AUDIO COMMENCES�� [1.08 PM]

PN1

JUSTICE ROSS: - - - in this particular provision. The second thing that seems to be generally agreed in the event that that option was selected is that we should add a new X.3(j), any other relevant matter, and that's to ensure consistency with section 63(3)(j). Am I right about that, that there's no real contest that in the event that option 1 is adopted, I'm picking this up particularly from Ai Groups submission in reply and the comments of the other parties. Does anyone have a different view about those two issues? No. Right.

PN2

SPEAKER: No.

PN3

JUSTICE ROSS: There are some other matters that have come up. It's a pity the NRA are not here and that the SDA's not here, but let me canvass a point made in the NRA's submission. This is about the proposed model term X.1 and the inclusion of the words, "other than a casual". That is it says that:

PN4

Subject to section 61 of the Act in this clause, an employer may require an employee other than a casual to work reasonable overtime hours at overtime rates.

PN5

The NRA makes the point that the Retail Award, Hair and Beauty and the Fast Food Award, the reasonable overtime provisions in those awards which currently include the expression, "other than a casual", are to be varied arising out of the part-time casual decision. The variation will delete the words, "other than a casual". That's because the issue of casuals and working overtime's been resolved as I understand it in those awards.

PN6

How I was proposing to deal with that issue is this, that if an award presently contains the words, "other than a casual" then we'd keep them. That is the model term X.1 would be adopted. In relation to Retail, Hair and Beauty and Fast Food, we would delete the words, "other than a casual" because they have been removed by another decision.

PN7

In some ways this is an issue that when we come to publish draft variation determinations, if there's an award specific matter like this and some of the matters that the HIA has raised, then it can be dealt with in response to the draft variation determinations. I wanted to raise that as a general issue. Does anyone want to comment on that? As I say the NRA and SDA are not here but does anyone else have a view about that?

PN8

MS BHATT: Your Honour, it's Ms Bhatt here for Ai Group.

PN9

JUSTICE ROSS: Yes.

PN10

MS BHATT: If I may, we have turned our mind to this issue briefly but I am not in a position to be able to put a position and I understand I'm not being asked to. But as your Honour has indicated, this probably is an issue that may need to be given some award by award consideration and we have anticipated that once the Commission publishes draft determinations as has been contemplated by its recent decision, that might be an appropriate opportunity to say something about this. I think the position in relation, however, to the General Retail Industry Award, the Fast Food Industry Award and the Hair and Beauty Industry Award from Ai Group's perspective will be that we understand that the award has already been varied as outlined in the NRA's submission and on that basis we wouldn't oppose any amendment to the draft determination such that they don't include an exclusion of casual employees from X.1.

PN11

JUSTICE ROSS: Yes. Probably what we'll do, Ms Bhatt, is in the draft variation determinations for those three awards, we will delete the words, "other than a casual" and then if any issue arises there will of course be an opportunity to comment. So I'm not holding you to what you've just put. I'm just saying it would seem to make sense in light of the NRA's submission to at least have that as a starting position and we can invite comment on the draft determination.

PN12

MS BHATT: Yes, your Honour.

PN13

MR RYAN: Your Honour.

PN14

JUSTICE ROSS: Yes.

PN15

MR RYAN: Sorry, Ryan for the Australian Hotels Association. A similar issue would arise under the Hospitality Industry Award. That award currently contains overtime provisions applicable to casual employees - - -

PN16

JUSTICE ROSS: Thank you for that.

PN17

MR RYAN: - - - and the reasonable overtime provision presently in the Hospitality Award does not excise casuals. If we could hold our final view to be responding to the draft determinations.

PN18

JUSTICE ROSS: No, no, no, that's absolutely fine. Thank you for drawing that to my attention. What we'll probably do in the draft is adopt the same approach as we have in retail et cetera, but you will of course have an opportunity to give a considered response to that.

PN19

MR RYAN: Thank you.

PN20

JUSTICE ROSS: I'll check all the other awards to see what their current position is and we'll just reflect what is currently in those particular awards and then that will form the basis of the draft variation determination, and then we'll see where we go from there. Anyone else on that issue?

PN21

Can I go to an issue raised by the HIA. They note there's a hyperlink, which is something I didn't notice but there's a hyperlink to the word "penalty" that takes you to section 536(d). Yes, we will remove the hyperlink. The second - there were three points the HIA particularly raises that I want to bring to the attention of others. The second is the deletion of the reference to penalty rates and you would have seen that - this is at paragraph 2.4.1 of their submissions. You'll see that Ai Group opposes that deletion for the reasons they set out. I just wanted to clarify whether you're still pursuing that question.

PN22

MS REGAN: No, your Honour, we suggested the removal of the words "penalty rates", mainly in the context of the Building Award as it's commonly understood, overtime is generally used as the main language in that award but we do not oppose that inclusion.

PN23

JUSTICE ROSS: Right. Well, we'll take it that that point's been withdrawn so we don't need to deal with that. The final point you raise is a cross-referencing point. This is at clause 2.2.1 of your submission, and if I can just take you to that. Now there you say that:

PN24

The current reasonable overtime clauses in the Timber and Joinery Award make a reference back to the relevant clause in which overtime rates are applicable".

PN25

So I looked at the Timber Industry Award and I'm not sure where the cross-reference is. In some ways this is a matter that can be dealt with in response to the draft variation determinations but it seemed to me that if it was valuable to have a cross-reference then we may as well have a discussion about it now. Can you just explain to me what you meant by that?

PN26

MS REGAN: Yes, your Honour. In the Timber Industry Award under clause 30.11(a), it refers to clause 30.11(b):

PN27

An employer may require to work reasonable overtime at overtime rates otherwise provided.

PN28

JUSTICE ROSS: Yes, but in the current model term, it says, "subject to section 62 of the Act and this clause". So it sort of achieves the same purpose.

PN29

MS REGAN: Yes, sorry, take your point on that one, yes.

PN30

JUSTICE ROSS: I'd originally thought when you were referring to cross-referencing you meant a cross-reference to another overtime clause, but I understand it now.

PN31

MS REGAN: Yes, apologies, yes.

PN32

JUSTICE ROSS: So that's okay, that's dealt with?

PN33

MS REGAN: Yes, it is. Thank you, your Honour.

PN34

JUSTICE ROSS: No, that's all right. Thank you. Well, those were the only general matters that I wanted to raise. As I've said, we'll publish the summary of the submissions, if those summaries are inaccurate in any way we'd like to hear from you and if there's anything in particular you wanted to add, don't feel compelled to because the issues are fairly clear and they're a fairly narrow area of debate, now would be the time to do that. Perhaps we can just start in Brisbane and then work our way along the table in Sydney and then go to Canberra. Was there anything either of you wish to add to your written material?

PN35

MS BHATT: No, nothing that ABI wishes to add, your Honour.

PN36

JUSTICE ROSS: HIA?

PN37

MS REGAN: Sorry, your Honour - - -

PN38

JUSTICE ROSS: Sure.

PN39

MS REGAN: - - - I probably should have mentioned it earlier. In specific reference to the section 63 reference in option 1(i) - - -

PN40

JUSTICE ROSS: Is that 63 or - - -

PN41

MS REGAN: Yes, the reference is section 63(i) of option 1.

PN42

JUSTICE ROSS: Yes, this is the averaging issue.

PN43

MS REGAN: Yes. Apologies for not mentioning it earlier. We understand Ai Group's position in that regard. The main reason we raised that, is in the context of a modern award, it's our view that that specific reference in its own sense doesn't make sense in terms of the readability and could potentially lead to interpretational issues.

PN44

JUSTICE ROSS: So, that might be a tailoring question on an award by award basis. Rather than try to get into a debate here about which of these 16 or so awards include averaging terms, but your point would be met, I take it, if it said "whether the additional hours are in accordance with the averaging terms included under section 63 at clause X, Y and Z of this award". Is that what you mean.

PN45

MS REGAN: Yes, your Honour.

PN46

JUSTICE ROSS: No, I follow. Well, that's something - we may not put it in the draft variation determinations, but I think it's - can I make this suggestion, that you have a discussion with the interested unions in the awards that you have an interest in and you may be able to reach an agreement about how that should be tailored. But, I take your point. It would be better if it was more specific. It's just at this point in the exercise, it's probably a bit premature to start to canvass that, but it is something that would be open to you when you're commenting on the draft variation determinations.

PN47

MS REGAN: Thank you, your Honour.

PN48

JUSTICE ROSS: Let's go to Sydney. Just start at one end of the table and work our way down.

PN49

MS DABARERA: Your Honour, we don't have anything to add to our submission, and this is for United Voice.

PN50

JUSTICE ROSS: Thank you, Ms Dabarera, thank you.

PN51

MS AMBIHAIPAHAR: Likewise, from the CEPU.

PN52

JUSTICE ROSS: Thank you.

PN53

MR NGUYEN: Your Honour, it's Mr Nguyen from the AMWU. We'd just like to note that we support the HIA's proposal to delete the reference to section 63 in paragraph (i). That wouldn't involve deleting reference to the averaging terms, just the deletion to section 63.

PN54

JUSTICE ROSS: Sure.

PN55

MR NGUYEN: The changes do make the clause easier to understand for users. Section 63 is really only relevant to the Commission when it's drafting terms for awards. It's not necessarily relevant to users and we agree with HIA's submissions in relation to readability and user-friendliness, particularly for employees and small business.

PN56

JUSTICE ROSS: I follow the argument and it's something that I'd suggest you have the discussion once the draft variation determination comes out and work through what the appropriate tailoring could be at that point.

PN57

MR NGUYEN: Yes, thank you, your Honour. That's all I'd like to add.

PN58

JUSTICE ROSS: Thank you, Mr Nguyen.

PN59

MS BHATT: Your Honour, it's Ms Bhatt here. I don't wish to labour on this point about the cross-reference to section 63 of the Act as it appears in subclause (i). I should just note that to the extent that the Commission is minded to deal with that as a general issue across all of these awards, our submission - - -

PN60

JUSTICE ROSS: I think - no, no, I'm not suggesting we would do that. We would stick with - if we go for that option, if we go for option one and we have (i), then we would delete the reference to 64 and we would leave in 63 for the moment and then if parties in particular awards wanted to suggest some tailoring, we deal with that at that time. I'm not advancing a general proposition at this stage. We just need to see whether it's an issue and in which awards.

PN61

MS BHATT: I appreciate that clarification, your Honour. I was concerned that we might have misapprehended the HIA's submission based on what they've put today.

PN62

JUSTICE ROSS: I see.

PN63

MS BHATT: Our reply submissions deal with why the reference to section 63 of itself should not be deleted because of the interaction that that might have with the NES. But I think your Honour might have allayed whatever concerns I might have about that and we are content with the course has proposed.

PN64

JUSTICE ROSS: Thank you, Ms Bhatt. Nobody else in Sydney, the Pharmacy Guild - sorry.

PN65

MR RYAN: Your Honour.

PN66

JUSTICE ROSS: Yes, I'm sorry, AHA. Yes, Mr Ryan.

PN67

MR RYAN: Thank you your Honour. Our preference or our submission is that Option three be adopted. We note that all modern awards in the NES are required to be accessible and available in workplaces for employees and having a reference to the relevant section in the award, will still means the employees are able to have access to that section in the NES.

PN68

Furthermore, having heard the submissions and read the submissions regarding option one, by going with option three, it obviates any tailoring or modification issues that arise from going with option one. Those are the submission of the AHA.

PN69

JUSTICE ROSS: Thank you, Mr Ryan. The Pharmacy Guild?

PN70

MS BLANGFORT: Your Honour, we don't have anything to add, thank you.

PN71

JUSTICE ROSS: If there's nothing further from anyone, we will adjourn and reserve our decision and we'll issue a decision in the next week or so and then publish draft variation determinations to give effect to it. To the extent that gives rise to any need for tailoring, parties will have an opportunity to make submissions about that.

PN72

When you do, I would encourage you to have discussions with other interested parties in the particular award. So, to the extent we can, those can be resolved by consent.

PN73

Nothing further? Thank you very much. We'll adjourn.

ADJOURNED INDEFINITELY�� [1.24 PM]