PN1

JUSTICE ROSS: Could I have the appearances, please?

PN2

MS N DABARERA: If the Commission pleases, Dabarera, initial N, appearing for United Voice, and with me is Bull, initial S.

PN3

JUSTICE ROSS: Thank you.

PN4

MS J MINCHINTON: If the Commission pleases, Minchinton, initial J, appearing on behalf of the Australian Hotels Association of Australia and the Motor Inn Motel and Accommodation Association.

PN5

JUSTICE ROSS: Thank you. In South Australia?

PN6

MR C KLEPPER: Klepper, initial C for Business SA.

PN7

JUSTICE ROSS: Thank you. In Newcastle?

PN8

MS K THOMPSON: Thompson, initial K for ABI and the New South Wales Business Chambers.

PN9

JUSTICE ROSS: Thank you. We issued a statement on 22 January raising a number of matters with the parties, in particular which matters of the outstanding matters should be dealt with as substantive issues and which should be dealt with as technical and drafting matters. We'll deal with those as we go through the items that are listed on the agenda for today.

PN10

We also raised the translation of the part-time and casual decision into the plain language draft. In relation to that matter there are submissions from United Voice, ABI, the AHA and Business SA. I appreciate that there are no responses to the submissions that have come in. I think there would be some value in providing each party with an opportunity to comment on the submissions of others about that issue, and then that matter can be put on the agenda for the second of the two conferences that are scheduled to deal with this issue. That then can narrow any areas of disagreement, and it can also provide the parties with an opportunity to have discussions between yourselves about that issue.

PN11

So perhaps if you have until 4 pm on Monday, 19 February, to respond in writing to the usual website of AMOD to the submissions of others in relation to the part-time casual issue. We'll publish a short summary of the submissions dealing with that matter. I'd also encourage you to see if you can reach an agreement on those issues, but in any event we'll add them to the agenda for the conference on Friday the 23rd. Can I turn then to the matters that are on the agenda, the nine issues that are on the agenda for today, and as we go through them if they've been reflected in your submissions about what matters are substantive and technical and drafting perhaps you could draw my attention to those as we go through.

PN12

So let's deal firstly with apprentice wage rates, and items 39 and 41. I take it that each of you have the summary of outstanding issues published on 7 February 2018 which is the one that's in the order of the agenda that we're dealing with these. So if we go to the first item, item 39, this is an AHA item, and what do you want to say about this? Bearing in mind that there is the general part-time employment provision which talks about pro-rata payments and the drafter makes the comments that clause 19 reflects the current clause 20.4 of the award in referring to weekly rates only.

PN13

MS MINCHINTON: Yes. Your Honour, in terms of this item we've raised it a few times now and we do note the drafter's comments that it's simply a replication of what's in the award, however, we believe the intention of the plain language redrafting provides the opportunity to clarify that in practice a number of apprentices are employed on a part-time provision, and in fact that the award should reflect this or reflect that part-time hourly rates can be paid. We note in the PLED clause 18, for example, when we're talking about the classifications including the casino classifications there is reference to not only the weekly rate but the hourly rate, and propose that that could be replicated for the apprentices to reflect that where an apprentice is employed on a part-time provision the hourly rate applies to them rather than what could be a confusing aspect at the moment, which is a part-time employee according to the award must be paid a percentage of a weekly rate. So we see that as an opportunity to clarify that confusion but also to provide consistency with the rest of the plain language wages, you know, the way they're being replicated in the plain language draft.

PN14

JUSTICE ROSS: So the proposition would be that there be a column 4 which would indicate the hourly rate; is that right?

PN15

MS MINCHINTON: Yes, your Honour. In addition to the references, both in plain language 19.1 and 19.2 where it introduces the payment schedules. So you would need to look at distinguishing that they get paid the relevant rate specified in column 3 or column 4, and I note that in new item 110 that there has been a change to clause 18 where there is actually for both the casino classifications and for the adult rates at 18.1 there is a new wording that reflects that where you have a full-time employee there is one column that you refer to; for a part-time employee you refer to the next column.

PN16

JUSTICE ROSS: Yes.

PN17

MS MINCHINTON: Something like that, your Honour, would satisfy our concern.

PN18

JUSTICE ROSS: Yes, all right. Can I put that to United Voice. Given it's in clause 18.1 it talks about the rates of pay per ordinary hours of work for a full-time employee directs your attention to the minimum weekly rate; for a part-time employee the minimum hourly rate which is expressed as a column. Is there any reason why we wouldn't do that for clause 19?

PN19

MS DABARERA: Your Honour, we don't have any objection to including a clause in those terms because it would clarify the clause. We do think that the current wording of the plain language exposure draft does reflect the current award, but we're not objecting to AHA's proposition.

PN20

JUSTICE ROSS: All right. Does anyone have anything they want to say? Does anyone else object to what the AHA is proposing?

PN21

MS THOMPSON: No, your Honour.

PN22

MR KLEPPER: No, your Honour.

PN23

JUSTICE ROSS: I think that might resolve item 39 on the basis that we make a similar amendment to that appearing at clause 18.1.

PN24

MS MINCHINTON: Thank you, your Honour.

PN25

JUSTICE ROSS: Item 41?

PN26

MS MINCHINTON: Yes. This is a consistency matter that was raised, your Honour, in terms of the referencing again in the apprentice clauses.

PN27

JUSTICE ROSS: Yes.

PN28

MS MINCHINTON: Clause 19.2(b) includes the words, "as a qualified tradesperson".

PN29

JUSTICE ROSS: 19.2(b).

PN30

MS MINCHINTON: Yes.

PN31

JUSTICE ROSS: Yes.

PN32

MS MINCHINTON: Yes. But 19.1(b) doesn't, and we're talking about two apprenticeships, the waiting apprenticeship and the cooking apprenticeship in our view is just for some consistency in the wording to reflect that, you know ‑ ‑ ‑

PN33

JUSTICE ROSS: We could get consistency by deleting "as a qualified tradesperson" because just looking at it my reaction is it just doesn't make sense. "Who has completed a full apprenticeship as a qualified tradesperson". What does that mean? That they've been a tradesperson when they've completed the apprenticeship or during it?

PN34

MS MINCHINTON: No, no, once they've completed the apprentice successfully then they are a qualified tradesperson.

PN35

JUSTICE ROSS: Then that sort of begs the question, why not just say, "who has completed a full apprenticeship"?

PN36

MS MINCHINTON: Your Honour, if you go that way for the consistency we're ‑ ‑ ‑

PN37

JUSTICE ROSS: It doesn't bother you either way.

PN38

MS MINCHINTON: No.

PN39

JUSTICE ROSS: But I take your point that it does seem odd that in (a) one set of words is used and in (b) another.

PN40

MS MINCHINTON: Yes.

PN41

JUSTICE ROSS: If we ensure the consistency by deleting the words in (b) and just making sure that that consistent expression applies, is there any opposition to that proposition?

PN42

MS DABARERA: No, your Honour, we would actually be agreeable to that proposition.

PN43

JUSTICE ROSS: All right. That resolves item 41. I've got a feeling they're going to get harder as we go on. Let's go to item 43. I must confess I found this a bit difficult inasmuch as I take the point that's raised by AHA that the current award talks about the standard of proficiency, and the plain language redraft talks about successfully completed their schooling and seems to equate the two of them. For myself I'm not sure what's meant by the plain language draft when it says, for example, at 19.3(b) towards the end of it you're entitled to certain payments if the apprentice "has successfully completed their schooling for a year on two occasions". I mean, what does that mean? I had rather assumed that what the proficiency payments are directed to are if you have reached the proficiency level expected for that year of an apprentice on a certain number of occasions through the year then you receive the payment, but the difficulty is I don't think the current award - yes, it doesn't define proficiency payment. So I think there's an issue here. I'm just not sure what the solution might be. Ms Minchinton, what do you want to say about this?

PN44

MS MINCHINTON: Your Honour, in terms of the proficiency payment arrangements it certainly is a unique type of clause. Our concern has been with the plain language redrafting, as you've indicated, the proficiency payment aspect comes into play in terms of the rate of pay that the apprentice receives. It's not an additional payment that they get for proficiency. It's a movement up in the way it's scheduled, and what ‑ ‑ ‑

PN45

JUSTICE ROSS: Yes. But presumably it's sort of a � instead of time served it's competency based. Is that the intent?

PN46

MS MINCHINTON: Yes. It is, your Honour. So the proficiency is, as you've indicated before, completing a year of schooling is different from being assessed as being proficient which is what we're concerned with the plain language redrafting that it takes away from that need to be proficient versus simply rolling over into another year. The apprentice rates of pay schedule is based on a calendar year and our concern is that successfully completing a calendar year means completing the year not necessarily successfully being proficient as required as part of that apprenticeship.

PN47

JUSTICE ROSS: If the language of 19.3 was changed to reflect the current award, so if in (b) for example towards the end there rather than "has successfully completed their schooling for a year on two occasions", if it said, "the apprentice has attained the standard of proficiency on two occasions" then that would seem to reflect the current � it seems to deal with your issue. It reflects the current provision in the award.

PN48

MS MINCHINTON: Yes, we'd be comfortable with that.

PN49

MS DABARERA: On the basis that it reflects the current award, your Honour, we would be agreeable to that.

PN50

JUSTICE ROSS: Does anyone have a different view?

PN51

MS THOMPSON: No, your Honour.

PN52

MR KLEPPER: No. Thank you, your Honour.

PN53

JUSTICE ROSS: Okay. Let's go to payment of wages. The proposition here is the words, "if they so desire" doesn't add anything. It's expressed in terms of an entitlement that the employee has rather than an obligation that the employer must. In those circumstances like any employee entitlement they can decide they don't want it seems to be the proposition.

PN54

MS MINCHINTON: Your Honour, our concerns, as raised, with this is, yes, it is certainly an entitlement for the employer, if they elect to do so. It's not a set entitlement, and the words "if they so desire" suggests that the employee asks for that payment to be made versus the re-written draft which makes it a definite entitlement rather than an elected entitlement.

PN55

JUSTICE ROSS: United Voice?

PN56

MS DABARERA: Your Honour, we think that the plain language version - it makes more sense to put it in the way that the plain language version has in terms of an employee entitlement. But we are mindful that the current award does say "if they so desire", so on that basis we don't have a strong objection to that though we do prefer the plain language version.

PN57

JUSTICE ROSS: Are the parties content for this matter to be resolved by the Full Bench on the basis of what you said at the conference in your written submissions?

PN58

MS MINCHINTON: Yes, your Honour.

PN59

JUSTICE ROSS: Anyone else? No? All right. Let's go to item 56. The issue that's raised here by United Voice is the proposition that 26.10(c) of the plain language draft permits a deduction in certain circumstances and you say that those circumstances are inconsistent with the terms of the Act?

PN60

MS DABARERA: Yes, your Honour. This is one of the matters that the Commission directed us to discuss with the other parties ‑ ‑ ‑

PN61

JUSTICE ROSS: Yes.

PN62

MS DABARERA: ‑ ‑ ‑and decide whether it would be most properly dealt with in these proceedings or the substantive proceedings, and we have had some discussions and we have agreed that we would deal with it appropriately within the substantive proceedings.

PN63

JUSTICE ROSS: All right. Can I just check, because the employer response is largely reserve their position, and if you have the view, or even if you don't positively express it in this way, but if you're of the view that there's a significant doubt about whether 26.10(c) is consistent with the Act then it might be easier to deal with it now. If you are of the view that you oppose the position of United Voice as opposed to not opposing or consenting then of course it'd make more sense to deal with it in the substantive proceedings.

PN64

You may not have formed a view yet but if you have what can you tell me about that position?

PN65

MS MINCHINTON: Your Honour, we haven't actually formed a view at this point in time.

PN66

JUSTICE ROSS: Okay. ABI?

PN67

MS THOMPSON: Yes. I'll need to get some further instructions on that one, your Honour.

PN68

JUSTICE ROSS: I take it Business SA is probably in the same position.

PN69

MR KLEPPER: Yes, we are, your Honour.

PN70

JUSTICE ROSS: On that basis then item 56 will be referred to the substantive proceedings. Can I take you to items 59 and 60. Let's deal with item 59 first.

PN71

MS DABARERA: Your Honour, this is one of our items.

PN72

JUSTICE ROSS: Yes.

PN73

MS DABARERA: Regarding the airport catering supervisory allowance our position is that it is fairly clear in the current award that it is an all-purpose allowance.

PN74

JUSTICE ROSS: Isn't that clear from 26.13(c) though? I suppose it could ‑ ‑ ‑

PN75

MS DABARERA: It doesn't necessarily state that it's an allowance for all-purposes.

PN76

JUSTICE ROSS: Let's go to ‑ ‑ ‑

PN77

MS DABARERA: The issue, your Honour ‑ ‑ ‑

PN78

JUSTICE ROSS: Yes.

PN79

MS DABARERA: ‑ ‑ ‑is that in clause 26.2 of the plain language draft we're saying that this allowance should be included there as an all-purpose allowance.

PN80

JUSTICE ROSS: Is there any dispute from any of the employer interests as to whether or not this is an all-purpose allowance?

PN81

MS MINCHINTON: No, your Honour.

PN82

JUSTICE ROSS: I take it no one is disputing that. So on that basis is there any reason why we wouldn't vary 26.2(b) to include this allowance?

PN83

MS MINCHINTON: No, your Honour.

PN84

JUSTICE ROSS: Then let's go back to 26.13. 26.13(c) may then be unnecessary. Can I take you to � if you look at the forklift allowance in 26.3?

PN85

MS MINCHINTON: Yes.

PN86

JUSTICE ROSS: Assuming we vary 26.2(b) to say the forklift driver allowance in clause 26.3 and the airport catering supervisory allowance in 26.13 are paid for all purposes under this award then you don't need to specifically mention it when you get to that clause because you haven't in relation to forklift driving, for example.

PN87

MS DABARERA: Your Honour, it is actually mentioned in relation to forklift driving in 24.3.

PN88

JUSTICE ROSS: Yes. Yes.

PN89

MS DABARERA: It does say an all-purpose allowance of ‑ ‑ ‑

PN90

JUSTICE ROSS: Yes, okay.

PN91

MS DABARERA: Our preference would be for it to be mentioned just having that ‑ ‑ ‑

PN92

JUSTICE ROSS: Okay. So it could be mentioned in (b) for example. "The employer must pay the employee an all-purpose allowance per week of the amount specified in".

PN93

MS DABARERA: Yes, that would be suitable, your Honour.

PN94

JUSTICE ROSS: Then delete � so make it consistent with the way the forklift driver allowance is dealt with. Does anyone have any opposition to any of that?

PN95

MS MINCHINTON: No, your Honour.

PN96

JUSTICE ROSS: No? Okay.

PN97

MR KLEPPER: No, your Honour.

PN98

JUSTICE ROSS: Then go to item 60. That's a United Voice matter too.

PN99

MS DABARERA: Item 60 actually the wording in relation to that has been resolved, your Honour.

PN100

JUSTICE ROSS: Okay.

PN101

MS DABARERA: Yes. We have checked the plain language draft and the current award ‑ ‑ ‑

PN102

JUSTICE ROSS: Yes.

PN103

MS DABARERA: ‑ ‑ ‑and there's been an amendment there to reflect the current award.

PN104

JUSTICE ROSS: All right. Then let's go to item 67A.

PN105

MS DABARERA: Your Honour, sorry to interrupt.

PN106

JUSTICE ROSS: Yes.

PN107

MS DABARERA: There's actually an item 60(a) which is a separate item that AHA have ‑ ‑ ‑

PN108

JUSTICE ROSS: Yes, I'm sorry. Yes.

PN109

MS DABARERA: Yes.

PN110

JUSTICE ROSS: This is an AHA matter. The issue here is you want it expressed as an hourly rate. The current award expresses it as a daily rate.

PN111

MS MINCHINTON: Yes.

PN112

JUSTICE ROSS: Expressing it as an hourly rate may change the nature of the entitlement because at the moment � well, at the moment it's you get paid for the day, and if you want to split it down into an hourly that may change the nature of it, that's all.

PN113

MS MINCHINTON: Yes, your Honour. We note that where this matter was raised as a new matter was because of the concept of the all-purpose and for the purposes of hourly paid employees including the forklift driver allowance as part of their ordinary rate of pay we viewed an hourly forklift driver allowance as being more - or easier, from a payroll perspective, to break it down.

PN114

JUSTICE ROSS: I suppose the only thing in relation to that is it was an all-purpose allowance under the current award and it's expressed as a per day payment under the current award.

PN115

MS MINCHINTON: Yes, we note that. Yes.

PN116

JUSTICE ROSS: Yes. Look, I understand the proposition that it may make it easier but it may also give rise to the circumstance where an employer takes the view that, "Oh well, they're only driving for one-and-a-half hours on a particular day, we're only going to pay them the hour-and-a-half at the hourly rate. We're only going to pay the forklift allowance for the hour-and-a-half rather than paying the per day rate".

PN117

MS MINCHINTON: Yes. I note what you're saying there.

PN118

JUSTICE ROSS: It's conceivable we could draft something that would make it clear you can't do that, but it then becomes quite a large, almost a sledgehammer to crack a walnut if you like, and the question becomes whether the added complexity is worth the benefit which you say follows from it which would only arise � the all-purpose issue only really arises if there are other payments, for example, if they work overtime and � yes.

PN119

MS MINCHINTON: That was where we viewed an hourly calculation as being appropriate so that overtime and penalty rates could be calculated that way.

PN120

JUSTICE ROSS: You could include a note that, for example, that says, "For the purpose of calculating overtime and other penalty payments the day rate is X cents per hour".

PN121

MS MINCHINTON: The hourly rate you mean, your Honour?

PN122

JUSTICE ROSS: Yes, sorry, the hourly rate is - that would be one option.

PN123

MS MINCHINTON: Yes. Yes, your Honour, can we just have a little think about that and come back to you?

PN124

JUSTICE ROSS: Sure. Yes. I think you're following my concern with it ‑ ‑ ‑

PN125

MS MINCHINTON: Yes. Yes.

PN126

JUSTICE ROSS: ‑ ‑ ‑ that as soon as you have it's that per day or this per hour, it is going to give rise to, not unreasonably, people would interpret that on the basis of, if you're only on the forklift for two hours that's all they're going to be paid at, and that seems to be a shift from the current award.

PN127

MS MINCHINTON: Yes.

PN128

JUSTICE ROSS: I think if you wanted to make that shift you would need to do it as a substantive claim.

PN129

MS MINCHINTON: Yes, I understand, your Honour. We had initially looked at removing the weekly and the daily, just to replace it with an hourly rate so if we can come back to you on that.

PN130

JUSTICE ROSS: Sure. Perhaps if you can indicate where you're up to on that when you file your other submissions in relation to the part-time casual by early next week, then we can return to that next Friday if it's still an issue.

PN131

MS DABARERA: Your Honour, I might quickly state that we do have those concerns that you've raised about this claim because it is a daily allowance, and we have concerns that if it was expressed as an hourly allowance, that it would result to the situation that you've mentioned, which is employees paying it on that hourly basis. So I just wanted to note our concerns there.

PN132

JUSTICE ROSS: All right. Let's go to item 67A, the annual leave entitlement in respect of shift workers. Can I say that Business SA and ABI, although I'm not going to you particularly as we go through these, that's because they've been raised by another party. But if you have anything you want to say, please give me a shout and I will come to you.

PN133

MS THOMSON: Thank you, your Honour.

PN134

MR KLEPPER: Thank you.

PN135

JUSTICE ROSS: Let's go to annual leave. This is an AHA issue. You say that it broadens.

PN136

MS MINCHINTON: Yes, your Honour. We've noted that in the plain language draft the definition of a shift worker has changed from what it is currently in the award.

PN137

JUSTICE ROSS: Just take me through the change.

PN138

MS MINCHINTON: Those are the words "a seven-day shift worker", which currently is in HIGA clause 34.1, has not been ‑ ‑ ‑

PN139

JUSTICE ROSS: Yes. Sure, but doesn't - No, I agree that's the difference. But if you look at (a) it talks about, "In a business in which shifts are continuously rostered 24 hours a day for seven days a week."

PN140

MS MINCHINTON: Yes. That, your Honour, we would suggest is different from the concept of a seven-day shift worker, which we have traditionally interpreted to mean they work across seven - they're available to work and do in fact work across all seven days per week; whereas the 24 hours a day seven days a week refers to the actual business itself. So a business can operate 24 hours a day seven days a week, but you can have an employee who is always off on a Monday, which makes them a six-day worker, not a seven-day worker.

PN141

JUSTICE ROSS: So it would meet your concern if 30.2(a) read:

PN142

Clause 30.2 applies to an employee who is a seven-day shift worker.

PN143

MS MINCHINTON: Yes. Yes, we would prefer to see the current definition replicated.

PN144

JUSTICE ROSS: United Voice?

PN145

MS DABARERA: Our view is that the plain language draft does, in substance, reflect the current wording and that it still retains the key criteria in terms of the shift worker regularly working Sundays and public holidays and so on. That would be our view.

PN146

JUSTICE ROSS: But do you have any opposition to what's being proposed? If it read:

PN147

Clause 30.2 applies to an employee who is a seven-day shift worker; who is regularly rostered to work on Sundays and public holidays in a business in which shifts are continually -

PN148

et cetera?

PN149

MS DABARERA: On the basis that it's in the current award, we wouldn't - we do prefer the plain language one, but we do understand that that's in the current award.

PN150

JUSTICE ROSS: From my perspective I don't disagree with you, that I think the plain language draft does pick up the key points, and the key points are that it's a person who's a shift worker who is regularly rostered to work on Sundays and public holidays. That's the key defining characteristic. I'm not sure that seven days, putting that language before it necessarily adds anything, but I don't think it hurts either. So that's likely to be the way that we would approach it, unless anyone has got another view.

PN151

MS MINCHINTON: Your Honour, if I could just elaborate on the interpretation that we had taken with the definition. We view three particular aspects with the defection: so there is the seven-day worker; they work on public holidays and Sundays, or they're regularly rostered to work; and the business operates 24 hours a day seven days a week. So our current interpretation of the shift worker definition takes into account three elements rather than just the regularly working on Sundays and public holidays.

PN152

JUSTICE ROSS: No, I understand your position, I'm just - I want to make it clear that in making the change that you're proposing, I'm not necessarily accepting the interpretation, that's all. All right, let's move to item 68. As I understand it, the proposition here is in 30.5(a) of the plain language draft where it says, "Clause 30.5 applies to an employee who is employed" - then the words that are sought to be inserted would be, "At or in connection" - it goes on to read, "In connection with catering", et cetera.

PN153

So it's the insertion of the word "at or" which is in the current award. That's what you want to put in because you think - bearing in mind "in connection with" is an expression of wide import, it would include people "employed at" as well as someone "in connection with" with a more tenuous attachment, if you like.

PN154

MS MINCHINTON: Your Honour, our pursuing of this particular matter, we would prefer to see the "at or" in there, because then it provides very clear application, that it can be if you're employed at. We don't understand why the plain language redrafting has removed it.

PN155

JUSTICE ROSS: I think it's for the reasons I've expressed, that "in connection with" is a broader expression than "at or in"; it would encompass both. Having said that, I'm also conscious that if you don't put "at or" it may lead to someone then to look at a later and go: they meant to exclude "at", which is in the intention, but nevertheless. All right, does United Voice have any objection to the insertion of the words "at or" after "employed" as it is currently in 34.4 of the award?

PN156

MS DABARERA: We don't have an objection, your Honour.

PN157

JUSTICE ROSS: I think on that basis we will resolve the matter. Item 69, why do you want "leave without pay" as opposed to "unpaid leave"?

PN158

MS MINCHINTON: Your Honour, we believe that that could create some confusion as to the concept of unpaid leave.

PN159

JUSTICE ROSS: But it's defined in 30.5(c).

PN160

MS MINCHINTON: Your Honour, our concern is in a much wider sense, particularly in relation to section 22 of the Fair Work Act, which very clearly states that a period of unpaid leave doesn't count for accruals, whereas 30.5(f), your Honour, provides that it would, that unpaid leave period would count for the purposes of accruing leave.

PN161

Given that wider potential conflict with definition of continuous service, your Honour, we submit that there's no need to define it as unpaid leave period. It's not currently at the moment, it's recognised as a period of leave without pay, and we raise it for the purpose.

PN162

JUSTICE ROSS: I don't think there's any legal difference between unpaid leave and leave without pay.

PN163

MS MINCHINTON: No. It's more the terminology, your Honour, that we were concerned with than the - - -

PN164

JUSTICE ROSS: And accounting for the purpose of accrual is an issue in the current award.

PN165

MS MINCHINTON: Yes. We don't have an objection to that particular clause, it was more it's interaction in using the words "unpaid leave period" to define a period of leave without pay, when you consider the definition at section 22 of the Act.

PN166

JUSTICE ROSS: All right. Are you content for that matter to be resolved on the basis of what you've said?

PN167

MS MINCHINTON: Yes.

PN168

JUSTICE ROSS: Anything United Voice wants to say about this?

PN169

MS DABARERA: Your Honour, we don't think that there's an issue in terms of the plain language exposure draft, but we don't seek to put any submissions in relation to that.

PN170

JUSTICE ROSS: Okay. Let's go to item 71. Is this an issue where it is in contention whether it goes to substantive or not?

PN171

MS DABARERA: Yes, your Honour. United Voice believes that this is a substantive matter, and we understand that AHA wants us to stay in the plain language proceedings.

PN172

JUSTICE ROSS: Does it matter where it's dealt with?

PN173

MS MINCHINTON: Well, your Honour, we've had a look into the historical representation of the deduction, and in fact in the previous award that applied prior to the hospitality award, being the Hospitality Industry Accommodation Hotels Resorts and Gaming Award 1998, that award contained a clarification that the deduction was per meal, not per week.

PN174

And in fact we have - which I brought copies of if it assists the Commission - a consent order from 2004 between - an application that was brought before the Commission by the AHA and consented to by United Voice, and that very clearly shows in the schedule of the existing - of the clause at the time that the deduction was per meal; whereas in the translation into the hospitality award, the current award, that specific wording was lost, we believe in the translation across as part of the award modernisation process.

PN175

It's on that basis that we see the plain language process as the opportunity to clarify what was the original intention of the deduction per meal.

PN176

JUSTICE ROSS: All right, can you - - -

PN177

MS MINCHINTON: Yes.

PN178

JUSTICE ROSS: So the scope of the issue is that you say that it's a translation issue. It's not a matter that you're going to be provided any evidence on or anything like that, it's one that can be resolved the basis of the submissions you're advancing. Is that it?

PN179

MS MINCHINTON: Certainly we believe the consent order is compelling to it being a drafting error. If it wasn't to be resolved at this stage as a technical and drafting error, then we would - certainly if it were accepted as a substantive issue, which we don't put forward, then we may very well provide some witness evidence about this.

PN180

JUSTICE ROSS: All right. What does United Voice say about the consent order? Two points: (1) the table refers to "a meal" singular, and then there's an amount, which tends to support the AHA's position; and the consent order refers to the deduction being per meal.

PN181

MS DABARERA: Your Honour, our view would be that there's an inconsistency within the consent order itself in the terms that there's a section where it refers to the amounts and it does say "per meal"; however, below that there's a section which talks about internal relativities, and it goes through how the calculations are to be done, and all the calculations for the first four do make sense, but then when it comes to the last calculation for the meal calculation it says one per cent, but the actual amount that has been calculated is not one per cent following the internal relativity, but one per cent of the standard rate at that time. Does that make sense, your Honour?

PN182

JUSTICE ROSS: So one per cent of the standard rate was $5.60. They're not talking about one per cent of $140.30.

PN183

MS DABARERA: That's correct, yes.

PN184

JUSTICE ROSS: That just means - but how does that help you?

PN185

MS DABARERA: In the terms that when the note talks about how to calculate it it states that initially for the first one, which is a single room and three meals a day, you do 25 per cent of the cook tradesperson grade 3 weekly, so you start from that basis; and then the rest of the relativities are to be applied in accordance with that calculation. So the second, shared room and three meals a day, is 97.5 per cent of the first, and so on.

PN186

JUSTICE ROSS: Yes, of 25 per cent of the cook grade 3.

PN187

MS DABARERA: Yes. Yes, that's correct. So you go on and then get to the last one, which is a meal, and it states one per cent.

PN188

JUSTICE ROSS: Yes.

PN189

MS DABARERA: So our view is that that should be one per cent of the 25 per cent, so one per cent of the cook grade 3 weekly - sorry - one per cent of the single room and three meals a day.

PN190

JUSTICE ROSS: Which is?

PN191

MS DABARERA: Which would be actually $1.40.

PN192

JUSTICE ROSS: So you say that the $8.09 isn't right?

PN193

MS DABARERA: We say that when it has been translated into the current award they've actually changed the internal relativity. So they've stated in the current award - so in the current award clause 39.2 when it talks about the internal relativity it's the same for the first four, so single room and three meals a day, so on, it's the same as in the consent variation, but when it comes to the meal it says one per cent of the standard weekly rate. So we argue that there is an inconsistency, and we may seek to bring on evidence in terms of what that inconsistency is.

PN194

JUSTICE ROSS: I see. So the issue may go beyond whether it's $8.09 per meal, it might be a broader issue. Is that what you're foreshadowing?

PN195

MS DABARERA: Yes, your Honour.

PN196

MS MINCHINTON: Your Honour, that's a different item to the item that we've raised, which is a drafting error.

PN197

JUSTICE ROSS: Sure, but they both deal with how the meal deduction is to be - and at what level.

PN198

MS MINCHINTON: The current award, as United Voice has indicated, refers to it as one per cent of the standard weekly rate. So the translation across, you know, we don't have a concern with that, it's more the representation of it being per meal ‑ ‑ ‑

PN199

JUSTICE ROSS: I follow that, yes.

PN200

MS MINCHINTON: ‑ ‑ ‑ which we believe is quite compelling in terms of the consent order and the way the award was represented.

PN201

JUSTICE ROSS: All right.

PN202

MS MINCHINTON: Your Honour, if it helps, also at the time that the matter was being dealt with in 2004 it was a consent position between the two parties that this was how the order was to apply. So there is the suggestion that the relativity in terms of linking it to the standard weekly rate was actually agreed to by the parties.

PN203

MS DABARERA: Your Honour, I might also put from our position that it is a fairly substantial change to the award. Currently there is the $8.09 per week, and if it was to be a per meal deduction it could result in substantially larger increases of - yes, so if it was 10 meals it would be ‑ ‑ ‑

PN204

MR BULL: If you have two meals a day and you work five days it becomes $80, so it's a safety net issue. The status quo is - the relevance of what happened with the Federal award in 2004 in relation to a modern award in 2018 is questionable. The current arrangements, we say are appropriate.

PN205

What the AHA is proposing would be a significant increase in the cost of a meal, and it would give the employers the ability to charge up to - you know, have two meals a day at $16 a day. It's a substantial amount. And it's not inappropriate, these are hospitality enterprises. The current arrangements are appropriate, frankly.

PN206

JUSTICE ROSS: All right. Anything else anyone wants to say about it?

PN207

MS MINCHINTON: No, your Honour.

PN208

JUSTICE ROSS: Having regard to the issues united Voice has raised about the one per cent, I will refer this item and any related matter to the substantive hearing. Item 73.

PN209

MS MINCHINTON: Your Honour, this was a matter that the AHA raised for the associations. It was raised as part of the HIGA matter prior to the plain language, and we thought it was a good opportunity to include this in the plain language process. We note there have been comments about this.

PN210

JUSTICE ROSS: I'm not exactly sure what it is you want. If we go to ‑ ‑ ‑

PN211

MS MINCHINTON: It would be in schedule A, your Honour.

PN212

JUSTICE ROSS: Yes, I'm just going to that now.

PN213

MS MINCHINTON: Page 54.

PN214

JUSTICE ROSS: What's the change that you're seeking?

PN215

MS MINCHINTON: For clarity for the benefit of readers of this award, what you would have after each classification. So for example looking at A.2.1(a), food and beverage attendant grade 1, you would have brackets which says "wage level 1" to provide that clarity throughout the classification definitions, as to which wage level then applies.

PN216

There are a number of wage classifications, such as the clerical classifications, the cooking stream, front office where the wage level is actually different to the grade level.

PN217

JUSTICE ROSS: Yes, okay.

PN218

MS MINCHINTON: And we believe this will provide greater clarity and ease of reading and ease of understanding.

PN219

JUSTICE ROSS: Is there any opposition to that proposal?

PN220

MS DABARERA: No, your Honour.

PN221

JUSTICE ROSS: We will make that change. That deals with 73. 77, this is in A2.2(f), (g) and (h) in the plain language draft. It's the words, "Or who has the appropriate level of training."

PN222

MS MINCHINTON: Yes, your Honour. In our submissions of 8 February we raised this item as a technical and drafting matter. We believe in the translation of the current schedule D across to schedule A in the plain language additional wording being for the cook grade 3, cook grade 4, cook grade 5 classification has been added in when it is not necessary. Those additional words are, "Or who has the appropriate level of training." It currently doesn't appear in the award.

PN223

JUSTICE ROSS: No, it doesn't.

PN224

MS MINCHINTON: The definition of "appropriate level of training" can be much broader than someone who is a tradesperson, whereas these classifications apply to someone who is a qualified tradesperson in the cooking.

PN225

JUSTICE ROSS: So it's the words "who has the appropriate level of training" in addition to what's in the current award and should be removed on that basis.

PN226

MS MINCHINTON: We would like them removed, yes, your Honour.

PN227

JUSTICE ROSS: United Voice?

PN228

MS DABARERA: Your Honour, on the basis that the current award doesn't contain that sentence, we don't object to that.

PN229

JUSTICE ROSS: All right. They will be removed from each of those items.

PN230

MS MINCHINTON: Thank you, your Honour.

PN231

JUSTICE ROSS: If we go to item 84.

PN232

MS MINCHINTON: Your Honour, we actually seek to withdraw item 84 and also item 85.

PN233

JUSTICE ROSS: All right. Item 86.

PN234

MS MINCHINTON: Your Honour, we raised this because of the new use of the word "general" in schedule B. B.2 refers to adult general employees, for example, and we note that the purpose of that is to differentiate between the casino and gaming stream. However, reference to a general employee is not currently in the HIGA. We don't fully understand why the drafter has felt the need to refer to this particular stream as general where it hasn't been beforehand.

PN235

JUSTICE ROSS: What if "general" is taken out, then there's a note inserted to indicate that - probably under B.2 - that the provisions of schedule B.2 do not apply to managerial staff, hotel employees, and casino gaming employees.

PN236

MS MINCHINTON: Yes, that would be satisfactory to us.

PN237

JUSTICE ROSS: I think that's the reason for it. Is that ‑ ‑ ‑

PN238

MS DABARERA: Yes, your Honour, we would be agreeable to that.

PN239

JUSTICE ROSS: Okay. Item 90.

PN240

MS MINCHINTON: Your Honour, we spoke about this at the last conference on 20 December just specifically with regard to schedule C.3 and the note regarding whether penalty rates are payable.

PN241

JUSTICE ROSS: Yes. So it's the note on 92 at the top.

PN242

MS MINCHINTON: Yes. Our concern is with the words "and may not be payable" in reference to clause 24, the annualised salary arrangements. At the conference on 20 December we put forward our concerns that if an employer is satisfying the obligations under clause 24, then penalty rates would not be payable, and therefore the wording should reflect that.

PN243

JUSTICE ROSS: So that's really - bear with me for a moment. I suppose the issue is 24.5. So unless the employer and the employee otherwise agree, annualised - so it doesn't automatically follow that every annualised salary arrangement is going to satisfy penalty payments. There is a capacity for them to agree to the contrary. Do you follow the - - -

PN244

MS MINCHINTON: Yes.

PN245

JUSTICE ROSS: And that's the - - -

PN246

MS MINCHINTON: So clause 24.5 requires that the - clause 24 requires that the annualised salary meet at least what the employee would receive if the award provisions had applied. It's our view is that clause is being met, then that's where the penalty rates would not be - the late work and early work allowances would not be payable.

PN247

JUSTICE ROSS: No, I follow that, but it's the first sentence of 24.5 contemplates that the employer and the employee may agree that the annualised salary does not satisfy.

PN248

MS MINCHINTON: Yes.

PN249

JUSTICE ROSS: So how do you - - -

PN250

MS MINCHINTON: We've looked at some potential wording and our concern is the note could be confusing where clause 24.5 has been satisfied in terms of introducing a potential payment that the employer may not have thought would be payable.

PN251

So in order to address that requirement, your Honour, we thought that some additional wording to clarify that where all requirements of the clause have been met, in particular 24.5, the penalty rates, an employee to whom clause 24 annualised salary arrangement applies. So just to provide that qualification in there that it's not and will not be payable ‑ ‑ ‑

PN252

JUSTICE ROSS: That won't work. That doesn't work, because it's not the case that - that would elevate an annualised salary arrangement to the basis that if you're on one and it doesn't result in the employee being paid less, then you're not pay penalty rates. But that's not the way the clause works. Despite the fact you might be being paid more, and despite the fact that the annualised salary would not result in you being paid less than if the award applied, 24.5 nevertheless contemplates the parties agreeing that overtime and/or penalty rates will apply.

PN253

MS MINCHINTON: Clause 24.12 provides that - if I can use the word reconciliation - that in the event - - -

PN254

JUSTICE ROSS: No, I understand how the clause works. I understand that people can't be worse off under the clause than if the award applies, but the problem is 24.5 contemplates that an annualised salary arrangement can result in the payment of overtime and penalty rates if that's what the parties have expressly agreed. That's the issue, and that's why the note is there.

PN255

MS MINCHINTON: Your Honour, we will withdraw that.

PN256

JUSTICE ROSS: Okay. The last one is school-based apprentices.

PN257

MS MINCHINTON: And, your Honour, we would also seek to withdraw that item 93.

PN258

JUSTICE ROSS: Okay. Let me just recap, then, in case I've missed anything. In relation to item 39 and 41, there will be an additional column with the hourly rate and there will be a variation to reflect the position in clause 18.1. Then item 43, there would be the change to delete, "Has successfully completed their schooling", and that will be amended to reflect the current award term, that is, "The apprentice has attained the standard of proficiency."

PN259

Then item 46 is to be determined on the basis of the submissions. Item 56 is to be referred to the substantive claims Full Bench. Items 59 and 60 have been resolved on the basis that 26.13(b), the words "all purpose" will be inserted where it says "an allowance of x per week", and the change will be made to - in any event, the earlier clause that talks about all-purpose allowances, where it refers to the forklift allowance it will now also refer to the airport catering supervisory allowance.

PN260

60A, I think the AHA it to confirm its position in relation to that. Is that right? Yes. 67A, to insert the words "seven day" before "shift worker", and so it will read, "Applies to an employee who is a seven-day shift worker who is regularly rostered", et cetera. 68, insert the words "at or" before the words "in connection with". 69, I think that's going to be determined on the basis of what has been put.

PN261

71 has been referred to the substantive Full Bench. 73, that has been agreed; that is to put the level after the reference to the classification. 77, it has been agreed that the additional words, "Or who has the appropriate level of training", will be deleted from A2.2(f), (g) and (h). Items 84 and 85 have been withdrawn. Item 86, the reference to "general" will be deleted, but there will be a note under B(2) indicating that the wage rates in that schedule apply to employees other than managerial staff, hotels employees, and casino gaming employees.

PN262

Item 90 is withdrawn, and item 93 is withdrawn. Is that right? Have I missed anything? No? In any event, I will see you in a fortnight, so if I have, you will no doubt let me know then. I think the other thing to mention was I think the AHA is going to clarify its position on one item by 4 pm next Monday. And any submissions in reply to the submissions that have been filed on 8 February regarding part-time and casual and how that translates are to be filed by 4 pm next Monday.

PN263

I would encourage you to have discussions about your respective positions on that, see if we can resolve those issues. And we will publish a summary of those submissions before the next conference. Anything further? No?

PN264

MS MINCHINTON: No, your Honour.

PN265

MS DABARERA: No, your Honour.

PN266

JUSTICE ROSS: No? Anything from ABI of Business SA?

PN267

MS THOMSON: No, thank you, your Honour.

PN268

MR KLEPPER: No, thank you.

PN269

JUSTICE ROSS: All right. I will publish a short report setting out the outcome of today so that everyone is clear about that, and I will see you Friday of next week. Thank you.

ADJOURNED UNTIL FRIDAY, 23 FEBRUARY 2018 �� [11.08 AM]