PN1

JUSTICE ROSS: Can I get the appearances please. Firstly, in Sydney.

PN2

MS T WALTON: Walton, initial T for the Transport Workers Union and your Honour, our only interest today is the Airline Operations Ground Staff Award.

PN3

JUSTICE ROSS: Thank you.

PN4

MR S CRAWFORD: Yes, your Honour for the AWU.

PN5

MS R BHATT: Bhatt, initial R for the Australian Industry Group.

PN6

MR R KINGSTON: Kingston, initial R for ABI and the New South Wales Business Chamber.

PN7

MS K SRDANOVIC: Ms Srdanovic, initial K appearing for the Qantas Group in respect of the Ground Staff Award and the Air Pilots Award.

PN8

JUSTICE ROSS: Thank you.

PN9

MR I MacDONALD: MacDonald, I for the Australian Public Transport Industrial Association, just in relation to the Passenger Vehicle Transportation Award.

PN10

JUSTICE ROSS: That award was dealt with yesterday, though.

PN11

MR MacDONALD: Yes, it was, but general issues, I wanted to - - -

PN12

MR P RYAN: Ryan, initial P for the Australian Hotels Association.

PN13

MR W CHESTERMAN: Chesterman, WJ appearing on behalf of VACC, Motor Trades Association of New South Wales, Western Australia and Queensland, your Honour. That's your Honour.

PN14

MS A AMBIHAIPAHAR: May it please the Commission, Ambihaipahar, initial A on behalf of the CEPU.

PN15

MS A DEVASIA: May it please the Commission, Devasia initial A for the AMWU.

PN16

MR S BULL: Yes, my name is Bull, I appear for the United Workers Union.

PN17

MR A ODGERS: Odgers, initial A, for the IEU.

PN18

MR K BARLOW: Your Honour, if it please the Commission, Barlow, initial K for the CPSU in respect of the Contract Call Centres Award and the Labour Market Assistance Award.

PN19

JUSTICE ROSS: Thank you. Anybody else in Sydney? In Adelaide.

PN20

Mr C MOREY: If it please the Commission, Morey, C and Sheehan, M for the Motor Trade Association of South Australia. Thank you.

PN21

JUSTICE ROSS: And in Melbourne.

PN22

MS V WILES: Your Honour, it's Wiles, initial V for the CFMMEU Manufacturing Division.

PN23

JUSTICE ROSS: Thank you.

PN24

MR M CONDELLO: Your Honour, Condello, initial M from Clayton Utz, acting for the Group of Eight Universities.

PN25

JUSTICE ROSS: Right. Following the timetable published in our statement for 11 December, we'll deal firstly with the general issues. If we deal with the operative date first. Does anyone oppose the provisional view expressed at paragraph 10 of the statement? That is that Transport Awards would follow the same process. Final variation, determinations issued no later than 14 February and would commence operation on 6 April. Ms Bhatt?

PN26

MS BHATT: Yes, most of the process is such, but the time frames that have been proposed by the Commission.

PN27

JUSTICE ROSS: Sure.

PN28

MS BHATT: On my count, if the final determinations are published on 14 February, that leaves a period of seven weeks before 6 April. Our concern is simply that that might not be enough time. I appreciate that this is something that we haven't put to you before, in the context of this tranche of awards.

PN29

We anticipate that we are likely to have a number of members who will be covered by more than one, or indeed, multiple awards. I mean, some of the obvious examples are manufacturing and the Clerks Award, the Road Transport Awards and the Clerks Award. The Manufacturing Award, the Clerks Award and the Road Transport Awards. And for an employer who is tasked with reviewing the new awards, reviewing their arrangements in a broader scope of arrangements, we are concerned that a period of seven weeks might not be enough.

PN30

But your Honour, we wondered whether the Commission would be minded to instead, extend that to 4 May, which is an extra three weeks. It takes us to a period of about 11 weeks in total and it would ensure that the final awards commenced operation prior to the annual wage review decision being handed down. I wasn't sure if that was something that was attempted to be factored in, because I appreciate that there will be another round of variations, that will need to be made and I appreciate that.

PN31

I'm not sure if there's anything else I can add to assist.

PN32

JUSTICE ROSS: No, no, that's fine. Anyone opposed to that course?

PN33

MR MacDONALD: Your Honour, there are 14 uncontentious awards of which one is the Passenger Vehicle Transportation Award.

PN34

JUSTICE ROSS: Yes.

PN35

MR MacDONALD: It's been a long wait. In those uncontentious awards, your Honour, with respect, I was - - -

PN36

JUSTICE ROSS: Yes, so we've got to stick with the current time frame, or the proposed time frame on the uncontentious awards.

PN37

MR MacDONALD: Yes, I see no reason why that should change.

PN38

JUSTICE ROSS: Yes, and in relation to the others, where there's an issue.

PN39

MR MacDONALD: I respect my colleagues.

PN40

JUSTICE ROSS: Then we would move that to commencing operation on 4 May. Any problem with that?

PN41

MR RYAN: One issue we see your Honours and Commissioner, is that the 6 April is right in the middle of school holidays and the Easter period. For most modern awards starting a week later.

PN42

JUSTICE ROSS: No, but what about the - what, the uncontentious ones?

PN43

MR RYAN: If the uncontentious ones are - - -

PN44

JUSTICE ROSS: Well, do you have an interest in any of those?

PN45

MR RYAN: The Restaurant Industry Award, your Honour. Most employers in the restaurant and hospitality industry operate with weekly pay cycles. That would mean the operative date on a 6 April start date, would be the next pay period which would be 13 April, which is a Monday. In the middle of school holidays, just with trying to manage the introduction of a new award.

PN46

JUSTICE ROSS: I'm not sure what the school holidays have got to with the restaurant industry.

PN47

MR RYAN: Well, there may be people on - payroll people on leave and other things, so implementing the award in the midst of four consecutive public holidays as well as school holiday period, might just make the transition not as smooth as otherwise could be. We would support a delayed start date that our group has put forward. That's as far as our submission goes, your Honour.

PN48

JUSTICE ROSS: Anybody else? No.

PN49

MS BHATT: If I may, I'm just trying to understand the proposition in respect of the uncontentious awards.

PN50

JUSTICE ROSS: Well, the proposition is that all final variation determinations would be published no later than 14 February. The uncontentious awards will commence operation on 6 April and all other awards in tranche 2 would commence on 4 May.

PN51

MS BHATT: Which goes some way to alleviating our concern. I mean, I note from Ai Group's perspective, the key award that we have an interest in, in that list, is the Clerk's Award.

PN52

JUSTICE ROSS: But there are no issues in the Clerk's Award.

PN53

MS BHATT: And so, respectfully what I was wondering whether that enables the Commission to finalise the determination for that award any earlier. I say that respectfully, and I don't mean to - - -

PN54

JUSTICE ROSS: But why not, it's been through the PLEB process too. The Clerks Awards had no end of examination.

PN55

MS BHATT: It has, and that would mean that the current period of seven weeks that would otherwise have been afforded if that determination was published on 14 February would be extended in any event. I think that goes some way to alleviating our concern. Our preference would be that they all commence operation on 4 May, but I won't take it any further than that.

PN56

JUSTICE ROSS: Yes, all right. Nobody else? It'll be in the decision but so you're aware of the outcome the final variation determinations will be issued no later than 14 February. In respect of the uncontentious awards the variation determinations will commence operation on 13 April. In respect of all other tranche 2 awards they will commence operation on 4 May.

PN57

I think the next issue in the statement dealt with overtime for casuals. I think that's been dealt with. The expression of numbers question, I think we've picked that up in the drafting issues generally, but ABI specifically raised an issue about voluntary employee contributions in the Superannuation Award, and the question was put, well, how do we vary those in this sort of review?

PN58

MR KINGSTON: Yes, your Honour, obviously I'll start by saying the matter is not of great significance but given the question is asked we will respond. Our position is simply that the voluntary employee contributions clause does not constitute a default (indistinct) term as defined by section 149(c).

PN59

JUSTICE ROSS: But I'm not sure, speaking for myself, I agree with that.

PN60

MR KINGSTON: If I may, your Honour, the voluntary employee contributions clause is separated into three sub-clauses. The sub-clause in question is sub-clause (b) which in itself does require, permit or prohibit an employer to make contributions into a fund for a default ‑ ‑ ‑

PN61

JUSTICE ROSS: It permits, doesn't it?

PN62

MR KINGSTON: We'd argue it doesn't, that rather (b) is more a mechanism for adjusting an arrangement that's already been in place, but we would also argue that by virtue of the fact that it's a voluntary employee contribution the employee in question can no longer be an employee who has no chosen fund. Because the employee is required to give a written request to the employer that the contributions are made the employer is in effect designating the fund into which the additional contributions are made, and therefore they have a chosen fund within the meaning of the Superannuation Guarantee Administration Act.

PN63

We'd also question, your Honour, whether or not the variation actually constitutes a variation given that it's really more to do with the formatting and not the rights or obligations that arise from the clauses.

PN64

JUSTICE ROSS: I'm not sure if variation is confined to the rights or obligations. We're changing the language of the award.

PN65

MR KINGSTON: If the Commission pleases.

PN66

JUSTICE ROSS: So you're pressing the point?

PN67

MR KINGSTON: We won't press the issue if the Commission has concerns about the implications.

PN68

JUSTICE ROSS: Is anyone else excited about this one way or other? No.

PN69

MR CRAWFORD: Extremely not, your Honour.

PN70

JUSTICE ROSS: No, all right. I just think out of an abundance of caution why would we sort of drift into an area of potential difficulty.

PN71

MR KINGSTON: We respect that, your Honour. We won't press the matter.

PN72

JUSTICE ROSS: Thank you. The coverage for group training organisations, is there anything you wanted to say in relation to that? It's dealt with at paragraphs 15 and following of the statement?

PN73

MR KINGSTON: Again, your Honour, our attention was just drawn to what appeared to be something a bit anomalous that was potentially different coverage provisions for group training organisations that didn't apply, for example, employers at large or for labour hire employers. That said if other parties do have concerns then we won't press the issue either. Just to confirm what we were proposing is that the words 'and/or parts of that industry' were removed.

PN74

JUSTICE ROSS: Yes. No, I follow. Yes. Let's test the views of other parties.

PN75

MR CHESTERMAN: Your Honour, the Vehicle Manufacturing Repair Services and Retail Award does have those words. We've never had a problem with the terminology adopted in clause 4.5 of the existing award. We take it that if for group training organisations that within the Vehicle Manufacturing Repair Services and Retail Award and/or parts of the industry would mean that there might be apprentices across a range of, or in parts of sections of particular businesses within that industry that you might have certificate level III or you would have certificate level III apprentices that would be in service departments, then you'd have parts departments, you'd have - you can have clerical trainees. So there's never been an issue with how that clause is applied in our industry so we wouldn't be wanting to press any changes to the clauses that currently exist.

PN76

JUSTICE ROSS: Thanks, Mr Chesterman.

PN77

MR CHESTERMAN: Thank you, your Honour.

PN78

JUSTICE ROSS: Others? Ms Bhatt?

PN79

MS BHATT: We're not aware of any difficulty arising from the words in the current award as they appear. The concern with advising the Commission that we don't oppose their deletion is we're just not sure that that won't have some substantive implication in the context of some award depending on the way in which the industry in that award is defined or described. I mean, I think there are some awards that are expressed to cover what is effectively a collection of sectors, and so for abundance of caution in the absence of any practical problem arising our submission would be that no change should be made.

PN80

JUSTICE ROSS: Anybody else?

PN81

MS DEVASIA: Your Honour, the AMWU's view reflect essentially what the Ai Group just said. We haven't run into any issues with that kind of phraseology and considering that as the award covers several sectors and sub-sectors we don't know how it might operate, so again from an abundance of caution we would suggest that we just leave it as is.

PN82

JUSTICE ROSS: Thank you. Anyone further? On the face of it, having regard to those submissions, the words that you seek to delete don't seem to have given rise to any difficulties and the concerns being expressed about what may be the unintended consequences of the removal of those words. In those circumstances, do you press the proposal?

PN83

MR KINGSTON: We don't, your Honour.

PN84

JUSTICE ROSS: Thank you. In relation to the correction of minor errors, those are listed at paragraph 20. Can I ask firstly whether any party takes any issue with any of those proposed corrections? Ms Bhatt?

PN85

MS BHATT: Just for an abundance of caution, your Honour, footnote 70, which relates to the Cleaning Services Award ‑ ‑ ‑

PN86

JUSTICE ROSS: Sorry?

PN87

MS BHATT: Footnote 70.

PN88

JUSTICE ROSS: 70?

PN89

MS BHATT: On page 20.

PN90

JUSTICE ROSS: Yes, thank you. That's in relation to the Cleaning Services Award?

PN91

MS BHATT: It is. The Ai Group's submission, which was at paragraph 28 of our submission is withdrawn, so that correction should not be made.

PN92

JUSTICE ROSS: Yes.

PN93

MS BHATT: And also at footnote 67, which is just further up on the same page.

PN94

JUSTICE ROSS: What award does it relate to?

PN95

MS BHATT: Airline Operations Ground Staff Award.

PN96

JUSTICE ROSS: Yes.

PN97

MS BHATT: Our submission at paragraph 8 is also withdrawn, so that correction should not be made. And we'll come to this later but it's withdrawn on the basis of what's set out at paragraph 74 of the statement. That same issue is dealt with again later.

PN98

JUSTICE ROSS: All right. No other comment on the proposed corrections? Can I indicate that we received an email from the Local Government Association drawing attention to some errors they had identified at paragraphs 32 to 36 of their submission of 27 November, which go to clause 1.1 of that award. And there's a table there that sets out a range of allowances. The adverse working conditions allowance for levels 1, 2 and 3 should note that that allowance is paid on an hourly and not a weekly basis, and that seems to be correct. And similarly, the sleepover allowance is paid hourly and not weekly and the table should reflect that. Other than that addition are there any other further corrections? No?

PN99

MR CHESTERMAN: Your Honour - - -

PN100

JUSTICE ROSS: Yes?

PN101

MR CHESTERMAN: On behalf to the Motor Trades Association and the VACC, we have a separate conference before Commissioner Bissett at 12.30.

PN102

JUSTICE ROSS: Yes. I think you can raise all those. I think it's - - -

PN103

MR CHESTERMAN: Yes. We note that any issues can be raised at that time.

PN104

JUSTICE ROSS: It can be, yes.

PN105

MR CHESTERMAN: Thanks, your Honour.

PN106

JUSTICE ROSS: A number of uncontentious awards were listed in the statement, and subject to the correction of minor errors and the resolution of the general issues it appears there are no award specific issues in relation to those awards. Does any party wish to raise any award specific issues in relation to those awards?

PN107

MR KINGSTON: No, your Honour. Sorry, I would just like to raise one minor error we noticed in respect to the Manufacturing Award exposure draft.

PN108

JUSTICE ROSS: Yes, we're dealing here with the uncontentious awards though.

PN109

MR KINGSTON: Sorry, I thought we might have missed the opportunity in relation to the other minor errors.

PN110

JUSTICE ROSS: No, that's fine. You can – well, why don't you deal with them when we get to the Manufacturing Award, is probably the easiest way. Anything about those uncontentious awards? No? All right. Then let's move to the award specific issues.

PN111

MR MacDONALD: Your Honour, might I be excused?

PN112

JUSTICE ROSS: Certainly, thank you. The first is the Airline Operations Ground Staff Award. The first issue relates to various tables in schedule B. There are three issues raised by Qantas. The first is for table of facility provisions. We expressed a provisional view at 82 that the two clauses should be added to the table. Any opposition to that view? No? All right, thank you.

PN113

The second is in relation to schedule B, 3.1. Qantas make their submissions set out at paragraph 83. We expressed the provisional view that the change should be made. Is there any opposition to that view? No? The third issue is a question about schedule 7.3.2. And I think in relation to that issue Qantas was going to have some discussions.

PN114

MS BHATT: And we have, your Honour. And I can solve the mystery. The simply amendment which would be required is to include it as the daily travelling allowance.

PN115

JUSTICE ROSS: Yes. Yes.

PN116

MS BHATT: Which is the allowance that's referred to throughout the award. And I can confirm that we have conferred with the AFAP in relation to that, who didn't have any comments.

PN117

JUSTICE ROSS: All right, so is there any amendment that's required? Sorry, what would you want to do?

PN118

MS BHATT: I think the schedule currently says, 'Daily travel allowance.'

PN119

JUSTICE ROSS: Yes.

PN120

MS BHATT: The allowance – that amendment should be, 'Daily travelling allowance.

PN121

JUSTICE ROSS: 'Daily travelling,' sorry.

PN122

MS BHATT: But it wasn't too much of a mystery, after all.

PN123

JUSTICE ROSS: No, that's fine. All right, anything else on that award? No? All right, thank you. We might, out of an abundance of caution, we'll adjourn till 10.15. Can I just – just, I hate the thought of you sitting there not doing anything while we're out. Can I encourage the parties in the Manufacturing Award to have some discussions because, look, on the face of it, it seems like, save for two or three issues, maybe three or four issues, this cross referencing thing seems to have bedevilled most of Ai Group's propositions but the substance of it doesn't seem to be opposed. If you could have a look at the background paper that was published in the statement and just see if you can confirm which matters are not opposed subject to the amendment of a cross-reference or whatever, so that we can focus then on the matters in dispute, okay? We'll come back at 10.15.

SHORT ADJOURNMENT [10.04 AM]

RESUMED [10.18 AM]

PN124

JUSTICE ROSS: The AWU raises three issues in relation to the Asphalt Industry Award. The first is the addition of a row to the table at clause 19.2. And Ai Group in reply doesn't oppose the insertion of the additional row but submits that a reference to a four-hour minimum payment would constitute a significant change.

PN125

MR CRAWFORD: Your Honour, I think Ai Group have suggested the insertion of a reference to 'see clause 26.3'.

PN126

JUSTICE ROSS: They have.

PN127

MR CRAWFORD: We'd be comfortable with that. And they've also suggested, which we may have as well, the deletion of the words 'ordinary hours' from clause 26.2 of the exposure draft and we would also support that.

PN128

JUSTICE ROSS: Where's that suggestion made?

PN129

MR CRAWFORD: By us.

PN130

JUSTICE ROSS: No, I'm sorry, that's the one referred to at paragraph 93?

PN131

MR CRAWFORD: Yes. Sorry, I've jumped to the next issue.

PN132

JUSTICE ROSS: No, that's all right.

PN133

MR CRAWFORD: They're sort of inter-related.

PN134

JUSTICE ROSS: Yes, okay, those two changes will be made. No further comment? Payment for work on a public holiday, and is that dealt with by the deletion of 'ordinary hours' from clause 26.2, Mr Crawford?

PN135

MR CRAWFORD: Yes, your Honour.

PN136

JUSTICE ROSS: Then we go to clauses A2.3 and 3.3. I think para 95 may not correctly characterise Ai Group's submission because it talks about the change to clause A2 is not necessary but does not oppose the changes to A2.3 and 3.3 and those were the only changes sought, I think.

PN137

MR CRAWFORD: I mean, I think this is just inserting a Sunday 200 per cent table which seems to be required really given the rest of the rates are in there.

PN138

JUSTICE ROSS: And I don't think Ai Group opposes the changes to those two tables but ‑ ‑ ‑

PN139

MS BHATT: No, your Honour.

PN140

JUSTICE ROSS: All right.

PN141

MR CRAWFORD: Your Honour, there is an additional issue we did raise in our reply submissions. I understand it's not contested. It's just in relation to clause 11.4.

PN142

JUSTICE ROSS: Just bear with me for one moment. 11.4 of the exposure draft?

PN143

MR CRAWFORD: Yes. So your Honour would be familiar with the distinction between the use of the terms 'minimum hourly rate' and 'ordinary hourly rate'.

PN144

JUSTICE ROSS: Yes.

PN145

MR CRAWFORD: The distinction being whether or not there are all purpose allowances. So in this award there are two all-purpose allowances, so we say that the term 'minimum hourly rate' should be replaced with 'ordinarily hourly rate'.

PN146

JUSTICE ROSS: This is in clause - I see, 11.4(a)(i) and (ii).

PN147

MR CRAWFORD: Yes, correct. And the tables at the back use the correct term, that being 'ordinary hourly rate'. Yes, that looks - your Honour, Ms Bhatt raises the point that it may not - the change should perhaps just be to (ii) because (i) refers to effectively the classification rate.

PN148

JUSTICE ROSS: Yes.

PN149

MR CRAWFORD: Yes.

PN150

JUSTICE ROSS: And is that agreed on that basis?

PN151

MS BHATT: Yes, your Honour.

PN152

MR CRAWFORD: Yes.

PN153

JUSTICE ROSS: Thank you. No other issues with the Asphalt Award?

PN154

MR CRAWFORD: No.

PN155

JUSTICE ROSS: Let's go to the Cleaning Services Award. Ai Group raises two issues. The first is the definition of 'minimum hourly rate'. Bear with me for a moment. And that's opposed by the UWU.

PN156

MR BULL: That's correct.

PN157

JUSTICE ROSS: If you go to the - I'm not sure I follow the opposition in the sense that the minimum hourly rates don't just apply to full-time employees. They're the basis for part-time employees and casuals rates of pay under this award. I mean, that's clear from - if you go to the table in 15.1 there's a note ‑ ‑ ‑

PN158

MR BULL: This is of the exposure draft, your Honour or ‑ ‑ ‑

PN159

JUSTICE ROSS: Yes. Yes, I'm sorry. The - if you go to 15.1 you see the notes at 3 and 4, don't they address the point you're raising?

PN160

MR BULL: The problem in this award is that in a practical sense the only employees that are paid the minimum rate are full-time employees because a part-time employee under this award is paid at 115 per cent. Effectively a part-time employee is always paid 115 per cent of the base rate of a full-timer for the equivalent classification. It's an award replete with frankly confusion in relation to what is the ordinary rate, minimum rate and the base rate, so in other modern awards our concern would not be particularly valid, but in relation to this award because of the prevalence of part-time work and the fact that effectively the minimum rate for a part-timer is always 115 per cent it's useful to maintain the wording as proposed. It's really a matter of trying to make it clear.

PN161

JUSTICE ROSS: Ms Bhatt, if in the definition. The other alternative is to, if you left it for full time and then you included the texts of notes 3 and 4 in the definition. So the notes 3 and 4 from table 2, at 15.1.

PN162

MS BHATT: I have to confess I'm struggling to understand the proposition that's been put by the union, to some extent. And I don't say that disrespectfully, I'm just trying to deal with it on my feet. I'm not sure if the proposition is that where the exposure draft expresses some other rate, overtime, for example, as a percentage of the minimum hourly rate, where the overtime is paid to a part-time employee that rate is to be compounded on a rate that includes the part-time loading, or the causal loading.

PN163

Now we have to think about it but I'm not sure that that's necessarily going to be our view of how the rates are to be calculated and that's perhaps a new proposition that I don't recall having arisen through the exposure draft process before but I, you know – it's testing my memory. Our central proposition was really just I think what your Honour articulated earlier which is that the minimum hourly rate is expressed at clause 15.1. It is relevant to all employees if for no other reason than it's their base rate of pay, which it might be relevant for certain purposes under the award. It's certainly relevant for other purposes such as leave. So that the idea that that rate is not relevant or applicable to part-timers or casuals in any circumstances is not correct, respectfully.

PN164

MR BULL: There is a peculiar definition for leave in relation to this award.

PN165

JUSTICE ROSS: For?

PN166

MR BULL: Leave. So there's specific definitions which have survived in the exposure draft for leave.

PN167

JUSTICE ROSS: That's because the exposure draft is not intended to change the legal effect of the award.

PN168

MR BULL: Exactly. Look, it's not a great issue. And we're not doing it to just cause trouble at this stage, but there is a real problem with this award in the sense that one of the largest cohorts of employees are part-timers. Part-timers are paid 115 per cent. It's styled as the base rate plus a loading but effectively their minimum rate is always 115 per cent. You can't employ a part-timer for less than 115 per cent. So, saying that employees have a minimum rate of blah, is in a practical sense, incorrect. The only people who get paid the base rate are full-timers. And there's a whole problem with various definitions of ordinary rates, base rates, and so forth. But look, the note may solve it but we'd press our concern that it's useful to have what are effectively base rates identified as payable as minimum rates to full-time employees. Because that conforms with the practical reality.

PN169

COMMISSIONER BISSETT: Does the heading in column 2 of table 2 though, fix that problem for you?

PN170

MR BULL: It may.

PN171

COMMISSIONER BISSETT: Because it specifies that the minimum weekly rate is for full-time employees.

PN172

MR BULL: It does but - - -

PN173

COMMISSIONER BISSETT: And then the notes underneath the table refer you - - -

PN174

MR BULL: No, I agree. It probably does solve the problem but this is just for more abundant caution. It's not the minimum rate for all employees.

PN175

COMMISSIONER BISSETT: No.

PN176

MR BULL: The only one that is - - -

PN177

COMMISSIONER BISSETT: No. It doesn't say that it is, though. The table says it's for full-time employees.

PN178

MR BULL: Yes. No, we want to keep it that way in the definition section. I don't see the problem with having the definitions basically, you know, matching each other. If you're going to have a note, which in effect is a definition, you may as well have the definition which is accurate.

PN179

JUSTICE ROSS: Except that part-time employees, if you go to 10.2 - - -

PN180

MR BULL: Yes, the definition is that they're the base rate plus 15 per cent.

PN181

JUSTICE ROSS: Yes but the minimum hourly rate plus 15 per cent.

PN182

MR BULL: But they're always paid that. You can't pay a part-timer - - -

PN183

JUSTICE ROSS: Yes, okay.

PN184

MR BULL: Yes, that's our point.

PN185

JUSTICE ROSS: All right. Can I go to the second – this is the clause 4.5(d) coverage.

PN186

MS BHATT: Our submission is withdrawn.

PN187

JUSTICE ROSS: All right, no other issues in that award? Okay. Commercial Sales Award. For the reasons that we set out in the statement at paragraphs 103 to 111, we expressed the provisional view that no amendment was necessary, and asked Ai Group whether they wished to press the point.

PN188

MS BHATT: The submission is not pressed.

PN189

JUSTICE ROSS: No other issues in that award? Let's got to the Concrete Products Award.

PN190

MR CRAWFORD: Your Honour, sorry to do this but I may need to return to that additional amendment to the Asphalt Award. I think my concession may actually be incorrect, in effect, the calculation.

PN191

JUSTICE ROSS: All right.

PN192

MR CRAWFORD: But it would just, I think, result in rates that are inconsistent with what appear later in the table, because you do need to actually use the ordinary hourly rate which includes the all purpose allowances, and then apply 25 per cent. And if you don't do that the result will be lower. And I think that's consistent with other exposure drafts that I've just looked at. They've always used ordinary hourly rate in both provisions.

PN193

JUSTICE ROSS: Do you want to discuss that between yourselves and then come back after the luncheon adjournment and let us know one way or the other?

PN194

MS BHATT: If it pleases.

PN195

JUSTICE ROSS: I think we're on the Concrete Products Award. At paragraph 114 and following of the statement we deal with the three additional points raised by the AWU. We proposed in relation to the first, which is agreed by the Ai Group to amend the draft variation determination. Any opposition to that? No? Mr Crawford, the consequential change that you put in your submission, is that just the numbering of the next clause?

PN196

MR CRAWFORD: Yes, your Honour.

PN197

JUSTICE ROSS: The next proposed change is clause B3.2. Ai Group agrees with that proposed change and we indicate that we will amend the draft variation determination. No opposition with that course? The next deals with clause B3.3. The AWU submits a public holiday column should be added with the rate of 200 per cent. Ai Group doesn't oppose that but notes though, should be the same as those set out in the column currently furthest from the right. Do you agree with that, Mr Crawford?

PN198

MR CRAWFORD: Yes, it should just be the same 200 per cent rate, yes.

PN199

JUSTICE ROSS: All right. Nothing further in that award? Contract Call Centres. Ai Group raises an issue in relation to clauses B1.1 and B2.1. We indicate at paragraph 127 of the statement that we agreed with both suggested changes and proposed amending the draft determination accordingly. Does anyone oppose that course?

PN200

SPEAKER: No, your Honour.

PN201

JUSTICE ROSS: Thank you. Nothing further on that award? All right. The Dry Cleaning Award? The CFMMEU Manufacturing Division submits it would be clearer if all the shiftwork rates for ordinary hours in clauses C1.2 and 1.3 were combined into a single table. At paragraph 129 of the statement we agreed with that proposal and expressed the provisional view that the tables be combined, and we set out what that would look like at paragraph 129. Does anyone oppose that course?

PN202

MR CRAWFORD: Ms Wallis had to leave for an urgent appointment and she indicated she is satisfied with the proposal.

PN203

JUSTICE ROSS: Nobody else? All right, thank you. The Gas Industry Award. I think the first point is an issue with clause C1.1, availability duties. This is insert, or part thereof to properly reflect the bracketed element of clause 17.3(a) of the exposure draft, and the AWU agrees. We expressed the provisional view that that amendment be made. Any opposition to that? No? All right. The Labour Market Assistance Award.

PN204

The issue here concerns what appears to be an NES inconsistency issue in relation to clause 10.3(d) of the Award. The issue is canvassed at paragraphs 134 to 139 of the statement and in light of that discussion we express a provisional view that the clause is inconsistent with section 55 and should be deleted. Any comments? Any opposition to the provisional view or any other submissions a party wish to make?

PN205

MR BARLOW: No opposition or provisional view from the CPSU, your Honour.

PN206

JUSTICE ROSS: Thank you. Did ABI want to say something about this Award? Was this the one that you - I might be wrong about that. It might have been someone else.

PN207

MR KINGSTON: No, that was the Manufacturing Award.

PN208

JUSTICE ROSS: Yes, okay. Nobody else? All right.

PN209

MR BARLOW: Your Honour, if I may be excused?

PN210

JUSTICE ROSS: Certainly. Well, the moments come - I've been trying to put this off as long as humanly possible. So the Manufacturing Award. What's the best way of approaching? I think we set out or I just miscounted that you had 13 issues for AI Group but I think there are probably only 10 but nevertheless.

PN211

MS BHATT: We had some brief discussions starting from the top of the section. Can I try to work through it and to indicate to the Bench where the parties got to?

PN212

JUSTICE ROSS: Sure.

PN213

MS BHATT: If I miscalculated then likely they'll stop me.

PN214

JUSTICE ROSS: Sure.

PN215

MS BHATT: Issue number one, in respect of clause 11.2.

PN216

JUSTICE ROSS: Yes.

PN217

MS BHATT: AI Group seeks a short window to review the exposure draft again, particularly in respect of all of the clauses that use the term 'Ordinary hourly rate', because I think the proposition is that those provisions in the context of casual employees should be read as though it instead says 'Casual ordinary hourly rate'. It's just with the incorporation of some of the vehicle manufacturing provisions we'd like to be sure that that doesn't amount to any substantive change. We think we can file a short note in the Commission on Christmas Eve if not earlier.

PN218

JUSTICE ROSS: Look, it's not - I had been wondering and it may be that we don't need to do this once you've gone through it but even if most of the changes are agreed I am conscious that there are a lot of them and I'd be minded to publish a variation determination earlier than is currently scheduled on the 14 February and perhaps have a conference or convene a conference before a member of the Bench, prior to the 14 February just so we can be sure that we have correctly translated what's been agreed and proposed into the variation determination because we don't want the confusion of publishing it in final form on the 14th. Then we haven't correctly translated something that leads to a ripple effect. You've got your members jumping up and down about that. So we'll probably do that anyway. So it will give you that further opportunity just to make sure we haven't missed anything. Because the problem and one of the reasons why - well, the group training issue wasn't sort of - whilst on its face is sort of superficially attractive, it's the ripple effect of some of these changes and the unintended consequences that I want to try and guard against and give you as much opportunity as possible to pick up. So we'll probably do that also, Ms Bhatt. But if you can file a note just confirming what your view is on one that's fine.

PN219

MS BHATT: I will, your Honour, thank you. The next issue starts at paragraph 152 of the statement.

PN220

JUSTICE ROSS: Yes.

PN221

MS BHATT: My understanding is that the parties agree that in table C.1.1 - - -

PN222

JUSTICE ROSS: Yes.

PN223

MS BHATT: - - -the heading that reads, 'Full time and Part time employees other than afternoon and nightshift workers'.

PN224

JUSTICE ROSS: Yes.

PN225

MS BHATT: Should be deleted.

PN226

JUSTICE ROSS: All right.

PN227

MS BHATT: If you then go to paragraph 157 of the statement in relation to clause 4.4.

PN228

JUSTICE ROSS: Yes.

PN229

MS BHATT: And my understanding is that the parties agree that clause 4.4 of the exposure draft should be amended by deleting the words 'industry (or industries)', no other change would be made.

PN230

JUSTICE ROSS: So if you go to 157 it's that expression there. So it would now read, in clause 4.4, 'This award covers any employer which supplies labour on a non-hire basis in the manufacturing and associated industries and occupations.' Is that right?

PN231

MS BHATT: That's right. I agree. And then the clause would continue.

PN232

JUSTICE ROSS: Oh, no - sure.

PN233

MS BHATT: Yes.

PN234

JUSTICE ROSS: Mm.

PN235

MS BHATT: The next issue in relation to C.3.2(a) there is agreement that the heading of those tables should be amended to instead read, 'Inclusive of the capital loading', rather than 'Based on the casual loading'.

PN236

JUSTICE ROSS: And when you say 'Those tables' - is that table C3.2(a) and is there another one?

PN237

COMMISSIONER BISSETT: It seems 3.2(b) is - suffers from the same issue, doesn't it?

PN238

MS BHATT: Yes, it does.

PN239

COMMISSIONER BISSETT: yes.

PN240

MS BHATT: It would be both tables. Thank you, Commissioner.

PN241

COMMISSIONER BISSETT: Yes.

PN242

JUSTICE ROSS: 3.2(a) and (b)?

PN243

MS BHATT: Yes.

PN244

COMMISSIONER BISSETT: So can I just check Ms Bhatt, on those tables? Because the term based on 25 per cent or based on 17 per cent.

PN245

MS BHATT: Mm.

PN246

COMMISSIONER BISSETT: As the case may be - appears a couple of times in the table. So it's in the heading?

PN247

MS BHATT: Yes, it's the first row of the table immediately under percentage of casual minimum and hourly rate.

PN248

COMMISSIONER BISSETT: Yes. So my question - - -

PN249

MS BHATT: So it's the bracketed words.

PN250

COMMISSIONER BISSETT: Yes. So my question goes to the title as well.

PN251

MS BHATT: I understand.

PN252

COMMISSIONER BISSETT: So paragraph (a) says 'Casual rates based on 25 per cent casual loading.'

PN253

MS BHATT: I'm grateful to the Commissioner for bringing that to our attention. The heading should be amended similarly.

PN254

COMMISSIONER BISSETT: Yes.

PN255

JUSTICE ROSS: Are we amending those words wherever they appear? Is that the idea?

PN256

COMMISSIONER BISSETT: In those two tables.

PN257

MS BHATT: I can't see them appear anywhere else. So I think that's right, your Honour.

PN258

JUSTICE ROSS: All right.

PN259

MS BHATT: At paragraph 163 of the statement the change proposed is agreed between the parties.

PN260

JUSTICE ROSS: Mm.

PN261

MS BHATT: The issues set out at paragraphs 165, to 169, and I should say I've not had an opportunity to discuss this with my colleagues but AI Group says that that is inherently connected to the first issue we dealt with, regarding the calculation of casual rates, so if the Commission would give us an opportunity also to revisit that issue when we're reviewing the other provisions and file a note in respect of that issue too.

PN262

JUSTICE ROSS: Yes. Sure.

PN263

COMMISSIONER BISSETT: Can I, Ms Bhatt, just in terms of reviewing that issue. There is of course the definition of casual minimum hourly rate in - at C.3.1.

PN264

MS BHATT: Yes.

PN265

COMMISSIONER BISSETT: And this is just something for you to take into account in terms of the discussion.

PN266

MS BHATT: Yes.

PN267

COMMISSIONER BISSETT: Which is a different concept.

PN268

MS BHATT: I understand.

PN269

COMMISSIONER BISSETT: To the casual ordinary hourly rate.

PN270

MS BHATT: The ordinary - yes.

PN271

COMMISSIONER BISSETT: Yes.

PN272

MS BHATT: Yes, I understand.

PN273

COMMISSIONER BISSETT: So the confusion of those two needs to be - sorry, the difference between those two terms - - -

PN274

MS BHATT: Yes.

PN275

COMMISSIONER BISSETT: - - -needs to be borne in mind in terms of the discussion about what should or shouldn't be on the table.

PN276

MS BHATT: I understand.

PN277

COMMISSIONER BISSETT: Yes.

PN278

MS BHATT: Yes, thank you, Commissioner. We have not had discussions about the issues that follow from here, your Honour, I'm afraid.

PN279

JUSTICE ROSS: Well, if we go to the third issue, the table C1.1 table of rates - the additional clause references. That's agreed by the AMWU. We'd propose to amend the table of rates as proposed by AI Group. Does anyone disagree with that? No? The rest of the issues - as I understand it deal with various tables and - well, what's the position with the cross-reference? So probably if we deal with the issue that arises under 173.

PN280

MS BHATT: The cross-reference, in our submission, should have been to clause 4.8(a)(xi). And then if we were to turn the page, your Honour, the Commission has identified that there are a number of provisions in the exposure draft that refer to (ix).

PN281

JUSTICE ROSS: Yes.

PN282

MS BHATT: In our submission they should all refer to (xi) but that's an answer that we've only undertaken this morning so my friends are hearing this from me for the first time.

PN283

JUSTICE ROSS: No, no, that's fine. Look, can I put it this way, what we can do is make those changes. We'll publish a revised draft variation determination in accordance with the process I outlined before. Then you can double check that that's the position.

PN284

Does the AMWU have an initial view? Do you think that's right that all the cross-references should be to (xi)?

PN285

MS SRDANOVIC: That's correct. That's right, your Honour. I have looked through all of the clauses that you so hopefully put out in the statement and from my first glance they all are - they will be required to be changed.

PN286

JUSTICE ROSS: All right. Then if we go to the fifth issue at clause 3.2(b). This is from paragraph 175 down, what's the position in relation to this? I think we agree and propose to make the amendment that you suggest but does anything else follow from it?

PN287

MS BHATT: I'm not sure if I misheard your Honour as to which paragraph you're on?

PN288

JUSTICE ROSS: I'm sorry, 178 to 180.

PN289

MS BHATT: Thank you, your Honour. So if I can just move through this very quickly.

PN290

JUSTICE ROSS: Sure.

PN291

MS BHATT: 179, it's the same cross-referencing issue. It should've been (xi).

PN292

JUSTICE ROSS: Yes.

PN293

MS BHATT: We say that nothing further would flow from the amendment at 180.

PN294

JUSTICE ROSS: Yes.

PN295

MS BHATT: At 181 it should be (xi) again.

PN296

JUSTICE ROSS: Yes.

PN297

MS BHATT: At 183 it should be (xi) again.

PN298

JUSTICE ROSS: Right. The same at 188?

PN299

MS BHATT: The same at 186 and then 188.

PN300

JUSTICE ROSS: Yes.

PN301

MS BHATT: Slightly differently issue, your Honour, but paragraph 190 the submission we made there should have been about D.1.3.

PN302

JUSTICE ROSS: D.1.3?

PN303

MS BHATT: Yes. Which may alter the unions' response.

PN304

JUSTICE ROSS: Let's deal with the previous ones that you've referred to. This is a proposition at 178, 181, 183, 186 and 188. At each one of those, as I read the submissions, the AMWU is not opposed to the proposal but it raised an issue about the cross-referencing which is now going to be corrected so it reads (xi). On that basis re all of those matters agreed?

PN305

MS SRDANOVIC: It is agreed, yes.

PN306

JUSTICE ROSS: Thank you. Then let's go to the proposition at paragraph 190 and the AMWU says it doesn't follow the submission as originally put. Ms Bhatt has clarified that what's been discussed there is the table in D.1.3.

PN307

COMMISSIONER BISSETT: I think the confusion, Ms Bhatt, might have been because in your submissions filed on 27 November you proposed an amendment to D.1.3 and then proposed a similar change to D.2.1 and that was the confusion I think from the AMWU's perspective.

PN308

MS BHATT: Looking at it on its face that submission should not have been made in respect of D.2.1 because the issue doesn't arise. It should only have been made about D.1.3.

PN309

COMMISSIONER BISSETT: Yes.

PN310

JUSTICE ROSS: Yes?

PN311

MS SRDANOVIC: Your Honour, on the face of it I don't think the AMWU would be opposed to that change but I would just seek for that extra time just to make sure that we are not having any of ‑ ‑ ‑

PN312

JUSTICE ROSS: Sure.

PN313

MS SRDANOVIC: ‑ ‑ ‑those unintended consequences we're all worried about.

PN314

JUSTICE ROSS: Perhaps if you can drop a short note dealing with that issue in the next few days.

PN315

MS SRDANOVIC: Yes.

PN316

JUSTICE ROSS: Thank you. Then we go to the expense related allowances, the tool allowance issue at 192 and 193. The AMWU proposal in reply is put out at 193. What do you want to say about that, Ms Bhatt?

PN317

MS BHATT: We don't oppose the introduction of the footnote proposed.

PN318

JUSTICE ROSS: The next issue relates to expense related allowances under missing allowances. This is - if the cross-referencing is fixed so it's to (xi) do I take it that there's no opposition to the proposed change? All right. Okay. That's it. It's been remarkably painless. No, not quite.

PN319

MR KINGSTON: The only issue we noticed was that the award, the exposure draft, appears to have been assigned the code MA000015 in the footer on each page when it presumably should be code 10.

PN320

JUSTICE ROSS: Yes, okay. No, we'll make sure that's covered. Thank you. Can we go to the Meat Industry Award? Are there any unions here with an interest in the Meat Industry Award?

PN321

Is there anything you want to add to the issues you've raised?

PN322

MS BHATT: No, your Honour.

PN323

JUSTICE ROSS: Anything ABI wants to add?

PN324

MR KINGSTON: No, your Honour.

PN325

JUSTICE ROSS: Let's go to the Pharmaceutical Industry Award. The first issue raised by Ai Group relates to clauses 13.2 and 13.3. And ABI supports Ai Group's submissions. Mr Crawford, are you in this one?

PN326

MR CRAWFORD: Yes, we are, your Honour. And we do have a minor interest in the meat industry but we haven't made submissions, so I'll just leave that.

PN327

MS BHATT: Just before Mr Crawford responds, this proposal was drafted in the context of a previous iteration of the exposure draft, so there's just one or two cross-references that need to be amended.

PN328

JUSTICE ROSS: Yes.

PN329

MS BHATT: In what's set out at paragraph 210. So the reference to clause 6 at sub-clause 8.2(d).

PN330

JUSTICE ROSS: In (d), 8.2(d)?

PN331

MS BHATT: Yes.

PN332

JUSTICE ROSS: Yes.

PN333

MS BHATT: It should in fact refer to clause 10, part-time employees.

PN334

JUSTICE ROSS: Yes.

PN335

MS BHATT: And then the same at 8.3(e).

PN336

JUSTICE ROSS: Mr Crawford?

PN337

MR CRAWFORD: I think that's a consent clause, your Honour. We were involved in the drafting process, yes.

PN338

JUSTICE ROSS: All right.

PN339

MR CRAWFORD: Yes.

PN340

JUSTICE ROSS: That's agreed. Clauses 19.2 and - yes, must be 19.1 I think and 19.2. I think we set out the relevant current award and exposure draft provisions. The solutions proposed by Ai Group are set out at paragraph 218 and 219. What do the other parties wish to say about those?

PN341

MR CRAWFORD: Your Honour, the AWU also submitted a proposal to address some of the issues identified by AIG which we accept do have merit.

PN342

JUSTICE ROSS: Yes.

PN343

MR CRAWFORD: And we ‑ ‑ ‑

PN344

JUSTICE ROSS: That's set out at paragraph 223; is that right?

PN345

MR CRAWFORD: That is correct.

PN346

JUSTICE ROSS: Perhaps if I go to Ms Bhatt and see what she says about your proposals and then we'll see where we end up.

PN347

MS BHATT: I'm concerned that the proposals put by the AWU don't address the issue. I appreciate that they're intended to, but I'm not sure that they do, so if we just take the first dot point for example even if that change was made it would still be the case under what will become the award that any time worked on a Saturday, Sunday or an RDO, except where another day is taken off later, would be overtime, which we say is not necessarily the case. Not all such time must be treated as overtime in the current award. I don't think that the third dot point, so the amendment to clause 26.2 necessarily addresses the issues either, but I accept that the change proposed in respect of Saturdays will get us part of the way there. I note that ABI has put in a submission that says that, you know, our proposal is deficient in various respects but there's no alternate proposal put so I'm not sure that I can respond to that in any other way.

PN348

MR KINGSTON: Your Honour, we merely point out that the proposal didn't differentiate between ordinary hours and overtime and simply made the comment that it may be suitable to do so, but we don't press the matter.

PN349

JUSTICE ROSS: What do you want to do, Mr Crawford?

PN350

MR CRAWFORD: We press our amendments. We do think they address the issues in a simpler way that's more consistent with the current award, but we're happy to leave it in the hands of the Commission to determine the best approach.

PN351

JUSTICE ROSS: Nothing further in that award. Let's go to the Poultry Processing Award. Do you want to say anything about that, Mr Crawford?

PN352

MR CRAWFORD: No, your Honour, I don't believe we've filed our submissions in relation to that award.

PN353

JUSTICE ROSS: Do you have an interest in that award?

PN354

MR CRAWFORD: Marginally. They are Australian workers so ‑ ‑ ‑

PN355

JUSTICE ROSS: Yes. Sweeping interpretation of your coverage clause, but ‑ ‑ ‑

PN356

MR CRAWFORD: Yes.

PN357

JUSTICE ROSS: So there's no opposition. No submission opposing the Ai Group's submission? All right. Storage Services and Wholesale Award? Anyone wish to say anything about the Ai Group proposals? No? Nothing further about that award? All right. I think that brings us to the end of this group and we then will adjourn till 12.30 where there'll be a conference before Bissett C about the Vehicle Manufacturing Retail Services and Repair. Yes, Ms Bhatt?

PN358

MS BHATT: Can I have just a moment to confer with Mr Crawford about something before we adjourn?

PN359

JUSTICE ROSS: Sure.

PN360

MS BHATT: Your Honour asked the AWU and Ai Group to report back on an issue arising from the Asphalt Award.

PN361

JUSTICE ROSS: Yes. Is this the (i) and (ii)?

PN362

MS BHATT: Yes. Yes. Somewhat selfishly I'm not appearing in any of the matters ‑ ‑ ‑

PN363

JUSTICE ROSS: Yes, sure.

PN364

MS BHATT: ‑ ‑ ‑for the remainder of today. May Mr Crawford and I have an opportunity to discuss and file a short note before Christmas instead of ‑ ‑ ‑

PN365

JUSTICE ROSS: No, certainly. That's fine.

PN366

MS BHATT: Okay.

PN367

JUSTICE ROSS: Yes, no problem.

PN368

MS BHATT: Thank you.

PN369

JUSTICE ROSS: We'll adjourn until the conference at 12.30.

SHORT ADJOURNMENT [11.01 AM]

RESUMED [2.10 PM]

PN370

JUSTICE ROSS: So we've got the Higher Education Industry General Staff Award; Higher Education Academic Staff; and the Educational Services General Staff Award. Can I have the appearances please, firstly in Sydney?

PN371

MR R. KINGSTON: May it please the Commission, Kingston, initial R, for ABI and the New South Wales Business Chamber, just in relation to the Schools Award.

PN372

JUSTICE ROSS: Thank you.

PN373

MR A. ODGERS: If the Commission pleases, Odgers, initial A, in respect of the Educational Services General Staff Award.

PN374

JUSTICE ROSS: Thank you. And in Melbourne?

PN375

MR S. PILL: If your Honour pleases, Pill, initial S, I'm behalf of the Group of Eight and in respect of the first award.

PN376

JUSTICE ROSS: Thank you.

PN377

MS C. PUGSLEY: If the Commission pleases, Pugsley, initial C, on behalf of the Australian Higher Education and Industrial Association, in respect of the first award.

PN378

JUSTICE ROSS: Thank you.

PN379

MS E. GILMORE: And your Honour, it's Gilmore, initial E, together with Nethercote, initial F, on behalf of the Associations of New South Wales, South Australia, Western Australia and Independent Schools Queensland, Tasmania and Victoria, collectively the AIS's in respect to the Educational Services Schools General Staff Award.

PN380

JUSTICE ROSS: Thank you. The Higher Education Industry General Staff Award is dealt with at paragraphs 235 and 236 of the statement that we issued earlier in December, and that notes that the pre-existing casual conversion clause in the award will be retained in the exposure draft, and in the variation determination. Are there any other issues in respect of that award?

PN381

MR PILL: Your Honour, it's Stuart Pill here. The short answer is no. As your Honour has identified, paragraphs 235 and 236 of your decision of 11 December accurately reflect the substance of anything that's remaining. In relation to the overtime for casuals, that is being dealt with by that Bench and his Honour Vice President Hatcher identified in his decision on 6 December that there is a consent position in relation to that aspect, as well, and so we'd anticipate that that would be disposed of through that process.

PN382

JUSTICE ROSS: And what's the timeline for the finalisation of a variation determination giving effect at consent position, Mr Pill?

PN383

MR PILL: It forms part of the suite of awards. Vice President Hatcher's Bench has just indicated that that Bench will satisfy itself that there is no further issues. If there were further issues then we'd invite submissions from the parties, but otherwise we're in the hands of that Bench, your Honour.

PN384

JUSTICE ROSS: All right, thank you. Anybody else in relation to the Higher Education General Staff Award?

PN385

MS PUGSLEY: Nothing further to add, thank you.

PN386

JUSTICE ROSS: All right, thank you. The Higher Education Industry Academic Staff Award, there don't appear to be any issues in respect of this award in relation to the draft variation determination or the exposure draft. Am I right about that, or does anyone have a contrary view?

PN387

MR PILL: You are right about that, your Honour.

PN388

JUSTICE ROSS: All right. That concludes those two. Let's move to the Education Services School General Staff Award. The material in relation to this award commences at paragraph 237 of the statement of 11 December. At paragraph 239 it notes that a draft determination giving effect to an agreed position between the IEU and the associations is yet to be filed. The draft determination was filed by the IEU by you, Mr Odgers, on 12 December. And it proposes replacing clause 15.1(c) with the following clause: 'Nightshift is a shift which is not a day shift and which finishes after midnight and at or before the commencement of the relevant spread of ordinary hours identified in clause 9.5.' Is that variation generally agreed?

PN389

MR ODGERS: Your Honour, can I just say firstly that the clause numbers that appear in that draft determination are wrong. At 1, the reference to 15.1(c) should read, '22.1(c).' And accordingly, the reference to clause 9.5 should read, '14.5.' Our error.

PN390

JUSTICE ROSS: Thank you. With those amendments do the other parties agree with that proposed variation?

PN391

MS GILMORE: Yes, your Honour, the Associations agree with that draft determination.

PN392

JUSTICE ROSS: All right, thank you. Nobody has a different view? No? Thank you.

PN393

MR ODGERS: Your Honour, I wonder to save time whether I might draw your attention towards a matter that's come to our notice only this morning. And that is that the exposure draft excludes a slew of changes that were agreed by the Commission in 2015. The relevant reference, and I can hand this up if it would be convenient, is to order PR575283. And I say to save time, because some five years ago or possibly more, the parties had agreed and the Commission had approved a new formulation in respect of meal breaks, which was an issue that was to be discussed and/or argued and arbitrated this afternoon.

PN394

JUSTICE ROSS: Do you have a copy of the - - -

PN395

MR ODGERS: Yes, the order, your Honour.

PN396

JUSTICE ROSS: Yes. Thank you. Yes?

PN397

MR ODGERS: And as your Honour will see, part of that paragraph 5 goes to inserting new meal break provisions.

PN398

JUSTICE ROSS: Yes.

PN399

MR ODGERS: Presuming, I think, that the Commission would not subsequently have thought better of its decision to approve the agreement between the parties, that means there is now no disagreement with the parties about the relevant meal break provisions. The only issue is that for some reason all of the changes that were approved by the Commission in this particular order had - - -

PN400

JUSTICE ROSS: No, that's fine. We can - - -

PN401

MR ODGERS: Yes.

PN402

JUSTICE ROSS: We'll amend the variation - draft variation, determination and the exposure draft to reflect the order in PR575283 and we'll republish those and provide all parties with an opportunity to comment. But do you say that resolves which issue?

PN403

MR ODGERS: It resolves the issue that the Commission raises at paragraph 255 to paragraph 260 of its decision of last week or - - -

PN404

JUSTICE ROSS: Yes.

PN405

MR ODGERS: - - -statement of last week. And I wonder whether also to save time whilst on my feet, I might indicate that as a result of discussions with - between the industry parties - the AIS advised that they no longer press the change that they seek and they can obviously confirm this in relation to clause 12.2 which was to have been the subject of a conference at 2.30 this afternoon. That's dealt with in paragraph 241 - - -

PN406

JUSTICE ROSS: To 246.

PN407

MR ODGERS: - - - to two - yes.

PN408

JUSTICE ROSS: What about ABI's observations? See, at 249 they submit it may be appropriate to add a subclause at the start. They also note at 251 that there's an issue about the example.

PN409

MS GILMORE: Your Honour, it's Ms Gilmore in Melbourne for the AIS's. We haven't had the ability to have any conversations with ABI on these issues. I can confirm though Mr Odgers' opinion to the Bench just then that the AIS's will no longer progress our submissions on the 27 November. With respect to ABI's concern about the example - - -

PN410

JUSTICE ROSS: Well, let's just pause for a moment. I think probably the best course is we'll deal with the other issues, then we'll adjourn, keep the video link open and you can have a discussion with ABI and see if you can sort out that position and then come back at 2.30 and advise Deputy President Clancy. Okay?

PN411

MS GILMORE: Yes, your Honour.

PN412

JUSTICE ROSS: Yes. Look it's - I think given that the grounds shifted a little it'd probably benefit from a direct conversation between yourself and ABI. Can I just confirm though that you don't press your proposed change to clause 12.2. Is that right?

PN413

MS GILMORE: That's correct, your Honour.

PN414

JUSTICE ROSS: And can I just check in relation to the unpaid meal break provision issue - this is at paragraphs 255 to 260 of the 11 December statement. Do you agree with the IEU that that issue was determined by the earlier Full Bench and their determinations reflected in an order of 21 December 2015 that Mr Odgers has referred to and we would vary the exposure draft and the draft variation determination to give effect to that order. In the light of that is there any issue remaining in relation to these unpaid meal break provisions?

PN415

MS GILMORE: Not as far as we're concerned, your Honour.

PN416

JUSTICE ROSS: All right, then I think that then seems to leave two other issues. One is the clause 21.3 - reasonable additional hours for part-time employees commencing at paragraph 261.

PN417

MR ODGERS: It won't surprise the Commission to hear that we concur and its provisional view is expressed at paragraph 265.

PN418

JUSTICE ROSS: Is anyone opposed to that view?

PN419

MR KINGSTON: Your Honour, we don't oppose it although we suggest the word 'or' is inserted after the semi colon at the end of the first bullet point. So that it reads - - -

PN420

MS GILMORE: I'm sorry, your Honour. It's the AIS's in Melbourne. We can't hear we believe to be the ABI.

PN421

MR KINGSTON: Sorry, my microphone was moved before. There we go.

PN422

JUSTICE ROSS: Yes?

PN423

MR KINGSTON: I was merely stating that we suggest that the word 'or' is inserted after the semi colon at the end of the first bullet point so that the subclause reads, 'Do no result in an employee working more than the allowed maximum weekly ordinary hours or working more than the allowed maximum weekly ordinary hours during the averaging period.

PN424

JUSTICE ROSS: Yes. All right. Well, that seems - does anyone have any problem with that?

PN425

MR ODGERS: No, your Honour.

PN426

JUSTICE ROSS: No? Can I just - I might have been slightly hasty in expressing the provisional view. Only because the expression 'The allowed maximum weekly ordinary hours' - what do the parties mean by that? In the proposed clause that's set out at paragraph 263 of the statement.

PN427

MS GILMORE: I would suggest your Honour that we were meaning the allowed maximum weekly hours being 38 if you're a full-time employee or less than that if you were a part-time employee.

PN428

JUSTICE ROSS: Well, these provisions deal with part time employees don't they?

PN429

MS GILMORE: Yes, they do.

PN430

JUSTICE ROSS: So when it says in the second dot point - well, the first - 'Working more than the allowed maximum weekly ordinary hours.' Why don't you just put in 'Working more than' - if it's 38 ordinary hours per week - why not just say that? Where would you find the expression 'The allowed maximum weekly ordinary hours'?

PN431

MS GILMORE: I think, your Honour, the words have come straight from the Modern Award. So they might have just been adopted by us by nature of the fact they're in the current Modern Award.

PN432

JUSTICE ROSS: And you think they mean for a part-time employee - 38 hours per week, or averaged over the cycle?

PN433

MS GILMORE: Well, no for a part-time employee, your Honour, we would say that would mean that - no, sorry - I withdraw that, your Honour. It would be 38 - yes.

PN434

JUSTICE ROSS: Do you agree with that, Mr Odgers?

PN435

MR ODGERS: Yes, I do, your Honour.

PN436

JUSTICE ROSS: Well, what do the parties say about the proposition that it simply says in the first dot point, 'Working more than 38 ordinary hours per week and in the second dot point working more than 38 ordinary hours per week during the averaging period - et cetera.'

PN437

MR ODGERS: Well, we don't - I don't necessarily have any objection but given the fact that only today I have managed to discover that there are a significant number of important amendments that aren't in the award and that I have submitted a draft determination to the Commission that contains incorrect cross-referencing. I'll say once I've had a look at it - - -

PN438

JUSTICE ROSS: You're slightly hesitant, Mr Odgers.

PN439

MR ODGERS: Yes, I am.

PN440

JUSTICE ROSS: Yes, well look what we can do is this that we'll give some thought to it. If that's where we land we'll put it in a revised exposure draft and a revised draft determination which will also pick up the changes that the parties have drawn our attention to, and provide everyone with a further opportunity to have a look at.

PN441

MR ODGERS: Yes, that would be ideal.

PN442

JUSTICE ROSS: Yes. All right. Can I go to the final issue which is clause 14? Ordinary hours of work, employees other than shift workers which is set out at clause 266 and following. We express the provisional view that the amendments - this is at paragraph 275 - that the amendments proposed by ABI be adopted. Is there any opposition to that provisional view?

PN443

MR ODGERS: No, your Honour.

PN444

JUSTICE ROSS: All right. Is there anything further in relation to this award?

PN445

MR ODGERS: Not from our perspective, your Honour.

PN446

JUSTICE ROSS: All right. And from the associations?

PN447

MS GILMORE: No, your Honour.

PN448

JUSTICE ROSS: All right. Well, we'll adjourn now and the conference before Deputy President Clancy will commence at 2.45 to provide the parties with an opportunity to have the discussion that I referred to earlier. Thank you very much for your assistance. We'll adjourn.

SHORT ADJOURNMENT [2.28 PM]

RESUMED [3.18 PM]

PN449

JUSTICE ROSS: We're now turning to deal with the awards listed at 3 pm, the Alpine Resorts Award; the Architects Award; the Hospitality Industry General Award; the Local Government Award; and the Pastoral Award. Could I have the appearances, please, firstly in Sydney?

PN450

MR S. CRAWFORD: If it pleases the Commission, Crawford, initial S, for the AWU.

PN451

JUSTICE ROSS: Thanks, Mr Crawford.

PN452

MR R. KINGSTON: If it pleases the Commission, Kingston, initial R, still here for ABI and the New South Wales Business Chamber.

PN453

JUSTICE ROSS: Not much longer, Mr Kingston.

PN454

MR BULL: I'll let my friend go first.

PN455

MR P. RYAN: May it please the Commission, Ryan, initial P, for the Australian Hotels Association.

PN456

JUSTICE ROSS: Yes, Mr Ryan.

PN457

MR S. BULL: And last, me. It's Bull for the United Workers Union.

PN458

JUSTICE ROSS: Thank you, Mr Bull. And in Melbourne?

PN459

MR M. CORRIGAN: If it pleases the Commission, Corrigan, initial M, on behalf of the Association of Consulting Architects, and with me is Wagner, initial D, on behalf of the Association.

PN460

JUSTICE ROSS: Thank you. And in Canberra?

PN461

Mr B. ROGERS: Rogers, initial B, for the National Farmers Federation, your Honour.

PN462

JUSTICE ROSS: Thank you, Mr Rogers. And in Perth?

PN463

MS D. HUNTER: If it pleases the Commission, Hunter, initial D, appearing for Local Government Associations.

PN464

JUSTICE ROSS: Thanks, Ms Hunter. Let's firstly go to the Alpine Resorts Award. In the statement of 11 December we expressed at paragraph 285 the provisional view that the draft variation determination be amended as proposed by the AWU. Is there any opposition by any party to that provisional view?

PN465

MR ROGERS: Your Honour, and I can confirm I've got written confirmation from the Australian Ski Areas Association that that they consent to that variation.

PN466

JUSTICE ROSS: All right, can you provide us with a copy of that?

PN467

MR ROGERS: Yes.

PN468

JUSTICE ROSS: Anything else in relation to that award? No? In relation to the Architects Award, this is dealt with at paragraphs 286 to 289. At paragraph 287 we indicate that we agree with the addition of, in brackets, 'full time employee,' under the heading, 'Minimum annual rate,' and propose to amend the draft determination accordingly. At paragraph 285 we expressed the provisional view that the other changes be rejected on the basis that the minimum hourly rate column applies to full-time, part-time and casual employees. Does anyone wish to say anything about the provisional view?

PN469

MR CORRIGAN: If it pleases the Commission, Corrigan, initial M. We would ask that we insert the words, 'casual employee,' as well, where we have, 'full-time, part-time and casual employee,' if it pleases the Commission.

PN470

JUSTICE ROSS: I see. All right. Is anyone opposed to that? No? Anything else in relation to this award?

PN471

MR KINGSTON: No, your Honour.

PN472

JUSTICE ROSS: All right, thank you. Can I got to the Hospitality Industry General Award. The first issue is in relation to clause 29.3(a). This is a proposed redrafting of clause 29.3 by ABI. In its written reply submission the AHA submits that the wording in the current clause is adequate. The UWU does not oppose the redraft of the clause proposed by ABI. Anything the parties wish to say about this?

PN473

MR KINGSTON: Your Honour, since our submissions were filed the AHA have come up with an alternative proposal which we consent to, so I'll let Mr Ryan talk to that.

PN474

JUSTICE ROSS: Sure. Yes.

PN475

MR RYAN: If it's convenient to your Honour's Commission I might hand up a - - -

PN476

JUSTICE ROSS: Sure, thank you.

PN477

MR BULL: We have no trouble with either. The AHA one seems a bit clearer.

PN478

JUSTICE ROSS: Great minds think a like, Mr Ryan. I made a note myself to delete the word, 'however,' but there we go.

PN479

MR RYAN: Then I don't think I have anything further to say, your Honour.

PN480

JUSTICE ROSS: All right. And you're content with that, I take it, from ABI's perspective?

PN481

MR KINGSTON: Yes, your Honour.

PN482

JUSTICE ROSS: And I think we've indicated what we propose to do with the AHA's meal breaks issue?

PN483

MR KINGSTON: May it please.

PN484

JUSTICE ROSS: Is there anything further in relation to this order?

PN485

MR RYAN: No, your Honour, not for the AHA.

PN486

JUSTICE ROSS: Thank you.

PN487

MR RYAN: Thank you.

PN488

JUSTICE ROSS: Can we go to the Local Government Industry Award.

PN489

MS HUNTER: Than you, your Honour.

PN490

JUSTICE ROSS: There are four issues raised. They are set out in the statement of 11 December at paragraphs 298 through to 317. Ms Hunter, is there anything you wish to add to what appears in the statement?

PN491

MS HUNTER: No, your Honour. I think everything is covered in that. However I would like to refer to one minor correction to the exposure draft of the award I refer to our submissions to the Commission on 19 December where we identified a further minor error for correction. That's not mentioned in the 11 December statement.

PN492

JUSTICE ROSS: No. That was the subject of your email correspondence? This is about the allowances that should specify they're on a per hour basis, rather than on a weekly basis, is that the - - -

PN493

MS HUNTER: Yes. Yes, that's correct, your Honour.

PN494

JUSTICE ROSS: No, that's fine. I raised that at the commencement of the proceedings today and referred to your email correspondence, and we've accepted those changes.

PN495

MS HUNTER: Thanks, very much, your Honour.

PN496

JUSTICE ROSS: I can't remember the first allowance. There were three levels of it. The second allowance was a sleepover allowance. That's the issue you're going to, is it?

PN497

MS HUNTER: Yes, that's correct, your Honour.

PN498

JUSTICE ROSS: No, that's fine. Thank you. And thank you for bringing that to our attention.

PN499

MS HUNTER: Thank you.

PN500

JUSTICE ROSS: Nothing further in relation to that award? Are there any unions with an interest in that award?

PN501

MS HUNTER: No. Occasionally the ASU presents submissions but they have not on this issue, your Honour.

PN502

JUSTICE ROSS: All right, thank you. We'll go to the Pastoral Award. There are five issues raised by the AWU. The first relates to clause 11.7. Mr Rogers, what do you think about that proposition?

PN503

MR ROGERS: Your Honour, we accept the AWU's submission. We agree with them.

PN504

JUSTICE ROSS: Thank you. The second relates to clause 19.2. Mr Rogers?

PN505

MR ROGERS: Your Honour, we have no serious objection to deleting the example. I really have no submissions to make on that issue. I guess it's ABI who raises it as a concern.

PN506

JUSTICE ROSS: Yes. Does ABI want to say anything?

PN507

MR KINGSTON: Your Honour, our submission was merely pointing out that it is an example, and that the 152 hours would be appropriate for a full-time employee who only worked 38 hours each week, without any averaging provisions and it would not be inconsistent with the NES.

PN508

JUSTICE ROSS: Is there another way of expressing it?

PN509

MR KINGSTON: Not that immediately appears to me, your Honour. I suspect you could extend it out to - - -

PN510

JUSTICE ROSS: You could do, four times 38. I'm not sure - - -

PN511

MR KINGSTON: I suppose it could be amended to clarify that it would apply to an employee who worked 38 hours each week.

PN512

JUSTICE ROSS: For four weeks.

PN513

MR KINGSTON: For four weeks.

PN514

JUSTICE ROSS: What do you think of that, Mr Crawford?

PN515

MR CRAWFORD: I think that probably sounds okay, your Honour. It's fair to say this isn't a massive issue for us.

PN516

JUSTICE ROSS: All right, we'll have a look at something along those lines. If we go to the third point, clause 24, any opposition to that proposition that the cross-reference be to clause 44?

PN517

MR ROGERS: Not from the NFF, your Honour.

PN518

JUSTICE ROSS: Is everyone happy with that? Okay, the next is in relation to clause 38. This appears at paragraphs 326 and 327. Are the AWU submitting that the reference to 'continuous hours shift worker' in the clause should be amended to a 'continuous work shift worker', because continuous work is the term defined. Mr Rogers?

PN519

MR ROGERS: Again, we accept the AWU's submission, your Honour - their brief.

PN520

JUSTICE ROSS: Thank you. The last is - well, Schedule B and this is about the overtime and casuals issues and we're really awaiting the finalisation of the determination of the part-time and casuals Full Bench.

PN521

MR ROGERS: Yes.

PN522

JUSTICE ROSS: Once that's done then the Award would be varied accordingly. The NFF raises four issues. The first relates to clause 17.2. We express the provisional view at 332 that the figures in the exposure draft are based on a percentage of the standard rate as set out in the current award and it was our provisional view that no amendment was necessary. Is there anything you wish to say about that, Mr Rogers?

PN523

MR ROGERS: No, your Honour. I apologise and withdraw that submission. It was clearly wrong.

PN524

JUSTICE ROSS: No, that's fine.

PN525

MR ROGERS: Basically.

PN526

JUSTICE ROSS: All right, thank you. The next NFF proposal is in relation to clause 37.2 and I mean we do note that there seems to be a cross-reference error and that's probably the easiest of these issues to deal with and we express the provisional view that the cross-reference be amended to clause 37.1(a). Is there any - let's deal with that first. Any difficulty with that? No? All right. Well, let's go to the NFF's substantive proposal. Is there anything you wish to add to what we've set out there Mr Rogers?

PN527

MR ROGERS: I mean I guess I would just be reiterating the submissions that we had made previously, your Honour. But our concern is that the proposal would effectively prevent an employer from rostering their employees for less than 38 hours per week and that would have significant ramifications or could have significant ramifications it would appear to the averaging provisions - the 38-hours over four weeks - in addition, potentially, to part time work, casual work and then we've also identified another example which might be the leave without pay. And it's our submission, your Honour, that if - it's our respectful submission that if your Honours are correct and the courts has no work to do then the appropriate course would be to simply to lead it, rather than change it or modify it in the way that the Commission has done. But then it's our view that it does have work to do which is that where there is a shortfall in hours, averaging in the week and the employer has to make reasonable effort to find alternative duties or other work for the employee to do to make up that shortfall and that might be work - let's say other duties. It might be in other areas of the farm, it might be in a neighbouring or related business. It would depend on the circumstances but we feel that there is work of course to do and it's significantly different to just requiring the employer to pay the 38 hours of work that hasn't been performed.

PN528

JUSTICE ROSS: All right. Thank you, Mr Rogers. Mr Crawford?

PN529

MR CRAWFORD: Your Honour, I think we take the point in relation to the averaging period issue.

PN530

JUSTICE ROSS: Mm.

PN531

MR CRAWFORD: I'm not sure - there's reference - I think the NFF have made to there being nothing legitimately for an employee to do. I think we take issue with the proposition that a full time employee could be paid for less than 38 hours because of a shortage of work. So I don't think we would accept the clause operates that way but we do take the point that in relation to an averaging period it's not entirely clear how the clause would operate and seemingly given the award does allow an averaging period there could legitimately be an arrangement whereby - you know - for example - in a shorter week the employee is paid for less than 38 hours.

PN532

JUSTICE ROSS: In relation to this issue what's the view of the parties to the idea that I'd convene a separate conference to deal with this particular point and the parties can give further thought to the proposed solutions in relation to it. Mr Crawford, you might give some thought to how you might bring the averaging issue to bear on it and give some thought to Mr Rogers' proposal that - and I understand it's very much in the alternative but rather than, as it were, amend and fiddle with the clause we delete it and once you've had a chance to reflect on that I'd convene a conference and we'd see if we can reach a resolution that addresses the practical application of the clause. Are you content with that course?

PN533

MR CRAWFORD: Yes, your Honour, if the proposal is that we perhaps given a short time to reflect on whether the deletion option would be problematic and then - yeah, I guess if we agree with that that may resolve the issue. If not - - -

PN534

JUSTICE ROSS: Indeed, yes.

PN535

MR CRAWFORD: - - -there could be a conference.

PN536

JUSTICE ROSS: All right. Are you content with that course Mr Rogers?

PN537

MR ROGERS: Yes, thank you, your Honour.

PN538

JUSTICE ROSS: All right. Can we go to the next - the third item the NFF raises which is in relation to clause 50. We expressed the provisional view at paragraph 342 that the second column in the table in clause 50 be amended to include the word, 'if' before the word 'not' so it would read, 'If not found employee'. Is there any opposition to the provisional view?

PN539

MR ROGERS: No.

PN540

JUSTICE ROSS: No? All right. The final proposed - or the final issue the NFF raises relates to clause 54.8 and this is the exposure draft deletes the words, 'Subject to this Award' in clause 49.8(b) of the current Award. Mr Rogers, that's been a sort of a general drafting change is to delete that expression because it sort of begs the question. What else in the Award has any bearing on that particular clause? If there is another provision that modifies the clause or impacts on it in some way then we would say - you know - subject to the terms of clause 'X' - because that at least allows the reader to know what other clause might impact on it. One of the issues with leading the expression as a general one, subject to this Award, is you're sort of left guessing about what else in the Award might be of relevance to it. So I think that's the reason why it was taken out in the first place and that's the reason also for asking you the question as to what other provisions of the Award may have an impact on that clause and - you know - that makes it necessary to put the words back in.

PN541

MR ROGERS: Yes, your Honour. So clause 54 there are a number of like - well it identifies a number of circumstances which may affect the penning of sheep, which is obviously a precursor to them being available to be shorn. And so there are circumstances where if the sheep is wet or is infected.

PN542

JUSTICE ROSS: Yes.

PN543

MR ROGERS: Both employers and employees may elect not to shear those sheep. So that could have an effect upon whether or not the sheep are going to be available to be shorn.

PN544

JUSTICE ROSS: Sure.

PN545

MR ROGERS: That's the real crux of the issue there. And then there is at clause 53.2 there are opportunities for the shearing time to be delayed. The start of the shearing time to be delayed. So, again, I would be concerned that if that clause was to be enlivened it might obviously impact upon whether or not - it will impact upon whether or not the sheep will be available to be shorn.

PN546

JUSTICE ROSS: I'm sorry. You mentioned 53.2, what was the other section, 54? Clause rather - 54?

PN547

MR ROGERS: 54.4(b) and (c) which enable the employer to elect not to shear a sheep if it's wet. And then 54.3 an employee may refuse to shear a sheep which again if the employee is refusing to perform the shearing then they may affect whether or not the employer is going to make a sheep available or the sheep available for shearing.

PN548

JUSTICE ROSS: No. I follow.

PN549

MR ROGERS: So those are the principal concerns, your Honour. Those points.

PN550

JUSTICE ROSS: Yes. Just bear with me for a moment. All right, thanks for that, Mr Rogers. Anything you want to say about this, Mr Crawford?

PN551

MR CRAWFORD: Your Honour, the resolution was to be subject to references inserted to those clauses 53.2 and 54.3. I don't think we'd take issue with that.

PN552

JUSTICE ROSS: Look, we might give some thought to whether we do it. It sort of makes sense if it's one clause. But if you start putting 15 clauses in there, so – bearing in mind that we may be having a conference in relation to the other issue we'll give some thought to how it might be expressed. In the meantime, Mr Rogers, you have identified those two provisions. If any other provisions occur to you in the next few days can you shoot us a note with those?

PN553

MR ROGERS: I will. Thank you, your Honour. Can I - - -

PN554

JUSTICE ROSS: Sure.

PN555

MR ROGERS: Can I just identify another issue - - -

PN556

JUSTICE ROSS: Sure.

PN557

MR ROGERS: Which I noticed while I was reading through and trying to identify these clauses, at 54.4(b), it reads, 'The employer need not pen sheep for shearing or crushing, which in the honest opinion of the employee should not be shorn or crushed.' I have raised this with my members and they say that that should read, 'Which in the honest opinion of the employer should not be shorn or crushed.' And if you look at some of the pre-modernisation awards, that's what they say.

PN558

JUSTICE ROSS: Yes.

PN559

MR ROGERS: And obviously there's already provision in here for an employee to object to shearing wet sheep. So I think that's a typo, your Honour, and I wonder if that might be the subject of further consideration, or perhaps addressed at the conference.

PN560

JUSTICE ROSS: Sure. Do you have a view about that, Mr Crawford? We may be able to sort it out here. It's 54.4(b), in the second line, 'opinion of the employee,' should be, 'the opinion of the employer.'

PN561

MR CRAWFORD: I mean, that seems to be how 54.4(c) operates.

PN562

JUSTICE ROSS: Yes, I think that's – look, on the face of it I think Mr Rogers may be correct. Because when you look at (c) it says, 'The employer may also withdraw.' Which rather suggests that (b) is the employer's discretion, as well. But look, similarly, if you can give some thought to that over the course of the next few days and if you've got a different view to the one Mr Rogers has expressed then let us know. But if you're not opposed then we would amend that provision in the way that Mr Rogers has outlined. Anything further in relation to this award?

PN563

MR ROGERS: Not from us, thank you.

PN564

JUSTICE ROSS: Mr Crawford, anything from you?

PN565

MR CRAWFORD: No, thank you.

PN566

JUSTICE ROSS: All right. I think that's it. All right, thank you, very much, we'll adjourn.

ADJOURNED INDEFINITELY [3.41 PM]