PN1

THE COMMISSIONER: The exposure draft has been around for some time. There's been changes made to that, that have reflected discussions that I've been involved in which arose out of the technical drafting issues Ms Bhatt was extensively involved in those.

PN2

I'm not understanding there was any difficulty with those up to a certain point.

PN3

MR FERGUSON: No.

PN4

THE COMMISSIONER: What your difficulty is, is with the consent position which purports to make further changes to the exposure draft.

PN5

MR FERGUSON: That's right, and I recently made the point that I think when the matter was re-enlivened before the Commission, that was a bit of a catalyst I think, for some in the industry to look at it and then raise concerns.

PN6

THE COMMISSIONER: Right.

PN7

MR FERGUSON: We hadn't been substantially involved and we hadn't been a party to the agreement previously. We hadn't come to it lightly; it's just when we looked at the nature of those concerns, we obviously were compelled to then raise it.

PN8

THE COMMISSIONER: But just to be clear - and I know this from personal experience, Ms Bhatt was involved in the technical and drafting issues.

PN9

MR FERGUSON: Exposure draft.

PN10

THE COMMISSIONER: This is that you weren't involved from what I can gather, from the history, with the substantive variation discussions which took place before the Booth DP. Yes, all right.

PN11

MR FERGUSON: No, there weren't - that's right.

PN12

THE COMMISSIONER: All right.

PN13

MR FERGUSON: I was going to say and I haven't raised it with the other parties now, we were about to outline sort of the main areas of concern, but it might be beneficial to have some off record discussions. I just notice we've gone back on record in terms of frankly sort of exploring these issues. I don't know if any other party would be opposed to that, of it the Commission is.

PN14

THE COMMISSIONER: I think I'd rather get on record, given the direction of the President who wants to know where you're coming from and it might be that we go that stage later, but let's start on the record.

PN15

MR FERGUSON: No, no, that's okay. I say that in part because I think we had prepared submissions that we were previously going to file and we refrained from filing that. I think there was a view amongst the parties that there was benefit in conciliation. I don't want to go now to just the stage of setting out all those submissions on record.

PN16

THE COMMISSIONER: Sure, sure.

PN17

MR FERGUSON: But happy to explain it in broad terms perhaps.

PN18

THE COMMISSIONER: Yes.

PN19

MR FERGUSON: So, there are four clauses that we're principally concerned about.

PN20

THE COMMISSIONER: Yes.

PN21

MR FERGUSON: One is the proposed provisions dealing with this travel time. Then the proposed new provisions dealing with remote response.

PN22

THE COMMISSIONER: Yes.

PN23

MR FERGUSON: Then the clause dealing with sleep-over arrangements. Then the clause dealing with client cancellations. I think there are varying degrees of intensity of opposition and in some cases, it may well be just some drafting issues that we're raising.

PN24

THE COMMISSIONER: Yes.

PN25

MR FERGUSON: But in others I think, our concern is more fundamental.

PN26

THE COMMISSIONER: But.

PN27

MR FERGUSON: It probably - taking more fundamental than it was purposed. It's the new travel time provision, clause 14.8. Look, we may be a little bit behind in exactly what the unions and the other parties were trying to achieve in the drafting. But the crux of the concern that some of the employees have raised with us is that it appears to impose a new requirement to pay for time spent travelling by employees, that you wouldn't currently be required to pay under the award.

PN28

The opposition to that isn't simply that they don't want to incur a new cost. It's that it's at odds with some of the funding arrangements that pervade this industry. I'm talking in particular about the NDIS arrangements that have limitations on the amount of time that will be paid for. This award would, I think it's put to me basically, expose some employers to an obligation to pay for time which they just can't recover. It's going to have an impact on them, going to have an impact on their ability to provide services to people, disabled people and so forth and so an impact on the broader community.

PN29

That's I suppose the higher level concern. But when you look at the way the clause has been constructed, it also appears to have a raft of other sort of problems that flow from it.

PN30

THE COMMISSIONER: Yes.

PN31

MR FERGUSON: What it does is, it effectively seems to deem certain time, time taken to travel the most direct route between locations as time worked. It doesn't proceed on the basis that it is time worked in the sort of industrial sense. It just deems it time worked which then creates a whole raft of issues. What does it create clause for time to be worked for? Is it just for the purpose of the award? Does that impact on NES accruals? Does it impact on other legislation, long service leave and so forth? How does that interact with other provisions of the award? Does that have an impact on overtime, how that's calculated?

PN32

None of that seems to be ventilated, and I could go on. It seems to be just a real problem. It also seems to assume - well, it just says it's the time taken to travel the most direct route between locations. There's no contemplation of how you travel, if that's by a mode of transport that you the employee, pick. Whether it's the actual mode that they use, or anything. It seems - - -

PN33

THE COMMISSIONER: Sprinting.

PN34

MR FERGUSON: Yes. It's just sort of baffling the way it's been cast, which I'm not trying to say it's an easy issue to deal with, but it seems somewhat unworkable when you actually look at it. It doesn't even have some things which we can - like it doesn't say the time is between different locations on the same day.

PN35

THE COMMISSIONER: Right.

PN36

MR FERGUSON: They're a drafting - - -

PN37

THE COMMISSIONER: Isn't the way to skin this particular cat, is to get some sense of what the parties - because I'll say at the outset, I share the view that I'm not quite sure what it means. I get that there's an attempt to do something about capturing travel time. But I'll give you an example, it's not unknown in - well it's probably more industrial agreements. But you know, there's a home depot, say rail as being an example. Then there's - if you're going to be allocated somewhere other than your home depot, then there's a clear indication that you'll get paid for the time that it takes for you to travel either from your home to the home depot or to the new depot. You know what I mean.

PN38

So there's this clear understanding of what we're measuring. In rail, it's always measured by how long it takes the train to get there. You also know you've got a sense of the mode of transport. But it does raise - it did raise for me - I hadn't thought about a time worked issue, but it does raise for me - what my notes are - different locations or different to where - you know, how does that work?

PN39

MS SVENSDEN: Commissioner, maybe we can say that we're very conscious that none of these clauses are perfectly drafted. We're prepared to have conversations about technical drafting matters.

PN40

THE COMMISSIONER: Yes, sure.

PN41

MS SVENSDEN: We will refrain from abusing AiG again about their behaviour in coming forward two years after these matters were tabled. But - and, and, very importantly, we come to this table and I think that it's very important to note, we come to this table with no knowledge fundamentally of what the issues are because all they're said is they have problem with - fundamental problems with the travel time and the blah, blah, blah, blah. Which they've outlined now. But they haven't provided us with anything to date and nothing in terms of either - in writing in terms of what the actual issues are, or in proposing an alternative, or what their proposal is, whether it's to do away with all of these clauses or any of those things.

PN42

THE COMMISSIONER: All right.

PN43

MS SVENSDEN: Let's be clear. We know that we have developed some clauses that in conference, as we always do, have technical difficulties. We're absolutely prepared to revisit in relation to some of those technical issues.

PN44

THE COMMISSIONER: Revisit those.

PN45

MS SVENSDEN: We don't need to - I mean, if we're going to change some of those things, fine, we can actually labour the point about how we do it. But if what I seem to sense from the opening statement, is we don't agree with travel time; we have to remove this consent - or we don't consent to it, therefore we're going to oppose it. Then can we just stop arguing and wasting all of our time.

PN46

THE COMMISSIONER: Yes.

PN47

MS SVENSDEN: Say well we're not going to agree to getting rid of this, so if that's the case, we can move on to the next clause and then we can decide at the end of the process of the four clauses, whether or not we're actually going to argue the toss about everything or what.

PN48

THE COMMISSIONER: Sure. Well, what I was going to say is, I think the - I think in terms of getting somewhere on this, it's worthwhile getting some further clarity about how it's meant to work.

PN49

MS SVENSDEN: What we're wanting, yes.

PN50

THE COMMISSIONER: But I agree, there's no point in doing that if the position is there'll be opposition to travel time of any sort. In which case - - -

PN51

MR FERGUSON: I think - and we have met with the unions and had a detailed meeting.

PN52

THE COMMISSIONER: Right.

PN53

MR FERGUSON: Explained our concerns - I thought, effectively. But we're coming here to try and reach agreement. But we have this in front of us.

PN54

THE COMMISSIONER: Yes.

PN55

MR FERGUSON: This is what we're dealing with and it's a big problem.

PN56

THE COMMISSIONER: Yes, all right. Well, let's move on.

PN57

MR FERGUSON: I think the Commission's approach, if we could know what they're trying to achieve, then we could see whether there's a solution that's palatable to those we're concerned about.

PN58

THE COMMISSIONER: All right.

PN59

MR FERGUSON: Within that prism.

PN60

MR BULL: Well it's fairly obvious what the travel time clause is trying to achieve. It's trying to compensate employees for travel time. I think the idea needs to be clear that if it's a matter of fundamentally sort of trying to upturn things that were agreed in the conciliation, our point of view is that's not on. We're happy to have discussions about, if you like, technical matters and for example, the issue he's raised with the vagueness of what time taken to travel might mean, can be cured quite simply by a definition or a provision saying it's the usual - - -

PN61

THE COMMISSIONER: Perhaps if I - if you don't mind Mr Bull, I'll lead the discussion and what I'd like to do first is focus on what does the word 'location' mean. What do the parties mean by 'location'? Then what's meant by different locations.

PN62

MS DABARERA: Commissioner, to give some idea of the claim.

PN63

THE COMMISSIONER: Yes.

PN64

MS DABARERA: In the sector, homecare workers, for example, would predominantly be working at client's residential homes.

PN65

THE COMMISSIONER: Yes.

PN66

MS DABARERA: They would be going from one client's residential home to another and then later on in the day, they would be going to another client's residential home.

PN67

THE COMMISSIONER: Yes.

PN68

MS DABARERA: What this clause seeks to address is that we have seen - many of our members are experiencing a situation where they will be rostered on at a client's home for say one hour and then they'll be travelling 30 minutes to the next client's home.

PN69

THE COMMISSIONER: Yes.

PN70

MS DABARERA: That 30 minutes of travel time, which rightfully should be paid as travel time under the award, is not being paid.

PN71

THE COMMISSIONER: Okay.

PN72

MS SVENSDEN: Or paid as time worked.

PN73

MR ROBSON: I think the thing to add is that there's usually no home depot, like there might be in another industry.

PN74

THE COMMISSIONER: Yes.

PN75

MR ROBSON: The ASU's interest is primarily in disability in relation to this, although we do have home care, but that's under local government, so a different award.

PN76

THE COMMISSIONER: That's right.

PN77

MR ROBSON: We'll have situations where you have a disability service worker who's travelling sometimes between individual clients' homes, sometimes between different types of residential settings, such as a group home. But also attending community events or some other location where they'll be providing care. Examples include taking clients to the footy or an important part of social work is engaging people in the community, so taking them to a café. Sometimes they travel with the client and that's usually paid, but sometimes particularly if they're working - - -

PN78

THE COMMISSIONER: Wouldn't they be doing that as part of their shift?

PN79

MS SVENSDEN: No.

PN80

MR ROBSON: No.

PN81

MS SVENSDEN: That's the problem. They should be.

PN82

MR ROBSON: They should be.

PN83

MS DABARERA: They should be, but if not, they - - -

PN84

MR ROBSON: And so, like this is a particular problem in a regional area where people could be driving for significant periods of time. They're rostered between clients in different towns. I was talking to someone who works in Bathurst and Orange. People who - - -

PN85

MS SVENSDEN: Same employer.

PN86

MR ROBSON: The same employer - might go out to a farm where there's someone who needs care.

PN87

THE COMMISSIONER: This is in disability?

PN88

MR ROBSON: This is in disability. So, basically people are travelling between the time when they start work in the morning. I think it's really hard to talk about work under this award because of the broken shift provisions because people will be travelling basically while performing duties for employers, but they will have been rostered off for that period of travel.

PN89

Then they will be at different locations during the day and then when they clock-off, they'll be somewhere completely different at the end and they might have been at three or four different locations. Employers have been taking advantage of the very flexible provisions of this award, not to roster people on for travel, essentially at the direction of the employer.

PN90

THE COMMISSIONER: All right, so the first point is, the problem you're trying to solve is in respect of home care and disability workers.

PN91

MS SVENSDEN: And aged care.

PN92

THE COMMISSIONER: And aged care.

PN93

MS LEIBHABER: Just one extra thing to add, like a car is essential for this kind of work. These employees wouldn't be able to take public transport to these clients. They're required to have cars. Like often they're driving clients to appointments and they need to get travel between distances. Yes, you're really talking about driving; you're not talking about other forms of transport. It just wouldn't work in that sort of - - -

PN94

THE COMMISSIONER: That driving time.

PN95

MS DABARERA: Yes, it is.

PN96

MS LEIBHABER: Yes.

PN97

MR BULL: Perhaps the other thing is that the funding model is consumer directed care which is focussed on the consumer picking a provider. If you have essentially non-recognition of this utility of travelling between work locations, it provides no incentive for the employer to sensibly structure their work rosters. Because they're getting the work in and the disutility associated with the disparate nature of the work is then shifts drop to the employee. It's like overtime provisions. They provide an incentive for efficient structuring of the work routine.

PN98

THE COMMISSIONER: Sure.

PN99

MR BULL: Which isn't provided by the rostering; it provides funding by the funding provisions.

PN100

MS SVENSDEN: Sorry, I just want to make it clear that it is also aged care, because the home care provisions of the SCHCDS Award apply to the aged care industry, even though everything else is in the Aged Care Award.

PN101

THE COMMISSIONER: Yes, right.

PN102

MR FERGUSON: Can I just ask one question as well?

PN103

THE COMMISSIONER: Yes.

PN104

MR FERGUSON: I think Ms Dabarera said, and maybe somebody else. Are you talking about situations where the employer is directing the employee to travel?

PN105

MS SVENSDEN: Yes, because they've got three appointments with three different clients. The employer will claim that not a direction to drive between those clients, Brent.

PN106

MR FERGUSON: That's what I'm coming to.

PN107

MS SVENSDEN: But it clearly is, obviously, because otherwise they wouldn't be able to get there.

PN108

MR FERGUSON: But is it the situation where you're directing a client - an employee directed to travel from one client to the next in direct succession, which you're targeting in the shortest possible time if you will, or the most direct route? Or is it, that you just want people to be paid?

PN109

MS SVENSDEN: No. Let's also be clear about the other stuff about rostering that's a problem. I might have an hour at seven in the morning. I might have 50 minutes at 12 and then I might have another two clients for the afternoon, say separated by an hour each or whatever. I mean we have a member who talks about working over a 16 hour period each day to get eight hours paid work.

PN110

The rostering of the work is not I will do an hour then in half an hour I'm with another client and then in half an hour I'm with another client. In fact, if anybody was doing that, they are normally rostering them for the whole period. But in fact, what they're doing is actually rostering a little bit here, a little bit here, a little bit here at sometimes disparate locations and maybe right back at the beginning at the end of the day. It's not even a round trip, it's to and fro and it's all over the place. It's very different per client.

PN111

MS DABARERA: I should say as well, we do have members who are rostered an hour here, a half an hour, an hour, an hour, 15 minutes, which is actually the time that it takes to travel between those locations.

PN112

MS SVENSDEN: Yes, yes, yes we do.

PN113

MS DABARERA: There are employers who are rostering - who are specifically rostering employees off for that time taken to travel between locations.

PN114

MS SVENSDEN: Yes, yes.

PN115

MR FERGUSON: That's what I'm coming to. Because it is a complex situation. It's not typical. The award recognises both shifts, it has very short engagements. It doesn't require hours to necessarily be consecutively worked. There is - the industry is structured around that and the award reflects that nature. It is an atypical sort of award structure.

PN116

The issue is addressing the situation where someone is, by necessity, being directed to go from one to the next and they're not - that's their role; that's one issues. If you're trying to regulate what occurs in this gap and provide payment. That's a very different thing and it throws up a whole heap of issues, as I see.

PN117

THE COMMISSIONER: Well, it's clearly, from what I'm hearing, a scheme to deal with those gaps in rostering. If there were no gaps in the rostering, there wouldn't be a problem, they'd just be paid the award.

PN118

MS SVENSDEN: If they were rostered for a six hour shift, then we wouldn't be having this sort of discussion.

PN119

THE COMMISSIONER: Yes.

PN120

MR FERGUSON: Or there may be a situation where in casual employment - you know, people are offered separate engagements during the course of the day. They can choose to take those on or not, and there's isn't an assumption that you are necessitating the person's travel.

PN121

MS SVENSDEN: Can we not use the language of choose to take on please, Brent?

PN122

MR FERGUSON: Well, I have - - -

PN123

MS SVENSDEN: It's offensive, when people are earning so little money.

PN124

MR FERGUSON: But it's a reality.

PN125

MS SVENSDEN: No, it's not a reality. It is actually not a reality. If you get out of your white tower and actually try to earn $21 an hour for five hours work separated by and having to pay petrol for, you know - - -

PN126

THE COMMISSIONER: Ms Svensden. I really don't - - -

PN127

MS SVENSDEN: I know. Sorry, my apologies.

PN128

MR BULL: Just practically, so Brent, what do you want?

PN129

MR FERGUSON: I don't want to listen to that.

PN130

MR BULL: Do you object to the clause or do you believe it needs clarification?

PN131

MR FERGUSON: As drafted, I object to the clause. I don't think it makes any sense and I don't know what you're trying to achieve. But I think this is actually helpful, because I think - there's articulation of some problems. I think there might be things we can think about. But if it's - I just don't know what you're trying to achieve.

PN132

MR BULL: We're not minded to fundamentally change what has been agreed. We're happy to make things clearer. I think we've articulated the clause performs a role in terms of trying to solve a significant problem which is the fact that there's broken shifts and people have these extraordinary long durations of work that they don't get paid.

PN133

MR FERGUSON: Well, what do you pay someone? If they work somewhere in the morning, they work six hours later somewhere in a different location, they go and have lunch somewhere in between, they get public transport to the other location. What do you pay them under this clause? I have no idea.

PN134

MR PEGG: Commissioner, if I might just - - -

PN135

THE COMMISSIONER: Yes, sure.

PN136

MR PEGG: It might be worth just saying a few words about the employer perspective about why we have this arrangement.

PN137

THE COMMISSIONER: Yes, that would be great.

PN138

MR PEGG: The problem that we're trying to solve does arise from - does arise largely from the implementation of NDIS which in the disability sector is seeing a big growth in services being provided in individual client homes.

PN139

THE COMMISSIONER: Yes.

PN140

MR PEGG: So that the travel between clients is becoming more of a phenomenon than it used to be.

PN141

THE COMMISSIONER: Than it used to be, yes.

PN142

MR PEGG: The unions had concerns that they've articulated. What we think we've agreed to here is restricted to where a worker is required by the employer in order to perform their duties to move from client A to client B.

PN143

THE COMMISSIONER: Yes.

PN144

MR PEGG: Then that is what we've agreed, we think, in this clause, is time that ought to be - that is time worked. It's necessary in the performance of the duties. We're not agreeing to - - -

PN145

THE COMMISSIONER: What about client C?

PN146

MR PEGG: Ditto for client C. Going from client B to client C, and so forth. Where it's direct travel in order to perform the work.

PN147

THE COMMISSIONER: Within what time span?

PN148

MR PEGG: Within the time that it takes to get from client - - -

PN149

THE COMMISSIONER: No, no, no. Within, you know, so - - -

PN150

MR PEGG: Within the shift.

PN151

THE COMMISSIONER: Within the shift.

PN152

MR PEGG: Within - - -

PN153

MS SVENSDEN: Within the schedule for the day.

PN154

MR PEGG: This is the roster for the day.

PN155

MR ROBSON: I think part of the problem here comes from like the incredibly flexible provisions here for rostering. You've got a broken shift provision that doesn't have any limitation on the number of - - -

PN156

MR PEGG: I'm saying the same thing there.

PN157

MR ROBSON: Yes, well the number of breaks. There's no allowances compensating for the broken shift. There's no minimum engagement for part time or full time employees. I think part of - some of the problems here might be fixed with like resolving some issues with the broken shift. Like the basic way to resolve this from our perspective would be to only allow one break in the shift and then you can be rostered in for three hours in the morning and three hours in the afternoon.

PN158

While that's not 100 per cent perfect from our perspective, the issue where our members who are predominantly part time are rostered for short periods of work, sometimes it's as short as 15 minutes. Sometimes it could be one or two hours, depending on where they're working or the service that's being provided. When they're driving between locations, they're being rostered off and it can sometimes be as short as 15 minutes. Sometimes it can be a very long period of time.

PN159

But as Michael was saying specifically about where you're being rostered, to move between different houses and you're essentially continuously performing work, the only sort of - with periods of travel interposed which have been rostered as unpaid time.

PN160

THE COMMISSIONER: Yes.

PN161

MS SVENSDEN: The other thing - just the point I make Commissioner, was that we were also trying to say that if you're doing a client now and a client in four hours, obviously you're not going to spend that time just travelling. And obviously paying for that four hours was a different thing, which was where the direct route - most obvious direct route stuff came from. Because the idea was that that was still within the day and they would still get paid for going - effectively going from that client to the next client as if it was directed and not four hours later.

PN162

So that there was just that - it might take 20 minutes, but they would be paid for that time. What they did in the meantime would be - could be completely different, but they would get paid just as if they'd gone straight to that and that that would form part of their rostered time.

PN163

THE COMMISSIONER: Yes. It is kind of a way of dealing with the broken shift problem, basically, isn't it?

PN164

MR FERGUSON: I think the issue is this, whether you perceive the broken shift flexibilities and everything is a problem.

PN165

MR ROBSON: Well, we do.

PN166

MR FERGUSON: And I appreciate that. Or as the award's recognition of the industry's specific circumstances. There needs to be flexibility. We would argue that we can reach agreement for a raft of reasons and we'll do that in the second phase of the case, and the awards don't all look the same for a reason.

PN167

I think what I'm hearing from the employers is - I'm sticking my neck out a little bit in terms of those I represent, but it may be that what they thought they agreed to, is actually palatable, or might be palatable to us. Which is a provision that was dealing with the situation where someone was basically directed to travel from one to the next situation. It's providing a payment, I assume, for that activity.

PN168

But that isn't at all what I read that clause as doing. That's why we hadn't fully considered that. But I must say, that seems to also address some of the most vehement opposition to what's going on out there. As I understand coming from the unions, is people doing that, structuring the day that way, but not paying them in-between. But I suspect there are - I'm going to say business models, although business is not the right term. Organisational models that do have a more flexible approach; that have separate engagements and so forth and would never contemplate the travel in-between as being something they're directing the people to do.

PN169

I don't know that I can see a way to deal with all of those situations, but there probably is a compromise here. There might be, take the casual engagement - organisations that offer separate casual engagements. In the course of the day you might take the first one, so you also have some work. Have the other location this afternoon. But they wouldn't contemplate paying people to travel between the two. They'd just regard them as separate engagements. The person wouldn't necessarily practice travel between the two. They might go home in-between, or whatever would happen.

PN170

MS SVENSDEN: What words would they be?

PN171

MR FERGUSON: I'm not going to say. That would surprise me if you didn't know that that happens.

PN172

MR BULL: One of the other relevant background factors is that a large - in terms of the sort of care workers, I mean a large part of that cohort is part time. The part timers have no minimum engagement under the award. The assumption was that the particular pattern of work would provide the function of a minimum engagement. But that doesn't appear to be the case in reality.

PN173

You have part time workers working very short intervals. I mean they're literally going to check someone's medication or whatever and then the next period of work is across town, four hours later. Travel time would obviously provide some disutility in relation to sort of directing those arrangements.

PN174

THE COMMISSIONER: But the way this works would be - just going back to your point, and it does need to be redrafted, I'll be clear about that, to reflect what you think you've agreed to, because it doesn't say what you think you've agreed to. But that's okay, that can be done.

PN175

Essentially, what it's saying is where an employee is - well let me run this by you. Let's at least try and reflect in the clause what I think, having heard the parties you were trying to do.

PN176

Where an employee is directed to work at a different location to that - - -

PN177

This is shockingly drafted, but we can fix this.

PN178

Where an employee is directed to work at a different location to the location, they commenced their (that's the bit I'm missing there) shift (maybe - shift query) they will be paid - - -

PN179

No, well.

PN180

MR BULL: Just the normal rule about don't get paid to go to work necessarily applies, because these workers won't actually have a home depot, as you say. This clause may contemplate people being paid - - -

PN181

THE COMMISSIONER: Well that's a different position Mr Bull, to what the employer thinks it's reaching.

PN182

MR PEGG: It's about the time taken to travel to that location.

PN183

THE COMMISSIONER: Yes.

PN184

MR PEGG: Is time worked.

PN185

MS SVENSDEN: But not the first client for the day.

PN186

MR PEGG: Not the commute.

PN187

THE COMMISSIONER: Yes.

PN188

MS SVENSDEN: Not from the last client for the day.

PN189

MR ROBSON: That's a claim we - when I say the collective union we dropped off, as part of the settlement package.

PN190

THE COMMISSIONER: Well, I doubt you're ever going to get there. They will be - then the time taken to travel the most direct route between those locations, no we know what those locations are, it's the second location and the first location where they started work, will be treated as time worked. I see you've got the exclusion, but okay.

PN191

MR ROBSON: Sorry, I didn't see that.

PN192

MR BULL: It's one to two, two to three and so forth.

PN193

THE COMMISSIONER: Yes. That still would mean, let's just say they work for an hour in Bathurst and then they're rostered - I don't know what the - let's just say - I don't know what the distance is between Bathurst and Orange, but let's say it's - - -

PN194

MR FERGUSON: 45 minutes.

PN195

THE COMMISSIONER: It's 45 minutes, all right. Well that's helpful. Let's say when they've finished their hour in Bathurst, the start time they're expected to be in Orange is three hours later. Then they'll be paid 45 minutes and they'll have 45 minutes where they're not paid. That's how it will work.

PN196

MR FERGUSON: Yes, that's how it will work.

PN197

THE COMMISSIONER: Right. There you go. That could be made to work. That's the - - -

PN198

MR FERGUSON: I think that's something to work with. I think there is still issues around deeming something time worked, as opposed to dealing with a payment. I'm struggling for specific examples, but it wouldn't be uncommon to think of a provision that might provide payment for travel time without rendering it time worked, which has all sorts of repercussions.

PN199

THE COMMISSIONER: I see.

PN200

MR FERGUSON: I wonder if the issue is people doing this unpaid, whether the neater way home is to effectively provide that that time will be paid. That then doesn't disturb whether that time counted some ordinary hours.

PN201

THE COMMISSIONER: To be paid at travel time, at the ordinary rate.

PN202

MR FERGUSON: Travel time at the ordinary hour rate.

PN203

THE COMMISSIONER: Ordinary hourly rate.

PN204

MR FERGUSON: You can include the all-purpose allowances and so forth. Because otherwise, how does it even fit with the structure of types of employment and so forth where people have predictable hours of work. But if they at different locations, their hours are going to be fluctuating. So, someone's going to fall outside the definition of a part timer, for example.

PN205

MS SVENSDEN: The intention is that it's time worked with all of the consequential impacts on their hours of work. That's what we're talking about.

PN206

THE COMMISSIONER: Right, so let's just all agree.

PN207

MS SVENSDEN: Yes.

PN208

THE COMMISSIONER: Yes.

PN209

MS LEIBHABER: Commissioner, it is time worked. I mean employees that are directed to travel from one client to the other are doing so - - -

PN210

MS SVENSDEN: They're working.

PN211

MS LEIBHABER: In the course of their duties and we think it - in the common law position, that would be time worked. That should be how it's worded.

PN212

MR FERGUSON: Would you accrue in credit annual leave based on that?

PN213

MS DABARERA: Yes.

PN214

MR ROBSON: Well, it's ordinary time. It's important to remember that this provision is quite important in terms of the sort of deregulated funding model, which is increasingly being used in these sectors in that it provides some discipline for efficient rostering and location.

PN215

MR FERGUSON: But that's not how it would work in practice, because what happens firstly, is the employer doesn't necessarily have any capacity to change the funding arrangement. They will then look at it and yes they may try to restructure things efficiently, they're reasonable. These aren't businesses out to try and gouge profits. They might just now not be able to provide a disability service to someone.

PN216

That's the feedback we've got is that well hold on, we're just not going to be able to service lots of people in need now, if we do this. It's not that we're out there trying to maximise profits and take advantage of employees and so forth. This is the problem. It's not the typical thing. They can't push back on the client and get more money to pay for the extra costs, and there's no margin often to just sort of cover these things.

PN217

MS SVENSDEN: Funding arrangements as you're well aware, are based on what the award says.

PN218

MS LEIBHABER: Also clients are charged for travel.

PN219

MS SVENSDEN: They can be.

PN220

MS LEIBHABER: They can be charged for travel. A lot of (indistinct) do.

PN221

MR FERGUSON: But there are caps, so there are caps and you are undoubtedly closer than - - -

PN222

THE COMMISSIONER: Sure, but look these are arguments that can be run by the Bench, in front of the Bench.

PN223

MR FERGUSON: Yes, that's right. I was actually just trying to make a point. The payment issue is easier to fix than the time worked.

PN224

MR PEGG: In the end of the legislative - well the award environment changes, well funding bodies have to respond to that, or not respond. However they deal with it, it's as they see fit. It's not a - in the end, we'll go via all considerations to make a fair role, but not an award.

PN225

THE COMMISSIONER: Anyway, is there any more than can be done with that at this stage? I think - sorry, I meant to go back to you sir. You've got your eyes open, if you like, on what time worked means. That's the understanding - you share that understanding?

PN226

MR PEGG: It is the understanding and where we got to in the discussions two years ago was an acceptance from our point of view. It is time worked.

PN227

THE COMMISSIONER: Yes.

PN228

MR PEGG: It's not - in the same way that I travel from my office to come to the Commission today, it's on the clock; it's time worked.

PN229

THE COMMISSIONER: Yes.

PN230

MR FERGUSON: But that as in the prism of it being the time that's sort of directed.

PN231

MR PEGG: Yes, it's as directed. We have no interest in counting as time worked, anything that's not necessary for the performance of duties.

PN232

MR ROBSON: I think that's captured by 14.8(b) which sort of deals with the situation where time runs over. If you're stuck in traffic in western Sydney because I think Bathurst is the easy one, because it's always going to be 45 minutes because unless the road's blocked off completely, you're going to be able to drive down the highway with limited traffic.

PN233

It's when you're trying to drive around Liverpool in Sydney afternoon traffic that you've got the problem. So, it's treated as a roster variation, so it doesn't go into overtime. But it is still treated as.

PN234

THE COMMISSIONER: I mean that will have to be worked on as well, because I actually don't understand that at all. Where it says variations in travel time, well variations to what travel time? Variations to the normal travel time, is that what it's meant to mean?

PN235

MR ROBSON: Yes.

PN236

MS LEIBHABER: Yes, I think that's in terms of - - -

PN237

THE COMMISSIONER: Variations to the most direct route?

PN238

MS SVENSDEN: Yes.

PN239

MS LEIBHABER: Yes, so if someone is struck in traffic and it takes an extra half an hour, that's sort of the intention.

PN240

THE COMMISSIONER: Well that will have to be - but if that's what it means, so really again, the language can be better, but what you mean is variations to the most direct route travel time will be treated as an agreed change to the roster. In other words, you'll only get - let's stick with that Bathurst to Orange example, you'll only get the 45 minutes.

PN241

MS SVENSDEN: Mind you, a variation in the traffic - in the route between Bathurst and Orange would be a substantial one, so that might be a problem. But the much more likely thing is road works and traffic congestion and things like that. It's really hard to - travel time is a really hard thing to identify when you've got multiple undisclosable unidentifiable locations. It's not home depot, it's not the courts because that's where you always go.

PN242

It's you know - and it differs between every employee and will probably differ on every day they work. Which makes it hard to capture in what we're trying to do. As I said, we acknowledge that this is not drafting nirvana and we're prepared to look at those technical changes.

PN243

MR FERGUSON: Let me just play that space for a second, not that I'm particularly enamoured by it. But that is the problem. If you're only assuming in this clause that there is a standard travel time that everyone would know.

PN244

MR ROBSON: No.

PN245

MR BULL: Well yes, in a sense.

PN246

MS SVENSDEN: Between two points.

PN247

MR BULL: There'll be the capacity to agree on standard travel times. It's not an unknown thing.

PN248

MR FERGUSON: It's based on the agreed travel times. I mean I'm being, obviously in the transport - - -

PN249

MR BULL: There's an element of science to it; it's not just arbitrary.

PN250

MR FERGUSON: There's a lot of effort that goes into this, because everyone knows you can't come up with the exact travel times; they change from day to day. Is the mechanism that's being proposed is that you'll be paid the agreed travel time for the direct route? Sorry, I'm far from the mic. Look, I must be frank, I think it's been helpful to hear the different versions of what people are trying to deal with and it may be that we give it some thought.

PN251

THE COMMISSIONER: I mean the alternative - can I just canvass this, and I'm presuming having heard the conversation you'd be open to it - but you might not be - is whether you're really trying to find a tweak to the substantive problem of the different engagement arrangements and whether that's. With that I might just be saying something there, or just blow up the whole industry that it just won't happen. You know what I'm saying, so.

PN252

MS LEIBHABER: We do have substantive claims that are being - we had as part of a hearing that do address those issues, but that sort of depends on these issues being finalised as well.

PN253

MR FERGUSON: I think that's an issue, so if there's not agreement now, there is interconnectedness between elements of these claims and the substantive claims that the union is facing which might mean that the Bench might want to hear everything at the same time.

PN254

MS SVENSDEN: There's actually interconnections between the substantive claims that we are proceeding with and the substantive claims we all agreed to drop. That is a significant issue.

PN255

THE COMMISSIONER: Is that one that you agreed to drop as part of this?

PN256

MS SVENSDEN: Look, yes, no no, there are some significant issues around what were the kind of group - look, you know go back to the beginning and I think - I mean there is absolutely no doubt that some of the stuff that we all lodged in relation to this was, we're only going to get one chance at 2014 review because it's all going to be gone; which it is now. But we didn't know that and how we deal with the changing of the award and all that sort of stuff.

PN257

But the problems in this award are pretty massive. They are interconnected. It is incredibly poorly drafted. It is bad - you know it pulled together several bad awards, most of which were Victorian rubbish. It resulted in an award that internally makes no sense and has some of the worst provisions of any award that I've looked at.

PN258

THE COMMISSIONER: I've never known you to be prone to state parochialism Ms Svensden.

PN259

MS SVENSDEN: What, you mean about how bad it was? So, we have a really poor award. Frankly, it might be better if we threw the whole thing out and started again. But we can't - - -

PN260

MR PEGG: Is that an application to rescind?

PN261

MS SVENSDEN: We can't easily do that. There were a lot of claims about there are so many things in this award that minimise a proper employment relationship and maximise the impact on people with low wages and casualisation and all sorts of things. Then you actually have the changes in funding arrangements that sit on top of that. It just is a bit of a nightmare.

PN262

The problem for us is that we're trying to deal with a political impact as well. So you know, being really honest, that we actually and the sector actually acknowledges that unless we're all kind of together, we actually have some award stuff behind it and we're all together pushing for changes to the funding model, that that's also an issue.

PN263

That's not an issue for fixing here, but it is part of the thinking that goes into we need to actually do something with this award that we can then go back and say we've got to change the funding model, don't you. There is actually some of that as well.

PN264

THE COMMISSIONER: I'm familiar with how that takes place.

PN265

MS SVENSDEN: Yes, I know you're familiar with how that works. There is part of that as well. But we are trying to - yes, you're both quite correct. We are trying to address intersectional issues and it might be better to deal with this particular one by the broken shift award, or the broken shift provisions, but we couldn't get agreement on the broken shift provisions, so we dealt with travel time and - - -

PN266

THE COMMISSIONER: And you ended up here.

PN267

MS SVENSDEN: Yes.

PN268

THE COMMISSIONER: All right.

PN269

MR PEGG: Commissioner, I should just say. We see this as limited to the time that's required to travel in order to perform duties. You can see how it might line up with concerns the unions have around broken shifts, but it doesn't necessarily have any - it doesn't actually really intercept with the broken shift provisions.

PN270

THE COMMISSIONER: Yes.

PN271

MR PEGG: It's purely the travel requirements.

PN272

MR FERGUSON: And I don't know how time frames work, but there might some merit in the employers having some discussions in light of everything that's been said about a proposal. Because it seems that we're ships passing in the night in terms of the drafting. There might not be such vehement opposition to something that comes out of that process. The unions may want to think about what results from that, rather than just batting on with what's there, because there are issues.

PN273

THE COMMISSIONER: Yes, I think there's a limit to where we can go with this right now.

PN274

MR FERGUSON: I don't we're at the end of productive work that can be done in it, in light of what's been said.

PN275

THE COMMISSIONER: No, no. All right, any more on travel time? Hopefully the next one is easier.

PN276

MR ROBSON: I think just one point needs to be raised that Michael Pegg and the employers - apologies. I think one point needs to be raised that Michael Pegg and the other employer groups are aware of that form the backbone of this, is that this isn't the only way that we can resolve this problem. We don't have to resolve it in the four yearly review. Like we could just start trying to test out this clause in the Federal Courts, because I don't think it's very clear whether you're actually entitled to roster people off for travel time under this award.

PN277

We prefer as the ASU not to pick these types of fights. But it is an issue our members are clamouring about. We'd prefer to resolve it and go back to the discussion that Leigh raised of let's fix the award that's come from a position. Let's go back to government and get the funding fixed.

PN278

The other alternative is the industry is changing. There are more for profit providers operating. It might be time to be less of the touchy-feely ASU and become a bit more hard-nosed.

PN279

THE COMMISSIONER: Well, you can have those reflective thoughts later.

PN280

MR ROBSON: Yes, all right.

PN281

THE COMMISSIONER: Can I ask if the interstate participants would like to say anything about the travel time issue?

PN282

MS SHAW: I think from our perspective in Adelaide that it's been covered off from certainly the discussions have allowed us greater clarity. So, I think we're happy to move on to remote response.

PN283

THE COMMISSIONER: No worries. All right, response?

PN284

MR FERGUSON: Again, we might be misunderstanding where parties are coming from. But it seems that obviously it's a clause that was intended to deal with payment for work that you did away from the workplace and it included some specific types of work. I think if I work through the clause would probably be the easiest way to do it.

PN285

The first issue we have is around what is the definition of remote response duties? When you look at the definition, there isn't actually any sort of conceptual explanation of what is remote response of duties. There is just a non-exhaustive list of things that are definitely included in remote response duties. That seems unclear when this clause actually applies.

PN286

THE COMMISSIONER: That can be resolved by saying the words include - it would say "a". If it was those four things specifically, you'd be okay with that in terms of the timing.

PN287

MR FERGUSON: Well, so that solves some problems, but is it the intention that it occurs - this clause applies whenever you're doing work just away from the office. If you're working from home, checking your emails and doing things, this clause kicks in. Or is it the case, and this is what I gathered might be the case, that it's actually only intended to apply when someone is on-call and so outside of their work - their rostered work, if I could put it that way?

PN288

There's nothing that says that in the clause, but that might be the intention. Because otherwise it's a big problem if every time someone is just not in the office, this clause kicks in.

PN289

THE COMMISSIONER: I see, yes all right. It's about - is that the key issue, is it?

PN290

MR FERGUSON: Well, not the key issue, but that's the start. Then we'd know at least what we're talking about, if that makes sense.

PN291

THE COMMISSIONER: Is there any point just focussing on that first, or do you want to go through the rest of the issues?

PN292

MR FERGUSON: I think there is, because I think that then might colour some of the others.

PN293

THE COMMISSIONER: All right.

PN294

MR BULL: The AiG is saying that it doesn't properly define what a remote response is.

PN295

MR FERGUSON: Well no - see it raises - it doesn't define in any way what it is, other than saying that it includes these things. There's actually no definition of what the remote response is.

PN296

THE COMMISSIONER: That's a fair point. What is it - can I say, and this must have come up in the conferences I was chairing, but I do remember it being discussed and the problem that was being sought to be solved was people being rung up, contacted when they're not there? They're not on call, but I don't know, they weren't sure about how someone would be behaving earlier in the day and they wanted to find out - a disabled person and they weren't sure what they were going on about, what their needs were. If they could talk to the person who was on the last shift, it might help me to resolve their issue; something like that. That this was happening on a frequent basis. That there needed to be some recompense for that.

PN297

Then that contact in the modern era might be by phone call, but it might also be by text message or whatever. That was what I recall you - - -

PN298

MS SVENSDEN: That was probably the limited use of it. Like, that does happen.

PN299

THE COMMISSIONER: Yes.

PN300

MS SVENSDEN: But it - what also happens, is that the - let's take a residential group home, the house supervisor is not actually rostered on-call, but they're called every night. They're not rostered on-call, because we don't want to pay an on-call allowance, quite frankly. But that also - I mean whether it's a group home or not a group home. Whether it's the client or whatever it is, there will be somebody who is the team leader, manager that is responsible for the rostering of, or fixing of problems, or dealing with the emergencies, responses and all those sorts of things and there is no - the concept of on-call, was limited to returning to the premise of the work - the work premises in hard fact. That actually therefore was a problem.

PN301

Now, this was not just a problem raised by us; it was a problem raised by the employers and therefore the concept - I mean we were trying to deal with both the person who's rostered on-call and the person who isn't rostered on-call, but who is actually being called to do stuff.

PN302

THE COMMISSIONER: Yes.

PN303

MS SVENSDEN: Whether they returned to work or not, or whether they're only engaged in making all sorts of arrangements or answering a number of questions or whatever it happens to be that that should be deemed some time worked.

PN304

Now, the other thing that was part of the response, the remote response stuff, was the issue around the time. There's two parts to that obviously. The time when somebody is actually going to start work at 8 am and is called at 7 am or whatever it happens to be, and does that constitute overtime. I mean there was that sort of question.

PN305

But there was also the issue of better rostering practices or better practices around when you contact people. While that's arguably not something you should be putting in an award, it should be something that's in your HR practices, the reality is that the only way - this is an industry with lots of very small providers. It was agreed that putting some of those things in to the award would actually push them into some better practices. So, that from 10 pm till 6 am you're not allowed to do it. Or there's a significant penalty and if the significant penalty applies, then the HR practice will be you don't ring somebody unless the place is burning down, kind of proposal.

PN306

That's where that comes from as well. Pre-empting that that's probably a question as well.

PN307

MR FERGUSON: Can I just check - and I'm playing catch-up again.

PN308

THE COMMISSIONER: Yes.

PN309

MR FERGUSON: Did all the parties understand that this applied outside of a situation where people were on call, as Ms Svensden has just said?

PN310

MR PEGG: I should just add to that summary from the employer perspective. One of the problems we were trying to solve was in the number of disputes and claims made around the operation of recall, people doing it to make a phone call, and whether there's a three hour minimum payment. That was one of the questions trying to be tidied up and clarified.

PN311

MR FERGUSON: No, no, I appreciate that, but did you think that this was confined to apply when someone was on call and then? No.

PN312

THE COMMISSIONER: Sorry, I mean that would probably need to be clear, if the consent position was to proceed. It doesn't apply to a person who is on-call. If you're on-call, again you're on-call. Is that how it works?

PN313

MS DABARERA: Commissioner, so if you're on-call, you're getting the on-call allowance, but if you're performing remote response duties - so, you're on-call and you get that call from another employee, then you get the payment within the remote response duties.

PN314

MR FERGUSON: It applies in both scenarios?

PN315

THE COMMISSIONER: Really? Right.

PN316

MS SVENSDEN: No. No, on-call provisions are covered for people who are paid to be on-call.

PN317

THE COMMISSIONER: On-call, yes.

PN318

MS SVENSDEN: Remote response - - -

PN319

THE COMMISSIONER: You're paying them an allowance for the right to be on-call.

PN320

MS SVENSDEN: A remote response actually applied to people who were randomly being called up.

PN321

THE COMMISSIONER: Yes.

PN322

MS SVENSDEN: Or not on-call.

PN323

THE COMMISSIONER: So, they're paid exclusively?

PN324

MS SVENSDEN: Yes.

PN325

MR FERGUSON: But that's not what it says.

PN326

MS SVENSDEN: But if, also - - -

PN327

MR FERGUSON: Well we could fix that. No, no, but I'm - - -

PN328

THE COMMISSIONER: I know that's not what it says.

PN329

MR FERGUSON: No, no I was just going to say, I wasn't being aggressive, was just trying to point out, this is where I thought people might have been confused.

PN330

MS SVENSDEN: It was also, sorry - it is also making an attempt to make clear that the person who is on call, is actually returning to work if they were doing three hours' work at home.

PN331

THE COMMISSIONER: Sorry, okay now I'm lost.

PN332

MS SVENSDEN: Well, it wasn't just the physical recall to work for on-call.

PN333

THE COMMISSIONER: Okay.

PN334

MS SVENSDEN: I think that's right.

PN335

MR ROBSON: I think we've probably had a mistake where we didn't set out the problem that this was trying to address at the start of this discussion, which I think would be a useful way to deal with every other clause. Because that allows people to understand the problem we're trying to solve. There's a few problems because there's multiple industries being covered by this clause.

PN336

There's a problem in the home care sector where there'd be like an AUS member who's a coordinator who might be the only one employed by the organisation. They're the person that handles the rostering, so a home care worker who's providing the service calls up in the middle of the night and says I'm sick, I can't come in tomorrow for my 6 am get-up shift. There's a situation where those coordinators I think, paid for that work. Employers look at the award and say well that's not time worked; it's not dealt with in on-call. There's no sort of formal system for dealing with that which is clearly a very common issue.

PN337

Then there's also the issue that's say outside of disability or home care, say where you've got a more experienced or more senior type of worker in say a youth home who's gone home for the day and the people staying overnight are less senior, less experienced workers. Something happens and that person needs advice. That's not covered by the recall and then the person is on the phone, they're talking to a less senior worker to provide their advice. They might be calling the department or some other organisation. But that's not covered by the current recall work provision because they're not returning to a workplace.

PN338

MS SVENSDEN: To the physical workplace.

PN339

MR ROBSON: To the physical workplace. Again, we're having employers tell us that's not actually work, it doesn't need to be paid. Like from our perspective, the easiest thing would just be to clarify that that is work; it should be paid at overtime rates and resolve it.

PN340

The aged care employers who are - this is based on one of their claims - I understood that's where we're coming from. So the purpose of this is to provide a regularised system for dealing with telephone attendances outside of ordinary hours.

PN341

THE COMMISSIONER: Yes.

PN342

MR ROBSON: We're trying to strike a balance here between those workers being available because we understand you can't just put on another level 5 of level 6 in the award to cover every hour of the day. But also, we do need some restrictions on how that work is performed late at night, so you don't have a situation that's quite common where a worker clocks-off. They do a lot of work that isn't formally recognised and then they come back to work at 9 o'clock the next day exhausted.

PN343

THE COMMISSIONER: Yes, all right, thanks. That's good.

PN344

MR FERGUSON: Certainly, I think it ties in with the next point and that might be a solution. Let's say - just say for a moment you just adopt a definition that said A, B, C and D were exhaustive and that they will work, right. It then takes you to the next issue, which is if an employee is required to perform remote response duties, right. Now, when you see required, the immediate alarm is required by whom.

PN345

Now I know in this sector there'll be employees who perceive that they're required to do it because the client needs it, and this might be picking up on what Ms Svensden said. People, with all the goodwill in the world, not maliciously, but they do extra work that the employer hasn't authorised that work. They're not told to be available.

PN346

THE COMMISSIONER: Yes, sure.

PN347

MR FERGUSON: People just call each other and that suddenly triggers all of these provisions. Employees doing work that's not been authorised, and effectively just sort of incurring additional costs to the employer and the obvious answer is that two should have some form of words that makes it clear that the employee has to be authorised by the employer to perform the direct response work.

PN348

That might drive some of those changes in practices, both from the employer and employees, or workforce's perspective in that you're going to have to be clear about who you're authorising, who you're not authorising. The employees will know that as well. It just seems that that might address some of the sorts of issues that we perceive. Because otherwise as a matter of practice, people will do extra work.

PN349

If you're looking at remotely monitoring, for example, it seemed to be triggered that if people just go and monitor things because they think they should, this clause would start to apply. I don't know if the unions would be open to some sort of amendment to two, to make it clear that it was only where the duties are authorised by the employer.

PN350

MR BULL: that means in the case of an emergency, two people rather than one get disturbed. Look, I think the idea appears to be picking apart what was an imperfect but quite practical agreement between the employers and the unions. I think - - -

PN351

THE COMMISSIONER: Yes, but it's just - can I just stop you there. The Bench will have to okay it.

PN352

MR BULL: I agree.

PN353

THE COMMISSIONER: Some of these things that have been pointed out are real issues, just in terms of how it even operates.

PN354

MR BULL: No, I'm not suggesting it's not.

PN355

THE COMMISSIONER: Even if the Bench says we agree with what you're trying to do, we still have to - - -

PN356

MR BULL: But this is a messy award. I won't be as robust as my colleague, but - - -

PN357

THE COMMISSIONER: It might well be that our mission as defined in the statute is to fix that.

PN358

MR BULL: But instead of sort of the sharp end of what is a complex evolving area of work, it's deregulated; it's got a bizarre funding model which is every-changing and so forth, and it was attempting to cope with this. Some of the concerns of my colleague I think are over-egging it. I don't think these people are going to be tickling up to the phone calls to get an extra 15 minutes.

PN359

MR FERGUSON: I'm not suggesting it's malicious.

PN360

MR BULL: No one wants to pick up a call - pick up the phone and ring a colleague and say I have no idea what I'm doing. It happens because there's a real reason for it to happen. The practicality, I think - they don't do it for trivial reasons and having this sort of formalistic approach where they need authorisation, okay, you can ring up the manager or whatever at 1 o'clock in the morning and then ring the person who deals with it.

PN361

THE COMMISSIONER: Look, I put it this way. Really what you wanted was a provision, picking up on what you said, where if an employer contacts an employee who is not on-call and not rostered on for any reason, they will be paid in accordance with roman numeral (ii). That's really what you wanted to fix.

PN362

MS SVENSDEN: No, because most of them are employee to employee. Not employer to employee. Also, that notionally would accidentally cover when I ring up to ask you to work the next shift, because that would be the employer contacting the employee when they weren't rostered on.

PN363

MR FERGUSON: There's a difficulty with the employee (indistinct).

PN364

MS SVENSDEN: And I know that's not what you intended, but in actual fact, the majority of these contacts are employee to employee. A more junior employee to a more senior employee, but not the employer to the employee or even the employee to the employer per se.

PN365

MR ROBSON: These are very lean organisations in many cases.

PN366

THE COMMISSIONER: Yes, I'm familiar with the model, yes.

PN367

MR FERGUSON: We are trying to be constructive with this; we don't want a (indistinct).

PN368

THE COMMISSIONER: You'll have to repeat what you said before because you were both talking at the same time.

PN369

MR FERGUSON: I think the difficulty is having a model that employees can just call each other at will without any authorisation from the employer and that then impacts on what is going to attract a payment, has some risks.

PN370

THE COMMISSIONER: But employers can fix that by directing them to not ring them.

PN371

MR FERGUSON: Yes, and then they do ring them in contravention of the direction and the other person.

PN372

THE COMMISSIONER: Well they've got remedies for that, haven't they?

PN373

MR FERGUSON: Yes, but they still then incur a further cost.

PN374

MS SVENSDEN: But you're asking the employee to wear that cost at the moment Brent, because you're actually saying it's not an authorised thing. I mean it depends on what you're calling an authorisation because up on the wall will be a form that says if you have a problem of this, this, this or any of those things, ring X person and they're not on call. But then they will say, I didn't direct you to do it, the work.

PN375

MR FERGUSON: That's what I was trying to come to. I think one way - the first way of trying to skin that was to say if people are on call, then that might carve off some of these problems, but that's not available.

PN376

The second one is, if the employer has authorised the employee to do this work - it doesn't have to be authorising it - it might be that well, part of your job is being available to take calls and then when it occurs, that's obviously been authorised, potentially.

PN377

I think it's taking any capacity for the employer to manage the doubt of it, can't strike a fair balance. It can't be that employees can just themselves nominate when somebody else should be receiving entitlements under the award, and that's effectively what it would be.

PN378

I said at the start, I'm no suggesting that people are doing this for a malicious reason. I suspect a lot of employees who do this work, might be doing it out of good will and wanting to make sure the client - the service functions and so forth, but there seems to be an obvious issue if the workforce just gets to pick all of those things with no capacity.

PN379

MR BULL: We're getting through what the concerns are because we didn't know.

PN380

MR FERGUSON: Yes.

PN381

MR BULL: I think we then need to deal - after we know the concerns, with whether it's legitimate for the AiG at this stage in the process to be raising them. Because one of the issues of this - - -

PN382

THE COMMISSIONER: Can I just - I read the transcript of the proceeding. The President made it abundantly clear that while you've reached the consent position, it's a matter for the Bench whether it will be agreed to or not. It's an award review process. It's not an inter-partes proceeding. There was a query raised about it, who AiG are representing, I saw in the transcript and I presume that they'll make the clear in the proceedings when they eventually occur.

PN383

But that's the end of that matter, Mr Bull.

PN384

MR BULL: No, I understand that, but I'm just saying it's about accepting this as a document which was agreed by certain parties.

PN385

THE COMMISSIONER: Yes, but I don't want to - I've been through that, right?

PN386

MR BULL: Yes, okay.

PN387

THE COMMISSIONER: The purpose - that's why I set out what the purpose of today was about at the start.

PN388

MR BULL: Well, we're hearing the concerns.

PN389

THE COMMISSIONER: Well, and see if it can be resolved to save us all, including the Full Bench their time and angst.

PN390

MR PEGG: Commissioner, if I may just to come back to the earlier point about whether the work is required by the employer?

PN391

THE COMMISSIONER: Sure, yes.

PN392

MR PEGG: Our understanding certainly would be that means duties that are required by the employer. There's similar wording in the sleep-over clause in relation to overtime performed during a sleep-over period.

PN393

THE COMMISSIONER: Yes.

PN394

MR PEGG: Where an employee is required to work overtime in that practice. The industry is the employer will have procedures around what constitutes starting work. It's not just sitting up watching TV with a client. It's the client actually needs certain things.

PN395

THE COMMISSIONER: Yes.

PN396

MR PEGG: There would be practical understandings, but it could be clarified by - required by the employer.

PN397

MR FERGUSON: It's similar in the overtime provisions I think, at least in the context of full time employment, from memory, whereas the overtime has to be authorised.

PN398

Because undoubtedly, it might be in this industry, goodwill employees doing extra work and then - because they perceive it to be required; it's an old argument that arises often. But it's not actually been work that's been authorised.

PN399

MR PEGG: I think that's a point where there's a fairly simple clarification that we probably would be willing to have a look at, because that's certainly what we would intend.

PN400

THE COMMISSIONER: All right.

PN401

MR FERGUSON: At any rate, that's sort of the way forward that we're floating. The next issue within that clause is that it's paid at the overtime rate for time worked, but it doesn't - it doesn't seem to me apparent that it would actually be overtime, or work that would otherwise attract the overtime rate. Bearing in mind that within this award, there are a range of flexibilities for working additional hours beyond what might be called ordinary hours in the simple use of the term, without attracting penalty rates.

PN402

For example, part time employees can work further hours and so forth without attracting overtime rates. It's not apparent why, if they do those hours at their home, you'd suddenly be getting overtime, but if you were doing them at work, you wouldn't be getting overtime. Which I don't know if anyone has thought about that.

PN403

THE COMMISSIONER: What's two mean? You get the prescribed overtime rate for that spread, but that spread is ordinary hours spread, isn't it? Presumably, there is no overtime rate between six and 10. Well, it might be between 6 pm and 10 pm, but from my recollection the SCHCDS spread was six till six.

PN404

MR PEGG: Commissioner, I think it's an award interpretation issue. The way we would see it is for a full time employee who has worked their rostered hours, that would be additional hours and it would be overtime as prescribed by the penalty rates.

PN405

THE COMMISSIONER: Yes.

PN406

MR PEGG: For a part time employee or a casual who haven't yet worked a 38 hour week or a 10 hour day, the prescribed overtime rate is ordinary.

PN407

THE COMMISSIONER: Okay.

PN408

MR PEGG: That's the way that this award works. The prescribed overtime rate in that situation would not be penalty rates, it would be ordinary rates.

PN409

MR ROBSON: Which takes us to the next point in that it doesn't make it clear that this is overtime. It says the overtime rate and maybe it's just a drafting issue. But it wouldn't be overtime. It may or may not depending on the specific scenario. The spread is six to eight.

PN410

THE COMMISSIONER: No. It's more about it would be paid at the overtime rate if applicable, having regard to how you would read it in conjunction with the other rostering provisions.

PN411

MR ROBSON: Yes, and depending on the specific factual scenario. The spread is six to eight.

PN412

THE COMMISSIONER: Yes, keep following all of this. This is really whether or not - so as I understand it from Mr Pegg, his understanding is that - well, the overtime rate is paid but subject to it being remote response work that's being done after the conclusion of an eight hour shift for a full timer.

PN413

MR ROBSON: I think the other point to add there is that while the position for overtime under this award is as AiG says it, that the part timers can accept additional hours and that they aren't overtime. That part timers aren't paid overtime until they've worked 10 hours in a day or 38 in a week. That's not the case when they're being recalled to work. I think it's really hard - sorry, and I apologise I think part of the problem here is we're talking about this clause a very long period of time after it was originally discussed.

PN414

The claim that's really settled, is we can't look at this as just 17.2(d), 17.2(e), 19.3 and 19.4 as separate variations because they are interrelated. We're got two competing claims that are being settled by this. The ASU, the HSU and United Voice's claim dealing with recall to work overtime to make what's been called remote response in this drafting payable as recall to work.

PN415

If you look at the current clause of recall to work overtime, it's very vague and doesn't actually deal with the situation for home care workers or disability workers in particular who don't have a normal place of work. You could be recalled to a client's house after you've left work for the day and then that wouldn't be paid at overtime rates, but if you were called up and recalled back to your employer's office, which I think to be frank, you might never ever have been to, except for your induction perhaps. Then you'd be paid at overtime rates.

PN416

Certainly, if you're in a situation where employees are being called late at night for advice or to do work, I think there's a lack of clarity about what that situation would be, and there's certainly no minimum engagement. And there was a problem where people have been working in the night.

PN417

If you look at the change to 19.4, which I think is a good place to start, the proposed change is so that a person who is recalled to work overtime after leaving their place of work to attend a premises where work is performed, would be paid for a minimum of two hours work at the appropriate rate for each time recalled. Then that clause applies.

PN418

MR FERGUSON: But isn't that the way forward? And I'm not - I'm just thinking this through. What I think would be the case, it's at the overtime rate, which I think the parties think means different things.

PN419

MR ROBSON: Yes.

PN420

MR FERGUSON: It's the appropriate rate under the award. I'm just putting that out there without thinking it through.

PN421

THE COMMISSIONER: That's what Mr Pegg is saying, in fact.

PN422

MR FERGUSON: I think that's right.

PN423

MR BULL: I think the addition of the words 'if applicable' might solve that problem, because full timers generally, because presumably they'll have rostered 38 hours, this will by definition be overtime. But it might not be overtime for a part time worker or casual.

PN424

THE COMMISSIONER: That's what Mr Pegg was saying; that's right.

PN425

MR BULL: If you put the words 'if applicable' that might - - -

PN426

THE COMMISSIONER: That's another way of doing it.

PN427

MR BULL: That's one way, but that's the minimum (indistinct).

PN428

THE COMMISSIONER: It's another way, but yes.

PN429

MR ROBSON: Sorry Commissioner, I think it might make sense for the unions just to step outside and have a discussion about what we think this clause means. No, I think it may also be useful for the employer parties to have this discussion because I think we're running up against the limits of memory. Unfortunately, my - - -

PN430

THE COMMISSIONER: I doesn't matter what your memory is, because you've got a set of words now. So, it means what it says.

PN431

MR ROBSON: Yes, we do have a set of words.

PN432

MS SVENSDEN: But we're really talking about what we were trying to fix, rather than - because the overtime stuff - Michael's got the overtime stuff. I mean the overtime stuff was relevant too because the on-call minimum recall was a significant overtime and part of this was limiting the impact of that for the - you know, what was a replacement shift person or something else. They didn't want to be paying three hour minimum overtime for every shift replacement they had to make in a day.

PN433

That was - look, you know, there were multiple things that were being dealt with at once and that's actually part of our - the intersectionality between these clauses. Michael's quite right, the intersectionality.

PN434

MR ROBSON: I just want to make sure that we're not thinking aloud while we're talking or we're saying things that we're not quite sure about. There's been obviously conversations between me and Leigh and conversations been Nat and Stephen. I just want to make sure we're all on the same page because we haven't actually talked about this.

PN435

THE COMMISSIONER: We're going to have a bit of a break soon so you can all cool your heals and have a good chat. But I think we've probably covered enough on remote response.

PN436

MR FERGUSON: There is more.

PN437

THE COMMISSIONER: What else have you got? This is the steak knives, is it? There's nothing else after this?

PN438

MR FERGUSON: No, no, so, I mean - it goes - this one we're trying to fix. In three, similar issues arise of course but then to say that it's for a minimum payment for one hour, which even if it's a one minute phone call, but let's say that's part of the deal. But it seems to be that you get a payment for an hour.

PN439

There should be probably some clarity in the wording if it's not sufficiently clear that you do multiple things during the course of that time. Presumably you can add those up to make the hour. Each one doesn't trigger an hour payment. I think we can attend to that easily enough in the drafting.

PN440

Then there's the interaction with four, which I mean I don't want to be critical of four, because it's obviously an attempt to make it workable in practical terms in that you've got a - the employee has to fill out a time sheet. I think the only way you'd get a clause like that is if it's essential to the practical operation of the rest of the clause. But two things that probably obviously fly from that, is one, that there might be organisations that when faced with this, won't simply rely on timesheets; they might have other mechanisms for people logging on/logging off their time. Again, we could fix that if people are open to that.

PN441

Then probably, if you're going to put a clause like that, it should be that the obligation to pay is connected to it, if you will, so that the obligation - the amount you have to pay wouldn't be more than what was recorded in that way. If an employee does what they're supposed to, pursuant to the clause and complies with whatever time recording mechanism, that's the most the employer would have to pay. The employee can't say well, I didn't write it, but I actually did an extra two hours and I didn't put a form in. Because the employer can't obviously verify anything that's happening independently, which is a bigger issue.

PN442

I think those sorts of things - I wouldn't have thought we were necessarily at logger heads. They go to practicality issues. Because just looking at initially, like well how do people work out how long employees were working.

PN443

THE COMMISSIONER: Yes, for example if you rang someone three times for a three minute duration - - -

PN444

MR FERGUSON: That's not three hours.

PN445

THE COMMISSIONER: Yes, but it might be under this wording.

PN446

MS SVENSDEN: If it was at 10 pm, 1 am and 6 am, yes it would be for three different calls. If it was within - - -

PN447

THE COMMISSIONER: Would it be three hours paid?

PN448

MS SVENSDEN: That's actually a problem. I mean, that was one of the things that we were seeking to address in terms of the remote - - -

PN449

THE COMMISSIONER: No, let's just answer the question. I know what you're tyring to address, but is it three hours pay? Is that what the clause says?

PN450

MS SVENSDEN: It may well be.

PN451

THE COMMISSIONER: Because I think it is; that's what it means.

PN452

MS SVENSDEN: Yes. I mean, I can't actually - - -

PN453

THE COMMISSIONER: Is that the intent?

PN454

MR PEGG: No, the intent is work up to an hour and then once the total work exceeds an hour, then continue to pay.

PN455

THE COMMISSIONER: All right, because that's not what this says.

PN456

MR PEGG: So three, ten minute phone calls would be within a one hour minimum payment.

PN457

THE COMMISSIONER: That's not what this says.

PN458

MR PEGG: Again, there's similar provision elsewhere in the award and that's how it works.

PN459

MS SVENSDEN: Yes.

PN460

THE COMMISSIONER: Okay.

PN461

MS SVENSDEN: It's not standard.

PN462

MR FERGUSON: Yes, I think we would have a problem with three minutes work for three hours pay, if that's what's intended. If that's what's intended.

PN463

THE COMMISSIONER: That' nine minutes work in my little scenario.

PN464

MR FERGUSON: Yes sorry, that's right.

PN465

MR PEGG: Because the logic of that would be you take a series of phone calls and you might rack up 10 minutes and that's just not what's intended.

PN466

THE COMMISSIONER: Yes, okay. All right.

PN467

MS SVENSDEN: But the logic of being disturbed three times in the middle of the night. You know, there's two sides to that kind of concept of minimum disturbance. I would like to be clear that it would be a rare phone call that would be the actual minute or three minutes and not require additional work.

PN468

THE COMMISSIONER: Yes, sure.

PN469

MS SVENSDEN: That would be very very unusual.

PN470

THE COMMISSIONER: Yes, all right. Look, I mean what sits over the top of all of this at the end of the day, if you reach agreement; you don't reach agreement. In the end is the test about, as I said, section 134 and if it's put - this is the way it will work, you ring someone three times for three minutes and they'll be paid for three hours at the overtime rate, well - - -

PN471

MS SVENSDEN: No.

PN472

THE COMMISSIONER: Because you know, one might say I don't know. The Bench will speak with one voice hopefully. The view is going to be is that fair and relevant or not.

PN473

MS SVENSDEN: The likelihood is that if you're ringing up disturbing somebody for some reason that there would be multiple phone calls. Even if it's not directly just with me, it might be with other people and then back to me, ultimately, but that's not intended to be separate calls.

PN474

It's never been done that way and can I just say, that while the wording is not necessarily covering each of the situations, it's not unusual wording and recall to work and on-call work and whether you've been recalled three times in an hour or whatever it is, is not - like the sort of information that we're talking about now, is that's just the one hour call. It's not - and it's very similar wording to other awards and it's not been an issue before in the health industry.

PN475

MR FERGUSON: But yes, they're not similar wording outside of that industry.

PN476

MS SVENSDEN: No, no.

PN477

MR FERGUSON: But it is what it is. Look, I - - -

PN478

MS SVENSDEN: It mightn't be outside the health industry, but I mean this is actually an issue in the sense that health and welfare industries are used to being called after hours. It doesn't happen very often in other industries.

PN479

MR FERGUSON: I'm not trying to criticise the wording; like I get it. A lot of work went in and it was sort of written by trying to appease everyone. It's just when you look at it coldly, all of these issues sort of rise to the surface.

PN480

THE COMMISSIONER: All right, is there any other issues you want to raise about it?

PN481

MR FERGUSON: Not on remote.

PN482

THE COMMISSIONER: All right, is there anyone else in Melbourne wants to say anything about remote response before we move on? Anyone interstate want to say anything about remote response before we move on?

PN483

MR SCOTT: Commissioner, it's Kyle here from Newcastle.

PN484

THE COMMISSIONER: Hello.

PN485

MR SCOTT: I'm just curious - I can't recall because it was a couple of years ago, but are the payments under this provision intended to be an allowance or is it intended to be treated as time worked and paid as such. Because I think that was an issue raised in relation to the travel time clause. I think it's also - kind of - it arises here as to whether it's an allowance or now?

PN486

THE COMMISSIONER: Well, it doesn't look like an allowance to me. It looks like - - -

PN487

MR PEGG: Our understanding is that it's time worked. It's simply - it's performance of work and it's time worked.

PN488

THE COMMISSIONER: Did you hear that?

PN489

MR SCOTT: Yes, thank you.

PN490

THE COMMISSIONER: That was Mr Pegg saying that's his understanding that it's time worked.

PN491

MR SCOTT: Thank you.

PN492

THE COMMISSIONER: Thanks. Anyone else interstate on remote response?

PN493

MS SHAW: I guess my biggest concern is if it's treated as home work, how would it interact with a 10 hour rate needed for breaks between shifts? Is another concern, yes.

PN494

THE COMMISSIONER: Right, yes there is.

PN495

MR PEGG: That was part of the discussion that we had two years ago, was how this interacts with breaks between shift.

PN496

MR ROBSON: I'd refer you to 19.3(c) in the draft determination.

PN497

MR PEGG: That's it.

PN498

MS SHAW: Yes, sure.

PN499

MR FERGUSON: 19.3 is a ten hour break, is it?

PN500

MR ROBSON: Yes, in the exposure draft.

PN501

THE COMMISSIONER: Next.

PN502

MR ROBSON: Can we move on to client cancellation? It's easy.

PN503

THE COMMISSIONER: Easy?

PN504

MR FERGUSON: I must say I confess we looked at this clause I confess to some difficulty trying to follow how it all works. Certainly, some of those we were dealing with did note that it was somewhat complex, but I don't have a solution to that, so I'm not wanting to derail it on that basis. But looking more specifically at the issue of subclause 1, it obviously provides a capacity to direct an employee to perform other work at the same time. The words that are troubling us is all about loss of pay.

PN505

I'm not quite sure what circumstances someone would be losing pay. I can hazard a guess, but the clause could operate without those words, unless there was some apparent purpose to it.

PN506

MS SVENSDEN: No. The reason it says without loss of pay is that a penalty might apply to the work time that they were initially rostered for and the replacement time might not.

PN507

MR FERGUSON: No, but that doesn't deal with replacement.

PN508

MS SVENSDEN: No it doesn't. But it was also about the actual time. I might be directed to do only a half hour shift when I was actually working for three hours.

PN509

THE COMMISSIONER: Sorry, just run that by me again please.

PN510

MS SVENSDEN: Your replacement shift might be less than the shift you were working.

PN511

THE COMMISSIONER: I see, you'll get the same amount of money for what you were called in to do - rostered to do.

PN512

MS SVENSDEN: Yes. You might - what you're actually directed to do might be for a lesser time. The replacement work might be for a lesser time period, but you won't lose the time you were rostered for, is what - - -

PN513

THE COMMISSIONER: Yes. If the client is the employer, can find enough work that matches the time you were called in for, that's that.

PN514

MS SVENSDEN: Yes, that's right.

PN515

THE COMMISSIONER: Okay.

PN516

MR FERGUSON: I must have a think about that and how it interacts with the rest of this quite long clause. And it's only amounts that would be payable under the award that you're talking about?

PN517

MS SVENSDEN: Sorry?

PN518

MR FERGUSON: It's only award rates of pay that would be relevant to that assessment?

PN519

MR BULL: What other rate applies to the award?

PN520

MR FERGUSON: Only applying to payments, if you're paying an over-award payment. You wouldn't have to keep paying those.

PN521

MS SVENSDEN: What over-award payments?

PN522

MR FERGUSON: So there are some people who get over-award payments.

PN523

MR BULL: The award deals with the payments under the award.

PN524

MS SVENSDEN: Not unless they're on an agreement.

PN525

MR FERGUSON: No, that's right. Well, what about if there are other amounts - and I'll just look, again - if you were say doing other work at a different location that meant you didn't have to travel and so forth. Would you still be able to allocate that sort of work? Or would you not be able to allocate under this clause?

PN526

MR BULL: It says without loss of pay. If they were going to be paid a certain amount which includes travel time, then they don't lose that pay. That seems fairly clear.

PN527

MR FERGUSON: This clause isn't a compulsion to pay anything, is it?

PN528

MR BULL: Well, it's a compulsion to pay what they would have been paid but for the cancellation, where they're directed to perform other work.

PN529

MR FERGUSON: I read it as only a clause about when you can direct someone to do something else. Not about having to make up the pay or anything like that.

PN530

MS LEIBHABER: It's addressing a common problem where clients will cancel at the last minute and the person is rostered on for a shift. So the employer will often get them to like sometimes work in a residential home or facility but will sometimes do administrative work in an office.

PN531

MR PEGG: Or not at all.

PN532

MS LEIBHABER: Yes, but the claim is that they shouldn't lose pay because the client cancels the shift at the last minute.

PN533

THE COMMISSIONER: I think where you're going is, what's the obligation and how this intersects with rostering and you've rostered them to come in.

PN534

MR FERGUSON: Is there a different amount, depending on the nature of the work that they perform, are there different amounts under the award that would attach to that work? Be it work in a different classification?

PN535

MS SVENSDEN: Yes.

PN536

MR FERGUSON: That could - yes, or say if the new travel time provisions come in, do you have to make up what the travel time would be. All of that aside, I didn't understand the first roman numeral was necessarily requiring any make-up of pay. Which is why I wasn't sure why those words were there. I thought it was just that you had to direct them to do the same sort of time.

PN537

It's written as a positive. It purportedly lets an employer do something that they already can do anyway, which is direct them to do other work. Is it intended that they're actually now saying well, you can't direct them to do other work that you have available for them, unless you make up the pay that they were going to get? Because ordinarily, you'd think that the employer can just say actually, you were going to do this client, but now we'd like you to serve this client.

PN538

If some different pay attaches to that, well so be it. But that's normally within the employer's prerogative in any event.

PN539

MS SVENSDEN: They may be directed to perform other work without loss of pay.

PN540

MR FERGUSON: But does that mean - - -

PN541

MS SVENSDEN: I'm not quite sure what they're - I mean it doesn't - I don't understand what your confusion about those words is?

PN542

MR BULL: The phrase 'at the same time' may not assist in meaning.

PN543

MR FERGUSON: No.

PN544

MR BULL: But I understand that it's directed to - if they were going to work three hours and that included half an hour travelling time, even if they were directed to come into the office and do administrative work for two hours, they would have got what they would have got, had they worked the rostered work.

PN545

THE COMMISSIONER: What you mean is, they may be directed to perform other work for a lesser or equal time to that they were rostered, without loss of pay.

PN546

MR BULL: Well presumably, if they actually come in and do more work, they'll get paid for the hours they work, and you have to make it up. But it didn't even occur to me that there was an intention that you had to make it up.

PN547

MS SVENSDEN: Well, I'm a little bit confused about the confusion about this clause, seeing it's taken directly out of a number of awards and it's actually mirrored in a number of - I mean it's a fairly standard clause directed - - -

PN548

THE COMMISSIONER: What else is it in?

PN549

MS SVENSDEN: I don't know. They're directed to perform other work at the same time without loss of pay. That's actually a fairly standard clause.

PN550

MR FERGUSON: I'll confess, I don't know what award it's in.

PN551

THE COMMISSIONER: We can establish that. Anyway.

PN552

MR FERGUSON: But anyway, maybe this has been helpful and I'll see what they make of that clause.

PN553

MS SVENSDEN: It's pretty much what was already there.

PN554

MS DABARERA: Yes.

PN555

MR FERGUSON: I can think about that.

PN556

MS SVENSDEN: I can't recall the exact wording, but I think it's actually almost exactly what was already there.

PN557

THE COMMISSIONER: No, there was no loss of pay.

PN558

MS SVENSDEN: There was not the loss of pay.

PN559

THE COMMISSIONER: It says - - -

PN560

MR FERGUSON: No, I think it's been helpful for me to just explain what it is.

PN561

THE COMMISSIONER: I think what you could is look at the language that was there which is "entitled to receive payment for their minimum specified hours on that day". That's really what you're saying without loss of pay, kind of, isn't it?

PN562

MS SVENSDEN: No, because the minimum specified hours of most of the employees in this industry are far below what they actually work and are rostered to work. They're actually - no - significant number of people were employed on a part time basis for say four or eight hours a week and they regularly work 32.

PN563

THE COMMISSIONER: Yes, okay.

PN564

MR FERGUSON: But specified by what?

PN565

THE COMMISSIONER: Minimum specified hours is different to what you were rostered to work. Then, really what you're saying is they can be directed to perform other work provided, paid the same amount as they would have been.

PN566

MS SVENSDEN: At least, yes.

PN567

MS DABARERA: Yes, yes.

PN568

THE COMMISSIONER: So, that they're rostered work. That's what it means.

PN569

MR FERGUSON: Let me have a think about that then, because it just - - -

PN570

THE COMMISSIONER: Anything else?

PN571

MR FERGUSON: Nothing, and we'll select on that one.

PN572

THE COMMISSIONER: Anyone else in Melbourne want to say anything about client cancellation? Anyone interstate want to say anything about client cancellation?

PN573

MS SHAW: No, thank you.

PN574

THE COMMISSIONER: Sleep over.

PN575

MR FERGUSON: Just some concerns again, it will be helpful to know what the parties are trying to achieve. If we go to (d), the current award has some requirements about what people have to be provided with. It's a separate room with a bed and use of private facilities and free board and lodging. Now there is the separate room with a bed and other suitable sleeping requirements. Then there's some examples, but the first issue is I think, it introduces some sort of ambiguity as to what are suitable or what are these other suitable sleeping requirements, where at the moment it's quite clear.

PN576

There is then this new requirement - - -

PN577

THE COMMISSIONER: I don't know if it's clear now. It says appropriate facilities.

PN578

MR FERGUSON: Well yes. At least a sleeping room with a bed was clearer than sleeping - I'm not sure what other suitable requirements.

PN579

MS SVENSDEN: Sleeping room with a bed is not always provided Brent.

PN580

MR FERGUSON: No, no and that would be an award compliance issue undoubtedly. But at least a sleeping room with a bed is quite clear I would have thought, compared to other suitable sleeping - I don't know what other suitable sleeping requirements are.

PN581

MR BULL: Well, they list them.

PN582

MR FERGUSON: Such as, and is that all you - - -

PN583

MR BULL: Well, they're pretty obvious. You know, it's not rocket science. It's a clean bed. The linen can't be months old and soiled, you know. Light and clean - - -

PN584

MR ROBSON: Or, if not provided at all.

PN585

THE COMMISSIONER: Well, you've got a bed in one.

PN586

MR ROBSON: The bed It doesn't necessarily include linen, Commissioner.

PN587

THE COMMISSIONER: Yes, yes. The use that we're talking about is other suitable sleeping requirements. If it just said light and clean linen - what's light linen?

PN588

MS SVENSDEN: A light, a lamp.

PN589

MR BULL: It's a light, you know, say - - -

PN590

THE COMMISSIONER: So, in a bed - it's got heavy linen.

PN591

MR ROBSON: No, it's a light.

PN592

MR BULL: So you can read your Harry Potter before you doze off, you know.

PN593

MR ROBSON: I think that probably read a light, clean linen.

PN594

MR BULL: Yes, we're not demanding Swiss chocolates or a backyard pool and a brand of Belgian cocoa.

PN595

MS SVENSDEN: People are given sleeping beds in corridors, beside - look the problem is that it's actually pretty difficult to understand when you don't get what happens in the industry, but people will literally be put up in corridors as appropriate and sleeping places next to really stuff like - noisy equipment out the back next to the freezer. The photocopy room in the god knows what, and there is actually no ability to sleep.

PN596

THE COMMISSIONER: We'll have to say electric light. We don't want any kerosene lamps.

PN597

MS SVENSDEN: We sort of - yes, you do. That's actually an issue, yes.

PN598

THE COMMISSIONER: Kerosene lamps?

PN599

MS SVENSDEN: Yes, Commissioner.

PN600

MR ROBSON: There actually are members working in Aboriginal facilities in WA that are put in the shearing shed.

PN601

THE COMMISSIONER: All right.

PN602

MS SVENSDEN: It isn't - it covers a multitude of workplaces that are not in any way shape or form have any concept of a room to sleep in when you're doing a sleep-over, where people are literally are being put up in corridors.

PN603

THE COMMISSIONER: All right, in all seriousness, I think other suitable sleeping requirements should go. You should just say what it is, and if it is - and again, in all seriousness I hear what you say. If it is a lamp, and electric lamp and clean linen, it should just say that.

PN604

MS SVENSDEN: Okay.

PN605

THE COMMISSIONER: That fixes that problem.

PN606

MR FERGUSON: Then when you get to secure - appropriate to the type of service, I'm sure there are issues. But I query whether awards should start regulating decisions about how much security should be in particular operations. It seems probably outside the scope of what should be being dealt with. It raises the same sort of issue as, well what is appropriate security.

PN607

MS LEIBHABER: It's actually a big OH&S issue for our members, especially in mental health.

PN608

MR FERGUSON: I think that's the thing - it's going to be dealt with under more sophisticated regulatory regimes, being the workplace health and safety system. Obviously, you've got to ensure people's health and safety at work. I think it's a bit crude to try and solve that. I'm not saying that you're not trying to address an issue, it's just trying to address it through a few words in an award, is an issue, and then whether the Commission is the best arbiter for that.

PN609

THE COMMISSIONER: Right, no that's a reasonable point. So, unions, have a think about that. Is there anything else with this?

PN610

MR FERGUSON: It's just (h) then, where we raise a number of matters. Presumably, it's just for the purposes of facilitating disputes about things and it's disputes about the premises, the clients, it seems to be about the employees as well that are doing this work. Then more appropriately, the other matters in the clause.

PN611

It may be that there's another way to skin that if there are particular issues they're wanting to be addressed. But opening the door to be a dispute, all sorts of issues that might properly be an issue for the management.

PN612

MS SVENSDEN: No, they're not.

PN613

MR FERGUSON: Well, as I'm saying to you, I'm not - if there are issues, I'm open to other ways to try and address the specific concerns.

PN614

MR ROBSON: They key issue here is there are types of clients or premises or there are situations that are more appropriate for a stand-up shift.

PN615

MR FERGUSON: Yes.

PN616

MR ROBSON: If you've got clients with particularly acute care needs. If you have clients who have particular behavioural issues. If you have clients or even a situation with a particular type of employee, someone may actually not be appropriate to be working a sleep-over in a certain location based on qualifications and experience.

PN617

The purpose of OH is to facilitate a dispute over whether they should be rostered as a stand-up shift or a sleep-over.

PN618

MS SVENSDEN: I would like - the problem, one of the problems with this is it covers too many different situations, right? So, it covers everything from a facility that has a potential room to sleeping over on a 24 hour - when you're on a 24 hour care shift in a person's home as an individual. It covers working with clients that have mental disabilities who have intellectual disabilities and may be violent, so people actually have to be able to lock themselves in a room.

PN619

It covers a multitude of - too many, sins in one clause effectively in the types of areas that you're talking about. It covers people sleeping over in youth accommodation. It covers people sleeping over in intellectual disability accommodation. Like, it is really vast, the kind of clients that you're trying to deal with and you've also got that 24 hour care clause that this applies to where people are working in an individual's home.

PN620

Therein lies a significant problem with this clause per se, because it actually does cover significant numbers of issues and areas and locations that people could be working in. Maybe, you know, we chuck the baby and the bath water - I mean, our preference would be that sleep-over clauses don't exist. They're an anachronistic response to what was residential care here in Victoria and it shouldn't actually exist anywhere. But, you know.

PN621

MR FERGUSON: What the intent is, is this. There needs to be a mechanism for facilitating disputes about whether it's appropriate to use a sleep-over in particular circumstances.

PN622

MS SVENSDEN: No, it's not a mechanism for facilitating disputes, because quite frankly, they're not in our best interest. But it is a mechanism for attempting to actually provide reasonable accommodation for someone who is required to sleep-over on either a group home or an individual client premises. The reality is that people are currently sleeping over in conditions that you would not sleep-over in, if you were on a hiking trip.

PN623

THE COMMISSIONER: But can - isn't - the question is whether that clause, for me - this is the only I've got with the clause.

PN624

MS SVENSDEN: It's not a good clause - I'm not saying it is.

PN625

THE COMMISSIONER: I just don't know if you need it. The dispute res clause which is the stock standard of course, is that if there's a dispute about a matter under this award. Now, anything - all of the things that you've raised I would have thought would be capable - not the things that are in (h), but the things that you've raised, are all capable of being dealt with as disputes about the award, aren't they? You'd say - you'd bring a dispute that says - I say, I've got a dispute that I'm get a separate room with a bed. Then the employer says oh well, no it's - yes, it is a separate room. I know it's kind of like in the passage way and the Commission resolve the dispute of whether it is actually a separate room within the meaning of the award.

PN626

MS SVENSDEN: The award doesn't define what suitable sleeping accommodation was Commissioner, so therefore I've actually had disputes about exactly that issue.

PN627

THE COMMISSIONER: But that's my point; that's my point.

PN628

MS SVENSDEN: And what actually happens because the award doesn't define what is suitable accommodation for sleeping over, having the fridge and the freezer and the photocopies and the fax machine and all of those things, i.e. the office, and the kitchen in your sleeping accommodation was actually okay.

PN629

MR ROBSON: I think the purpose of (h) is - I think it's - I understand your point Commissioner, but we've got a problem with this award that, so many of its provisions are so different from what's normal, that you do need to spell things out in a little bit more detail about what is a sleep-over shift, why it might be rostered and why there might be an alternative arrangement under the award which would be a stand-up paid shift.

PN630

I think that's the purpose of it, that consideration of a sleep-over shift does include consideration by the clients, the criteria where it's in.

PN631

THE COMMISSIONER: Again, this is a safety net provision, so you guys just need to have a think about whether not - - -

PN632

MS SVENSDEN: In this sector it's almost the only thing. It's not - sorry, but you know.

PN633

THE COMMISSIONER: What? You don't know what you were going to say?

PN634

MS SVENSDEN: Yes, I do.

PN635

THE COMMISSIONER: The right answer. You've got to have regard to whether or not the Bench is going to say, I think it's a sensible thing to have the specific references to disputes about this particular provision when generally, the mechanism in the safety net is there's a dispute resolution mechanism that deals with disputes, any dispute about a matter arising under the award.

PN636

MS SVENSDEN: I agree with you generally. These are not provisions that we have sought to - in other awards that we have to detail out in quite the same way. But, the problem with the sector is there are a lot of people that are very small employers and I think the employer associations would agree with this, that have no access, not limited access, to HR, but none unless they go to their employer association.

PN637

Therefore, it is my experience in working with this award and/or any agreements we have in this sector, is that we spell out things that we don't spell out in more sophisticated industries. We do, because there's actually very limited agreements in the sector as well. The award is the almost only thing that exists.

PN638

For some people it is their only port of call, because they're not even members of employer associations et‑al, so they're not getting advice from anyone else either. It creates without - and the initiating awards are appalling because they actually weren't - most of them come out of Victoria and they weren't changed since 1992.

PN639

THE COMMISSIONER: Got to stop sledging Victorian legislation.

PN640

MS SVENSDEN: I know, but we - no, because we moved to agreements, right? So we didn't change the award because we had agreements.

PN641

THE COMMISSIONER: Yes.

PN642

MS SVENSDEN: Not trying to sledge us really that badly, but that's the truth in terms of that stuff. These awards are really - hadn't dealt with the reality of the sector for 20 years.

PN643

THE COMMISSIONER: All right, I hear what you say. You've heard what I've said. Is there any more to be said on the sleep-over.

PN644

MR FERGUSON: No, no, I think it's been useful to hear what they're trying to address - for us to think about.

PN645

THE COMMISSIONER: Anyone else interstate want to say anything about sleep-overs?

PN646

MS SHAW: No thank you, Commissioner.

PN647

THE COMMISSIONER: All right. Thank for that. What I propose to do is break for an hour. If anyone's got any time frames around their availability today, they should tell me now.

PN648

MR BULL: I've got to get on an aeroplane, so we need to leave here about 3.30.

PN649

THE COMMISSIONER: 3.30?

PN650

MR BULL: That's Natalie and myself.

PN651

MS DABARERA: Yes, 4.45 flight.

PN652

MR ROBSON: Yes, I'm on your flight.

PN653

THE COMMISSIONER: Any time constraints on you?

PN654

MR FERGUSON: I've got flexible flights.

PN655

THE COMMISSIONER: Well 3.30 sort of actually suits me. That's probably about the time. I propose this - unless anyone's got any other plans, that we break for an hour which will be lunch as well as your combined chit-chat time, where you can get into whatever particular huddles and caucuses you want to.

PN656

Then we'll come back at 1.30 and you can tell me whether you want to have an off-the-record discussion or an on-the-record discussion. Happy to entertain off-the-record discussions for one purpose and that is people want to flat without prejudice ideas and just don't want to be recorded. I appreciate that in the spirit of negotiation. Then we'll see where we go from there.

PN657

Or, if you've got any other timetable. It might be that you say look, we can probably go so far. I mean you might try and just deal - we might try and deal with the two - I mean, to be frank, the last two clauses I think are the easier of the lower hanging fruit, as they say. It's the other first two we discussed that are more difficult.

PN658

My suggestion would be to focus on those two difficult ones and I think particularly for AiG, just picking up the dance card very late, that we'd probably be looking to you to see if you can put some words down. Not that you'll be hung by them but something that you can - - -

PN659

MS SVENSDEN: No, we'll do some thinking about it.

PN660

THE COMMISSIONER: Say how about that; how about this. Let's just see where we're at at 1.30.

PN661

MS DABARERA: Commissioner, can the videolink be left open over the lunch break so we can continue to - - -

PN662

THE COMMISSIONER: Of course, no problem, yes.

PN663

MR BULL: One of the issues - we still haven't - my understanding is that we've got the period of the substantive remaining claims which are going to take place on the 11th and 12th April. Everyone who has remaining claims is generating their evidence, it's going to be filed. The expectation is that a hearing will take place before a Full Bench. Those claims will either get somewhere or not get somewhere; others matter may arise.

PN664

The expectation I thought with this report is that it would basically be in front of the Full Bench as an agreed document. Not necessarily - we can't direct a Full Bench to do its statutory duty, but it would then feed into - - -

PN665

THE COMMISSIONER: That's a revelation Mr Bull. I'm glad you've got your head around that.

PN666

MR BULL: No, but it would then feed into the process of the final review of this award, which effectively is taking place in April. As is the custom of this Commission, there'd be provisional views produced and further moments for comment. Frankly, a lot of the views expressed by the AiG would be able to be accommodated within the normal sort of provisional comment sort of process that the Commission does when it reviews these - - -

PN667

THE COMMISSIONER: Sure, but you're going back to process; I'm just - - -

PN668

MR BULL: Well, process is important because it's coming to a conclusion.

PN669

THE COMMISSIONER: But you had a discussion with the President about process and I've been asked in the way that Presidents ask you to do things in this place, to have a conference and so I duly do so, and that's what I'm doing.

PN670

MR BULL: Okay.

PN671

THE COMMISSIONER: And it was quite clear in the transcript for me, at least, what the purpose of today was. I set that out at the outset of the proceedings. That's the second time I've said it and I don't want to say it a third.

PN672

I'll see you at 1.30.

LUNCHEON ADJOURNMENT [12.36 PM]

RESUMED [2.31 PM]

PN673

MR FERGUSON: - - -the extent to which there's potentially scope for a resolution. We didn't get as far as working out what that resolution is between the respectively parties. I think we're - everyone is at different stages - I might be confused about this, but I think the employers should go away and have some discussions.

PN674

THE COMMISSIONER: Yes.

PN675

MR FERGUSON: Then a position should be put forward to the unions if possible, in light of those discussions.

PN676

THE COMMISSIONER: All right. Which discussions are we referring to? Discussions between you and the other employer organisations?

PN677

MR FERGUSON: Between us and the other employer groups.

PN678

THE COMMISSIONER: All right, sure.

PN679

MR FERGUSON: I think there's a concern about time frames from the union's perspective and that is obviously a product of the fact that some of their issues might be interconnected with substantive claims they've made and preparing their material for. They're worried about whether that timetable needs to slip in order for this to occur?

PN680

THE COMMISSIONER: What's the next cut-off point, then?

PN681

MS SVENSDEN: File on Friday next week.

PN682

MR BULL: Well, we're filing the evidence on 8 February. What we're proposing is that we need - look, if there's just technical issues, we'd like a list of them, and if we can, we'll agree to things. Then, it's not fatal to the agreement that there can be some technical matters that are unresolved.

PN683

THE COMMISSIONER: Sure, sure.

PN684

MR BULL: We'd like that list so we can at least facilitate agreement where there can be agreement. But if it's not a case that parties that have previously agreed to things and want to walk away from it, we also need to know that.

PN685

THE COMMISSIONER: Yes, sure.

PN686

MR BULL: Because it's not clear what exactly the AiG wants. They have concerns that - you know, how big are they, are they going to push them? There's a hearing date; we have to file evidence on the basis of claims that we're dealing with and frankly, if it's be reopened then we're going to have reagitate dead claims. We don't want to file our evidence because it will need to be redone.

PN687

One of the issues, I perceive that you're sticking fairly strictly to the brief the President's sent you. Should we get a mention of this matter before the President to deal with the timetabling issues of the hearing; I don't know?

PN688

MS SVENSDEN: No, because - sorry, I guess Commissioner, we've been fairly clear about technical and drafting issues that we're prepared to have conversations at; substance is a different question. We've given the employer some examples of what we mean about that, or at least one. If that is compromised in terms of the consent position that we've actually previously agreed to and put up as part of the report, then it has implications for the substantive matters that we all agreed to drop, which is part of the consent agreement.

PN689

That's, I guess, our principal timing concern because they intersect with stuff that we are definitely contesting and are listed to contest in April. I'm particularly not clear what impact that's going to have, but my sense is that we would need to reconfigure our case quite dramatically because there are matter that we've agreed to drop that intersect with the stuff that we have actually agreed are still substantive issues.

PN690

THE COMMISSIONER: Is it possible that you proceed on a basis - we'll talk about the time frame for you providing the drafts and you guys responding and so on in a minute? But can we proceed on this basis that we're optimistic that that will either resolve - it may well resolve one of two ways. One, you guys accommodate some changes to your consent draft with the group of employers, that's scenario one, in which case, nothing changes. You'd still be filing on the 8th in terms of your substantive variations which you don't have consent to and the employer is doing the same.

PN691

The other scenario then is that - or that that's not successful or there's a cocktail where - which is more likely, which is you'd make some changes - you're still not on board with that, still opposed, in which case again, there's probably no - well, then presumably the AiG is turning up and opposing the position. The question is whether that changes your - that will change the scope of the arbitration, presumably.

PN692

MR FERGUSON: Well, we haven't got the material, but it conceivably could change the scope of the arbitration.

PN693

THE COMMISSIONER: Then, do we just proceed on the basis for the moment that we're optimistic that that won't be an issue and then you obviously reserve your rights that if the consent position blows up, well then there'll have to be a reconfiguration at that point. Is that a reasonable basis to proceed?

PN694

MR BULL: If we have - I suppose we do need some directions or discipline about when we know what the technical matters are which we might agree with.

PN695

THE COMMISSIONER: For sure.

PN696

MR BULL: The problem is we do have, is it's next week, so.

PN697

THE COMMISSIONER: Well, we'll come to that, yes. Well, no, no, but - - -

PN698

MR BULL: We're proceeding optimistically in the hope that everything's going - - -

PN699

THE COMMISSIONER: Yes, let's - but this would be on the - you may not resolve it by next week, but you'd file as if it will be resolved. If it's not resolved, well then directions have to be revisited and you may have to file additional material, or in fact you will have to file additional material if the consent position - - -

PN700

MR FERGUSON: Is it even possible - and what day is it next week you have to file?

PN701

MR BULL: Friday.

PN702

MR FERGUSON: Is it possible that you'd have a clearer picture as to whether there's continued - well narrow - explore its process. Ours is just a slight slippage of the timetable (indistinct).

PN703

It's a much bigger issue if this becomes contested as well, then from everyone's perspective as well, there's going to be - - -

PN704

THE COMMISSIONER: Sure, yes.

PN705

MR FERGUSON: Matters that probably need to be considered at the same time, to some degree, from what parties have said today.

PN706

THE COMMISSIONER: What are you suggesting?

PN707

MR FERGUSON: Well, I think that we should try and pull something together as quickly as possible. Early next week I'd say, if we could do that. I do suggest we might need the further assistance of the Commission.

PN708

THE COMMISSIONER: Yes.

PN709

MR FERGUSON: (Indistinct) Because it might - I get the impression that there's a view that there's scope to try and kick this together, but people might have different perceptions. But until we pull something together and put something specific or outstanding, there's probably going to be a hard time assessing that.

PN710

My advice would be that perhaps the employers put something to the unions on a without prejudice basis sort of in the first half of next week, and maybe at or around the same time we come before the Commission again to see where we land on that, to see if we've got to keep that timeframe going.

PN711

THE COMMISSIONER: Yes, well - - -

PN712

MR FERGUSON: What else do we do?

PN713

THE COMMISSIONER: Well, the realistic thing in terms of coming back here is you say get something the unions by COB Wednesday at the latest, ideally before that. Then we can come back for a day here on Friday next week. I can do that. That is the day - - -

PN714

MS SVENSDEN: That's the day we're due to file.

PN715

THE COMMISSIONER: Due to file.

PN716

MS SVENSDEN: Look, I'm really concerned because the matters that are in the agreement intersect like this with the stuff that's contentious - that it's actually substantive to be determined. I'm pretty concerned that our - I am actually not clear whether it will or not, so I'm just putting this as a postulation on the table that what we've actually prepared to file on Friday, would potentially undermine what we might have to file if we're actually doing everything. Does that make sense?

PN717

THE COMMISSIONER: Yes.

PN718

MS DABARERA: It puts us at a disadvantage if we allow materials and then the press is extended.

PN719

THE COMMISSIONER: Yes, but - I know it's a bit unusual but can't you just say, look the usual - this is without prejudice to what we might have to say if our consent position is no longer available.

PN720

MR BULL: There's formal material which we're going to file. Anyway, we do need to know what's going on because it seems to me if they're not going to - if the consent position is not going to be agreed to, then essentially, we need to vacate the hearing as it is. We don't want to let that happen.

PN721

THE COMMISSIONER: Where are the relevant directions?

PN722

MR BULL: It's been amended. We were supposed to file on 18 January and there was delay - some issues with us, but it was an agreement that this is the first lot.

PN723

THE COMMISSIONER: Yes, so there's no action.

PN724

MR BULL: Well there's been a few emails from the President's chambers and so forth.

PN725

THE COMMISSIONER: But there's been no reissuing of directions, as such?

PN726

MR BULL: No. I think there's an email from - - -

PN727

MR FERGUSON: There was a reissue.

PN728

MS LEIBHABER: Yes, I think there was a reissue.

PN729

MS SVENSDEN: I think there were reissues.

PN730

THE COMMISSIONER: I don't seem to have them. Or do I?

PN731

MS SHAW: Commissioner Lee, here's the 24 January amended directions if you'd like to see them.

PN732

MR BULL: I don't want to get into a sort of let's bash the AiG, but you know.

PN733

MS SVENSDEN: Let's bash them anyway.

PN734

MR BULL: Let's bash the AiG.

PN735

MR FERGUSON: We told everyone our position before Christmas. We didn't think that this consideration should be pushed back because we wanted to get this stuff on the table as quickly as possible.

PN736

MR BULL: Yes, it was a bad time of year.

PN737

MR FERGUSON: And I was on leave and I was going to come back - I get it. But you can bash us, but we've tried to make this - - -

PN738

MR BULL: I'm not bashing you about that, it's just the - - -

PN739

SPEAKER: I think that was a useless joke, but it probably wasn't substantive what Stephen was saying.

PN740

THE COMMISSIONER: You were trying to make a joke?

PN741

SPEAKER: No, Stephen was.

PN742

THE COMMISSIONER: What was the joke?

PN743

SPEAKER: About bashing the AiG.

PN744

MR BULL: Possibly a joke.

PN745

THE COMMISSIONER: What if we go to the timetable. Wednesday - we have a conference here Friday next week. I'll speak to the President about delaying your filing till the 15th.

PN746

MS SVENSDEN: Yes.

PN747

MR BULL: But we have some commitments on Friday morning which are immoveable.

PN748

THE COMMISSIONER: Okay. What can you do next week? Can you do Thursday?

PN749

MR BULL: Thursday might be possible.

PN750

MR FERGUSON: No, I'm in Brisbane, I'm sorry.

PN751

THE COMMISSIONER: When I say I can do Thursday, bear in mind I don't have to sit around with an empty diary; I'll move stuff. The question will be, is there anything - - -

PN752

MR BULL: Can we do a telephone conference at 4 o'clock or something? To a certain extent, it's a matter of whether we're going to be optimistic and you know, our plans proceed, or whether they're not going to. I think when we get the employer's response, we should be able to make a fairly well educated - - -

PN753

THE COMMISSIONER: I'll put it to you this way, I've learned enough out of today that I want to spend some time on at least - well, there might not even be agreement. I'd like to see the clauses get to a point where they're pretty clear about what they are trying to do, because they're not actually there.

PN754

MR BULL: Well, there are issues with them.

PN755

THE COMMISSIONER: Yes. There's significant issues with them, Mr Bull, so that is my provisional view. You can take that for what you want to make of it. But it is just a provisional view, but there won't be clauses going into awards of the Commission that aren't enforceable or incapable of being understood.

PN756

MR BULL: The point of - the importance for this process of the report is that it does close off things and narrows issues. I wasn't involved in the conciliation - - -

PN757

THE COMMISSIONER: From your point of view it does.

PN758

MR BULL: Pardon?

PN759

THE COMMISSIONER: Yes, from your point of view it does.

PN760

MR BULL: Yes, it presents the participants are not progressing claims. It doesn't obviously preclude you from doing certain things.

PN761

THE COMMISSIONER: But just understand this; I've said that - don't speak over me.

PN762

MR BULL: Fine.

PN763

THE COMMISSIONER: A couple of times I've made clear that it's not a matter of parties reach agreement and then that's it. Commission puts a stamp on it. Those days are over.

PN764

MS SVENSDEN: We know that.

PN765

THE COMMISSIONER: You've all been involved in this process long enough to know that. There will be a testing of - okay, what does this mean, is it enforceable, does it mean the modern awards' objective, how does it look compared to other modern awards, is it consistent with the general approach that the Commission is trying to take to get that level of uniformity while allowing for differences for different industries and so on and so forth.

PN766

I've got an interest in - but look, I have to bear in mind, if it were not for the AiG intervening, we wouldn't even be here; we would have just been rolling on to the Commission. But I guess I'm just letting you know, happenstance being the way it is, these things would have undoubtedly been aired once you were in front of the Bench who would have been asking questions about what the hell does location mean and how does all this work, for example.

PN767

MR BULL: Well, we were expecting that to occur.

PN768

THE COMMISSIONER: In which case, you know, you might have ended up in some other conference process down the track trying to sort that out or the Bench will just do what it wants to do; I don't know.

PN769

But, back to the threshold question. The proposal is, your date to file is pushed out a week. You get no change because there is no time left on these timeframes because there's only a week before the hearing. That way the hearing stays in-tact. I can anticipate that the President and other members of the Bench will be loathe to move the dates because it's just too hard.

PN770

MR FERGUSON: Our view is we wouldn't seek it, unless we needed it.

PN771

THE COMMISSIONER: Sure.

PN772

MR FERGUSON: I mean we haven't seen the material, so we don't know whether we will. But we're already in that position because of the extension. That way at least we're just moving forward and if we can keep the dates, I think everyone's keen.

PN773

THE COMMISSIONER: Well, there's still a big gap between 15 February and 5th of (indistinct).

PN774

MR FERGUSON: No, that's what I'm saying. That's why I want to pre-emptively say well, we can't do that because we can, we will. But it does seem that - I mean it's going to be difficult for the Bench that these things are all up in the air, to hear these other issues. It seems that we should at least explore this.

PN775

THE COMMISSIONER: We've got stuff on availability, so.

PN776

MR BULL: Thursday is okay; it's just Friday there's a problem for both.

PN777

THE COMMISSIONER: Yes, and look, it's going to be back here in Melbourne - my plane wheels are on the ground.

PN778

SPEAKER: Thursday is very bad for me; Friday is completely available.

PN779

THE COMMISSIONER: You can do Friday?

PN780

SPEAKER: Yes.

PN781

THE COMMISSIONER: Right. Ms Svensden?

PN782

MR BULL: Friday afternoon.

PN783

THE COMMISSIONER: You get to cast a vote.

PN784

MS SVENSDEN: I've got a shocker Friday, but I can probably manipulate things if I need to be here.

PN785

MR BULL: I can do Friday afternoon after about midday.

PN786

THE COMMISSIONER: We might see if we can kick off at 11 on Friday next week and just get here as quick as you can, Mr Bull, and I'm sure you'll be able to catch up. I won't have anyone sign anything off until you're here.

PN787

MR BULL: Look, I might be available by the tele, so.

PN788

THE COMMISSIONER: I'll be in Melbourne; parties can be on the video or here, should they wish. I'll make myself available for the day and we can use as much time as you want of the day, after 11.

PN789

MR BULL: Can we also have a direction that the employers provide us with their technical problems and - - -

PN790

THE COMMISSIONER: They're going to.

PN791

MS SVENSDEN: Not necessarily their drafting. We just need to know exactly what we're dealing with.

PN792

MR BULL: We also need to know what they want. If it's just a list of technical issues with the drafting, that can be the response. Or if they were going to walk away from it, they need to tell us that. If they can't publicly support what they've agreed to a year or so ago, then they need to tell us.

PN793

THE COMMISSIONER: Well, what's going to happen is this. The directions are going to be amended to reflect the fact that the unions don't have to file until, well - no one has to file - the interested parties don't have to file in support of their claims until the 15th, right. That's the only change that will happen to the directions.

PN794

The agreement we're reaching here today is that you're going to provide drafts, other drafts of - proposed drafts without prejudice going to the four clauses that we've dealt with today. I think really in particular, two of them, and any other material you can provide in support.

PN795

MR FERGUSON: Yes, I think it will be clearly on a without prejudice basis, just because will necessitate that it's floating to a degree.

PN796

THE COMMISSIONER: Then you'll have the Thursday to consider and we'll come together on Friday and see.

PN797

MR BULL: We'll get this employer material on Wednesday, or?

PN798

THE COMMISSIONER: Close of business on Wednesday, yes. Do we have agreement to that process?

PN799

MS SVENSDEN: Yes.

PN800

THE COMMISSIONER: Right, thank you. Any comments from interstate?

PN801

MS SHAW: No, those timeframes suit us; that's fine thank you.

PN802

THE COMMISSIONER: Yes.

PN803

MR ROBSON: Yes that's fine, thank you.

PN804

MS LEIBHABER: That's fine, thanks Commissioner.

PN805

MS SHAW: Commissioner, if I could just ask if maybe the employer groups could stay back afterwards for five minutes, just in case if the video is about to cut off.

PN806

THE COMMISSIONER: No, we can leave it running for you.

PN807

MS SHAW: That would be great, thank you.

PN808

THE COMMISSIONER: No problem. All right.

PN809

MS DABARERA: Thank you.

PN810

THE COMMISSIONER: Thank you.

ADJOURNED INDEFINITELY [2.51 PM]