PN1

JUSTICE ROSS: A statement issued on 28 February provided an update on the plain language project and also outlined how the light touch process would operate. An example of an exposure draft that has been through the light touch process was published with a statement on 18 April for the purpose of discussion at this conference. In the statement of 28 February we indicated that this conference would deal with the scope of the light touch process and parties were asked to file a short written submission by no later than Monday of last week stating any issues or question they wish to raise at the conference. No submissions were filed in response to the statement.

PN2

I don't propose to take the appearances, mainly because it would take too long and probably outweigh the time we spend in the conference. Rather I would invite - we will note the appearances in the transcript from every party who is in attendance. I would rather open it up to those who wish to comment on the statements that have been made and the process that has been undertaken. Anyone in Sydney? We'll start with the first row.

PN3

MS H KASTURHRACHCHI: Yes - - -

PN4

JUSTICE ROSS: Just announce where you're from. No, you don't need to stand, that's fine.

PN5

MS KASTURHRACHCHI: Commissioner, I'm from the Flight Attendants' Association of Australia. We have had limited involvement in this process to date. There has currently been a changeover in industrial staff and as a result we have re-engaged in the award review process. We have only just come across the exposure draft process, which we recently made submissions in and following that we have now moved on to the plain language process. In reviewing the Commission's statement of 28 February we have identified that we wish to make a submission regarding the shut-down provision. I understand that we have missed the deadline.

PN6

However, in principle, we oppose the inclusion of the shut-down provision model clause into our award, which is the aircraft cabin crew award and we support the submissions of the United Voice, dated 4 April 2019, where they indicated that any clause which provides for an employee - direct an employee to take unpaid leave may not be a (indistinct) term that can be included in the award.

PN7

JUSTICE ROSS: Sure, but we're not talking about any of those things at this conference.

PN8

MS KASTURHRACHCHI: I understand, your Honour.

PN9

JUSTICE ROSS: So in relation to the shut-down provision, put in any short submission you wish to put in by 4 pm Friday.

PN10

MS KASTURHRACHCHI: Thank you, your Honour.

PN11

JUSTICE ROSS: Is there anything anyone up the front wants to say about the light touch process?

PN12

MR B FERGUSON: Yes, your Honour.

PN13

JUSTICE ROSS: Just a moment - did you have anything you wanted to say about the light touch process?

PN14

MS KASTURHRACHCHI: As I was aware with the light touch process, the timeline proposed appears from what we can see from the short statement of 4 April that there is an opportunity to provide comment that doesn't necessary include a reply process from what we can see so we believe a reply process may be warranted, particularly given the lack of employer and employee engagement in our award. That is probably the only comment I have at this point in time.

PN15

JUSTICE ROSS: All right, thank you.

PN16

MR FERGUSON: Thank you, your Honour - Mr Ferguson from Ai Group. Ai Group has reviewed the gardening and landscaping services award and I apologise, we just haven't had time to reduce our observations to writing but we have identified a number of what we perceive to be issues from the redrafting and if this is to be sort of a template for the application of this principle to other awards we would seek an opportunity to file something for the benefit of the Commission, just identifying what those issues - - -

PN17

JUSTICE ROSS: Well, that's the purpose of today's conference.

PN18

MR FERGUSON: We can sort of talk through them on the run if it assists but in some cases we would want to give some further thought to it. But I might say this - I think it is largely issues that aren't related to any of the implementation of decisions or anything like that. It's more a case of where the redrafting I think had been done for the purpose of applying the guidelines. In some instances if there is a view that it has changed the meaning or given rise to an issue we just - given the abridged time frame that we had the exposure draft - didn't have time to put it all together. I'm happy to try and work through it on the run, so to speak, or otherwise to put in a short submission in a fairly timely manner; whatever your Honour prefers.

PN19

We had thought today would be mainly about the scope, about the light touch process.

PN20

JUSTICE ROSS: Well, then, talk about the scope.

PN21

MR FERGUSON: In relation to the scope, the only submission which I must put on behalf of the organisation is that our view is that in light of the fact that we have identified a number of issues we would urge the Commission to take as light an approach as possible to the redrafting of the award. That is not put out of any historical attachment to the wording, just out of a concern that if we go through all the awards rewriting all of all the various clauses rather than just implementing decisions and so forth it might be quite onerous in terms of resources and it will inevitably to some degree fall to the parties to identify whether there have been any unintended issues.

PN22

It's a submission you've probably heard before, your Honour, but it's one we must press again. That I suppose is the only thing I was going to put, other than it seemed to be from our review so far of the award that where there are issues it was (indistinct) it has come mainly from application of outcomes from the other plain language draft awards or from perhaps the Commission's staffs' redrafting of some clauses that they perceive to be not consistent with the guidelines rather than the implementation of the decisions or the restructuring of the award. It seems that perhaps taking a conservative approach in those areas might be one way of limiting the amount of work this process requires.

PN23

But apart from that, your Honour, the only thing we would seek is an opportunity to file a short submission explaining the issues for the benefit of the Commission.

PN24

JUSTICE ROSS: All right. Anyone else in the front?

PN25

MR K BARLOW: Your Honour, Barlow, initial K, for the CPSU. We echo some of the concerns the AiG have raised regarding this. We have been unable in the time permitted to review the changes arising from the light touch of the gardening award against some of our awards and would also seek a similar leave to file written submissions if any issues are raised in the review of those awards or in fact if the AiG make comments of general application that could have implications for our awards regarding their comments on that process, your Honour.

PN26

JUSTICE ROSS: The second line? In Melbourne?

PN27

MS V WILES: Your Honour, it's Ms Wiles for the CFMMEU - Manufacturing Division. Look, I would endorse the comments made by the AAA in terms of inclusion and an opportunity to put in reply comments. Unusually we would also agree with AiG in that in our view in terms of the other awards a kind of minimalist, light touch approach is appropriate and we say that given the now six years that the parties have been involved in reviewing awards and prior to that, the 2012 transitional review as well. We would also like an opportunity to file a short submission although I am able to take you to a number of specific issues in the gardening award that we have identified if you prefer but alternatively we can file a brief submission by the end of today, if that assists.

PN28

JUSTICE ROSS: Thanks, Ms Wiles. We'll provide an opportunity for further submissions in relation to the gardening award. Anyone else in Melbourne? In Canberra?

PN29

MS R SOSTARKO: Yes, your Honour - it's Sostarko, Rebecca, from Master Builders' Australia. I noted that when you first addressed the group that you stated that there was no correspondence. We actually filed two pieces of correspondence with respect to the statement that led up to the conference today and I'd just like to draw to the Commission's attention in summary that our position that we submitted within that correspondence is that given that there are a number of matters outstanding with respect to the constructions awards, both before the construction awards of the bench and in other common issue matters we would seek that - and the Commission has since granted that further directions with respect to the exposure drafts of those awards will be deferred until the conclusion or a decision is handed down in the construction awards full bench matter.

PN30

JUSTICE ROSS: Wasn't that correspondence directed to the earlier conference?

PN31

MS SOSTARKO: I think, your Honour, our correspondence of 18 April actually makes reference to this conference today.

PN32

JUSTICE ROSS: And - all right, what do you say in relation to this conference today about the general light touch in that correspondence?

PN33

MS SOSTARKO: We would say that until a decision is handed down, because there are substantive matters that are yet to be determined - for example with respect to allowances - that I think would very much have a bearing on the outcomes within this matter. We would seek that - we're obviously awaiting further directions in terms of the release of exposure drafts in that process so we would ask that until that process reaches its conclusion that we would seek to make further submissions in this matter once that date arrives.

PN34

JUSTICE ROSS: I'm not sure I'm following what that means. When you say further submissions in this matter, if you wait until construction is finished, this matter will be finished. The only thing that won't be finished will be its application to the construction award.

PN35

MS SOSTARKO: Yes, I understand the time frame that the Commission is working within. However, I think that they each have a bearing on one another and until we have a decision on substantive claims within our awards it will be very difficult for us to be able to put a provisional view forwards on the matters that your Honour is seeking us to make submissions on in this plain language project.

PN36

JUSTICE ROSS: Well, what follows from that is - are you suggesting that we should just put the plain language project as a whole on hold until the construction award is finished?

PN37

MS SOSTARKO: I certainly wouldn't request that you do that with respect to the - - -

PN38

JUSTICE ROSS: I'm just not sure - is what you're asking that we should wait until all the issues that bear upon the construction award are finished before we seek to apply the light touch process to the construction award? Is that basically it?

PN39

MS SOSTARKO: Yes, your Honour.

PN40

JUSTICE ROSS: Okay, but you're not suggesting that the plain language project not apply to other awards in the meantime?

PN41

MS SOSTARKO: I'm certainly not, your Honour, certainly not.

PN42

JUSTICE ROSS: Okay, all right.

PN43

MS SOSTARKO: I think we all know, as we have repeatedly heard, nuances within our awards that are quite distinct and specific and we have made submissions in this matter with respect to the shutdown provisions, for example, which operate well but quite differently to those within other awards so certainly not, I certainly wouldn't want to halt the progress that the Commission is making with respect to the other awards. But I do think - and we can't impress enough the importance of having at least a program set down for the exposure drafts to be able to get a sense in terms of the time frame that are relevant to these matters.

PN44

JUSTICE ROSS: But I've done that, haven't I?

PN45

MS SOSTARKO: We have not had new directions issued with respect to the exposure draft for the construction awards, your Honour.

PN46

JUSTICE ROSS: No, because it's awaiting the conclusion of the substantive issues.

PN47

MS SOSTARKO: Correct, that's right.

PN48

JUSTICE ROSS: Yes, but I've agreed with you and with the CFMMEU that we will await the substantive issues decisions and then I will issue revised directions on the exposure draft.

PN49

MS SOSTARKO: Yes, thank you, your Honour, but as I said I think they are most relevant to a number of issues that have arisen in this particular matter as well.

PN50

JUSTICE ROSS: Sure, well, we won't be applying the light touch to the construction awards until the exposure draft issue has been sorted out so it will be some time down the track.

PN51

MS SOSTARKO: Thank you, your Honour.

PN52

JUSTICE ROSS: Anything else in Canberra?

PN53

MS M ADLER: Your Honour, it's Adler, initial M, from the Housing Industry Association.

PN54

JUSTICE ROSS: Yes.

PN55

MS ADLER: Just picking up on your last point about applying the light touch process to the construction awards at this stage until we have had a decision in the substantive matters, which we support, having said that we should avail ourselves of an opportunity to comment on those changes made in the gardening and landscape award at this time.

PN56

JUSTICE ROSS: Sure, sure.

PN57

MS ADLER: Otherwise, the light touch changes made in that award will inevitably vote through - - -

PN58

JUSTICE ROSS: It's not an unreasonable assumption. But you will be given an opportunity with others to make whatever comments you wish about the gardening award.

PN59

MS ADLER: Thank you, your Honour.

PN60

JUSTICE ROSS: In Newcastle?

PN61

MS K THOMSON: Thomson, initial K, for ABI the New South Wales Business Chamber, your Honour. I would just like to support the position put by Mr Ferguson and the AiG in respect of the general matters and we would appreciate the opportunity to put a written submission.

PN62

JUSTICE ROSS: No problem, and in Adelaide?

PN63

MS K ROGERS: Good morning, your Honour - Rogers, initial K, for the AMAU. Similarly, we would appreciate the opportunity to put in a written submission.

PN64

JUSTICE ROSS: Thank you.

PN65

MR H WALTON: Sorry, in Adelaide, Walton, initial H, from the SA Wine Industry Association. We may also put in a submission in relation to the gardening and landscape being light touch.

PN66

JUSTICE ROSS: Sure - in Brisbane?

PN67

MR B COOPER: Thank you, your Honour - Cooper, initial B. We have no further comment to make in regards to a light touch process at this time.

PN68

JUSTICE ROSS: All right, thank you. Well, parties will have an opportunity to file anything they wish to say about the gardening exposure draft by 4 pm next Thursday. We will issue a statement dealing with or setting out a summary of the submissions and dealing with any issues that arise. In relation to the range of matters that were identified as being outstanding in the plain language process in the statement of 28 February we have received a range of submissions in relation to those. We will publish a summary of submissions in relation to each of those issues next week. Flights Attendants' Association have until 4 pm this Friday, I think, to provide their submission, though they have outlined what it is in relation to the shut-down matter.

PN69

Once we have published the summary of submissions parties will be asked to comment on the accuracy of that summary. It would be then our intention to make decisions on those matters on the basis of the material filed without the need for an oral hearing unless the parties requested an oral hearing in respect of one or more of the matters. Anything else? Okay. I've indicated the position in relation to construction. It would seem to logically follow that once the substantive issues are determined the exposure draft, technical and drafting matters will be dealt with and then a light touch process will be applied to that award. Anything further at this stage?

PN70

When you are making comments in relation to the gardening award, can I - this might be an expression of hope over experience but nevertheless - encourage you to focus on those matters that reflect a change in wording rather than those matters we have already decided because the structure and those sorts of issues, as we mentioned in the February statement, have been determined in previous full benches and are being applied in this award. So where those common issue matters have been dealt with and translated, the argument about many of those matters has been had and we don't want to revisit it.

PN71

Where it's dealing with the translation from the plain language there are three categories: that one I've just mentioned, common issues matters; the second is the translation from the plain language redrafting of the retail and the other awards into this award. We have a view about that and whether that's appropriate, identify that. The third is a residual category where there has been some change in this award on a purported application of the plain language principles that you don't think is appropriate, okay? So if you look at those three categories but try to - in relation to the first try to resist the temptation to relitigate matters that we have really been over quite a bit and focus on the other two categories, all right?

PN72

Okay, thanks for your attendance. Anything further issues or questions? No? All right, thanks for your attendance. I'll adjourn.

ADJOURNED INDEFINITELY�� [10.00 AM]