PN1

JUSTICE ROSS: I note that there are no appearances in respect of this matter. The purpose of the conference today was to discuss the summary of proposed substantive variations published on 6 January, the revised summary of technical and drafting submissions published on 5 January and the revised exposure draft published on 5 January. Can I turn first to the proposed substantive variations and indicate what I propose to do in respect of those: there are five substantive variations proposed by the Association of Consulting Architects Australia. These are summarised in the document of 6 January.

PN2

I propose that the Commission write to the Association asking the Association to confirm whether or not they intend to pursue the five substantive changes; if they do intend to pursue those changes, to provide an indication of what evidence will be advanced in support of the particular claims and the likely extend and duration of the case to be put. I will seek a response from the Association by 4 pm on Friday, 4 August. If we do not receive a response by that time we will assume that those substantive changes are not being pursued.

PN3

Can I mention specifically one proposed change, which is seeking to insert a new default superannuation fund into the award? In the correspondence I will ask that the Association's attention be drawn to section 156(2)(c), which indicates that in the context of a four-yearly review the Commission must not review or make a determination to vary a default fund term in a modern award. It would appear to follow that there is no jurisdiction in the context of the four-yearly review to grant the application which is sought by the Association. We would also point out that there may be another path open to the Association and that is by making an application under either section 160 or 158 of the Act but that would be a matter for the Association to pursue separately.

PN4

So that should provide some clarity around whether or not the Association intends to pursue those substantive claims. I would also add to that list of substantive claims a matter which is item 4 in the revised summary of submissions technical and drafting issues. This proposal is a proposal by the Association which seeks to alter the clause in respect of time off instead of payment to provide for time off on an hour for an hour basis, rather than on an overtime basis. It appears that may be a substantive change also so the Association will also be asked whether it intends to pursue those matter and similarly, the extent of the case it proposes to be put.

PN5

In respect of the other matters identified in the technical drafting summary, I think most of those appear to have been addressed in the revised exposure draft published on 5 January this year. To the extent that they're not, we will determine those remaining technical and drafting issues on the papers unless any party advises that they wish to have an oral hearing in respect of any of those issues and they should provide that advice by 4 pm this Friday, 28 July.

PN6

There being nothing further in respect of the Architects' Award, I'll adjourn these proceedings. I indicate that we'll correspond with the Association. The transcript of this conference and the correspondence to the Association will be posted on the relevant part of the Commission website. I now adjourn.

SHORT ADJOURNMENT [10.14 AM]

RESUMED [10.30 AM]

PN7

JUSTICE ROSS: Could I have the appearances please?

PN8

MS J McDONALD: May it please the Commission, McDonald, initial J, appearing for AFEI.

PN9

JUSTICE ROSS: Thank you, Ms McDonald. I note there's no appearance by the AMWU or APESMA. The purpose of today is to go through the revised summary of technical and drafting submissions dated 5 January 2017 and the revised exposure draft, published on the same day. Bear with me for one moment. I might just get my associate to check the corridor to see if there are any other parties. No, no other parties present.

PN10

Ms McDonald, can I take you through the revised summary, because in a number of instances, it's not clear what your organisation's position is in respect to some of the propositions put. Some of them, on their face, seem straight forward and to be uncontentious but I want to test that proposition as we go through them.

PN11

Item 1, this is a proposal by the AMWU. It deals with clause 4.2 of the exposure draft where the definition of professional surveyor appears and that definition also appears in the definitions section. On the face of it, it would be not necessary to include them in both places and it seems slightly odd to have the definition of a classification in this. Sometimes you have a definition of an industry, for example, in the coverage clause, but I can't recall one that has this sort of definition. It's already defined later.

PN12

The AMWU says that it believes it's an error to put it here and it should be in the definitions clause. Do you take a different view?

PN13

MS McDONALD: We do not. We agree with the AMWU.

PN14

JUSTICE ROSS: Second point, item 2. The AMWU raises what is said to be a number of errors in the current award clause about the characterisation of the various facilitation agreements. 7.2(a) is that table that just cross refers to particular clause numbers and characterises them as either facilitation by individual agreement or majority agreement. Really the intent here is to ensure that that table is accurate. It's not to seek to change the level at which facilitation takes place. It's simply to summarise what appears elsewhere in the award.

PN15

Do you have any difficulty with their proposal in that regard?

PN16

MS McDONALD: We do not oppose that submission.

PN17

JUSTICE ROSS: Okay. In clause 7.3 facilitation by majority - parties were asked a question about whether the cross-referencing that appears should - or whether the cross-referencing was correct or not. The AMWU indicates that yes, and it should be retained in its current form. Do you have a view about that?

PN18

MS McDONALD: Our view is that the reference to 7.3(b) is unnecessary as there is no requirement in that section and that it would ensure consistency with the Land Surveyors General Award 1998, if that section was not included.

PN19

JUSTICE ROSS: 7.3(b) states -

PN20

Where agreement has been reached for the majority of the employees in a workplace or a section of workplace to implement a facility of provision, that agreement is binding on all employees.

PN21

Is the proposition - but that's not a requirement; it's an affect. Is that the way the argument goes?

PN22

MS McDONALD: Yes, that's right.

PN23

JUSTICE ROSS: I follow that, and that seems to have merit. 7.3(b) appears to be different in character to clauses 7.2(b) and 7.3(c), and that's the essence of your argument, isn't it?

PN24

MS McDONALD: It is, yes.

PN25

JUSTICE ROSS: All right, thank you. The item 3 relates to clause 11.2. The AMWU seek to put a full stop after the word 'loading' in the second sentence. To delete the words 'instead of annual leave, personal carer's leave, bereavement leave and public holidays'. I might say that submission is consistent with the view taken in other awards where there's any dispute about what the loading is in lieu of. Rather than resolve that dispute we've simply taken out what it's said to be in lieu of, to avoid having to go into a full exposition.

PN26

Of course, the loading the covers matters other than paid leave entitlements. On that basis, unless there was a good reason for departing from that practice, their submission would probably be accepted. But what's your view about that?

PN27

MS McDONALD: AFEI had made a written submission on that item in our submission dated 14 December 2016. In those written submissions we did oppose that submission, the reason for our opposition being that we considered the decision relied on by the AMWU for their decision and were of the view that in that particular decision, the Commission did not express an intention to remove the list of award provisions that do not apply to casual employees from the exposure draft.

PN28

At this stage, we maintain the opposition to that item or that submission.

PN29

JUSTICE ROSS: Does it affect any substantive change though? If we go to - I mean the annual leave clause simply provides it's provided for in the NES. In terms of there is no bereavement leave clause in this award, so I'm not sure how 11.2 works in relation to bereavement leave. In terms of public holidays, well there's little in the public holiday clause, it really refers you to the NES as well.

PN30

In terms of penalty rates, it's not clear what a casual employee gets. Consistent with the penalty rate decision, the issue of principle applied in that decision, was they would get their loading on top of the penalty and that doesn't appear to be clear here.

PN31

The point I'm making by going to these provisions, Ms McDonald, is that deleting the words that the AMWU seeks to delete - well, on one view it has logic going for it because the award doesn't provide for bereavement leave. On the other, deleting those words wouldn't change - it wouldn't expand a casual employee's entitlements in any way because those provisions within the award simply refer to the NES, which deals with casual employment and to the extent that they have an entitlements to any leave under those things.

PN32

I don't think your substantive interests are affected. There is an issue of I think - putting bereavement leave might actually create some confusion, given there is no people who'll then look for the entitlement. So on the face of it, unless there is something you want to put to persuade me otherwise, there seems to be a case to remove those words. But is there anything further you want to say about that?

PN33

MS McDONALD: Nothing further to add today - may I seek further instructions?

PN34

JUSTICE ROSS: You can consider your position, certainly.

PN35

MS McDONALD: Yes, please.

PN36

JUSTICE ROSS: We might do that in each - look, I'm anxious to try and resolve this as quickly as possible. Perhaps if we gave you until, well, probably 4 pm next Tuesday, all right?

PN37

MS McDONALD: Thank you.

PN38

JUSTICE ROSS: Let's go to the fourth item; that is to remove the first comma in 12.2. It's after the word, "where." Is that agreed?

PN39

MS McDONALD: That's agreed.

PN40

JUSTICE ROSS: Okay. Item 5 - this is about clause 14. 14.1 provides that the ordinary hours of work must not exceed an average of 38 hours per week and must be worked between the hours of 6 am and 6 pm Monday to Friday inclusive. The period over which the ordinary hours are to be averaged is not specified. APESMA seek to - or the effect of their submission would be to change it or really to delete the words, "an average", so it must not exceed - rather than an average of must not exceed 38 per week and as I understand the AFEI's position it was that, well, they should be averaged over, for example, a four-week period or something of that nature. Is that right - or some other period other than just being fixed on 38 per week?

PN41

MS McDONALD: Our position is that we oppose the submission that it be a time period of a week.

PN42

JUSTICE ROSS: Yes - do you have a view about what time period it should be?

PN43

MS McDONALD: Not at this stage.

PN44

JUSTICE ROSS: I think we would have to provide a time period. Look, perhaps what we might do is not resolve that matter at this point.

PN45

MS McDONALD: Yes.

PN46

JUSTICE ROSS: We'll write to the parties, pointing out that the current language suggests that it's averaged over some periods, set out what the position is of the union, of APESMA; indicate that you're opposed to that and we might attach - it's not an annualised salary clause, it's an averaging clause, so we might attach a list of award provisions that provide for averaging. I think it would not be unusual to average over a four-week cycle and put that to the parties and seek their views about that issue. So move it to the side for the moment but that's a course we'd probably adopt with that.

PN47

Item 6 deals with clause 16: APESMA in their submission - bear with me for a second - I might also indicate, just going back to that averaging position, we'll look at the NAPSAs which we're taking into account in the making of this award and what they provided in relation to averaging. They were including the Professional Surveyors' Private Industry Award New South Wales - there was a Queensland award and a Tasmanian award. We'll get the list of all of them and we'll provide that information to you and see if that assists.

PN48

Look, the short point that APESMA say in relation to clause 16 is that the subclause needs to be understood in the context of comparison with 16.2(a), where they're entitled to a 10-minute break without deduction of pay. In the afternoon without ceasing to work means an ability to enjoy a beverage while remaining in their immediate work environment. Do I take it that's not really a contentious issue and we don't need to do anything about that?

PN49

MS McDONALD: That's correct.

PN50

JUSTICE ROSS: Okay. In relation to clause 20, the proposition here is that the words, "in excess of normal hours of duty", should be read as, "in excess of or outside the spread of ordinary hours", bearing in mind that the ordinary hours of work are defined in 14.1. So it's outside the spread of hours specified in 14. That would normally be 6 am to 6 pm but it can be varied by agreement so when they're varied by agreement it would be whatever that is. During periods when daylight savings is in operation it's different again. But whatever it is that's in operation at that enterprise, if you're working outside that spread then you'll be entitled to the overtime payment, I think is the point that's being made here.

PN51

APESMA supported some clarification in that regard. Do you have any difficulty with that?

PN52

MS McDONALD: We do not oppose APESMA's submission.

PN53

JUSTICE ROSS: Okay. In item 8, this goes to 20.2 and 20.3, the TOIL provision. Just bear with me for a moment. I can't quite pick up where that question - - -

PN54

MS McDONALD: May I assist?

PN55

JUSTICE ROSS: Yes, certainly.

PN56

MS McDONALD: The existing clause referred to at item 8 no longer exists - - -

PN57

JUSTICE ROSS: Because it was replaced by - so that has been resolved?

PN58

MS McDONALD: Correct, that's resolved.

PN59

JUSTICE ROSS: Okay. Item 9 is 20.3, Sundays and public holidays: they're proposing that that be moved or (c) - yes, because it's not strictly - bear with me for a moment. The AMWU says that this clause applies to employees working overtime or on a Sunday or public holiday. So in other words, its scope is broader than the subheading would suggest and it should be under a separate heading: "Returning home when normal means of transport not available", and be as a new clause 20.7

PN60

On the face of it, that seems sensible because it would be apt to confuse because it's not confined to Sundays and public holidays. Do you have any different view?

PN61

MS McDONALD: WE do not. We do not oppose that submission.

PN62

JUSTICE ROSS: All right, we'll make that change. In relation to 24, there is a question asked in relation to 24.2 which says -

PN63

All work performed on a public holiday is deemed to be work in excess of or outside of ordinary hours of duty and will be paid or compensated for in accordance with clause 20 Overtime and Penalty Rates.

PN64

Parties are asked whether the words 'is deemed to be work in excess of or outside ordinary hours of duty and are necessary'. If those words were deleted, the clause would simply refer back to clause 13 and the payment would be made as either a penalty rate or overtime as required.

PN65

APESMA at paragraph 8 of their submissions say it's necessary to assist in the clarification of the entitlement and to avoid ambiguity. Do you have a view about that?

PN66

MS McDONALD: Although AFEI does see the potential for those words to be confusing, we do not the submissions of the other parties that they are of the view that it does assist in the clarification and that those are the current words in the current award. So for that reason, we do not oppose the submissions of the other parties.

PN67

JUSTICE ROSS: We'll retain the current words.

PN68

MS McDONALD: Correct, yes.

PN69

JUSTICE ROSS: Thank you. Then we go to 24. 10(a) is simply the same point. Item 10(a) is just the AMWU's proposition in relation to the same thing. I don't think we've received a further submission from them after the 6th - we received something on the 15th, but I think that was - no, that didn't deal with that issue. That dealt with the deletion of the entitlement to other forms of leave and the casual loading.

PN70

They've sent an email dated 9 December. They're simply submitting that the words should be retained, so they adopt the same view as yourself and APESMA. That matter is resolved on that basis. The final item relates to schedule E in the award which is really, there are no apprentice provisions in this award. It seems like an odd schedule to include and whether APESMA supported the deletion and it's really whether any other party takes any issue with that.

PN71

MS McDONALD: We agree with APESMA.

PN72

JUSTICE ROSS: On that basis we'll delete Schedule E.

PN73

What we'll do is we'll complete our decision in respect of the Group 4 awards or most of them. If I can clarify where we're up to in relation to this matter, we would deal with all of the matters that are agreed and as I understand them, they're agreed or not opposed items 1, 2 and we'll deal with item 2(a), that's the reference to 7.3(b) on the papers and having regard to what everyone's said.

PN74

Item 3, that's to remove those words after loading. I think you were going to confirm your position in relation to that. Would it be possible to do that on a slightly quicker time frame? It's a fairly short point. I was wondering of you could - even if you could get something to us by close by business tomorrow. It's not really a big issue and it would assist us in resolving these matters. If you run into trouble with it, let my chambers know, but if you could do that, that would be appreciated.

PN75

MS McDONALD: Certainly.

PN76

JUSTICE ROSS: There was no issue about item 4. Item 5, this is the averaging point. I've indicated how we'll deal with that. We'll write to the parties, provide you with some information and then seek your views and encourage discussions between you about it.

PN77

Item 6, not opposed, no further action required. Similarly, with the inclusion of the words Item 7. Item 8 has been resolved by the variation of the award to reflect the outcome of the TOIL case. Item 9, is agreed. Item 10, it's agreed that the current wording would be retained and that also covers item 10(a) and it's common ground that Schedule E would be removed from the award.

PN78

I think in substance, that really just leaves us with the averaging question. We may be able to complete the balance of the technical drafting reviews, republish the exposure draft noting that the averaging issue is to be determined and sort of narrow the issues as we go.

PN79

Was there anything further that you had?

PN80

MS McDONALD: Nothing further, thank you.

PN81

JUSTICE ROSS: Thanks, Ms McDonald. We will adjourn on that basis.

SHORT ADJOURNMENT [10.57 AM]

RESUMED [11.07 AM]

PN82

JUSTICE ROSS: I note there are no appearances in respect of this matter. I'll just ask my associate to check whether anyone is waiting outside or in the corridor. There is nobody waiting in the corridor. I'll turn to deal with the matter.

PN83

We published a summary of submissions on technical and drafting matters in respect of this issue on 30 November 2016. We subsequently published a revised exposure draft on 5 January 2017 which dealt with a number of the matters raised in the technical drafting submissions. It appears that there are no further matters in respect of this award and that all of the technical and drafting matters have been dealt with on the basis of the revised exposure draft. That would appear to conclude the redrafting exercise to date in relation to this award.

PN84

There being nothing further, I'll adjourn and will note the progress of this award in the subsequent decision.

ADJOURNED INDEFINITELY [11.09 AM]