PN1

JUSTICE ROSS: Can I have the appearances for the record, please.

PN2

MR G MILLER: Miller, M-i-l-l-e-r, first initial G, appearing for the Australian Manufacturing Workers Union, appearing with ‑ ‑ ‑

PN3

MR B FERGUSON: Ferguson, initial B, for the Australian Industry Group.

PN4

JUSTICE ROSS: I'm not trying to get further away from you (indistinct). The purpose of the conference is to seek to resolve the outstanding issues in relation to the model checking. I issued a statement on - the Full Bench issued a statement on 21 June. Attached to that was a revised summary of submissions and a marked-up version of the plain language schedule.

PN5

I think the first thing is to just confirm that the documents summarising the submissions I think notes there are still nine items in dispute and the balance are agreed. Are there any issues about their character - before we get to whether or not they're pressed, are there any issues about the characterisation of any of the submissions in the summary?

PN6

MR FERGUSON: No, your Honour.

PN7

JUSTICE ROSS: No? All right. Let's go to the items in dispute.

PN8

MR FERGUSON: Not pressed, item 1.

PN9

JUSTICE ROSS: Item 1 not pressed. All right. Item 2?

PN10

MR FERGUSON: Item 2 is pressed.

PN11

JUSTICE ROSS: Just explain ‑ ‑ ‑

PN12

MR FERGUSON: In relation to this issue, first I've had the benefit of going through our submissions, but on this particular one I wanted to seek some further instructions to get some broader clarity, and I couldn't this morning.

PN13

JUSTICE ROSS: All right. But what do you think ‑ ‑ ‑

PN14

MR FERGUSON: As I understand, the issue is that this definition of "out of school" interacts with the way the wage rates are determined or applied, and we perceive there to be a difference in the substantive definition. As I apprehend it, there's a period of time which we say should be excluded by the definition as it currently is that is no longer excluded. I think that's the period of time during which they're actually at school in the completed year.

PN15

JUSTICE ROSS: The drafter's comment is that the redrafted clause - he says "clearly", but he's making the point that the intention is to exclude any period during a year after you've finished your year's schooling.

PN16

MR FERGUSON: The contention is that ‑ ‑ ‑

PN17

JUSTICE ROSS: ‑ ‑ ‑ that's not the effect.

PN18

MR FERGUSON: That's right.

PN19

JUSTICE ROSS: So there's no difference as to what's intended to happen, it's just you think the intention is not captured by the redrafted provision.

PN20

MR FERGUSON: Yes, although I may not be sure of the draft intention. As I understand it, I think the view from Ai Group is that the period of schooling during the final year is intended to be excluded. I'm not sure if that is the drafter's intention.

PN21

JUSTICE ROSS: Can you just repeat that, Mr Ferguson.

PN22

MR FERGUSON: I think the period - and this is ‑ ‑ ‑

PN23

JUSTICE ROSS: During the year.

PN24

MR FERGUSON: During the final year - and this is where I was trying to get some further clarity this morning but was unable to - is intended to be excluded, not just the period after.

PN25

JUSTICE ROSS: It says - okay.

PN26

MR FERGUSON: I confess to not being as familiar with the operation of this schedule in practical terms, and that's why I thought I might check that.

PN27

JUSTICE ROSS: All right. Is there anything you want to say about it?

PN28

MR MILLER: We support the plain language draft. We agree that the intention is correct, but we don't agree that the current wording has the effect that AiG claim.

PN29

JUSTICE ROSS: Perhaps we could deal with it on this basis, Ai Group would have until 4 pm next Friday to confirm where you're at.

PN30

MR FERGUSON: That's what I was going to suggest.

PN31

JUSTICE ROSS: You can send it in. I will assume your position will remain the same, you support the draft. If anything arises, you don't feel the need to put in a submission in reply just for the hell of saying, "I don't agree with what they've said", we will assume you don't agree unless you change your position.

PN32

MR MILLER: Thank you.

PN33

JUSTICE ROSS: If you do that, contact my chambers on the Monday, let them know, and we will work out a timetable. But let's not complicate it too much. But as I understand it there's no dispute as to the intention, it's just that at least at the moment your concern is that the draft doesn't properly capture the intention, and you say it does. With each of these ‑ ‑ ‑

PN34

MR FERGUSON: We haven't set a lot, either, in our submission, so we might be able to add a little bit of clarity.

PN35

JUSTICE ROSS: Sure. Okay. I think that's a general thing about the submissions. We will decide the issue on the basis of the material that's before us and we will see how we go. Number 3, coverage.

PN36

MR FERGUSON: This is a - it's only a wording issue, like all of them - under the redraft the schedule is said to apply to employees. Now, obviously the schedule itself creates obligations both on employers and employees, so we would seek to insert a minor wording change to say that the schedule replies in respect of an employee, which I think is closer to the old wording, just so that there's no suggestion that it only applies to the employees.

PN37

JUSTICE ROSS: There's no suggestion of that anyway because it goes on to say, doesn't it - you want to add the words ‑ ‑ ‑

PN38

MR FERGUSON: "In respect of."

PN39

JUSTICE ROSS: No, but leave that aside, what about those - is that your submission, rather than ‑ ‑ ‑

PN40

MR FERGUSON: Yes.

PN41

JUSTICE ROSS: I'm not sure you would get that from "in respect of". That doesn't necessarily tell you anything further than "applies to", frankly. I'm not sure that ‑ ‑ ‑

PN42

MR FERGUSON: I don't think it goes further in terms of saying who it - I don't think it goes so far as to say applies to employees and employers. I think it simply says - it goes to what it relates to, if you will. I understand it's not necessarily as clear as it could be, but we thought that "applies to employees" is particularly deficient. We hadn't wanted to obviously take an axe to it and start ‑ ‑ ‑

PN43

JUSTICE ROSS: The awards generally don't say - you know, it sets out what wage rate an employee gets, et cetera; it doesn't say the employer - doesn't say expressly that the employer has to pay each time ‑ ‑ ‑

PN44

MR FERGUSON: No, but it talks about who it covers, and admittedly this (indistinct) coverage clause type of coverage ‑ ‑ ‑

PN45

JUSTICE ROSS: But bear in mind, I mean, it's an incorporated schedule to the award, and the award covers, you know ‑ ‑ ‑

PN46

MR FERGUSON: It's not the biggest issue. Obviously the wording "applies in respect of" was in the award before. I take it it's not saying specifically who it places obligations on.

PN47

JUSTICE ROSS: My point is just that whether it's "to" or "in respect of", it doesn't go to your point that the schedule creates entitlements for employees and obligations on employers in relation to those employees. Well, that's right, but how does that ‑ ‑ ‑

PN48

MR FERGUSON: I suppose on one view if you read it "employee to" it's just a different way of saying - I agree it's not saying ‑ ‑ ‑

PN49

JUSTICE ROSS: A different way of saying ‑ ‑ ‑

PN50

MR FERGUSON: No, I'm sorry, I'm trying to - I think, you know - I take your point that "applies in respect of" really doesn't address the issue we're raising anyway. In both cases it's just signalling out what this schedule deals with, if you will.

PN51

JUSTICE ROSS: All right.

PN52

MR FERGUSON: Happy to leave the bench to ‑ ‑ ‑

PN53

JUSTICE ROSS: Is there anything you want to say about it?

PN54

MR MILLER: Only that we support the wording of the plain language draft and we don't believe Ai Group has outlined a convincing argument to the previous wording. Ultimately, as you pointed out, the purpose of the award is to provide a safety net for employees, and that, of itself, indicates that employees are bound as well. So I don't think that anything is achieved by the proposed amendment.

PN55

JUSTICE ROSS: All right. Item 4. This is an MBA proposal.

PN56

MR FERGUSON: We haven't put any submissions on this.

PN57

JUSTICE ROSS: Do you have any view about it?

PN58

MR FERGUSON: No, not at the moment.

PN59

JUSTICE ROSS: All right. This would be the moment.

PN60

MR FERGUSON: Yes, I appreciate. I was going to quickly look while ‑ ‑ ‑

PN61

MR MILLER: We oppose the proposed deletion that the MBA proposed. The expression is clearly not a reference to the competency of the trainee, it relates to the post-school experience of the trainee. And further, it gives context to the table, so we agree with the current drafting of the plain language redraft.

PN62

JUSTICE ROSS: Okay. We will determine that on the basis of the written material. Item 5.

PN63

MR FERGUSON: Item 5 is to - we just want the deletion of the word "being paid annual leave", instead of - so it would just say "instead of paid annual leave". I think the draftsman has not recognised paid annual leave as a composite term. I think it's intended to be utilised.

PN64

JUSTICE ROSS: I see.

PN65

MR FERGUSON: So they're using the word "paid" as though it's a verb, when if you take out the word "being" it just reflects it's a list of entitlements, but "paid annual leave" is the first of those entitlements.

PN66

JUSTICE ROSS: Yes.

PN67

MR MILLER: Well ‑ ‑ ‑

PN68

JUSTICE ROSS: That's not a bad point. It's not suggested that there's any substantive change in what's being proposed, it's rather that they may agree to an additional loading. It's akin to a casual sort of provision, at least in relation to you're not entitled to paid annual leave. And paid annual leave is a term of art because you can have unpaid leave, you can - you know.

PN69

So I think that's the intent, as I understand it. It's not seeking to change anything else. It's not seeking to say that if you don't get the 25 per cent you don't get paid annual leave. In fact, the assumption is that you would get paid annual leave if you don't agree to the 25 per cent loading. So I'm not sure - I mean, I see your point in response and I'm not sure how that arises, that's all.

PN70

MR MILLER: I guess our position is that if the intention is to exclude those trainees who have taken the 25 per cent rather than the annual leave, then they should still be able to access unpaid leave in accordance with the entitlement.

PN71

JUSTICE ROSS: Yes.

PN72

MR MILLER: And I guess our position is that the word "being" is important there to clarify that they're able to access the unpaid leave.

PN73

MR FERGUSON: I think we had speculated on all sorts of effects of the redrafting, which I'm not sure is in effect (indistinct) it's just at our core we're concerned that it doesn't recognise what the phrase "paid annual leave" means. I don't think we're changing any entitlements by the redrafting approach that we've suggested.

PN74

JUSTICE ROSS: Bear with me for a moment.

PN75

MR FERGUSON: If you go to the clause you can see if you just take ‑ ‑ ‑

PN76

JUSTICE ROSS: Yes.

PN77

MR FERGUSON: ‑ ‑ ‑ it really doesn't change anything. Carry it on, I'm not sure ‑ ‑ ‑

PN78

JUSTICE ROSS: All right. I'm not sure much more can be said on that.

PN79

MR FERGUSON: No, I don't think - that's right.

PN80

JUSTICE ROSS: I'm not particularly excited either way, but ‑ ‑ ‑

PN81

MR FERGUSON: Yes.

PN82

JUSTICE ROSS: Because I think it just goes for a preference of expression. It does look slightly odd, but you would have to read "being" before each of the paid leave entitlements. So instead of "being paid" - annual leave being paid, personal carers leave being paid, compassionate leave being paid, absence on a public holiday, et cetera.

PN83

MR FERGUSON: I really don't want to deepen this, but you get paid payments and you get the leave, and the way it's phrased in the current award just talks it about separate entitlements that you just don't get, rather than the actual payment itself.

PN84

JUSTICE ROSS: Yes, easy one.

PN85

MR FERGUSON: I know I really can over think.

PN86

JUSTICE ROSS: Yes, I think - yes, all right. In any event, we will make our decision based on what you've each put in. A5.2, this is number 6. It says ‑ ‑ ‑

PN87

MR FERGUSON: This is an issue that gets everyone very concerned because it's a Federal Court proceedings that considered these provisions. I think it was the Excelior decision, and my friend had visited it just before the conference, and they will correct me if I'm wrong. In that case they looked at the wording that referenced wages in the current provision, and if memory serves the decision in part turned on the interpretation of the word "wages" as it was used in that context, and it gave it a rather narrow interpretation that excluded certain allowances.

PN88

I think our concern is (1) that where a clause that has been the subject of significant debate, both in the context of that proceeding and also the Apprentices Test Case ‑ ‑ ‑

PN89

JUSTICE ROSS: What does the current provision say?

PN90

MR FERGUSON: It talks about "and payment of wages".

PN91

JUSTICE ROSS: So you're seeking to ‑ ‑ ‑

PN92

MR FERGUSON: Put that back in because our concern is "loss of pay" might be broader than "wages" as it's utilised. There was a lot of consideration of the term "wages" in that decision.

PN93

JUSTICE ROSS: Does the decision touch on trainee entitlements.

PN94

MR FERGUSON: Yes, trainee. It was all about ‑ ‑ ‑

PN95

JUSTICE ROSS: What is it?

PN96

MR FERGUSON: It was the Excelior decision. I'm sorry, I don't have the full reference, but my friends might.

PN97

MR MILLER: I don't.

PN98

MR FERGUSON: I can send it to you after these proceedings, your Honour.

PN99

JUSTICE ROSS: Yes, all right. Just drop it in to the ‑ ‑ ‑

PN100

MR FERGUSON: Yes, can do.

PN101

JUSTICE ROSS: What's your view?

PN102

MR MILLER: We support the plain language redraft. We agree with the intent of the current clause. We don't think that the proposed redraft changes the interpretation of that clause, particularly in light of the decision.

PN103

MR FERGUSON: I just make the point we're not trying to get ahead. We are suggesting the old wording, and we appreciate that we can't just revert for the sake of it. It was intended to make it clearer if we can, but we're not trying to achieve anything. The risk is that this wording might broaden it and change entitlements.

PN104

JUSTICE ROSS: We will have a look at the Excelior decision. Your position is it has been interpreted and you think that - you want to retain the current wording because you think that there is a significant risk that the proposed change in wording broadens the entitlement.

PN105

MR FERGUSON: That's right.

PN106

JUSTICE ROSS: Do I take that you accept you're not seeking to broaden the entitlement.

PN107

MR FERGUSON: That's absolutely correct.

PN108

JUSTICE ROSS: But you just think that it doesn't ‑ ‑ ‑

PN109

MR FERGUSON: It doesn't ‑ ‑ ‑

PN110

JUSTICE ROSS: It doesn't have that affect.

PN111

MR MILLER: And further to that, the individual entitlements depend on the context of each individual award, so.

PN112

JUSTICE ROSS: Yes. What "appropriate wages" might mean.

PN113

MR FERGUSON: And that's the difficulty, if you start to say "without loss of pay" you might change that, and disturb - "without loss of pay" is a broader concept. And this is a very contentious issue. As I said, it was the subject of not only Federal Court proceedings, but in the Apprentices Case it was the subject of significant focus and claims by both parties, if memory serves.

PN114

JUSTICE ROSS: Might shoot that as well, and copy it, and if anything arises, you can let us know.

PN115

MR FERGUSON: Yes. Apart from anything else, we just don't want extra disputation on this.

PN116

JUSTICE ROSS: No. Let's see how we go. Anything further on 6? Let's go to 7. Both of you oppose it.

PN117

MR FERGUSON: That's right.

PN118

MR MILLER: Yes, that's correct.

PN119

JUSTICE ROSS: On what basis do you oppose it?

PN120

MR MILLER: Our reading of the MTA's proposed change would be that their preferred wording to refer to full‑time employees would have the effect of excluding part-time trainees. And considering the current clause only excludes school-based trainees, the MTA's proposal would significantly broaden the scope of the exclusion.

PN121

JUSTICE ROSS: Yes.

PN122

MR FERGUSON: I can't take it further than our submissions, which was essentially that it has been the subject of some Federal Court consideration.

PN123

JUSTICE ROSS: Is that the Excelior ‑ ‑ ‑

PN124

MR FERGUSON: Yes. I'm not sure exactly how it dealt with that point. I can have a look and send you a note.

PN125

JUSTICE ROSS: I think the short point is the intention of this exercise is not to affect the substantive terms or entitlements and obligations, and your point is that it would. Do you dispute that, that it ‑ ‑ ‑

PN126

MR FERGUSON: No.

PN127

JUSTICE ROSS: Both of you say it would affect a change to the current entitlements. And as we've made clear through - and that's the case - a party is entitled to pursue it, but they would need to pursue it as a significant amendment, not really as part of this case. Okay. Item 8, a note:

PN128

The time to be included for the purpose of calculating the wages of part-time is determined by how you re-number them.

PN129

Is that a consequent change on their earlier one, or is that a different point?

PN130

MR FERGUSON: I apologise, I can't - I was going to get them to speak to it if they could today.

PN131

JUSTICE ROSS: Do you have a view about that?

PN132

MR MILLER: No.

PN133

JUSTICE ROSS: Let's just see ‑ ‑ ‑

PN134

MR MILLER: ‑ ‑ ‑ submissions.

PN135

JUSTICE ROSS: I'm not sure the submissions are going to help me much.

PN136

MR FERGUSON: It doesn't. Well, it might.

PN137

JUSTICE ROSS: Paragraph 2.24 might - no. They're really just saying that's what they're proposing. So they don't even have a rationale, which they do under the others. I wonder whether it's - it's having regard to the above, it is proposed. So I think it hinges on their earlier - the one we've just dealt with; that is, to amend the wording in 5.3, because they say in their submission:

PN138

Having regard to the above, it is proposed that a note after be replaced by a new clause -

PN139

et cetera. So the note after 5.3:

PN140

Time be included for the purpose of calculating the wages of part-time trainees is wholly off the job is determined by clause -

PN141

et cetera - and not by this clause.

PN142

MR FERGUSON: Yes. This will be highly contentious, both this and the previous provision. I think it's a different decision than the Excelior one, but Excelior might have touched on this too. I think if it was to be pressed we would want the chance to be heard further. I just - it's difficult if they're not here.

PN143

JUSTICE ROSS: Yes. You can contact them. If you can let us know whether it's pressed or not. If it's pressed, we will decide it on the papers. But there's no argument advanced in support of it, so. And if it's opposed by both of you on the basis that it would change the existing substantive effect of the schedule, and it does seem to hinge on the earlier point.

PN144

MR FERGUSON: Yes, and I'm sorry, now that I've revisited that one, I understand it is quite significant.

PN145

JUSTICE ROSS: Yes. That may also be in the category that I'm not suggesting that they're not able to pursue it, it's simply that if they want to, then they will need to do it separately from ‑ ‑ ‑

PN146

MR FERGUSON: Yes. I don't want to query it with them without the benefit of a discussion.

PN147

JUSTICE ROSS: Yes. All right. Just bear with me for a moment. Is there anything you want to say about that for now?

PN148

MR MILLER: We don't have a position on this at this stage.

PN149

JUSTICE ROSS: Number 9, which is the last one, which is about 5.4.

PN150

MR FERGUSON: Again this is one of those difficult clauses that was the subject of significant consideration in the Apprentices Test Case, if memory serves, about the interaction between the schedule and the other awards. We've obviously got some concern about the phrasing and whether in some way the re-wording has altered entitlements. I think we, in part, don't want a clause that has been the subject of considerable debate to be reworded ‑ ‑ ‑

PN151

JUSTICE ROSS: But how does it change the effect? It just seems to me to be a simpler exposition of ‑ ‑ ‑

PN152

MR FERGUSON: Currently ‑ ‑ ‑

PN153

JUSTICE ROSS: It actually makes ‑ ‑ ‑

PN154

MR FERGUSON: ‑ ‑ ‑ we may be jumping at shadows a little bit.

PN155

JUSTICE ROSS: It actually makes it a bit easier because I think � look, speaking for myself I think the problem with � this is a general observation, the problem with things that say "subject to this schedule" is you then go looking for something in the schedule, and it doesn't particularise, you know ‑ ‑ ‑

PN156

MR FERGUSON: Yes.

PN157

JUSTICE ROSS: In any event, 2.4 that directs your attention.

PN158

MR FERGUSON: It has the same effect basically.

PN159

JUSTICE ROSS: I suppose it doesn't advance it. Yes. Yes.

PN160

MR FERGUSON: Look, to my mind, when I was getting (indistinct) this morning and I hadn't gone into it ‑ ‑ ‑

PN161

JUSTICE ROSS: Yes.

PN162

MR FERGUSON: ‑ ‑ ‑ stepping through all of it, but it focuses on terms and conditions specifically and whether that's narrower than all of the provisions of the award.

PN163

JUSTICE ROSS: Yes.

PN164

MR FERGUSON: Which we could get into a discussion about.

PN165

JUSTICE ROSS: It does say "all other terms and conditions".

PN166

MR FERGUSON: Terms and conditions as opposed to whether that would be in relation to matters generally but ‑ ‑ ‑

PN167

JUSTICE ROSS: It's either a term ‑ ‑ ‑

PN168

MR FERGUSON: I didn't want to ‑ ‑ ‑

PN169

JUSTICE ROSS: Yes, yes. No.

PN170

MR FERGUSON: Then I just worried about unless specifically varied by this schedule whether there's any difference in that and the wording "expressly provided by this schedule" in the sense that the schedule is probably not going to say in the way that this removes this clause or this clause, et cetera, et cetera.

PN171

JUSTICE ROSS: It doesn't.

PN172

MR FERGUSON: The Bench were satisfied that it didn't change anything. The wording expressly was specific, you know. We've done limited work on whether there's a distinction. It doesn't certainly expressly exclude things, the schedule itself, it's just that the provisions as you read it ‑ ‑ ‑

PN173

JUSTICE ROSS: Yes. I think "expressly" is a probably a better word than "specifically". I'm not sure what specifically means. Expressly means clear on its face, so it's not an implicit variation. It actually says that this is how it works. So, for example, that 25 per cent loading is an express provision that says if you get the 25 per cent loading you are not entitled the paid annual leave, et cetera under the award.

PN174

MR FERGUSON: Yes. Sorry, I may be a speaking a little bit � but it was � that's what I was worrying about whether this schedule probably doesn't expressly say necessarily that all these things have changed. It's just may deal with something differently, and whether that's ‑ ‑ ‑

PN175

JUSTICE ROSS: It still says "specifically varied".

PN176

MR FERGUSON: I know. But taking your point, whether that specifically required is less than expressly. Part of our concern is that it is a clause that has been the catalyst for some disputation between the parties and we wouldn't want it to effect the change. I don't want to make more than it is, but ‑ ‑ ‑

PN177

JUSTICE ROSS: What disputation has been?

PN178

MR FERGUSON: So in the context of the apprentices case a lot of the arguments were around, well, there are other proceedings in this review about whether certain allowances and things are applied to � whether trainees are entitled to certain allowances that are provided in the award or not. For example, there is a matter that I ran quite a long time ago about a particular allowance in the manufacturing award that we say doesn't apply to trainees and we're now trying to amend the award to make it clear that it doesn't, but I think arguments around these sorts of clauses get thrown up in the course of those proceedings.

PN179

JUSTICE ROSS: Yes, but that doesn't deal with this. That's simply the construction of the award, and whether the allowance applies for all purposes or to particular categories is something that has to be clear on the face of the award. Whether we adopt the language of expressly or specifically is not going to make any difference to this.

PN180

MR FERGUSON: No. I think one of the arguments might get advanced and there's some context is that well, regardless of what the substantive clause says the effect of this clause is to make the trainees entitled to it.

PN181

JUSTICE ROSS: No, I don't think this clause has anything like that effect. You're entitlements comes from the view; not from the schedule. The schedule simply says that unless the schedule varies, expressly varies your award entitlements, then your award entitlements are the ones that are going to apply.

PN182

MR FERGUSON: I think I agree with you. I think that's the argument we advanced. I think partly mine was ‑ ‑ ‑

PN183

JUSTICE ROSS: It's a different question about whether the award term, a particular award term applies to a trainee, well, that's a matter that's just going to be sorted out on the basis of award history, merit, those sorts of considerations. I don't think this schedule is intended to, or has ever been intended to do that, because it simply says that all other of this award is to apply to trainees. I see, what you're ‑ ‑ ‑

PN184

MR FERGUSON: Our anxiety is if you're to narrow it in any way that the parties will latch on to that and throw that at us, because this is the clause that people have tried to utilise, we say, yet appropriately to argue that certain things should be payable, and because we're at this point now ‑ ‑ ‑

PN185

JUSTICE ROSS: I see. Yes.

PN186

MR FERGUSON: ‑ ‑ ‑we don't want this wording changed because it's been the subject of consideration, and I think, if memory serves, that the exact point you're making are the kinds of arguments we advanced.

PN187

JUSTICE ROSS: Where has it been subject of consideration in the decision by the Commission or the Court? You see, your concern isn't addressed by your variation, because to the extent you say it's used by those who want to argue that a particular allowance applies to a trainee, well, they can still run that argument. The only difference between the two is it's unless specifically varied by this schedule, and the language that's proposed is "accept as otherwise expressly provided".

PN188

MR FERGUSON: I think that's right. I think my organisation's primary concern was that we perceived it to be ‑ ‑ ‑

PN189

JUSTICE ROSS: That might be right, but I think that debate is best had by award variation applications or seeking to clarify what the award provides.

PN190

MR FERGUSON: No, no, sorry, that's right. We've done that.

PN191

JUSTICE ROSS: Yes, yes.

PN192

MR FERGUSON: We're doing that. But I think in the context that we're drafting what we actually raised in our submissions was a perception and the Bench might be against us on this, is that the wording has changed.

PN193

JUSTICE ROSS: Yes. No, no, it's changed.

PN194

MR FERGUSON: The terms and conditions.

PN195

JUSTICE ROSS: How is it changed on terms and conditions? The award applies to a trainee in the same way as it applies to an employee who is not a trainee except as otherwise provided, whereas you say all other terms and conditions of this award apply to a trainee. What's the difference between those two?

PN196

MR FERGUSON: I won't take it further. I think there's one that's a concern. Whether the reference to terms and conditions did something, or whether there was any other obligations in the award. But I ‑ ‑ ‑

PN197

JUSTICE ROSS: "All other terms and conditions of this award".

PN198

MR FERGUSON: Yes.

PN199

JUSTICE ROSS: It's fairly expansive.

PN200

MR FERGUSON: Yes. Then the only other issue, and I won't take that further, the only other issue is ‑ ‑ ‑

PN201

JUSTICE ROSS: Yes. So the issue ‑ ‑ ‑

PN202

MR FERGUSON: ‑ ‑ ‑"specifically" verse "expressly" I think.

PN203

JUSTICE ROSS: So we're down to the extent of the concern is you preferred to the words "unless specifically varied by this schedule" ‑ ‑ ‑

PN204

MR FERGUSON: Yes.

PN205

JUSTICE ROSS: ‑ ‑ ‑as opposed to "except as otherwise expressly provided by this schedule"?

PN206

MR FERGUSON: Yes.

PN207

JUSTICE ROSS: Yes.

PN208

MR FERGUSON: If there was a decision, you know, they didn't find there to be a difference ‑ ‑ ‑

PN209

JUSTICE ROSS: Yes, then you wouldn't have a problem with that.

PN210

MR FERGUSON: ‑ ‑ ‑that would probably provide some comfort, and I think I was providing a lot of the other context just to indicate why we were particularly focused on this clause as much as anything else.

PN211

JUSTICE ROSS: Yes. All right. I think the other items are agreed; is that right?

PN212

MR FERGUSON: Yes.

PN213

JUSTICE ROSS: Yes. Is there anything else?

PN214

MR NGUYEN: Your Honour, can I just say we don't agree with the AiG's position that the terms of the award don't necessarily apply to trainees. We don't agree with their characterisation or cases but I guess we'll deal with that ‑ ‑ ‑

PN215

JUSTICE ROSS: No. No, I understand that, but that argument is not really pressed. It's not the first part of the provision. I'll leave it to you to battle that out on an award by award, and where there's a specific allowance or something like that. I think it's better to have those debates and for clarity to provide where there's any sort of dispute about whether there's an entitlement or not.

PN216

MR NGUYEN: Yes.

PN217

JUSTICE ROSS: But this language doesn't change that. The only issue in dispute, it's focused on the language of "unless specifically varied by this schedule". That's what they propose whereas the drafter has proposed "except as otherwise expressly provided by this schedule". On the face of it I don't think there's a difference between the two expressions. The question is which one does the Bench prefer, and from your perspective you're content with the draft.

PN218

MR NGUYEN: Expressly is clearer because the relationship is that a lot of awards do have trainee specific conditions which contradicts what's in the schedule and generally we would prefer what's in the award as applying over the schedule, which is more of a minimum standard, and that's � I mean, the connection is in there with subjective clause 8.2.4. That's where that primary interaction occurs.

PN219

MR FERGUSON: That's my worry, is that it's the union's view you'd have to say ‑ ‑ ‑

PN220

MR NGUYEN: That's express ‑ ‑ ‑

PN221

MR FERGUSON: ‑ ‑ ‑that this clause is ousting the operation of the award expressly otherwise the award would apply. Is that what you would say?

PN222

MR NGUYEN: I think that's the purpose of the current wording.

PN223

JUSTICE ROSS: Unless specifically varied. From my perspective, I don't think the language changes it. To the extent you're going to have that debate, you're going to have that debate, but it's not intended to change the effect of the current term which is "unless specifically varied by this schedule". That would be the Commission's view. If it changes the effect of it, well, we wouldn't do it, and you'd have to argue your case.

PN224

MR FERGUSON: And I do understand. The reason I provided the other context was, as has now become clear, that this point is potentially contentious. It's not about the meaning, but just ‑ ‑ ‑

PN225

JUSTICE ROSS: No, but my point, Mr Ferguson, is it's going to be contentious whether we adopt your proposal or the drafter's, because on either one of them Mr Nguyen's point can be argued, and when specifically varied rather suggests this clause varies the term of clause X in the award. It's at least open to that argument, so I'm not sure ‑ ‑ ‑

PN226

MR NGUYEN: Which way is better.

PN227

JUSTICE ROSS: Yes. I'm not sure the problem is obviated, or the issue is obviated by your proposal. That's the only point I'm making. I understand what you're saying.

PN228

MR NGUYEN: You understand then, yes.

PN229

JUSTICE ROSS: So I think where we're back to is item 1 is not pressed. As to the other items, I think in relation to the item 6 you were going to provide the relevant Federal Court decision.

PN230

MR FERGUSON: Yes.

PN231

JUSTICE ROSS: Was it the coverage one, item 3, that you were going to provide a further ‑ ‑ ‑

PN232

MR FERGUSON: No, it was the ‑ ‑ ‑

PN233

JUSTICE ROSS: Item 2.

PN234

MR FERGUSON: Item 2. Just if there was something further by Friday.

PN235

JUSTICE ROSS: Yes, by 4 pm Friday of next week?

PN236

MR FERGUSON: Yes.

PN237

JUSTICE ROSS: The AMWU is to advise if they wish to say anything about what the Ai Group puts in, and for that matter any other party. But I'll make sure that the transcript of the conference is posted to the website, and rather than issue separate directions, and there will be liberty to apply in any event, but we would propose to deal with the outstanding matters on the basis of the written material and any further hearing in respect of the issues. Anything further? No?

PN238

MR NGUYEN: Can I just check?

PN239

JUSTICE ROSS: Yes, Mr Nguyen?

PN240

MR NGUYEN: AiG is going to have till 4 pm Friday and then we'll have a period of time ‑ ‑ ‑

PN241

JUSTICE ROSS: If you can let my Chambers know by 4 pm the following Monday whether you want to say anything. So let's just wait and see what they put in rather than us issuing further directions, let's just see. May be further delay in the resolution of the issue, that's all.

PN242

MR FERGUSON: It may not be much.

PN243

JUSTICE ROSS: Yes. If your position changes on further review of it just indicate that, "item not pressed", or something of that nature and that can resolve that issue. Thanks very much for your attendance. I will adjourn.

ADJOURNED INDEFINITELY�� [9.43 AM]