PN1

JUSTICE ROSS: Could I have the appearances, please. Firstly, in Melbourne.

PN2

MR T CLARKE: Trevor Clarke, for the ACTU.

PN3

MS V WILES: Vivienne Wiles, for the TCFUA.

PN4

MS R LIEBHABER: Rachel Liebhaber, for the Health Services Union.

PN5

MR T EVANS: If it pleases the Commission, on behalf of the Australian Hotels Association, Evans, initial T.

PN6

JUSTICE ROSS: Thank you, Mr Evans. In Sydney?

PN7

MS M ADLER: Adler, initial M, for the Housing Industry Association.

PN8

MR B FERGUSON: Ferguson, initial B, for the Australian Industry Group. I also mention an appearance on behalf of ABI and the New South Wales Business Chamber.

PN9

MR S BULL: Bull, initial S, for United Voice.

PN10

MS W CARR: Carr, initial W, for the Transport Workers Union.

PN11

MR A THOMAS: Thomas, initial A, for the CFMEU Mining and Energy Division.

PN12

MR Z DUNCALFE: Duncalfe, initial Z, for the Australian Workers Union.

PN13

MR S MAXWELL: Maxwell, initial S, for the CFMEU Construction Division.

PN14

MR H ARJONILLA: Mr H Arjonilla, for the AMWU.

PN15

JUSTICE ROSS: Thank you. In Canberra?

PN16

MS R SOSTARKO: Sostarko, initial R, for Master Builders Australia.

PN17

MR R CALVER: If it please the Commission, Calver, initial R, for the National Road Transport Association.

PN18

JUSTICE ROSS: Thank you. Any other appearances? No? My apologies for keeping you. For some reason, I thought it was 9.30, but there you go. The purpose of the mention is to get an update as to where the parties are in relation to their discussions and the exchange of views that were canvassed on the last occasion you were before me. Are you in a position to report on that, Mr Clarke, or shall I go to somebody else?

PN19

MR CLARKE: Yes, I can. We had a rather extended meeting, I think, in Sydney on Monday of last week with some parties from the unions' side, some parties from the employers' side. A number of aspects of the model term were discussed with the object of coming up with some proposals that each of us in the room were happy to take back to our constituents to, you know, consider and come back in relation to. We're in the process of doing that. I imagine the employers are the same.

PN20

There was a desire to have a further discussion to sort of see where that landed in terms of the support or otherwise of what were put up as recommendations effectively for consideration. I think it's important to state that one aspect of the discussions that we do have a little bit of concern about is the – I mean, we're proceeding a little bit on the abstract because we don't have a position yet from the employers in relation to the translation question and that's a really critical thing from our point of view, you know, to talk about the model clause without knowing where people's intentions are about where it's going to go.

PN21

That is, I suppose, best illustrated in relation to the issue of monthly pay. We wouldn't want the fact that we can agree to a model term in the abstract that has monthly pay in it to mean that, you know, there is a desire that monthly pay be rolled into all these awards that don't have monthly pay, for example.

PN22

JUSTICE ROSS: Sure.

PN23

MR CLARKE: So translation really is sort of a critical preliminary issue for us.

PN24

JUSTICE ROSS: Yes. Even if you reach an agreement with the employers on translation, that won't determine the translation question.

PN25

MR CLARKE: Well, nothing that I understand in the award review process – nothing that anybody agrees determines the outcome, but it is regarded as influential hopefully.

PN26

JUSTICE ROSS: Yes, but I think the starting point is – and, look, if you're not able to do it and the translation thing is a barrier, then we'll just go to argument and you can make submissions, and the bench will make a decision; but I would have thought the starting proposition is what is the model term that would go into an award that makes no provision for these issues.

PN27

MR CLARKE: That's the way we're approached it.

PN28

JUSTICE ROSS: If you can do that, then I would expect – without, you know, expressing a concluded view or in any way speaking on behalf of the bench, but if you look at the way we have dealt with the award review generally and you look at the general principles, prima facie the award meets the modern award objective. If it makes some provision dealing with payment of wages and a party wants to depart from that, then the party would have to mount the argument as to why.

PN29

The slight difference here is this: where an existing payment of wages clause is silent about a matter that we form the view is important, accrual or something like that, or time of payment, then you may end up with an amalgam of whatever the model term is and what the existing provision is. In each case where you're looking at translation at an amalgam the award parties will be heard about how that works.

PN30

We're also conscious, as has been apparent in the various hearings and discussions, that there are particular features of some industries that may warrant a different approach. Look, beyond that I'm not sure I can help you much.

PN31

MR CLARKE: No. I mean it's in the context of a mention in any event, but for the record I would state that the material that we provided prior to the last occasion operated on the basis as you have described, that there would be a model term for the awards that are silent on all issues and it then set out in appendices how each award could be tailored, where that award was deficient in relation to one of those issues.

PN32

JUSTICE ROSS: I think the first step for all of us is to get to the model turn point and then we need to get an idea about what's the extent of the tailoring question, how many awards are we talking about? Is that best done by this Bench? Is it best done at the award level? Can we group some of them where they involve common issues? It's really whether the process we currently have of discussion is capable of making any progress on the model term, or whether we should just decide that.

PN33

MR CLARKE: I think it had good prospects in relation to the content of the model term, provided that we can get some indications of what positions will be put about where it should go.

PN34

JUSTICE ROSS: Well, the employer parties have heard what I've had to say about the general approach taken to translation, does anyone take issue with those propositions?

PN35

MR BULL: Stephen Bull, sir, from United Voice. We have - - -

PN36

JUSTICE ROSS: Mr Bull, I was asking the employer organisations.

PN37

MR BULL: Sorry, I'll let that go.

PN38

MR FERGUSON: Yes, your Honour, it's Mr Ferguson. We've certainly focused our attentions on the development of a potential model clause. We don't necessarily have a concluded view on precisely how that should be translated into all of the awards. Of course, that's partly because we don't know what the model clause will look like. I don't think we assume that it will necessarily be a simple case of just dropping elements of the model clause into other awards where they're not regulating that issue currently. There might be some more to it than that, but we really haven't got to that stage of analysing exactly how a model clause should look in each and every award. There might be industry specific considerations, I appreciate there might be some historical considerations too. But really what we've only done at this stage is try to address that question of what would a model clause look like if we were free of the existing features, if you will.

PN39

JUSTICE ROSS: Well, what do you want to do Mr Clarke? You'll either proceed with the discussions or if this is a threshold issue we're not going to determine the threshold issue. So what we'll determine is the model term and then we'll go to translation. So the risk for both parties is, of course, you lose any control over the outcome. You can put your submissions but obviously we'd give weight to a consent arrangement that's reached and if there's no consent arrangement well we'll just determine the question.

PN40

MR CLARKE: No, I understand. I think that I wouldn't be urging you to fix the matter just yet. In any event, we'd need to talk amongst ourselves about the positions that were expressed on the day and today and I think we initially envisaged that we'd be looking at some material from each other and potentially having a further discussion, I think, in about a weeks' time. We'll stick with that but I think we'll know, probably by the end of that day, whether or not we'd like it to be called on and if that's the case we'll shift the discussion to the issues of - to the discussion of programming and hopefully put a consent position on programming to you.

PN41

JUSTICE ROSS: All right. Well, I'll look at listing it for mention the week after your discussions and that will give you enough time, post the direct discussions with the employers, to confer amongst your constituents and then come back and let me know.

PN42

MR FERGUSON: Just in terms of dates, Trevor, I envisage we'll get something across to you later this week. I don't know how long you need to consider that, as a group, before we meet productively, I take it not long.

PN43

JUSTICE ROSS: Just make sure you've got plenty of time. What about 9.30 on Monday, 11 September?

PN44

MR CLARKE: For the mention, your Honour, yes. Yes, absolutely.

PN45

JUSTICE ROSS: As you say, Mr Clarke, you'll either have - at that stage you'll have an indication as to the extent of any agreement about a model term or it will have gone pear shaped, in which case you'll have some programming suggestions.

PN46

MR CLARKE: Yes. And if it's obvious before that point we'll correspond with your Chambers.

PN47

JUSTICE ROSS: Sure. Look, I don't want to have the mention unless it's necessary. So if you get to the point where it's simply about directions, you can submit the propositions and then I'll put them to the Bench. Bear in mind, I want the matter heard and determined this year when you give some thought to the programming.

PN48

MR CLARKE: Yes, of course.

PN49

JUSTICE ROSS: Anything further?

PN50

MR CLARKE: No, thank you, your Honour.

PN51

JUSTICE ROSS: All right.

PN52

MR BULL: One matter, your Honour, it's Stephen Bull from United Voice. This doesn't directly arise out of the conciliation. I attended the meeting last Monday. United Voice has, I suppose, settled the position, which is mainly concerned with monthly payment. With your leave, I was intending to lodge a brief submissions, it's probably one which should have been lodged earlier this year addressed to the model clause.

PN53

JUSTICE ROSS: Well, there's probably no need to do that at this stage. We'll wait and see at the mention and the programming and that'll pick up any further submissions and how the matter might progress. You're free to lodge - you don't need leave to lodge something, you can file it if you wish.

PN54

MR BULL: As a courtesy. I'll file it, maybe as a courtesy, but I was just indicating that we have a particular position about monthly payment. We'll lodge something later in the week.

PN55

JUSTICE ROSS: All right. And which awards does that relate to?

PN56

MR BULL: Well, they relate to the awards that we're interested in, so there's about eight or nine. The Cleaning Services Award, some of the hospitality awards, security and so forth.

PN57

JUSTICE ROSS: Sure.

PN58

MR BULL: This is not something that arises directly out of the conciliation but it's just concerns we have with, I suppose, if you like, the concept of monthly payment as a standard.

PN59

MR FERGUSON: Your Honour, it's Mr Ferguson. I have some concern if parties are going to start filing additional material. There were relatively tight timeframes.

PN60

JUSTICE ROSS: No, no, you don't need to be concerned about any of that. Mr Bull can file what he likes and we'll consider it when we come back to the mention about what's put in response.

PN61

MR FERGUSON: Right.

PN62

JUSTICE ROSS: There's nothing - there's no - - -

PN63

MR FERGUSON: I just didn't want it to start a raft of - - -

PN64

JUSTICE ROSS: I'm sure it will and I don't know what the purpose of filing it now is, in any event, given we're not - we haven't programmed the matter for determination, but if that's what he wants to do.

PN65

MR FERGUSON: Okay.

PN66

MR BULL: I can wait till the next mention.

PN67

JUSTICE ROSS: Sure, whatever you wish. I'll adjourn and we'll list the matter for further mention at 9.30 on Monday, 11 September and as you've indicated, Mr Clarke, in the event that events transpire and it's such that it becomes a programming matter and it's not necessary to bring everyone in then let my chambers know and that's what we'll do. Thanks very much, again my apologies for the delayed start.

ADJOURNED UNTIL MONDAY, 11 SEPTEMBER 2017 [9.47 AM]