Sunday, rostered day off and/or a public holiday, so that issue has been agreed.

PN144

THE DEPUTY PRESIDENT: Yes.

PN145

MR HAMILTON: S16 has been withdrawn by ourselves. We will be having individual – other discussions on that issue away from his process, your Honour. S17 has also been withdrawn as well.

PN146

THE DEPUTY PRESIDENT: All right.

PN147

MR HAMILTON: That would probably conclude most of the substantive issues, your Honour.

PN148

THE DEPUTY PRESIDENT: Yes, other than the conclusion of the drag queen - - -

PN149

MR HAMILTON: Yes.

PN150

MR CHESHER: Yes.

PN151

THE DEPUTY PRESIDENT: All right. How long do the parties want to submit a finalised draft award which includes - effectively, as I understand it, the document that you're working from is a marked up version of the exposure draft.

PN152

MR CHESHER: Yes, it is, your Honour.

PN153

THE DEPUTY PRESIDENT: I am happy to receive that, so how much longer do you want?

PN154

MS ANGUS: I think the sensible way to proceed would be to list the matter for a further conference in the week commencing Monday, 18 September. We can undertake to get you a final agreed draft in advance of that and it may be that we can even then vacate that conference.

PN155

THE DEPUTY PRESIDENT: Well, I don't want to have a conference unless there are matters that are in dispute that I can assist with.

PN156

MR CHESHER: Yes.

PN157

THE DEPUTY PRESIDENT: So I'm content for you to file on or before the date that you have indicated a final agreed draft and then it will be matter for the Full Bench as to what it does with it, but it will be included in my report as being reflective of the agreement of the parties. Obviously the Full Bench will convene a hearing, so that if there are any issues with the draft, you will know in advance.

PN158

MR CHESHER: I think in addition, your Honour, we will provide you with the marked up draft of the award and perhaps a cover letter that just isolates any outstanding issues.

PN159

THE DEPUTY PRESIDENT: That's what I had indicated.

PN160

MR CHESHER: I'm sorry.

PN161

THE DEPUTY PRESIDENT: The document that you're referring to, as I understand it, is a marked up draft of the exposure draft.

PN162

MR CHESHER: Yes.

PN163

THE DEPUTY PRESIDENT: So I'm happy to receive that document as reflecting the agreement of the parties. If there are any items that are not agreed and require determination, then you can indicate that in the cover letter; but, as I apprehend things, that number should be zero.

PN164

MR CHESHER: It seems that way.

PN165

MS ANGUS: Yes.

PN166

MR HAMILTON: Your Honour, just on that, would the Commission be able to forward us a Word copy of the exposure draft?

PN167

THE DEPUTY PRESIDENT: I'm sure we can arrange that. I will have my associate send it.

PN168

MR HAMILTON: Yes, because we have converted the .pdf and formatting goes out, and what have you.

PN169

MS ANGUS: That means you have to start again though. That draft - - -

PN170

MR HAMILTON: No. With any luck, we'll be able to cut and paste, because we can't cut and paste in the .pdf formatted Word document.

PN171

THE DEPUTY PRESIDENT: In any event, we will send you that. If that creates some problems for you, then you'll fix them.

PN172

MR HAMILTON: Thanks, your Honour.

PN173

MS ANGUS: Can I request, your Honour, that you set us a deadline of the Friday, which is the Friday of the week commencing 18 September. The reason why I ask is on that Monday of 18 September, is a big – all the industry campaign launch the screen content and so leading up to that we will be very busy, and it would just be useful to me to allow a couple of days after that Monday, 18 September, to do a final check.

PN174

THE DEPUTY PRESIDENT: So if I give you until the 22nd - - -

PN175

MS ANGUS: That's sound right.

PN176

MR HAMILTON: Friday, the 22nd.

PN177

MS ANGUS: I think I'm still optimistic that we might be able to get you something well in advance of that; in the course of the next fortnight.

PN178

THE DEPUTY PRESIDENT: All right. Thank you for your work and your attendance this morning.

PN179

MR CHESHER: Thank you.

PN180

MR HAMILTON: Thank you, your Honour.

PN181

THE DEPUTY PRESIDENT: We will adjourn.

ADJOURNED INDEFINITELY [12.27 PM]