PN1

JUSTICE ROSS: Could I have the appearances, please?

PN2

MS A DEVASIA: Ms Devasia for the AMWU.

PN3

JUSTICE ROSS: Thanks, Ms Devasia.

PN4

MS R BHATT: If it pleases, your Honour, Bhatt, initial R, appearing for the Australian Industry Group.

PN5

JUSTICE ROSS: Thank you, Ms Bhatt. The background to the conference and the matters that remain between the parties, the definition of the term "ordinary hourly rate" and how some of the rates dealing with time and-a half and double time are dealt with are set out in a decision of the Full Bench of 23 November 2018. The reference is [2018] FWCFB 7210, and from that decision we have a submission filed by Ai Group on 10 December setting out its position in respect of the two main issues and there's a submission by the AMWU.

PN6

Can I go firstly to the AMWU because I understand that you agree with the ordinary hourly rate definition that had been put forward as a provisional view. But what do you say about the second part of the matter, that is what Ai Group raises - I'll take you to it. In their submission of the 10th you will see from paragraph 5 onwards really this is their proposition about the 150 per cent rather than the time and-a-half and the overtime hourly rate, if I can put it that way, that appears in the table on pages 4 through to 7.

PN7

MS DEVASIA: I've had some very brief discussions with Ms Bhatt about this, and the AMWU is fine to have the overtime hourly rate as proposed by AiG put into the award. We think it just adds clarity, particularly since we don't have a schedule in the award.

PN8

JUSTICE ROSS: So exactly what have you agreed to?

PN9

MS DEVASIA: That the proposed wording for overtime hourly rate will go into the award.

PN10

JUSTICE ROSS: And do you agree with the proposed wording that Ai Group has identified for each of those clauses?

PN11

MS DEVASIA: We have.

PN12

JUSTICE ROSS: 5, 3, 2, 7?

PN13

MS DEVASIA: Our only issue was with 21.3(c).

PN14

JUSTICE ROSS: One point - sorry, where?

PN15

MS DEVASIA: In the exposure draft, 21.3(c).

PN16

JUSTICE ROSS: Yes.

PN17

MS DEVASIA: We would seek to retain that particular clause that says the shift allowance is part of the employees' weekly wage for the purpose of calculating their overtime rate payable in accordance with the award. It's specific to an - not to an allowance but to shift workers that are working day and evening shifts and we would have thought it has a job to do there, although that would be with 31.3(c).

PN18

JUSTICE ROSS: So that is simply 31.3(c) - - -

PN19

MS DEVASIA: - - - in the current award.

PN20

JUSTICE ROSS: - - - is replicated in 21.3(c) in the exposure draft?

PN21

MS DEVASIA: Correct.

PN22

MS BHATT: Your Honour, we had proposed that 21.3(c) of the exposure draft be removed for this reason. The definition we've proposed for overtime hourly rate is intended to insure that the relevant shift allowance is payable where an employee works overtime and then the overtime rate is compounded on that.

PN23

JUSTICE ROSS: Well, would that then be made clear if your proposed wording said, "Ordinary hourly rate means the hourly rate for the employees' classification prescribed by the award plus any allowances specified being included in the employees' hourly rate or payable for all purposes (including shift allowance}?"

PN24

MS BHATT: Your Honour, as I understood it the issue arises in the definition of overtime hourly rate as opposed to the ordinary hourly rate which I think is the definition your Honour has just taken - - -

PN25

JUSTICE ROSS: I'm sorry, yes, yes, okay - so it does include - yes, you're quite right, Ms Bhatt. I follow. Well, if - does that - I'm not sure then what the metal workers' point is because it's made it clear here that the overtime rate includes - is it applicable shift allowances? Is the word, "applicable?"

PN26

MS DEVASIA: Yes, it is.

PN27

JUSTICE ROSS: I wonder if you just specify the clause? "Shift allowances under clause X, Y and Z?" Wouldn't that be clearer?

PN28

MS BHATT: So if the closing words of the overtime hourly rate definition were to say, "Plus any shift allowance prescribed by clause 21.3" - - -

PN29

JUSTICE ROSS: Well, which - yes, yes.

PN30

MS BHATT: - - - whatever the relevant clause might be. I just - - -

PN31

JUSTICE ROSS: Well, we're deleting 21 but yes, I follow.

PN32

MS BHATT: Well, 21.3(a) and (b) - - -

PN33

JUSTICE ROSS: Yes, that's fine.

PN34

MS BHATT: - - - prescribed (indistinct) - - -

PN35

JUSTICE ROSS: That's what I had in mind.

PN36

MS BHATT: Just so - I mean, this isn't sort of a cute point that we raise - the concern was if by leaving 21.3(c) in the exposure draft there might be some argument later about there being a double entitlement to the shift allowance - - -

PN37

JUSTICE ROSS: No, no, no, I'm not suggesting it's a cute point. I think the overtime hourly rate addresses it but I think in deference to the point raised it probably makes more sense to just refer with some precision to exactly what the clause is and then there is no - you've got something you can point to and we don't have to have an argument about what, "applicable," might mean in the future. Well, are you content to - I'm content if you simply shoot something in having discussed it, that addresses that issue. That addresses that question and we still - where are we on the other point - that is the ordinary hourly rate?

PN38

MS DEVASIA: With the ordinary hourly rate, Commissioner - your Honour - we at paragraph 7 of our submissions have made just the amendment based on the proposal that you put forward, the Commission put forward, in the initial decision in - I think it was in November.

PN39

JUSTICE ROSS: Yes.

PN40

MS DEVASIA: We would prefer the prescription to be - we would prefer the definition to refer specifically to the clause 8.2.

PN41

JUSTICE ROSS: Just take me to - so paragraph 7 of yours doesn't really - - -

PN42

MS DEVASIA: Paragraph 12, I apologise.

PN43

JUSTICE ROSS: All right. Yes, well, you've just referred specifically to clause 8.2. Is that the difference? Yes, so that's the hourly rate.

PN44

MS DEVASIA: As to the underlined part where we talked about the ordinary hourly rate being specified, including the shift allowances that would be applicable.

PN45

JUSTICE ROSS: Yes.

PN46

MS DEVASIA: That would be our preferred definition.

PN47

MS BHATT: I would say two things about that - firstly, we would say that the definition of ordinary hourly rate shouldn't refer specifically to clause 8.2 but should instead refer to the employees' classification prescribed by this award. The reason for that is clause 8.2 contains the rates for adults that does include the rates for junior employees, apprentices, trainees, et cetera.

PN48

JUSTICE ROSS: Apprentices - yes.

PN49

MS BHATT: This is an issue that your Honour is familiar with (indistinct) come across before.

PN50

JUSTICE ROSS: Yes, yes, that's true, yes.

PN51

MS BHATT: So that was the reason for the amendment that we had proposed. As for the additional sentence proposed by the AMWU, that is something that Ai Group would oppose. It appears that that would mean that where ever the term, "ordinary hourly rate," is used it potentially attracts the payment of shift penalties which is - that would arise in any number of clauses and that is a separate issue to the issue that we've been trying to resolve here, which is about the performance of overtime by shift workers.

PN52

JUSTICE ROSS: But it would only attract the shift premium where they're working shift work, wouldn't it?

PN53

MS BHATT: We would say the provisions dealing with the shift allowances do that anyway.

PN54

JUSTICE ROSS: That's a separate point, yes.

PN55

MS BHATT: Yes.

PN56

JUSTICE ROSS: So if you can - - -

PN57

MS BHATT: The concern is that if there are provisions of the award that say that there is a rate that is payable that is expressed as a percentage of the ordinary hourly rate then this amendment would result in that rate compounding on a shift allowance.

PN58

JUSTICE ROSS: All right, can I just take you back to the November decision and paragraph 3? This talks about an earlier decision. We're expressing there the preliminary view that ordinarily hourly rate means the hourly rate for the employees' classification, specified in clause 8.2. I understand what you say about clause 8.2 and specified in this award. Let me just go to you first, Ms Bhatt, if I can - plus any allowances specified as being included in the employees' ordinary hourly rate or payable for all purposes. Now, we've dealt with your concern about the reference to clause 8.2 because it won't capture everybody. It should be specified in this award. Can you just take me through any other changes to that preliminary view that you are still agitating for?

PN59

MS BHATT: We're not agitating for any other change to the definition of ordinary hourly rate.

PN60

JUSTICE ROSS: All right. If I can go back then to the AMWU there is the last sentence at paragraph 12 that you're seeking, is that right?

PN61

MS DEVASIA: That's correct.

PN62

JUSTICE ROSS: Well, you've heard what Ms Bhatt has said. What - look, ultimately it will be a matter dealt with on the papers by the full bench but I'm just struggling with the idea of - I'm not sure what your sentence adds that the award doesn't already provide for, is really the short point and look, I'm content for you to think about it and to put in a short submission because that's really where we are now. We're just down to this one point - well, essentially. I mean, I do see the logic of the clause 8.2 not being referred to because otherwise we might miss some people. So it's either - there are probably two options, Ms Bhatt. My preliminary view is I'm attracted to in this award because otherwise you say in clauses 8.2 schedule X - it just becomes a very long exercise and if the award is then varied and the numbering changes there is a bit of a risk so I'm attracted to the idea of - it's the employees' classification specified in this award type of proposition.

PN63

But I'm interested to know more about this last sentence and you've heard what is said against you and I would certainly encourage you to have a discussion about it because it's been fruitful so far and, look, it's obviously a matter for the full bench but we're - the parties have been able to reach some agreement about it and they're content. I'm I suppose predisposed to accept that rather than wandering off into a deep re-examination of those issues. I accept that it's not the same in other awards but I also accept there are a number of unusual features about graphic arts, and anything that can make this award simpler would be a good thing.

PN64

How do you want to go about that last sentence issue? How much time would you like?

PN65

MS DEVASIA: I think what I might do is sort of go through the award again and make sure that that sentence does the job that I need it to do.

PN66

JUSTICE ROSS: Yes.

PN67

MS DEVASIA: And then come back to the Commission with very brief submissions.

PN68

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

PN69

MS DEVASIA: Or if not some discussions with ‑ ‑ ‑

PN70

JUSTICE ROSS: I'd encourage you to have a chat with Ms Bhatt and if you've got any doubt about it not dealing with everything then you can perhaps deal with it in a more specific way.

PN71

MS BHATT: Precisely.

PN72

JUSTICE ROSS: That might be a better option, and I'd certainly encourage you to do that. Because I can see what you've tried to do is to cover off all of it.

PN73

MS DEVASIA: Yes.

PN74

JUSTICE ROSS: But I think as the point has been made that may give rise to some unintended consequences and let's try and avoid that if we can.

PN75

MS DEVASIA: Okay.

PN76

JUSTICE ROSS: So it's really going for more precise where we think there's a gap. All right?

PN77

MS DEVASIA: Okay.

PN78

JUSTICE ROSS: We'll follow up in the – if we don't hear from you we'll follow up with you in the New Year, and nudge you along, and we'll do a short report from today saying that you're giving further consideration to that issue. The other issues have been resolved. Anything else?

PN79

MS DEVASIA: Yes, your Honour. There was the casual ordinary rates.

PN80

JUSTICE ROSS: Yes, I'm sorry. You're right, yes. This is the issue you raised from 15 onwards?

PN81

MS DEVASIA: That's correct.

PN82

JUSTICE ROSS: Yes?

PN83

MS DEVASIA: So essentially what was, as we've put in our written submissions, is where we stand in that we just feel particularly as there's no schedule as there is in other exposure drafts about the wage rates table at the back of the award, that we would seek a very specific definition as to what the casual ordinary rate is.

PN84

JUSTICE ROSS: I'm sorry, so in this exposure draft we don't have the ‑ ‑ ‑

PN85

MS DEVASIA: No, we don't.

PN86

JUSTICE ROSS: Yes, because of the numbers probably. It'd be a phone book if we did that.

PN87

MS DEVASIA: Yes, precisely.

PN88

JUSTICE ROSS: Yes, we've done that in a couple of – so – yes, all right. I follow.

PN89

MS DEVASIA: I'm mindful there's a bit of a gap there in terms of ease of reference to look to exactly what the casual ordinary rate. I accept that there is a definition in, I think it's in clause 6. That sets out what the casual rate is, but I think there would be some use in having a very particular definition put in either at 6.4 or in the definitions to make it exactly precise what the casual ordinary hourly rate is.

PN90

MS BHATT: Your Honour, a definition only has any work to do if the term is used anywhere in the instrument. The term "casual ordinary hourly rate" isn't used anywhere in the exposure draft, and we would say that a definition isn't necessary. We think that the relevant operative provisions of the award already achieve the outcome that we think the AMWU is seeking to achieve, but, as I've indicated to the AMWU off the record, if there are specific provisions of the exposure draft where they have a concern, that in the absence of terminology of this nature there might be some reduction in entitlements inadvertently through the redrafting process, we're quite happy to work through that, but I'm not sure that there's a need to insert a general definition of this nature.

PN91

I will say a definition that looks quite similar to this was inserted in the exposure draft for the Manufacturing Award. The term there is then used only in the schedule, and I think it was used as a shortcut to describing how, for example, an overtime rate is to be calculated by reference to the hourly rate, but, as has already been pointed out by my friend, there is no schedule of rates, and there's no other provision in the award.

PN92

JUSTICE ROSS: No. It may be that some clarification can be provided in relation to the clause that specifies what the loading is. So what does the loading work on, is really the proposition.

PN93

MS BHATT: Yes.

PN94

JUSTICE ROSS: If you're right that the award already specifies that but it might do it less directly, then I'd encourage you perhaps in the discussions resolving the other issue.

PN95

MS BHATT: Yes.

PN96

JUSTICE ROSS: I agree that there's – on its face there's not much point in defining something if it then doesn't apply to anything. So I think Ms Bhatt is right about that. If the concern is well, what is the 25 per cent applied to, then that's something that might be addressed where you actually specify what the loading is. So it's 25 per cent in addition to what? If there's a concern about that, once you've had the discussion then that's probably the place to do it. We've been quite deliberate in removing definitions that don't then – a number of current awards have definitions that have no work to do, because the defined term is not used, and this might give rise to some confusion for that reason, and there might be another way of addressing any concern, so perhaps if you have a similar discussion on that issue and then see where you get to.

PN97

MS DEVASIA: Yes.

PN98

MS BHATT: Your Honour, there's one other issue. I should have raised this at the start, I'm sorry.

PN99

JUSTICE ROSS: No.

PN100

MS BHATT: There's a typographical error in our submission.

PN101

JUSTICE ROSS: Yes.

PN102

MS BHATT: Page 7 in the wording that we've proposed for clause 31.4.

PN103

JUSTICE ROSS: Bear with me for a moment.

PN104

MS BHATT: Of course.

PN105

JUSTICE ROSS: Yes.

PN106

MS BHATT: So the proposed wording in both instances it should say "200 per cent".

PN107

JUSTICE ROSS: Not 250?

PN108

MS BHATT: Not 250. Someone in our office was feeling very generous that day, but it should say 200.

PN109

JUSTICE ROSS: All right. No, no problem. Well, I've noted that. Anything further? All right, thanks very much for your attendance. I'll adjourn.

ADJOURNED INDEFINITELY [11.49 AM]