PN1

THE COMMISSIONER: Well another day, another modern award. Mr Duncalfe.

PN2

MR Z DUNCALFE: That's me, yes.

PN3

THE COMMISSIONER: Arjonilla.

PN4

MR H ARJONILLA: Arjonilla.

PN5

THE COMMISSIONER: Ms Bhatt.

PN6

MS R BHATT: Yes, Commissioner.

PN7

THE COMMISSIONER: Frequent flyer. Mr Roucek.

PN8

MR M ROUCEK: Correct.

PN9

THE COMMISSIONER: And Mr Jack. The purposes of today is to see if we can iron out any bumps and issues around the template. Ideal if we do. If we don't, that's okay. (Indistinct) further process to today but generally those of you have been involved in these sessions will hopefully have had experience that generally most things get resolved one way or the other.

PN10

Usual practice, we're simply going to go one by one. I've scanned the submissions but I can't say I'm completely across them because to a certain extent, on a number of points, that (indistinct) summary of submissions in some detail and so obviously I'll just lead the discussion, put propositions to you and just speak up if there's any particular thing that I've missed or that you want to recover, okay.

PN11

Starting with item one, I'm not really sure where we're at here. We don't have Business South Australia do we? No, so what do you want to say about this?

PN12

MR ARJONILLA: Perhaps in essence, it's a statement principle that we put rather than direct submission in relation to where any particular example should be used. It's an expression of preference and no more, Commissioner.

PN13

THE COMMISSIONER: All right, so there's no particular action to take on that? Item two. Does everyone agree that that issue will be determined by the award, at the award stage, group three Full Bench?

PN14

MR ARJONILLA: Yes. Yes, Commissioner.

PN15

MS BHATT: (Indistinct response).

PN16

THE COMMISSIONER: In respect of three, my note is that it appears that you all agreed to await the decision in AM2014/75.

PN17

MS BHATT: That's right. It was a hotly contested issue, as you may be aware, Commissioner. We've had a discussion briefly with Mr Arjonilla this morning and it remains our view that consideration of this should be deferred.

PN18

THE COMMISSIONER: That's the best place to deal with it.

PN19

MS BHATT: Yes.

PN20

THE COMMISSIONER: Yes, all right. Yes, I'll (indistinct) that. (Indistinct). Ms Bhatt, you're wanting to go back to the future on this?

PN21

MS BHATT: Well our submission is that the definition that's been inserted in the exposure draft doesn't reflect the definition that was determined by the Commission in its decision of July 2015. Specifically, it doesn't make clear that it is referring to the minimum hourly rate that is prescribed by the Award.

PN22

You've heard me make submissions many times now, I think, about the possibility that that may encapsulate over award payments which, true, is inconsistent with the decision of this Commission. I think in response, United Voice, (indistinct) today, proposed a definition which would include a reference to the minimum wages provision of the exposure draft which is clause 14. I think that goes some way in resolving a matter that we've raised but not entirely because, of course, rates for apprentices, adult apprentices, trainees and those who are subject to the support of wage system are provided for in other provisions and are entitled to a slightly lower rate.

PN23

THE COMMISSIONER: Have you got a build on their drafting?

PN24

MS BHATT: Well I think one way of dealing might – the issue might be is if the definition were to read "Ordinary hourly rate means a minimum hourly rate for an employee's classification prescribed by this Award plus any all-purpose allowance to which an employee is entitled", so it's just a matter of working out which clause prescribes the relevant minimum hourly rate rather than pinpointing a particular provision.

PN25

THE COMMISSIONER: Ordinary hourly rate. You're still staying with ordinary though (indistinct)

PN26

MS BHATT: Starting with ordinary hourly rate means a minimum hourly rate for an employee's classification prescribed by this Award plus any all-purpose allowance to which an employee is entitled.

PN27

THE COMMISSIONER: Which reverts to Northern Territory in Saxon Aged Care didn't we, just out of interest, can you remember?

PN28

MS BHATT: Pardon? My recollection is that the discussion there was about inserting a definition of the term minimum hourly rate.

PN29

THE COMMISSIONER: Yes, that's right.

PN30

MS BHATT: In light of the slightly separate issue that was raised by the (indistinct) present in that context.

PN31

THE COMMISSIONER: In the end though, this is still saying – this sort of re-defines – well says ordinary hourly rate and that means the minimum hourly rate, but okay. Yes?

PN32

MR ARJONILLA: At first blush, I've got no immediate concern with it. I'd have to seek instructions on it. In terms of the issue as a whole, it was our understanding that this firstly, was something that was put to bed by the Commission in the July decision and secondly, that there wasn't one – a textbook definition that was to be applied, a wholesale manner. Our position is and remains that the definition within the award is consonant(?) with the Full Bench decision.

PN33

I think it's probably also useful to note that in schedule B, at B.1.1, there is a second definition of ordinary hourly rate. Yes, our position is (indistinct) should be uniform and - - -

PN34

THE COMMISSIONER: (Indistinct) in the exposure draft?

PN35

MR ARJONILLA: That's correct.

PN36

THE COMMISSIONER: Where is it? Schedule B?

PN37

MR ARJONILLA: Schedule B. B.1.1.

PN38

THE COMMISSIONER: That's consistent with what (indistinct) first part.

PN39

MR ARJONILLA: There's, of course, an additional sentence there and one that we say should - - -

PN40

THE COMMISSIONER: Which forms part of the employee's ordinarily hourly rate

PN41

MR ARJONILLA: We say should be included, so our preference would be - - -

PN42

THE COMMISSIONER: Stick with that.

PN43

MR ARJONILLA: - - - in first instance to stick with that.

PN44

THE COMMISSIONER: That works, doesn't it?

PN45

MS BHATT: There's the proposition that the definition that's at B.1.1, the (indistinct) in clause two.

PN46

MR ARJONILLA: Correct.

PN47

MS BHATT: It doesn't resolve the issue that we've raised though because it again refers to the minimum hourly rate. But what is the minimum hourly rate and the definition that's been inserted in this exposure draft at clause 2 and in B.1.1 is not consonant with the Commission's decision because ‑ ‑ ‑

PN48

THE COMMISSIONER: It doesn't have a lot of (indistinct) employee's classification.

PN49

MS BHATT: It doesn't tie it to the rate that's prescribed by the award. But I have no – I think, in fact, we raised this very issue that the definition should be consistent between clause 2 and B.1.1, so wherever we land it should be the same definition in both instances.

PN50

THE COMMISSIONER: Well is an outcome that you have B.1.1 amended to include - and then you have the same definition in both, ordinarily hourly rate, and then we have a pay for an employee's (indistinct) just for employees or an employee's classification.

PN51

MS BHATT: Prescribed by this award.

PN52

THE COMMISSIONER: Prescribed by this award, and then the rest of it as is.

PN53

MS BHATT: Yes. That resolves - - -

PN54

THE COMMISSIONER: That fixes that issue.

PN55

MR DUNCALFE: B.1.1, is that, sorry - - -

PN56

THE COMMISSIONER: Yes, then you'd have the same wording in both. How does that sound?

PN57

MR DUNCALFE: I'd have to seek instructions on it but I'd imagine that would be amenable to the union.

PN58

THE COMMISSIONER: Yes, all right.

PN59

MR ARJONILLA: Just so I understand, sorry, Commissioner, so we're talking about the entire definition in B.1.1 adding to - - -

PN60

THE COMMISSIONER: B.1.1 will read exactly as it does now except you would insert the words in the first line, so where it reads now "is minimum hourly rate for a (indistinct) employee", that would (indistinct), plural, employees, well it's not plural but just "classification prescribed by this award, plus any allowance payable" and we would keep that same definition in - - -

PN61

MR ARJONILLA: Clause 2.

PN62

THE COMMISSIONER: Yes.

PN63

MR ARJONILLA: In its entirety.

PN64

THE COMMISSIONER: Yes.

PN65

MR ARJONILLA: I'm happy with that.

PN66

THE COMMISSIONER: You're okay with that?

PN67

MR ARJONILLA: Yes.

PN68

THE COMMISSIONER: I'm just going to note that AMWU will advise by 21 (indistinct). You've only got to say "Yes, I've still got an issue" or "No, good to go".

PN69

MR ARJONILLA: There's one issue, (indistinct) the individual I have to speak to wasn't in the office. Tomorrow, Commissioner, I'm afraid.

PN70

THE COMMISSIONER: They'll (indistinct).

PN71

MR ARJONILLA: (Indistinct) the public holidays isn't it?

PN72

THE COMMISSIONER: End of next week?

PN73

MR ARJONILLA: Most certainly.

PN74

THE COMMISSIONER: All right. 21st. Number five.

PN75

MR ARJONILLA: Four, I can deal with that, Commissioner. We don't press it.

PN76

THE COMMISSIONER: Number six.

PN77

MR ARJONILLA: That's ours, Commissioner. It's really a stylistic amendment, if anything else. What we propose is an alternative formatting of that clause, the coverage clause, at clause 4. In essence, inserting two headings with the aim of making that clause, in its entirety, easier to understand.

PN78

THE COMMISSIONER: Right, (indistinct).

PN79

MR ARJONILLA: It's annexure A to our submissions filed in January.

PN80

THE COMMISSIONER: So it's who this Award covers and who does this Award not cover.

PN81

MR ARJONILLA: Yes. And consequently there's a re‑alignment of some of the text within the document and we've also removed, which is consistent with another item, but I can't name it off the top of my head in this list, but with the submission that we remove the definition of Food Employee from the coverage clause and place it in the list of – in the schedule of definitions.

PN82

THE COMMISSIONER: Food employee.

PN83

MR ARJONILLA: Food beverage and – rather Food Beverage and Tobacco Manufacturing Commission, the definition of that, which is in the present exposure draft at 4.2.

PN84

THE COMMISSIONER: Wouldn't that be out of step with the general way we construct these?

PN85

MR ARJONILLA: (Indistinct), Commissioner. My experience of this clause is fairly limited, the Award modernisation procedure, review procedure, but what our submission, in essence, is that it would be sensible to have all the definitions that appear within the document to appear in the one central location.

PN86

It's not a matter that union's going to die in a ditch about but it's certainly a manner of dealing generally with the clause that, we submit, it would make it much easier for your average employee to understand that clause. It's a ‑ ‑ ‑

PN87

THE COMMISSIONER: Yes. I'm not sure I'm with you. It's just that it's less than the definition, it's the coverage clause that's – and that's where it should be, I think.

PN88

MR ARJONILLA: May it please.

PN89

THE COMMISSIONER: But, yes, that's probably (indistinct) views.

PN90

MR ROUCEK: I wouldn't cavil with that, Commissioner. I think it does fit there. Our experience has been a member asking "Are we covered by a particular award" and you say "Well, let's go to the coverage clause together" - - -

PN91

THE COMMISSIONER: The coverage clause, yes.

PN92

MR ROUCEK: - - - and the definition, they don't realise it's in the definition section, so.

PN93

THE COMMISSIONER: Yes. I just think that's – well, what about the sub-headings is a separate issue, (indistinct) that.

PN94

MS BHATT: Well having had the pleasure of personally being involved in the review of 75 of the 122 modern awards to date, the approach taken in this exposure draft is consistent with the approach that's been taken in all of the other exposure drafts. Indeed, it seems to us that the Commission has made a concerted effort to ensure that that is so.

PN95

THE COMMISSIONER: That is the mission, yes.

PN96

MS BHATT: It is walking out of step with that and I can see no reason why a different approach should be adopted in this exposure draft.

PN97

THE COMMISSIONER: Sure. I mean, that's a powerful argument. We are trying to – so, even if I was to say I think it's a good idea, I think the (indistinct)

PN98

MR ARJONILLA: (Indistinct) being accused of being rebellious but I – as it pleases, Commissioner.

PN99

THE COMMISSIONER: Can I indicate AMWU no longer press this issue?

PN100

MR ARJONILLA: You may, Commissioner.

PN101

THE COMMISSIONER: Seven we've dealt with, is that right?

PN102

MR ARJONILLA: Correct.

PN103

THE COMMISSIONER: Yes. Eight. My note on this is it appears agreed that the Business South Australia proposal for (indistinct) reference (indistinct) in the Award.

PN104

MS BHATT: You've just identified, can you help me, that's right, I think there are two issues. I think we're all in furious agreement that the reference to clause 22.9 should instead be to 22.9(d).

PN105

THE COMMISSIONER: Yes.

PN106

MS BHATT: The Business SA submission, I think that needs some parties, including ourselves, have indicated that's probably right, we don't oppose that as a basic principle. However, as I look through this quickly, it seems that that's already the case, that they're listed in the order in which they appear in the instrument.

PN107

MR ROUCEK: There is an issue where clause 22.7 appears after 22.10, yes.

PN108

MS BHATT: You're quite right.

PN109

THE COMMISSIONER: That's the only – that's the - - -

PN110

MS BHATT: That's the only example I can - - -

PN111

MR ARJONILLA: I believe so, yes.

PN112

THE COMMISSIONER: Otherwise they're all as they want.

PN113

MR ROUCEK: They appear to be, Commissioner.

PN114

THE COMMISSIONER: We're happy to move 22.7 into its proper numerical place?

PN115

MR ROUCEK: I'm happy about that.

PN116

THE COMMISSIONER: (Indistinct) delete it, Ms Bhatt.

PN117

MS BHATT: If I can take the Commission to clause 7.1(a). I should note that 7.1, wait – clause 7 it its totality is not new to the exposure draft. There is a provision comparable to this that exists in the current award. 7.1(a) describes what facilitative provisions. It says:

PN118

This Award contains facilitative provisions which allow agreement between an employer and employees on how specific award provisions are to apply at the workplace or a section or sections thereof.

PN119

Then those facilitative provisions are identified in 7.2, 7.3, 7.4. When we go to 7.2, it identifies clause 24.10 and 24.13. If I deal with 24.10 first. It allows an employer and employee to agree that the employee can take annual leave before it accrues but it is not a clause that enables agreement about how a specific award provision is to apply. It's not a facilitative provision as it's contemplated by clause 7.1 or, indeed, how our organisation understands that facilitative provisions to have been characterised historically.

PN120

The same can be said for clause 24.13, which is cashing out of annual leave. It's the NES that provides for the manner in which annual leave is accrued and it proceeds on the basis that the entitlement to take annual leave arises only once the leave is accrued. It's not the award that provides for that. There's no other award provision from which we are departing when an agreement is reached to take annual leave in advance. We think it's simply erroneous.

PN121

THE COMMISSIONER: It's more – if I put it another way, (indistinct) what you're saying, there's nothing to facilitate.

PN122

MS BHATT: No, precisely.

PN123

THE COMMISSIONER: If you like, yes, your argument is the annual leave in advance clause is a clause in itself that facilitates the taking of annual leave in advance and tells you how to do it. It's the same for cashing out of annual leave.

PN124

MS BHATT: Yes.

PN125

THE COMMISSIONER: What would you do with the facilitative clause? Yes, what is there to – as opposed to what's known as annual leave?

PN126

MS BHATT: We're taking the minimum engagement for example, the award says part time employees have, I think it's minimum engagement of four hours but you can agree to something less. The award prescribes the spread of hours but by agreement you can vary the spread. The award says meal break must be taken within five hours but by agreement you can take it within six.

PN127

THE COMMISSIONER: That's where you use your facilitative provision.

PN128

MS BHATT: Precisely. That is a facilitative provision. These two clauses aren't facilitative provisions and so we think it's simply erroneous to have them included in clause 7.2(a) for that reason.

PN129

THE COMMISSIONER: Okay.

PN130

MR DUNCALFE: We disagree with that, Commissioner.

PN131

THE COMMISSIONER: Yes.

PN132

MR DUNCALFE: We think that the provisions are facilitative in the fact that they provide for an alternative to the status quo which the NES rightly does.

PN133

THE COMMISSIONER: Well the clauses do, the 24.10, the clause does. The question is what would you use the facilitative clause to do to 24.10 that would – I just ‑ yes, how would it become operational? You understand what I'm saying?

PN134

MR DUNCALFE: I don't understand what you're saying, sir.

PN135

THE COMMISSIONER: Again, just going back to that example, let's take (indistinct), so - - -

PN136

MR DUNCALFE: I understand the essence of AiG's submission on this. The fact of the matter is that it doesn't itself establish the award condition and also a method or ability to depart from it. That's what I understand.

PN137

MS BHATT: That's right.

PN138

MR DUNCALFE: But basically, I mean the table is there as an easy reference point for parts of the award where things can change their agreement between the employer and the employees and then you've obviously got the individuals and you've got the majority of. We still think that they're characterised as facilitative enough even though the provision itself doesn't establish the award standard because the award standard is already there via incorporation of the NES.

PN139

The award standard is that you need to accrue annual leave before you can take it. 24.10 allows for agreement to take annual leave before that point is reached and also the same with cashing out of annual leave. The standard is you can't cash out annual leave. 24.13 allows you to agree with your employee you can.

PN140

MR K. JACK: I would note that – I mean, the NES doesn't prohibit cashing out of annual leave. It just provides that you can cash it out if an award allows you to and in this case, the award does and same with annual leave in advance but it's not departing from the standard. The NES actually provides a mechanism for awards to do this.

PN141

THE COMMISSIONER: Yes, if I put it another way you would concede if there was no annual leave in advance provision, you wouldn't have an argument because your argument is predicated on well if we've got the facilitative provision (indistinct) that's the clause. But if that wasn't there and there was a need for some facilitative provision about the taking of annual leave in advance, then that would be fine.

PN142

MS BHATT: If it was the award itself that said annual leave must not be taken before it is accrued and then there's another clause that says but by agreement you can and here are all the bells and whistles attached to that, then fine. In those circumstances, the annual leave in advance clause is probably a facilitative provision because the award provides for one thing and then by agreement you can depart from what the award is providing but that's not what this clause does.

PN143

MR DUNCALFE: Which is - - -

PN144

MS BHATT: A facilitative provision is not any provision that allows for agreement between an employer and an employee. It's where the award provides for one thing and then by agreement you can depart from what is otherwise being regulated by the award and if you work through these examples, and I had a quick look at them this morning, that is consistently the character of the provisions that have been listed, and I say that without having done a comprehensive review of all of them, but these two, 24.10 and 24.13, are out of step with that and I don't think it's ‑ well, two things, I don't think it benefits anyone at this bar table to have provisions incorrectly identified in this clause and I don't think that it can be considered necessary to include in the sentence contemplated by section 138 of the Act to have provisions that are, frankly, incorrect and inconsistent, internally inconsistent, with what's provided at clause 7.1(a), which is what describes what a facilitative provision is.

PN145

MR DUNCALFE: I'm aware completely of the argument, I still just disagree with it. I think that the table is there for ease of use and it's for the agreement between employer and employee to depart from what's standard. I know that the 7.1 explains that the standard is, and I'm willing to accept that, that the standard – the award provisions establish both the standard award condition and the framework within which agreement can be reached as to how you can depart from it but I think there's value in leaving them in there, so both employers and employees know about those provisions without having to delve too far into the award and that's just my position.

PN146

THE COMMISSIONER: Look, we'll move on from it in a sec but 24.10, if you just look at what's operational in that clause. I mean, if I understand your point (indistinct), it's well – what is there for a facilitative clause to do? It just says you can agree in writing, so there's the, if you like – that facilitates the – and grants licence and a right to be able to access annual leave despite the fact that you've not, under the terms of the NES, accrued it and then the rest of it is the mechanics.

PN147

These are all the things that must be done to give effect to that. They're protections for both the employee and the employer. If we come back to that point, which I think's compelling, what work's the facilitative provision got to do? Is that an issue?

PN148

MS BHATT: That is the issue and I mean - - -

PN149

THE COMMISSIONER: The cashing out of annual leave, can't cash out except in accordance with an agreement under that clause and then you've got, again, the standard safeguards.

PN150

MR DUNCALFE: Well does 24.13 not establish the standard, must not be cashed out?

PN151

THE COMMISSIONER: Except in accordance with an agreement under – well, arguably (indistinct) this clause, but that's what it says, you can't cash it out unless you do it this way, so what part of that (indistinct) facilitate jumping out of? It wouldn't because there's safeguards about how you cash out, it's the same argument. I think it's a compelling position and I'll just note with that effect and maybe if you let us know, again, by same day of 21 April if you want to continue to press it.

PN152

MR DUNCALFE: I can do that, yes.

PN153

THE COMMISSIONER: But have a think about it. I think the frame we'll look at it through is what would anyone ever do with the facilitative provision in respect of those two clauses. I think that's probably the best way to look at it and I can't see that you would.

PN154

MR DUNCALFE: There's a matter that presents out of sheer interest, Commissioner, which is that given that these have been inserted into, as I understand it, all awards, it presumably has been an issue that's cropped up in relation to two other awards and - - -

PN155

THE COMMISSIONER: They might be and might - just to be clear, what happens is after we go through these processes, I spend some time with the gurus in Fair Work who put these things - who (indistinct) spend all of their time working through these things. People like Catherine (indistinct) know more about awards more than probably anyone on the planet so we go through that.

PN156

I'll go through that and say well, here's the proposition and all those (indistinct) been going on in other awards and (indistinct) for me on a lot of those things. There'll always be that sort of back checking to sort of – and, of course, as I probably should have said at the start, as I said, all the matters I chair on these things, of course, while you say you all agree on something, that doesn't necessarily mean we're going to do it. If it's a (indistinct) something's going on but I recognise we've got (indistinct) and dealing with a lot of award proceedings and a pretty fair sense of where the Commission itself is going with that, so (indistinct)

PN157

MS BHATT: As I was going to say, for the Commission's benefit but also with my colleagues, but I think all of the group four awards, or at least the group 4D, E and F awards, have adopted the approach of identifying these two provisions in the facilitative clause and in any award that Ai Group has an interest, we have raised this issue.

PN158

THE COMMISSIONER: Yes by consistent way, so yes.

PN159

MS BHATT: Yes.

PN160

THE COMMISSIONER: Look, part of the answer will be it will come out of them all or it will stay in them all, so. But at least for the purposes of this one, again, let me know by 21 April if you object, continue to object to the AiG proposal. Same issue, is it, clause 10, sorry, item 10?

PN161

MS BHATT: Yes, so that's the cashing out clause.

PN162

THE COMMISSIONER: Yes. 11.

PN163

MS BHATT: I think items 11 and 12 are actually the same issue and it's simply that clause 7.2(a) should be amended by inserting a reference to clause 13.5. The corresponding provision to clause 13.5 in the current award is included in the facilitative provisions presently. It seems to have just been left out here.

PN164

THE COMMISSIONER: Left out, yes. Nobody has views on that?

PN165

MR DUNCALFE: No.

PN166

MR ROUCEK: No, Commissioner.

PN167

THE COMMISSIONER: 10. Incorrectly (indistinct) references to clause 10.6. (Indistinct) with this. Anyone have a view?

PN168

MS BHATT: On Ai Group's part, I have to confess I have some difficulty understanding what the concern is because the casual conversion provision provides that, and I'm using these terms loosely, but after six months of (indistinct) regular and systematic employment, casual employee has the right to elect to convert and then 10.6 says that that six month period can be extended to 12 months if there's agreement between the employer and the majority and maybe the individual. I mean, I think that's a facilitative provision. I think it's referenced in the current award too so I wasn't clear on what the concern was that the union's raised.

PN169

THE COMMISSIONER: (Indistinct) views? Don't care? You're not (indistinct)?

PN170

MR DUNCALFE: I personally couldn't see the difference between the two but I'm cautious because I haven't spoken to United Voice about it so they might have identified something that I didn't see.

PN171

MR ARJONILLA: (Indistinct) not willing to talk to it really. To be frank, in the first instance, I dismissed it on the basis that it was a clause that was anyway subject to a common claim. As I understand it, that's the casual conversion clause is subject to the common claim in relation to casual employee provisions, which is, I've got it here, Commissioner, (a) and 2014 197, and I dismissed it on that basis. I haven't looked at the submission any further. I would do so but at first blush it doesn't raise any particular concerns.

PN172

THE COMMISSIONER: It's only the existing award's got a reference (indistinct), it's the same thing isn't it?

PN173

MS BHATT: Yes, Commissioner.

PN174

THE COMMISSIONER: All right. Item 13. Does not appear there's any support for it. AiG to advise by 21 April if they still press it. You happy with that. You'll get a chance to comment on the notes that I make today. I'll circulate them around. Item 14.

PN175

MS BHATT: I think item – I'm sorry, Commissioner.

PN176

THE COMMISSIONER: I was just about to say I'm not sure what the issue is here, so if you can explain it, that'd be great.

PN177

MS BHATT: I was about to say, it might end up falling in the same category. United Voice's submission seems to be that the reference in clause 7.3(a) of the exposure draft to clause 13.1 should be to 13.1(b) but the exposure draft does, in fact, refer to 13.1(b).

PN178

THE COMMISSIONER: Yes.

PN179

MS BHATT: We think that that reference was correct.

PN180

THE COMMISSIONER: Correct.

PN181

MS BHATT: But I don't think it's (indistinct) clearly but these sorts of issues have arisen (indistinct) organisation in the past. Sometimes when we look at the comparative document that's published by the Commission, which may be slightly different in its terms, so (indistinct) something like that.

PN182

THE COMMISSIONER: The award clause dyslexia.

PN183

MR JACK: After some time, you (indistinct). I think we must have as well because we seem to have agreed with United Voice.

PN184

THE COMMISSIONER: You don't agree anymore do you?

PN185

MR JACK: No, your Honour, thanks.

PN186

THE COMMISSIONER: Item 16 and 17 are the same. They just appear to already be in the exposure draft, what United Voice has put forward.

PN187

MS BHATT: Sorry, the item 16 and 17?

PN188

MR JACK: Yes, it seems to be.

PN189

MS BHATT: No, they're issues that (indistinct) with the Ai Group.

PN190

MR DUNCALFE: That's you as well. I think there's a different. They're you, yes, 12.3(c), 12.3(d).

PN191

THE COMMISSIONER: 12.3(c).

PN192

MR DUNCALFE: Are they not already done?

PN193

MR JACK: AiG, 7.3, 12.5.

PN194

THE COMMISSIONER: Well just before you jump ahead, (indistinct) 15, so the – it's the same result as 13, I guess.

PN195

MR DUNCALFE: I take it back.

PN196

THE COMMISSIONER: Item 15 appears agreed.

PN197

MS BHATT: It does.

PN198

THE COMMISSIONER: Yes. 16, 17, also appear agreed.

PN199

MR DUNCALFE: Yes, Commissioner.

PN200

MS BHATT: Yes, Commissioner.

PN201

THE COMMISSIONER: 18. Full time employment. We're talking about the award aren't we? We're not talking about (indistinct) or something (indistinct)

PN202

MR ARJONILLA: I wasn't going to press it strongly. Look, in first instance we thought it would be something that might assist in terms of clarity. Again, Commissioner, it's not a matter that we're going to die over.

PN203

THE COMMISSIONER: It's always one of those things that sometimes less is more, is probably where I'm at but anyway have you thought about it more? You think it's necessary?

PN204

MS BHATT: I don't think it is. I mean we didn't oppose it on the basis that if the union's (indistinct) some unintended consequence that might arise then fine, put it back. For my part, we don't seem to be able to identify one, so if it were withdrawn by the union we wouldn't press it.

PN205

MR DUNCALFE: The AWU, I think it's worthwhile.

PN206

THE COMMISSIONER: You do?

PN207

MR DUNCALFE: Mm.

PN208

THE COMMISSIONER: Why?

PN209

MR DUNCALFE: Unless otherwise specified. As you said, it's not the Magna Carta but unless that otherwise specified in what, a piece of paper between the employee and the employer?

PN210

THE COMMISSIONER: Well you've got "unless otherwise specified".

PN211

MR DUNCALFE: Yes.

PN212

THE COMMISSIONER: Yes, it's whether you say "in this award".

PN213

MR DUNCALFE: Yes, that's what I - - -

PN214

THE COMMISSIONER: But read the whole sentence again. Always these things have to be read in context and part of the instrument as a whole "Any employee not specifically engaged as a part time casual employee is for all purposes of this award a full time employee unless otherwise specified".

PN215

MR DUNCALFE: Unless otherwise - - -

PN216

THE COMMISSIONER: Just straightaway on construction to say it was about something else and we aren't trying to cut them down rather than build them up. Though if there was some particular confusion that you think might arise, well - - -

PN217

MR DUNCALFE: Well it's just of a technicality you could have someone otherwise specified elsewhere not in the award.

PN218

MR ARJONILLA: On reflection, that was actually the concern that this was something that someone could pick up and say "Oh well look I've got a letter of appointment from such and such that says I'm something else".

PN219

MR DUNCALFE: Yes.

PN220

MR ARJONILLA: I recall this conversation, yes.

PN221

MR DUNCALFE: Just closes that clause for the availability of there being a third – well another piece of – another agreement, otherwise specified, unless otherwise specified. It doesn't specify where that has to be specified.

PN222

THE COMMISSIONER: Something in that (indistinct). We've got another letter of appointment that says you're something else, well can't contract out of the award, so what does that all mean in the end?

PN223

MR JACK: I'm also not sure if there's anything - - -

PN224

THE COMMISSIONER: Pure technicality.

PN225

MR JACK: Yes. I'm also not sure if there's anything in the award that would say you're anything other than a full time employee.

PN226

MS BHATT: That's what I'm trying to get my head around.

PN227

THE COMMISSIONER: Well what else would there be?

PN228

MR JACK: We're not strongly opposed though, Commissioner, to this. I do note that it's (indistinct) they did in their submissions disagree, so.

PN229

MR ARJONILLA: An alternative would be is "For all purposes of this award full time employee otherwise specified within it" or "within the award".

PN230

THE COMMISSIONER: I'm just resisting sinking any more words in that you don't need. I'm just not compelled that there is a need. Because you are – it tells you you're either engaged as part time or casual employee, not either of those things, you're full time. That's what (indistinct) does. Unless otherwise specified. I'm starting to wonder what those words were for but at least leave that dog alone.

PN231

MR DUNCALFE: Let's just get rid of them. I mean, "Any employee not specifically engaged as a part time or casual employee is for all purposes of this award a full time employee" full stop.

PN232

MS BHATT: Well (indistinct) fit through that. This is not a small matter we're tinkering with, definition of full time employment. That's the manufacturing award, so let's - - -

PN233

THE COMMISSIONER: Well the best is what is it for, unless otherwise specified?

PN234

MS BHATT: I don't know and I'm trying to think through the issue that's just been raised by AFEI because I don't – off the top of my head I can't identify another award clause that will specify that even though an employee is not engaged as a part time or a casual employee, they're not a full time employee. I don't know if there's an award clause that actually does that.

PN235

MR JACK: I wasn't trying to say there isn't, just to point out that there might not be.

PN236

MS BHATT: No, no, I know, I'm stuck in the same situation as you, there might not be but there might be.

PN237

THE COMMISSIONER: Yes.

PN238

MS BHATT: I mean, for our part, we don't have any opposition to the extra three words that are currently in the award being re-inserted if that puts to bed any anxiety that anyone might have and we move on from the issue but any further tinkering to the definition, I'm obviously anxious about.

PN239

THE COMMISSIONER: I'm just using exactly the same as what was there before. All right. What I want to know on this is Commission's ordinary view is additional words not necessary. That is, the additional words "in this award". Note that AiG do not oppose and the Commission will consider consistency with other award, with other (indistinct) clauses.

PN240

MS BHATT: Can I just say on that issue though, whilst our organisation appreciates the desire for consistency, obviously this definition might have some relationship with the provisions within the award itself and so in an attempt to achieve consistency, if we're disrupting the operation of this award then that's something that we would say is obviously undesirable.

PN241

THE COMMISSIONER: Sure, sure and there won't be anything done without a further go around, so if out of that I'll decide well (indistinct), that we'll just leave it on that basis (indistinct). It's not quite resolved. 19.

PN242

MR DUNCALFE: I'll speak to that one. That's a withdraw.

PN243

THE COMMISSIONER: Okay. Item 20.

PN244

MR DUNCALFE: 20, also withdraw.

PN245

THE COMMISSIONER: Do you want to explain to me why this change is sought?

PN246

MR DUNCALFE: Sorry?

PN247

THE COMMISSIONER: Do you want to explain this one to me?

PN248

MR DUNCALFE: 21?

PN249

THE COMMISSIONER: Yes, item 21.

PN250

MR DUNCALFE: No, I'm going to withdraw that one.

PN251

THE COMMISSIONER: Right. 22.

PN252

MR ARJONILLA: 22 is our submission, Commissioner. It's a semantic one at most. The term "start", or the word "start", has replaced the word "commence" at clause 9.3(c). All we say in relation to this, we don't cavil with that, we just say that there should be consistency throughout the document, so it's either "start" or it's "commence".

PN253

THE COMMISSIONER: Everyone seems to agree with that.

PN254

MS BHATT: Yes.

PN255

THE COMMISSIONER: 23. You dropping this one off?

PN256

MR ARJONILLA: Yes.

PN257

THE COMMISSIONER: (Indistinct). Any other ordinary hourly rate issue. Any advance on this? Where are we at?

PN258

MS BHATT: Well if I can just explain the basis for this. The issue arises in relation to 10.2(a) specifically which says that "A casual employee working ordinary time must be paid the ordinary hourly rate specified in clause 14". (Indistinct) clause 14 (indistinct) it doesn't prescribe ordinary hourly rate. It prescribes only the minimum hourly rate and then to work out the ordinary hourly rate, one would have to add in the all-purpose allowances that are payable, so it seems misleading to us and it's on that basis that we've said that "ordinary hourly rate" should be replaced with "minimum hourly rate" prescribed in clause 14.

PN259

That's not to that say we disagree with the proposition that if a casual employee is entitled to an all-purpose allowance that that all-purpose allowance is payable and the allowance provisions will do their work, they will still require the payment of that allowance.

PN260

MR ARJONILLA: I think if we're going to take away ordinary hourly rate, we should put in 10.2(c) to talk about the allowances or penalties that a casual is entitled to because otherwise 10.2 just says that a casual employee must be paid the minimum hourly rate and a casual loading. It doesn't say that they're entitled to any allowances or penalties.

PN261

MS BHATT: The issue of penalties is a separate one and right now ordinary hourly rate doesn't deal with penalties anyway.

PN262

MR ARJONILLA: Yes, and I have an issue with the clause as it stands as well, not just with the AiG proposal because it doesn't say that you're entitled to penalties as a casual employee. 10.2, as it stands, I have an issue with and also the proposed amendment.

PN263

THE COMMISSIONER: Well what was it in the previous, clause 13?

PN264

MR ARJONILLA: 13.1.

PN265

THE COMMISSIONER: I mean, as it's saying doesn't (indistinct) give those references does it?

PN266

MR ARJONILLA: No.

PN267

THE COMMISSIONER: Have there been actually problems on the ground with them not understanding (indistinct)

PN268

MR DUNCALFE: Not that I've had any experience with, no.

PN269

THE COMMISSIONER: Well - - -

PN270

MR ROUCEK: I think it also says a casual employee working ordinary time, so it doesn't anticipate the loadings and penalties.

PN271

THE COMMISSIONER: Correct.

PN272

MR ROUCEK: Of course, people working in hours that attract those loadings and penalties will (indistinct) those.

PN273

MS BHATT: Because those provisions still do their work. The shift loading clause will still say if you work this shift, we'll pay this loading. The way those provisions are cast, they apply to all employees, full timers, part timers and casuals.

PN274

THE COMMISSIONER: Yes. Yes, and that seems to be the way it's worked before for that issue.

PN275

MS BHATT: That same principle we say applies in relation to all-purpose allowances or, indeed, any allowance which is why we don't think that replacing the term ordinary hourly rate with minimum hourly rate because 10.2(a) will be problematic. It doesn't preclude a casual employee from being entitled to any relevant all-purpose allowances (indistinct) they're payable.

PN276

THE COMMISSIONER: Yes. Well there's consistency in the sense that there was a reference in the previous (indistinct) to minimum ordinary wage albeit (indistinct) to 138.

PN277

MS BHATT: Yes.

PN278

THE COMMISSIONER: Yes, it seems to make sense to me. Convinced?

PN279

MR DUNCALFE: I'm still not convinced but I'm not going to agree to that. Just because it just seems like – like I agree that clause 14 prescribes minimum hourly rate but to give away the word "ordinary" through - - -

PN280

THE COMMISSIONER: Well (indistinct) giving it away it doesn't mean anything.

PN281

MR DUNCALFE: That's true, but - - -

PN282

THE COMMISSIONER: You don't need – it's important that you look at this task through that sort of frame and in the end, if you're not trading here, because we decide that (indistinct) sometimes remind (indistinct) it's not up to parties to determine what goes in these things. This is a consultative process but in the end, as I said at the start, you might all furiously agree on something, we'll do something completely different.

PN283

MR DUNCALFE: I do understand, Commissioner, and I just don't want to - - -

PN284

THE COMMISSIONER: The start - - -

PN285

MR DUNCALFE: - - - throw support behind this.

PN286

THE COMMISSIONER: No, I understand but just at the starting point is in the current provision, there's a reference to minimum weekly wage in clause 20.1(a) and so I just fall back to well it seems that that is what the provision was before and I think that is probably just a glitch that we've got "ordinary" come in here and it makes no sense in a reference to a clause which doesn't use the word "ordinary hourly", it uses the word "minimum", so it's just a - - -

PN287

MR ARJONILLA: There's something about this that, Commissioner, makes me anxious because my understanding was that this was – the addition of the definition "ordinary hourly rate of pay" was brought about by the Commission in the July 2015 decision and that this matter was raised by AiG in those proceedings.

PN288

I didn't want to be on the record, not that I wouldn't want to be on the record, but I wouldn't want to fix myself to a position on it, but my understanding was that even in circumstances where an award had previously said that that should have read minimum rate of pay, it should, where the Commission has seen fit to insert the term "ordinary hourly rate", it should be retained in the exposure drafts. All I'd say to that, Commissioner, is that the AMWU would seek to consider perhaps further, if we may, that matter.

PN289

MS BHATT: If I can respond to that, I think we might be conflating issues here. There is an issue that was raised by Ai Group in the context of those proceedings and on multiple occasions thereafter about the appropriate rate upon which the casual loading is to be calculated. That is, is it applied to the rate that includes the all-purpose allowance or doesn't.

PN290

The unions will note that that is not an issue that we have raised here. If it was, then we would be saying that clause 10.2(b) should be amended by replacing ordinary hourly rate with minimum hourly rate and the organisation has made a decision not to do that. The change we're seeking here doesn't touch upon that issue.

PN291

THE COMMISSIONER: (Indistinct) issue. It's a simple one really. If you're trying to apply this award and we go to 10.2 and it says okay, I've got to pay my casual employee who is working ordinary time the ordinary hourly rate in clause 14 then I go to clause 14 - - -

PN292

MR ARJONILLA: Rates.

PN293

THE COMMISSIONER: And they'd say (indistinct) the same, minimum rate. Is that relevant? It's the minimum rate of pay for working the ordinary hours, which you've already got in (indistinct) in the first line (indistinct) time (indistinct).

PN294

That deals with that and then Ms Bhatt says (indistinct) not it records as to reference (indistinct) back to reading it as a document as a whole and all the other clauses (indistinct) so then that brings me back to – but if there was evidence that that was just a massive misunderstanding about that, given that really what's been proposed is, in essence, the same as what was in the existing award, then I'd have a different view. You start talking about (indistinct) but otherwise you keep it simple.

PN295

Yes, look my notes on this coming into it were what were the previous version but that's (indistinct) indicated to me (indistinct) different but (indistinct) work the same because (indistinct) AiG (indistinct). I'm not sure there's too much think about really but I'll press the point one more time, you can push back, but can I say that there's agreement to the proposal by AiG? Remember, the notes will go around. I just want to get some finality and I'll - there's a – I do have a few things to come back on but the notes will go around.

PN296

You can always – the organisations are entitled to change their position but as I sit here, I'm still not – I can't hear other than I don't want to change it, I don't have anything so we're coming back and saying there's a cogent reason to not agree to that proposal.

PN297

MR ARJONILLA: In short terms, Commissioner, my instructions were that that had a great big red circle around it. I am very reticent to agree to the change, or at least to support the change rather than agree. But what I can say is that there has been clarification provided as to what that does mean. It does, in the first instance, concern me but I really would need to seek instructions on that, Commissioner.

PN298

THE COMMISSIONER: Yes. No - - -

PN299

MR ARJONILLA: It would be improper of me to agree without having those instructions first.

PN300

THE COMMISSIONER: I'm just going to – the note will say Commission's expressed a preliminary view the AiG proposal should be accepted. AMWU and AWU to advise by 21 April if they continue to oppose. All right. 26. All agree to revoking AN2014 of 197?

PN301

MS BHATT: Yes.

PN302

MR JACK: Yes, Commissioner.

PN303

MR DUNCALFE: Yes.

PN304

THE COMMISSIONER: 27.

PN305

MR ARJONILLA: That's our submission, Commissioner. May speak to it. It's a clause that exists in the present award, appears to have been omitted in the exposure draft. We couldn't see any rationale for that and as I understand, there's been no opposition expressed to our suggestion to re-insert that clause.

PN306

THE COMMISSIONER: Where's the clause in the existing award?

PN307

MR ARJONILLA: It's clause 15.10, 14.2.

PN308

THE COMMISSIONER: 14.22.

PN309

MR ARJONILLA: 14.2.

PN310

THE COMMISSIONER: 14.2. The probationary period, an apprentice must not exceed three months. That the one?

PN311

MR ARJONILLA: Correct, Commissioner.

PN312

MS BHATT: I don't have a copy of (indistinct) award with me but my memory is - - -

PN313

THE COMMISSIONER: The existing one?

PN314

MS BHATT: - - - of the existing one – I'm sorry, Commissioner, the Manufacturing and Associated Industries Award which is what the AMWU referred to.

PN315

THE COMMISSIONER: Right, right.

PN316

MS BHATT: There's a provision in that award that deals with probationary periods and it makes some reference to the state system, the apprenticeship system, which is a minefield that I'm not at all close to.

PN317

THE COMMISSIONER: Well two or three, yes.

PN318

MS BHATT: But there might be something that turns on that interaction which isn't caught by this clause.

PN319

MR JACK: Well I think we have no strong opposition to the clause but we wouldn't mind hearing more from the AMWU about what they think that clause actually does.

PN320

THE COMMISSIONER: Does, yes.

PN321

MR JACK: If it's of any utility.

PN322

MR ARJONILLA: My recollection of looking into the relevant state legislation was that in any case, most of the legislation said that it was, I think, a six month probation period in any case. I need to look into it further and I can commit to doing so. That's really where that sits, Commissioner.

PN323

THE COMMISSIONER: Yes, all right. Well just let me understand it a bit better. Where's the clause in your submissions that ‑ ‑ ‑ ?

PN324

MR ARJONILLA: Our submissions that relate to it, this is the submission at paragraph 20 of our 18 January submissions. We seek to insert the clause that appears in the Manufacturing and Associated Industries Award not that which presently exists in the food award.

PN325

THE COMMISSIONER: Right. You're not opposed to it (indistinct) but you're not sure what it means? Not sure if it has other unintended implications, is that where you're at?

PN326

MS BHATT: I think our organisation's view was that we wouldn't have any difficulty with the manufacturing award clause going in but I personally cannot speak to the effect. There are others in my organisation who are much closer than this.

PN327

MR ROUCEK: I think for our part, from ABI and the Business Chamber's perspective, we read that and assumed that perhaps the reference should have been to Food Beverage and Tobacco Manufacturing Award. We probably need to see more on that and wonder whether it's a more substantive change than simply a technical and drafting issue.

PN328

THE COMMISSIONER: Yes, I made the same mistake until you said that, then I was – didn't realise it was coming out of another award, but was a drag up of an existing provision in this award.

PN329

MR ROUCEK: Well I think we can agree that existing clause 14.2 does not appear in clause 11 of the exposure draft but it was a simple question of re-inserting that, then there'd be no opposition from our organisation's perspective, or the organisations that we represent's perspective.

PN330

THE COMMISSIONER: You'd be the same?

PN331

MS BHATT: I don't think I can answer that without instruction. I'm just conscious of the fact that the apprentice provisions in the manufacturing award have, in recent times, been the subject of a fair degree of scrutiny, especially during the two year review. There was lots of changes made and there was a Full Bench of this Commission that gave very careful consideration to how these provisions sit with the state systems and I'm just not sure if the provision is comparable to this in the manufacturing award or was amended to have regard to that and if that's the case, might actually be in everyone's interests to consider whether that should go into the food manufacturing award but I'm speculating here. I don't know.

PN332

MR ROUCEK: That probably lends support to the fact that it's more substantive than a technical and drafting issue and I think parties would probably need to consider it fully in light of all of those issues. I had some degree of involvement with that process in the two yearly review but it was a long process, a drawn out process, and I think transplanting that into this award has some, yes, really sort of big considerations.

PN333

THE COMMISSIONER: All right, so it's a homework job really, so that you'll come back, talk about it on 21 April (indistinct). There's (indistinct) parties further considering position.

PN334

MR ROUCEK: As I said, from the Australian Business Industrial New South Wales Business Chamber's perspective, if it was simply re-inserting that existing 14.2 into the exposure draft, there'd be no opposition.

PN335

THE COMMISSIONER: You don't oppose that, yes. But look, again, I think from your point of view, think that through ‑ ‑ ‑

PN336

MR ROUCEK: Sure.

PN337

THE COMMISSIONER: - - - and (indistinct) you could all advise were your positions are by 21 April. 28.

PN338

MS BHATT: This is an issue that we've raised. Clause 12.1(e) of the exposure draft is a new provision in the sense that there's no comparable provision that exists in the current awards. I think the position is simply that it's unnecessary. That at various points during this conference, either we've pointed out or the Commission has pointed out the idea is not to necessarily (indistinct) these instruments and to clutter them within the cross‑references. I don't think this provision is useful.

PN339

THE COMMISSIONER: (Indistinct)

PN340

MR ARJONILLA: Perhaps if I may speak to this, Commissioner, I think I have the answer. This, the genesis of this provision comes from the manufacturing award, so this exposure draft indicates, on the front page, that it incorporates structural changes that took place after, as I understand it, vigorous discussions in relation to that award.

PN341

I did briefly have a look at a decision, and I've got the citation here, that indicated, and I can give that now if the Commission's ready, it's 2015, it's a Fair Work Commission Full Bench, it's 7236 and the relevant paragraphs are 65 to 69 and my understanding is that a provision of similar effect is included in the manufacturing award and it came about by way of consent.

PN342

That's my understanding of the genesis of what is certainly otherwise an unusual provision. On the basis that it's otherwise been agreed, as far as we can ascertain, it remains our submission it should be included.

PN343

MS BHATT: That it should be included, is that - - -

PN344

MR ARJONILLA: Correct.

PN345

MS BHATT: Well we're not going to die in a ditch over it.

PN346

THE COMMISSIONER: No longer pressed?

PN347

MS BHATT: No longer pressed.

PN348

THE COMMISSIONER: (Indistinct) all right.

PN349

MS BHATT: No longer pressed.

PN350

THE COMMISSIONER: (Indistinct) agreed?

PN351

MS BHATT: Yes.

PN352

MR ARJONILLA: Yes, Commissioner.

PN353

THE COMMISSIONER: I've got 30, 31, 32, all agreed?

PN354

MS BHATT: 30 and 31, yes. 32, might not be agreed. I just – I think it would just help us to better understand precisely what the union says should be changed and whether those changes are limited to clause 14 or elsewhere in the instrument.

PN355

MR ARJONILLA: Yes, certainly. They are limited to the clause. If I can take the Commissioner to the clause. It's clause 14 and the table that presents there. At 14.1(a), the clause which uses the word "minimum wages", that's on the second line there, following minimum wages, and then within the table uses "a minimum weekly rate" instead of "wage", so really a semantic issue, no more, but we thought for consistency, it should read "minimum weekly wage" and then consequentially the "minimum hourly rate".

PN356

MS BHATT: But does the award elsewhere refer to "minimum weekly rate"?

PN357

MR ARJONILLA: I'm doing this by memory, no more, but I don't think so.

PN358

MS BHATT: (Indistinct) making changes to the way that the rates are characterised in that provision. They're referred to in another way.

PN359

THE COMMISSIONER: Well what was the easiest thing is – all right, leave it at that, leave that to us to sort through. In terms of the position today, record that AiG (indistinct) AMWU opposes subject to checking that the words – what is your proposal? Because you've just said it should be consistent, so which one do you say it should be?

PN360

MR ARJONILLA: It should read "minimum weekly wage" and "minimum hourly rate".

PN361

THE COMMISSIONER: In the table heading, delete "rate" and put "wage".

PN362

MR ARJONILLA: Correct.

PN363

MS BHATT: I mean that creates a problem with clause 14.1(b) almost straight away. For the purposes of 14.1(a), any entitlement to a minimum wage expressed to be - - -

PN364

THE COMMISSIONER: By the week.

PN365

MS BHATT: - - - by the week.

PN366

MR ARJONILLA: Where are you, sorry, with this? 14.2?

PN367

MS BHATT: The proposal is to change "rate" to "wage", is that right?

PN368

MR ARJONILLA: Correct. But in regards to the weekly.

PN369

MS BHATT: Then the minimum hourly rate stays the same.

PN370

MR ARJONILLA: Correct.

PN371

MS BHATT: Sorry, Commissioner, I interrupted you. I think the position is as you've put it.

PN372

THE COMMISSIONER: Yes, I think it needs a good sort of back check that it doesn't (indistinct), yes, I see (indistinct) but if it doesn't, then the position is fine. (indistinct)

PN373

MR ARJONILLA: Thank you.

PN374

THE COMMISSIONER: (Indistinct) to change. (Indistinct) change. (Indistinct) employee minimum - can you just take me through this, Ms Bhatt.

PN375

MS BHATT: Yes, Commissioner. Clause 14.1(a) of the exposure draft says an employer must pay (indistinct) employees ordinary minimum hourly wages for ordinary hours worked. The way it's drafted, it appears to apply to full time employees, part time employees and casual employees but the unions will, of course, agree that the minimum weekly rate is payable only to a full time employee that works 38 hours a week or, in circumstances where part time or casual is engaged to (indistinct) work.

PN376

But a part time employee is not otherwise, for example, entitled to the minimum weekly rate so it's for that reason that we've said that in brackets under "minimum weekly rate", you should simply insert the words "full time employee". I note that this is an amendment that has been made in a significant number of exposure drafts to date in response to the issue that we've raised.

PN377

MR DUNCALFE: Just in response to that, 14.1(b) states that:

PN378

For the purposes of clause 14.1(a), any entitlement to a minimum wage expressed to be by the week means any entitlement which an employee would receive for performing 38 hours of work.

PN379

We see that adding anything into that table was unnecessary because 14.1(b) deals with that concern.

PN380

MS BHATT: Look, I have had regard to that clause. I think that the clause preamble to 14.1(a) now creates that express obligation. We consider that it could be made clearer if the words were inserted. The issue doesn't arise in the current award because there's no express requirement to pay these rates. I think it just says "the minimum rates are" but perhaps there is no preamble.

PN381

THE COMMISSIONER: What clause (indistinct)

PN382

MS BHATT: 20.1(a), and it just says that:

PN383

The minimum wages for an adult employee are set out in the following table.

PN384

It doesn't require their payment.

PN385

THE COMMISSIONER: Look, I agree it's not necessary probably but it's - this debate has been had in plenty of others and it's sort of become a bit of a standard provision. Yes, really.

PN386

MR DUNCALFE: I don't really care. It's just that a lot's been made of adding to the length and putting things in. When it's already dealt with in 14.1(b) I just don't understand the problem, and going back to the current award, I mean it does require their payment "for an adult employee". It's for them. It's not something that's a huge deal. I just don't think it's necessary and I don't think we can - there's much to the argument that it is. It's not like that 14.1(b) is found somewhere else in the award. It's right there underneath the table.

PN387

THE COMMISSIONER: AMWU, what do you say? I'm just waiting.

PN388

MR ARJONILLA: Well, initially we'd had no concern with the amendment that had been put by AiG but having listened to my friend I am convinced by it, that there is some merit to opposition to it. We support the AWU insofar as it opposes the amendment but we're certainly not going to get involved in any lengthy discourse about it.

PN389

THE COMMISSIONER: Anything more?

PN390

MR ROUCEK: From our perspective it's probably been ventilated but I think there's some weight in what a number of other awards have chosen to do on this topic. I think that it probably doesn't need to be put any higher than that from our perspective.

PN391

THE COMMISSIONER: Well just on this, so one I'd say is AiG have pressed for the change as stated. The AMWU, and it's supported by other employer groups who are here, but the AMWU and the AWU say it's not necessary. The Commission has expressed the view the change is warranted to the extent that it's consistent with the change made in other awards. It's for the AMWU and AWU to advise by 21 April if they seek to be heard on it. So it's really for - you know, after this it's just a matter of whether these things go off to be (indistinct). Okay?

PN392

SPEAKER: Thank you, Commissioner.

PN393

MR DUNCALFE: Thank you.

PN394

THE COMMISSIONER: 34, agreed as it's just a typo. Are there any concerns from AiG?

PN395

MS BHATT: I should just say for the record that we haven't done the maths on all of these tables. We don't have any opposition to the change being made but - - -

PN396

THE COMMISSIONER: Well again it might be that people will say "No, you're all wrong. This is how we always round". So I'll take that on board. 35, the AMWU (indistinct).

PN397

MR ARJONILLA: This is ours. Well, this pertains to clause - it goes to clause 22(b), Allowances. Now we didn't push our previous formatting submission particularly hard but I do press this one.

PN398

THE COMMISSIONER: Yes.

PN399

MR ARJONILLA: We're of the view that the award in its present state is - we wouldn't say it's misleading because that's not the word, but it's just incongruous. It's cumbersome the way the expenses are - additional allowances are set out. So have you got it open there, Commissioner? It's clause 27 - - -

PN400

THE COMMISSIONER: I'm on clause 20 of the exposure draft, yes.

PN401

MR ARJONILLA: Correct. The wage related allowances that we see at 20.1(a) and it indicates three that are paid for all purposes and then it continues using the sub‑lettering (a), (b), (c) to refer to the leading hand allowance, the heavy vehicle allowance, the boiler attender allowance but then also in that same chain of thought refers to the first aid allowance. Then it goes on to speak about special rates which are distinct characteristics to the all-purpose rates yet they don't seem - or not that they don't seem to but they in this iteration aren't justified by a separate sub‑heading. All that we're suggesting is a stylistic amendment and it's just sheerly for the purpose of making what currently is there somewhat clearer. There's no mal intent behind it.

PN402

THE COMMISSIONER: Yes, so you - - -

PN403

MS BHATT: So how do you say that 20.1(f) should be renumbered?

PN404

MR ARJONILLA: 20.1(f)?

PN405

MS BHATT: So that's special rates. So what would that be instead?

PN406

THE COMMISSIONER: It's an annexure - - -

PN407

SPEAKER: It's its own discrete clause.

PN408

MR ARJONILLA: It's in an annexure, yes. So you're referring here to the special rates. I'm just saying I do note in the annexure it has picked up the previous formatting and it's obviously meant to read 20. But that's the proposal, just simply that we say okay, one set of allowances, all-purpose allowances. Secondly a separate first aid allowance and then thirdly, another category for special rates and then lettered underneath.

PN409

MS BHATT: I'm sorry, can I (indistinct).

PN410

MR ARJONILLA: Yes, go for it.

PN411

THE COMMISSIONER: Yes, I see the point.

PN412

MR ARJONILLA: Stylistic or not, it just didn't seem right, Commissioner, when I read it and I thought there might be an easier way of putting on paper what's there. If it has any unintended consequences then they are just that.

PN413

THE COMMISSIONER: It's just a reordering - - -

PN414

MR ARJONILLA: But it's no more than a reordering.

PN415

THE COMMISSIONER: Does anything arise from calling cold place and hot places special rates?

PN416

MS BHATT: The term special rates is used at least in the clause that deals with extra rates and high humidity so there's some interaction there. There might be others that I'm not identifying immediately. Look, I understand the intent that otherwise the proposal - I'm a bit anxious about a couple of things. Firstly, the way it's set out in the exposure draft is again consistent with what's been adopted by the Commission across the board. If these changes are to be made then we have to be very careful about any cross-referencing.

PN417

So obviously that will arise in I think it's schedule C that sets out the allowances, but also any other cross-referencing. I mean if it's - we don't think it's necessary. I appreciate the Commission might decide that it is and if it does we would seek an opportunity to review whatever amended clause is put, to check for any kind of unintended consequences. And I think the way it is in the exposure draft is at least clearer probably than what we've got in the current award, the way it's set out and for our part we didn't see any difficulty with what's there. Because I think the proposal that's being put by the AMWU, it removes the distinction - and you'll correct me if I'm wrong.

PN418

MR ARJONILLA: Yes, go ahead.

PN419

MS BHATT: Between the wage related allowances and the expense related allowances which is of course the basis upon which schedule C is set up.

PN420

THE COMMISSIONER: Yes that's part of - I like the idea but obviously we don't muck it up and I'm just a bit - I mean the first thing I pick up is you've got a reference to special rates in clause 5.2, and this is in your 5.3(a), 5.2 the first aid allowance. But operating on your side of the table, as I did many years ago back under previous regimes, we were always running around getting allowances that related to the principles that applied at the time, perhaps getting a payment for working in a hot place and calling it an allowance or a special rate. This is the - I'm struggling with even the terminology.

PN421

So I don't know about bunching them under special rates in allowances. All right then this one will - and look it might be again the trump card's going to be, you know, that if the Commission is now settling on this as "This is the way I want it and that's right", it might be the horse has bolted really. But I'm (indistinct) so (a) and (b) and (d) is for change as stated. Yes, and so anything more on this end of the table you want to say about it? The employer groups?

PN422

MR ROUCEK: No, Commissioner.

PN423

MR JACK: No, Commissioner.

PN424

THE COMMISSIONER: All right.

PN425

MR ARJONILLA: Perhaps Commissioner - - -

PN426

THE COMMISSIONER: Yes?

PN427

MR ARJONILLA: If I could suggest it could be a matter that I could report back on, on the 21st.

PN428

THE COMMISSIONER: Yes.

PN429

MR ARJONILLA: There's nothing behind it other than simply I looked at that and I thought - - -

PN430

THE COMMISSIONER: Yes I think what - - -

PN431

MR ARJONILLA: - - - it was very clumsy.

PN432

THE COMMISSIONER: I was just going to say employers don't consider the change as necessary, the AMWU too. I think what I'd ask you to do is just have a look at what has gone on in other awards.

PN433

MR ARJONILLA: Certainly.

PN434

THE COMMISSIONER: Including particularly the ones that (indistinct) issue and so the AMWU and the AWU, to the extent that you want to also be part of the homework, to consider other relevant modern award formatting and advise by 21 April if you still press that. Is that okay?

PN435

MS BHATT: Yes, Commissioner.

PN436

THE COMMISSIONER: And then the Commission will consider also the consistency of the formatting (indistinct) issue.

PN437

MS BHATT: If I can just say this because the Commission has raised this issue about the term special rates. I know that that's a term that's used in at least the Manufacturing and Associated Industries and Occupations Award and maybe some of the other manufacturing type awards.

PN438

THE COMMISSIONER: Yes.

PN439

MS BHATT: And it might be that that term has some special significance that is understood by those that sit well above me in the hierarchy, but I don't and so it's possible that there might some anxiety if any proposal is put about removing that term or changing it. Those payments are treated differently which we can see from (f)(i). It says that they're not subject to any premium or penalty addition so they're treated a little bit differently to other allowances. So I just raise that as a general matter.

PN440

THE COMMISSIONER: All right. All right, 36 is agreed?

PN441

MS BHATT: Yes, Commissioner.

PN442

MR ARJONILLA: Yes it is.

PN443

SPEAKER: Yes.

PN444

THE COMMISSIONER: We might just take a 10 minute break till 11.30. All right?

PN445

MR ARJONILLA: Thank you.

PN446

MS BHATT: Thank you, Commissioner.

SHORT ADJOURNMENT [11.18 AM]

RESUMED [11.36 AM]

PN447

THE COMMISSIONER: All right, 37.

PN448

MS BHATT: This is an issue that AiG has raised and if I can take you to clause 20.2(d).

PN449

THE COMMISSIONER: Yes.

PN450

MS BHATT: I think the concern is simply that the wording seems somewhat clumsy:

PN451

The employer is liable for the replacement, repair or cleaning of any clothing or personal equipment including spectacles and hearing aids where an employee suffers any damage to or soiling of clothing or other personal equipment including spectacles and hearing aids as a result of....

PN452

I guess the repetition of "including spectacles and hearing aids" which we thought was both unnecessary and confusing. We put a proposal in our submissions and United Voice had some concern that that would render the whole clause otiose, which was certainly not the intention and I'm not sure that it in fact has that effect. I'm rummaging through my file because I'm trying to find the counter‑proposal that United Voice put which - a small amendment would be acceptable to us. I'm looking at their - I'm not sure if the Commission has a copy of this but I'm looking at United Voice's reply submissions from 22 February.

PN453

THE COMMISSIONER: No, not at this point. 10, 12, yes, paragraph?

PN454

MS BHATT: Paragraph 9.

PN455

THE COMMISSIONER: Yes. Is that the schedule B, is that part of that? Is it all part of the clause?

PN456

SPEAKER: It is.

PN457

MS BHATT: Is that the reference down - I understood that to be a heading for the next - - -

PN458

THE COMMISSIONER: It's actually to do with - - -

PN459

MS BHATT: - - - paragraph.

PN460

THE COMMISSIONER: - - - with paragraph 10 is it?

PN461

MS BHATT: Yes.

PN462

THE COMMISSIONER: Yes okay, so ignore that. So their proposal is up to the bottom of "personal equipment"?

PN463

MS BHATT: Yes.

PN464

THE COMMISSIONER: Yes. So - yes?

PN465

MS BHATT: On its face that seems preferable to what the Commission has proposed in the exposure draft but for these. The last sentence says - so after the two dot points it says:

PN466

...then the employer is liable for the replacement, repair or cleaning of any clothing or personal equipment...

PN467

So that means that if an employee suffers damage to or soiling of the personal equipment that's described here as - - -

PN468

THE COMMISSIONER: Or anything else.

PN469

MS BHATT: - - - as a result of these two things, then suddenly the employer is liable for the replacement or repair of any clothing or personal equipment, not just what has been damaged or soiled.

PN470

THE COMMISSIONER: Yes, yes.

PN471

MS BHATT: I think that if instead that last sentence said "any such clothing or personal equipment" that would make clear that it's a reference to what was described earlier.

PN472

THE COMMISSIONER: Insert the word "such" before "clothing"?

PN473

MS BHATT: Yes.

PN474

THE COMMISSIONER: Okay. We keep the Roman numerals.

PN475

MS BHATT: Yes.

PN476

THE COMMISSIONER: Yes I think that - yes, okay. Views of other employers? Happy with that?

PN477

SPEAKER: Yes, we're happy with that. We support that too.

PN478

MR DUNCALFE: With respect to the amended - - -

PN479

THE COMMISSIONER: Yes, yes.

PN480

MR DUNCALFE: - - - UV clause?

PN481

THE COMMISSIONER: You think it's all right?

PN482

MR DUNCALFE: I think so, yes, Commissioner. So instead of "any" it will be "such clothing" is that right?

PN483

THE COMMISSIONER: "Any such clothing", yes.

PN484

MR DUNCALFE: Any such.

PN485

THE COMMISSIONER: Insert the word "such". So it's the UV proposal except with the word "such".

PN486

SPEAKER: We agree to that one.

PN487

THE COMMISSIONER: Thank you. 38?

PN488

MS BHATT: I think 38 is agreed.

PN489

SPEAKER: Well, that's the suggestion to the placing of a letter rather than dot points?

PN490

MS BHATT: Yes.

PN491

SPEAKER: Yes, look we're aware of the AMWU's position on clause 20 as a whole, yes, but we agree with that.

PN492

THE COMMISSIONER: So you all agree with the Business South Australia proposal?

PN493

MR ARJONILLA: Yes, we agree with that too. Yes, Commissioner.

PN494

THE COMMISSIONER: To change dot points to letters.

PN495

39 is agreed?

PN496

MR JACK: Yes, I believe it is. Has anyone opposed?

PN497

THE COMMISSIONER: Pardon?

PN498

MR JACK: I believe it is agreed?

PN499

THE COMMISSIONER: Yes?

PN500

MR JACK: Yes, just a reformatting.

PN501

THE COMMISSIONER: 40. I know (indistinct) some discussion with (indistinct).

PN502

MS BHATT: So I think there are two issues. One has been raised by Ai Group and the other one has been raised by AFEI. I imagine that the one that's been raised by AFEI is uncontroversial.

PN503

SPEAKER: Correct.

PN504

MS BHATT: Because it's a typographical issue.

PN505

THE COMMISSIONER: Okay. Your proposal in fact is the word - - -

PN506

THE COMMISSIONER: Sorry, Commissioner, I'm just trying to find the clause in the current award.

PN507

MR ARJONILLA: I think it's 33.1(d). I've got a note here, but I'll have to check.

PN508

MS BHATT: So under 33.1(d) of the award it prescribes a higher rate that is payable in circumstances where a shift worker is working - - -

PN509

THE COMMISSIONER: Sorry, what clause is it? Thirty?

PN510

MS BHATT: I'm sorry, 33.1(d) of the current award.

PN511

THE COMMISSIONER: Yes.

PN512

MS BHATT: So the higher rate that's prescribed is payable where a shift worker is working and they're not relieved by the relief shift worker in the circumstances described, and so that shift worker is required to continue work into their rostered day off.

PN513

THE COMMISSIONER: Yes.

PN514

MS BHATT: And in those circumstances the employee that is working must be paid 200 per cent of we'll say the ordinary hourly rate. Those words or the word "continue" doesn't appear in the exposure draft. It just refers to an employee who is required to work on their rostered day off. Now it's conceivable that you've given an employee a rostered day off, they're not working immediately before the rostered day off, some other employee is unable to work so employee A is told "You are now to work on what would otherwise have been a rostered day off". This clause is not intended to deal with those circumstances. It wouldn't under the current award, because the employee isn't continuing to work into their rostered day off.

PN515

THE COMMISSIONER: Yes.

PN516

MS BHATT: So by leaving out the word "continue" the scope of the provision in the exposure draft appears to have been expanded, and so our submission is simply that the word "continue" should be reinserted.

PN517

MR DUNCALFE: Our main opposition to that - like, "continue" is in the current award and I accept that but where AiG have proposed to just insert - how they propose to amend it by inserting "continue" before "work" also has the capacity to change the operation of the clause to someone who's already working on their rostered day off because of the way that the clause has been rearranged from the current award to the modern - to the exposure draft, sorry:

PN518

If an employee is required to continue work on their rostered day off...

PN519

could be taken to mean that if an employee is already working on their rostered day off and they're required to continue because of an absence of a relieving shift worker. So that's where our main opposition comes from because that could also change the operation of the clause.

PN520

THE COMMISSIONER: You don't disagree with the principle, just disagree with the - - -

PN521

MR DUNCALFE: Yes, yes, like we both know when this clause comes into operation and why, and it's when a worker is not relieved coming up to their rostered day off.

PN522

THE COMMISSIONER: Their rostered day off.

PN523

MR DUNCALFE: But the word "continue" can kind of bring a connotation in that perhaps this employee is already working on their rostered day off and therefore that 200 per cent penalty will only apply for someone who's already working on their rostered day off and then who's unrelieved after that.

PN524

MS BHATT: I hear what's been said. The proposal that we had put was put on the basis that we were trying to do as little violence to the redrafted clause as possible. But can the issue be resolved if sub clause (b) in the exposure draft in its entirety is replaced with (d) of the exposure draft by a clause that should say at the end:

PN525

...200 per cent of the ordinary hourly rate...

PN526

the way it does in the exposure draft?

PN527

THE COMMISSIONER: I think you could improve the terminology there. You mean replace in the - - -

PN528

MS BHATT: I'm sorry.

PN529

THE COMMISSIONER: - - - exposure draft (d) of the existing award?

PN530

MS BHATT: (d) of the current award, yes.

PN531

THE COMMISSIONER: Yes.

PN532

MS BHATT: I'm sorry if I misspoke.

PN533

THE COMMISSIONER: No, that's all right. I think that's what you meant. So 22.2(b) will be replaced with the current 33.1(d) for dog. Views?

PN534

MR ROUCEK: For us that - yes, that resolves both sides, both concerns.

PN535

SPEAKER: Yes.

PN536

THE COMMISSIONER: Okay.

PN537

MR JACK: Commissioner, that would also resolve our concern with 41.

PN538

THE COMMISSIONER: Your concern?

PN539

SPEAKER: At item 41.

PN540

MR JACK: At item 41 we proposed to retain that clause (d) although we did say alternative wording in the event that that clause isn't retained. But if the clause is retained there's no need for us to - - -

PN541

SPEAKER: Yes.

PN542

THE COMMISSIONER: Yes, okay, 41 is resolved.

PN543

MR JACK: Yes.

PN544

THE COMMISSIONER: On the basis of the fix to 40?

PN545

MR JACK: Yes.

PN546

THE COMMISSIONER: So the AFEI proposal has since been agreed. 22.2(b) of the ED and replaced with clause 33.1(d) of the award.

PN547

MS BHATT: And is that with the addition of the words "of the ordinary hourly rate" at the end of the clause after "200 per cent"?

PN548

THE COMMISSIONER: "Of the ordinary hourly rate", yes.

PN549

MR ARJONILLA: The ordinary hourly rate, was it?

PN550

MS BHATT: The minimum hourly rate plus any all-purpose allowances.

PN551

THE COMMISSIONER: Say that again? At the rate of 200 per cent of the minimum?

PN552

MR ARJONILLA: Ordinary.

PN553

MS BHATT: No, of the ordinary hourly rate. I was just saying to Mr Arjonilla that that's the minimum hourly rate plus any all-purpose allowances.

PN554

THE COMMISSIONER: "Of the ordinary hourly rate plus any all - - -

PN555

MR DUNCALFE: Because the terminologies are changing, in the - it's just a concern initially whether it should be "applicable rate of pay" as opposed to "ordinary rate of pay" is the issue I've just considered.

PN556

THE COMMISSIONER: That just goes back around and raises that same issue though. But I'm - yes, and what actually happens in the real world is that they are paid their ordinary - double-time their ordinary hourly rate? Yes? What are you talking about?

PN557

MR DUNCALFE: It was just an initial - it was just I heard those words and I looked and I thought - - -

PN558

THE COMMISSIONER: You were just musing?

PN559

MR DUNCALFE: I was musing. It was no more. Before we - - -

PN560

THE COMMISSIONER: I think that those words should be fine. So that's agreed and 41 is agreed on the basis of 40.

PN561

MR DUNCALFE: Yes.

PN562

THE COMMISSIONER: 42.

PN563

MS BHATT: I think that's agreed.

PN564

THE COMMISSIONER: 43, you want to restructure the numbering system with the current clause 33.2.

PN565

MS BHATT: So the current clause 33.4 sets out or it prescribes a higher rate that must be paid where employees are called to work overtime after leaving the employer's enterprise. But that requirement is subject to (a), (b), (c), (d) and (e) which all relate to different sets of circumstances where - well, it either sets a condition on the payment of that rate or it provides for some sort of exception. I think the difficulty that we find in 22.11(a) of the exposure draft arises simply from the manner in which the clause has been formatted.

PN566

22.1(a) now requires that payment - it says "provided that" after (i) and (ii) but then it's not clear what it's in fact subject to. I mean you've got one clause that follows it immediately but it's not relevant - it's not apparent, sorry, that clauses (c), (d), (e) and (f) are also relevant to ascertaining whether or not an employee is entitled to the payments set out at (a).

PN567

THE COMMISSIONER: I see.

PN568

MS BHATT: Its's the way the "provided that" appears and it arises because the text above it is numbered (a).

PN569

THE COMMISSIONER: A, and that - - -

PN570

MS BHATT: - - - and then you've got all these other separate sub clauses.

PN571

THE COMMISSIONER: Yes, so really you're not proposing any other change other than you get rid of the (a) at the start of "an employee".

PN572

MS BHATT: Yes.

PN573

THE COMMISSIONER: And (a) would start at "Where an employee" is in here?

PN574

MS BHATT: That's right, Commissioner.

PN575

THE COMMISSIONER: And then it would just be (a), (b), (c), (d), (e).

PN576

MS BHATT: Yes.

PN577

MR DUNCALFE: One would still have all that information as currently under (a) just not with the - - -

PN578

THE COMMISSIONER: You just wouldn't have a letter in there.

PN579

MR DUNCALFE: Yes.

PN580

THE COMMISSIONER: It reads as a preamble then which, yes, that makes eminent sense to me.

PN581

MR DUNCALFE: The problem that we've identified with the drafting or the redrafting of (a) and splitting it up is that the minimum of four hours engagement doesn't expressly apply to the shift worker anymore because that part has been divorced. So 22.11(a)(i) has the minimum of four hours and then it says:

PN582

...or if the employee is a continuous shift worker, at 200 per cent of the ordinary hourly rate for the full period.

PN583

According to the current award a continuous shift worker is entitled to that minimum engagement but because it has been divorced into those two sub clauses that's no longer very easy to see. So if those two were amalgamated again as they were in the current award that would solve my issue with it as well. If that's what the proposal is from the AiG.

PN584

THE COMMISSIONER: No, they're kind of - they're separate issues. So I don't think there's any opposition to simply not having the letter (a) - or I might be misconstruing what you're saying - and just renumbering them all. But are you talking about getting rid of the word "or"?

PN585

MR DUNCALFE: No.

PN586

THE COMMISSIONER: No? I'm sorry, I misunderstood what you said.

PN587

MR DUNCALFE: No, I'm just suggesting that we amalgamate (i) and (ii) because the way that 33.4 in the current award reads, the minimum four hours' work is applicable to the shift worker as well as anyone else, whereas in the exposure draft that's not so clear because the minimum four hour engagement is actually contained under 22.11(a)(i) and then (ii) is by itself. So that minimum engagement of four hours then - - -

PN588

THE COMMISSIONER: So you're talking about just getting rid of (ii) and it just becomes continuous?

PN589

MR DUNCALFE: Get rid of it.

PN590

THE COMMISSIONER: So all the words are the same?

PN591

MR DUNCALFE: Yes.

PN592

THE COMMISSIONER: So it would just read:

PN593

..hourly rate thereafter or, if the employee is a continuous shift worker, at 200 per cent of the ordinary hourly rate.

PN594

MS BHATT: So is it the AWU's proposal that it all just appear as one paragraph?

PN595

MR DUNCALFE: Yes.

PN596

MS BHATT: The way it does in the current award?

PN597

MR DUNCALFE: Yes.

PN598

MS BHATT: Well, without accepting any proposition about the applicability of the minimum four hour engagement, I don't have any difficulty with that and the reason I'm putting that caveat is not necessarily because the organisation disagrees, it's because I don't have instructions so I can't speak to it.

PN599

THE COMMISSIONER: Yes.

PN600

MS BHATT: But we wouldn't oppose the current words being reinstated the way they are.

PN601

THE COMMISSIONER: Okay, agreed to alternate lettering with preamble (indistinct) as a consequence. Also agreed - I'll just say in principle and I'll put in brackets "(AiG to advise by 21 April if any concerns to (indistinct) to replace (indistinct) 22.11(a) in the ED. Current award and 33.4 preamble)".

PN602

MS BHATT: But again the words "of the ordinary hourly rate" should be inserted after "150 per cent and 200 per cent" each time they appear in that paragraph.

PN603

THE COMMISSIONER: And 200 per cent?

PN604

MS BHATT: Yes.

PN605

THE COMMISSIONER: Yes. It's "of the ordinary hourly rate"?

PN606

MS BHATT: Yes.

PN607

THE COMMISSIONER: To be added after each percentage.

PN608

Okay, 44 is agreed?

PN609

MS BHATT: Yes.

PN610

THE COMMISSIONER: 45?

PN611

MS BHATT: This is an issue that arises from the introduction of a definition for the term "permanent or other shift". So if I can take the Commission to clause 31.3(d) of the current award.

PN612

THE COMMISSIONER: 31?

PN613

MS BHATT: Yes, 31.3(d).

PN614

THE COMMISSIONER: Yes.

PN615

MS BHATT: It says that an employee who works in accordance with the three descriptors, or any of the three descriptors there.

PN616

THE COMMISSIONER: Yes.

PN617

MS BHATT: So:

PN618

...must during such engagement period or cycle be paid 30 per cent extra for all time worked during ordinary working hours on such night shift.

PN619

So you might be working during a period of engagement on a shift - sorry, take (ii):

PN620

Remains on night shift for a longer period than four consecutive weeks.

PN621

But the employee might be engaged on shifts in addition that are not just night shifts or this type of night shift, and in such cases this extra 30 per cent is not payable. It's only where you're working the type of night shift that's described here which in the exposure draft has been labelled a permanent night shift. The difficulty that arises in 23.3(d) of the exposure draft - - -

PN622

THE COMMISSIONER: 23, yes?

PN623

MS BHATT: 130 per cent of the ordinary hourly rate:

PN624

...is payable for all time worked during ordinary hours or an engagement, period or cycle on permanent night shifts...

PN625

I think there was some anxiety that it's not clear that that payment is limited to ordinary hours that are worked on a permanent night shift. I think part of the difficulty also arises - and every time this issue has arisen I've struggled to articulate this, but the payment arises currently by reference to an employee who works in certain types of circumstances. There's no definition that's given to the shift as such. It's to what the employee is doing, and the nature of that has been altered entirely in the exposure draft and I've spent some time playing with this and I struggled to come up with another way of redrafting the exposure draft provision whilst retaining this notion of defining permanent night shift as a type of shift, which is why ultimately we decided that the cleanest way might be to simply remove the definition of permanent night shift and replace 23.3(d) with the current 31.3(d).

PN626

THE COMMISSIONER: Does everyone understand the proposal?

PN627

MR DUNCALFE: We don't find it necessary because the definition of permanent night shift does exist and it contains those three qualifiers under 31.3(d) in the current award.

PN628

THE COMMISSIONER: Where is the definition in the definitions?

PN629

MR DUNCALFE: In where, sorry?

PN630

THE COMMISSIONER: Where is the definition?

PN631

MR DUNCALFE: 23.1(e).

PN632

MS BHATT: So it defines the shift but it does that by reference to a period of engagement on shift work where an employee does any one of these three things.

PN633

THE COMMISSIONER: Yes?

PN634

MS BHATT: And then when you go to 23.3(d) it says that this higher rate:

PN635

An employee who works permanent night shift must be paid 130 per cent of the ordinary hourly rate for all time worked during ordinary working hours on an engagement, period or cycle of permanent night shift.

PN636

So the real concern is this: if you have an employee who is working a permanent night shift as defined but in addition they're working some ordinary hours whilst they're on this engagement, period or cycle but those hours themselves do not constitute a night shift they might still be entitled to the 130 per cent, and we don't know that those circumstances don't arise.

PN637

MR ARJONILLA: Practically when would they arise? I'm following you through with this, I'm just trying to think when practically that would present?

PN638

MS BHATT: It could - the first example that comes to my mind - so if you think of a 38 hour employee who is only working these sorts of shifts it seems to me that it is less likely to arise. But think about a casual employee, for example, who's working a relatively regular pattern and ends up caught by this definition but does work at some other hours, you know, to relieve another employee for example. Now I'm obviously trying to deal with this on the fly, but.

PN639

THE COMMISSIONER: I'm struggling to follow you, I'd say, Ms Bhatt. I just think - well, for a start I couldn't - you can't do what you're suggesting because you'd have the same wording that's in the current 23.1(e) just repeated again basically.

PN640

MS BHATT: Well, the proposal was to delete the (e).

PN641

THE COMMISSIONER: Delete (e)? Sorry.

PN642

MS BHATT: And then at 23.3(d) insert the current 31.3(d). So the definition wouldn't be repeated.

PN643

THE COMMISSIONER: Because you've sort of - we've then moved away from having all these definitions in 23.1 for the purposes of this award.

PN644

MR DUNCALFE: I just don't understand the difference of the entitlement. In the exposure draft it says you get the 130 per cent:

PN645

...for all time worked during ordinary working hours on an engagement, period or cycle on permanent night shifts.

PN646

MS BHATT: So what I'm worried about is - - -

PN647

MR DUNCALFE: - - - against:

PN648

...be paid 30 per cent extra for all time worked during ordinary working hours on such night shift.

PN649

MS BHATT: Yes, so the difference is the "on such night shift" which isn't there anymore.

PN650

MR DUNCALFE: Because there isn't a definition of permanent night shift and they're using the - you only get the 130 per cent:

PN651

... for all time worked during ordinary working hours on an engagement, period or cycle on permanent night shift...

PN652

MS BHATT: But if you're on an engagement, period or cycle on permanent night shifts and then you're required to perform some other work that constitutes ordinary hours but it's not a night shift of the type, of the sort, that's described here, I don't think you get the extra 30 per cent under the current clause. You only get it if you're working ordinary hours on such night shift.

PN653

MR DUNCALFE: You do.

PN654

MS BHATT: And that limitation doesn't appear in the exposure draft. Sorry, I can't be more - - -

PN655

MR JACK: Sorry, yes. I think it is only applicable in the situation where you've got someone kind of doing some day work and some night work. But I think the award even contemplates that in that you can have a permanent night shift worker who is just not doing more than a third of their shifts on day work and they're still considered a permanent night shift worker. So even that contemplates that you can rotate.

PN656

MS BHATT: Yes.

PN657

MR JACK: A permanent night shift worker can on occasion do a day shift.

PN658

MS BHATT: Yes, (iii) does. Yes.

PN659

MR JACK: And in that situation you're right that the exposure draft imposes a penalty whereas the current award doesn't.

PN660

MS BHATT: So if we were to put to one side momentarily the matter that the Commission has raised, and that is that there's an approach that has been adopted in the exposure draft to set out certain definitions - and of course I appreciate that. But if that matter were put to one side for a moment, is there any opposition from the unions to reinsert the current wording in order to address the concern that we've raised? This isn't an issue of semantics for us. We're concerned that there's been a substantive change and that the entitlement has been expanded, and that example is a very good example. It picks up precisely the sorts of circumstances where suddenly you'd be entitled to an extra 30 per cent where you wouldn't right now.

PN661

MR DUNCALFE: I'd say this: I had a note to seek clarification on the concern about the clause. We've got the clarification. I can come back on a position but I don't think I'm in a position to do so now. But if it is that there is something behind that concern, and you're saying that there is and I will take that on board, and if it is that alternative wording can avoid that then we'll consider it. But I don't think it's something that I could commit to presently. Is there an easier way to address your concern rather than removing this and then removing the definitions?

PN662

THE COMMISSIONER: There might be.

PN663

MR DUNCALFE: Because that would be preferable.

PN664

THE COMMISSIONER: Have you got one?

PN665

MR DUNCALFE: I don't have a concern. I like it how it is.

PN666

THE COMMISSIONER: So what's happening is this. So we'll note the AiG proposal to the exposure draft is so that clause 23.1(e) of the exposure draft is deleted and 23.3(d) of the exposure draft is deleted and the wording from clause 31.3(d) from the existing award is inserted instead at 23.3(d) of the ED. The AMWU and AWU to consider whether they agree or oppose. For a useful discussion you might think of another idea, in which case circulate it around and we'll crack the nut. I mean I think it's solvable, but we'll just leave it there I think for today if that's all right.

PN667

46 is agreed?

PN668

SPEAKER: Yes.

PN669

SPEAKER: Yes it is.

PN670

THE COMMISSIONER: Does anyone know who agrees with what? No one? Running out of steam.

PN671

MR JACK: I think, Commissioner, this was in response to a question and I'm not sure if any of the parties are actually proposing a change to the wording.

PN672

THE COMMISSIONER: I think that's right but yes, the question is did you have a common view about the question that that raises? That's why I want to raise this question just so you can maybe head off the interpretation (indistinct).

PN673

MS BHATT: Well, it seems that we don't have a common view although based on this summary it isn't necessarily even the case that all the unions have the one view. Our organisation's position is that the comparison is done by reference to the entire period of leave that's taken. I should say that if this is to proceed any further this is a broader issue because of course provisions like this are in a very significant number of awards, and so I'm not sure that this is an issue that arises specifically by reference to this award.

PN674

THE COMMISSIONER: Yes.

PN675

MS BHATT: I haven't looked at the Ombudsman's correspondence.

PN676

THE COMMISSIONER: Look, I'll just leave this on a - we'll note that this is an issue common to many awards. Even if it not a common view among the parties, it's an answer to the FWO question for this Full Bench to consider it being changed if necessary (indistinct) prior to the parties (indistinct). 48 is agreed.

PN677

MS BHATT: Yes.

PN678

SPEAKER: Yes.

PN679

THE COMMISSIONER: And 49 agreed?

PN680

MS BHATT: Yes. I think we've resolved item 50 when we were discussing the definition of ordinary hourly rate earlier.

PN681

THE COMMISSIONER: Yes.

PN682

SPEAKER: Yes it was, I'm pretty sure.

PN683

THE COMMISSIONER: Yes, consistent with the agreed changes in the (indistinct) the item?

PN684

MS BHATT: Item 4.

PN685

THE COMMISSIONER: It was item 4, yes. Is that (indistinct 12.24.16)?

PN686

MS BHATT: No, unfortunately not. If we go to B.1.5 which sets out the rates for full‑time and part‑time shift workers.

PN687

THE COMMISSIONER: Schedule B?

PN688

MS BHATT: Point 1 point 5. That second column that's headed "Minimum Hourly Rate", it seems to just be the weekly rate divided by 38. For our part we're just not sure why that column is necessary in a table that prescribes rates for shift workers. I don't understand to whom that column applies.

PN689

THE COMMISSIONER: Resulting in getting (indistinct) a penalty. Is that the argument?

PN690

SPEAKER: No, no one gets the hundred per cent rate. If you're actually a shift worker you don't get a hundred per cent.

PN691

MS BHATT: That's right. If you meet one of those shift worker definitions you're entitled to a higher rate. But I mean it's called the minimum hourly rate. It's a percentage of the ordinary hourly rate but it's not the ordinary hourly rate because this is just a minimum rate.

PN692

THE COMMISSIONER: Yes.

PN693

MS BHATT: So - - -

PN694

THE COMMISSIONER: No, I see the point.

PN695

MS BHATT: - - - it just seems erroneous to us and we think it should be deleted.

PN696

THE COMMISSIONER: And could lead to people paying - yes. We don't want people thinking they've got an option to just pay the minimum hourly rate to anyone that's doing any sort of shift. No. Why do UV oppose it, yes, we wonder?

PN697

MS BHATT: Well, I think they're not the only ones.

PN698

THE COMMISSIONER: Why do you oppose it, the AMWU?

PN699

MR ARJONILLA: It's an initial reaction. We just thought it was - - -

PN700

MS BHATT: Reflex (indistinct) - - -

PN701

MR ARJONILLA: Yes, I was having a little panic attack earlier. We just thought it was - - -

PN702

THE COMMISSIONER: Having though that - - -

PN703

MR ARJONILLA: Having thought about it - - -

PN704

THE COMMISSIONER: You now think it's a good idea?

PN705

MR ARJONILLA: I don't know if I'd stretch it that far but look no, I mean we wouldn't oppose it.

PN706

MR DUNCALFE: I initially opposed it as well because I didn't know - the submission that AiG put in which is too brief for me to form an opinion on, it was just - - -

PN707

THE COMMISSIONER: Yes, that's all right.

PN708

MR DUNCALFE: - - - unnecessary - - -

PN709

THE COMMISSIONER: But now you've heard it - - -

PN710

MR DUNCALFE: But now I've heard it, I'm just looking through this to make sure that it is all good. Yes, we have no strong opposition to it. There's no real reason for us to oppose it.

PN711

THE COMMISSIONER: Yes, I actually think it's just (indistinct) advantage. You don't want a table in there that no one's ever going to use. They shouldn't use it and - - -

PN712

MR DUNCALFE: Yes.

PN713

THE COMMISSIONER: - - - you wouldn't want an employer rocking up and saying "Oh well, I thought I could pay them those rates. The tables are there". 52?

PN714

MS BHATT: Just one point (indistinct) that I haven't previously covered, so if I can take the Commission to the definition of casual ordinary hourly rate in clause 2 of the exposure draft.

PN715

THE COMMISSIONER: Yes.

PN716

MS BHATT: So:

PN717

...is the hourly rate of a casual employee for the employee's classification specified in clause 14.1 inclusive of the casual loading which is paid for all purposes.

PN718

But clause 14.1 only prescribes the adult rate and if we've got a casual who's an apprentice or a trainee it wouldn't be the rate prescribed in 14.1. So I just wonder whether that definition needs to be amended so that it says:

PN719

... for the employee's classification prescribed by this award.

PN720

Which is consistent with the definition we propose for ordinary hourly rate, and then the rest of it would remain as is.

PN721

THE COMMISSIONER: So that's in reference to 14.1?

PN722

MS BHATT: Yes.

PN723

THE COMMISSIONER: And that deals with the issue (indistinct) - - -

PN724

MS BHATT: We would say that with that amendment that definition should then be reproduced at B.2.1 which is currently in very different terms - well, not very different terms but in relevantly different terms to what's at clause 2 currently.

PN725

MR DUNCALFE: So just to clarify, what's your amendment?

PN726

MS BHATT: So:

PN727

Casual ordinary hourly rate is the hourly rate for a casual employee for the employee's classification as prescribed by this award.

PN728

MR DUNCALFE: Okay, so it's a similar - yes.

PN729

MS BHATT: It's a similar term. Just to capture the apprentice rates.

PN730

THE COMMISSIONER: And delete "specified in clause 14.1"?

PN731

MS BHATT: Yes.

PN732

THE COMMISSIONER: I'm sorry, insert "in the division"?

PN733

MS BHATT: I'm sorry?

PN734

THE COMMISSIONER: I'm losing it now. What were the words?

PN735

MS BHATT: So:

PN736

Casual ordinary hourly rate means the hourly rate for a casual employee for the employee's classification prescribed by this award.

PN737

Instead of "specified in clause 14.1".

PN738

THE COMMISSIONER: Yes. "Prescribed by this award" and then the second page proposal is insert the same definition in B - it's B.2.1 isn't it?

PN739

MR DUNCALFE: Yes.

PN740

MS BHATT: So we can do one of two things, either the entire paragraph at B.2.1 is replaced by the definition in clause 2 or if anyone is wedded to the second sentence at B.2.1, which some of my friends might be, then the first sentence of B.2.1 should be replaced with the first sentence of the definition at clause 2.

PN741

MR DUNCALFE: The latter option is more palatable.

PN742

SPEAKER: Yes.

PN743

THE COMMISSIONER: So insert the same. So for B.2.1 delete the existing first sentence and replace with the amended first sentence of the definition of casual in clause 2. Agreed?

PN744

MS BHATT: Yes, Commissioner.

PN745

THE COMMISSIONER: Right, the definition of casual ordinary hourly rate. Agreed?

PN746

MR DUNCALFE: Agreed.

PN747

SPEAKER: Agreed, Commissioner.

PN748

THE COMMISSIONER: 53, the last one.

PN749

MS BHATT: 53 relates to B.2.3, casual shift workers.

PN750

THE COMMISSIONER: Yes.

PN751

MS BHATT: And it's the column headed "Day Shift" which seems to just prescribe the casual ordinary hourly rate. For my part I don't understand what a day shift is. So you either work a shift that meets one of those definitions and you're entitled to a higher rate or you're not entitled to - - -

PN752

THE COMMISSIONER: You're working - - -

PN753

MS BHATT: - - - any of those and you'd probably be referred to as a day worker - which I don't know if that's a term that's actually under this award or not - but then you're entitled to the rates that appear earlier in the schedule for those that are not shift workers.

PN754

THE COMMISSIONER: Yes, so it's the same issue as - - -

PN755

MR DUNCALFE: Yes, I think that they've just used day shift instead of 100 per cent - or what was it last time?

PN756

MS BHATT: The last time it was minimum hourly rate.

PN757

MR DUNCALFE: Minimum hourly rate, yes.

PN758

MS BHATT: Yes.

PN759

MR DUNCALFE: I think that that's - so we've got no opposition to (indistinct) of that.

PN760

THE COMMISSIONER: Agreed to AiG proposal. There's no comments on that?

PN761

MR ROUCEK: Can I make a somewhat pedantic observation that under the list of abbreviations our parties don't appear. So I'd just point out that ABI and New South Wales Business Chamber should appear there.

PN762

THE COMMISSIONER: Which appears in the summary document.

PN763

MR ROUCEK: Yes that's right, in the summary document.

PN764

THE COMMISSIONER: Okay, your (indistinct) amendment. All right, thank you for your very constructive contributions and so the matter is due (indistinct) that I will put out a summary document and you'll get a week or so to comment on it and (indistinct), you know, it might be that your positions change and you say "Well, now it should say that I agree with that" or whatever, or I've misrepresented what you think happened here today, and that forms the basis of the report to the Full Bench. It all goes up on the web. I forgot to remind you all that we were all recorded today but you probably (indistinct) but of course you didn't, so that's it.

PN765

MS BHATT: To the extent that there are matters that remain unresolved is the Commission able to provide us with any indication as to how they might be dealt with? So is it the case that the Commission will simply make a determination? Is there scope for another conference?

PN766

THE COMMISSIONER: No, there's certainly scope for another conference.

PN767

MS BHATT: Okay.

PN768

THE COMMISSIONER: And as to whether there's another conference scheduled, that would be something that I would discuss with the Bench. But look, I think suffice to say that if it is expressed that that would be - if I thought there was some utility in it, I would certainly prefer to have another conference and so that's most likely what will happen, yes. All right?

PN769

MS BHATT: Thank you.

PN770

THE COMMISSIONER: And certainly because this is my usual practice, if there's a tangent approach to something that's been discussed and resulting in it going another way, I would sooner raise that with the parties before we did it. All right?

PN771

MS BHATT: Thank you.

PN772

THE COMMISSIONER: All right, thank you all.

PN773

MR ARJONILLA: Thank you very much.

PN774

THE COMMISSIONER: Thank you.

ADJOURNED TO A DATE TO BE FIXED [12.37 PM]