PN1

THE DEPUTY PRESIDENT: Good morning. Where are we at, Mr Hamilton?

PN2

MR HAMILTON: Your Honour, we've had a number of discussions and we've handed your associate a document that sets out probably most of the agreed items that we've discussed.

PN3

There are a couple of outstanding issues which would be the definition of performance, the crewing services issue.

PN4

MR CHESHER: In the paper, your Honour, the issue of performance is not dealt with.

PN5

THE DEPUTY PRESIDENT: No.

PN6

MR CHESHER: It remains live between us.

PN7

THE DEPUTY PRESIDENT: Yes, and by reference to the - - -

PN8

MR CHESHER: Crewing services, page 10.

PN9

THE DEPUTY PRESIDENT: Sorry, just before you go on - - -

PN10

MR HAMILTON: Your Honour, that document, I've headed item one and two.

PN11

THE DEPUTY PRESIDENT: Yes, I see, okay.

PN12

MR HAMILTON: That's in the old technical and drafting and substantive issue. Not the one that was - - -

PN13

THE DEPUTY PRESIDENT: The item numbers are the same, so yes, all right. The crewing services?

PN14

MR CHESHER: Yes, that's the substantive matter, your Honour.

PN15

THE DEPUTY PRESIDENT: Yes.

PN16

MR HAMILTON: It is hoped in the next couple of weeks, we'll be able to have a discussion with the crewing services member and the union just to provide further information on that sector of the industry.

PN17

THE DEPUTY PRESIDENT: Yes. Are there any other - - -

PN18

MR CHESHER: And the minimum wages, you were referring to.

PN19

MR HAMILTON: In the key musicians, yes. On page 15 of that document, your Honour, we've set out minimum wages for musicians and I'm just wondering, we would seek the Commission's guidance on whether we should actually refer to the level in the classification structure proper in clause 13 or 14 or whatever it is, because we've just got musician, principle musician, conductor leader with an hourly rate and a three-hour call and then the casual employees. But it doesn't really refer to what level in the classification structure.

PN20

Matthew and I were just discussing whether it would be appropriate to actually put something like with the musician level 9 beside musician level 14, principal musician level 15, conductor leader to give it some context back to the actual classification structure.

PN21

MR CHESHER: Well, yes and linking it to clause 14 of the exposure draft which is the minimum wages.

PN22

THE DEPUTY PRESIDENT: Where would you propose the minimum wages for musicians would appear in the – I see, so this would replace - the chart that you would propose would replace that which appears at 37 of the exposure draft.

PN23

MR HAMILTON: That's correct, your Honour.

PN24

THE DEPUTY PRESIDENT: You're contemplating - - -

PN25

MR HAMILTON: Whether there's a requirement to actually put musician level 9, level 14 beside principal musician, even though they are articulated in clause 14 of the exposure draft. If you go to level 9, there is musician performer grade 1, et cetera. Level 14 principal musician, level 15 conductor leader.

PN26

THE DEPUTY PRESIDENT: Yes.

PN27

MR HAMILTON: Should we cross-reference it? I'm just thinking of once – - -

PN28

THE DEPUTY PRESIDENT: I think for the avoidance of confusion, probably, yes.

PN29

MR CHESHER: Sorry, your Honour?

PN30

THE DEPUTY PRESIDENT: For the avoidance of confusion, probably.

PN31

MR HAMILTON: Because if we're not here to help.

PN32

MR CHESHER: It's a matter that just arose before we commenced.

PN33

THE DEPUTY PRESIDENT: That's fine, that makes sense.

PN34

MR CHESHER: Probably in furious agreement.

PN35

THE DEPUTY PRESIDENT: Is the draft at clause 30 of the paper that you handed to me, agreed?

PN36

MR HAMILTON: I'm pretty sure we're just about, nearly there with musicians, I think.

PN37

THE DEPUTY PRESIDENT: All right. Say for the cross-referencing, those clauses under clause 30 of the paper, that's 30.1 through to 30.3, would replace existing 37.1 through 37.3 of the exposure draft.

PN38

MR HAMILTON: That's correct, your Honour.

PN39

MR CHESHER: That's correct, but it's subject to our other claim which we have previously discussion to replace the term minimum with ordinary. Both those clauses that you alluded to, your Honour. To use the expression, innocently, of minimum rates.

PN40

MR HAMILTON: It's a strange phenomenon now - - -

PN41

MR CHESHER: Minimum weekly range, minimum payment.

PN42

MR HAMILTON: To derive the minimum call rate, those clauses are correct. The actual rate is usually by negotiation. It probably doesn't have any reference to how its derived, mathematically.

PN43

THE DEPUTY PRESIDENT: But the actual rate that's derived by negotiation, ultimately isn't something that's enforceable under the award, is it?

PN44

MR CHESHER: No, it wouldn't be, your Honour.

PN45

THE DEPUTY PRESIDENT: But by its nature, it's an agreement.

PN46

MR HAMILTON: I think those clauses are fine, because they - - -

PN47

MR CHESHER: You think they're fine as is?

PN48

MR HAMILTON: Yes, because they define the minimum call rate. What happens in practice is that musicians and producers negotiate a higher rate. But to get the minimum call rates, which you can't go under, I don't think that's an issue.

PN49

MR CHESHER: That's fine. We only raised it in parting our earlier comment.

PN50

THE DEPUTY PRESIDENT: No, I understanding.

PN51

MR CHESHER: I'm happy to proceed with that particular change, your Honour.

PN52

THE DEPUTY PRESIDENT: If you wouldn't mind sending my chambers an electronic version of this paper. For the purposes of the record this morning it appears agreed that clause 30.1 through to 30.3 of the paper, that is the paper titled Agreed Changes to the Exposure Draft will replace existing clause 37.1 through 37.3 of the exposure draft.

PN53

MR HAMILTON: Can we take you through this document, your Honour?

PN54

THE DEPUTY PRESIDENT: Yes please.

PN55

MR HAMILTON: Those definitions have been agreed between the parties.

PN56

THE DEPUTY PRESIDENT: Yes.

PN57

MR HAMILTON: As we mentioned, there is still an outstanding definition of performance that further negotiations will take place shortly. Similarly, with the definition of archival and/or reference recording, that's been agreed.

PN58

The table of facilitative provisions, your Honour, there's been those changes that we highlighted before you last time that will need to be updated, because there are a number of clauses that we've changed that will provide for facilitative provisions for performers and dancers. We will update that as we go through.

PN59

Similarly, with the classification minimum wages, we've taken out the hourly rate as we discussed last time. Item 9, we had agreed to leave in, that's still there. Now, travelling allowances, your Honour. We've agreed to insert a new clause there highlighted in C1.

PN60

THE DEPUTY PRESIDENT: Yes.

PN61

MR HAMILTON: That clause was actually in the original travelling clause provisions prior to the award modernisation process in 2009 and for some unknown reason, the Commission deleted that clause. It is in our Performers' Collective Agreement and has been for many years, which reflected the award, basically. The parties have agreed that there should be an allowance there for tours or travel that is less than one week. That highlighted clause is taken straight out of the old PCA, which was the in old awards as well.

PN62

Similarly, on page 5D, meals while travelling. In the old Actors Award, Live Performance Award before 2010, D1 was contained in those awards. For some unknown reason, it was deleted in 2010. That award still exists in our agreements and so we've agreed to reinsert that provision for meals when travel is less than one week.

PN63

In E, the words 'greater than one week' have been inserted to coincide with the provisions of meals and incidentals for less than one week. Those other clauses are still in the award, as agreed.

PN64

Over the page, your Honour, item 11, annual leave loading was agreed to retain. Item S7, the substantive issue, this is with regard to – and we discussed it before you previously about whole time performance and you'll notice in the definitions on page 1, we've actually put a definition of whole time performance in there. We've also agreed in clause 2, about provisions for performances of less than one hour.

PN65

The red printing was a result of negotiating the negotiations with the union last week and I'm sure we can tick off on that clause now to provide for performances of less than one hour which was deficient in the old award, your Honour.

PN66

Similarly, in the rehearsal clause, in item 14 of the technical drafting, the exposure draft did not have the per half hour rate, as we had discussed. So, we've just reverted back to the old provision. I'm not sure, your Honour, in the present award, it's actually as a percentage of the standard rate.

PN67

Your Honour, is there a move away from that in awards generally, as a percentage of the standard rate, reverting back to amounts? In the present award, your Honour, clause 24.6, where it was 4.8 per cent of the standard rate and the half hour was 2.4 per cent. In the exposure draft, they've actually gone actual rates. Did we discuss it, Matthew?

PN68

MR CHESHER: I don't recall that.

PN69

MR HAMILTON: No.

PN70

THE DEPUTY PRESIDENT: I'm not sure why that would be. It would have – altering it from a percentage to a dollar and cent amount would have the unfortunate effect that those amounts would need to be separately varied from time to time to remain current. Whereas the percentage formula would have the effect of increasing automatically every time the - - -

PN71

MR CHESHER: Sorry, your Honour.

PN72

THE DEPUTY PRESIDENT: The percentage amount has the benefit of increasing automatically as a consequence of - - -

PN73

MR HAMILTON: Yes, because in 31.6 in the exposure draft, we've got casual performance and there's 16.7 per cent of the appropriate weekly.

PN74

THE DEPUTY PRESIDENT: Yes.

PN75

MR HAMILTON: But then in the rehearsals, we've got the $37.60 for the first hour.

PN76

THE DEPUTY PRESIDENT: If the parties want to revert to the percentage formula, I don't have a difficulty with that.

PN77

MR HAMILTON: We haven't discussed it.

PN78

MR CHESHER: No, could we come back to your Honour on that point?

PN79

MR HAMILTON: Go down to item S9 and S10. The current award didn't take into consideration performances of less than an hour and so, we've agreed on a new clause 27 which will probably fit in at 34 of the exposure draft to ensure that breaks are given. We've inserted into there in 27D about a facilitative provision, your Honour, to reduce the 1.5 hours taken after 4 pm to one hour, agreed with the majority of employees.

PN80

Similarly, in F, where the one and a half hour break between rehearsal the commencement of another rehearsal performance, that can be reduced to an hour with the majority of employees as well.

PN81

Clause 27.2 is a new clause to ensure that breaks are given for those employees who are required to work on performances of up to one hour which have been agreed. The other 27.3 and 27.4 are just the same as the current award.

PN82

THE DEPUTY PRESIDENT: You're proposing that your 27 in its entirety replace clause 34 in its entirety in the exposure draft?

PN83

MR HAMILTON: That's correct, your Honour.

PN84

THE DEPUTY PRESIDENT: And that will be – 27 will become the new 34 in the exposure draft. That's agreed?

PN85

MR CHESHER: That is agreed.

PN86

MR HAMILTON: This S11, your Honour, as you can see there that the present award didn't provide for overtime provisions for casual employees engaged on performances of less than one hour. The parties have agreed to, with provisions in 28.2(b) and (c). With (c) your Honour, the penalty rate of time and a half may actually be higher if it's on a Sunday or performance on a rostered day off, hence that final sentence of that clause.

PN87

MR CHESHER: It just covers the field.

PN88

MR HAMILTON: Yes, it covers the field. Those provisions are agreed as well. Item S13 your Honour, which relates to the allowances for musicians. There was presently a weekly allowance and a call allowance. The parties have agreed to limit it to a call allowance, mainly because a weekly musician could, by definition, is a musician that works more than six calls.

PN89

If they worked 10 calls which is quite probable, they still only get the weekly allowance. So, if the allowance is on a call rate, then they would receive that allowance per call. Similarly, with casual performers. Those two, the harpist upkeep allowance and the other upkeep allowance have been agreed.

PN90

In item 18 and clause 38.2 of the exposure draft, your Honour, the parties have agreed to delete the second sentence of that archival recording clause. We did have discussion the last time we were with you.

PN91

THE DEPUTY PRESIDENT: Yes.

PN92

MR HAMILTON: We believe to take that clause out as it didn't serve any purpose and archival recordings are never paid anyway.

PN93

In item 23, your Honour, we had agreed that 53.1(c) of the exposure draft had been deleted for some reason and we've agreed to put it back. However, the last sentence of that clause, the parties have agreed to delete because our industry doesn't work continuous shift rosters.

PN94

Item 24, we agreed last time before you about inserting ordinary and similarly, with S15 making sure that employees appropriate penalty when they travel on their rostered day off, not only just Sundays.

PN95

S16, your Honour, provisions for crewing services, that's still under negotiations. I still want to have negotiations on items 25, 26 and 27 and S17 down the track.

PN96

Now, your Honour, under issues to resolve, item 5 and S2, there was a discussion about clause 10, 23, 29 and 42 in the current award. I'm sure I can now say that those provisions have been agreed following our negotiations with the union.

PN97

MR CHESHER: So, remind me of the essence of that agreement? I don't think I was in the room for that one. I know this is a favoured issue of yours.

PN98

MR HAMILTON: Yes, and Zoe. Unfortunately, Zoe isn't here. We agreed to - - -

PN99

MR CHESHER: Is that to have a general, rather than part specific terms of engagement?

PN100

MR HAMILTON: That's right. The general types of employment in 10.1 and 10.2, but the specifics for each of the different streams in our industry and the award, are contained in 23 for performers and dancers, 29 for musicians and production support staff provisions remain the same.

PN101

To satisfy the union's issues, your Honour, those highlighted parts have been inserted into the performers and company dancers' section and part time provisions. Similarly, with the musicians, a current provision that was actually deleted from the award for some unknown reason, but we've reinserted it. So that's (b).

PN102

MR CHESHER: This should fall under the banner of administrative change, shouldn't it? There's no material impact.

PN103

MR HAMILTON: Yes, yes. Lastly, your Honour, the schedule B in the exposure draft. The highlighted – mainly the - - -

PN104

THE DEPUTY PRESIDENT: Before you go on.

PN105

MR HAMILTON: Yes, sorry, your Honour.

PN106

THE DEPUTY PRESIDENT: There's also a piece to be proposed. Is paragraph (b) of 29.2 under the - - -

PN107

MR CHESHER: Yes.

PN108

MR HAMILTON: That was the clause that was actually not in the exposure draft.

PN109

THE DEPUTY PRESIDENT: All right, schedule B.

PN110

MR HAMILTON: What I've done here, your Honour, is highlighted the per night rate for the accommodation.

PN111

THE DEPUTY PRESIDENT: Yes.

PN112

MR HAMILTON: The formula thereof, and similarly with the per day rate amounts for the meals and also the incidentals to ensure that formula that was struck in 1987 or 1976 remains.

PN113

THE DEPUTY PRESIDENT: All right. Mr Hamilton, how much longer do you think you and Mr Chesher will require to reach agreement, or reach an understanding, if you can't reach agreement, on the outstanding matters?

PN114

MR CHESHER: Due to other matters, your Honour, we're pretty occupied over the next week.

PN115

MR HAMILTON: You got the BRIA?

PN116

MR CHESHER: We've got other awards coming on at stage four, so three weeks, if that was acceptable.

PN117

MR HAMILTON: Your Honour, can I suggest a month, because we have got to try and find - - -

PN118

THE DEPUTY PRESIDENT: That's fine. I will advise the parties of the further report-back date in the next day or so and it won't be earlier than a month. Obviously, if you need more time, if you'd write to my chambers before the date.

PN119

MR CHESHER: That is on the technical drafting and substantive, your Honour?

PN120

THE DEPUTY PRESIDENT: Yes, well since you've been dealing with both matters, yes.

PN121

MR CHESHER: Yes.

PN122

THE DEPUTY PRESIDENT: You may have seen an application for submission from an individual wishing to insert what I take to be a classification for a drag queen or a drag performing artist category.

PN123

MR HAMILTON: Yes, your Honour.

PN124

THE DEPUTY PRESIDENT: It would be of assistance if both of your organisations were able to make a short submission about that application.

PN125

All right, is there anything else?

PN126

MR HAMILTON: I've got a funny feeling it will be covered under the definition of performer, your Honour.

PN127

THE DEPUTY PRESIDENT: Once you agree on performance, you mean? All right, thank you, gentlemen. We will adjourn on that basis.

PN128

MR CHESHER: Thank you, your Honour.

PN129

MR HAMILTON: Thank you, sir.

ADJOURNED INDEFINITELY [10.02 AM]