PN1

JUSTICE ROSS: Could I have the appearances please, firstly in Sydney?

PN2

MS N DABARERA: If the Commission pleases, Dabarera, initial N, from United Voice.

PN3

JUSTICE ROSS: Thank you. Perhaps if you could just talk into the microphone, Ms Dabarera, just so we can pick you up. In Brisbane?

PN4

MS J MINCHINTON: Thank you. Good morning, your Honour, if it pleases the Commission, Minchinton, initial J, for the Australian Hotels Association, the Accommodation Association of Australia and the Motoring Motel and Accommodation Association.

PN5

JUSTICE ROSS: Thank you, Ms Minchinton. And, Ms Thomson, we've got you on the phone?

PN6

MS K THOMSON: Yes, that's correct, your Honour. I appear on behalf of ABI and the New South Wales Business Chamber, but I'm also mentioning appearance on behalf of Business SA.

PN7

JUSTICE ROSS: Thank you. Look, I just wanted to go through some background and then outline how I was proposing to deal with this morning's conference and then get your views about that.

PN8

We last had a conference on 12 September, on that occasion each of you was asked to confirm the status of the 95 or so items listed in the summary of submissions that was published prior to the conference. Following the - bear with me for one moment, following the conference, on 25 October, we published a revised summary of submissions, a revised plain language exposure draft and a statement, the statement is 2017 FWC 5402.

PN9

The statement set out some mixed steps, in relation to the matter, at paragraphs 50 and following, and I'll come back to that. The statement called for submissions in respect of a range of issues and submissions were received from ABI, the AHA, Business SA and United Voice.

PN10

What I propose to do this morning is to go through those submissions, in case there's any questions from any party about the submissions of another party, to then confirm where we're up to, in relation to the revised summary of submissions, to see if anyone has any corrections to that, and then I think the most productive way forward is to then have two further conferences, in February, and we would circulate, prior to those conferences, the particular items that would be discussed, then we'd seek to reach a resolution on them.

PN11

So for example, hours of work, part‑time, casuals, apprentices, seems to be one convenient basket, and there are some other items that are also related. Then you would know, going into the conference, the particular issues that would be discussed, and we would summarise there the submissions of all of the parties on those issues. Where we don't reach a resolution about those issues, we would also determine the process by which those matters would be decided. Okay? So if you're content with that course, I would go through the correspondence that has been received since the last conference. Are you happy enough with that?

PN12

MS THOMSON: Yes, your Honour.

PN13

MS DABARERA: Yes, your Honour.

PN14

JUSTICE ROSS: It's probably easiest to deal with Business SA and ABI first, because their items are relatively short. Business SA simply confirms that it's no longer pursuing item 8, so item 8 will be regarded as being withdrawn. ABI has sent in correspondence dated 21 November, and there, Ms Thomson, you confirm that the list of outstanding items is accurate, and you comment on the amendment to clause 29.3 at paragraph 37. I'm just not clear - you say that the current drafting may make the operative component of the clause unclear. I was just wondering if you can elaborate on that.

PN15

MS THOMSON: Certainly. I think, your Honour, the thrust of the submission or the comment as it is was just about the way that the clause is proposed to be amended and a suggestion that perhaps there might be an alternative formulation. If your Honour would like us to provide you alternative wording I can provide that at the close of this conference, or if the other parties are not in agreement, they don't think there's any issue with it, it's also one of those ones where I'm happy to go with the proposed wording that's in the statement.

PN16

JUSTICE ROSS: All right. Well let's just ask the other parties whether they have any difficulty with the provisionally amended wording at paragraph 37 of the statement of 25 October. Ms Dabarera?

PN17

MS DABARERA: Your Honour, we didn't have any particular issues with that.

PN18

JUSTICE ROSS: All right. Ms Minchinton?

PN19

MS MINCHINTON: Your Honour, we were quite comfortable with the wording proposed.

PN20

JUSTICE ROSS: Ms Thomson, do you want to reflect on that and perhaps advise whether or not you are content to leave it where it is?

PN21

MS THOMSON: Yes, thank you. Thank you, your Honour.

PN22

JUSTICE ROSS: Thank you. I think that was all that was identified in the correspondence from ABI and Business SA. Let's go to the submission filed by the Australian Hotels Association. This is the submission of 20 November. Can we just go through that, Ms Minchinton?

PN23

MS MINCHINTON: Yes, your Honour. Your Honour, before we actually go through the detail of it, I just wanted to make mention that in our submission at paragraph 4 and 17, we had made the comment that we were satisfied with the way that particular items had been characterised in terms of being withdrawn or still being outstanding issues.

PN24

JUSTICE ROSS: Yes.

PN25

MS MINCHINTON: I've noticed in the revised summary of submissions that were published on the 15th of this month that for some particular items we're noted as having made submissions on it, when previously they weren't matters that we had raised; for example, item 12, we're noted as - - -

PN26

JUSTICE ROSS: Okay. Let's go through all of the items that are in that category.

PN27

MS MINCHINTON: Yes.

PN28

JUSTICE ROSS: What's the page number of the - that's page 4 of the summary?

PN29

MS MINCHINTON: No - sorry, your Honour, I was referring to our submission of the 20th and our paragraph 4.

PN30

JUSTICE ROSS: Yes - no, I see that, but which item in the revised summary of submissions do you say does not accurately reflect your position?

PN31

MS MINCHINTON: Well I have a list of them for you, your Honour, which I'll read out.

PN32

JUSTICE ROSS: Yes.

PN33

MS MINCHINTON: These are matters that the AHA, the Associations, had not expressed a - - -

PN34

JUSTICE ROSS: A view?

PN35

MS MINCHINTON: - - - a view on.

PN36

JUSTICE ROSS: All right.

PN37

MS MINCHINTON: So item 12, item 15, item 30, 34, 35, 59 and 60.

PN38

JUSTICE ROSS: Okay. We'll amend the revised summary and we'll publish that following this conference with any other amendments, and we'll remove any reference to the AHA in respect of those items. Is that what you're seeking?

PN39

MS MINCHINTON: Yes. Thank you, your Honour. I just thought it might create some confusion, because for some items they were resolved, except for the fact that we had made a statement in our submission of the 20th that was taken to refer to all of the items, whereas we were just referring to the items that the Associations had expressed.

PN40

JUSTICE ROSS: Yes. Okay, no problem. Let's go to paragraph - I'm looking here at your submission of 20 November.

PN41

MS MINCHINTON: Yes.

PN42

JUSTICE ROSS: And if we go to paragraph 5, you say that - you're referring here to paragraph 7. I'm not sure what - perhaps if you take me through each paragraph of your submission and identify what you're responding to in the statement, and what if anything you want us to change.

PN43

MS MINCHINTON: Okay. With regards to our paragraph 5, that was simply to confirm that with regards to item 4, only one of the matters had been - from our perspective, only one of the matters was actually dealt with as part of being a matter that had been withdrawn.

PN44

JUSTICE ROSS: Is that raised in paragraph 15 as well?

PN45

MS MINCHINTON: Yes. That's the second part of it.

PN46

JUSTICE ROSS: So you're really just clarifying that was what it was, so it's not - - -?

PN47

MS MINCHINTON: That's right.

PN48

JUSTICE ROSS: Yes, that's fine. Let's go to paragraph 6.

PN49

MS MINCHINTON: That was also to clarify, your Honour, that in relation to item 33 we had two particular concerns that we had expressed, the first one being the use of the word, "rest pauses", which we have withdrawn. However, we also had a concern with the phrasing of the table at clause 16, and clauses 16.2 and 16.6, and they are still outstanding matters for us, your Honour.

PN50

JUSTICE ROSS: Yes. No, that's fine. That's really reflected at paras 20 through to 23 of the statement.

PN51

MS MINCHINTON: Yes.

PN52

JUSTICE ROSS: Okay. Item 66, this is your para 7?

PN53

MS MINCHINTON: Yes. I'll just find that.

PN54

JUSTICE ROSS: So item 66 should be more accurately put under the "Resolved" section rather than the "Withdrawn" section?

PN55

MS MINCHINTON: Yes.

PN56

JUSTICE ROSS: Yes, no problem.

PN57

MS MINCHINTON: Yes, thank you.

PN58

JUSTICE ROSS: All right, we'll do that. In relation to item 7, that's no longer pressed?

PN59

MS MINCHINTON: Yes, yes.

PN60

JUSTICE ROSS: So that would go into the withdrawn column?

PN61

MS MINCHINTON: Yes, thank you.

PN62

JUSTICE ROSS: All right. Then as item 65, what do you want to do with that?

PN63

MS MINCHINTON: Your Honour, this was something that we had raised as part of the hospitality award specific matters and at that time the then‑definition of "ordinary hourly rate". And I note that in the plain language exposure draft it's a revised definition to incorporate the all-purpose allowances.

PN64

So from our perspective we just wanted to highlight that we were, I guess, providing some context to, I guess, where those matters had come from and why we had expressed them. But if you bear with me I'll just look at my current status document.

PN65

JUSTICE ROSS: No, that's fine.

PN66

MS MINCHINTON: So 65 ‑ the other concern that we'd had with it, and I guess this is something that we wanted to flag either to be dealt with as part of the specific matters, AM2014/272, where it's now in the plain language draft referring to the ordinary hourly rate the all-purpose allowance that exists in this award, being the forklift allowance, is not actually expressed as an hourly amount.

PN67

It's expressed as either a weekly amount for a full‑time employee or for a daily amount for a part‑time or casual employee. And what we'd like to put forward is the proposal or the submission that we now look at that all-purpose allowance on an hourly basis which we calculate to be 32 cents per hour ‑ ‑ ‑

PN68

JUSTICE ROSS: All right. Well, we'll ‑ ‑ ‑

PN69

MS MINCHINTON: ‑ ‑ ‑ given that it is incorporated ‑ ‑ ‑

PN70

JUSTICE ROSS: Okay. We'll have a look at that issue.

PN71

MS MINCHINTON: Yes.

PN72

JUSTICE ROSS: That's really paragraphs 10 and 11 of your submission. Paragraph 12 is really noting what the outstanding part of item 68 is, is that right?

PN73

MS MINCHINTON: Yes, correct.

PN74

JUSTICE ROSS: Item 88, this is a matter that we had down as resolved.

PN75

MS MINCHINTON: Yes.

PN76

JUSTICE ROSS: Are you pointing to the fact there's a cross‑referencing error?

PN77

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

PN78

JUSTICE ROSS: All right. We'll check the cross‑referencing, that's fine. Item 90, that's been resolved, is that right?

PN79

MS MINCHINTON: We would like to make some comment on that. So in the schedule C this refers to C.3 and C.4 and the amendment that we had sought was in relation to, I guess, the note talking about penalty rates and that penalty rates are not payable where clause 25 applies.

PN80

We also submit that if you are complying with clause 24 as well the penalty rates are not payable either, whereas the wording in the latest exposure draft says it may not be payable. We believe that should say it is not payable as well.

PN81

JUSTICE ROSS: Just bear with me for a moment. Well, the only issue in relation to clause 24 is, of course, that an annualised salary arrangement will not necessarily satisfy the award obligations in relation to penalty rates. Clause 24.5 provides that unless the employer and employee otherwise agree an annualised salary satisfies the awards.

PN82

So in other words, the parties could agree to confine the scope of the annualised salary arrangement. That's why the schedule's phrased in the way it is. So it may satisfy it but the parties can agree to a different arrangement pursuant to 24.5.

PN83

MS MINCHINTON: Your Honour, in practice in our member venues clause 24, or as it exists as clause 27.1 at the moment, is utilised for the purposes of penalty rates and overtime. It is not very common for other monetary entitlements to be wrapped up.

PN84

JUSTICE ROSS: Well, you can change 24.5 to make it clear that you can't otherwise agree but as long as you have those words in there the schedule is accurate. Do you follow? I mean, it may be in practice they do but that doesn't matter. It's what's possible, if you like, pursuant to the clause.

PN85

MS MINCHINTON: Yes, your Honour, we were just looking at it from the perspective of avoiding any confusion in the reading of C.3 where an employer might question how it could be payable if they are satisfying the requirements of clause 24. May I suggest that we could amend the note to say where an employer and employee have agreed for payment in accordance with clause 25 or clause 24, penalty rates are not payable? So there's the proviso that that element ‑ that reinforces that there's a need for agreement.

PN86

JUSTICE ROSS: Yes, all right. What do you say about that, Ms Dabarera?

PN87

MS DABARERA: Your Honour, we have raised some concerns in relation to that clause. We wouldn't have an opposition to rephrasing it to make that clear. We just have to have a think about that phrasing that's just been suggested now.

PN88

JUSTICE ROSS: No, that's fine. Look, perhaps we can leave it on the basis we'll also give some consideration to some rephrasing that tries to meet the issue that's been raised and is consistent with clause 24. And we'll put that to the parties for discussion at one of the next conferences, all right?

PN89

MS DABARERA: Thank you, your Honour.

PN90

JUSTICE ROSS: All right. Let's go back to the AHA's submissions and from para 17 onwards. Can you just take me through ‑ so you're dealing here with the outstanding issues?

PN91

MS MINCHINTON: Yes. At paragraph 18, your Honour, this was the remaining item of part 4. In the plain language exposure draft of 25 October the appropriate level of training definition was inserted into the Casino Gaming Classification part of the award. And for us that satisfies that part of part 4 which means the entire part 4 is done.

PN92

JUSTICE ROSS: So we can take that bit out of the outstanding. Then we've got item 19.

PN93

MS MINCHINTON: Yes, that's correct.

PN94

JUSTICE ROSS: You say that's acceptable so I can remove those as well and that's resolved?

PN95

MS MINCHINTON: Yes, we can resolve that, yes, and ‑ ‑ ‑

PN96

JUSTICE ROSS: Then we've got item 22. That's withdrawn?

PN97

MS MINCHINTON: Yes.

PN98

JUSTICE ROSS: Then we go to item 40.

PN99

MS MINCHINTON: Yes, the inclusion of the words "other than an adult apprentice" which was proposed by the drafter in the summary of submissions is acceptable to us to resolve it.

PN100

JUSTICE ROSS: Yes, all right. I should indicate when we get to those matters that are resolved on the basis you've identified, if any other party has a different view then they should let me know at that time. Then I think we go to item 47. You note the comments in the summary of submissions. But you say that for ease of reading clause 24.5 should specifically state the relevant clauses for penalty rates and overtime?

PN101

MS MINCHINTON: Yes, your Honour, and the current version of the award does that at the moment.

PN102

JUSTICE ROSS: All right. Is there any opposition to that?

PN103

MS MINCHINTON: And we believe that should be ‑ ‑ ‑

PN104

JUSTICE ROSS: Yes, is there any opposition to that proposal?

PN105

MS DABARERA: No, your Honour.

PN106

JUSTICE ROSS: All right.

PN107

MS THOMSON: No, your Honour.

PN108

JUSTICE ROSS: Well, we might amend the plain language draft and move that item to resolved. Item 51.

PN109

MS MINCHINTON: Thank you, your Honour.

PN110

JUSTICE ROSS: That's all right.

PN111

MS MINCHINTON: Item 51, the reading of this annualised salary provision has always been interpreted, from our perspective, your Honour, to where it refers to annual leave being brought out by the 25 per cent annualised rate, we have taken that to read "annual leave loading." So that what I'm referring to is clause 25.2(g), and it had been something that we had raised, as part of AM2014/272, to provide that clarification, that it should read "payment for annual leave loading."

PN112

From our perspective we believe that that will aid the reader's understanding of the application so that they don't have to pay annual leave loading, as opposed to not paying annual leave at all.

PN113

JUSTICE ROSS: Yes. That seems to make sense. Do any of the other parties have any issue about that?

PN114

MS DABARERA: We would support that, your Honour.

PN115

MS THOMSON: Yes, that's fine, thank you, your Honour.

PN116

JUSTICE ROSS: Can I just - I suppose it could be a cross-reference to the 17 and a half per cent loading, provided in clause 30.3, just to make it obvious what we're referring to.

PN117

MS MINCHINTON: Yes.

PN118

JUSTICE ROSS: All right. Well, we'll make that change. I think that will, on the face of it, resolve item 51. We then go to item 53.

PN119

MS MINCHINTON: Thank you, your Honour. Item 53.

PN120

JUSTICE ROSS: I think you were saying it's resolved?

PN121

MS MINCHINTON: Yes, we are, your Honour.

PN122

JUSTICE ROSS: Okay. Then item 56?

PN123

MS MINCHINTON: This was a more detailed matter, your Honour, in terms of a particular clause being allowable or otherwise.

PN124

JUSTICE ROSS: Let me just - - -

PN125

MS DABARERA: This was one of our submissions, your Honour, relating to - - -

PN126

JUSTICE ROSS: Which term is that about?

PN127

MS DABARERA: It's relating to clause 26.10(c), which is allowances for working away from the usual place. We've submitted that it's an objection or an unreasonable term, because it permits the employers to deduct a sum of money from an employee's pay if they only work for a certain period of time with the employer.

PN128

JUSTICE ROSS: I see. So whether it offends the deduction provision of the Act.

PN129

MS DABARERA: Yes, your Honour.

PN130

JUSTICE ROSS: All right. We'll note that that's the issue and we can explore how we will determine that matter at the next conference. Then if we go to item 61, I think the Associations are withdrawing that item, is that right?

PN131

MS MINCHINTON: Yes, your Honour.

PN132

JUSTICE ROSS: Item 63?

PN133

MS MINCHINTON: Your Honour, we were noting that a common issue matter that was determined by the Full Bench. We didn't have any specific comments about it at this stage, noting that the clause will be redrafted, with effect, from 1 January and that was simply our comment for that purpose.

PN134

JUSTICE ROSS: Okay. Then item 71, you're indicating that you want to pursue a change in relation to that matter?

PN135

MS MINCHINTON: Yes. So, your Honour, and we acknowledge what the drafter has stated in the summary, which is that the current award is reflected in the plain language draft. However, the practice of the deduction for a meal is per meal, not on a weekly basis, and we believe that the plain language drafting exercise provides the opportunity to clarify the practice of that deduction.

PN136

JUSTICE ROSS: Well, we'll also note that for discussion at the next conference. Item 73?

PN137

MS MINCHINTON: Seventy-three was also an item that we had raised, as part of AM2014/272, as an opportunity to clarify that wage levels do not translate equally, in all occasions, to a classification level. We had proposed, as part of the other proceedings, to put the wage level in brackets after the particular classification. An example of that is the clerical stream, where clerical grade 1 actually equals wage level 1. We thought that would aid the reader and avoid confusion. We do note that the drafter has proposed, in alternate to that, a note. We submit that the note is an opportunity to clarify that the classification level does not always translate to the wage level, as an alternative mechanism of resolving a matter that we had raised as 2014/272.

PN138

JUSTICE ROSS: In relation to 2014/272, that's the substantive claims, in respect of the award?

PN139

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

PN140

JUSTICE ROSS: All right. Well, let's park it for the moment and we'll need to discuss, at the conferences, the sequencing of the plain language redraft and then making sure that we've highlighted the matters the parties still wish to pursue as substantive items.

PN141

MS MINCHINTON: Yes.

PN142

JUSTICE ROSS: Then if we go to your comments, under the revised summary of submissions, in part C, I think we've dealt with those already.

PN143

MS MINCHINTON: Yes.

PN144

JUSTICE ROSS: If you go to paragraph 35, I think you've dealt with those items on the way through, are there any that you've not?

PN145

MS MINCHINTON: Yes. No, I think what we've provided, at clause 35, covers a number of those issues, as well as some of the questions that were raised in your statement of 25 October.

PN146

JUSTICE ROSS: Okay. Then if we go to paragraph 36, you say there's a cross-referencing error in (a)?

PN147

MS MINCHINTON: Yes.

PN148

JUSTICE ROSS: Let's just deal with that for a moment, and if I can get the views of others. So clause 6, yes, 6.8, that should be to 6.7(b), that's right, rather than 6.9. Does anyone have a different view? This is because 6.9 is referring to the time and wages record when, in fact, the reference should be where you're under 18 and the agreement's been signed by your parent or guardian. So, on the fact of it, the AHA's point seems correct. Does anyone take a different view to that?

PN149

MS THOMSON: No, your Honour.

PN150

JUSTICE ROSS: Let's go to (b), can you explain (b) to me, Ms Minchinton?

PN151

MS MINCHINTON: Yes, thank you, your Honour. In terms of the clause 15.4, for rostering purposes, we note that Business SA had put forward a proposed change to 15.4(b) and (e), which included reference to ordinary hours. Specifically with regards to 15.4(b), we had a concern with the use of the word "ordinary hours" because it is practice, in the hospitality industry, for both ordinary hours and additional hours to be rostered. What we would like to propose, and I've had some discussions with Business SA about this, is that perhaps we could change the wording, at 15.4(b), to indicate the start and finishing ordinary hours as well as additional hours, so that the additional hours can now also be put onto the roster.

PN152

JUSTICE ROSS: In some ways it was easier when it simply said "work".

PN153

MS MINCHINTON: Yes, or as per the current edition of the award, there's a full stop at the end of "finish", there's not even a reference to "work" or "ordinary hours".

PN154

JUSTICE ROSS: Yes. Well, work would encompass both ordinary and additional hours.

PN155

MS MINCHINTON: Yes.

PN156

JUSTICE ROSS: Ms Thomson, what do you say about inserting the word, "work", rather than "ordinary hours" in 15.4(b) to address the concern that has been raised by the Associations?

PN157

MS THOMSON: Thank you, your Honour. Yes, I think that's a sensible outcome, and I also understand as Ms Minchinton has indicated that she has had discussions with Business SA and they would be content with that course of action.

PN158

JUSTICE ROSS: All right. Are you happy with that, Ms Dabarera?

PN159

MS DABARERA: Yes, your Honour. We don't have an issue in terms of - we think it can be helpful to have additional hours shown on the roster as well, so we wouldn't object to that, your Honour.

PN160

JUSTICE ROSS: I was actually proposing we replace the word, "ordinary hours", simply with "work", so: "at which they start and finish work", work being a term that could embrace both ordinary and additional hours, and the point that has been made by Ms Minchinton of course is that in the current award, the subclause finishes where it says, "the times at which they start and finish." So we're just making it clear that that's referring to when they start and finish work, that's all.

PN161

MS DABARERA: No objection to that, your Honour.

PN162

JUSTICE ROSS: Thank you. Let's go to 21.2. There is an incorrect reference to the Restaurant Award, and the correct reference should be to the Hospitality Award. Does anyone take a different view? No?

PN163

MS THOMSON: No, your Honour.

PN164

JUSTICE ROSS: If you can take me to item (d), Ms Minchinton, and just explain that - this is about clause 29 at table 11?

PN165

MS MINCHINTON: Yes. In column 2 and column 3, the penalty rates for full‑time and part‑time employees - and I'm looking at column 2, your Honour - for a Sunday they reflect 175 when it was reduced to 170 from 1 July this year, and equally for column 3, the public holiday row, it's now 250, not 275, and the public holiday for full‑time and part‑time is 225, not 250.

PN166

JUSTICE ROSS: Yes. I think that's right, so we'll update the table to reflect the adjustments that took effect from 1 July.

PN167

MS MINCHINTON: Thank you, your Honour.

PN168

JUSTICE ROSS: Thank you for that. Was there anything else from the Associations before I turn to deal with the issues raised by United Voice?

PN169

MS MINCHINTON: No, your Honour, except to say if there's any of the outstanding matters that you'd like us to provide more detail to, we're happy to do so today.

PN170

JUSTICE ROSS: What we might do is identify them in a short statement that we'll issue in the New Year, and we will have grouped the outstanding items by conference; in other words, we'll split them. Some will be dealt with at the first conference in February, others will be dealt with at the second, and we'll identify in that statement where we're seeking clarification or further information from a party. Okay?

PN171

MS MINCHINTON: Thank you.

PN172

JUSTICE ROSS: Because it may not just be the Associations, Ms Minchinton; we may also seek comment from other parties about a particular outstanding issue when it's not clear to us what their concern is. Okay?

PN173

MS MINCHINTON: Okay. Thank you.

PN174

JUSTICE ROSS: Ms Dabarera, can I just go through your submission, and you deal with the outstanding items from paragraph 2 onwards. You note - I think item 4 has been resolved; we've discussed that.

PN175

MS DABARERA: Yes, your Honour.

PN176

JUSTICE ROSS: In relation to item 7, I had a note that that had been withdrawn by the AHA, so what's happening with that one?

PN177

MS DABARERA: Your Honour, our submissions were made on the same day as the AHA, so yes, we do note that they have withdrawn it, so that appears to be resolved.

PN178

JUSTICE ROSS: Thank you. Then go to item 19, you continue to press that?

PN179

MS DABARERA: Item 19 is in relation to clause 11.4 and it's about how casual employees are paid. The AHA has raised a concern that the clause was - originally they raised a concern that it was a bit - it could be simplified, and the drafter made a suggestion that a note could be inserted to simplify it. Our position was that inserting a note that refers to a separate clause actually complicates the clause and the original wording in the plain language draft was simpler than it has turned out to be now.

PN180

JUSTICE ROSS: So whilst the drafter's note has resolved the matter from the AHA's point of view, you're opposed to the note and therefore that issue remains unresolved, is that where we're up to?

PN181

MS DABARERA: Yes, your Honour.

PN182

JUSTICE ROSS: All right. Let's go to item 20 then. This is really to deal with apprenticeships, and the proposition you advance is that apprenticeships can be undertaken on a part‑time basis, is that right?

PN183

MS DABARERA: Yes, your Honour, and we have previously suggested some wording essentially to delete the term, "full‑time", from that clause so that it can include part‑time apprenticeships as well.

PN184

JUSTICE ROSS: All right. What's the view of the other parties about that? Is there any opposition to the removal of the reference to "full‑time" from either ABI or from the Associations? Perhaps if I go to you first, Ms Thomson, what do you say?

PN185

MS THOMSON: Neither opposed nor support, your Honour.

PN186

JUSTICE ROSS: Okay. Ms Minchinton?

PN187

MS MINCHINTON: Your Honour, this was also a concern that we had with regards to the drafting of clause 12.3. Currently the award does not refer to full‑time or part‑time employment and our preference is that it stays the way it currently is, which would be in line with United Voice's submission to remove the "full‑time" reference.

PN188

JUSTICE ROSS: Okay. If we remove the "full‑time" reference, that seems to resolve that issue.

PN189

MS DABARERA: Yes, your Honour.

PN190

JUSTICE ROSS: Let's move to item 28. That seems to have been resolved as well, is that right?

PN191

MS DABARERA: Your Honour, from our perspective, we were happy with the drafter's suggestion to include a definition. I'm not sure how the other parties are in relation to that.

PN192

JUSTICE ROSS: Yes. Perhaps if they could let us know. Ms Minchinton, what do you say about that?

PN193

MS MINCHINTON: Sorry, your Honour, this is in relation to clause 15.2 and the definition of "catering employer?"

PN194

JUSTICE ROSS: Yes.

PN195

MS MINCHINTON: Sorry, I just wanted to clarify that.

PN196

JUSTICE ROSS: Yes, it's item - - -

PN197

MS MINCHINTON: The reception dropped out for a bit.

PN198

JUSTICE ROSS: Yes. It's item 28, which relates to clause 15.2, that's right.

PN199

MS MINCHINTON: Yes. The Associations are comfortable with the drafter's proposed definition of "catering employer" as well.

PN200

JUSTICE ROSS: What about ABI, are you content as well?

PN201

MS THOMSON: Yes, we don't oppose that.

PN202

JUSTICE ROSS: All right, then that issue is resolved on that basis. Item 29, United Voice is withdrawing its objection, is that right?

PN203

MS DABARERA: Yes, your Honour. We are withdrawing our objection because we believe that the drafter's comment has explained why the clause is phrased in that way.

PN204

JUSTICE ROSS: Okay. Item 56?

PN205

MS DABARERA: Item 56 is in relation to the issue that we did talk about briefly before, which is the allowances for working away from the usual place.

PN206

JUSTICE ROSS: No, I follow - yes, I follow.

PN207

MS DABARERA: And that's the one that we're saying is objectionable and unreasonable.

PN208

JUSTICE ROSS: Yes, so that will probably need to be determined by submissions.

PN209

MS DABARERA: Yes.

PN210

JUSTICE ROSS: All right. Items 59 and 60 you're continuing to press?

PN211

MS DABARERA: Yes, your Honour. Items 59 and 60, so 59 is in relation to the airport catering supervisory allowance and in relation to it being an all‑purpose allowance, and item 60 is also in relation to that allowance and who it applies to. So yes, we are concerned that the draft has reduced or changed the employees that it applies to, so we do continue to press those items.

PN212

JUSTICE ROSS: All right, we'll have a look at those submissions and provide a response in the next statement. In relation to changes to the revised PLED, you're identifying an issue at clause 28. And the essence of this is that the word "reasonable", the qualifier in relation to working additional hours, has been removed, is that right?

PN213

MS DABARERA: Yes, your Honour, and I might actually expand on that. I've had a look at that clause again and we do have some further concerns about it. So our issue, as we've gone through in our submission, it is firstly that the word "reasonable" has been removed and we think that changes the nature of the obligation on the employer to consider whether the additional hours are reasonable.

PN214

Further, our concern with this is, having had a look at it within the full clause again, the additional clause refers to additional hours and that's a different concept to what the rest of the clause talks about which is overtime. So having a look at it again, we're not sure that that's very useful in terms of reading it. So the current clause as it is says:

PN215

An employer may require an employee, other than a casual employee, to work reasonable overtime at overtime rates.

PN216

Our preference would be for that clause to remain, recognising that there has been a change in terms of casual employees. And I would wonder if the employer parties would be ‑ what their position is because I understand their concern was essentially that that clause had disappeared from the plain language draft.

PN217

JUSTICE ROSS: What do the other parties say? Ms Thomson?

PN218

MS THOMSON: Your Honour, I have some sympathy for United Voice's argument. However, I would be hesitant to return to the draft ‑ or the way that's in the current draft of the award and wonder whether or not the addition of the word "reasonable" in between "work" and "additional" in the proposed PLD would be sufficient to satisfy United Voice's concerns. So it would read:

PN219

An employer may require a full‑time or part‑time employee to work reasonable additional hours.

PN220

JUSTICE ROSS: Yes. I think, as I understood United Voice's position, they have two concerns. One is the introduction of the concept "additional hours" where the existing clause refers to overtime and the second is the removal of the word "reasonable".

PN221

Look, it may be ‑ I think we should come back to this at the first conference in February because the notion of reasonable additional hours is going to be canvassed in a statement that the plain language Full Bench will issue shortly because there's an issue here about the interaction with the NES obligations in respect of additional hours that we need to cover off on as well.

PN222

The issue was touched on in the Pharmacy Award plain language redraft. I think if you await the next statement on the general issue that may inform the debate about this matter and we can come back and have another look at it at the first conference in February. Is that satisfactory to you, Ms Dabarera?

PN223

MS DABARERA: Yes, your Honour.

PN224

JUSTICE ROSS: Okay. All right. Well, what then I would propose to do is to update the list of withdrawn, resolved and outstanding issues, reflecting the agreed position today. We would make the changes to the revised summary of submissions reflecting those changes and the issues that have been raised by the AHA where their position in respect of a number of items may have been mischaracterised.

PN225

We'll attach those two with the revised PLD reflecting the items that have been agreed today. All of those documents will accompany a statement that will be issued in the first half of January. That statement will also identify the remaining outstanding items and we'll set an agenda for two conferences in February.

PN226

The statement will identify in relation to each item that will be discussed at each conference precisely what the issue is and what each of the parties have said so far about that issue.

PN227

Just taking up your point, Ms Minchinton, the event that we seek further clarification from any party about those issues will indicate that. We'll also provide parties with an opportunity prior to the conference to make whatever additional remarks they wish to make about any of the items.

PN228

I think it would be helpful, once you see them and we're more focused on ‑ because we've spent really the last two conferences going through and trying to clear some of the items which can be withdraw or resolved fairly easily. Now as we move down into perhaps some of the more difficult issues I think it would facilitate the conferences if each of you gives consideration to taking up the opportunity to expand on your position in respect of the items at the particular conferences.

PN229

We'll provide two dates to put in that material. There will be one date that will be about a week before the first conference and that will be to provide any additional material or anything you wish to say further about those items.

PN230

And then about a week prior to the second conference you'll be able to say or put in any additional comments about the items that we're going to discuss at the second conference. Okay, does anyone have any questions about the process or anything further you want us to do at this stage?

PN231

MS MINCHINTON: No, your Honour.

PN232

MS DABARERA: No, your Honour.

PN233

MS THOMSON: No, thank you, your Honour.

PN234

JUSTICE ROSS: All right. Well, if there's nothing further then we'll take those steps. I'll see you in February and I hope you have a safe and happy Christmas. Thanks very much. We'll adjourn.

PN235

MS THOMSON: Thank you, your Honour.

PN236

MS MINCHINTON: Thank you.

PN237

MS DABARERA: Thank you, your Honour.

ADJOURNED TO A DATE TO BE FIXED�� [10.23 AM]