PN1

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, could I have the appearances please?

PN2

MR K BARLOW: Your Honour, if it please the Commission, Barlow initial K appearing for the CPSU in this matter and with me is Mr S Brewer-McCabe, CPSU organiser, and next to him is Mr M Pentecost, CPSU member delegate and also a witness in this matter, and I also thank the Commission for its indulgence; I have two witnesses by phone, Mr McGettigan and Ms Ellis who are available if they're required, Commissioner. If it please the Commission.

PN3

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, thank you.

PN4

MR M CHESHER: If it pleases the Commission, Chesher, initial M, for the Media Entertainment and Arts Alliance.

PN5

SENIOR DEPUTY PRESIDENT HAMBERGER: And?

PN6

MR J MURDOCH: Yes, if the Commission pleases, Murdoch initials J E, I'm counsel. I've previously been given permission. I'm appearing today with Ms K Westwood and also with Mr M Serong of Norton Rose Fulbright and we appear for Birch Carroll and Coyle Limited, the Hoyts Corporation Pty Ltd, the Greater Union Organisation Pty Ltd, Village Cinemas Ltd and the Independent Cinemas Association of Australia and its members.

PN7

SENIOR DEPUTY PRESIDENT HAMBERGER: Thank you.

PN8

MR M DONALDSON: If it pleases the Commission, Donaldson initial M for Screen Producers Australia.

PN9

SENIOR DEPUTY PRESIDENT HAMBERGER: That's everyone, isn't it?

PN10

DEPUTY PRESIDENT SAMS: There's no one else.

PN11

SENIOR DEPUTY PRESIDENT HAMBERGER: Good, thanks. I think we'll start off with the CPSU matter. Now I mean just to be clear, my understanding is no one has sought to - there's no one here who wants to cross‑examine any of the witnesses is there?

PN12

MR BARLOW: No, your Honour.

PN13

SENIOR DEPUTY PRESIDENT HAMBERGER: No?

PN14

MR BARLOW: My proposal was, as I've already filed fairly detailed written submissions, just to speak for a few minutes.

PN15

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes.

PN16

MR BARLOW: To characterise where we are and then make my witnesses available if you wish to ask them questions about the work they do or any other matter that arises in the application.

PN17

SENIOR DEPUTY PRESIDENT HAMBERGER: Okay.

PN18

MR BARLOW: Is that acceptable as a course to you, your Honour?

PN19

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, that's fine.

PN20

MR BARLOW: So thank you, your Honour. By this application we seek to cover CPSU members who perform work as captionism audio describers and subtitlers and subtitling editors by BREA. It's a small and unique subset of the broadcasting industry and our application contains fairly extensive detail about the different types of work they perform. But in short, captioners and audio describers enable the provision of captions or visual script for persons with disabilities that is broadcast alongside television broadcast or other media content.

PN21

Subtitlers translate foreign languages in to English for obviously television broadcast and other media, and subtitling editors work alongside them to edit and enable those subtitles to properly reflect the medium that is there. I think the history of the industry here is worthwhile touching on very briefly, your Honours and Commissioner. There was a not for profit organisation set up in the early 1980s called Australian Captioning Centre that provided captions, and it was a not for profit organisation and the industry changed in the early 90s with the Broadcasting Act which required certain amounts of television broadcasts to contain captions for people with disabilities.

PN22

From then on the work of the Australian Captioning Centre became larger and in the end it was divided up and the commercial part of it by 2006 was sold off and became what was Red Bee Media Australia and in 2015 was sold to Ericsson. At the same time over that period from about 2006 onwards other players in the industry also emerged as caption became more commercial; and since two thousand and - I think it's 2012 a large proportion of television broadcast has required captions to go alongside it. Now I give you that history, your Honours and Commissioner, basically because it explains the situation that we now find ourselves in.

PN23

The CPSU had a dispute finding in the mid-90s against Australian Captioning Centre and an enterprise award was thereby created. The CPSU (Subtitlers) Award. Now that award still remains and an application was made in 2013 to modernise it and it's one of two awards that has not yet been modernised as part of the enterprise award modernisation process. We specifically asked that that award not be dealt with until this application was brought on before the Commission, mostly because the fact that there is a single instrument that applies to one part of the industry but not all of the industry posed difficulties.

PN24

In many respects it was much more appropriate for the CPSU to create a modern - create classifications that reflect the work being performed as part of a modern award rather than just having discrete coverage to an enterprise award, and so that is the background to this application, your Honours and Commissioner. And obviously my written submissions deal in some detail with the requirements under section 138 and 134 of the Act regarding the modern awards objective, but we say this application is required, the variation to BREA is required to cover this work so that the modern awards objective can be met.

PN25

Now we've got the second part of our application that relates to subtitlers and subtitling editors, the majority of work of which is performed at SBS obviously, but increasingly over the last 10 years or so some of that work has gone outside SBS. So there is no question that SBS is covered by appropriate enterprise agreements and its own award structure, but we say where that work is being performed outside SBS it is appropriate that it be also legitimately award covered. And the difficulty at the moment, your Honours and Commissioner, is in terms of instrumental coverage there is an enterprise award that covers Ericsson currently.

PN26

Other players in that industry would be covered logically by the Miscellaneous Award and we say it's not the purpose or the intent of the Miscellaneous Award to cover work of this nature. This is highly skilled and technical work that is being done - - -

PN27

SENIOR DEPUTY PRESIDENT HAMBERGER: So just to be clear - - -

PN28

MR BARLOW: Sorry, Commissioner. Sorry.

PN29

SENIOR DEPUTY PRESIDENT HAMBERGER: The effect of your application would be to - so what will happen to people who still work for SBS?

PN30

MR BARLOW: SBS will be unaffected, your Honour.

PN31

SENIOR DEPUTY PRESIDENT HAMBERGER: So this won't have any coverage of SBS?

PN32

MR BARLOW: No, it will not have any coverage of SBS because SBS is covered by its own enterprise agreement and its own award.

PN33

SENIOR DEPUTY PRESIDENT HAMBERGER: It's got an award? Okay.

PN34

MR BARLOW: Yes, so there's no - it's just the majority of this work and where the CPSU has members who perform this work is obviously the SBS because it is the predominant, you know, manufacturer - producer of subtitling services in this country obviously. So in some senses our application is discrete in that sense.

PN35

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes.

PN36

MR BARLOW: It's trying to solve a problem about coverage in captioning and audio describers where the 1999 award is an old instrument and when we came to modernise it as part the enterprise award modernisation process, we spoke to at that stage Red Bee and it was decided that the classification structure needed completely updating. The technology had moved on, the roles had moved on and the work had moved on. So it's on that basis that we seek those classifications of trainee and captioner and audio describer, multiskilled captioner and audio describer, advanced multiskilled captioner and audio describer and so on, where there's a cascade of the complexity of the duties they're required to perform but also the multiskilled nature of it.

PN37

DEPUTY PRESIDENT SAMS: So is the SBS Award a standalone enterprise award?

PN38

MR BARLOW: No. No, your Honour. SBS is one of a number of Commonwealth Government authorities that is bound by the Australian Government Employment Award.

PN39

SENIOR DEPUTY PRESIDENT HAMBERGER: I see.

PN40

MR BARLOW: So where SBS has its own schedule as part of that instrument.

PN41

DEPUTY PRESIDENT SAMS: Right.

PN42

MR BARLOW: There are a handful of Australian Commonwealth Government entities that are not covered by that award, for instance the Australian Public Service, ANSTO, ABC, Air Services Australia and a couple of the others that are not covered by the instrument that covers everything else. So in terms of SBS I think the coverage there for this work performed is unambiguous and we don't intend to interfere with that coverage.

PN43

So the other part of our application - and I wish to draw your attention very briefly to the draft determination which was included in our application, your Honour. There was an amended draft determination provided I think on 7 April and I just draw your attention to two parts of that. It's page 21 of our bundle of documents at the bottom, or the second page of the draft determination which was annexure - - -

PN44

SENIOR DEPUTY PRESIDENT HAMBERGER: Just to make sure I've got the right one

PN45

MR BARLOW: I have copies if you like.

PN46

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes. Yes.

PN47

MR BARLOW: I do have copies if you wish me - - -

PN48

SENIOR DEPUTY PRESIDENT HAMBERGER: No, that's all right. I think we've got it. I'm just trying to find it and make sure I've got the right one. Yes.

PN49

MR BARLOW: So, your Honour, if I can draw your attention to part - to the insert number 9, item 9 in that on the second page of the amended draft determination. It basically - as obviously the Commission is aware the Broadcasting and Recorded Entertainment Award has both a front end and a back end with industry specific schedules and parts for it. Now part 6 is television broadcasting as opposed to journalists or radio or so forth, and it intends to insert a note in there that basically says that this part applies to those classifications.

PN50

Because most of our application is to include those classifications in schedule B so the work there is covered, but also to make sure that those are the hours of work provisions, those are the penalty provisions and so forth which apply to those workers. Because otherwise there may be some uncertainty about which part of the BREA would apply to them. And I also draw your attention to item 10 just below.

PN51

Now this is a condition that comes from the pre‑reform 1999 CPSU Subtitlers Award that we're aiming to put in as it applies to this group of workers that basically allows them a 10 minute break in respect of each two hours worked, where they're in front of a visual display unit; and given a lot of their work is done like that it's a fairly important minimum safety net condition for them, your Honour. So I might just very briefly deal with the witnesses we have available for you if you wish to ask them questions.

PN52

COMMISSIONER BOOTH: Just before you do, Mr Barlow.

PN53

MR BARLOW: Yes, Commissioner?

PN54

COMMISSIONER BOOTH: How do these proposed clauses fit with the SBS levels? Are they the same, for example?

PN55

MR BARLOW: No. That's a good question, Commissioner. The answer to that is no. SBS at this stage does not employ any captioners or audio describers, although it once did some many years ago, and so those classifications are a modernisation, for want of a better word, of the existing enterprise award.

PN56

COMMISSIONER BOOTH: Right.

PN57

MR BARLOW: Whereas the work being performed by subtitlers and subtitling editors is obviously covered by the SBS Award and it is at level 4 of the SBS Award. The only difference between our application and the SBS Award is we have made the decision to insert the classification at a slightly lower rate of pay than is provided for in the SBS Award. It is in the SBS Award - sorry, the SBS Award, the Australian Government Employment Award or the SBS schedule in that award.

PN58

COMMISSIONER BOOTH: Yes.

PN59

MR BARLOW: I believe it to be level 4 which is a rate of pay of approximately - sorry, in terms of relativities to a metals rate it's at 160 per cent whereas we're proposing to put it in at 150 per cent alongside the captioner shift leader describer and so forth. And I do have - so yes, in terms of our witnesses, your Honours and Commissioner, we have obviously Mr Brewer‑McCabe whose background of a union official of many years' standing, including representing these workers in either individual grievances or in collective issues, both at SBS and at Red Bee and Ericsson I might add.

PN60

On the phone we have Mr McGettigan who is a captioner and who has worked in that capacity at the Australian Captioning Centre and at Red Bee and now at Ericsson since 2001. We have Ms Ellis who has worked there since 2007 and she has both been a captioner and an audio describer. She's currently an audio describer, and both those witnesses provide information and evidence about the type of work they perform, how they perform it and also the changes in their work over that period. And we also have sitting here at the Bar table with me, your Honours and Commissioner, Mr Pentecost who is a subtitling editor at SBS. And as my written submissions are fairly lengthy I may leave my submissions there, but I invite the Bench to ask any questions if they wish of the witnesses who are available.

PN61

SENIOR DEPUTY PRESIDENT HAMBERGER: We might just mark - I mean do you want to formally tender the statements?

PN62

MR BARLOW: Yes.

PN63

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes.

PN64

MR BARLOW: Yes.

PN65

SENIOR DEPUTY PRESIDENT HAMBERGER: So Mr Brewer‑McCabe is CPSU 1.

EXHIBIT #CPSU1 STATEMENT OF MR BREWER‑MCCABE

PN66

SENIOR DEPUTY PRESIDENT HAMBERGER: Ms Ellis is CPSU 2.

EXHIBIT #CPSU2 STATEMENT OF MS ELLIS

PN67

SENIOR DEPUTY PRESIDENT HAMBERGER: Mr McGettigan is CPSU 3.

EXHIBIT #CPSU3 STATEMENT OF MR McGETTIGAN

PN68

SENIOR DEPUTY PRESIDENT HAMBERGER: And Mr Pentecost is CPSU 4.

EXHIBIT #CPSU4 STATEMENT OF MR PENTECOST

PN69

MR BARLOW: The witnesses are available if you wish to - - -

PN70

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, I think they're fairly self-explanatory. I don't think we've got any questions for the witnesses so that's fine, they can - - -

PN71

MR BARLOW: Thank you, your Honour.

PN72

SENIOR DEPUTY PRESIDENT HAMBERGER: And I don't think - have you got any questions for Mr Barlow?

PN73

DEPUTY PRESIDENT SAMS: No.

PN74

COMMISSIONER BOOTH: No.

PN75

SENIOR DEPUTY PRESIDENT HAMBERGER: No, thanks very much Mr Barlow.

PN76

Now I just want to confirm there's nobody else who wants to be heard on this application?

PN77

SPEAKER: No.

PN78

SENIOR DEPUTY PRESIDENT HAMBERGER: No, okay. Good, thank you. Well, that really deals with your matter.

PN79

MR BARLOW: Yes. Yes it does, your Honour. May I ask - - -

PN80

SENIOR DEPUTY PRESIDENT HAMBERGER: And if you want to, you can be excused and certainly your witnesses are excused and they're free to go.

PN81

MR BARLOW: Okay.

PN82

SENIOR DEPUTY PRESIDENT HAMBERGER: And indeed you're free to go as well if you wish.

PN83

MR BARLOW: Yes, your Honour.

PN84

SENIOR DEPUTY PRESIDENT HAMBERGER: Unless you want to say anything on that later.

PN85

MR BARLOW: No, no, I think we'll leave that to my colleague, Mr Chesher.

PN86

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, okay. Thanks.

PN87

MR BARLOW: Thank you very much, your Honours and Commissioner.

PN88

SENIOR DEPUTY PRESIDENT HAMBERGER: Thank you.

PN89

So look we'll just hang up on the witnesses on the phone. We'll just hang up those numbers.

PN90

Mr Chesher, when you're ready.

PN91

MR CHESHER: Thank you, your Honours and Commissioner. To commence, like my colleague from the CPSU I don't propose to exhaustively go through the chapter and verse of each of our claims. So to a significant extent I'd like to rely upon the submissions that we furnished to the Commission in April 2017 concerning the BREA. MEAA proposed eight substantive variations to the award on 2 March 2015. In the course of discussions with other parties and conferences before your Honour, Hamberger SDP, we now propose generally speaking five variations.

PN92

The first, using the Commission's table of substantive variations dated 8 March 2017, which I believe is the most recent statement of substantive matters. I don't think much will turn on it, your Honour.

PN93

SENIOR DEPUTY PRESIDENT HAMBERGER: No, I think it's all right. I don't actually have it with me, but that's okay. I think - - -

PN94

MR CHESHER: I'll provide you with an explanation of a neat summary I hope of each.

PN95

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes.

PN96

MR CHESHER: The first concerned changing the title and the industry definition of the modern award to incorporate the word "cinema". This was in - - -

PN97

SENIOR DEPUTY PRESIDENT HAMBERGER: I can't remember where we ended up. Was it Broadcast and Recorded Entertainment and Cinema Award?

PN98

MR CHESHER: Yes it was, your Honour.

PN99

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, because at least you can say BRECA I guess.

PN100

MR CHESHER: That's where I thought - there's some cases where the singular works and others where the plural works a little bit better.

PN101

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes.

PN102

MR CHESHER: But it was really seeking clarification. That proposal was prompted by the commentary by the Fair Work Ombudsman in its coverage issues paper of 20 May 2014. I think it's also worth putting on the record that the majority of employees within cinemas in recent years is certainly junior and casual. The figures that were provided to MEAA by the cinema representatives in March 2015 - and I'm happy to provide - hand up copies of this, your Honours - that junior employees were almost 55 per cent of total employees.

PN103

SENIOR DEPUTY PRESIDENT HAMBERGER: Do you want to do that, yes?

PN104

MR CHESHER: I've only got two, I'm sorry. Casual employees were - - -

PN105

SENIOR DEPUTY PRESIDENT HAMBERGER: So we'll just call this table with the industry employment data MEAA 1.

EXHIBIT #MEAA1 TABLE WITH INDUSTRY EMPLOYMENT DATA

PN106

MR CHESHER: Your Honours and Commissioner will see that at the top of that data table the number of junior employees is in the majority of the total. Two lines down the number of casual employees is 74 and a half per cent of adult employees and over 80 per cent of casual employees. I don't think the argument requires much embellishment other than to make the general point that a predominantly casual and young workforce might find assessing its rights a little bit easier if the term cinema were plainly incorporated in the title and the cinema definition - - -

PN107

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, just remind me. I mean most employees including most junior employees in the industry are currently covered by - are still covered by enterprise agreements. Is that right? I mean there was always talk about possibly not, and moving back to the award, I seem to remember.

PN108

MR CHESHER: I did seek advice earlier last year on that very question, your Honour, from the major employers and my best assessment of those responses in a collective form is that the BREA has come to be the dominant industrial instrument within the industry. There has not been a culture of renewal of enterprise agreements for I would say going on eight years now. But the legal position according to the advice that we've received is that where an unterminated enterprise agreement provides for a superior provision to the modern award, that that enterprise agreement provision remains in force. So you do have to read - - -

PN109

SENIOR DEPUTY PRESIDENT HAMBERGER: If the agreement remains in force then the agreement largely displaces the effect of the award apart from the minimum rate of pay.

PN110

MR CHESHER: Only to the extent that the minimum entitlements are different.

PN111

SENIOR DEPUTY PRESIDENT HAMBERGER: Apart from the minimum rate of pay.

PN112

MR CHESHER: Yes.

PN113

SENIOR DEPUTY PRESIDENT HAMBERGER: Well, I'm not sure that's - - -

PN114

MR CHESHER: I'm in your Honour's hands on that.

PN115

SENIOR DEPUTY PRESIDENT HAMBERGER: I'm not here to give you legal advice, but I'm not totally sure that's correct. Okay but what you're saying is there are still of a lot of people covered by enterprise agreements but they haven't been renewed. They're still in place but they're well past their nominal expiry dates?

PN116

MR CHESHER: Yes that's right, and I should say of course your Honour's legal perception is correct but we also wrote to the industry, the major employers, to seek their advice as to whether they were using the Broadcasting and Recorded Entertainment Award rates and the responses were yes.

PN117

SENIOR DEPUTY PRESIDENT HAMBERGER: I'll just put Mr Murdoch on notice if he's able to illuminate this matter later that would be appreciated.

PN118

MR MURDOCH: Happy to. Thank you, your Honour.

PN119

SENIOR DEPUTY PRESIDENT HAMBERGER: Not necessarily now but later.

PN120

MR MURDOCH: Yes.

PN121

SENIOR DEPUTY PRESIDENT HAMBERGER: Thanks.

PN122

MR CHESHER: Notwithstanding that important question, your Honour, I rest on the merits of incorporating the word "cinema".

PN123

DEPUTY PRESIDENT SAMS: Mr Chesher, could I just ask just for my own interest, the distribution of the employees, is that largely reflected in the corresponding populations of States, capitals and regions?

PN124

MR CHESHER: I don't have that data to hand, your Honour.

PN125

DEPUTY PRESIDENT SAMS: Okay.

PN126

MR CHESHER: But this information which was just handed up comes from cinema representatives who represent I would say in excess of 90 per cent of the total cinema workforce. But as to its geographic commonality I can't comment.

PN127

DEPUTY PRESIDENT SAMS: All right. Thank you.

PN128

MR CHESHER: The second set of variations was to amend part 10. That is a primary award. It's now part 11 of the exposure draft and schedule F, which remains the same. Those provisions are presently dedicated to actors. MEAA's endeavour was to more clearly enunciate that dancers are covered by the Broadcasting and Recorded Entertainment Award and the logical place to clarify that, indeed where other dancer entitlements are set out, was in part 10 of that award. Again I refer you to our submissions of April 2017. I will cover that in a little detail, your Honours and Commissioner, later.

PN129

The next change was to again seek a variation to part 10 of the current modern award to better align it with the industry and working environments covered by the award. The example and the change that we seek was to remove what we say is a word with potential limitations and that is the word "film" wherever occurring throughout part 10, to ensure that the suite of film, television and online mediums where performers provide their services are indeed captured. This would simply bring it into alignment with the coverage and industry definitions of the award. We do not submit that it's a material change. It's a clarification in essence. There are some consequential changes which again I'll try and touch on but not labour on a little later in this submission.

PN130

The next, your Honours, was we sought a clearer expression of the term "single time additional" in clause 74.2 of the current award which is clause 78.2 in the exposure draft. We simply agitated that the term be "double time". I note that in the exposure draft that issue has been dealt with and there is now sufficient clarity. Our formulation hasn't been adopted but we have no more to say on that matter. We believe that's largely a technical issue. Those are the matters that MEAA was and is pressing. There were two further matters which my friend from the Screen Producers Association may wish to comment on.

PN131

The first is that in part 10 of the modern award, and I'm referring to the current clause 62.2 in part 10. I'm sorry, 62.11 - my mistake - which was dealt with, "Release allowances". We have undertaken, and this is clear in our submissions of April 2017, that that clause is meant to apply to actors only, not artists or performers however described. We advised the Screen Producers Association and indeed the Commission of that stance by way of letter on - - -

PN132

SENIOR DEPUTY PRESIDENT HAMBERGER: Does something need to go in the draft into the award? I mean it's all very well for MEAA to say "Oh well, we give an undertaking" but if that's the intention it has got to be expressed in the award. I'm just - - -

PN133

MR CHESHER: No, that's correct, your Honour.

PN134

SENIOR DEPUTY PRESIDENT HAMBERGER: It's just that you used the term "performer". The term "performer" is used there and I can't remember with dancers have you then put the - is your proposal that - performers is going to include dancers, isn't it now?

PN135

MR CHESHER: Your Honour's recollection is correct but after some days of wrestling with part 10's myriad treatment of various terms we landed on the potentially imperfect resolution of reforming the term "artist" rather than "performer", which hitherto was not defined within part 10.

PN136

SENIOR DEPUTY PRESIDENT HAMBERGER: I'm just trying to remember now.

PN137

MR CHESHER: With respect to the award as it stands, your Honour, there are imperfections and on occasion conflicting uses of the same expressions. I take your Honour's point that we can't simply agree with another user of the award to amend the award. That's why we advised the Commission of that stance. It's also why in our submissions of April 2017 that we stated - and I think this is correct - on page 8 that we advocated that the Commission consider that the title of clause 72.11 be changed to "Release allowances payable to actors, feature films only".

PN138

SENIOR DEPUTY PRESIDENT HAMBERGER: Fine.

PN139

MR CHESHER: Yes.

PN140

SENIOR DEPUTY PRESIDENT HAMBERGER: Okay.

PN141

MR CHESHER: So we - - -

PN142

SENIOR DEPUTY PRESIDENT HAMBERGER: Right.

PN143

MR CHESHER: We're guilty of casual behaviour on occasion but not this time, your Honours.

PN144

SENIOR DEPUTY PRESIDENT HAMBERGER: No, no, no, that would fix it. I assume that would fix it then, I would think. But sorry, I'm just remembering. So when you put dancers in, if we were to put dancers in, is it part 10 that we would put them in?

PN145

MR CHESHER: Yes.

PN146

SENIOR DEPUTY PRESIDENT HAMBERGER: Because at the moment it's headed - but you propose to change the name of the title, because it's called "Actors".

PN147

MR CHESHER: Yes.

PN148

SENIOR DEPUTY PRESIDENT HAMBERGER: Okay, good.

PN149

MR CHESHER: There are several consequential amendments that we've advocated.

PN150

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, okay.

PN151

MR CHESHER: So there's a variation to the title that we've proposed there. The other matter is we did initially agitate to break down the components of a 10 hour working day, which is longstanding commonplace practice within the film and television industry for all sorts of reasons, including capital utilisation and getting the most of every day. We don't wish to proceed with those clarifications, your Honour, and I'll say no more unless the Bench has questions for me. We also withdraw for the sake of clarity our initial request to define unscheduled overtime. I think we're happy with the definition of scheduled overtime and anything that's not scheduled we would consider to be unscheduled.

PN152

SENIOR DEPUTY PRESIDENT HAMBERGER: And again in terms of the actual practical application of the award for film and TV production, what is it? I mean, are most people covered by enterprise agreements or are there people covered by the award and then there are separate arrangements on top?

PN153

MR CHESHER: It is a mix, your Honour.

PN154

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes.

PN155

MR CHESHER: There are unregistered overarching agreements that have the union and the screen producers as their signatories.

PN156

SENIOR DEPUTY PRESIDENT HAMBERGER: When you say registered, do you mean under the Fair Work Act?

PN157

MR CHESHER: They're not registered under the Fair Work Act.

PN158

SENIOR DEPUTY PRESIDENT HAMBERGER: No, right.

PN159

MR CHESHER: No.

PN160

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes.

PN161

MR CHESHER: But they do facilitate common law contracts between performers and producers. In some respects they're a reflection of what's in the award. In most respects they provide marginal improvements compared to what is in the modern award with respect to both I think the broadcasting and the Live Performance Awards. So there's no reliable data about who uses what.

PN162

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes. But you're saying they're not that different from the award actually?

PN163

MR CHESHER: The unregistered agreements so‑called are superior to what is provided in the modern award.

PN164

SENIOR DEPUTY PRESIDENT HAMBERGER: Right.

PN165

MR CHESHER: In terms of the rates and the allowances. I think they're quite a deal more prescriptive than what you would find in part 10 of the award. Your Honours and Commissioner, if you're happy for me to go on.

PN166

SENIOR DEPUTY PRESIDENT HAMBERGER: No that's - - -

PN167

MR CHESHER: I could bore you at incredible length, but.

PN168

SENIOR DEPUTY PRESIDENT HAMBERGER: No, no, I think that's - I don't know if you've got any other questions?

PN169

DEPUTY PRESIDENT SAMS: No.

PN170

SENIOR DEPUTY PRESIDENT HAMBERGER: No, thank you very much, Mr Chesher.

PN171

MR CHESHER: Thank you, your Honours.

PN172

SENIOR DEPUTY PRESIDENT HAMBERGER: So Mr Donaldson?

PN173

MR DONALDSON: Your Honours, thank you. Firstly I'd just like to confirm that Screen Producers Australia have withdrawn its claims that were previously made. So that aside, the only issue I'd like to raise is the issue of dancers being brought into the award for the first time, and just to touch on Mr Chesher's suggestion to change the heading in 62.11 to refer to actors. I'm just not sure if that fixes the potential confusion, as schedule F has the word "actors" in its heading. So the way that the agreement operates is that performers class 1 and performers class 2 must be paid release allowances or rights loadings as they're sometimes referred to, and I'm just not sure if that actually fixes the problem.

PN174

SENIOR DEPUTY PRESIDENT HAMBERGER: Right, but I mean you're not opposed to the principle of (a) dancers being included in general, but you want to be sure that they don't get the release allowances?

PN175

MR DONALDSON: Yes that's correct, your Honour.

PN176

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes. Yes, so the actual drafting, you're just not quite sure about MEAA's drafting.

PN177

MR DONALDSON: That's right. Screen Producers Australia do not object to dancers being brought into the award. There is an issue, there is still an outstanding issue with the wording that MEAA has proposed in its submission dated April 2017 at clause - at paragraph 27. The wording in bold and underlined would have the effect of bringing dancers in really at any level of dancer or mime artist or puppeteer to a performer class 1 or performer class 2. Where dancers weren't included in the award before, this would give all dancers - it would put them all at the same level as a performer class 1 and class 2.

PN178

In Screen Producers Australia's opinion that's not exactly correct. There are different skill levels and we acknowledge that dancing is a skill above bit players, doubles and extras. It's not always at a skill level that should be remunerated as a performer class 1 and class 2. If for example the dancer is a part of the narrative then that level of skill would be on par with a performer class 1 or class 2. But if the dancer is merely a part of the background scene and adds a bit of colour, for want of a better word, then the skill level and effect on the overall value of the production is not the same.

PN179

SENIOR DEPUTY PRESIDENT HAMBERGER: I thought there was going to be some discussions between yourselves and MEAA about this? Did that ever happen?

PN180

MR DONALDSON: Yes, we have discussed it. We have discussed - - -

PN181

SENIOR DEPUTY PRESIDENT HAMBERGER: But not reached an agreement on this issue? I'm talking about the classifications.

PN182

MR DONALDSON: Yes, that's correct. Yes. So I guess I am making a suggestion that this needs to be thought out a little bit more clearly.

PN183

SENIOR DEPUTY PRESIDENT HAMBERGER: Well, the trouble is, have you got an alternative? And also what is - I mean, the trouble is I hear what you're saying, but have you got an alternative to what is proposed?

PN184

MR DONALDSON: Yes, to include a further classification in schedule F that is dancers.

PN185

DEPUTY PRESIDENT SAMS: And that solves the problem from your perspective, does it?

PN186

MR DONALDSON: Yes. Yes, your Honour.

PN187

SENIOR DEPUTY PRESIDENT HAMBERGER: But have you got - I mean we haven't seen anything from you in writing proposing what that should say.

PN188

MR DONALDSON: No, your Honour, we haven't submitted anything in writing to that effect.

PN189

SENIOR DEPUTY PRESIDENT HAMBERGER: Which makes it difficult because what you're saying while you agree with the broad principle of dancers being included in the award, you don't agree with the specific proposals that MEAA are putting forward.

PN190

MR DONALDSON: That's correct.

PN191

SENIOR DEPUTY PRESIDENT HAMBERGER: But you were given an opportunity to put in submissions in response to their proposal. We didn't get anything in writing.

PN192

MR DONALDSON: Yes, your Honour, we acknowledge that.

PN193

SENIOR DEPUTY PRESIDENT HAMBERGER: It just puts us in a bit of a difficult position now to, you know, make any sort of assessment as to kind of, if you like, who's right and who's wrong.

PN194

MR DONALDSON: Yes, your Honour, we - yes, I acknowledge that.

PN195

SENIOR DEPUTY PRESIDENT HAMBERGER: And also it's potentially an issue of evidence as well as to work.

PN196

MR DONALDSON: Yes, your Honour.

PN197

SENIOR DEPUTY PRESIDENT HAMBERGER: Which again obviously we don't have the benefit of. I'm a bit reluctant to sort of kick this further off into the long grass, if you like, because this has been a long process. Okay, but if you can tell us more about what you say should happen.

PN198

MR DONALDSON: Well, your Honour, as I've said an additional classification of dancer that delineates the different levels of dancing skill and the dancer's role in the narrative of the production as well.

PN199

SENIOR DEPUTY PRESIDENT HAMBERGER: But you don't have a specific written draft variation?

PN200

MR DONALDSON: No, your Honour, I don't. I could provide one but I acknowledge - - -

PN201

DEPUTY PRESIDENT SAMS: How soon could you do that?

PN202

MR DONALDSON: I could provide it by tomorrow.

PN203

SENIOR DEPUTY PRESIDENT HAMBERGER: Okay but I mean the trouble is - and I'm just a bit - I mean we could obviously have another go at this but it's just that you've had lots of opportunities to put this forward and I'm just not sure why we should give you another chance, to be honest. Because obviously we'd have to hear from MEAA and it might come down to an issue of evidence as well, which neither of you have put forward any evidence because I thought it was all kind of not opposed.

PN204

Sorry, Mr Chesher, what did you want to say?

PN205

MR CHESHER: My awareness of SPA's concerns of the incorporation of dancers has started about five minutes ago, your Honour. I have respect for Mr Donaldson but I don't think raising a matter of this substance in the course of presenting final submissions that have long been in the possession of the Commission and the parties is desirable. For clarity's sake, the performer class 1 and performer class 2 are aligned with the relevant dancer provisions of the Live Performance Award.

PN206

SENIOR DEPUTY PRESIDENT HAMBERGER: Sorry, I might just let Mr Donaldson finish and then you can say something in reply.

PN207

MR CHESHER: I'm sorry, yes.

PN208

MR DONALDSON: Your Honour, I think I have finished.

PN209

SENIOR DEPUTY PRESIDENT HAMBERGER: Fine. Sorry, okay.

PN210

MR DONALDSON: Yes. Sorry.

PN211

SENIOR DEPUTY PRESIDENT HAMBERGER: Thanks very much, Mr Donaldson.

PN212

Sorry, Mr Chesher, do you want to - so what you're saying is that originally - so when are we talking about, pre 2010?

PN213

MR CHESHER: What's that, your Honour?

PN214

SENIOR DEPUTY PRESIDENT HAMBERGER: So when you said they're aligned.

PN215

MR CHESHER: No, I'm saying that dancers are covered in the Live Performance Modern Award.

PN216

SENIOR DEPUTY PRESIDENT HAMBERGER: I see, sorry.

PN217

MR CHESHER: And the rates that would flow from incorporating these changes - which in one respect we say have always applied, given that we are seeking to clarify that part 10 covers dancers.

PN218

SENIOR DEPUTY PRESIDENT HAMBERGER: Right.

PN219

MR CHESHER: Are aligned, they're identical to the rates that are provided to dancers in two classes in the Live Performance Award. We say that the scope of payment for dancers is properly reflected in both awards, given that both awards cover the same employees with the same skill sets but deal with different working environs. I'm loathe, but in your hands, to contemplate further gradations in the ability of dancers. That is MEAA's position.

PN220

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes. I think, to be honest, my view would be Mr Donaldson, kind of you had your chance. This has been a long process. There was clear - there were conferences, there were directions set down. You were well on notice that this was what MEAA's proposal was. To now give you an opportunity - I mean obviously we'll hear what - you know, we'll take into account what you've said but I don't think it's appropriate for us to give you a further opportunity to submit further submissions or further evidence beyond today. This was the opportunity to finalise these matters and I think we'll just have to make our decision based on what we've got before us.

PN221

MR DONALDSON: Yes, your Honour. I appreciate that.

PN222

SENIOR DEPUTY PRESIDENT HAMBERGER: Okay.

PN223

Yes, so I don't know if you want to say anything more - sorry, thanks Mr Donaldson.

PN224

MR CHESHER: No, your Honour.

PN225

SENIOR DEPUTY PRESIDENT HAMBERGER: Thanks.

PN226

Mr Murdoch, did you want to say anything about any of this? Although I'm particularly interested in are you comfortable with including cinemas? I think you were, but just tell me if this is correct. So we change the name of the award, yes, a big thing. Put "cinemas" in the name of the award.

PN227

MR MURDOCH: I reiterate, your Honour, our previous advice that our clients are agreeable to that change.

PN228

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes. Good, thanks. Yes.

PN229

MR MURDOCH: With a question on notice, if I may?

PN230

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, yes.

PN231

MR MURDOCH: The position is that in terms of the major chains each of them had a history of enterprise agreements, but it's true that the enterprise agreements have reached their nominal expiry date but they haven't been terminated and they continue in force. Of course continuing force is subject to the application of section 206 of the Act.

PN232

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes.

PN233

MR MURDOCH: Which increasingly as time goes on makes the rates under the modern award more and more relevant.

PN234

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes.

PN235

MR MURDOCH: But they're certainly there and highly relevant in relation to matters going to conditions of employment.

PN236

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, yes.

PN237

MR MURDOCH: I don't know that any more needs to be said about that.

PN238

SENIOR DEPUTY PRESIDENT HAMBERGER: Okay, thank you.

PN239

MR MURDOCH: So far as the substantive matters concerning our clients' concerns, I can say with some confidence that they're non-contentious. But to assist in the wrap up, it's a matter of record that on 10 December 2014 we filed an outline of submissions proposing three substantive changes. One related to clarification of the provisions as to part‑time employment in cinemas. The other related to junior employees and a third proposed a new classification of team leader.

PN240

Now the situation was, as you'll recall, your Honour, that you were involved in chairing conferences of the parties and the outcome of that was that initially there was a discussion about constituting a special Full Bench because there was an anticipation there might have been significant controversy between the parties. Ultimately through the discussions that you facilitated the matters were resolved in their entirety. That meant that the substantive proposals from our clients in relation to junior employees were not pursued and so far as the part‑time provisions were concerned, with changes to accommodate the concerns raised on behalf of MEAA, that matter was settled. Likewise the team leader classification, after considerable to‑ing and fro‑ing with the union, tweaking of the words, that was sorted. So that the - - -

PN241

SENIOR DEPUTY PRESIDENT HAMBERGER: Just remind me was that reflected in one of the reports to the Full Bench?

PN242

MR MURDOCH: I'm just coming to that, if I may, your Honour.

PN243

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, good. I just can't remember all the to‑ing and fro‑ing.

PN244

MR MURDOCH: Although your memory is pretty good. Your Honour, you reported to the President in a report dated 21 July 2016. That's on the website. I haven't brought hard copies of it but I could easily prepare them.

PN245

SENIOR DEPUTY PRESIDENT HAMBERGER: No, that's all right.

PN246

MR MURDOCH: But your report - - -

PN247

SENIOR DEPUTY PRESIDENT HAMBERGER: I think we've got it.

PN248

MR MURDOCH: 21 July 2016.

PN249

SENIOR DEPUTY PRESIDENT HAMBERGER: We've got it actually.

PN250

MR MURDOCH: The report from - this was the earlier one that dealt with the agreement we reached on those items. This one.

PN251

SENIOR DEPUTY PRESIDENT HAMBERGER: I don't know if we do have it, actually.

PN252

COMMISSIONER BOOTH: No.

PN253

SENIOR DEPUTY PRESIDENT HAMBERGER: No, I don't think we do. But it's okay I think. So you said you don't have copies there?

PN254

MR MURDOCH: I can easily get copies prepared.

PN255

SENIOR DEPUTY PRESIDENT HAMBERGER: It might be worth it.

PN256

MR MURDOCH: It might be convenient to - - -

PN257

SENIOR DEPUTY PRESIDENT HAMBERGER: We might just have a very quick break while we get that done.

PN258

MR MURDOCH: Yes.

PN259

SENIOR DEPUTY PRESIDENT HAMBERGER: It might be helpful I think. Yes, we'll just have a short adjournment.

SHORT ADJOURNMENT [11.59 AM]

RESUMED [12.09 PM]

PN260

SENIOR DEPUTY PRESIDENT HAMBERGER: Thank you.

PN261

MR MURDOCH: Yes, thank you for that. It's to be noted of course that the report to the President included the paragraph at the foot of the first page that includes the sentence:

PN262

The parties do however request that their agreement be taken into account by the Full Bench that will be constituted to review group 4 of the modern awards generally.

PN263

And that is - - -

PN264

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes, so this hasn't - so I'm not sure when the latest exposure draft of this award was produced.

PN265

MR MURDOCH: Yes.

PN266

SENIOR DEPUTY PRESIDENT HAMBERGER: Have these been adopted in the exposure draft, the latest one?

PN267

MR MURDOCH: Yes they have.

PN268

SENIOR DEPUTY PRESIDENT HAMBERGER: Okay, good. Thank you.

PN269

MR MURDOCH: Yes. So that while of course we don't presume or assume anything, your Honour the presiding member is aware of the process and the depth and breadth of the discussions that were undertaken by the parties, so that if I can just touch briefly on the two items. With the part‑time employees you'll see the report underlines certain words and those words are reflective of the particular idiosyncratic features of the cinema industry, namely that patronage tends to fluctuate significantly depending upon a number of factors.

PN270

One of them being the quality of the movies, the other being the season and whether there are school holidays. So that the union were ultimately agreeable to the clarification of the clause provided there was the inclusion of the words that you see in 55.2(d), namely the commitment to have the employers endeavour to provide a reasonably regular pattern of work which accommodates the fluctuating operational requirements.

PN271

So there's an endeavour to get a balance there to assist employers in the industry to find it practical to convert people from casual to part‑time, and there had been a reluctance in the past to do so because of the fluctuating patronage levels, dependent upon as I've said the quality of the product and the season. So unless there's any need for any further clarification I don't want to say anything more. With the classifications, the layout of the large cinema complexes has in recent years changed quite significantly with more emphasis than ever before on non‑movie services i.e. bars, restaurants, specialised candy bars, et cetera.

PN272

With this diversification there was a recognition of a need for a new classification of team leader, and there was considerable to‑ing and fro‑ing between the parties to get the definitions right, and the concern of the union had been that they didn't wish to have other supervisory classifications cannibalised. But the union was prepared to recognise a classification which would enable an upgrading of persons who were being put into positions in their immediate work area that attracted greater responsibility.

PN273

So that while recognising that consent positions don't of course bind you, this is a consent position which has a considerable history and a lengthy period of facilitation by your Honour. So we'd ask that the Bench approve the modern award being varied to reflect what's in this report to the President and which, as was established a few minutes ago, already appears in the latest exposure draft.

PN274

SENIOR DEPUTY PRESIDENT HAMBERGER: Thank you.

PN275

So there's no one else, is there? Did you want to say anything, Mr Chesher, about that?

PN276

MR CHESHER: No.

PN277

SENIOR DEPUTY PRESIDENT HAMBERGER: Thanks.

PN278

Well, I think that's all we need to do then. We will obviously reserve our decision. Thank you everyone.

ADJOURNED INDEFINITELY [12.15 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CPSU1 STATEMENT OF MR BREWER‑MCCABE................... PN65

EXHIBIT #CPSU2 STATEMENT OF MS ELLIS............................................. PN66

EXHIBIT #CPSU3 STATEMENT OF MR MCGETTIGAN........................... PN67

EXHIBIT #CPSU4 STATEMENT OF MR PENTECOST................................ PN68

EXHIBIT #MEAA1 TABLE WITH INDUSTRY EMPLOYMENT DATA. PN105