PN1

JUSTICE ROSS: The conference is recorded. I might just take the appearances for the record, and then run through what we might do today. Can we start in Sydney.

PN2

MR S CRAWFORD: Crawford, initial S, from the AWU.

PN3

MR J LETCHFORD: Letchford, Jason - initial J for Jason - from the Shearing Contractors Association.

PN4

MS S McKINNON: Yes. Good morning, your Honour. McKinnon, initial S, from the National Farmers Federation.

PN5

MS K PEARSALL: And Pearsall, initial K, from the National Farmers Federation.

PN6

MS K THOMSON: Thomson, initial K, for ABI and the New South Wales Business Chamber, with permission.

PN7

JUSTICE ROSS: Thank you. And I think we have South Australia, is that right?

PN8

MR C. KLEPPER: Yes, that's correct. It's Klepper, initial C, from Business SA.

PN9

JUSTICE ROSS: You may be looking at my back for much of the conference. I apologise for that. Is there anyone else?

PN10

MR KLEPPER: That's okay. I would just like to as, could I please request that parties speak into the microphones. It was a bit difficult to hear the person down the end of the table.

PN11

JUSTICE ROSS: Okay. Now, we've arranged for two documents to be distributed. I just want to explain the thinking in relation to these. The first is an updated summary of submissions which reflects, I think, submissions lodged on or before 5 pm on 24 June, it's headed 3 July 2016 at 3 pm. That has also been posted and electronically on the site, so you should have access to that.

PN12

The second document took a little longer than I anticipated because of the number of matters that have come in and trying to reconcile the positions, so what has been done here is a sort of a draft, trying to sort out where all these matters lie. It seems, you know, subject to perhaps some wording changes in some of the issues, we just go through the status in relation to the 119 items it has covered.

PN13

You will be pleased to know you're a long way short of the record. The On-Site Construction Awards has 300, so you're doing fairly well. It looks as if on this estimate about 54 are agreed. I will come to what I want you to do. I'm proposing to adjourn shortly for an hour or so to allow you to go through this, satisfy yourself that that's right, and we will talk about then what we will do when we come back.

PN14

It looks as if I've had been withdrawn. There are 17 which the issues are around the standard form template or previous Full Bench decisions. On those, we will park those issues; various parties can consider their position; and I will explain the further process. If you really want to challenge those then it's a matter for you, but you will need to argue that case.

PN15

There are then 43 there are not agree. Now, in the not agreed - that's in the bottom half of the page - we've grouped them by topic. In terms of the process today - and, look, we will go - I'm content to go as long as you want to go. I think you do reach, with these sorts of exercise, a point of fatigue, and I will leave that with you to make that assessment.

PN16

I don't fatigue easily, but then I'm not the one who's having to make decisions on behalf of their organisations, you are. And you may need to consult, and you may want to do this as a two or three-stage process, and that's absolutely fine.

PN17

What I'm proposing is this, that the first step is we will adjourn till 11. I want you then to be very clear about the agreed items. So when we come back I want to sign off on the agreed items; I want you to identify which ones might be subject to wording, and the items that are withdrawn; and then just check the 17 previously determined by Full Bench et cetera, that they're categorised correctly.

PN18

I'm not proposing to have a debate about those today, but if you think one of those is in another category, then let me know; and let me know about the 43 that are not agreed. This is an iterative process; this isn't, by any stretch, the last conference we will have, but I have found with the balance of the matters I've dealt with, matters that are not agreed at the beginning, they tend to narrow.

PN19

Parties themselves look at it, revise their position and make a judgement about whether pursuing it is with the effect of your organisation, and other parties can come round and agree once they understand more fully what the issue is. So that's the process in the hour.

PN20

Then we will come to deal with those items that I've got listed optimistically commencing at 10, and then the ones in the afternoon. I've done some separate documents on some of these, which I will get to South Australia as well. The only thing that document does is, for example, on coverage we've just extracted the items on one piece of paper and we've got the split sheet of the current award and the exposure draft.

PN21

The coverage items, at least to my mind, don't seem to be an area of great contest, it's more about how you get consistency with some other awards and the approach you adopt; and there are various other issues that we will try and go through. In terms of where we go to from after today, we would then publish an updated summary which would just take out all of the agreed and withdrawn items, and simply focus on - and it will identify those determined by previous Benches in a separate part, and then it will focus on the not agreed issues.

PN22

We would also publish a revised exposure draft that would again pick up agreed items. If the agreement doesn't go to matters of wording, we will have a go at the wording. So we will just keep going down that process until we reach a point where you collectively think we've gone as far as we can go through this process, and then we will talk about how we will resolve the outstanding issues. That will depend on their nature.

PN23

Given we've had the learner shearer matters - I've drafted it, but the other two Bench members are on leave, so I can't get any finalisation, but I would think sometime next week you will have an answer on that. The annualised salary is the only other outstanding thing, and that is swept up in the other Full Bench.

PN24

So I don't think there are any substantial claims. That's not to say, you know, it's a review process, so if something comes up that is a substantial issue and you want to press it, then you're free to do that and we will issue directions. The balance of these matters, at least on the look of them, seem to be matters that can be dealt with by written submission and determined by the Full Bench on the papers.

PN25

I do need to put your notice that - I mean, I will seek to facilitate an agreement and offer some suggestions, but even where the parties reach an agreement, that doesn't mean the Full Bench is necessarily going to agree with the resolution the parties have agreed on. That's because they're not respondency-based awards, they're regulatory instruments.

PN26

Having said that, if for whatever reason the Full Bench forms a different view or decides to raise some questions or issues about it, then that will be clearly put to you, so you will be put on notice that: well, look, you know, the Full Bench isn't sure about this; of those matters will be brought back on for either oral hearing or a further opportunity.

PN27

As is normally the case also, in some of the matters in dispute there are a raft of views. These things don't usually split, oddly enough, between employer organisations on the one side in unions on the other. Often parties take different views of different things, particularly when we come down to the drafting; and we will just work our way through that, see what extent of compromise there is, and then with the new material going out, it gives parties an opportunity to consider their position again.

PN28

What I would probably do before publishing a revised exposure draft and summary, just give you seven days after the conference to think about whether there's any change operation that you want to let us know about, and then send that in. We will take that into account and get a better idea of what it is you want to pursue and what you don't. Okay. Is everyone - anything about the process? We will try and make it as painless as possible.

PN29

If, during the course of the day, you want breaks, that's fine, let me know; and if there's any assistance you need from us, whether it's USB ports or whatever it might be, just let my associate know. Okay? Okay in South Australia? You've got that material as well?

PN30

MR KLEPPER: Yes, I've got the material, thank you.

PN31

JUSTICE ROSS: All right. Well, I will see you at quarter past 11 - it's quarter past 10 now. If you require more time to do it - I think it's worth spending some time initially just to clear that stuff off the decks. I think it's a more efficient process, given the number of matters, then simply going through the items by items. I think we'd better off focusing on subject matters. So let's deal with the agreements, then let's focus on the subject matters and see how we go.

PN32

If you have any time left in the lead-up to a quarter past I would encourage you to have a discussion about this coverage issue because that does seem to me to be one - look, you know, coverage is always something - organisations, you know, would rather eat their children than compromise on, but it doesn't seem as if this is the case when you're fighting about extensions or everything else; the real issue is how do you delineate, for example, the Wine Industry Award from this award? How do you make that clear?

PN33

There has been a suggestion made by the AWU about the drafting style used in the On-Site Construction Award. I wouldn't normally direct parties' attention to the On-Site Award as a model of simplicity, but that might be an option in this case. Okay. So have a think about that, and we will work our way through when I come back. All right. Thanks very much, I will see you at quarter past 11.

SHORT ADJOURNMENT [10.15 AM]

RESUMED [11.41 AM]

PN34

JUSTICE ROSS: All right. Let's just start firstly with the matters that were categorised as agreed. Where are we up to with those?

PN35

MS McKINNON: We have gone through the list and all of those are correct. There is also item 7, which is agreed, I understand it - partly agreed, partly withdrawn - which deals with facilitative provisions.

PN36

JUSTICE ROSS: Okay. Just bear with me for a moment.

PN37

MS McKINNON: The idea is that initially we had questioned the utility of the clause, but I think there's a broader issue in play; so the facilitative provision, I think it will stay. But what we do need to do is go through the table and make sure that it has got all the facility provisions in it.

PN38

JUSTICE ROSS: Yes, I see. And they're properly characterised.

PN39

MS McKINNON: Exactly.

PN40

JUSTICE ROSS: So it's really that issue. So we will have another look at that as well. And what we might do on item 7 is if each party with an interest has seven days to advise as to whether there are any changes along the lines you've outlined.

PN41

MS McKINNON: Yes. Thank you, your Honour. There are a number of agreed items that are agreed subject to wording, and I will just give you that list, if that's useful. It's 16, 17, 19, 48 and 83.

PN42

JUSTICE ROSS: And with the "subject to wording", are those instances where wording has been provided and they just want to be some discussion, or no wording and it's the principle that's agreed?

PN43

MS McKINNON: Certainly in each case the principle is agreed. I most cases I think there is wording provided, but where there have been two alternative approaches, we just need to have a look in more detail.

PN44

JUSTICE ROSS: How do you want to deal with those matters? Do you want to have ‑ ‑ ‑

PN45

MR LETCHFORD: If I might suggest, I think Sarah's across most of - the NFF is across most of the issues, and there are only one or two where we had sort of further discussion, and we agreed that the NFF - was that Stephen? It may be. In terms of process, if Sarah maybe puts them forward firstly and we just tick them off ‑ ‑ ‑

PN46

JUSTICE ROSS: Why don't you ‑ ‑ ‑

PN47

MS McKINNON: We can ‑ ‑ ‑

PN48

JUSTICE ROSS: ‑ ‑ ‑ with those two and see what you come up with. It won't lock anyone else in, but if you can - look, if we can tidy up those things in the seven days as well, then ‑ ‑ ‑

PN49

MR LETCHFORD: That would be great.

PN50

JUSTICE ROSS: ‑ ‑ ‑ so much the better, and we will then reflect that in the new exposure draft. That will give parties that may have an interest outside your three organisations an opportunity to comment on it. Okay?

PN51

MS McKINNON: That sounds good. Thank you. And then 101 and 103, the AWU just wanted an opportunity to have another think about that, given the comments in the summary of submissions.

PN52

JUSTICE ROSS: 101 and 103, so they're not quite agreed. AWU to confirm in seven days.

PN53

MR CRAWFORD: Yes, that will be fine.

PN54

MS McKINNON: And 112, we just fell up on a - the principle is agreed. This is a translation issue from a fraction to a decimal point, and the decimal - the percentage had been incorrectly calculated, so it went from 1/38th to 20 per cent, so it should be 2.6 per cent or 2.63 per cent, and we just weren't sure what the Commission's preference was for decimal point places.

PN55

JUSTICE ROSS: I'm not sure either. Which one was that again?

PN56

MS McKINNON: That's 112.

PN57

JUSTICE ROSS: The national training wage.

PN58

MS McKINNON: Hang on, maybe I've got the wrong one. Sorry, 93. Yes, 93, sorry, that's the rounding issue.

PN59

JUSTICE ROSS: Got to have another look at that. There are some general rounding rules that apply for annual wage reviews. I'm not sure what the rounding rule is here, but we will have another look at 93.

PN60

MS McKINNON: Yes. There's no huge view one way or the other, we just thought we might leave that one to the independent umpire.

PN61

JUSTICE ROSS: We will give it ago. Well, the award review crew will put forward a suggestion for you to have a look at.

PN62

MS McKINNON: And 112 was dealing with the national training wage schedule, and there are some comments there about a broader review, so I think we're in the Commission's hands with that.

PN63

JUSTICE ROSS: Yes. I will be issuing a statement later this week about the national training wage generally across all awards, and that might provide an opportunity to look at them across all agriculture and all sectors. So that will probably deal with that.

PN64

MS McKINNON: Okay. So that's the A row, the matters agreed. In the withdrawn matters, all of those matters listed there are correct. In addition, 5 and 6 can go in the Withdrawn column, as opposed to the Not Agreed column.

PN65

JUSTICE ROSS: I will delete those from Not Agreed, yes.

PN66

MS McKINNON: And 114 is part agreed, part withdrawn. It's dealing with a capitalisation issue, which I think we've resolved, and a comment around the all purposes definition, which NFF withdraws.

PN67

JUSTICE ROSS: Okay. So 114 was in the Agreed, but that just requires some more work to finalise what the agreement looks like. Is that right?

PN68

MS McKINNON: The agreement is on whether "shearing shed" should have a capital in front of it, so we've agreed to ‑ ‑ ‑

PN69

JUSTICE ROSS: Let's progress it.

PN70

MS McKINNON: It's the big issues we've come a long way on today. So that part of 114 is agreed, and the remaining part, which is a change to the all purposes definition, is withdrawn.

PN71

JUSTICE ROSS: I see. Okay. So there's nothing left in that issue.

PN72

MS McKINNON: Nothing left, hopefully. The F column, there are - that's all correct. We just noted that item 10 was a complex issue for this award. This is the clause which just says you're employed as a full‑time, part‑time or casual under the award, and that's a fairly standard clause across awards, but in the case of the Pastoral Award it gets a bit murky in the shearing area around wool classers and shearing shed experts and daily hire and piecework rates.

PN73

So we had a discussion about it. I don't think we got to the end of the discussion, but it's probably - certainly needs more discussion to resolve whether or not we need that standard form clause in this award context.

PN74

JUSTICE ROSS: What sort of - so, you know, there are other classifications. What do you think would assist in clarity with it? Would it be an additional provision saying that, "In addition to the above classification or the above types of employment there are there other classifications in the award which are remunerated by piece rate or other arrangement?"

PN75

MS McKINNON: Potentially. The tricky part is the shearing part. You could just have a reference at part 8 noting that, you know, generally speaking it's full‑time, part‑time or casual, but in the Shearing Award part the mode of employment is quite different.

PN76

JUSTICE ROSS: It certainly is. How would you characterise the mode of employment in shearing?

PN77

MS McKINNON: We've had a discussion about it. I think we keep coming back to they are all paid a casual loading, which is built into the rate, but they're not casual in the ordinary sense in that there's a guaranteed payment, there's a generally understood practice of employment by the day ‑ ‑ ‑

PN78

JUSTICE ROSS: And there's an element of piecework. It's sort of an amalgam-type ‑ ‑ ‑

PN79

MS McKINNON: It's piecework, but if you don't make enough, you get more ‑ ‑ ‑

PN80

JUSTICE ROSS: You get a minimum, yes.

PN81

MS McKINNON: So it's sort of just a bit different in the shearing industry.

PN82

MS THOMSON: And they're engaged for the period of time as well, so it's the time ‑ ‑ ‑

PN83

MS McKINNON: And there is a time worked element in some cases, so maybe even if we - I don't know how the wording would work, but it's just sort of - we don't want an argument to come up to say, "Well, because you're not full‑time or part‑time or casual, we're going to ‑ ‑ ‑

PN84

JUSTICE ROSS: Okay. Well, leave that with us and we will - I will talk to the drafting crew about trying to come up with something that reflects the fact that the shearing part of the award, the employment arrangements, have a number of unique features and elements of both casual employees, piecework et cetera. I will see what I can do.

PN85

MR CRAWFORD: Can I just make the point, your Honour, that we don't entirely share that view. I mean, our understanding is piecework is basically a system of payment and it doesn't, in itself, alter the employment status.

PN86

JUSTICE ROSS: That's true.

PN87

MR CRAWFORD: I mean, in other awards; for example, I think in Wine and Sugar that we've had to deal with recently, there's scope for permanent employees, full‑timers or part‑timers, to be paid on a piecework bases.

PN88

JUSTICE ROSS: Yes, there is.

PN89

MR CRAWFORD: So we still think it is important for that distinction to be reflected, that you still presumably have an employment status, be it ‑ ‑ ‑

PN90

JUSTICE ROSS: You do, but ‑ ‑ ‑

PN91

MR CRAWFORD: ‑ ‑ ‑ permanent or casual, and you might accrue leave if you're permanent.

PN92

JUSTICE ROSS: But would you agree that the shearing part is not a - the way their work is organised and everything else, it's not a form of employment that you would find in other areas. It's an odd amalgam. And, look, one of the issues in this award that I think you will need to confront at some point is there's quite a bit of detail in the award that, on the face of it, I'm not sure why a minimum award would have that detail. And whether it's voting on stands and all of those things, why would they be in a minimum safety net award?

PN93

Now, in your argument on learner shearers you raise a point about stand allocations and everything else, and you need to be aware that that's something that I think the Full Bench is going to look at, standing back from the award and saying, "Well, why are we regulating these things?" It may suit you, but I'm not sure - or some of you - but I'm not sure that's a ‑ ‑ ‑

PN94

MR LETCHFORD: Jurisdictional coverage thing.

PN95

JUSTICE ROSS: No, it's not so much jurisdiction, it's about what's the role of a minimum safety net award. And you've got an award developed over time - frankly, largely by agreement between the three of you - to reflect the conditions that are operating, et cetera. And you're not alone in this, to some extent the On Site Construction Award has the same issues, but you shouldn't assume that as we go through it, that the Bench is going to be sanguine about all of that, because some of the conditions - provisions in this award are a bit unusual in the way they regulate what happens, particularly in shearing.

PN96

I've got no desire to touch the shearing calculation and the rate now that I finally have some understanding of it, but there are other bits of it that, you know, are not usual features in minimum rates awards. I'm not putting it any higher than that, but, you know ‑ ‑ ‑

PN97

MR LETCHFORD: While I don't seek to complicate things more ‑ ‑ ‑

PN98

JUSTICE ROSS: That's all right.

PN99

MR LETCHFORD: But it's something that we are debating, it's coming up about, you know, one in four stands ‑ ‑ ‑

PN100

JUSTICE ROSS: Well, that will be determined in a decision next week, so you will have that.

PN101

MR LETCHFORD: But I suppose my question is in this context, is that another thing that just fits into - like, if you're talking about allocation of stands, it's a nice practicality to either determine in the award whether we have a learner shearer or we don't, but is it in that box of saying: well, should it be in?

PN102

JUSTICE ROSS: Well, I think that's the point that your organisation makes in its submission on the learner shearers, that you've got some sympathy for trying to regulate this, but you just don't think it should be in the award. Well, I would encourage ‑ ‑ ‑

PN103

MR LETCHFORD: ‑ ‑ ‑ question that goes back to allocation of stands. We actually ‑ ‑ ‑

PN104

JUSTICE ROSS: I agree, yes, but I think that's an issue particularly the three of you need to think about. And it may be that - and, you know, whether it has any legal binding force or not, leave that aside for the moment, but it may be that the three of you can reach an agreement about: this is what we agree as to how shearing should operate; this is the standard contract, if you like, and the arrangements that apply, et cetera. And you, then, through your respective organisations, deliver that.

PN105

And that might be a convenient dividing line between the level of detail in the award and what might be - because, look, I'm not raising this to make life difficult for you. I think the issue becomes, though, that the nature of the award system shifted. It's intended more to be a minimum safety net with a set of prescribed matters; it's not in settlement of disputes. And that does require a bit of a look at: well, what have you got?

PN106

But there is another way through and, you know, frankly if your three organisations sign up to it, well, you will have as much chance of enforcing it as if it was in the award, because people will either do it or they won't.

PN107

MR LETCHFORD: Yes.

PN108

JUSTICE ROSS: So it's just something you might want to think about. That might also allow you to have more freedom to what you put in there and how it might work and all the rest of it, sort of unconstrained by whatever jurisdictional issues are going to come up here. Okay. So just as we go through it we will - at a subsequent meeting I will raise the issue and see where you've got to it. Ultimately it will be a matter for the Full Bench.

PN109

I don't have a considered view on it either, I've only just had - it has only, I suppose, being raised in my mind because of the nature of the submissions in the learner shearer issue has raised the question - well, okay, that's sort of an unusual provision, it raises a question about whether or not it should be in or not, that's all. There may be good reasons why it should be.

PN110

MR LETCHFORD: Was that - sort of background, but was that not when we went to modern awards, I thought that was the sort of - the process there was going to be stripping out all these things that are nice to have, however - - -

PN111

JUSTICE ROSS: Yes, but it - well, I don't think that was really the modern award process, it was more - and look, just the scale of it - prima facie, that's right, but at the end of the day the Benches dealing with these have to be satisfied that the award meets the modern award objective is themselves, they're not going to be bound by what a previous provision might have been. But prima facie, that's your sort of starting position, but we've got the statutory obligation to do it.

PN112

Look, I think most parties who are involved in - it wasn't so bad in Pastoral - you might not believe that, but it wasn't so bad - but you look at some of the other awards, Retail and the like, where you're trying to compress a large number of state and federal instruments into a single award. And you're dropping many thousands of awards - like, three and a half, 4000 - down to 122.

PN113

I'm not sure there was the time for that close analysis of - and we've picked up a number of those things. For example, we've removed a lot of NES inconsistency issues and everything else. I don't say that by way of criticism of the previous process, I'm just relieved I wasn't in it, because it just looked like ‑ ‑ ‑

PN114

MR LETCHFORD: Well, that's right ‑ ‑ ‑

PN115

JUSTICE ROSS: Well, also you had the request changing on a sort of regular basis. It just would have been mission impossible. But I think we are in a position now where we do need to look at those sorts of questions, that's all. All right. Sarah.

PN116

MS McKINNON: No, I think it's a point well made. The regime has changed over time and sometimes for the better, sometimes - but I would say I think that's really where we're up to - - -

PN117

JUSTICE ROSS: That's where you're up to.

PN118

MS McKINNON: And then we did start to have a look at some of the not agreed/further discussion areas but we didn't get into much detail there, so.

PN119

JUSTICE ROSS: Well, let me - I've got - let's start then with the coverage.

PN120

MS McKINNON: Is it this one?

PN121

JUSTICE ROSS: Yes, I'm just not entirely - yes, I think this deals with all of them and I think in South Australia you have the same set of materials. This doesn't deal with all the matters in dispute. It dealt with the ones that I got to, I suppose. So with the coverage one you've got firstly - the first document in that pile is simply an extraction of the issues that have been raised. The second document is the comparative table between the current award and the other, and there was supposed to be - which doesn't seem to be here - a copy of the Onsite Construction Award.

PN122

MS McKINNON: It's at the back of the file from memory.

PN123

JUSTICE ROSS: Right, okay. All right, the back of which one?

PN124

MS McKINNON: Of the coverage one. You may have lost one.

PN125

JUSTICE ROSS: Yes.

PN126

MS McKINNON: On that last page.

PN127

JUSTICE ROSS: So can we just go through this and see how we go. What is the issue in relation to - the wine industry seems to be a bit of a focus. You've seen - the coverage clause of the building and construction onsite simply operates by way of excluding the coverage under other awards.

PN128

MS McKINNON: Yes.

PN129

JUSTICE ROSS: And that might be a way through with this.

PN130

MS McKINNON: Yes, I think it is, your Honour. So the issue with the wine industry is that wine industry - the definition of wine industry has been fully set out in all of the agricultural awards.

PN131

JUSTICE ROSS: Yes.

PN132

MS McKINNON: But it's different just a little bit in each case. So in the Pastoral Award it has dropped off the planting of wine, grape vines.

PN133

JUSTICE ROSS: Yes.

PN134

MS McKINNON: And it doesn't seem to me that that's an intentional omission. It's probably just in the transcription at some point it dropped out. But it seems clear to us that the intention is that if you're covered by the Wine Industry Award you're not covered by the Pastoral Award.

PN135

JUSTICE ROSS: Yes.

PN136

MS McKINNON: Because you could arguably otherwise Fall in it because of - - -

PN137

JUSTICE ROSS: Does the same intention - look, I think it might be worth thinking about a draft along the lines for building and onsite construction for this reason, that then if there's any change in the coverage of that you don't have to then start to think "Well, I've got to vary five other awards".

PN138

MS McKINNON: Exactly.

PN139

JUSTICE ROSS: But I suppose that depends on identifying clearly what the areas of carve out are.

PN140

MS McKINNON: Yes.

PN141

JUSTICE ROSS: The Wine Industry Award is one. There's a Silviculture Award, there's an Aquaculture Award, sugar, horticulture.

PN142

MS McKINNON: Yes.

PN143

JUSTICE ROSS: If you took those would that meet - I mean we can put it in the draft and see, and give you a chance to check it, because desirably there's going to be a clear boundary and that seems to give the clearest boundary.

PN144

MS McKINNON: That I think would be our preference and what we haven't done is a direct comparison for example of the aquaculture definition.

PN145

JUSTICE ROSS: Yes.

PN146

MS McKINNON: Which seems quite complex. But it does seem like the whole point of these carve outs was to reflect the fact that they're also dealt with in another award.

PN147

JUSTICE ROSS: Well, what we can do with this one is - and I'll come and seek comments from anyone else in a moment - is we redraft 3.3 along the lines of the building and construction to take out those awards. We'll also prepare a document for you which will set out a comparison side by side of your current coverage clause and the coverage in those awards. So you'll be able to see - and we'll do a mark‑up of any difference and that way you'll know whether there's an issue. I suspect any issues that there are, are more likely to have arisen from the fact that there has been some slight coverage change in another award that just hasn't been picked up.

PN148

MS McKINNON: Yes, potentially.

PN149

JUSTICE ROSS: So the NFF's happy enough to look at that?

PN150

MS McKINNON: Yes, very happy.

PN151

JUSTICE ROSS: Okay, what about - - -

PN152

MR LETCHFORD: We're (indistinct) of the winery, so just to - - -

PN153

JUSTICE ROSS: Yes. Yes, sure.

PN154

MR KLEPPER: Yes, sorry.

PN155

MR CRAWFORD: We're fine with that approach. The Seafood Processing Award might be another one that has to be considered because there is reference in that wording to processing of - - -

PN156

JUSTICE ROSS: Which one is it?

PN157

MR CRAWFORD: The Seafood Processing Award.

PN158

JUSTICE ROSS: So to be clear we'd have wine, silviculture, sugar, aquaculture and horticulture and again, look we'll provide it to you and with those comparisons and see what you think about it. Is that okay with Business SA as well?

PN159

MR KLEPPER: Business SA supports that approach.

PN160

JUSTICE ROSS: Right. Okay, and look you know, we should be able to work through it with a bit of will. There's no real fight about coverage per se.

PN161

MS McKINNON: No.

PN162

JUSTICE ROSS: It's just trying to make sure that the intent where you've carved out those other areas is accurately reflected in the award.

PN163

MS McKINNON: Exactly.

PN164

JUSTICE ROSS: If I can go to - I don't have a document for it because there was only one matter, but item 9 - so there has been some further explanation provided because the comment was made that you're unsure about the question, and I think that's fair enough. You can see from the comment that it's not clear to whom the general conditions of employment apply as there seems to be some inconsistency with some of the other provisions. So you've got a general provision and then in other parts of the award you've got a specific provision which is different from the general, and it's really do you have a view about how to deal with that. Do we say in the general for example - I'm assuming this is right. I've not checked it but assuming the general has got 10.2(c), meal allowance after 14, 1.5 hours, then we can say "except for piggery attendants see clause 32.8".

PN165

Or it may be that the language is subtle, the different - what I don't know is how much of a problem it is for you, and it may be that you're able to agree "Just have general conditions for everyone and drop the smaller variations because in the scheme of things they don't make much difference". But I'm not in a position to make a judgment about that because I don't know what happens, what the practical effect is and how much - whether you - I want you to think about balancing the benefits of consistency so everyone in the industry knows this is the go across the board versus, you know, whether you want to retain the differences and what is the reason for retaining the differences.

PN166

MS McKINNON: We did have a discussion about this and what - we had a similar issue arise I think in the Sugar Industry Award and in that case we were - or it might have been wine, I can't remember - and in that case we took one of them out so that we didn't then have an inconsistency.

PN167

JUSTICE ROSS: Yes.

PN168

MS McKINNON: So that's a possibility.

PN169

JUSTICE ROSS: Well, do you want us to identify - we've just given an example there. Do you want us to identify all of the instances and then send that to you, and then ask you to consider whether you want to - what you want to do with it?

PN170

MS McKINNON: That would be useful, if possible, because I think that the industry practice is generally if you're in a particular type of employment, say piggeries, you go to the piggery section. But having said that, it does make sense to remove the scope for argument about which rule applies.

PN171

JUSTICE ROSS: Yes. Look normally the specific would, you know, just as a matter of construction, but why take the risk and have the debate if we can tidy it up.

PN172

MS McKINNON: Exactly. Yes.

PN173

JUSTICE ROSS: Are there any other comments on that?

PN174

MR CRAWFORD: No, I mean we think if there's for example the only overlapping issue is the meal allowance then there might be scope to rationalise the one clause. But if there are several conditions of which there is overlap then it might be something to consider would be a preamble along the lines of "Subject to a more specific condition applying in Part 5" six, whatever, "the following conditions in the general part apply to all employees" something along those lines.

PN175

JUSTICE ROSS: Well, yes, we'll identify the differences and it may be it's a swings and roundabouts issue and, look, I mean ultimately the Full Bench may also say "Well, these are minor differences and silly so we're going to do it that way" and go bang in an effort to try and make it simpler and easier to understand. But it really depends on at the moment what I don't know is, you know, what are we talking about? Is it there's a meal allowance after one and a half hours versus one hour 40 minutes?

PN176

MS McKINNON: Two hours I think.

PN177

JUSTICE ROSS: Two hours.

PN178

MS McKINNON: And there's some feedback from industry that it's not actually a practically useful clause anyway.

PN179

JUSTICE ROSS: I think that's going to almost certainly be - yes, most businesses will sort out their own broad arrangements. I've well become accustomed to the fact there's a limit to - we might say that's what - yes, but there will be something worked out and that also should condition both of you thinking about this issue to try and get some sensible outcome.

PN180

MS McKINNON: Yes, certainly.

PN181

JUSTICE ROSS: All right, so anything from Business SA? As I've indicated we'll put together a document identifying all of the inconsistencies and then seek comment on that and that can - - -

PN182

MR KLEPPER: No, that sounds good to Business SA, thank you.

PN183

JUSTICE ROSS: Okay, that can be discussed at the next meeting. Types of employment, is that the one we've spoken about?

PN184

MS McKINNON: This is an interesting issue. So there does seem to be a practice across some of the awards that when you're defining a full‑time or part‑time employee you define it by reference to 38 ordinary hours a week as opposed to just 38 hours a week, and I think there has been a suggestion that the word "ordinary" be inserted here into our definitions. But that led us to a discussion about what happens for a part‑time employee who for example is only employed on Sunday and there are no ordinary hours on Sunday. So are they a full‑time, are they a part‑time? No, because they're only - they're not employed to work ordinary hours. Are they a casual? Not necessarily. What are they? It's really just do we need - from NFF's perspective the word "ordinary" imports the type of payment you get for the hour rather than defining - - -

PN185

JUSTICE ROSS: The numbers.

PN186

MS McKINNON: - - - the employment. So from our point of view we would prefer it not to go in.

PN187

JUSTICE ROSS: Well, I don't think - it's not in the exposure draft at the moment. So is that the extent of the debate, the AWU wanting the reference to ordinary hours?

PN188

MR CRAWFORD: Yes, because it does - - -

PN189

JUSTICE ROSS: But how does that fit with your earlier observation about piece rate, because ordinary hours goes to the question of payment not to the characterisation of the employee?

PN190

MR CRAWFORD: Well, it goes to guarantee of hours per week. It also goes to leave accrual and payment.

PN191

JUSTICE ROSS: Why does it go to guarantee of ordinary hours per week because - - -

PN192

MR CRAWFORD: Well, a full‑time employee is guaranteed ordinarily 38 ordinary hours per week, as opposed to overtime which is not guaranteed, and if you're not provided with 38 ordinary hours you've got an under‑payment claim.

PN193

MS McKINNON: Or you just get paid like - - -

PN194

JUSTICE ROSS: Yes.

PN195

MS McKINNON: So you're employed for 38 hours a week and for me when you look at the Act and the NES the weekly hours are set at 38 but not 38 ordinary hours. It's 38 hours. I think the - it mainly comes up in the span of hours issue. So you might always be employed to work just one hour outside the span so that arguably makes you a part‑time employee even though you're working every week 38 hours, because you're only working 32 ordinary hours and one hour of overtime every day.

PN196

MR CRAWFORD: But the example that you gave before about someone who only works on a Sunday, I mean would they accrue leave on your understanding?

PN197

MS McKINNON: Well, if they were a permanent employee they would, and if they were a casual they wouldn't. So you might have someone who does the Sunday milking for example. Now I don't know that there's a restriction there but, you know, just as an example if somebody is working just on Sundays and those hours for some reason are defined as not ordinary - - -

PN198

MR CRAWFORD: As overtime?

PN199

MS McKINNON: So they're paid at overtime but they're still just hours of work.

PN200

MR CRAWFORD: Well, yes, but there's implications in terms of leave, superannuation, all types of things. I think it is dangerous territory to be conflating the two concepts. I mean my understanding is in other awards you always talk about ordinary hours.

PN201

JUSTICE ROSS: What problems have you struck? The exposure draft just reflects the current award.

PN202

MR CRAWFORD: Well, I mean that's sort of - with a lot of this stuff that comes up that can be put but it is a problem that we've identified because our understanding is that a full‑time employee should be guaranteed 38 ordinary hours of work per week.

PN203

JUSTICE ROSS: No, they're to be paid for 38 hours.

PN204

MR CRAWFORD: Well, if you want to put it that way that's fine. But yes - - -

PN205

JUSTICE ROSS: Yes, yes.

PN206

MR CRAWFORD: Yes, and if they're not paid or given that work then they've got an underpayment claim.

PN207

MS McKINNON: But their guarantee under the award might be more than ordinary hours, you know, because if they always - - -

PN208

MR CRAWFORD: You can go above the award. There's no problem with that.

PN209

MS McKINNON: But you might legally have to because of the way that the hours are worked. So anyway, that's the nub of the issue.

PN210

JUSTICE ROSS: Yes.

PN211

MS McKINNON: We think that "ordinary" complicates the definition unnecessarily and the rest of the award does deal with when you're working those hours you get paid this amount.

PN212

JUSTICE ROSS: Yes, the rest of the award deals with the payment for work at particular hours and days.

PN213

MS McKINNON: Exactly.

PN214

JUSTICE ROSS: Yes. Well it on the face of it doesn't sound like peace is going to break out anytime soon so we'll park that one as one that can be dealt with by written submissions. Does that cover all of that topic, types of employment? Is that what it's about essentially?

PN215

MS McKINNON: Yes, it is. We have agreed on an average of because there are averaging hours in the award.

PN216

JUSTICE ROSS: Which one is that - - -

PN217

MS McKINNON: So it's also in 6.3(a).

PN218

JUSTICE ROSS: Just bear with me for a moment. So which of the items? Is it 11 - - -

PN219

MS McKINNON: Item 11, yes, sorry, your Honour.

PN220

JUSTICE ROSS: Yes.

PN221

MS McKINNON: NFF submitted that the words "an average of 38 hours" be inserted because in the Pastoral Award it's quite common for employees to average their hours over a four week period.

PN222

JUSTICE ROSS: So where would you put that in the exposure draft clause?

PN223

MS McKINNON: In 6.3(a).

PN224

JUSTICE ROSS: Yes. "Work an average of 38", but that would need to be - you need to specify over what period.

PN225

MS McKINNON: That's right. So:

PN226

A full‑time employee is an employee who is engaged to work an average of 38 hours per week.

PN227

And I think that's - you don't have to lock in the average there because that's done later in the hours of work provision and that depends - like that is different in each part of the award. So for example 26.1 of the exposure draft deals with averaging of hours for farm and livestock hands and so the average hours are fixed by agreement but can't exceed an average of 38 hours per week over a four week period.

PN228

JUSTICE ROSS: Yes.

PN229

MS McKINNON: So it's really just that in 6.3 if you don't have the words "an average of" then a full‑time employee is only an employee engaged to work 38 hours each week.

PN230

JUSTICE ROSS: Yes, I guess my concern is that it might be misleading if it just says here an average of 38 and then you've got later that the average is worked over - is it accurate to say:

PN231

Engaged to work an average of 38 hours per week worked over a period of up to four weeks.

PN232

Or is that what the rest of the - which one are you - - -

PN233

MS McKINNON: 26.1, I mean yes, I don't - I'm just trying to remember whether the award says you can't average over a longer period but I think certainly four weeks is the standard in this industry.

PN234

JUSTICE ROSS: Yes. Well, if we say:

PN235

...an average of 38 hours per week over a four week period.

PN236

And then have a look at that in - and then have a look at it in the exposure draft and see what if any consequences that might have.

PN237

MS McKINNON: Yes. So I think the averaging part of that item 11 is agreed subject to wording and further comment perhaps. But the "ordinary" is not agreed and that's the same for item 13 because the same issue comes up in part‑time.

PN238

JUSTICE ROSS: It does, yes. All right, then if we go to annual leave there seems to be a bit of - well, a variety of different views. If we can deal firstly with what, you know, might be the easier issue, the NES inconsistency matter. So I'll just get a copy of the decision. I should remember it, it was tortuous. I can't recall - - -

PN239

MS McKINNON: Paragraph 13 I think in the comments.

PN240

JUSTICE ROSS: Yes, I'm just wondering about which bit of the - do either of you refer to which paragraph in the inconsistencies decision that dealt with this issue?

PN241

MS McKINNON: Did we put that in our submission? Let's have a look.

PN242

JUSTICE ROSS: Yes, here we are. It was a transfer of business, paragraph 34, identified clause 23.7 of pastoral and the variation determination deleted 23.7 and put in a new 23.7. So just bear with me for a sec. So having done that, what is the debate about that issue?

PN243

MS McKINNON: I think it just had not been removed from the exposure draft so 14.7 - - -

PN244

JUSTICE ROSS: I see.

PN245

MS McKINNON: - - - still reflects the old 23.7.

PN246

JUSTICE ROSS: All right, I think 14.7 needs to be removed from the exposure draft.

PN247

MS McKINNON: Yes.

PN248

MS PEARSALL: I don't know, is that right or were there two parts to that clause - - -

PN249

MR CRAWFORD: No - - -

PN250

MS PEARSALL: - - - and the second part was (indistinct) but this is actually - - -

PN251

MR CRAWFORD: Wasn't the NES inconsistencies decision just about annual leave and 14.7 is about a probationary period?

PN252

JUSTICE ROSS: The inconsistency decision removed clause 23.7 of the current award. Let me just see what that is.

PN253

MS McKINNON: There's 23.7(a) and (b) in the award.

PN254

JUSTICE ROSS: Just bear with me for a minute.

PN255

MR LETCHFORD: The current (indistinct) for the 23 (indistinct), is that what you're looking for?

PN256

JUSTICE ROSS: Yes. I see, so - - -

PN257

MS PEARSALL: This one. This one was removed the last time.

PN258

JUSTICE ROSS: It looks as if it's directed at (b). So what the exposure draft has done is keep the one that's been removed and take out the other one. Is that the issue? So 27.3(a) - and I'm not advancing this, because this is what the decision says but it seems as if the determination that came out of the decision, the effect of that was to delete the 27.37(b), the probationary period, and replace it with what is in the - - -

PN259

MR CRAWFORD: No, that's not my understanding.

PN260

MS McKINNON: I think look, we may have misread - - -

PN261

JUSTICE ROSS: Actually - - -

PN262

MR CRAWFORD: It's the other way around.

PN263

MS McKINNON: We might have misread that and just looked at it and assumed that the whole clause should come - - -

PN264

JUSTICE ROSS: How do you work that out when that's the determination?

PN265

MR CRAWFORD: And that's about the probationary period as opposed to annual leave.

PN266

JUSTICE ROSS: Yes. No, I appreciate that but this is about transfer of business generally. But where do you say the Full Bench said - it is dealing with transfer of business, item 35.

PN267

MR CRAWFORD: Well, I mean my recollection is the NES inconsistencies case dealt with the confined issue of annual leave passing from the old employer to the new employer.

PN268

JUSTICE ROSS: No, it wasn't confined to annual leave matters. But what is the argument between you in 35?

PN269

MS McKINNON: I think it may be that we're no longer in disagreement. I think it might have just been a comment that we just need to make sure it reflects the determination, and if that's the case - which perhaps just having a second look at it - it is, that one might go way.

PN270

JUSTICE ROSS: I think - - -

PN271

MS McKINNON: So Business SA had noted it should be removed.

PN272

JUSTICE ROSS: Yes, but on the face of the determination - and there are subsequent Full Bench decisions so I'll need to check all of them - it has deleted 23.7 in its entirety, (a) and (b), and replaced it with what is now 14.7 of the exposure draft.

PN273

MS McKINNON: And I think that's correct so for NFF anyway we don't have an issue.

PN274

JUSTICE ROSS: Okay, can Business SA have a look at that?

PN275

MR KLEPPER: Yes, we can have a look at that.

PN276

JUSTICE ROSS: All right.

PN277

MR KLEPPER: And comment on that within seven days?

PN278

JUSTICE ROSS: Thank you.

PN279

MR CRAWFORD: Can I just clarify the effect is that clause 23.7(b) of the current award is just retained is it not?

PN280

MS McKINNON: Yes.

PN281

JUSTICE ROSS: Yes, that's right.

PN282

MR CRAWFORD: Yes.

PN283

JUSTICE ROSS: Because that's reflected in the exposure draft at 14.7.

PN284

MR CRAWFORD: Yes.

PN285

JUSTICE ROSS: All that has been deleted is 23.7(a).

PN286

MR CRAWFORD: Yes.

PN287

JUSTICE ROSS: Yes.

PN288

MR CRAWFORD: And our understanding is that's consistent with the decision.

PN289

JUSTICE ROSS: Yes, but rather than express it that way in a determination, then you'd have to renumber 27.3(b) as (a), and given there's only one paragraph the whole thing was deleted and then (b) was reinserted but without the (b), just with the language.

PN290

MR CRAWFORD: Yes.

PN291

JUSTICE ROSS: That's what has happened. Okay, well that looks like that might be okay.

PN292

MS McKINNON: That's agreed.

PN293

JUSTICE ROSS: Annual leave loading, what is this about?

PN294

MS McKINNON: I think the AWU claim is to extend the 17 and a half per cent loading to all work not just ordinary hours, Monday to Friday.

PN295

JUSTICE ROSS: So for - - -

PN296

MR CRAWFORD: Sorry, what is this?

PN297

JUSTICE ROSS: Annual leave loading claim.

PN298

MR CRAWFORD: Is that item 36?

PN299

MS McKINNON: No, 33.

PN300

JUSTICE ROSS: 33.

PN301

MR CRAWFORD: I think the issue we were identifying was that poultry workers don't have a Monday to Friday week. They can be required to work on any day of the week and they don't get penalty rates, so the wording in the exposure draft seemingly could exclude payments they receive for work on a Saturday and Sunday in calculating the annual leave loading.

PN302

JUSTICE ROSS: All right, but is this - I'm just trying to understand the way you're putting it. You're putting it that under the current award they get the annual leave loading payable on those weekend hours for those employees who can work ordinary hours on a weekend, or are you saying that the exposure draft correctly transposes the current award into the exposure draft but you think that the current award operates unfairly and so that should be changed in the exposure draft? Is it a translation issue or is it a merit issue?

PN303

MR CRAWFORD: It's perhaps more the latter. I believe the exposure draft probably does reflect the - - -

PN304

MS McKINNON: Yes, it picks out the words of the award currently.

PN305

JUSTICE ROSS: Okay.

PN306

MR CRAWFORD: But yes, so it's the latter but I don't know if - - -

PN307

JUSTICE ROSS: No, I understand the merit argument. Well, is there anything in the award history or did this award really just come from the former pastoral and it wasn't really - - -

PN308

MS McKINNON: Overwhelmingly it came from the old Federal Pastoral Award but in particular industries - there were State industries - - -

PN309

JUSTICE ROSS: That was still bolted on?

PN310

MS McKINNON: - - - like piggeries were State.

PN311

JUSTICE ROSS: Yes, I see.

PN312

MS McKINNON: But Steven, there's also subparagraph (2) which provides for a higher rate of pay if you work on days and hours that attract penalty rates.

PN313

MR CRAWFORD: Yes, I guess the anomaly is that poultry farm workers can work on the weekend and they don't get penalty rates.

PN314

JUSTICE ROSS: Yes, but the issue in (a)(ii) is for those workers if they would have earned - yes, well the language rather suggests they'll get the 17 and a half per cent loading, they'll get the higher of the two amounts.

PN315

MS McKINNON: It's - yes.

PN316

JUSTICE ROSS: But if they work on the weekend at ordinary hours then they'll get that payment. That will be taken into account in the calculation of the amount they're paid on annual leave as if they had worked on those hours. I suppose the point is if they don't attract penalty rates, those employees, that clause wouldn't apply to them would it, because they don't get penalties for working on weekends?

PN317

MS McKINNON: That's right. I mean this clause is about - - -

PN318

MR CRAWFORD: I think the problem would be if you did the calculation, if they were working a Wednesday to Sunday week you'd do the annual leave loading under (i) on the Wednesday, Thursday, Friday shift, perhaps not include the annual leave loading for Saturday and Sunday and then compare that with what they'd earn under (ii) ordinarily and see which is higher. But I just wonder if that's what we're really intending here? If someone is working a Wednesday to Sunday week are they not going to have their Saturday and Sunday shift included in the leave loading calculation?

PN319

MS McKINNON: Well, ordinarily in this award you wouldn't - you'd just - it would be based on your four weekly rate, you know, like your accrual. But I suppose for us, you know, this exposure draft process is not about improving wages and conditions, it's about making the award easier to understand. So if that's a new claim, you know, fine.

PN320

JUSTICE ROSS: Yes, yes. No, that's fine.

PN321

MS McKINNON: We can deal with it.

PN322

JUSTICE ROSS: But having said that, I'm not entirely sure I understand how it works. So leave aside the claim issue, I think some greater clarity around what is the 17 and a half per cent calculated on? I mean, I think I understand (b) - sorry, (a)(ii). So the general proposition is that employees get 17 and a half per cent on the ordinary hours Monday to Friday. If an employee regularly works on a weekend, their shift is Wednesday, Thursday, Friday, Saturday, Sunday, that's their five days and they get no penalties for the Saturday, Sunday, then you look at what is their annual leave payment based on those five days, and if that is an amount which is greater than what they would get on five days, Monday to Friday plus 17 and a half per cent, then they get the higher amount.

PN323

That seems to be the intent. But what happens to someone who works that five day shift that includes the two days on the weekend but they're not paid penalties on the weekend because they're regarded as ordinary hours? For those employees then they would get the 17 and a half per cent, as I read this, on the Wednesday, Thursday, Friday but not the Saturday, Sunday because they work ordinary hours performed on those Wednesday, Thursday, Friday. You see the - yes?

PN324

MS McKINNON: I do and I suppose, you know, it's a - I mean it seems to me that the clear intention is that it's 17 and a half per cent on your base rate 38 hours or if you would ordinarily in that week get a higher rate it's on the - you get the higher rate, and it's perhaps a question around on days which attract penalty rates. I mean there are days under the award which attract penalty rates but you don't necessarily get them because you're averaging your hours over a period.

PN325

JUSTICE ROSS: Sure.

PN326

MS McKINNON: So it's just a - I mean, what we could do is look at the history of the clause and see if there's a way we can make it clearer. But we don't want to unintentionally change the meaning.

PN327

JUSTICE ROSS: And then look, we can - just bear with me for one sec. We'll see what we can find out about the relevant award history of clause 23.4 and we'll list it for further discussion at the next appointment and then see where the matter goes from there, and if there's no agreement well, we'll deal with it by whatever process people want to deal with it by. So 33, 35, does that deal with (indistinct).

PN328

MS McKINNON: That deals with that.

PN329

MR LETCHFORD: (Indistinct) can I just take that back? I think - - -

PN330

JUSTICE ROSS: Yes, yes.

PN331

MS McKINNON: - - - those. So I think now it's junior rates and with keep rate.

PN332

JUSTICE ROSS: Yes. Yes, and one of the issues here - I'm not sure which one it was - seemed to be that you don't deduct the with keep rate until after you've applied the penalties.

PN333

MS McKINNON: That issue has come up, yes, certainly. But I think we are all agreed on how that issue is resolved.

PN334

JUSTICE ROSS: All right. Do you know which item that's in?

PN335

MS McKINNON: Let's have a look. Item 42 I think.

PN336

JUSTICE ROSS: Yes.

PN337

MS McKINNON: So - no, hang on, NFF are being unreasonable. That sounds - - -

PN338

JUSTICE ROSS: Well, no, you've just - - -

PN339

MS McKINNON: - - - surprising. Let's see, so on 14.4. Let me see, where's our submission of the 14th? So our issue is around the rate from which it's deducted and in the award keep is deducted from the minimum weekly rate not from the total rate as it currently stands, and we're keen to avoid a change of meaning where that results in higher costs.

PN340

JUSTICE ROSS: But doesn't that mean that if it's - let's say there's an all‑purpose allowance that's paid and that might be the difference between the minimum and the total, then you're going to deduct different amounts of keep from the same employee depending on whether they get the allowance or they don't or they work a particular shift or not. Why would the amount of the keep vary?

PN341

MS McKINNON: The amount of the keep wouldn't vary but the point from which you take it away varies.

PN342

JUSTICE ROSS: Yes.

PN343

MS McKINNON: Yes.

PN344

JUSTICE ROSS: Well, it would mean that someone who gets the allowance would get less because the allowance percentage would be applied to the deducted amount. Is that the problem?

PN345

MS McKINNON: Well, for us I think it would still - you'd still get the entitlement that is the allowance because they're calculated in a standalone way, so.

PN346

JUSTICE ROSS: And what's the difference? How would it result in increased costs?

PN347

MS McKINNON: Well, let's just have a look, sorry, "If the keep is provided then implemented per week from the employee's total weekly wages".

PN348

MR CRAWFORD: Is the critical issue whether you when applying penalties like overtime or public holidays, do you apply that to a rate that's had the keep deducted or not? So it seems if you apply it to a rate that's already had the keep deducted you'd be compounding the keep payment and that employee would have a greater deduction than others.

PN349

JUSTICE ROSS: But yes, have the same deduction but the deduction would have the effect of reducing their wages.

PN350

MR CRAWFORD: Yes.

PN351

JUSTICE ROSS: Yes.

PN352

MR CRAWFORD: So if you looked at employee A and B who worked overtime - - -

PN353

JUSTICE ROSS: Yes, yes.

PN354

MR CRAWFORD: Yes.

PN355

JUSTICE ROSS: They'll end up - - -

PN356

MR CRAWFORD: They'll lose more.

PN357

MR LETCHFORD: I think it's the gross versus the net multiplication, isn't it? Well, we're (indistinct) weekly.

PN358

MS McKINNON: Yes. We have to have a look at it maybe because the way that it currently is intended to operate is that your minimum wage is the minimum wage here maybe with all‑purpose allowances although that's not yet the case necessarily. Unless the keep - - -

PN359

JUSTICE ROSS: But really isn't the intent that you're entitled to deduct that amount of money for keep and you need that provision in the award so you can lawfully deduct it? Where it's deducted from, why does that make any difference to you?

PN360

MS McKINNON: Well, if it does have a follow on effect for the other calculations. So I mean I think for us we will need to understand whether it is the intention to have a lower base from which the entitlements flow.

PN361

JUSTICE ROSS: It would be an odd result if there's an employee for whom keep is deducted and the effect of that is that they are paid less for working weekends than an employee whose keep is not deducted, and they're paid less not just from the deduction of keep but from the fact that the keep reduces the base amount on which the penalty applies.

PN362

MS McKINNON: And yet that's the effect of the current provision so we might need to - can NFF have a look at that one?

PN363

JUSTICE ROSS: Of course you can, yes. Yes. You'll consider your position re item 42.

PN364

MS McKINNON: Yes.

PN365

JUSTICE ROSS: All right, and what was item 41?

PN366

MS McKINNON: 41 was just - it's not a big issue at all but just because 24.1 talks about "Adult wages", that's the heading, and then 24.2 junior wages, and it's a percentage of relevant adult rate. So it was just a question of is it - I think it's sort of coming from the point of view of we have all these different types of ways of talking about a minimum rate; is it a wage, is it a rate, is it an ordinary hour, is it an hourly rate, you know?

PN367

JUSTICE ROSS: Yes, yes.

PN368

MS McKINNON: I think it gets confusing, but it's not a big issue.

PN369

JUSTICE ROSS: I'll clarify what the percentage is of and that should be easily resolved and, look, we're not proposing to change anything from the current award. We'll look at how it's calculated on the current award and a percentage of what rate and how is that rate now described in the exposure draft and we'll reflect that and you can comment on that.

PN370

MS McKINNON: Yes, it's not a big issue.

PN371

JUSTICE ROSS: So 41, we're to 51?

PN372

MS McKINNON: The same issue I think, the junior wages.

PN373

JUSTICE ROSS: Yes. All right, so we'll do the same here. 66?

PN374

MS McKINNON: Is the same issue.

PN375

JUSTICE ROSS: Okay.

PN376

MS McKINNON: What was it? "Two, NFF will come back".

PN377

JUSTICE ROSS: Yes.

PN378

MS McKINNON: And 117 - - -

PN379

JUSTICE ROSS: I think that's the - that was agreed.

PN380

MS McKINNON: Yes, we think that's agreed and they're different concepts, keep and found.

PN381

JUSTICE ROSS: What is the difference?

PN382

MS McKINNON: Just industry by and large, isn't it Jason?

PN383

JUSTICE ROSS: So is found where they just feed you and keep is where you - or what?

PN384

MR LETCHFORD: I'm not really - well, found is - to my knowledge is just around sharing and - well, that's where it's - I'm used to it, and keep was to do with station hands like jackeroos and what. So I mean I don't look at - both those deal with the found but found is what we always refer to in the shearing components of the shearing operation section and I think I'm correct that keep is back to station hands.

PN385

JUSTICE ROSS: All right, so when we say "likely to be agreed" what is the - - -

PN386

MS McKINNON: That was just - we didn't want to presume agreement without people having the opportunity to comment. But we think that people are in line on that issue.

PN387

JUSTICE ROSS: And is the answer as suggested by Business SA or what? What is the answer to the question?

PN388

MS McKINNON: Yes, so keep provisions don't apply to Part 8. In Part 8 it's the found provisions that apply.

PN389

JUSTICE ROSS: All right, and everyone agrees with that?

PN390

MS McKINNON: Yes.

PN391

JUSTICE ROSS: All right, so it's - - -

PN392

MR LETCHFORD: So which (indistinct)?

PN393

MR CRAWFORD: 117.

PN394

MR LETCHFORD: Right.

PN395

JUSTICE ROSS: Okay, station cooks? 45.

PN396

MS McKINNON: So in this instance it's just a sort of a historical thing that cooks don't have their keep deducted. So that's part of the deal is they get their pay but they also get to stay free of charge whereas everybody else has to pay a share, and that's probably because the cook's cooking. So the way that the translation came across into the exposure draft, they would have also suffered the with keep deduction and so to the extent that that's in the exposure draft it shouldn't be.

PN397

JUSTICE ROSS: All right, so that bit is agreed. So item 44 no keep deduction from cooks. What does the rest of 45 - there's this backwards and forwards about public holidays?

PN398

MS McKINNON: Business SA might like to comment?

PN399

JUSTICE ROSS: I think we've noted that there was an error in the exposure draft note and that might have confused the issue.

PN400

MR KLEPPER: I suspect Business SA was going to withdraw that having seen the clarification for 26.3.

PN401

JUSTICE ROSS: All right. Well, when the revised exposure draft comes out you can consider your position in relation to it.

PN402

MR KLEPPER: Thank you.

PN403

JUSTICE ROSS: And if we deal with the no deduction from keep, if there's anything else in that area people can let us know. Okay?

PN404

MS McKINNON: Mm‑hm.

PN405

JUSTICE ROSS: Overtime and penalty rates. So is there any particular order you want to go through these ones?

PN406

MS McKINNON: 49, I think in each case they're likely to be fairly similar. The main issue around the - is around the schedules and how we make it very clear that if you're working on the weekend you don't automatically get a penalty rate because you might be working under an averaging arrangement.

PN407

JUSTICE ROSS: Yes, all right. Does the union agree with the need for - that there is that division that you're not going to get a penalty rate if you're working an averaged arrangement?

PN408

MR CRAWFORD: No penalty rate when you're working an averaged arrangement?

PN409

JUSTICE ROSS: Yes.

PN410

MR CRAWFORD: There are penalty rates for ordinary hours on the weekend for some sections of the award.

PN411

JUSTICE ROSS: But not for others, yes.

PN412

MR CRAWFORD: I mean are we talking about overtime?

PN413

MS McKINNON: Yes, overtime and in particular Sunday.

PN414

MR CRAWFORD: Yes, I think the NFF - - -

PN415

JUSTICE ROSS: And other than that if you're working averaged hours on a weekend you're not necessarily going to get any penalty payments.

PN416

MS McKINNON: That's right, yes. But once you get to your 152 and then you work a - - -

PN417

JUSTICE ROSS: No, I follow. Yes.

PN418

MS McKINNON: - - - Saturday then you do.

PN419

JUSTICE ROSS: So is the issue here, just to make sure - and we might park it and have a much closer look. I think I'll get the award review admin crew to look more closely at the issue. But I take it you both agree that it's not intended to change - and look, you may have a separate merit argument to run but what we need to do is to try and make sure that the schedules accurately reflect the capacity for those who can get penalties and overtime and those who can't and what the triggers are; and that will vary based on whether they're on an averaging arrangement and whether they're in particular sections of the industry. Some don't get - well for some, ordinary hours worked on weekends are not subject to penalty payments but overtime is.

PN420

MR CRAWFORD: Correct. I think poultry farm workers are possibly the only group that don't get penalty rates for working ordinary hours on the weekend. But my understanding of the NFF's broader point was that employees never get overtime until they work over 152 hours in a four week period.

PN421

MS McKINNON: That's right.

PN422

MR CRAWFORD: And we don't necessarily accept that's the case because there are provisions in the current award that talk about hours of work being set and rosters being in place. So albeit a roster may provide for your average of 38 hours to be worked at various times over a four week period, we don't think that means that you can only ever get overtime entitlements when you have already worked 152 hours in the four week period. If your roster for week 1 prescribes 36 ordinary hours and you work more than that we say that's when you get overtime payments in week 1, and then you'll have your roster set for ordinary hours in week 2 and so forth. So I think that's the essence of where we're in dispute.

PN423

MS McKINNON: Yes.

PN424

JUSTICE ROSS: I think, look, certainly speaking for myself I'd benefit from a joint paper from you and not in seven days but take your time to just go through, looking at the decision on these issues and that I think soaks up a lot of the questions relating to the schedules as well, and just identify in sort of mark-up using different colours what it is that - what changes you think are required and then your short argument in support of the changes. That won't be the end of your submissions but it will help everyone else understand, me included, in a subsequent conference about where does the rubber hit the road with this.

PN425

I mean for example what award provisions are you relying on to support an argument that said, "Well, they are entitled to overtime in these circumstances" and if there are groups of employees who have a different arrangement, whether it's poultry and other groups, then perhaps they should have a look at the schedule and split them out rather than a sort of a tortuous schedule that has got "Well, except for poultry" and "they have this and that".

PN426

Put them - if you can group them it's much better to shove them in a different area and so then someone picking it up will go "Ah yes, poultry. I go there and that tells me what the entitlement is". Once all that's done then you might have a different merit argument that you want to change something, but let's get it right in the first step as to what does the translation to the exposure draft accurately look like. Once that's done then people will be in a better position to work out what they want to do with it. All right?

PN427

MS McKINNON: Yes, happy to do that.

PN428

MR CRAWFORD: Yes, I don't think we're actually - we're arguing for a change to the exposure draft. I think it's more the NFF.

PN429

MS McKINNON: I don't think so, no. Well, we're arguing just to clarify that overtime is payable after the 152 hours and like, to the extent that you're saying that that's not the current position the whole farm sector will erupt if that's not the outcome.

PN430

MR CRAWFORD: I mean we've already in our previous submissions identified that for example piggery attendants can only work eight ordinary hours on a day, you know? Doesn't that mean you'd have to get - - -

PN431

MS McKINNON: Piggeries are the unique more prescriptive clause but everybody else has the 152 hour clause.

PN432

MR CRAWFORD: Well, we've said that a farm and livestock hand will have their regular hours fixed by agreement and it has got a mechanism in accordance with clause 26.1. But anyway, we'll go away and - - -

PN433

JUSTICE ROSS: Yes, I think let's see if we can avoid having the farm sector in uproar and see if we can work our way through it. Station cooks, there's a - - -

PN434

MS McKINNON: I think we - - -

PN435

JUSTICE ROSS: I think there's a document - no, I've got (indistinct) and shearing.

PN436

MS McKINNON: (Indistinct) and things.

PN437

JUSTICE ROSS: Station cooks, we've done. Penalty rates we've done. Meal allowances and break?

PN438

MS McKINNON: This might be the duplicated meal allowance which I think we talked about before, that we might have a look at where there is an inconsistency between the general provisions and the specific.

PN439

JUSTICE ROSS: So it's 30?

PN440

MS McKINNON: Item 30. There's a couple of issues actually.

PN441

JUSTICE ROSS: Yes. Well, there are quite a few sort of threads of the issues in item 30. This is about the potential conflict or interaction between the two clauses, and there are different views about that. Then if you look at 62 I'm not sure what is the concern there?

PN442

MS McKINNON: It's the same issue. So because there's the meal allowance in 10.2(c) but then there's also one in poultry or pigs, 32.8. Piggeries.

PN443

JUSTICE ROSS: What does the AWU say about 62?

PN444

MR CRAWFORD: We certainly still think the meal allowance has got relevance.

PN445

JUSTICE ROSS: But you've - yes. I don't think - well, I didn't take the NFF to be saying that they wouldn't get a meal allowance. It's just that it would be dealt with in the general provisions. Is that the proposition?

PN446

MS McKINNON: Yes, I think that if we can address that issue then this other issue should resolve, I would have thought. I think it's just it's the one and a half hours versus two hours for when the meal break is - - -

PN447

JUSTICE ROSS: Yes, so we're back on the same issue - - -

PN448

MS McKINNON: So it's the same issue.

PN449

JUSTICE ROSS: All right, so it's not that they won't get it, it's just whether the general applies to all employees or whether you have some sort of interaction?

PN450

MR CRAWFORD: Well, I think the two provisions in the general section even - - -

PN451

JUSTICE ROSS: No, no, I follow that but there's an issue about their interaction and there are different views expressed.

PN452

MR CRAWFORD: Yes.

PN453

JUSTICE ROSS: I think on that we'll just send you a short paper setting out what the different views seem to be, see if we can summarise your respective positions and then give you some time to reflect on that and if we've got anything on the history we'll do that.

PN454

MS McKINNON: Thank you.

PN455

JUSTICE ROSS: Then 63, is that also a clarity issue?

PN456

MS McKINNON: Yes, it's just about which form of words is accepted I think. Is that right, Steven?

PN457

MR CRAWFORD: Yes, I don't think it's meant to be a substantive change.

PN458

MS McKINNON: And the idea though in the - so the exposure draft language requires the meal break to happen at a point in time, which is that is before the overtime commences, and the AWU proposal also provides for a meal break but it doesn't say when that happens. So it is slightly different in language.

PN459

JUSTICE ROSS: How would you deal with the when the meal break is taken?

PN460

MR CRAWFORD: I'll just have to check the current award. It is normally before the overtime I thought.

PN461

MS McKINNON: It's 36.6 I think in the current award.

PN462

JUSTICE ROSS: "If an employee is required to work overtime - before starting such overtime - - -"

PN463

MR CRAWFORD: Yes. Upon reflection, I can't really identify a significant issue with the exposure draft.

PN464

JUSTICE ROSS: We will mark it as withdrawn and once you see the revision, you know, it doesn't - this will be an intuitive thing. If you change your mind, that's fine. No‑one is going to shoot you for it. Okay. That's 36. Then hours, 52. I think that's the shearing - and there is a document dealing with that.

PN465

MR LETCHFORD: Is that 90, that you've got down the - - -

PN466

JUSTICE ROSS: Yes, you're quite right. No, that's - yes, you're quite right. Hours is 52. There is no doc on that. This is an AWU submission, ordinary hours of work.

PN467

MR LETCHFORD: Well, it's the word "ordinary" again, is it? No?

PN468

JUSTICE ROSS: No, I'm not sure. What is the intent here?

PN469

MR CRAWFORD: I think it was just to clarify. I don't think it was intended to change the operation. It's a provision about an averaging period, that's just intended to provide that you get the same weekly amount per week in the averaging period. Is that correct?

PN470

JUSTICE ROSS: That would be normally the way it would work.

PN471

MS McKINNON: I think the intention is to ensure that there is at least a minimum weekly rate each week that can go up or down, but you can't go below 38.

PN472

MR LETCHFORD: Your Honour, might I be excused for a moment?

PN473

JUSTICE ROSS: Yes, of course.

PN474

MR CRAWFORD: Yes, I think that's in the same category as the previous one. It appears to be a minor issue.

PN475

JUSTICE ROSS: Yes. Look, it really reflects the fact that I suppose strictly, legally, you pay for the hours worked in that week provided they're averaged 38 over the four, but in order to ensure, well, ease of payroll and also that the employee doesn't suffer fluctuations in their wages, the employer will use its best endeavours to make sure they're paid the 38.

PN476

MS McKINNON: Exactly.

PN477

JUSTICE ROSS: You sort of spread it out. That really just reflects 35.1 of the current award.

PN478

MS McKINNON: Yes.

PN479

JUSTICE ROSS: Perhaps we'll remove it from the issues in contention and mark it as tentatively withdrawn. The AWU can then have a look at the revised exposure draft and see where it wants to go on that. Shift work; 54 and 55.

PN480

MS McKINNON: There are a range of issues here.

PN481

JUSTICE ROSS: Yes.

PN482

MS McKINNON: Our preference is to not make things harder than they already are in the Pastoral Award. We don't think it's necessary to deal with that FWA question.

PN483

JUSTICE ROSS: There is a point of distinction between yourself and Business SA about the day shift.

PN484

MR KLEPPER: I thought Business SA's submission for the definition of "day shift" had been withdrawn earlier.

PN485

JUSTICE ROSS: Is that withdrawn now?

PN486

MR KLEPPER: Yes.

PN487

JUSTICE ROSS: All right. What do we have left then? There is the proposition of whether there should be a definition of "shift worker" and the NFF opposes the definition. I'm not sure what the position is of the other parties. There is the AWU reply opposing the inclusion of day shift. Well, that's okay, because that has been withdrawn. I like ABI's point, yes, there are different views about that. I think we can get rid of the day shift idea. That removes some of the differences.

PN488

What I'm not clear about is what the position of each party is about - do you need a definition of "shift worker"? I understand your position. I'm not sure about anybody else's. I don't really understand the AWU's - if its submission is going to a different thing.

PN489

MR CRAWFORD: One issue that springs to mind is I'm not sure if an award has to include a definition for the purpose of the extra week of annual leave or not.

PN490

JUSTICE ROSS: Well, the NES defines a shift worker for that purpose, unless it's defined in the award, I think. If you're a shift worker entitled to the additional week, whether it's defined or not in the award, probably I don't think will make any difference, but that's an issue that's worth checking.

PN491

MR CRAWFORD: Yes. I was wondering if that's part of why the ombudsman brought it up or not.

PN492

JUSTICE ROSS: No, I think they just like to define everything. I'm not sure whether that reflects - this has been an issue in your award. It just reflects the general view.

PN493

MS McKINNON: It seems to be an issue raised in a number of awards.

PN494

JUSTICE ROSS: Yes. Have you had any difficulties with these shift work areas in practice?

PN495

MR CRAWFORD: This is just for piggery attendants, I think. There is a definition of "afternoon shift" and of "night shift", and even of "permanent night shift", then you've got the shift loadings that apply.

PN496

JUSTICE ROSS: Yes.

PN497

MR CRAWFORD: So it doesn't strike us that there is a compelling need for a definition and, no, we haven't encountered any - no‑one has raised this as an issue.

PN498

JUSTICE ROSS: So the two questions remaining seem to be do you define a shift worker and the second question is the range of issues raised at paragraphs 28 to 31 of the AWU's submission of 17 April. They then propose arrangements. Can I suggest this way forward in relation to that. Leave aside for the moment whether we define shift worker. Can there be a discussion at least been the AWU and the NFF about the range of issues the AWU has proposed at 28 to 31, because you only seem to disagree with one of them particularly in here.

PN499

I'm not suggesting that means you're enthusiastic about the rest. You've highlighted one, but it may be that you can agree on the rest and narrow the scope. If you can have a discussion about that issue.

PN500

MS McKINNON: Yes.

PN501

JUSTICE ROSS: Then we'll bring it back to the broader group and see what everyone else thinks about it.

PN502

MS McKINNON: Yes, we're happy to do that.

PN503

JUSTICE ROSS: All right. Then we have got hours for shearing and there is a short issue about this. The NFF has proposed some minor - well, what it characterises as minor amendments to clause 45.1. I must say I think that's probably an accurate characterisation in the look of the changes. There's no need to repeat "finish the picking up" if you've got it in the - what is the current award clause?

PN504

MR LETCHFORD: 45.1 or - - -

PN505

JUSTICE ROSS: Yes. That's the same as 45.1.

PN506

MS McKINNON: It's just a minor drafting point around whether "finish the" which currently appears in the first dot point should actually be the end of the - - -

PN507

JUSTICE ROSS: Yes.

PN508

MS McKINNON: So that it applies to each in the dot point.

PN509

JUSTICE ROSS: What is clause 45.1 of the exposure draft in the current award? Here it is. Yes, that's 50.1.

PN510

MS McKINNON: Because the exposure draft is breaking that down a bit, we don't have a problem with breaking it down to make it easier to digest, but - - -

PN511

JUSTICE ROSS: But really the purpose of the additional time is to finish up these tasks.

PN512

MS McKINNON: Exactly.

PN513

JUSTICE ROSS: That, I think, seems reasonably clear from 50.1 although, I mean, I would agree it reads more easily in the exposure draft. On that view I don't think the changes proposed change the meaning of the current award.

PN514

MS McKINNON: No.

PN515

MS THOMSON: The only point I think, your Honour, is that it doesn't then follow that - you can't finish the sweep of work shed, the last - - -

PN516

MS McKINNON: But it stops at - that's what the semicolon is.

PN517

JUSTICE ROSS: Yes.

PN518

MS THOMSON: No, but doesn't it follow that all those things are flowing on from that column?

PN519

JUSTICE ROSS: I'm not sure I'm following you.

PN520

MS THOMSON: The way it reads to me now, notwithstanding - - -

PN521

JUSTICE ROSS: Sorry, you mean if the NFF's amendments were accepted?

PN522

MS THOMSON: Yes. The only problem I have with that is it doesn't flow then to the last dot point.

PN523

JUSTICE ROSS: But that's why the word - - -

PN524

MR KLEPPER: Sorry, it's Business SA. Can you please speak into the mic.

PN525

JUSTICE ROSS: Yes, sure. Sorry about that. Isn't the prefatory words "finish the" broken by the word "and" at the end of the third dot point?

PN526

MS THOMSON: Isn't it just a cumulative list, so all those things follow on from the last two words of the paragraph?

PN527

JUSTICE ROSS: I suppose the other way of doing that is you would have to put "finish the" before each, which looks a little cumbersome.

PN528

MS PEARSALL: Or just put "the" before each.

PN529

MS THOMSON: You could just take it to sweeping.

PN530

JUSTICE ROSS: Sure, yes. You could have the semicolon and say "and then sweep the floor of the shed".

PN531

MS McKINNON: You could put the first three dot points into just one dot point, because that's what you're finishing up. You're finishing doing those jobs and you've got to sweep the floor.

PN532

JUSTICE ROSS: Yes, I follow. What you could have is the first dot point, "Finish the picking up, rolling of fleeces and picking up of pieces on the tables."

PN533

MS McKINNON: Yes.

PN534

JUSTICE ROSS: Then semicolon "and sweep the floor."

PN535

MS McKINNON: "Sweep the floor of the shed." Yes, that might do it.

PN536

JUSTICE ROSS: I'm not sure there. I can just see the vision of shearers looking at it and going, "Oh, do we pick up the pieces first or do we sweep the floor?"

PN537

MS McKINNON: No, that - - -

PN538

JUSTICE ROSS: I'm pretty sure they're probably not going to look too closely at the - I'll have a go at a re‑draft reflecting that and incorporate it in the revised exposure draft, then you can deal with it or comment on it as you wish. Allowances. The first one is leading hand allowance. The issue here seems to be that the proposition that's put - and I don't know what the current award provides for - is that the leading hand allowance when paid to part‑time employees is paid on a pro rata, not a full amount.

PN539

MS McKINNON: That seems to be the issue, yes. We didn't pick it up, but I think we agreed with what AFEI have said.

PN540

MR CRAWFORD: The part‑time employment provision kicks in where it provides for part‑time employees receiving, on a pro rata basis, equivalent pay and conditions already?

PN541

JUSTICE ROSS: Yes, well, perhaps if you can consider that, because if that's right then AFEI is right, because you would only get the leading hand allowance on a pro rata basis. If you worked, you know, 19 hours a week, then you would get half the leading hand allowance if that analysis is right.

PN542

MR CRAWFORD: Yes. I'm not sure that we would take issue with that.

PN543

JUSTICE ROSS: All right.

PN544

MR CRAWFORD: I mean, part‑time employees, they're only a leading hand for two of the five days.

PN545

JUSTICE ROSS: Yes. I'm not sure, you know, frankly, how many part‑time leading hands you're going to have.

PN546

MS McKINNON: It says that - I mean, on its face you get the whole lot.

PN547

JUSTICE ROSS: No, I don't think there is a dispute about it being pro rata. We can look at a re‑draft, so pro rata for part‑time, and then see what you want to do with that. 26, first aid allowance. It looked like everyone agreed, but then - - -

PN548

MS McKINNON: I think we agree with the - - -

PN549

JUSTICE ROSS: You're on the path to agreement.

PN550

MS McKINNON: Well, we agree with what needs to be the outcome. I suppose we just don't agree that it's not already clear.

PN551

JUSTICE ROSS: Okay, so 26 - - -

PN552

MS McKINNON: Because it's an all‑purpose allowance, it would be a very strange interpretation to say, "Except that that week you didn't do CPR, so you don't get it."

PN553

JUSTICE ROSS: Yes, it would be. Normally that's not the way first aid allowances work, but we'll check it and see whether - but, to be clear, there's no issue between you that to get the first aid allowance you have to qualify, et cetera, but you don't have to exercise the skills on a weekly basis in order to receive the allowance.

PN554

MS McKINNON: That's right.

PN555

JUSTICE ROSS: Your concern is that's not clear from the way it's worded. Well, we can have a look at that issue and see whether any additional clarity is provided in any other award that might be useful. If it is, something can be put in the exposure draft and you can have a look at it. At least you don't disagree about the intent.

PN556

MS McKINNON: No.

PN557

JUSTICE ROSS: It's just whether it's necessary to do anything about it. 43, special allowances.

PN558

MS McKINNON: I think on this one we all agree that the allowances in 25 only apply to broadacre farming and livestock.

PN559

JUSTICE ROSS: Right.

PN560

MS McKINNON: But our dispute, to the extent we have one, is the proposal to move the disability allowance to 10.1.

PN561

JUSTICE ROSS: Right. So it's correct that the allowances in 25 only apply to broadacre farming and livestock operations?

PN562

MS McKINNON: Yes.

PN563

JUSTICE ROSS: What was the dispute?

PN564

MS McKINNON: The AWU have suggested that the disability allowance is moved to 10.1. Which one is that?

PN565

MR CRAWFORD: I was just trying to - 25.3.

PN566

JUSTICE ROSS: Of the exposure draft?

PN567

MR CRAWFORD: Yes.

PN568

MS McKINNON: So that's the spraying of sheep?

PN569

JUSTICE ROSS: Yes.

PN570

MS McKINNON: And swabbing.

PN571

MR CRAWFORD: I think given there's no agreement and the fact that the current award is reflected, we might put that in the too hard basket.

PN572

JUSTICE ROSS: All right. Okay. That item now is resolved because you all agree that the clause 25 allowances only apply to those two streams. Then 84, special allowances. What I really want to know is in what way do you say it has changed the scope or meaning of the clause.

PN573

MS McKINNON: Primarily, as I recall, when you look at the clause it kind of looks like you're just talking about one home, but a person might have a number of points of departure from which they're travelling. The wording in the current award has a range of jobs to do and, in trying to simplify it, I don't know that it has been picked up entirely.

PN574

46.1. For example, there is a reference in the current 46.1 to an employee not residing at their "home or usual place of residence" and the exposure draft doesn't talk about the home. It only talks about the usual place of residence. It doesn't talk also about when they're residing at the home or usual place of residence; that is, during the shearing or the crutching. There are just a few attempts to simplify it that have potentially changed it.

PN575

JUSTICE ROSS: Okay.

PN576

MR CRAWFORD: It has got "during a shearing (or crutching)".

PN577

JUSTICE ROSS: Yes, I think the intent is clear that if you're away from where you usually reside, whether it's your home or somewhere else - your home would normally be the usual place of residence. Say for tax purposes, you have to nominate somewhere. I'm not sure in practice it would make much difference, because they'll rock up - they're shearing, anyway, so unless they live down the road or have a place down the road, they're going to be either provided with sleeping quarters or they'll get the allowance.

PN578

Have a look at what you want to do with it and if you can reflect and then confirm what your position is, and perhaps see whether it would make any - I understand the point. I'm just thinking in practice it doesn't look as if it's going to be something that's going to make much difference. It is actually a slightly odd expression in the current award, but - - -

PN579

MS McKINNON: Yes, we'll certainly have a look at it. I mean, there may be some history because these are generally expeditionary people and have girlfriends in the bush.

PN580

JUSTICE ROSS: All right.

PN581

MS McKINNON: We'll have a look at it and come back on it.

PN582

JUSTICE ROSS: 86.

PN583

MS McKINNON: 86.

PN584

MR CRAWFORD: The "act of God", is it?

PN585

MS McKINNON: "Act of God" has got taken out. Somebody doesn't believe. I mean, is there a reason why we can't - because it's used in, for example, insurance policies.

PN586

JUSTICE ROSS: I don't know. I assume someone who drafted it has got a view about it, but I don't care one way or the other.

PN587

MS McKINNON: Maybe it's religious discrimination.

PN588

JUSTICE ROSS: It might be just a lack of precision around what is an act of God. Let me have a look at it. I wondered whether, when I had a quick look before, there is anything in the stand‑down provisions in the Act that might talk about the circumstances in which you're not able to be usefully employed or something like that. It might make more sense than trying to capture all the cataclysmic events we can think of. You know, locust plague, that sort of thing.

PN589

I think if it's in there now, then I can't think of - other than the clarity point, I don't think the religious point is a reason for taking it out. The clarity point might have something in it, but - - -

PN590

MR CRAWFORD: I mean, "other unforeseen natural causes", I think that has got some work to do and then there are, I suppose, the examples - - -

PN591

MS McKINNON: For us it's the word "natural" there because a fire might not be a natural cause, but it might still burn down the station.

PN592

JUSTICE ROSS: That won't be an act of God either. It will be an act of an arsonist.

PN593

MS McKINNON: An act of someone who thought they were God.

PN594

JUSTICE ROSS: Yes.

PN595

MS McKINNON: Exactly.

PN596

JUSTICE ROSS: I just want to have a look and see whether the stand‑down stuff might be useful, because it's really about supervening events beyond the control of the employer and whether it's by a natural disaster or a criminal act, doesn't really matter then.

PN597

MS McKINNON: Exactly.

PN598

JUSTICE ROSS: Yes, well, let's leave that and we'll see how we go. Schedule 9, definitions. 118.

PN599

MR LETCHFORD: It's less important now, reflecting on act of God - - -

PN600

JUSTICE ROSS: Yes.

PN601

MR LETCHFORD: Because in the old days when we used to engage our workers for, you know, a period of a minimum number of sheep to shear, then act of God was a really important term to when their contract - you could say, "Sorry, boys and girls, we're legging it out of here."

PN602

JUSTICE ROSS: Yes.

PN603

MR LETCHFORD: "You're not getting paid any more."

PN604

JUSTICE ROSS: Yes.

PN605

MR LETCHFORD: But, anyway.

PN606

JUSTICE ROSS: So this is the definition of continuous service. I suppose there is a note that the term is not used elsewhere in the award.

PN607

MR CRAWFORD: I guess it could interact with the NES. I think the concern we were identifying was the suggestion that continuous service is not broken if you take 152 ordinary hours of leave because of sickness or accident might suggest that if you do take more than that period, continuous service is broken. I think if you had accrued six months of personal leave, you could take all that and it wouldn't affect your continuous service.

PN608

JUSTICE ROSS: Yes, that's right.

PN609

MS McKINNON: It depends if it's paid leave or unpaid leave.

PN610

JUSTICE ROSS: No, but if you've got accrued paid leave and you take that accrued paid leave, it can't affect your continuity of service irrespective. Do you need something like this in the award at all?

PN611

MS McKINNON: Well, we may not need a definition at all. Maybe that is the question for us; do we need it.

PN612

JUSTICE ROSS: Yes, because if you don't have the definition, well, that sort of solves the problem.

PN613

MS McKINNON: Exactly.

PN614

JUSTICE ROSS: On 118, the parties will give consideration to simply deleting a definition. I'll amend the revised ED and you can comment then when you see it without it. 95, shearing.

PN615

MS McKINNON: I think our comment there was that it falls under the table which is just dealing with shearers. The rule applies to all shearing industry employees, not just shearers, except for shearing cooks. Again, it's just ensuring that what is in the schedules accurately reflects without messing up - - -

PN616

JUSTICE ROSS: Okay. So that issue then might really fall within the schedule B and C discussions that I want you to have in any event.

PN617

MS McKINNON: Yes.

PN618

JUSTICE ROSS: That might be the best way of dealing with it.

PN619

MS McKINNON: Yes.

PN620

JUSTICE ROSS: All right. That seems to have covered the issues on the list. What I'll do is get the transcript put up and then do a short report on where the matter is up to, and what each of us is going to do, then there will be follow‑ups. On various issues you're going to come back in seven days or so. You know, if it's the end of next week, then that's fine. Once we've got those in, we'll do a revised exposure draft and an updated submissions document. I'll get the background material that I've said I will get you on some of the issues in dispute.

PN621

I think I would leave it at least four weeks before a further conference, just to give you sufficient time to try and sort out the schedules issues at least between the AWU and NFF. I do want at least a week between getting that and then listing a conference, so the other parties have got an opportunity to look at that material and decide which way they want to go on any unresolved issues. Is there anything else at this stage?

PN622

MS McKINNON: Not for us. Thank you.

PN623

JUSTICE ROSS: If anything comes up and you want some assistance from us - that is either looking for the history of something, where it came from, which award it was dragged from or anything like that - just send an email to my chambers and we'll get that work done for you. Okay. All right. Thanks very much. Was there anything further from South Australia?

PN624

MR KLEPPER: Nothing further from us, thanks.

PN625

JUSTICE ROSS: Okay. Thank you very much.

ADJOURNED INDEFINITELY [1.33 PM]