PN1

JUSTICE ROSS: Can I have the appearances, please.

PN2

MR A GOTTING: May it please the Commission my name is Gotting and I appear for Australian Industry Group. I think on an earlier occasion permission was granted for lawyers to appear and I am assuming that that permission continues, but if it does not I obviously seek permission.

PN3

JUSTICE ROSS: Thank you.

PN4

MR M GALBRAITH: If it please the Commission Galbraith, initial M, for the SDA.

PN5

JUSTICE ROSS: Thanks, Mr Galbraith.

PN6

MS K BIDDLESTONE: If the Commission pleases Biddlestone, initial K, appearing on behalf of the SDA.

PN7

JUSTICE ROSS: Thanks.

PN8

MR CULLINAN: If it pleases the Commission Cullinan, initial J, appearing on behalf of the Retail and Fast Food Workers Union.

PN9

JUSTICE ROSS: Thanks. Just out of an abundance of caution is there any objection to the application for permission to appear? No.

PN10

MR GALBRAITH: No, your Honour.

PN11

JUSTICE ROSS: Having regard to the complexity of the matter, Mr Gotting, we think it would be dealt with more efficiently if permission were granted and permission is granted on that basis.

PN12

MR GOTTING: If the Commission pleases.

PN13

JUSTICE ROSS: I wanted to raise a general matter, and then we have some specific questions for each of you. We have had the opportunity to read your submissions, so you don't need to stand up and read them out to us, if I can make that observation at the beginning, but there are a number of aspects of the submissions about which we seek clarification or where you have understandably not responded to submissions that were put in at the same time by other parties.

PN14

Can I just put the general proposition first, that on 27 May Deputy President Masson published a report on the outcome of conferences held on 12 April and 21 May. Now, Ai Group in its submission expressly states that it accepts that the report accurately summarises its position. I just wanted to make sure that was the case with the other parties who were at the conferences.

PN15

MR GALBRAITH: Your Honour, we communicated with the Commission and said the same.

PN16

JUSTICE ROSS: All right. Thank you. So let's go to the two main issues, or the only two issues in contention today. The eight hour minimum proposition, can I start with that. We don't need to hear from Ai Group as it's set out in considerable detail its opposition to it, and it posits an alternate position. What I will do is ask the questions that we have got and then if any party wants to say anything further about that issue they can, but as I say the matter seems to be clearly dealt with in all of your submissions. Mr Cullinan, can I go to you first. Have you got your submission there?

PN17

MR CULLINAN: I do.

PN18

JUSTICE ROSS: Can you just go to para 30 for me.

PN19

MR CULLINAN: Yes.

PN20

JUSTICE ROSS: You say there that the evidence shows that the hours worked by part-time workers in the sector are eight hours or more.

PN21

MR CULLINAN: Yes.

PN22

JUSTICE ROSS: What's the evidence that you're referring to there? You reference the McDonald's enterprise agreement which provides for a 10 hour minimum, but I wasn't sure if there was anything else you're relying on.

PN23

MR CULLINAN: We were relying on that McDonald's minimum - and I don't have it in front of me - - -

PN24

JUSTICE ROSS: No, I don't think it's contested that they provide for a 10 hour minimum for part-time employees, but their part-time clause is of course quite different to the one in the award as well.

PN25

MR CULLINAN: Yes, at this time. I think the other references were to other sectional employers that have minimum contracted hours, and in particular we understood KFC had minimum contracted hours, but I can identify that for the Full Bench.

PN26

JUSTICE ROSS: No, that's fine, I don't want to prolong the proceedings any longer, I just wondered whether you were referring to anything other than the enterprise agreements that are in the sector.

PN27

MR CULLINAN: No, only the enterprise agreements in the way they were relied upon by witnesses of the AiG.

PN28

JUSTICE ROSS: All right. Thank you. This is then to both RAFFWU and the SDA, and I want to take you to aspects of Ai Group's submission. Do you have that in front of you? All right. The first is at para 18, and in particular (c) and (d). You're looking slightly confused, Mr Cullinan, do you not have a copy of these up there?

PN29

MR CULLINAN: No. I am probably looking slightly confused just because of my head cold.

PN30

JUSTICE ROSS: No, that's fine, I will read it out to you. What can I do for you, Mr Gotting?

PN31

MR GOTTING: Just before you ask a question about paragraph 18(d) I need to correct that paragraph.

PN32

JUSTICE ROSS: All right.

PN33

MR GOTTING: And I apologise that it's inaccurate in its current form. There's a reference in paragraph 18(d) to two awards. Those awards both have what I will call the flexible part-time clauses, but contrary to what appears in paragraph 18(d) neither of the two awards provide for a weekly minimum engagement.

PN34

JUSTICE ROSS: I see.

PN35

MR GOTTING: And I am sorry that that's contrary to the way that paragraph 18(d) reads at the moment, but one of the things that I wanted to correct today was the inaccuracy in paragraph 18(d). Now, the reason I raise that - - -

PN36

JUSTICE ROSS: Can you just speak into the microphone, Mr Gotting, I think the recorder is having trouble picking you up. Are there any other inaccuracies? How would you correct that inaccuracy? Would you just delete (d)?

PN37

MR GOTTING: Just delete (d) because it's inaccurate.

PN38

JUSTICE ROSS: All right. Anything else?

PN39

MR GOTTING: No. I'm sorry, the only reason I jumped to my feet was because I thought your Honour was going to ask a question based on it.

PN40

JUSTICE ROSS: No, I was. No, that's fine. Is there any other inaccuracies you want to touch on?

PN41

MR GOTTING: No.

PN42

JUSTICE ROSS: All right. You will see at (c), paragraph (c) - this is, Mr Cullinan, where the Ai Group says that there are - the eight hour minimum appears in three related awards; hospitality, restaurant, registered clubs, in the context of flexible part-time provisions. That's the proposition I want to test with both of you. One, do you accept that's so, it seems to be clear on the face of it. Are there any other awards that provide for an eight hour minimum?

PN43

MR GALBRAITH: Not that I am aware of, your Honour, but I haven't investigated it beyond those three awards.

PN44

MR CULLINAN: No doubt there should be, your Honour, but not that we're aware of.

PN45

JUSTICE ROSS: Thank you. Again for both of you - - -

PN46

MR GOTTING: I am sorry, your Honour, can I just say that from our investigations there's no other modern award.

PN47

JUSTICE ROSS: Yes. Can I take you to para 28 of Ai Group's submission. This is where Ai Group puts an alternate position, "If we don't accept their opposition to an award specified guaranteed minimum", then they make three points. The first is that the minimum is expressed as eight hours weekly, and they say it should allow for the guaranteed hours to be provided and paid over a roster cycle, which might be longer.

PN48

The second is the weekly hours should be set at six, and they say the reasons for that, and one - I am not suggesting the others are illogical, but one logical reason is that there's a three hour minimum shift engagement provision in the award presently.

PN49

Thirdly, that the redrafted clause should allow for the continuation of regular patterns of hours established in an enterprise prior to the introduction of a change, and they make reference to a provision in the hospitality award. What do the SDA and RAFFWU want to say about that?

PN50

MR GALBRAITH: Your Honour, I will address each of those paragraphs. In respect of paragraph (a) in the averaging the SDA would not oppose an averaging over a roster cycle which is fortnightly or monthly.

PN51

JUSTICE ROSS: Yes.

PN52

MR GALBRAITH: In respect of paragraph (b) the SDA would maintain its position that eight hours weekly should be the minimum, minimum guaranteed hours. In respect of paragraph (c) our reading of that draft is that an existing employee may maintain their work pattern if that is what they elect to do, or may apply the new provisions if the award is varied. It's the choice of the employee. So for example if an employee did have minimum hours of less than eight and in the unlikely circumstance that that suited that employee they could maintain that - - -

PN53

JUSTICE ROSS: All right. We can get some clarification off Mr Gotting in a moment. It does seem to be framed, it says "is entitled to continue", which sort of suggests it's the employee's entitlement, but I don't know the context in which the provision was reached, but we will come back to that. All right. Thanks. Mr Cullinan?

PN54

MR CULLINAN: Thank you, your Honour. In terms of point (a) I think we may have potentially accidentally even gone that way ourselves in our submissions - - -

PN55

JUSTICE ROSS: You have, yes.

PN56

MR CULLINAN: - - - where we made reference to - so we think that that makes good sense. In terms of point (b) we would continue to press on the basis of our submissions the eight hour point, but we do acknowledge that the fast food industry at the moment is populated by a very young workforce largely at high school, and we acknowledge that there are difficulties with rostering some of those staff at times. If we were to encourage those staff to take up part-time employment if the employers were - rather than casual employment - and so we do understand the particular issues in this sector, but we will continue to press the eight hours.

PN57

In relation to the redrafted clause I think there's two issues for us that arise with this. One is the way that the award clause actually applies to enterprises from the time that it commences, and so if there was a clause that was to be brought into force we have the same issue as agreements are terminated at the moment, is that the clause generally provides for at the time of first being employed, and we have some recalcitrant employers who argue with us that that is at the time of very first employment, and if your agreement for example gets terminated or an award gets varied the clause doesn't kick in anew because it's not at the time of first being employed. We are concerned by a structure that would allow or permit an employer to continue an arrangement - - -

PN58

JUSTICE ROSS: All right, but what about if it's as suggested by the SDA, and we will come to whether that's right or not in a moment, but if it's simply that, well the employee can effectively elect to maintain their agreed hours or they can move to whatever minimum hours are prescribed?

PN59

MR CULLINAN: We would be content with that structure. I think at the moment the advice from the Fair Work Ombudsman is that the clause when it comes into effect has to be applied, so an arrangement which allows for it either to have to be applied or at the election of an employee would satisfy hopefully. Thank you.

PN60

JUSTICE ROSS: Mr Gotting, anything from you on that point?

PN61

MR GOTTING: Your Honour, my understanding or in my submission about the effect of clause 12.11 in the hospitality award, which is set out on page 6 of our submissions, is that the prima facie position is that the existing arrangement continues, and to that extent there's a difference between the Australian Industry Group and the SDA as to whether it provides a choice. In my submission the prima facie position is that it continues, the existing arrangement continues.

PN62

JUSTICE ROSS: All right.

PN63

MR GOTTING: But I accept there is a qualification at the tail of clause 12.11 that refers to the ability to enter into a replacement agreement. So it's not an absolute position, and that's why I referred to it - - -

PN64

JUSTICE ROSS: It's curiously worded.

PN65

MR GOTTING: It is. I am sorry, I'm not able to - - -

PN66

JUSTICE ROSS: Part-time employee is entitled to continue. If it had the effect - a number of hurdles before we might get to this point, but if it had the effect for which you contend why wouldn't it just say that any written agreement in place prior to 1 January 2018 as to hours continues to operate until replaced?

PN67

MR GOTTING: It would be a lot easier if it said so, your Honour. I'm just trying to interpret the words that are there. I am sorry, I am not able to identify the history of the drafting of that clause to assist, but we just thought it was an appropriate illustration of a clause that allowed or recognised an existing arrangement and the continuation of that existing arrangement. My instructions are to do it on the prima facie basis, but it would obviously be open to the Commission to do it on a choice basis along the lines that the SDA has submitted.

PN68

JUSTICE ROSS: Yes. So irrespective of where we land on the construction it would still be open to do it as they have outlined.

PN69

MR GOTTING: Of course, as part of a review. I obviously urge the former, but I accept that it's open to do the latter.

PN70

JUSTICE ROSS: All right. Thank you.

PN71

MR CULLINAN: I just wanted to raise one issue with this, and that is the use of the language "employed for a regular pattern of hours", and if - - -

PN72

JUSTICE ROSS: Language where?

PN73

MR CULLINAN: In that clause at (c), the AiG's submission from the Hospitality Industry Award.

PN74

JUSTICE ROSS: Yes.

PN75

MR CULLINAN: And so for us there is a distinction and maybe going back to this termination issue an employee who has a regular pattern of hours as defined under the award, or the previous award as it might be, as distinct from someone who has an agreement. For example an employer that doesn't have a pattern of hours dictated by their agreement we wouldn't want them being captured as a zero hour part-time employee and being captured by having a previous arrangement. Does that make - - -

PN76

JUSTICE ROSS: I am not sure we are going to deal with any of that, because we are not dealing here - I am not suggesting it's not an issue in practice, what happens when an enterprise agreement is terminated, but we are not going to address that in this decision. That's not really a matter that we can address for one, it's a matter that ultimately is a legal interpretation question for the courts, but here we are simply trying to understand what Ai Group is seeking. Leave aside that language in that clause for the moment the two positions - the position advanced by the unions is, well we want our primary position; that's the short version, and then you address Ai Group's alternate position.

PN77

In relation to this matter I have taken Ai Group to be saying we decide the wording in the hospitality award. What you want is a provision that says that any written agreement as to regular patterns of hours as at the date a variation is made will remain in place until replaced by another agreement between those two parties. That's the essence of it. The unions position is that, well any agreement in operation under the award clause, because that's what we are dealing with, prior to the date of variation the employee can, if they wish, elect to keep that if it suits them for the reasons that you have articulated. It may be that there's an employee who has an agreement currently that they work one shift a week, three hours. That suits them, they want to continue that. They wouldn't be able to do that if it was a minimum of six. So that seems to be the difference between you. Don't worry about the drafting, that is something that would be settled later about how you give effect to that, but that seems to be the difference in principle.

PN78

MR CULLINAN: Yes, and I think my only point in relation to that is the caveat under the award clause, rather than it just being any agreement.

PN79

JUSTICE ROSS: But we are only dealing with the award, Mr Cullinan.

PN80

MR CULLINAN: Yes, thank you.

PN81

JUSTICE ROSS: To the extent that - in relation to the issue that you have raised I think the best way of dealing with that rather than trying to deal with it on the fly based on a Bar table statement about a position, of a problem in practice, would be for you to give some thought to, well what variation to the award is it that you're seeking to address a particular problem. So you need to articulate in an application to vary what change you're seeking and also some evidence about the problem that's arisen, rather than us trying to do it sort of on the run.

PN82

MR CULLINAN: Maybe we're at cross purposes, because our concern is there was some take-up of this proposal by the AiG that the wording doesn't provide for any agreement to stay in place, but rather an agreement under the award.

PN83

JUSTICE ROSS: Yes.

PN84

MR CULLINAN: That's the only issue that we have. I think that that deals with the concern we were raising.

PN85

JUSTICE ROSS: So if it simply said any agreement under clause X, Y, Z or the award that would satisfy you?

PN86

MR CULLINAN: Yes, your Honour.

PN87

JUSTICE ROSS: I follow. All right. That was all we had about the eight hour minimum. The parties articulate their respective positions in their submissions. Is there anything any party wants to say on that issue before we move to the proposed redrafting question?

PN88

MR GALBRAITH: Your Honour, I just make one observation about AiG's position on that, and that would be if an arrangement with a part-time employee who may possibly have hours less than eight, and that arrangement is maintained, you would end up in an unusual situation where you would have a very large group of people who are possibly on hours of less than eight, a particular date where people engaged after that date are on more than eight hours.

PN89

JUSTICE ROSS: Yes. You wouldn't have a large group. If you have a look at the earlier decision you will see the turnover in this sector and the overwhelming proportion of employees have been employed for one year or less. So you would have a difference in group, but I don't think it would be - bearing in mind also that under the McDonald's agreement, and it occupies a chunk, a large chunk of this sector, they're already working 10 hours as a minimum, so that's not going to change any time soon.

PN90

I accept that a consequence would be that you have the potential in a particular workplace for people to be working under different minimum hours arrangements at least for a period of time, but given the age profile in the sector, 60 per cent are 18 or younger, and the turnover, the most common tenure is one year, or around about one year, I don't think it's likely to be a problem that would persist. So it's not going to be your classic red circling might lead to issues down the track. It's unlikely in this sector for those reasons. Okay, nothing else.

PN91

Let's go to the redrafting issue. If I can summarise the conditions broadly; RAFFWU, no; Ai Group and SDA agree broadly with the provisional view expressed in the decision, but disagree in I think four respects about the translation of that broad in principle agreement into a draft, and the four issues between you are, in no particular order, the time at which the variation is to be recorded, the difference here being the Ai Group's revised position is within 24 hours at the end of the shift. SDA, well, by the end of the shift, but not necessarily at the time the agreement is made to vary. There's an issue around the means of communication. This is the insertion of the words "commonly used" which is proposed by the SDA, and I don't know the attitude of the other parties to that issue.

PN92

There's a difference between you about the meal breaks provision and how the interaction between the two, and that's set out in the annexure to the report published by the Deputy President. The final issue is SDA's position that if you don't have a record then the employee is to be paid at overtime rates. On that last issue my understanding is that's RAFFWU's position in the alternative. Is that right?

PN93

MR CULLINAN: Yes.

PN94

JUSTICE ROSS: So firstly am I right in the characterisation, those are the four things?

PN95

MR GOTTING: Yes.

PN96

JUSTICE ROSS: All right. Let's go to you first, Mr Gotting.

PN97

MR GOTTING: Your Honour, can I endeavour to deal with all of those four issues in turn?

PN98

JUSTICE ROSS: Sure. I had some questions for you first.

PN99

MR GOTTING: Sorry.

PN100

JUSTICE ROSS: No, no, that's all right. Can I go to 21 to 22 of your sub. Here you talk about the practical difficulty of might be the distraction during peak periods. You then say:

PN101

The need to meet customer demand may not cease at the end of the shift worked by the employee. It may thus not be practicable for them to record the variation at the end of the shift.

PN102

What's the evidence to support that proposition?

PN103

MR GOTTING: I am not sure that I can point to any direct evidence, but there was some evidence about peak periods, around breakfast, lunch and dinner, and - - -

PN104

JUSTICE ROSS: There was, and that really went to the impracticality of recording it at the time of the agreement. I am looking here at the evidence that says it may not be practicable to record it by the end of the shift.

PN105

MR GOTTING: I am not sure that I can point to anything specifically that addresses that point, but just as a matter of logic if the shift continues beyond - or finishes during the peak period, the extended shift as varied - - -

PN106

JUSTICE ROSS: Why would you have an extended shift end in the middle of a peak period?

PN107

MR GOTTING: It might suit - the employee might have some other commitment that means that the employee is unable to work throughout the entire period, the peak period.

PN108

DEPUTY PRESIDENT MASSON: Mr Gotting, wouldn't that then mean if an employee's shift ended in the middle of a peak period then it's more likely that there would have been an opportunity prior to the peak period to make a record?

PN109

MR GOTTING: It may be possible. It depends on the circumstances.

PN110

DEPUTY PRESIDENT MASSON: Yes.

PN111

MR GOTTING: I suppose it's possible to envisage a circumstance where there's an extension of time agreed by an employee to cover part but not all of peak period and it may not be practicable for the agreement to be recorded at the end of the shift, the extended shift, and for that reason really associated with matters of practicability Australian Industry Group urges, and a short period of time after the end of the shift to the relevant employee to record the agreement. It's not intended to require the employee to remain at the workplace.

PN112

JUSTICE ROSS: Yes, I wanted to come to that. How do you record it if - how does that work?

PN113

MR GOTTING: One might be by text message, your Honour; two might be by email, three might be by application which is used at some of the major employer groups, and there was some cross-examination by RAFFWU of the witnesses called by Craveable Brands and McDonald's about the ease at which it could be - that the variation could be recorded by the use of text message, email or application.

PN114

JUSTICE ROSS: All right. At 15 of its submission RAFFWU submits there is - this is the provision of a copy of the variation to the employee. They submit there's no evidence of any issue with the provision of a copy of the variation, and I wanted to ask you if there was any evidence about that issue, that having to provide a copy of the variation to the employee was creating a problem.

PN115

MR GOTTING: Can I just clarify the precise time. Is your Honour asking at the time that the variation is agreed orally, because if there was some evidence about the impracticability of recording the agreement at the time - - -

PN116

JUSTICE ROSS: It's not so much the recording it's the provision of a copy of the record of the agreement to the employee. So leave aside when the agreement is recorded in writing; it is at some point, and the award at present requires a copy of that agreement to be provided to the employee. RAFFWU simply takes the point that, well there's no evidence of any issue with that.

PN117

MR GOTTING: I am not able to point to any evidence of any difficulty about the provision of a copy of the agreement.

PN118

JUSTICE ROSS: Can I go to the interaction with meal breaks. Not having had the benefit of the conference, and I am looking here at 27.1, it's in the last schedule I think to the report, and there are the two proposals set out there. I suppose my short point is what's wrong with the SDA's proposal is Ai Group's view, given that it seems to do less violence to the clause, if I can put it that way?

PN119

MR GOTTING: One issue that the Australian Industry Group wanted to raise was the reference to the roster provisions of the award that appears in the - - -

PN120

JUSTICE ROSS: Where there aren't any.

PN121

MR GOTTING: That there aren't any.

PN122

JUSTICE ROSS: Yes, that's a separate issue. This isn't the only part of the fast food award that makes reference to roster provisions. There doesn't seem to be a discrete roster provisions clause.

PN123

MR GOTTING: There is not, and that's one of the differences between the parties. Otherwise I think that the position of the SDA and the Australian Industry Group is substantively the same, but is just reflected in a different form of drafting.

PN124

JUSTICE ROSS: Okay. So really the substance of the issue between you, and we will come back to the SDA on this in a minute, is that you say, well there are no roster provisions of the award so it doesn't make any sense to retain that language in 27.1

PN125

MR GOTTING: Correct.

PN126

JUSTICE ROSS: All right.

PN127

MR GOTTING: But I think both parties accept that clause 27.1 should permit the variation to the regular pattern of work to address meals, the taking of meals and the taking of rest breaks, and otherwise there's just a reference to - it's a different form of wording.

PN128

JUSTICE ROSS: No, I follow.

PN129

DEPUTY PRESIDENT MASSON: Mr Gotting, is it a different form of words, because the clause proposed by Ai Group states that, "Taking a rest and meal breaks and (indistinct) of meal breaks are subject to agreements." Is that the case currently, because the existing provision seems to provide that meal breaks are to be taken within a certain period of commencement of the shift, depending on the number of hours they worked. Maybe I misread it, but it doesn't appear to require that subject to that meal break being given within a certain period of time, it doesn't appear to require that the timing of the meal break is to be by agreement.

PN130

MR GOTTING: I am not sure if your Honour has in mind the existing clause 12.2 of the award.

PN131

DEPUTY PRESIDENT MASSON: Yes. Are there provisions that state that the timing is by agreement within that - - -

PN132

MR GOTTING: The last bullet point in clause 12.2 of the existing award - - -

PN133

DEPUTY PRESIDENT MASSON: I see. No, my apologies. No, that's fine.

PN134

MR GOTTING: I think in substance the same - there might be different language between the two versions proffered by the parties, but I think in substance at the moment the existing clause requires an agreement to be made at the time they're first being employed about the timing of the taking and the duration of the meal breaks.

PN135

JUSTICE ROSS: All right. Thank you. It might be convenient to go to you, Mr Galbraith, on that question. What do you say about the proposition that there are no - I don't think that's the only place - 27.1(d) at the moment refers to a roster, and I thought there was something in full-time hours. Bear with me for a moment. There's a reference in 25.3 to, "An employee may be rostered to work up to a maximum"; 25.4, "A full-time employee will be rostered for an average 38." So there are different provisions in the Act that talk about a roster, but there doesn't seem to be a rostering clause.

PN136

MR GALBRAITH: Your Honour, I was to make that point. Other awards do have specific rostering clauses, we concede that, but the fast food industry award has the word "roster" appear throughout it.

PN137

JUSTICE ROSS: More to the point the current 27.1(d) talks about subject to the roster provisions of this award. What does that mean, I suppose - - -

PN138

MR GALBRAITH: Well, 8(a), your Honour, refers to consultation about changes to rosters. So that implies there are rosters. Clause 12.2 doesn't use the word "roster", but I would suggest that it has the same effect in that it refers to hours of work each day, days of the week, starting and finishing times, minimum engagement of three hours. They all suggest rostering to me.

PN139

JUSTICE ROSS: And the evidence is mostly the main employers use a roster or a system of rostering, and whether it's MiTime or it's some other form there's a roster constructed that tells people when they're working, however you want to refer to it. Otherwise how would they know when to turn up to work. All right. What do you say is meant by "subject to the roster provisions of this award" in your draft; what provisions are you talking about there?

PN140

MR GALBRAITH: 12.2, your Honour, that an employee and an employer will agree to days of the week, numbers of hours, and the time it's taken - - -

PN141

JUSTICE ROSS: Well, why it wouldn't just say that subject to 12 - - -

PN142

MR GALBRAITH: 12.2

PN143

JUSTICE ROSS: - - - that form part of the roster agreed pursuant to clause 12.2?

PN144

MR GALBRAITH: We could consider that, your Honour.

PN145

JUSTICE ROSS: That would also address your point, wouldn't it, Mr Gotting?

PN146

MR GOTTING: I think that's substantively where the parties are at and that's what I was endeavouring to indicate to his Honour Deputy President Masson when I was answering his Honour's question.

PN147

COMMISSIONER LEE: Yes, Mr Cullinan.

PN148

MR CULLINAN: Perhaps just to clarify 27.1 applies to full-time employees, and clause 12 is for part-time employees, and it is an unusual - well, it's an award that provides for agreed hours so there doesn't need to be rosters for part-time employees, but certainly for casual and full-time employees they would still need the benefit of breaks during work periods, and 25.4 is probably the correct reference to the rostering provisions for full-time employees. If it pleases the Commission.

PN149

JUSTICE ROSS: Can I just go back to you, Mr Gotting. Can I go to the other two changes that the SDA seek. One of those - let's deal with the one to 12.2(d) - this is:

PN150

Any variation will be in writing, including by any electronic means of communication. The SDA seeks to delete the word "any input by commonly used electronic means."

PN151

MR GOTTING: That is opposed, your Honour. The Australian Industry Group submits that such an insertion is not necessary and there's no evidence or suggestion of use by employers or employees of uncommon electronic communications. Can I also highlight that in the decision of this Full Bench at paragraphs 155 and 156 there was references to other sample clauses that have electronic communications and there was no qualification of the commonly used type.

PN152

JUSTICE ROSS: I suppose one of those simply puts after "any electronic means of communication" for example by text message by way of illustration as to what's intended.

PN153

MR GOTTING: It does. I can't disagree with that of course, but my submission is that's not necessary to meet the modern awards objective.

PN154

JUSTICE ROSS: What is it? Do you oppose the insertion of a reference to an example, for example by text message, or are you saying the SDA's proposition is not necessary?

PN155

MR GOTTING: I am sorry, my submission is that the phrase "commonly used" is not necessary. There is no opposition to the inclusion of an example of say a text message or an email or something of that kind.

PN156

JUSTICE ROSS: What do you say about the SDA's proposal that where there is no record of such an agreed variation overtime is payable?

PN157

MR GOTTING: That proposition is opposed. If in fact the employer and the employee have agreed to the variation, but not prepared a record of the variation the employer may be in breach of the award and thereby exposed to penalties, but the employer should not have an additional form of penalty imposed upon it by being required to pay at an overtime rate for that lack of record.

PN158

JUSTICE ROSS: Why not? Presumably they're going to keep the record, and on this proposition we have removed the requirement to provide a copy of the employee. So the onus has switched to the employer to retain the record of the agreement.

PN159

MR GOTTING: I accept that that is so, but my submission that it's inappropriate for there to be two forms of penalty, the first being an exposure to paying a penalty in accordance with the Fair Work Act for breaching the award, and the second as an additional form of penalty being required to pay at an overtime rate.

PN160

JUSTICE ROSS: But that's the position for employee records generally. That is if the employer doesn't keep an employee record the employer is subjected to a penalty, subject to a penalty for that, and further then the onus switches.

PN161

MR GOTTING: There is not expressed provision as I understand it in other awards that requires the payment of the overtime expressly in the way that's envisaged here. There maybe - - -

PN162

JUSTICE ROSS: No, no, but other awards also provide a copy to be given to the employee.

PN163

MR GOTTING: But there will also be a factual dispute about whether there was a variation and matters of that kind. My submission is that such a clause is not necessary to meet the modern award's object and there is opposition on the basis of an exposure to double penalty in the way that I have characterised it.

PN164

JUSTICE ROSS: All right. Can I go back to you, Mr Galbraith, about this commonly used proposition. Firstly is there any opposition to the inclusion of the example along the lines that I mentioned in the exchange with Mr Gotting?

PN165

MR GALBRAITH: Your Honour, there's no opposition to that example. I would make the point that this is not a strongly made submission by the SDA. This is a matter that came up in conference and it was purely to clarify the types of communications that might be used between an employee and employer.

PN166

JUSTICE ROSS: I mean speaking for myself it might raise more questions than answers. One of the questions for me was in looking at the draft commonly used by whom? Within the sector, within the workplace, and it sort of raises the proposition - well, the prospect that there might then be a dispute about whether it was commonly used or not. How does one resolve that? So I wasn't sure what level was it operating. Something that might be common in McDonald's might not be common in a corner fast food store, if there are any of them left, and how do you see it working?

PN167

MR GALBRAITH: We wouldn't press this, but we would - I would note that during the conferences we did discuss this, not at length, but we couldn't really come up with words that were acceptable to everyone. So we won't press this, that the existing wording is fine and possibly the inclusion of an example might be helpful.

PN168

JUSTICE ROSS: All right.

PN169

COMMISSIONER LEE: Isn't the key issue with electronic means that there would still be a permanent record, because there are some - just picking up what Mr Gotting was talking about - perhaps there are some that do not stay in existence for a period of time. That would be an issue, wouldn't it?

PN170

MR GALBRAITH: Sorry, I wasn't intending a Snapchat type app that disappears within a set period of time after - - -

PN171

JUSTICE ROSS: I'm impressed by your knowledge of this social media stuff, Mr Gotting.

PN172

MR GOTTING: Well, only through my daughter I might add.

PN173

JUSTICE ROSS: Yes. So you say.

PN174

MR GOTTING: I call a witness, your Honour. Can I put my daughter in the box, please.

PN175

COMMISSIONER LEE: That would be by electronic means, wouldn't it?

PN176

MR GOTTING: It would need to be in this instance, yes. I am not envisaging anything of that kind and so there could be the record that, Commissioner, you envisage.

PN177

COMMISSIONER LEE: Yes.

PN178

JUSTICE ROSS: Yes, all right. Those were really the questions that I had for the parties. Was there anything any party wanted to add by way of supplementation or something that has arisen in relation to this question of the redrafting of the clause? Yes, Ms Biddlestone?

PN179

MS BIDDLESTONE: Your Honour, I just wanted to make a couple of comments just in response to how the Ai Group have answered some of the questions you had about the redrafting. The first is just in relation to the time that the variation is recorded and the proposal by Ai Group that that's extended to 24 hours beyond the end of the shift. I just wanted to make the point that we have obviously concerns about that and we think that if the Ai Group - if the purpose of asking someone to work beyond the end of their shift and they're agreeing to work those hours at ordinary rates then there needs to be a proper written record of that.

PN180

I think that the other problem with extending it to 24 hours but on the end of the shift is from a practical perspective if you have an employee working that shift on the last day of the pay period and the pays are being processed, then I am not sure from a practical perspective how that would work if they're providing that the next day.

PN181

The other issue I would raise is that there has to be a record in some way of the end of someone's shift whether they have worked overtime or whether they have worked it at ordinary rates. So we think that at the end of the shift is the logical time for that agreement in writing to occur. I think extending it to 24 hours beyond opens up other ramifications about what rate that should actually be paid, which goes to the next point in relation to our proposal to include the clause that says, "If it's not recorded then the employee is paid at overtime rates." The concern I think that we have is that allowing a mechanism for employees or an employer to ask an employee to work hours beyond their roster at ordinary rates instead of overtime is a significant concession in terms of what the employee is being asked to give up. So I think that it's reasonable to expect that if that agreement has not been achieved in writing then they should be paid at overtime rates. That should be the default position. Thank you, your Honour.

PN182

JUSTICE ROSS: Yes, Mr Cullinan?

PN183

MR CULLINAN: I think that we just want to press our earlier submissions that there shouldn't be any variation in this respect, but if there is we echo those concerns, that the discourse, and the evidence doesn't show any discourse about the offering of overtime at overtime rates or the offering of work at ordinary rates. That's just not simply had in the sector, and we expect that there will be many offers to work the extra little bit of time at the end of the shift and then a worker - it will be put on a worker to sign a contract which they didn't understand would avoid the overtime rate being paid, and we just see this as unfortunately a blossoming area if this was to be implemented for the union to get involved, because we think the disputation will go through the roof on this issue.

PN184

JUSTICE ROSS: When you say there's no discourse about this, but it's a provision that's reflected in some of the enterprise agreements that they can do this.

PN185

MR CULLINAN: They can do what, your Honour?

PN186

JUSTICE ROSS: They can vary hours by agreement.

PN187

MR CULLINAN: Yes, but there's no discussion with an employee to say would you like to be paid ordinary rates for these additional hours. It's simply - - -

PN188

JUSTICE ROSS: No, but I mean under the agreements that's the position.

PN189

MR CULLINAN: Yes.

PN190

JUSTICE ROSS: So when you say there's no discourse there are agreements in place that have a similar regime.

PN191

MR CULLINAN: And none of those regimes have contracted set hours of work for the part-time worker. So all of their hours are mopped up in this - - -

PN192

JUSTICE ROSS: No, I don't think that's right. The McDonald's agreement that you have taken us to provides for a 10 hour minimum.

PN193

MR CULLINAN: Yes, but it doesn't have contracted set start and finish times on days.

PN194

JUSTICE ROSS: No, it's the interaction with their system, and the making themselves available for certain hours during the week and then the employer tells them what hours they're required.

PN195

MR CULLINAN: Yes, and then they're approached and told are you able to stay back for this extra couple of hours, and they agree or they don't agree. Our concern here is that the structure at the moment in the award is for a contract variation to the actual hours they work, and at the moment a large employer like Domino's that structure is under the award and they agree before their shifts work on the extra shifts or the extra times that they work in that week.

PN196

JUSTICE ROSS: But at the moment under the award they can agree to vary - say they're working a three hour shift on a particular day, and that's when they have been rostered, that's their regular pattern of hours that's been agreed, and the employer approaches them and says, well would you mind varying it today, we want you to work four hours, and the employee agrees and they record it in writing at the time of the variation and that's it. The only issue here is when are they going to record their agreement.

PN197

MR CULLINAN: Perhaps our point is a little bit more nuance than that though. The employer goes to them and says can you work a four hour shift rather than a three hour shift and they can agree to that. If they're three hours or two hours 55 minutes into their shift and their employer comes to them and says I need you to work another hour and they say okay they're not agreeing to a contract variation. They could very well be agreeing to work an hour of overtime, and that's where we say that's the discourse that occurs in the sector. There is no discussion around overtime because no one is being paid overtime rates, and so our concern is that that will lead to the disputation because you will have unions like ours that will start saying did you actually agree to overtime, or did you agree to a contract variation.

PN198

JUSTICE ROSS: But that's a problem at the moment.

PN199

MR CULLINAN: In terms of the current structure?

PN200

JUSTICE ROSS: Yes.

PN201

MR CULLINAN: Except that they have to agree in writing before it occurs. So they're agreeing in writing to something, and that is usually an informed agreement.

PN202

JUSTICE ROSS: The difference here is they will agree and then it will be recorded in writing on the SDA's submission either at the time or before the end of the shift.

PN203

MR CULLINAN: Yes, but what is actually agreed will be verbally agreed and that will be open to contestation, and that's what we are saying will create the disputation, whereas at the moment that worker at Domino's has a letter with the words set out in it with the start and the finish times and they're signing that.

PN204

JUSTICE ROSS: This is under their agreement?

PN205

MR CULLINAN: No, this is under the award. But we just wanted to, I guess, press those submissions. Thank you, your Honour.

PN206

JUSTICE ROSS: Anything finally? No. Nothing further? All right.

PN207

COMMISSIONER LEE: I just wanted to raise - there's been a canvassing of the - well, the notable absence of any roster provision, despite the fact that there's a reference to roster provisions throughout the award. While it's not directly arisen as part of the rest of these proceedings it sort of sits there, it seems to myself and my colleagues on the Bench, as a problem that potentially needs to be resolved. We are proposing to once the Bench adjourns to have a discussion with the parties before they leave about that matter, and what process we might follow to progress that as a discrete issue, that is potentially including some type of rostering provision in the award.

PN208

JUSTICE ROSS: We have got copies of the rostering clauses in registered clubs, restaurants and hospitality here and they're fairly simple, and they may cross reference, I think it's 12.2, however it might work. It's a bigger issue than just resolving this issue between the SDA and Ai Group in particular about the meal break provision, and it may be something that can be tidied up as part of this exercise by agreement, but we will see where that goes and if you can remain in place after we adjourn and Commissioner Lee will come back in and have a chat with you shortly. Nothing further? Thank you, we will adjourn.

ADJOURNED TO A DATE TO BE FIXED [11.02 AM]