PN1462

JUSTICE ROSS: All right, my apologies for the delay. I just got caught up in an earlier telephone conference that took quite a bit longer than I thought it would. Can I get the appearances for the record, beginning in Melbourne and then in Sydney?

PN1463

MS L SVENDSEN: Svendsen, L, for the Health Services union.

PN1464

JUSTICE ROSS: Thank you.

PN1465

MS J BAULCH: Baulch, J, for APESMA.

PN1466

MS K BIDDLESTONE: Biddlestone, K, for the SDA.

PN1467

JUSTICE ROSS: Thank you, and in Sydney?

PN1468

MS S WELLARD: It's Wellard, initial S and Light, initial J, for the Pharmacy Guild of Australia.

PN1469

JUSTICE ROSS: Thank you, and in Canberra?

PN1470

MR S HARRIS: Your Honour, Harris, S.

PN1471

MR HARRIS: Just - - -

PN1472

MS Z BLANDFORD: Blandford, Z, for the Pharmacy Guild - - -

PN1473

MR HARRIS: Just observers, your Honour.

PN1474

JUSTICE ROSS: All right, thank you, and in Adelaide?

PN1475

MS K VAN GORP: Van Gorp, K, for Business SA.

PN1476

JUSTICE ROSS: And on the phone we have Ms Thomson from ABI, is that right?

PN1477

MS THOMSON: ABI New South Wales Business Chamber, your Honour.

PN1478

JUSTICE ROSS: Look, as I indicated in the material that went out, the main purpose of today, or this conference, is to work out what the next steps are and how to progress the matter further. Look, in reviewing the material can I make some general observations about how we might progress it, and then test that with each of you. The unions have raised the issue about the interaction between - well, really seeking a revised exposure draft incorporating the plain language changes and then an opportunity to comment on that as a document. I think that would be a useful step in the process because that would also allow us to have an opportunity of considering some of the preliminary views that have been made and putting them back to the plain language expert; and it seems to me there are some that on their face, they're changes that should be made, others that might be more contentious, and that applies to the range of the submissions that have been put in. For my part I think it would be useful to then circulate that document and see where we go.

PN1479

I think in parallel to that there are two other issues. One - and that would then allow us, if we have the revised exposure draft document as effected by the plain language PARLIT- I'm sorry if you've got my back, but that's - I can't sort of swivel around constantly, so I apologise for that. But that would also - that document would provide the basis then to go through the range of other issues about the exposure draft. But a number of parties have foreshadowed that there are some other issues, leave aside the plain language PARLIT, about the translation of the current award into the exposure draft about which they have concerns.

PN1480

So that process would allow you to do that. I think that is in part a conference based process. I think it would be best done probably over half a day or a day with some written material put in first, and then I would sit down with all of you, hopefully all in the one place face to face, and we'll just go through so we can get an understanding of what the concerns are and try and resolve as much of that as we can. There are two other aspects then. The matters that can't be - where there's a clear difference of view that's not agreed between the parties then the matter would have to be determined and there would be a Full Bench that would determine that issue, and I will constitute that Bench in the not too distant future.

PN1481

It would seem that in this award it would make sense just to have the one Bench do both the finalisation of any outstanding issues that might be technical or drafting and also the substantive issues that are outstanding, rather than have you go through the substantive issues going somewhere else and then doing that. Whilst I'll chair the conferences and preside on the Full Bench I want you to be clear that in the conferences a number of you have raised issues about there's a difference in legal intent. ABI has raised some, the unions have raised some. I'm not going to be expressing any views about that in the conference.

PN1482

I think you can explain your position, and there might be an agreed - there might be a consensus around it but I think the question of whether in fact there has been a legal change or not is one that really - it's a submission based argument and a Full Bench matter, and so I think the conferences will be more facilitative to try and see the extent to which we can get agreement between all the parties. It won't be determining any issues, so to that extent I won't be expressing a view about the merits of it et cetera.

PN1483

MS BAULCH: Can I ask you just one question?

PN1484

JUSTICE ROSS: Yes, yes, certainly.

PN1485

MS BAULCH: If the parties reached agreement on a provision that was different to what the plain language people had come up with.

PN1486

JUSTICE ROSS: Yes.

PN1487

MS BAULCH: Would that be acceptable to the Commission?

PN1488

JUSTICE ROSS: No. It's the same in every other award review process.

PN1489

MS BAULCH: Yes.

PN1490

JUSTICE ROSS: If by acceptable you mean is that going to determine the question, no is the answer to that.

PN1491

MS BAULCH: Thank you.

PN1492

JUSTICE ROSS: If it means is it something that we would have regard to, then yes, plainly we would.

PN1493

MS BAULCH: Of course.

PN1494

JUSTICE ROSS: And the fact that all the parties have a view about it is obviously a matter of significant weight. But it's not a determinative question because - - -

PN1495

MS BAULCH: No, I just wanted to get a feel for the conference process.

PN1496

JUSTICE ROSS: Yes, yes, look - and probably that's a different - and in the conference I'd be recording the agreement.

PN1497

MS BAULCH: Yes.

PN1498

JUSTICE ROSS: But I don't want to mislead anyone into thinking that that's - - -

PN1499

MS BAULCH: Ticked and - - -

PN1500

JUSTICE ROSS: - - - then done and dusted.

PN1501

MS BAULCH: Yes.

PN1502

JUSTICE ROSS: It would be a matter then for the Full Bench to raise questions and test that out.

PN1503

MS BAULCH: Yes. Good.

PN1504

JUSTICE ROSS: And that's probably the fundamental difference between this process and awards under a previous system.

PN1505

MS BAULCH: Yes.

PN1506

JUSTICE ROSS: Under a previous system if the parties reached a consent position in the resolution of their dispute then, you know, invariably the Commission would - - -

PN1507

MS BAULCH: Would (indistinct).

PN1508

JUSTICE ROSS: - - - would give effect to that and that would be that.

PN1509

MS BAULCH: Yes. That's why we've got some funny provisions.

PN1510

JUSTICE ROSS: Yes. No, you're not unusual in that sense.

PN1511

MS SVENDSEN: No.

PN1512

JUSTICE ROSS: There are some specific provisions that clearly have been - have got a history and et cetera. So that would be broadly the process and I would envisage it being done in this sequence, that we would provide the revised exposure draft, we would seek comments from the expert about the issues that have been raised on the drafting. We won't seek comments from him about the proposition that it changes the legal effect, okay?

PN1513

MS BAULCH: Yes.

PN1514

JUSTICE ROSS: That proposition I might - I'll make this I suppose criticism of all the submissions. It's not enough to simply assert that it changes the legal effect. Ultimately you're going to have to put an argument as to how do you say it changes the legal effect, what do you say the current clause means in the award versus what the clause that's proposed means, so that the Bench gets a better understanding of the argument.

PN1515

MS BAULCH: Yes.

PN1516

JUSTICE ROSS: So I would intend that to be the first step. As for timelines I would think we'd endeavour to get that to you by the end of July, probably mid-July. So if we can get it to you earlier we will, but that would be the outside proposition. That then would provide the document about which we can have the debate about the plain language. At the conference level, plain language and also about the other translational issues that the various parties have got a view about, so that we'll have a discussion about that. In the meantime there doesn't seem to be any reason why you can't run in parallel the substantive issues, because it looks as if one of the unions' substantive - I'll come to the Pharmacy Guild substantive issues in a moment.

PN1517

One of the unions' substantive issues is before the casual part‑time Full Bench. The others in relation to the additional form of leave et cetera, those couple of issues, there's no reason why they can't be heard and determined while we're going through the other process, if that's what you wish. They can be dealt with as soon as you're ready to run it is really the issue because that will just be a merits arbitration. In relation to the Pharmacy Guild substantive matters, most of those are being dealt with by the penalty rates Full Bench. Now other than those penalty rate matters are there any other substantive award changes that the Pharmacy Guild is seeking?

PN1518

MS WELLARD: Your Honour, we also have a matter before the part‑time and casual Bench.

PN1519

JUSTICE ROSS: You do, yes.

PN1520

MS WELLARD: That deals with minimum shifts for school aged or children - people at school. We also have - and I was going to raise this because a statement was issued I think just the other day with respect to annualised salary clauses.

PN1521

JUSTICE ROSS: That's right. Yes, that will be dealt with by a separate - - -

PN1522

MS WELLARD: There is an existing annualised salary clause in the Pharmacy Award that I think is missing from that list that was in the statement and there is - it only applies to pharmacists though, and the Guild seeks an extension of that clause more generally to all employees covered by the award.

PN1523

JUSTICE ROSS: That's right. I thought your application was referred to that Full Bench, but if it hasn't been I'll make an amendment and that will go to that Full Bench as well, both to review the current clause but also to deal with the Pharmacy Guild's application to extend its operation. Were there any - - -

PN1524

MS WELLARD: I think that means then, your Honour, that yes all of the Guild's claims are advanced before other Benches.

PN1525

JUSTICE ROSS: Okay, so it's really your couple. Are there any other employer organisations that have any substantive claims?

PN1526

MS BLANDFORD: No, your Honour.

PN1527

JUSTICE ROSS: Yes, I don't recall there - - -

PN1528

UNIDENTIFIED SPEAKER: No, your Honour.

PN1529

JUSTICE ROSS: - - - being anything else other than the Pharmacy Guild. Well, that really - and you don't need to answer this now, give some thought to - - -

PN1530

MS BAULCH: Sir, there's our work value claim.

PN1531

JUSTICE ROSS: Well, it's how you want to pursue it.

PN1532

MS BAULCH: Yes.

PN1533

JUSTICE ROSS: It's really if you can perhaps do it this way. Have a discussion with the employers about any proposed directions that you seek. Seek to get a consent position on that and if you can then write to me indicating what claims you're pursuing and some proposed directions. If you're not able to get anywhere in a consent position on the directions, what I'd simply do is once I get your correspondence when you indicate what it is you're going to be pursuing - - -

PN1534

MS BAULCH: It's in the - - -

PN1535

JUSTICE ROSS: Yes. No, I know. But it's really the proposed directions and how long you think it might take, those sorts of issues.

PN1536

MS BAULCH: Yes, okay.

PN1537

JUSTICE ROSS: What I want in the correspondence is what is the nature of the case; can it be evidence based, do you have an idea about how many witnesses you're going to call, what is your proposed directions for the filing of witness material. Generally it would operate on the basis that the witness statement would be the evidence‑in‑chief of the witness. So once you get an idea of - - -

PN1538

MS BAULCH: Yes, like the penalty rates process.

PN1539

JUSTICE ROSS: Exactly right - well, hopefully shorter.

PN1540

MS BAULCH: Yes. I promise. Promised.

PN1541

JUSTICE ROSS: But once you get an idea of the scope of your case then that correspondence will be put on the website, the employers will have an opportunity to have a look at it, they'll be able to consider their position as to what are they wanting to put in response, what do they say about your proposed directions and - - -

PN1542

MS BAULCH: I'll certainly discuss it with the employers before we write at all, to see if we can get agreement.

PN1543

JUSTICE ROSS: And then I'll probably have a short mention. It will probably be by telephone and that will be really just to confirm that you're all agreed about how you want to run the case.

PN1544

MS BAULCH: Yes.

PN1545

JUSTICE ROSS: And how long you think it's going to take.

PN1546

MS BAULCH: Yes.

PN1547

JUSTICE ROSS: And then we'll pick some dates. As far as possible I'll endeavour to get dates that suit the parties. There's also a calendar on the website that will show you when the other proceedings are running.

PN1548

MS BAULCH: Where is that, sir?

PN1549

JUSTICE ROSS: It's on the award mod. part of the website.

PN1550

MS BAULCH: I've never found it.

PN1551

MS SVENDSEN: Yes, it's online.

PN1552

MS BAULCH: You know where it is?

PN1553

MS SVENDSEN: Yes.

PN1554

MS BAULCH: Good.

PN1555

MS SVENDSEN: It's on the thing.

PN1556

JUSTICE ROSS: Yes. Yes, it's updated to show you as other Benches come on and are listed.

PN1557

MS BAULCH: Yes.

PN1558

JUSTICE ROSS: Because I don't want to be tripping - I don't want you involved in this one when you've got - when you're before the casuals Bench, and the Pharmacy Guild would be in the same position and probably ABI as well. Okay?

PN1559

MS BAULCH: All right.

PN1560

JUSTICE ROSS: So let's progress that matter. The timing is really a matter for you but I don't think you need wait until after we've resolved all these other issues before you run your substantive case.

PN1561

MS BAULCH: Because it might be - yes.

PN1562

JUSTICE ROSS: Well, it may take a while and you may as well get started really.

PN1563

MS BAULCH: Yes.

PN1564

JUSTICE ROSS: So just to recap, that would be the process. I think we've got an initial iteration of what the parties' reaction is to some of the plain language provisions. We'll ask the expert to have a look at those and I think some can be accommodated and he may have comments on the others. We'll wait and see. But those changes should be translated into a new revised exposure draft. That should be circulated. We'll probably circulate it with some directions about the filing of comments on it. Every party would be filing on a common date and then every party would be replying on a common date. Once the replies have come in then we'll have a conference.

PN1565

What I'll probably do is when the revised exposure draft is released I'll put out draft directions and give you three or four days to comment on the draft directions, because you'll be in a better position to know how long you want to look at it, how long it's likely to take. So I'll have a punt at it; and have a discussion between both groups and if you don't think it's enough time or you think it's too much time or the date doesn't suit you, I'd rather you discuss it amongst yourselves, sort it out, and I'll try and accommodate whatever you collectively come up with. Okay?

PN1566

MS BAULCH: Okay.

PN1567

JUSTICE ROSS: I think the other issue is the Part B. Well, that's a separate process and we'll be dealing with that, and everyone who has got an interest will have an opportunity to say what they want to say about that, and we'll be proceeding with that relatively slowly.

PN1568

MS BAULCH: Okay.

PN1569

JUSTICE ROSS: We'll probably be dealing with it issue by issue, just taking our time and working our way through it. But that involves a broader range of - - -

PN1570

MS BAULCH: Yes.

PN1571

JUSTICE ROSS: - - - of parties. For the moment I just want focus on getting group 1 and 2 done, starting work on this, getting the annual leave issue resolved, getting time off in lieu resolved and then we'll start some time in July a process around where we're going with the part B plain language part of it and with the other awards.

PN1572

MS BAULCH: Yes, that's fine.

PN1573

JUSTICE ROSS: Okay? So that's broadly how it might work. Well, that's what I wanted to say about how I thought the process may work. Can I get the views of the parties then around that? Perhaps those in Melbourne first? Are you content with that as a way of approaching it?

PN1574

MS BAULCH: I am, sir, yes.

PN1575

MS SVENDSEN: Yes.

PN1576

MS BIDDLESTONE: Yes.

PN1577

JUSTICE ROSS: Are there any other issues that - I mean, if there's anything that - I should make this to[sic] parties generally, if there's any assistance that we can provide for example the pre-reform - the pre-modernisation instruments, what they said or the history of a particular clause, then you should identify that perhaps when you're responding to the revised exposure draft. Okay? Can I go to the Pharmacy Guild?

PN1578

MS WELLARD: Your Honour, we broadly support the course that you've proposed this morning. Just with respect to the substantive matters though, I know that we're going to have some discussions with the union around the directions and the timing and those sorts of things, I just thought I'd raise it now given that we're all here. The Pharmacy Guild is not opposed to, and in fact thinks it would probably be a very good idea to have another conference to discuss those substantive matters perhaps before directions are set.

PN1579

The assistance of the Commission would be appreciated if possible. I think that there may be either - while we're not in a position to be able to agree to the union claims as drafted, we're certainly in a position to be able to discuss them and there might be other things that - you know, where we can reach some agreement or consensus.

PN1580

JUSTICE ROSS: All right. All right, well can - - -

PN1581

MS BAULCH: That's a good idea.

PN1582

JUSTICE ROSS: Yes, can I suggest if the union still go through the process, put in the material about what you want to pursue with a request for a conference, and I'll organise for a member to be available to assist you.

PN1583

MS WELLARD: Thank you.

PN1584

JUSTICE ROSS: Okay and we'll do that, Ms Wellard, before - the conference process would take place and then directions would be issued to deal with any remaining matters. Okay? So we'll see how the conference process goes.

PN1585

MS WELLARD: Thank you.

PN1586

JUSTICE ROSS: Was there anything else?

PN1587

MS WELLARD: No.

PN1588

JUSTICE ROSS: Okay, and ABI are you content? Well that - - -

PN1589

MS THOMSON: Yes, your Honour, that sounds fine.

PN1590

JUSTICE ROSS: All right, and Ms Van Gorp?

PN1591

MS VAN GORP: Yes. Thank you, President, that's - - -

PN1592

JUSTICE ROSS: All right. Okay, was there anything that Mr Harris or anyone else in Canberra wanted to add, or any questions?

PN1593

MR HARRIS: Nothing for ourselves, your Honour. Thank you.

PN1594

JUSTICE ROSS: All right. Okay, we'll do that and we'll just work our way through it. Okay?

PN1595

MS BAULCH: Thank you, sir.

PN1596

MS BIDDLESTONE: Thank you.

PN1597

JUSTICE ROSS: Thanks very much. Look, I should mention ABI had suggested that there be user testing in relation to the part B. I think that's very unlikely. It's a budget issue mainly. I'm certainly open to parties funding it but - - -

PN1598

MS BAULCH: Yes, right.

PN1599

JUSTICE ROSS: But I don't - - -

PN1600

MS BAULCH: Not from our side.

PN1601

JUSTICE ROSS: But I don't think - we took a significant budget cut in the recent budget round and that does constrain our capacity to engage in user testing. So I - - -

PN1602

MS THOMSON: Thank you for that feedback, your Honour. I'll let the people within our organisation know and see if I can get some enthusiasm for doing that. I don't know that I will though.

PN1603

JUSTICE ROSS: No. Pass the hat around at morning tea and see how you go.

PN1604

MS THOMSON: Yes that's right, your Honour. Thank you.

PN1605

JUSTICE ROSS: All right, thanks very much for your attendance and I'll, as I say, put out some draft directions for comment at the same time as we release the revised exposure draft. Thanks a lot.

PN1606

MS BAULCH: Thank you, sir.

PN1607

MS SVENDSEN: Thank you.

PN1608

MS WELLARD: Yes, thank you.

PN1609

MS BIDDLESTONE: Thank you.

ADJOURNED INDEFINITELY�� [10.00 AM]