PN1

JUSTICE ROSS: Can I have the appearances, please. Firstly, in Sydney.

PN2

MR B FERGUSON: If the Commission pleases, my name is Ferguson, initial B, for the Australian Industry Group. I also appear on behalf of the private hospital industry employer associations.

PN3

JUSTICE ROSS: Thank you. In Melbourne?

PN4

MS K WISCHER: Your Honour, Wischer, initial K. I appear on behalf of the Australian Nursing and Midwifery Federation.

PN5

JUSTICE ROSS: Thank you. Brisbane, Newcastle?

PN6

MR K SCOTT: If the Commission pleases - in Newcastle - Scott, initial K, appearing for Australian Business Industrial and the New South Wales Business Chamber.

PN7

JUSTICE ROSS: Thanks, Mr Scott. Ms Wischer, when the matter was last before me on 27 August, there was a discussion with the parties around what was the preferred way forward in order to resolve the issue that you had raised following from the Full Bench decision that involved an interpretation of a provision that affected casual employees. Have you had a chance to consider that issue and do you have a view about how you intend to pursue the matter now?

PN8

MS WISCHER: Yes. Thank you, your Honour. The parties have had the opportunity to discuss this and the way forward. I have just now had a conversation with Mr Ferguson and we have, I suppose, outlined a way forward which I might allow Mr Ferguson to explain to you - put to you. There may be some finessing of the approach that's required in the course of this discussion, but I believe we have identified a way that the parties would be happy to proceed.

PN9

JUSTICE ROSS: All right.

PN10

MR FERGUSON: If I could propose the course of action in broad terms. Essentially we share the view I think we put to you last time that there needs to be some sort of arbitral process. We thought there should be perhaps three agreed questions for the parties to address. I think broadly the approach would be this: firstly, the parties will address the question of what is the proper interpretation of the current award provisions relating to the calculation of casual rates for overtime and weekend penalties.

PN11

Secondly, whether any party proposes that a variation should be made to the instrument pursuant to section 160. When I say 'the instrument', I mean those elements that I've just referred to; the rates relating to casual employment rates for weekend penalties and overtime - - -

PN12

JUSTICE ROSS: What instrument?

PN13

MR FERGUSON: The Nurses Award.

PN14

JUSTICE ROSS: All right.

PN15

MR FERGUSON: Starting with the current terms of the Nurses Award.

PN16

JUSTICE ROSS: Yes.

PN17

MR FERGUSON: The third question, where the parties be directed to what variation should be made to the exposure draft provisions dealing with those issues, which we might get to or might not get to.

PN18

JUSTICE ROSS: I think the exposure draft will follow any variation to the award. It really follows from the answer to (1) and then (2).

PN19

MR FERGUSON: Yes. I think that was only in response to a concern your Honour had that there perhaps should be questions about, as a matter of merit, what the rates should be.

PN20

JUSTICE ROSS: Well, I think that would be dealt with in a variation to the Nurses Award, the merit argument, because the exposure draft doesn't have any legal - - -

PN21

MR FERGUSON: No.

PN22

JUSTICE ROSS: No.

PN23

MR FERGUSON: But obviously that would be one way of tidying it up, as it were - you were against, say, a group saying that the current provisions are ambiguous - - -

PN24

JUSTICE ROSS: But you're not arguing ambiguity, you're asking what does the current term mean, aren't you? Wasn't that question 1?

PN25

MR FERGUSON: That is question 1.

PN26

JUSTICE ROSS: Yes.

PN27

MR FERGUSON: The second question is whether a party proposes that a variation should be made pursuant to section 160. The answer to question 1 might be that it's generally ambiguous or that if it means this it's an error; and we say the variation should be made pursuant to 160. That was lodged with the Domain Aged Care invitation - - -

PN28

JUSTICE ROSS: Look, I think I'll leave it to the parties to frame the question. You keep saying the answer to the first might be it's ambiguous. That won't be the answer to the first. The answer to the first will tell you what the meaning is. That's the question. If a party says it's ambiguous, the ambiguity will have to be resolved.

PN29

Look, give some thought to what are we doing all this in the context of, because I don't want to wander down the path of - it's an exercise of judicial power to determine the meaning of an existing provision. You can do that in the context of your consideration of whether it needs to be varied to reflect the proper construction or some other application, but why doesn't a party just put an application in to vary the Nurses Award to say what they think it means at the moment and then we deal with it in that context?

PN30

MR FERGUSON: I suppose we just thought we were in the context of the award review proceedings and you could - the Commission could exercise - - -

PN31

JUSTICE ROSS: I'm not interested in doing anything of my own motion.

PN32

MR FERGUSON: Okay.

PN33

JUSTICE ROSS: No.

PN34

MR FERGUSON: That is, I suppose, where we were getting to.

PN35

JUSTICE ROSS: Yes.

PN36

MR FERGUSON: You can do that.

PN37

JUSTICE ROSS: Yes.

PN38

MR FERGUSON: You would have to answer the interpretation question as a step towards reviewing the award arguably on one view, anyway, unless the parties said as a matter of merit even if it means this now, it shouldn't, and doing it through the prism of these proceedings just because it was brought on from these proceedings. That's the only reason we were going down that path.

PN39

I suppose the underlying issue is they are the questions; how should it be interpreted, should you vary - and obviously the 160 question raises retrospectivity.

PN40

JUSTICE ROSS: That's why I - yes, well - - -

PN41

MR FERGUSON: Is it just so unclear that it should be varied just as a matter of making it clearer?

PN42

JUSTICE ROSS: Well, I'm not proposing to do anything until someone puts in an application and tells me what they want to do. As part of that you can frame questions or however you want to do it. I don't think the exposure draft process is an appropriate way to resolve this issue. It's going to be potentially a significant issue for all the parties and I think you just need to give a bit more thought to how you want it determined.

PN43

There's no purpose in the Commission, in isolation of anything else, expressing a view about what an award provision means because that decision has no legal standing. It has got to be linked to something else. I'm just not sure, on what you've outlined, what it would be linked to, that's all.

PN44

MR FERGUSON: No, we could do it another way. I fully appreciate in terms of an application by any party - I suppose we were connecting it to the resolution of the exposure draft process.

PN45

JUSTICE ROSS: Yes.

PN46

MR FERGUSON: And as you go through that if an issue arises, an ambiguity - and I take what you have already said, your Honour, in relation to your own motion.

PN47

JUSTICE ROSS: Yes.

PN48

MR FERGUSON: But if it had revealed itself in the proceedings that there is an error or an ambiguity - we weren't seeking any sort of declaratory relief. I was just thinking, well, if there has to be an arbitral process it probably matters not a great deal what the vehicle for it is as long as - - -

PN49

JUSTICE ROSS: Yes.

PN50

MR FERGUSON: But I will give some thought to the application. As I said, I suppose we could come here through the award review process and say we were just seeking it for convenience, keeping it going. Given an issue has been raised now about the exposure draft, I had thought the Commission would end up having to deal with that issue, anyway. I'm acting for more than Ai Group, so I'm not rushing about consulting and saying we'll take a step in relation to an application.

PN51

JUSTICE ROSS: Well, I think what I'll do is I'll await a joint paper put in by all of you about what it is you want us to do.

PN52

MR FERGUSON: Yes.

PN53

JUSTICE ROSS: Then give some thought to that. It's probably the easiest way, rather than trying to deal with it on the run.

PN54

MR FERGUSON: Of course, your Honour.

PN55

JUSTICE ROSS: If you stick with the exposure draft it wouldn't be the Full Bench that's finalising the exposure drafts. It's just one more thing that they would have to deal with it and we've got too many things at the moment. It's also not going to be done - it won't be a quick issue. No doubt parties will want to bring material about the history, what it means and all the rest of it.

PN56

MR FERGUSON: I was thinking in terms of time frames. The exposure draft for this process - it would be separate, I appreciate, as well. For convenience it would have to be, but I thought the time frame could run broadly along the same lines.

PN57

JUSTICE ROSS: Well, perhaps give some thought to the time frame in the joint material.

PN58

MR FERGUSON: We can settle that.

PN59

JUSTICE ROSS: Set out if you've got directions or how you want it to run. Set out everything you want to happen with it as a joint position and then - - -

PN60

MR FERGUSON: Yes.

PN61

JUSTICE ROSS: Otherwise I just need to bring you all back and - - -

PN62

MR FERGUSON: No, no. I think there was a level of agreement in principle. It's just putting things in writing.

PN63

JUSTICE ROSS: Yes.

PN64

MR FERGUSON: So I'll do that and - - -

PN65

JUSTICE ROSS: That's all right. Just sort out the detail and then send it in. We'll see how we go.

PN66

MR FERGUSON: Yes.

PN67

JUSTICE ROSS: Well, that's the ANMF, Ai Group and the private employers. Does ABI have a different - anything from you, Mr Scott?

PN68

MR SCOTT: No, your Honour, nothing from me. Thank you.

PN69

JUSTICE ROSS: All right. We will leave it on that basis and I'll wait to hear from you.

PN70

MR FERGUSON: Yes.

PN71

JUSTICE ROSS: Thanks very much.

PN72

MS WISCHER: Thank you, your Honour.

ADJOURNED INDEFINITELY [1.41 PM]