| |
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009
COMMISSIONER CIRKOVIC
s.156 - 4 yearly review of modern awards
Four yearly review of modern awards
(AM2014/281)
Professional Employees Award 2010
Sydney
1.16 PM, FRIDAY, 7 APRIL 2017
PN1
THE COMMISSIONER: Good afternoon. I'll take appearances, please, starting with Sydney.
PN2
MS M CHAN: Chan, initial M, Australian Business Lawyers and Advisors seeking leave to appear on behalf of Australian Business Industrial and the New South Wales Business Chamber.
PN3
THE COMMISSIONER: Thank you, Ms Chan: you're seeking permission, are you?
PN4
MS CHAN: Yes.
PN5
THE COMMISSIONER: Thank you.
PN6
MS R BHATT: If it please the Commission - Bhatt, initial R, appearing for the Australian Industry Group.
PN7
THE COMMISSIONER: Thank you, Ms Bhatt.
PN8
MR K JACK: May it please - Jack, initial K, for the Australian Federation of Employers and Industries.
PN9
THE COMMISSIONER: Thank you. All right, and we have parties in Melbourne or one party in Melbourne, actually: Mr Butler?
PN10
MR N BUTLER: Yes, if the Commission pleases: Butler, initial N, appearing for the Association of Professional Engineers, Scientists and Managers Australia.
PN11
THE COMMISSIONER: Mr Butler, I'm happy for you to remain seated during the course of this conference.
PN12
MR BUTLER: Thank you, Commissioner.
PN13
THE COMMISSIONER: Mr Butler, you're not seeking permission, are you? You're not a paid agent, you're a direct employee of - - -
PN14
MS BHATT: Yes, Commissioner: I'm the director of industrial relations for APESMA.
PN15
THE COMMISSIONER: Thank you. All right, and we have no one as yet in South Australia but the video link is set up so if someone does show up we can use the link.
PN16
MR BUTLER: Excuse me, Commissioner: I can't hear.
PN17
THE COMMISSIONER: We can certainly hear you, Mr Butler.
PN18
MR BUTLER: Sorry.
PN19
THE COMMISSIONER: That's all right, and as I said I'm happy for you to remain seated. It might be easier for you during this conference. Did you hear that?
PN20
MR BUTLER: Just.
PN21
THE COMMISSIONER: All right, let me see what I can do about adjusting - can you hear me better now?
PN22
MR BUTLER: A bit better, Commissioner; thank you.
PN23
THE COMMISSIONER: Just bear with us a moment. I'll see if we can contact IT or whoever it is we need to contact to adjust the sound because we can certainly hear you very well. What I was saying - but I hope you can hear this - is that you may remain seated for the conference.
PN24
MR BUTLER: Thank you.
PN25
THE COMMISSIONER: All right, while that's happening I'll hear from Ms Chan in relation to permission. You're seeking permission pursuant to - - -
PN26
MS CHAN: Thank you, Commissioner: Australian Business Lawyers and Advisors are basically owned by - - -
PN27
THE COMMISSIONER: You may sit down too, Ms Chan, just for ease.
PN28
MS CHAN: - - - the New South Wales Business Chamber and Australian Business Industrial and as a result of, I guess, that relationship between the two organisations the industrial relations team at ABI is actually quite lean and therefore we've been engaged to (a) assist the Commission in its - - -
PN29
THE COMMISSIONER: It will assist the Commission deal with this matter more efficiently, is that correct?
PN30
MS CHAN: Correct.
PN31
THE COMMISSIONER: Do you of the parties have any objection to the appearance? Thank you. Permission - do you have an issue with the appearance, Mr Butler - the permission to appear application?
PN32
MR BUTLER: No, Commissioner.
PN33
THE COMMISSIONER: Thank you - permission is granted.
PN34
MS CHAN: May it please the Commission.
PN35
THE COMMISSIONER: Thank you. This is the first conference, technical and drafting, of the professional employees' award. I hope that all parties have a summary of submissions, technical drafting, dated 8 March 2017? I intend to go through that document item by item and the focus is of course on the summary of submissions to first confirm its accuracy or any need for corrections, errors or misunderstandings. It may be that, for example, some matters on further reflection did not need to be pressed and parties may wish to withdraw them, in which case the summary will be amended to reflect the views of the parties and ultimately the purpose is to narrow the issues in dispute between the parties.
PN36
Now, it is the - it's to really identify and narrow the issues between you. It is the first conference and if the parties feel that today is not sufficient then I'm more than happy to have another conference at some other date. That being said, are there any issues that anyone wishes to raise at this stage before I commence going through the summary item by item? In Sydney there appear to be no issues. Mr Butler, are you hearing us at this point?
PN37
MR BUTLER: Very, very faint, I'm afraid, Commissioner: I can - I hear bits and pieces, I'm sorry.
PN38
THE COMMISSIONER: All right, no, we'll wait then for a moment to see how we might be able to resolve this. Perhaps if we go off the record for a moment. We'll go off the record, for a moment, Mr Butler.
OFF THE RECORD [1.22 PM]
ON THE RECORD [1.24 PM]
PN39
THE COMMISSIONER: Thank you, all right, so I intend to go through the summary of submissions technical and drafting item by item, starting with item 1. This issue, it appears, will be determined by a - the group three full bench, is that correct? Is that everyone's understanding? Who was that?
PN40
MS CHAN: Chan for ABI and New South Wales Business Chamber.
PN41
THE COMMISSIONER: Thank you.
PN42
MR JACK: Mr Jack - no.
PN43
THE COMMISSIONER: That's your understanding?
PN44
MR JACK: Yes.
PN45
THE COMMISSIONER: Thank you.
PN46
MS BHATT: Mr Bhatt for Ai Group - that's our understanding as well.
PN47
THE COMMISSIONER: Thank you. Mr Butler.
PN48
MR BUTLER: Yes, Commissioner; that's my understanding.
PN49
THE COMMISSIONER: All right, that item can be disposed of, then, in that way. Item two - - -
PN50
MR JACK: Yes, Commissioner, Mr Jack - this is an AFEI submission.
PN51
THE COMMISSIONER: Yes.
PN52
MR JACK: There has been a change in the wording in the exposure draft from the current award. On review we have noted that we're not certain that the new wording is actually a substantive change and I think in regard to that submission we actually do need a bit more time to reconsider our position.
PN53
THE COMMISSIONER: All right, so is that something that could be considered by the parties and discussed at the next conference?
PN54
MR JACK: Yes, Commissioner.
PN55
MS BHATT: Ms Bhatt for Ai Group: we're content with that approach, thank you.
PN56
MS CHAN: Ms Chan - we're also content with that approach.
PN57
THE COMMISSIONER: Mr Butler?
PN58
MR BUTLER: Agreed.
PN59
THE COMMISSIONER: Mr Butler, is that you?
PN60
MR BUTLER: Yes, Commissioner.
PN61
THE COMMISSIONER: That's fine. Item three?
PN62
MS BHATT: Ms Bhatt for Ai Group: item three is an issue that's been raised by Ai Group. We say that the relevant provision in the exposure draft should be replaced by the wording found in current award. I understand that that's agreed by APESMA.
PN63
THE COMMISSIONER: That's 3.2, is it?
PN64
MS BHATT: Yes, Commissioner - 2.2 of the exposure draft.
PN65
THE COMMISSIONER: 2.2 of the exposure draft - - -
PN66
MS BHATT: The definition of, "experienced engineer."
PN67
THE COMMISSIONER: Is your proposition that that actually is an agreed item?
PN68
MS BHATT: Yes, that's my understanding, Commissioner.
PN69
THE COMMISSIONER: Anyone else? Mr - - -
PN70
MR JACK: Mr Jack, yes: AFEI does not oppose that change.
PN71
THE COMMISSIONER: Thank you.
PN72
MS CHAN: Ms Chan: we similarly would not oppose.
PN73
THE COMMISSIONER: Thank you. Mr Butler?
PN74
MR BUTLER: Yes, Commissioner: our view is that the current wording in the award should be retained and can I just point out - because this appears in a number of other clauses - that the exposure draft deletes a reference to the adequate discharge of any portion of duties and if that were to be the case - and I understand there's no disagreement on that - that would be a major, substantive change to the award.
PN75
MS BHATT: Ms Bhatt for Ai Group - I think that's right, and if the current wording were put back, as has been proposed, that would resolve the issues that have been raised by Ai Group as well as that which has just been articulated by Mr Butler.
PN76
THE COMMISSIONER: Thank you. All right then, that will be recorded in the summary of submissions. The exposure draft will be amended to reflect the parties' position. Item four?
PN77
MS BHATT: Ms Bhatt for Ai Group: item four falls in a similar category. There has been a change to a single word: the word, "testamur", is used in the current award, which has been replaced by the word, "certificate."
PN78
THE COMMISSIONER: Is this in the exposure draft, I'm sorry?
PN79
MS BHATT: The current award uses the word, "testamur."
PN80
THE COMMISSIONER: Yes.
PN81
MS BHATT: The exposure draft replaces it with the word, "certificate."
PN82
THE COMMISSIONER: I see; yes, sorry.
PN83
MS BHATT: For the reasons set out in our submissions we're concerned that that might in fact amount to a substantive change and we say that the word, "certificate", should therefore be replaced with, "testamur", as it appears in the current award. Again, it's my understanding that APESMA agrees with that proposal.
PN84
THE COMMISSIONER: So the word appearing in your submission is in the current - in the award should remain - - -
PN85
MS BHATT: Yes, Commissioner.
PN86
THE COMMISSIONER: - - - as the word that should be in the exposure draft and that's testamur? Do the other parties have a position on that?
PN87
MR JACK: Mr Jack - we do not oppose the change.
PN88
MS CHAN: Ms Chan - similarly, no opposition.
PN89
THE COMMISSIONER: Thank you, and Mr Butler?
PN90
MR BUTLER: APESMA supports the Ai Group's position on this issue.
PN91
THE COMMISSIONER: All right, thank you. Item five?
PN92
MS BHATT: Ms Bhatt for Ai Group: another issue that's been raised by Ai Group - the summary does not reveal APESMA's position but I understand that Business SA supports Ai Group's position, which is again that the current clause should remain.
PN93
THE COMMISSIONER: So the position is simply that the current clause should remain?
PN94
MS BHATT: Yes, Commissioner.
PN95
MR JACK: Mr Jack - there is no opposition to that either.
PN96
MS CHAN: Ms Chan - no opposition.
PN97
THE COMMISSIONER: Thank you. Mr Butler?
PN98
MR BUTLER: Likewise, APESMA supports the retention of the current clause.
PN99
THE COMMISSIONER: Thank you. Item six?
PN100
MS CHAN: This actually just relates to a missing full stop at the end of the definition of, "professional engineering duties."
PN101
THE COMMISSIONER: I presume there's no opposition, Mr Jack?
PN102
MR JACK: No, Commissioner.
PN103
THE COMMISSIONER: Thank you. Mr Butler?
PN104
MR BUTLER: No opposition, Commissioner.
PN105
THE COMMISSIONER: Thank you. Item seven - - -
PN106
MS BHATT: Ms Bhatt for Ai Group: item seven relates to a definition found at clause 2.3 of the exposure draft. It is Ai Group's proposal but again, the relevant wording found in the current award be retained and I understand that APESMA supports that proposal.
PN107
MR BUTLER: Yes, that is correct, Commissioner.
PN108
MR JACK: Mr Jack: AFEI does not oppose.
PN109
MS CHAN: Ms Chan: we support that proposal also.
PN110
THE COMMISSIONER: Thank you. Item eight - - -
PN111
MS BHATT: Item eight, Ms Bhatt for Ai Group: item eight is another issue raised by Ai Group. The same proposition - no, I withdraw that, I'm sorry. Ai Group has put a proposal in its submissions that the final sentence of the relevant clause be varied and I understand that APESMA and Business SA support that proposal.
PN112
THE COMMISSIONER: That the final sentence of 2.3 in the exposure draft - is that where you're going?
PN113
MS BHATT: It's the definition of telecommunications service found at clause 2.3 - - -
PN114
THE COMMISSIONER: Yes.
PN115
MS BHATT: The final sentence, which reads:
PN116
Carry may include to transmit, switch or receive.
PN117
MS BHATT: Ai Group submits that that should be replaced with, "Carrying includes transmitting, switching or receiving."
PN118
MR JACK: Mr Jack: AEFI does not oppose.
PN119
MS CHAN: Ms Chan: we would support that amendment.
PN120
THE COMMISSIONER: Mr Butler?
PN121
MR BUTLER: APESMA supports that position.
PN122
THE COMMISSIONER: All right, thank you: the document will reflect that - amended to reflect those positions. Item eight? Sorry, item nine - - -
PN123
MS BHATT: Thank you, Commissioner; Ms Bhatt for Ai Group: I think there is agreement in relation to item nine between Ai Group and APESMA that the relevant current wording be retained in the exposure draft.
PN124
MR JACK: Mr Jack: AEFI does not oppose that change.
PN125
MS CHAN: Ms Chan: we similarly would not oppose that change.
PN126
MR BUTLER: APESMA supports retention of the existing provision.
PN127
THE COMMISSIONER: Thank you. Item 10 - - -
PN128
MR BUTLER: Commissioner, this is an item proposed by APESMA and it relates to the updating of the definitions in the scientist's stream, which is clause 2.4. There is a number of professional, scientific bodies referenced in the academic schedule and there is reference to greater membership of the scientific bodies, some of which no longer exist and we have proposed the updating of 2.4 and that is actually - that was attached in our outline of submission of 18 December. But as the Ai Group has opposed that proposal and I understand that they believe it should be dealt with as a substantive claim.
PN129
MS BHATT: If I may, Commissioner - Ms Bhatt for Ai Group - I think there is just some anxiety from our organisation's perspective to insure that any changes made don't amount to a substantive change. I had understood from the submission that's been filed by APESMA that is likely not the intention and the submission is couched in terms of updating of relevant references. I wonder if I could make a request to the union, and that is that if there is some information that is relevant to the proposed updates that would assist us in making the relevant assessment, that the union could provide us with that and we'd be very happy to have a discussion with the union about that and that can happen under the auspices of the Commission or independently. Mr Butler knows, of course, that there are others in my organisation that are very close to this award and have previously worked cooperatively with the union and we anticipate that this - - -
PN130
THE COMMISSIONER: So my reading, for what it's worth, Ms Bhatt - on the basis of what you've put in the written documentation - was not so much that you were opposing at this point: it's more that you're seeking, perhaps, some clarification and the opportunity to further consider how these proposed changes might impact on other aspects of - is that - - -
PN131
MS BHATT: I think that's right and I think some additional information would assist us in making that decision.
PN132
THE COMMISSIONER: Before I hear from Ms Chan and Mr Jack, Mr Butler, would you be amendable to providing the sort of information that Ms Bhatt has alluded to and there could be discussions between the parties outside the auspices of this conference, which could be brought back for further discussion at the next conference, if that was something - - -
PN133
MR BUTLER: Commissioner, I can advise the Commission that the Ai Group and APESMA have a long history of discussions and a cooperative relationship and we're more than happy to provide that information. As I said, some of these definitions are - have remained intact, I think in a couple of instances, since the 1960s. So our intention is to take the opportunity as part of the four-year review to update them and I'd be more than happy to provide the relevant information.
PN134
THE COMMISSIONER: So perhaps - I'll just confirm with Mr Jack and Ms Chan that they don't have something they wish to put?
PN135
MS CHAN: Ms Chan: no, we would support the provision of detail by our colleagues, the Ai Group, and be content to try to resolve this potentially offline.
PN136
MR JACK: Mr Jack: we are as well.
PN137
THE COMMISSIONER: Thank you. In that case, perhaps if the parties undertake to have further discussions about these matters and maybe, Mr Butler - would you be able to put something in writing to the parties in a fortnight on this issue?
PN138
MR BUTLER: Commissioner, if I could have a few extra days; I'm just about to take a few days off before Easter so I don't want to agree to something and then not carry it out.
PN139
THE COMMISSIONER: Yes - 21 days sufficient?
PN140
MR BUTLER: That would be more than sufficient, thank you.
PN141
THE COMMISSIONER: All right, so within 21 days if Mr Butler puts something in writing to the parties for their further consideration that can then be considered by the parties and if need be - if the matter still remains on the table - whatever comes out of that can be discussed at the next conference. Are the parties happy to proceed on that basis?
PN142
MS BHATT: Yes, Commissioner; thank you.
PN143
MS CHAN: Yes, Commissioner; thank you.
PN144
MR JACK: Yes, Commissioner.
PN145
THE COMMISSIONER: All right, item 11 - - -
PN146
MS BHATT: Ms Bhatt for Ai Group: there appears to be agreement between Ai Group and Business SA that the relevant wording be retained in the exposure draft.
PN147
THE COMMISSIONER: Do any of the parties have any submission in relation to - - -
PN148
MR JACK: Mr Jack: we are not opposed.
PN149
THE COMMISSIONER: Thank you.
PN150
MS CHAN: Ms Chan: we are similarly not opposed.
PN151
THE COMMISSIONER: Mr Butler?
PN152
MR BUTLER: APESMA supports the retention of the existing wording.
PN153
THE COMMISSIONER: All right, thank you. Item 12 - - -
PN154
MS BHATT: Ms Bhatt for Ai Group: I think item 12 also falls into the very same category as many of these other matters have. There appears to be agreement that the current wording be retained.
PN155
MR JACK: Mr Jack: AFEI does not oppose retaining the current wording.
PN156
MS CHAN: Ms Chan: we similarly would not oppose retaining the current wording.
PN157
THE COMMISSIONER: Thank you - Mr Butler?
PN158
MR BUTLER: APESMA agrees.
PN159
THE COMMISSIONER: Thank you - item 13?
PN160
MS BHATT: Commissioner, I'm sorry - - -
PN161
THE COMMISSIONER: Yes.
PN162
MS BHATT: - - - before we move on from these issues that we've just been working through, if I can just raise one matter: it's my understanding in this review that although consent between the parties will of course be given consideration by the Commission when it makes its decision it's of course not determinative of the issue.
PN163
THE COMMISSIONER: Correct.
PN164
MS BHATT: It's in that context that I just want to raise this issue: the matters that we have just worked through are of extreme potential significance to the coverage of this award and there is a great deal of anxiety from our organisation's perspective as to the impact that the redrafting would have if it remained as it were on that coverage. I think to that extent there is consensus between ourselves and the union.
PN165
If I can just put this: if when the Commission upon considering the submissions that we have filed and others have filed and the consent position that has been reached between the parties, if the Commission is nonetheless not minded to make the changes proposed, I think our organisation in all likelihood would seek another opportunity to be heard, given the very significant potential ramifications. I just wanted to raise that for the record.
PN166
THE COMMISSIONER: That's certainly something that is envisaged through this process so whilst I can't give you any detail or certainty about that, the manner in which that process will be managed - certainly there is an expectation that there will be case-by-case applications that will need to be made in situations such as the one that you allude to.
PN167
MS BHATT: Thank you, Commissioner.
PN168
THE COMMISSIONER: You're on the record, having raised the issue.
PN169
MS BHATT: Yes, if it pleases; thank you.
PN170
THE COMMISSIONER: All right, okay, thank you - was it item 13 that we - yes, item 13.
PN171
MS BHATT: Ms Bhatt for Ai Group: item 13 is an issue that we've raised regarding clause 4.1 of the exposure draft. Noting APESMA's position, I wonder if I can just speak to it briefly in case it assists Mr Butler in understanding the basis for our submission. If the Commission would just bear with me a moment - - -
PN172
THE COMMISSIONER: Certainly.
PN173
MS BHATT: - - - clause 4.1 of the exposure draft refers to the instrument as an industry and occupational award and then it goes on to express the coverage of the instrument by way of occupational coverage. It's clause 4.2 that deals with the industrial coverage or the industry coverage of the award. It seems to us that it's confusing and potentially anomalous to refer to award as an industry and occupational award in clause 4.1 when it then only goes on to describe one aspect of that coverage. It's on that basis that we've said that the words, "industry and occupational", in clause 4.1 should be deleted.
PN174
THE COMMISSIONER: Are you putting that submission on the basis that in 4.2 it refers also, for example, to quality auditing and telecommunications? Is that what you're attempting to - - -
PN175
MS BHATT: Clause 4.2 is the part of the coverage clause that describes the coverage of the instrument by reference to industry.
PN176
THE COMMISSIONER: Yes.
PN177
MS BHATT: That's what gives the award that characteristic of being an industry award, as well as being an occupational award. We don't contest that proposition at all: it's just the manner in which it's described in clause 4.1 to us seems somewhat anomalous and potentially confusing. We don't think that the deletion of those words would have any substantive effect on the coverage of the instrument. I just say that in case it deals with any concern that Mr Butler's organisation might have had in opposing the change.
PN178
THE COMMISSIONER: So you would suggest deleting, "industry and occupational award", such that the clause - 4.1 would then read - no, what would you say?
PN179
MS BHATT: We would only - our proposal is only to delete the words, "industry and occupational", so clause 4.1 would read: "This award covers", and so on - - -
PN180
THE COMMISSIONER: - - - and so on - all right.
PN181
J
PN182
MR JACK: Mr Jack: AFEI agrees with AIG's proposal.
PN183
MS CHAN: Ms Chan: our clients would also agree with AIG's proposal.
PN184
THE COMMISSIONER: Okay - Mr Butler?
PN185
MR BUTLER: Commissioner, I understand the Ai Group's submission and we would be prepared to accept that perhaps the drafting is a bit sort of clumsy, if I can use that word, but our view is it is an industry and occupational award and I appreciate there's no dispute over that but I think that should be made explicit in the coverage clause. Perhaps - I'm not sure if this is in order, Commissioner - but perhaps if APESMA has a look at redrafting it and circulating that to the Commission and the other parties?
PN186
MS BHATT: Ms Bhatt for Ai Group: of course, we're very happy to consider anything that the union puts to us. Can I just say this: it's not the biggest issue and it's probably not one that we need to dine and ditch over. But we're of course very happy to consider anything Mr Butler sends us.
PN187
THE COMMISSIONER: I'm in your hands, but why don't then we proceed on the basis that Mr Butler adds this to the matter he's dealing with in 21 days in any event; add it to that written submission, this issue as well, and then, Ms Bhatt, you can consider - you and the other parties - how much it means to you and whether you will dine and ditch or not.
PN188
MS BHATT: Yes, if it pleases; thank you.
PN189
THE COMMISSIONER: All right - item 14 - - -
PN190
MS BHATT: This is our - - -
PN191
MS CHAN: I do note the note in the final column of the summary and on that basis this matter wouldn't be pressed, Commissioner.
PN192
THE COMMISSIONER: Thank you.
PN193
MR JACK: Commissioner, sorry - - -
PN194
THE COMMISSIONER: Mr Jack?
PN195
MR JACK: - - - on that point or moving on to - - -
PN196
THE COMMISSIONER: I presume you have nothing to say on that point.
PN197
MR JACK: No, no, I didn't; sorry, Commissioner.
PN198
MS BHATT: Nothing from Ai Group.
PN199
THE COMMISSIONER: Mr Butler, you've got nothing to say on point 14?
PN200
MR BUTLER: No, Commissioner.
PN201
THE COMMISSIONER: Thank you. Item 15 - - -
PN202
MR JACK: Yes, Commissioner - Mr Jack: this is an AFEI submission. Clause 13.2 in the exposure draft, which corresponds to, I think, clause 18.1 - - -
PN203
THE COMMISSIONER: Could you just - sorry - speak up? I now couldn't hear that.
PN204
MR JACK: Yes - clause 13.2 in the exposure draft - - -
PN205
THE COMMISSIONER: Thank you.
PN206
MR JACK: - - - which corresponds to clause 18.1 in the current award is just missing from the list of facilitative provisions in the exposure draft.
PN207
THE COMMISSIONER: Are you sure it's clause 13.2 or do you mean 7.2?
PN208
MR JACK: Sorry - the table is clause 7.2 but I believe - hold on - yes, but that table is missing a reference to clause 13.2 - - -
PN209
THE COMMISSIONER: I see.
PN210
MR JACK: Which would correspond to the current award, which does refer to clause 18.1.
PN211
THE COMMISSIONER: So the table in 7.2 needs to be amended, you say, to include the reference in 13.2?
PN212
MR JACK: Yes, the reference to clause 13.2, which is a facilitative provision and which is currently - the corresponding clause 18.1 is in that same table in the current award.
PN213
THE COMMISSIONER: Thank you.
PN214
MS BHATT: Ms Bhatt for Ai Group: we don't oppose the proposal that's been put.
PN215
THE COMMISSIONER: Thank you.
PN216
MS CHAN: Ms Chan: we don't oppose the proposal either.
PN217
THE COMMISSIONER: Thank you - Mr Butler?
PN218
MR BUTLER: APESMA supports the proposal.
PN219
THE COMMISSIONER: Thank you. Item 16 - - -
PN220
MS BHATT: Ms Bhatt for Ai Group: if I can take the Commission to clause 7.2 with the exposure draft - - -
PN221
THE COMMISSIONER: - - - of the exposure draft, yes.
PN222
MS BHATT: - - - which lists the various facilitative provisions in the award, including clause 13.7, which I'll turn to in a moment. But before I do: clause 7.3 states that:
PN223
Any agreement made pursuant to clause 7.2 must be recorded in writing and must be available to every affected employee on request.
PN224
MS BHATT: If we turn then to clause 13.7; clause 13.7 deals with circumstances in which an employee is transferred from day work to shift work. It provides for a period of notice that must be given unless the employer and employee agree on a lesser period of notice. Clause 13.7 in and of itself does not impose any requirement for there to be a written agreement between the parties in those circumstances. If the Commission has a copy of the current award, if I can take you to clause 8.2 of the current award, which corresponds with clause 7.2 of the exposure draft in the sense that it lists the various facilitative provisions.
PN225
THE COMMISSIONER: Was that 8.2?
PN226
MS BHATT: 8.2 of the current award.
PN227
THE COMMISSIONER: Of the current award?
PN228
MS BHATT: Yes.
PN229
THE COMMISSIONER: It lists those provisions, does it? I'll just make sure I've got the right document. My 8.2:
PN230
The following lists the facilitative provisions and the level of agreement required: 18.1, 22(a), (b) - - -
PN231
Is that correct?
PN232
MS BHATT: Yes, Commissioner. The Commission will note that clause 18.5 is not listed at clause 8.2.
PN233
THE COMMISSIONER: 18.5 - - -
PN234
MS BHATT: If we turn to 18.5 of the award - - -
PN235
THE COMMISSIONER: Of the award or the agreement?
PN236
MS BHATT: Of the award, of the current award - it is the provision that deals with the transfer from day work to shift work.
PN237
THE COMMISSIONER: It's the same one as 13.7?
PN238
MS BHATT: Yes, yes - - -
PN239
THE COMMISSIONER: So you're saying 18.5 in the award is in essence the same as 13.7 of the exposure draft, to that part of the argument. 18.5 does not require written notice of itself - - -
PN240
MS BHATT: It does not.
PN241
THE COMMISSIONER: - - - as does not 13.7?
PN242
MS BHATT: That's correct.
PN243
THE COMMISSIONER: You're about to tell me that the exposure draft in 7.2 in effect imposes an obligation to provide that written notice?
PN244
MS BHATT: That does not presently arise under the current award. To that extent we say that by identifying clause 13.7 of the exposure draft, in clause 7.2 of the exposure draft, the exposure draft gives rise to a substantive change by now requiring that written agreement pursuant to clause 7.3. That is the issue that we've raised. I understand that APESMA does not agree with our submission that that reference should be deleted.
PN245
THE COMMISSIONER: Which reference would you be seeking to delete in 7.2 of the exposure draft? The reference to the 13.7 or would you be seeking to amend 7.3? I'm sorry, it might be something you've already - - -
PN246
MS BHATT: Our submission is that the reference to clause 13.7 should be removed.
PN247
THE COMMISSIONER: Thank you.
PN248
MS CHAN: Ms Chan: we would agree with the Ai Group's submissions on that point.
PN249
MR JACK: Mr Jack: we would also agree with Ai Group.
PN250
THE COMMISSIONER: Thank you. Mr Butler?
PN251
MR BUTLER: Commissioner, our position is that we agree that would be a change but it would be a change, the inclusion of that would be welcomed by APESMA so it would want to - - -
PN252
THE COMMISSIONER: So are you saying then - by making that submission are you saying that this is a matter that - are you agreeing, is really the point, that change would then make this a substantive matter and that this should be moved to a substantive matter list?
PN253
MR BUTLER: Commissioner, I would agree that this alteration would be a substantive matter and should be moved to the substantive list. I concur with that, yes.
PN254
THE COMMISSIONER: Ms Bhatt, at this stage my inclination is to move the matter to the substantive matter list and encourage the parties to have further discussions regarding the matter. It is a matter that will ultimately be dealt with so - - -
PN255
MR BUTLER: Can I just add, Commissioner; I think there is - from the responses and the submissions I think there will be some debate on what's in or out on the facilitative provisions. But we would certainly want to have discussions with the parties.
PN256
MS BHATT: Ms Bhatt for Ai Group: we're happy to participate in those discussions.
PN257
THE COMMISSIONER: So to the extent that the discussions will be had, it is my recommendation that we remove the item to a substantive matter list and then the parties can have discussions independent of this conference - or are you suggesting that it remains here with a note that it's potentially a substantive matter and that the parties are currently discussing the matter?
PN258
MS BHATT: Can I say this: there seems to be agreement between the parties, including the union, that the manner in which the exposure draft is presently drafted amounts to a substantive change. Now, we would say that that in and of itself means that the exposure draft could be amended by removing that reference because the exposure draft process is not intended, as we understand it, to give rise to substantive changes. It is of course open to any party in this review to seek a substantive change at any point and if the union wishes to do so of course it's a matter for it to pursue that.
PN259
But that's why I'm hesitating as to whether this matter should be removed from the technical and drafting list. On one view the matter can be resolved in this context by saying that, well, there is agreement between the parties that the exposure draft amounts to a substantive change but of course it's open to the union to pursue that substantive change in a slightly separate forum.
PN260
THE COMMISSIONER: Mr Butler, would you then be satisfied if the matter remains in this conference space for the time-being but the summary of issues reflected that the parties agreed that in fact what is being proposed in the exposure draft amounts to a substantive claim but that it's something that you wish to pursue by way of conference in this - in the context of the technical and drafting conference for now?
PN261
MR BUTLER: Yes - - -
PN262
THE COMMISSIONER: If you press the matter than I'd of course move it to the substantive - - -
PN263
MR BUTLER: I think the approach that you've outlined, Commissioner, is a good way to deal with this particular matter.
PN264
THE COMMISSIONER: All right. Item - is it 16? 17, sorry - I don't know why I - 17.
PN265
MS BHATT: Ms Bhatt for Ai Group: if I can just speak to this issue briefly, clause 7.2 of the exposure draft, which lists the facilitative provisions contained in the award, identifies clause 17.5 which deals with annual leave in advance. The way we understand the facilitative provision or the way we would characterise the facilitative provision in the historical sense is that there are circumstances in which an award regulates - for example - the manner in which something is to be done or it makes a certain prescription. Then the award itself provides for the ability to depart from that by agreement and that agreement is between the employer and the majority of employees and/or an individual employee.
PN266
Any such provision is a facilitative provision and that would meet the description that is set out at clause 7.1 of the exposure draft. Clause 17.5 of the exposure draft deals with annual leave in advance. It permits an employee to take leave, annual leave, before it accrues and that can occur by agreement. There is nothing in the current award or in the exposure draft that regulates otherwise. There is nothing in the award or the exposure draft that says that annual leave can only be taken once it is accrued. Neither the award or the exposure draft deal with the accrual of annual leave either. Those are matters for the NES.
PN267
So whilst we accept that clause 17.5 of the exposure draft allows for a flexible working practice, as is the description in the heading to clause 7, and whilst I accept that it enables agreement between the employer and employee it is not a facilitative provision in the sense that is typically contemplated in awards. It's for that reason that we've said that that provision should be deleted and if I can just say that clause 17.6, which refers to cashing out; it's on the same basis that we've said that should be deleted. There is nothing in the award that says that annual leave must be taken and cannot be cashed out.
PN268
So to the extent that the provision allows for agreement between an employer and an employee for annual leave to be cashed out, that agreement isn't departing from the award in any way. So it's for that reason that we've said both of those provisions should be deleted and that is item 17 - and I jumped ahead a little bit but item 18 as well.
PN269
THE COMMISSIONER: You're basically saying these are not traditional facilitative clauses as you understand the awards and there is no reason for them to be there as such.
PN270
MS BHATT: Precisely.
PN271
THE COMMISSIONER: And - - -
PN272
MR JACK: Mr Jack: we agree with Ai Group.
PN273
MS CHAN: Ms Chan: we agree with that submission on items 17 and 18.
PN274
THE COMMISSIONER: Mr Butler, how do you see this?
PN275
MR BUTLER: Commissioner, we would subscribe to a different view. I mean, these matters flow from the annual leave test case, as everyone is aware, and are a departure from traditional practice of the operation of the annual leave provision. I understand that this issue is a live issue on other awards as well. We will consider what's being put but we don't agree for those provisions to be removed from the exposure draft.
PN276
THE COMMISSIONER: When you say removed from the exposure draft, do you mean you don't agree for their removal from this - from 7.2?
PN277
MR BUTLER: Yes, yes.
PN278
THE COMMISSIONER: So is it something that perhaps should be a matter for further discussion between the parties? Would that be an appropriate way for it to be dealt with moving forward? I'm in your hands there Mr Butler a bit.
PN279
MR BUTLER: Commissioner, we're happy to, as we always are and as we've proposed on a number of issues, to have further discussions with the employers on this issue. But we see that the inclusion of this subject matter under the facilitative provisions, flexible work practices is a very important issue in terms of the operation of the annual leave provisions in the award. But yes, yes, Commission, we're certainly prepared to have a discussion. As I've said, the Association has - historically has I think most issues you know between the parties have generally been resolved by consent. I mean it often follows a very robust discussion but we usually can resolve issues subject of course to the - you know, the principles that the Commission follow.
PN280
THE COMMISSIONER: It's certainly something to be encourage.
PN281
MS BHATT: Ms Bhatt for Ai Group. We're of course content with that course.
PN282
THE COMMISSIONER: Thank you. Item 19.
PN283
MS BHATT: Ms Bhatt for Ai Group. This is an issue that's been raised by Business SA but I'll speak to it given our opposition to it.
PN284
THE COMMISSIONER: Unfortunately we don't have anyone here still from - - -
PN285
MS BHATT: No.
PN286
THE COMMISSIONER: But in any event, that - - -
PN287
MS BHATT: Well, all I intended to do was to refer the Commission to paragraphs 123 to 125 of our reply submissions where we've referred to a decision that was handed down by the Commission earlier in this review regarding provisions of this nature, of that which is found at clause 8.4 of the current award. The Commission, as we understand it, made a decision that such provisions wouldn't be included in the exposure draft and so it's on that basis that we've said that it should not be inserted in the exposure draft that is here before the Commission.
PN288
THE COMMISSIONER: Thank you. Mr Butler, what do you have to say about that at this point?
PN289
MR BUTLER: To be honest, Commissioner, at this point in time I must say I'm uncertain and my apologise for that.
PN290
THE COMMISSIONER: Perhaps it's a matter then that you might - and I presume you know the decision that's being referred to.
PN291
MR BUTLER: I haven't looked at it recently. I must say I need to examine that - - -
PN292
THE COMMISSIONER: Have a look at that decision and that could be a matter that is subject to further discussion or it might be something that the parties can discuss amongst themselves prior to the next conference, once you've had an opportunity to look at the decision and consider it.
PN293
MR BUTLER: Thank you.
PN294
THE COMMISSIONER: Do any of the parties have a - - -
PN295
MS CHAN: Ms Chan here. Just for the record, we would support the position adopted by Ai Group in relation to this item.
PN296
MR JACK: Mr Jack. We also support Ai Group's decision.
PN297
THE COMMISSIONER: Thank you. Ms Bhatt, you're happy to proceed on that basis?
PN298
MS BHATT: Of course, Commissioner.
PN299
THE COMMISSIONER: Thank you. Item 20.
PN300
MS BHATT: Ms Bhatt for Ai Group. There appears to be agreement between the parties that clause 11.1(a) of the exposure draft should be amended as proposed by Ai Group.
PN301
THE COMMISSIONER: The other parties?
PN302
MR JACK: Mr Jack. In accordance with our submission, Commissioner, we agree with Ai Group's submission.
PN303
MS CHAN: Ms Chan. We're not opposed.
PN304
THE COMMISSIONER: Thank you. Mr Butler.
PN305
MR BUTLER: Likewise, Commissioner, we support the Ai Group position on this issue.
PN306
THE COMMISSIONER: The document will be reflected to note that the parties agree save for - well we do have agreement from Business SA as well it seems so notwithstanding they're not here to confirm that. Item 21.
PN307
MS BHATT: Ms Bhatt for Ai Group. This is a matter that we've raised regarding the need to insert a definition for casual employment. I understand that APESMA is opposed to our proposal and without of course wanting to put Mr Butler on the spot, it would assist us if we understood the basis for that opposition.
PN308
MR BUTLER: Commissioner, APESMA believes the current provision in the agreement is - if I could use this terminology, is basically nonsensical and there needs to - I think that issue needs to be treated as a substantive issue. We would like to look at it in the light of the outcome of the test case on casual employment.
PN309
MS BHATT: Ms Bhatt for Ai Group. It's of course open to the union to reserve its position. I should note that Ai Group is very heavily involved in those proceedings and the definition of casual employment is not in issue or - well, it was not put in issue by the proponents of the claim or any respondent and it's of course open to the Commission to consider anything in this review if it seeks to do so of its own motion. But it is our understanding that that is not in issue in those proceedings, and so any decision handed down by that Full Bench might not in fact have any bearing on what we're looking at here.
PN310
THE COMMISSIONER: Mr Butler, I'm a bit unclear. What did you say was nonsensical? You refer to an agreement. Are you referring to 11.1(a) of the exposure draft?
PN311
MR BUTLER: Yes, your Honour - sorry, Commissioner. The definition of casual employee is an employee engaged and paid as a casual employee should - the proposal, we would want to propose a definition - an alternative definition of a casual employee. Because I don't think that particular proposal actually defines a casual employee.
PN312
THE COMMISSIONER: I misunderstood you. I thought you were referring to the exposure draft, that's why it was a bit unclear. Perhaps - - -
PN313
MR BUTLER: Yes, sorry.
PN314
THE COMMISSIONER: No, no, not a problem. Perhaps then that could be one of the matters that forms part of your submission - written submission that you circulate to the parties in 21 days if you're proposing an alternate definition and then that could be something to be considered by the parties and the subject of either further conferencing or removal to the substantive matters list.
PN315
MR BUTLER: Certainly, Commissioner, certainly.
PN316
THE COMMISSIONER: I haven't heard from the other parties yet whether they're happy to proceed on that basis.
PN317
MR JACK: Mr Jack, AFEI. We'd be happy with that process.
PN318
MS CHAN: Ms Chan. We would not be opposed to such a process.
PN319
MS BHATT: Ms Bhatt for Ai Group. We're quite content for that course. If I can just note, the proposal that's been put by Ai Group is I think intended to reflect the current clause 11.4(a), which at its commencement reads:
PN320
An employee may be engaged as a casual and must be paid an hourly rate -
PN321
and it goes on to describe the manner in which that hourly rate is to be calculated. Those opening words:
PN322
An employee may be engaged as a casual -
PN323
don't appear in the exposure draft. There is nothing in the exposure draft that makes clear that an employee can be engaged on a casual basis, or any description of what constitutes a casual employee. That's the only issue that we were seeking to rectify, so just for the purposes of clarity I don't think we're purporting to seek any substantive change but we'll wait to hear from Mr Butler.
PN324
THE COMMISSIONER: No, no, and I might have misled you there by referring to the substantive. If it turns out that Mr Butler wishes to press the issue of the definition then it might have to be referred on, but I've understood what you're saying and you're saying that there is no definition, you're simply attempting to insert what's already in the award.
PN325
MS BHATT: Yes, Commissioner.
PN326
THE COMMISSIONER: To that extent, from what I'm hearing from Mr Butler is that he's not happy with those words. It could be that he's not happy with the words in the award but we really to hear from him a bit further and then you'll be able to consider it, and it might be something that you can resolve after that submission, by way of discussion outside this conference.
PN327
MS BHATT: Yes, Commissioner.
PN328
THE COMMISSIONER: Mr Butler, are you happy to proceed on that basis?
PN329
MR BUTLER: Yes, Commissioner.
PN330
THE COMMISSIONER: Thank you. Item 22.
PN331
MR BUTLER: Commissioner, this was a matter raised by the Commission in respect of clause 13, ordinary hours a week, in that the clause does not specify a maximum number of weeks in the cycle for the averaging of hours of work. I just simply say that we consider that to be a substantive issue because there's obviously strong differences of opinion there between the parties.
PN332
MS BHATT: It's Ms Bhatt for Ai Group - - -
PN333
MR BUTLER: And perhaps if I could - sorry.
PN334
MS BHATT: No, I'm sorry Mr Butler, please finish.
PN335
MR BUTLER: I was going to say perhaps that's another matter that could be discussed between the parties.
PN336
MS BHATT: It's Ms Bhatt for Ai Group. I would agree with Mr Butler's characterisation of the issue. As we said in our submissions, to the extent that any party seeks to vary the award such that it prescribes the maximum number of weeks in a cycle, we would say that that is a substantive change. We're of course happy to engage in discussions with the union about that.
PN337
THE COMMISSIONER: The document then - apologise, I haven't heard from the other parties before I launched into what was going to happen.
PN338
MR JACK: No problem Commissioner. We would agree with Ai Group.
PN339
THE COMMISSIONER: Thank you.
PN340
MS CHAN: Ms Chan. Similarly we would agree with what my colleague Ms Bhatt has just said.
PN341
THE COMMISSIONER: Thank you. The summary then will be amended to reflect that the parties, whilst on first blush it may be an issue that requires to be moved to the substantive summary of issues but the parties are content to discuss the matter further and might report back on that at the next conference.
PN342
MS BHATT: Yes, thank you, Commissioner.
PN343
THE COMMISSIONER: Item 23.
PN344
MS BHATT: Ms Bhatt for Ai Group. This is just a typographical error that Ai Group has identified. I understand there's agreement between APESMA, Business SA and Ai Group that it should be amended as proposed.
PN345
THE COMMISSIONER: Thank you.
PN346
MR JACK: Mr Jack from AFEI. We agree that it's a typo and would not oppose it being rectified.
PN347
MS CHAN: Ms Chan. We would not oppose Ai Group's proposal to rectify this clause.
PN348
THE COMMISSIONER: Thank you.
PN349
MR BUTLER: Commissioner, APESMA doesn't oppose the proposal.
PN350
THE COMMISSIONER: Thank you. So the parties are all in agreement that the words "time to time" should be inserted after the word "from" in the current clause 13.5.
PN351
MS BHATT: Yes, Commissioner.
PN352
THE COMMISSIONER: Thank you. Item 24.
PN353
MR BUTLER: Commissioner, this was a matter that was pursued by APESMA but we no longer pursue that, so we withdraw that one.
PN354
THE COMMISSIONER: Thank you, so it's withdrawn. Item 25.
PN355
MS BHATT: Ms Bhatt for Ai Group. We've simply proposed that the words "full-time employee" be inserted into clause 14.1 of the exposure draft, under the heading "annual wages". The basis for that is simply this; clause 14.1 creates an obligation to pay it seems all employees the rates that are prescribed but of course the annual wages would only be payable to an employee who works full-time hours.
PN356
THE COMMISSIONER: Certainly. That seems clear. Anyone else?
PN357
MR JACK: Mr Jack. We are not opposed.
PN358
MS CHAN: Ms Chan. We are not opposed.
PN359
THE COMMISSIONER: Mr Butler.
PN360
MR BUTLER: Commissioner, having had time to consider this, we don't oppose.
PN361
THE COMMISSIONER: Thank you. Can I say then that the parties are agreed that the words "full-time employee" should be inserted under the annual wages section of the table in 14.1?
PN362
MR BUTLER: APESMA agrees, Commissioner.
PN363
MR JACK: Yes, Commissioner.
PN364
MS CHAN: We would agree with that.
PN365
THE COMMISSIONER: Thank you. Item 26.
PN366
MS BHATT: It's Ms Bhatt for Ai Group. We propose that the final column be deleted and we've again referred to an earlier decision of this Commission in the context of the review that casual minimum hourly rates would not be prescribed in the exposure drafts. I understand that that might - well that is opposed by APESMA.
PN367
MR JACK: Mr Jack, AFEI, does not propose Ai Group's suggestion.
PN368
MS CHAN: Ms Chan, we do not propose AF - sorry Ai Group's proposed submissions and would also add that if we do actually continue to retain that final column in the table it actually would cause some confusion when read in light of clause 11.1 of the exposure draft, because that requires payment of the minimum hourly rate appropriate for the employees classification and a loading of 25 per cent of that rate. So an employer may look at the table and think okay, $29.49 plus 25 per cent of that.
PN369
THE COMMISSIONER: Certainly, that's clear. Ms Butler.
PN370
MR BUTLER: Commissioner, this is an issue that APESMA would die in the ditch over but if not in this particular table, we think it's generally a good idea to have the rates of pay that apply for casual employees shown somewhere in the award, and my apologies, I don't recall the particular decision but it's my understanding and other parties can correct me that it's possible to have a schedule of rates and not necessarily contained in that table. That's the only observation.
PN371
THE COMMISSIONER: As a way moving forward, I think we can record that you're not pressing the issue vehemently.
PN372
MR BUTLER: No.
PN373
THE COMMISSIONER: The document can record though that you do believe that the rates for casuals should be recorded somewhere in the award. Perhaps it's something though that you can reflect on having considered, after you consider the case that's been referred to, and if need be after having further discussions with the parties. Then that could be the subject of something you report back on at the next conference. Would that process be satisfactory?
PN374
MR BUTLER: Yes, Commissioner.
PN375
MR JACK: No opposition, Commissioner.
PN376
THE COMMISSIONER: Ms Bhatt, is that a process you're content with?
PN377
MS BHATT: Yes, Commissioner, thank you.
PN378
MS CHAN: Ms Chan. We would be content with that approach.
PN379
THE COMMISSIONER: Thank you. Item 27.
PN380
MR BUTLER: Commissioner, APESMA no longer pursues that one.
PN381
THE COMMISSIONER: So it's withdrawn?
PN382
MR BUTLER: Yes, Commissioner.
PN383
THE COMMISSIONER: I'm not sure what Business SA's position is on this issue. We'll note that APESMA's withdrawn it but there being no appearance for Business SA. Maybe that might change and there might be some other submission put forward before the next conference. We just don't know. I'll take it the other parties have no - - -
PN384
MR JACK: Commissioner, my understanding is that Business SA was just saying that the current calculation method in the award should remain and that's the multiplying by six, divided by 313, divided by 38, but I guess someone from Business SA maybe could confirm that.
PN385
THE COMMISSIONER: We will just say that the item's withdrawn and wait to hear if there's anything further. Item 28.
PN386
MS BHATT: Ms Bhatt for Ai Group. This is a matter that we raised. If I can take the Commission to clause 16.2 of the current award. That clause prescribes the vehicle allowance. It firstly prescribes the circumstances in which - - -
PN387
THE COMMISSIONER: Sorry, just one moment, Ms Bhatt. 16.2 of the current award.
PN388
MS BHATT: Yes.
PN389
THE COMMISSIONER: Sorry, I was looking at the exposure draft. Yes, go on.
PN390
MS BHATT: Thank you, Commissioner. Clause 16.2 of the current award prescribes the vehicle allowance. The clause states that:
PN391
Where it is mutually agreed that an employee will be required to use their private vehicle in the employer's business, the employee will be paid reasonable compensation but in no case will the employee receive payment at a rate less than 78 cents per kilometre travelled.
PN392
There are two important elements of that provision that don't appear in the exposure draft. The first is this concept of there being agreement between the employer and employee that the employee will be required to use their vehicle.
PN393
THE COMMISSIONER: So mutual agreement between employer and employee that the private vehicle will be used is not in the exposure draft.
PN394
MS BHATT: That's correct, Commissioner. The second element is this notion of an employee being paid reasonable compensation which must be at least as much as the 78 cents per kilometres that's been prescribed. But as we can see that clause provides for potentially a different method of remuneration, so long as it meets the minimum requirement.
PN395
THE COMMISSIONER: So you're saying as long as it's - you would be reading that to say as long as it's reasonable compensation and not less than that amount it could be some other method in effect.
PN396
MS BHATT: It's my understanding that in this industry, it's common for employees to be paid, for example, a monthly amount for the use of a vehicle or an annual salary that compensates them for the use of their vehicle, and it's wrapped up if you will in a salary. If we can go to clause 15.3 of the exposure draft, it simply says:
PN397
Employer must pay an employee required to use their private vehicle on an employer's business at least 78 cents per kilometre travelled.
PN398
So the first question that arises is the allowances payable where an employee is required but required by who or by what circumstances, and secondly this other notion of being paid some reasonable compensation that isn't the 78 cents per kilometre is no longer present. It's for those reasons that we've simply proposed that the current wording be replaced which I think is opposed by the union.
PN399
THE COMMISSIONER: Is what by the union?
PN400
MS BHATT: Is opposed by the union.
PN401
MR JACK: Mr Jack. AFEI agrees with Ai Group's proposal.
PN402
MS CHAN: Ms Chan. Our clients similarly agree with Ai Group's proposal.
PN403
THE COMMISSIONER: Mr Butler.
PN404
MR BUTLER: Commissioner, our view was that the clause in the exposure draft is actually more precise. It includes that the employee must be required to use their private vehicle and it's at least 78 cents per kilometre travelled is what the employee receives. It doesn't interfere with the wide range of different arrangements that might be in place throughout industry. I think if anything the existing provision 16.2 where in the first line there's a reference to, "where it is mutually agreed" and then "the employee will be required". It's sort of - to me I think that's - yes, from my interpretation there's an ambiguity in that. I mean this simply provides a minimum entitlement over award arrangements whether it be in conditions of employment or salaries or allowances. I don't see how they are affected, they're not affected in our view. So I think the exposure draft is a more cleaner way of describing it.
PN405
MS BHATT: Ms Bhatt for Ai Group. In relation to the second proposition that's been put I understand what Mr Butler is putting. I think there's a view from our organisation that the reference to an ability to pay some reasonable compensation makes express that there is that ability to do so but I hear what Mr Butler's said and I'm happy to give further consideration to that.
PN406
THE COMMISSIONER: That's the second part of his submission that you'll give further consideration to it. I take it the first part though you have a view on that - - -
PN407
MS BHATT: Can I say this, I'm aware of inquiries being made by members potentially not in respect of this award specifically but provisions which apply where an employee is required to do something but the clause does not make clear by whom or in what circumstances the employee is required to, for example, use their private vehicle. I'm aware of arguments being made by employees, for instance, that they consider that they're required to use their private vehicle in order to discharge certain duties and so there's an alleged entitlement that arises to an allowance. Now in order to try and avoid that sort of uncertainty and disputation that we think it's important that it's made clearer when the provision in fact applies.
PN408
MR BUTLER: Commissioner, Michael Butler. The - I think that the - I think there could be a worthwhile discussion between parties on this issue around the issue of required, perhaps there's some different word and - - -
PN409
THE COMMISSIONER: Well, the two concepts are different. You know, mutual agreement contemplates one thing. Required contemplates potentially something different.
PN410
MR BUTLER: And you've got mutual agreement and required in the one clause as well that potentially presents some ambiguity.
PN411
THE COMMISSIONER: It almost suggests in the current draft that an employee - that an employee may be required to use their private vehicle without any agreement.
PN412
MS CHAN: I hear what's been said. I'm reluctant to undertake any sort of redrafting or rephrasing on the fly but would be very happy for this to be added to the list of matters to be discussed.
PN413
THE COMMISSIONER: No, I think shall we add it to the list of - it can be added to the list of things that are going to be the subject of further discussion between the parties. A report back at the next conference and if there's still no agreement then we can consider what next, whether there needs to be some submissions and/or - - -
PN414
MS CHAN: Yes, Commissioner.
PN415
THE COMMISSIONER: Thank you. Item 29.
PN416
MR BUTLER: Commissioner, this was a matter raised by the Commission as to whether annual leave is progressively accrued or accrues on 12 months completion of service. Our view is that the application of the clause needs to relate to when annual leave is taken and the loading cap which would apply at the time. There's the particular provision in the award, Commissioner, provides for either the payment of - provides for the payment of an annual leave loading but it's capped at the average weekly earnings. I forget which quarter, if you could just bear with me. Yes:
PN417
The entitlement to an annual leave loading must not exceed the ABS average weekly earnings for all males for the September quarter.
PN418
But in answer to the question posed by the Commission, the only way that we can understand this issue is that - is that it should apply when the annual leave is taken. I do note that the Ai Group and ourselves in some respects have a very different interpretation of this clause but I won't go there.
PN419
MS BHATT: Ms Bhatt for Ai Group. I think that might be right. I have to confess I have very limited instructions on this particular issue.
PN420
THE COMMISSIONER: Is it something that you'd like the parties to consider further and then report back at the next conference? Is that - - -
PN421
MS BHATT: Can I clarify just one matter with Mr Butler if I may. Am I correct in understanding that the union is not, at least at this stage, seeking any variation to clause 17.2 of the exposure draft?
PN422
MR BUTLER: No, no, not at all. We were just responding to a question that was posed by the Commission.
PN423
MS BHATT: Yes, thank you.
PN424
THE COMMISSIONER: So the answer to that is no, you're not seeking a variation to 17.2?
PN425
MR BUTLER: Yes, Commissioner.
PN426
THE COMMISSIONER: Thank you.
PN427
MS BHATT: We have that much in common at least, Commissioner.
PN428
THE COMMISSIONER: We'll record that that's in common and then that the remainder can be subject to further discussion between the parties outside this conferencing and with a report back at the next conference if need be. Do other parties have a view?
PN429
MR JACK: Mr Jack, we are content with that, thank you.
PN430
THE COMMISSIONER: Thank you.
PN431
MS CHAN: Ms Chan, we'd be content with that approach also.
PN432
THE COMMISSIONER: Thank you. Item 30.
PN433
MS BHATT: Ms Bhatt, Ai Group. This is just a typographical error that we've identified in clause 17.2(a).
PN434
THE COMMISSIONER: Thank you.
PN435
MR JACK: Mr Jack. We agree with Ai Group's submission.
PN436
MS CHAN: Ms Chan. We similarly agree with Ai Group's submission.
PN437
MR BUTLER: And APESMA also agrees.
PN438
THE COMMISSIONER: Thank you, Mr Butler. Item 31.
PN439
MR JACK: Yes, Commissioner. My understanding is that items 31 through to 35 are all about the same clause 17.4(a) in the exposure draft, and in AFEI's submission we did propose alternative wording or state that we're happy for the way that the clause is drafted in the current award to be the same. The main thing that has changed, if you'll hold on one second, is that currently - this is the annual close down clause.
PN440
THE COMMISSIONER: Annual close down.
PN441
MR JACK: Yes. So the current award provides that where an employer closes down the enterprise or a section or sections of that enterprise, for the purpose of annual leave, to the people - in again that section or section of the enterprise, then the conditions that apply to other employees in that section or section of that enterprise apply to those people covered by the award. In the current version of the award it does still provide that an employer can close down a section or more of the enterprise, but where it talks about allowing leave to employees it doesn't refer to those employees in that section or sections of the enterprise. So it's possible that a section of your enterprise is closing down, however for some reason you've got to get a majority of all of your employees to agree. For that reason, we'd support either I think the proposed wording of Ai Group or our own, or simply going back to the previous provision, depending on the views of the other parties.
PN442
THE COMMISSIONER: In the award, in the - -
PN443
MR JACK: Yes, in the current award.
PN444
THE COMMISSIONER: - - - current award, and that's in 19. - - -
PN445
MR JACK: Four.
PN446
THE COMMISSIONER: Four of the current award, isn't it?
PN447
MR JACK: Yes, Commissioner.
PN448
THE COMMISSIONER: Just so I am clear, you're suggesting that either the words of 19.4 of the current award are repeated in the exposure draft at 17.4.
PN449
MR JACK: Yes, Commissioner.
PN450
THE COMMISSIONER: Or an alternative wording as suggested by you in your submissions is what - - -
PN451
MR JACK: Yes, that's correct, Commissioner.
PN452
THE COMMISSIONER: Thank you.
PN453
MS BHATT: If I may, Commissioner. Ms Bhatt for Ai Group. AFEI has identified one of the three issues that we've raised in our submissions. So in addition to what's just been outlined, the current award at clause 19.4 makes clear that it applies where an employer closes down the enterprise. That is the entire enterprise, and then it also goes on to refer to a section or sections thereof. By contrast, the exposure draft refers to an employer closing down a section or more of the enterprise but doesn't - - -
PN454
THE COMMISSIONER: So not the entire enterprise.
PN455
MS BHATT: It doesn't expressly contemplate closing down the entire enterprise. So that's the first issue. The second issue is the one that has just been outlined by AFEI. The third issue is this, clause 19.4 of the current award says that:
PN456
In the relevant circumstances the same conditions which apply to other employees of the enterprise section or sections may also apply to employees covered by the award.
PN457
It's permissive. Clause 17.4(b) of the exposure draft however mandates that those conditions will apply to employees covered by this award.
PN458
THE COMMISSIONER: So it's the word "will" as opposed to "may", in a sense.
PN459
MS BHATT: Yes. I have to confess the more I look at this, the more I wonder if the cleanest way of addressing the three issues that we've identified would simply be to replace 17.4 with clause 19.4 of the current award.
PN460
MR BUTLER: Excuse me, I didn't hear that last couple of sentences.
PN461
MS BHATT: Sorry, Mr Butler. The last bit that I said was simply that the more I look at this, the more I wonder if the cleanest way of resolving the three issues we've identified would be to replace clause 17.4 of the exposure draft with clause 19.4 of the current award.
PN462
THE COMMISSIONER: Mr Butler, are you considering your position?
PN463
MR BUTLER: Commissioner, I'm inclined to agree that the existing clause which I think is 19.4 is preferable to the clause in the exposure draft with the exception of - and I don't think anyone would be surprised to hear me say this - with the exception of the replacement of "may" with "will". Our view is that the same - yes, the words:
PN464
The same conditions which apply to the other employees of the enterprise or sections may also apply to employees covered by this award -
PN465
does not give a right and whether or not this aspect of it is a substantive issue or not, I think it's one that again should be discussed between the parties but yes, to have a provision that says "may" in our experience means it doesn't.
PN466
THE COMMISSIONER: Perhaps the summary can be amended to reflect that all parties agree that 19.4 is preferable to 17.4, save for that Mr Butler you're proposing the retention of the word "will" in the exposure draft, whereas the other parties prefer the word "may", and that that can be - that aspect can be the subject of further discussion between the parties. Is that a fair summation of where we're at?
PN467
MS BHATT: It is from Ai Group's perspective.
PN468
MS CHAN: Ms Chan here. We would agree that that is also an accurate summation.
PN469
MR JACK: Mr Jack. We would agree as well.
PN470
MR BUTLER: Yes from APESMA.
PN471
THE COMMISSIONER: Thank you. That then deals with items - I think you said 31 to 34.
PN472
MR JACK: 35 even.
PN473
THE COMMISSIONER: And 35 is it?
PN474
MR JACK: Yes, correct.
PN475
THE COMMISSIONER: Thank you so much. Item 36.
PN476
MR BUTLER: Commissioner, APESMA no longer pursues that one.
PN477
THE COMMISSIONER: So that's withdrawn. Item 37.
PN478
MR JACK: Yes, Commissioner. This is in response to a question in the exposure draft. So the schedule of the award which has the classification definitions has - I'll just bring it up. Refers to a level 1 and it provides that a level 1 employee - sorry:
PN479
A pay point 1.1 graduate professional can be someone who possess and may be required to utilise a level of professional skill and knowledge based on either the completion of an accredited three or four year tertiary professional technology qualification.
PN480
The question put to the parties was should that also include a reference to a five year tertiary qualification. The reason for that being that the minimum wage clause, which is clause 14.1 in the exposure draft or clause 15 of the current award, does actually within level 1 pay point 1.1 have a specific rate, which is for an employee that has a four or five year degree. That the reference to five year degree isn't included in the schedule. So AFEI's response to that question was that we wouldn't oppose including a reference to a five year degree being it by saying an accredited three to five year degree, for example.
PN481
THE COMMISSIONER: Thank you.
PN482
MS BHATT: Ms Bhatt for Ai Group. This might be a matter that should be amended in the summary document. At paragraph 134 of our require submission we've indicated that we do not oppose the proposal that's been put. I think the summary says that we do not agree.
PN483
THE COMMISSIONER: Yes. So the summary document even before today ought be amended to include that the AIG reply was that it did not oppose AFEI's proposal.
PN484
MS BHATT: That's correct, thank you.
PN485
THE COMMISSIONER: Thank you.
PN486
MS CHAN: Ms Chan here. We similarly would not oppose AFEI's proposal to - or submission rather about the insertion of the reference to five year degree.
PN487
THE COMMISSIONER: Thank you. Mr Butler.
PN488
MR BUTLER: APESMA also agrees.
PN489
THE COMMISSIONER: Thank you. That appears to cover all the items. In terms of moving forward and another conference date, the document of course will be updated with the matters that form part of today's conference. Mr Butler has 21 days from today to prepare a number of - a submission in relation to a number of matters. The parties were then going to discuss a number of those matters. Would a date some time in mid-May suit the parties?
PN490
MR BUTLER: Commissioner, APESMA would certainly be agreeable with that.
PN491
MR JACK: AFEI would not oppose that.
PN492
MS CHAN: Commissioner, I've just a quick chat with Ms Bhatt from Ai Group and given that 21 days would take us through to 28 April being when Mr Butler is required to respond, we consider that perhaps some time late May might be more appropriate. That would give the employer parties an opportunity to obviously discuss amongst ourselves any proposals put forward by Mr Butler and then potentially a further week or two, which would allow us to liaise with him again before we report back to the Commission.
PN493
MS BHATT: I'm just conscious of the fact that some of these issues are fairly involved and potentially quite significant and it may be one that once Mr Butler writes to us, we in fact need some time to consider before we can get back to him.
PN494
THE COMMISSIONER: So are you - Ms Bhatt, are you proposing a date in late May, is that - - -
PN495
MR BUTLER: I'd be happy - I fully appreciate that the other parties have got a lot of commitments and the need to consider the various issues, so late May perhaps or even early June I'm not fussed one way or the other for that.
PN496
THE COMMISSIONER: How are the parties - 31 May, Wednesday 31 May.
PN497
MS BHATT: That's suitable to Ai Group, thank you.
PN498
THE COMMISSIONER: Thank you.
PN499
MS CHAN: Ms Chan here, that's similarly suitable to us as well.
PN500
MR JACK: Mr Jack. That's fine with us.
PN501
THE COMMISSIONER: Thank you. The matter will be listed on 31 May then for a further conference. Mr Butler, was that date suitable to you?
PN502
MR BUTLER: Yes, Commissioner, yes. Just one other question if I may, Commissioner.
PN503
THE COMMISSIONER: Yes.
PN504
MR BUTLER: Will there be a transcript available to today's conference or - - -
PN505
THE COMMISSIONER: Yes, there certainly will be.
PN506
MR BUTLER: Thank you. I just want to double check, that's all.
PN507
THE COMMISSIONER: All of these conferences are recorded.
PN508
MR BUTLER: Right, thank you.
PN509
THE COMMISSIONER: Thank you. I'll adjourn then until some time late May.
ADJOURNED UNTIL WEDNESDAY, 31 MAY 2017 [2.44 PM]