PN1

THE DEPUTY PRESIDENT: All right. Mr Galbraith.

PN2

MR M GALBRAITH: Thank you, Deputy President.

PN3

THE DEPUTY PRESIDENT: Ms Cruden.

PN4

MS L CRUDEN: Yes.

PN5

THE DEPUTY PRESIDENT: Ms O'Brien.

PN6

MS K O'BRIEN: Yes.

PN7

THE DEPUTY PRESIDENT: And there's also some Ai Group people in Newcastle, are there? Mr Lapin, Mr Cox and Ms Arborn.

PN8

MS O'BRIEN: Yes, Deputy President.

PN9

THE DEPUTY PRESIDENT: They're just observing are they?

PN10

MS O'BRIEN: yes.

PN11

THE DEPUTY PRESIDENT: Okay. So they won't be saying anything.

PN12

MS O'BRIEN: No.

PN13

THE DEPUTY PRESIDENT: Okay. Good. It's not good, but at least I know. Before I go to the further background paper that has being prepared by the AMOD team, I just want to talk a little bit about the process. So my intention is that following today's conference I will prepare a paper or report to the President which will capture the feedback from the parties in relation to the most recent background paper. I judge it's unlikely that the parties will agree with respect to the background paper, that's fine. So the report will capture the comments and feedback in relation to the background paper.

PN14

Once the President has reviewed that with the other Full Bench members it is then the intention to circulate a final position to the parties and provide an opportunity for the parties to make formal submissions. Now, whether that is done by way of written submissions or whether the parties seek an opportunity to make oral submissions is a matter we will address depending on the attitude of the parties.

PN15

If the parties are content to make written submissions, then we will do it that way. There will be a timetable for that. It won't be a long one. We're not talking about an entire award here, we're talking about one, a couple of issues. And once the Full Bench has got those submissions, if it's done on papers, then the Full Bench will finalise that matter. Does that sort of give the parties some clarity in terms of how we're proposing to deal with it?

PN16

MR GALBRAITH: Yes.

PN17

THE DEPUTY PRESIDENT: So as I say, I will provide a report. It would be my intention to provide a copy of that to the parties so they can see what the report contains. Hopefully it will faithfully report the attitude of the parties to the various issues. I can't promise. I've already got people telling me I've got it wrong. But for the purpose of this morning, and if there are issues in the paper that the parties are content with the drafting, then I would welcome feedback to that effect, and also feedback on those issues that parties still have concerns.

PN18

I'm going to go in a different order today. I will go with you first, Mr Galbraith.

PN19

MR GALBRAITH: Thank you, Deputy President.

PN20

THE DEPUTY PRESIDENT: Before you go through it, I guess I will probably try and draw your attention the obvious changes from the previous paper. Firstly we've go from two options to one option, obviously. It's retained the structure such that there are essentially those in-shift changes in hours and those ongoing changes in hours.

PN21

In 12.2(ad) I've explicitly included - the team has explicitly included reference to:

PN22

Variations will be in writing, including by electronic means of communication.

PN23

That's to ensure clarity throughout the clause; whereas under the previous versions it was only made clear in the subsequent 12 point. So the team thought it made sense to include it. Now, picking up on the requests from the unions in relation to the minimum period which had been in the decision, that has been included. I now have the Ai's position on that. Right. So I'm participating you say you object to that for the reasons that you outlined previously. But I'm drawing your attention to the changes that have been made.

PN24

In relation to 12.3(a), whereas the previous clause had said "by the end of the shift", we've added the words "at or by the end of the shift". So minor changes have been made in the terminology in 12.3(b) and 12.4(b). I will just draw your attention that if you hadn't picked that up. Previously it had said words to the effect that "the variation must be recorded in writing". We've just had the terms "the agreed variation" to ensure that it did in fact reflect agreement, as opposed to one party recording it. So the agreed variation must be recorded in writing.

PN25

12.6, the eight hours and the three hours following on from the earlier comment. And then I just wanted to make one comment, I think it was - might have been the SDA, might have been RAFFWU, raised the issue about clarity being provided that if the variation was not recorded as required in the clause, then it should be clear that overtime is payable. I guess comment I would make, that 12.8 makes it clear, and that's the existing wording. 12.8 makes it clear that unless an agreement in accordance with the clause is reached, then it would be overtime would be payable.

PN26

Hence at this stage the preliminary view is that not entirely convinced that there needs to be any additional clarity provided, but that might be something the parties want to talk about this morning and ultimately make submissions on. And I guess there was just that minor consequential amendment to the overtime provisions. And there might be others in the award, but that was the obvious one.

PN27

Again, that would be a matter for the parties to draw our attention to if there are other consequential amendments that need to be made that reflect any changes made to clause 12. All right, so that's a quick thumbnail sketch of the changes that have been made in the draft. So, Mr Galbraith.

PN28

MR GALBRAITH: Thank you, Deputy President. I've noted the changes that you've just referred to.

PN29

THE DEPUTY PRESIDENT: Did I miss any?

PN30

MR GALBRAITH: I don't believe you did.

PN31

THE DEPUTY PRESIDENT: All right. Good.

PN32

MR GALBRAITH: Just a handful of points, and essentially we're largely satisfied with this clause.

PN33

THE DEPUTY PRESIDENT: I thought you might have been more satisfied than my friends on the other side.

PN34

MR GALBRAITH: Are you happy for me to just move through it and make point as we go through?

PN35

THE DEPUTY PRESIDENT: Yes, absolutely.

PN36

MR GALBRAITH: At 12.2(d), and I made reference to this at the last conference, but the wording "including by any electronic means of communication", we have no opposition to the principle of electronic means. We just thought that the word "any" was very broad. I think we had the discussion around faxes and things like that at the last conference, so possibly some wording like "commonly used electronic means", and that's possibly clumsy wording, but something that implies something that is - electronic means that is regularly used, accessible to employees.

PN37

THE DEPUTY PRESIDENT: What about ham radio? You don't ‑ ‑ ‑

PN38

MR GALBRAITH: I think you need a license to operate a ham radio, don't you?

PN39

THE DEPUTY PRESIDENT: I'm being flippant here. I guess ham radio would fall into the bucket of "any electronic means", wouldn't it?

PN40

MR GALBRAITH: It could. And look, that's just something we can tidy up.

PN41

THE DEPUTY PRESIDENT: Maybe we can carve out ham radio.

PN42

MR GALBRAITH: We could possibly - and faxes. I know your views on faxes.

PN43

MS O'BRIEN: in the interests of a truly modern award system.

PN44

MR GALBRAITH: I don't want to spend too much time on that point.

PN45

THE DEPUTY PRESIDENT: Morse code, perhaps? Sorry. I'm taking this to - all right. So you're suggesting that you might propose some words of tidy-up.

PN46

MR GALBRAITH: Yes.

PN47

THE DEPUTY PRESIDENT: Okay. Well, it would be helpful if the parties could suggest words rather than ‑ ‑ ‑

PN48

MR GALBRAITH: Look, I would roughly suggested "commonly used", but I think that's a bit rough. We can probably come up with better words that reflect modern usage, common usage of particular electronic means.

PN49

THE DEPUTY PRESIDENT: All right. Yes.

PN50

MR GALBRAITH: We note that we went through option 2 with 12.3 and 12.4.

PN51

THE DEPUTY PRESIDENT: My recollection was that both unions expressed a preference and that Ai Group didn't express a strong objection, so that ‑ ‑ ‑

PN52

MR GALBRAITH: We think there's merit in splitting the two up, so ‑ ‑ ‑

PN53

THE DEPUTY PRESIDENT: Much of the evidence in the case went that "in shift" issue that arose and was problematic for employers.

PN54

MR GALBRAITH: At 12.5 there's reference to "copy of the agreement made to any variation of the roster" of both 12.3 and 12.4. And going to the point you made a moment ago, we would suggest there's some wording there, or perhaps that's where it says "where there is no record of such agreement, overtime is payable". We note that you referred to 12.8 as possibly addressing that circumstance.

PN55

THE DEPUTY PRESIDENT: Okay. Just a second. 12.5, "Where there is no such record of agreement." Okay. Yes.

PN56

MR GALBRAITH: 12.6, as you identified, is new, and we don't have any objection to that clause. This is a drafting issue, but 12.6.2(e) - sorry, 26.2(e), that's wording that appears in a number of awards, and I think there's sort of a commonly accepted understanding of those words. But going back a number of years, that caused some confusion, I know with the SDA, and that is that "full-time or part-time employees shall be paid overtime for all work as follows", so "paid overtime for hours worked by part-time employees in excess of the agreed hours", in clause 12.2, "or as varied under clause 12.3 and 12.4".

PN57

There was a reading of that going back some time where some people interpreted "overtime being paid for hours varied under 12.3 and 12.4", which is not the intention. So if that was - I don't know whether that's worth a mild redraft to say something along the lines of "hours worked by part-time employees in excess of (1) the agreed hours in clause 12.2; or (2) in excess of the agreed hours as varied under clause 12.3 or 12.4".

PN58

THE DEPUTY PRESIDENT: Yes. I guess there has been an attempt to efficiently draft. I note the intention I think is pretty clear to all the parties, that if the hours are varied in accordance with 12.3 or 12.4, it would then only be the worked beyond that that was paid overtime.

PN59

MR GALBRAITH: That's right. "In excess" seems to link to the agreed hours in 12.2, but it's a little bit ambiguous as to whether "in excess" is also linked to 12.3 and 12.4. I think we've spent enough time with it to know that it is, but someone reading this fresh could be confused by that. Noting that that wording appears in many awards.

PN60

And I make the same point that I made earlier on, which is where there's not a written or electronic record of an agreement to work additional hours, then such hours are overtime. So that could possibly be recorded at (f). My very rough words were "any additional hours worked where there is no written or electronic agreement to work such hours".

PN61

THE DEPUTY PRESIDENT: I want to capture that because I do want to record the suggestion. Sorry, go through that - any ‑ ‑ ‑

PN62

MR GALBRAITH: (f), "Any additional hours worked" ‑ ‑ ‑

PN63

THE DEPUTY PRESIDENT: I'm a slow writer.

PN64

MR GALBRAITH: - - - "where there is no written or electronic agreement to work such hours."

PN65

THE DEPUTY PRESIDENT: Yes, all right.

PN66

MR GALBRAITH: Deputy President, I have no more comments on it.

PN67

THE DEPUTY PRESIDENT: Okay. Ms Cruden.

PN68

MS CRUDEN: Thank you, your Honour. We have three issues we would like to raise ‑ ‑ ‑

PN69

THE DEPUTY PRESIDENT: Three issues, yes.

PN70

MS CRUDEN: - - - in respect of the clause in the background paper. The first, which will not come as a surprise to you, is in respect of clause 12.3(e), and with that we include 12.6, which is ‑ ‑ ‑

PN71

THE DEPUTY PRESIDENT: I understand the thrust of the argument is that the minimum engagement of eight hours was presented or put in the context of flexibility in terms of rostering within an agreed span of hours. So I understand that.

PN72

MS CRUDEN: Yes. I do have four points I would like to have reflected on that particular issue, so I will go through those in a second. Just two preface as well, the other issues that we would just like to revisit coming from my first conference is in relation to clause 12.2(f), and that was there was some discussion at the first conference regarding flexibility and meal breaks, and we're just keen to revisit that area. And the final comments we had in respect of the clause relates to clause 12.3(a). So I will address you on the minimum eight hours issue and Ms O'Brien will address you on the other two. But other than those issues, we are broadly ‑ ‑ ‑

PN73

THE DEPUTY PRESIDENT: What about the points that Mr Galbraith raised in terms of maybe once you've been through those three points you can perhaps respond to those issues as well.

PN74

MS O'BRIEN: Deputy President, in addition in relation to the matter going forward after today, I think you articulated earlier on whether those submissions would be oral or written submissions. Our preference at this stage would be that those submissions would be written submissions, as our instructing parties haven't been able to attend today.

PN75

THE DEPUTY PRESIDENT: Yes. Yes, no, that's fine.

PN76

MS O'BRIEN: So that would be ‑ ‑ ‑

PN77

THE DEPUTY PRESIDENT: Obviously if one or more parties requests the opportunity to make submissions to the Bench, that's something that will be considered by the President. I guess at this stage of the process the preference I think would be to deal with it by written submissions, but that will be a matter for the President, subject to the views of the parties. All right. Let's go to the first one. So it's 12.2(e).

PN78

MS CRUDEN: Yes. And related to that is 12.26 insofar as they both have a requirement of the minimum eight hours per week. So just to clarify, we don't take issue with the retention of the requirement for there to be a minimum engagement per day of three consecutive hours. We note that's a feature of the current award and we don't agitate that.

PN79

THE DEPUTY PRESIDENT: I'm glad you don't take issue with that, because I didn't think that was up for grabs.

PN80

MS CRUDEN: I note the wording did slightly change from the last draft I think we did. Consecutive going in, but that reflects the award, so it's fine from our perspective. The four points I mentioned that we had with respect to the eight hour minimum, the first one is as you indicated previously, was that it was a feature of a whole of package that was put forward as a joint position consented to between the Australian Industry Group and SDA for inclusion in the award.

PN81

I guess the key point there would be that it was inserted as effectively - you know, it may be considered a safeguard or a buffer in the context of the broader flexibilities that were being sought. And I guess because under that proposed wording employees would be making themselves available for windows of time on available days, the role that guaranteed eight hour minimum per week had a role to play in assisting employees to understand and plan for the amount of work that they would do.

PN82

But certainly - as you appreciate, there was no proposition that there be a stand-alone eight hour minimum requirement.

PN83

THE DEPUTY PRESIDENT: But often parties propose good ideas that - the Bench is not confined to take everything.

PN84

MS CRUDEN: Understood, your Honour. But just in ‑ ‑ ‑

PN85

THE DEPUTY PRESIDENT: I know the position you're putting, yes.

PN86

MS CRUDEN: The other point that we would like - the second point we would like recorded is that it was noted in the decision at paragraph 143 that the existing part-time clause is consistent with the general principle in the 2009 award modernisation decision, that it provides part-time employees with a degree of regularity and certainty. The key point that we would wish to make in that regard ‑ ‑ ‑

PN87

THE DEPUTY PRESIDENT: Sorry, which decision were you referring to, sorry?

PN88

MS CRUDEN: In the decision handed down on 20 February.

PN89

THE DEPUTY PRESIDENT: No, no. You referred I think to ‑ ‑ ‑

PN90

MS CRUDEN: The 2009 award modernisation decision.

PN91

THE DEPUTY PRESIDENT: Yes. Thank you.

PN92

MS CRUDEN: So the key point that we seek to make here is that in the absence of the broader changes being made to be part-time provisions in the award with the flexibilities that were being sought, the submission we would make is that it's unnecessary to make a change to include the minimum weekly engagement of eight hours, particularly in circumstances where part-time is defined as having reasonably predictable hours of work. The award does ‑ ‑ ‑

PN93

THE DEPUTY PRESIDENT: What did the evidence say in relation to patterns of work across the industry in terms of average minimum hours? Was there any evidence that went to that?

PN94

MS CRUDEN: There was some evidence that went to that, and that was - the point I was going to make was to refer to some of the evidence and contextualise the eight hours in that. There was evidence in the matter that - and it's in paragraph 30 of the decision - that more than 50 per cent of the workforce works between one to 15 hours a week. And there was also some evidence in that regard regarding ages and, by inference, study ages as part of that. So one of the concerns we would have in setting a minimum of eight hours in the context of a more rigid traditional part-time clause and not a flexible one, is that it may not be suitable to the employees who are currently performing part‑time work in a flexible manner.

PN95

THE DEPUTY PRESIDENT: So for example, a school kids happy to work two days a week, three hours each day; or one shift per week because their study allows. That's the thrust of that.

PN96

MS CRUDEN: Yes. The concern we have is that it's not - well, I guess the evidence wasn't directed at whether or not a stand-alone eight hours without the flexibility flexibilities would be suitable. But the concern we have is firstly that an obligation on an employer to meet an eight hour minimum without the flexibility in how it can discharge that obligation to the employee is more onerous to the employer; and secondly that it may not be suitable to an employee, having regard to the demographics within the industry, and in particular the evidence around the average number of hours worked per week. So the concern we have is whether or not the ‑ ‑ ‑

PN97

THE DEPUTY PRESIDENT: There is a bit of a tension between that position, isn't there? Because, I mean, how different is it for school-age children in circumstances where - maybe it isn't. I mean, if they're school age I would have thought there might be some challenges in terms of working eight hours regardless of whether there's flexibility in terms of the spread of hours.

PN98

MS CRUDEN: Setting the same - it happened to be the same, you know, eight hours performed at particular times of the week, I guess is the concern that we're raising in the context of the demographics in the industry.

PN99

THE DEPUTY PRESIDENT: Yes, okay.

PN100

MS CRUDEN: So it would be two things: it would be the number of hours, but also the fact that it's a rigid - it's the number of hours being set at rigid start and finish times.

PN101

The final point that I've noted, your Honour, was that the guarantee of minimum weekly hours for part-time employees in the context of the Fast Food Award proceedings and matters affecting that award, there has been some regard at other times, you know, to things that are contained within the Hospitality Restaurant Clubs Awards. We know that those do have an eight hour minimum but they are in the context of the flexible part-time provisions. It's not currently something that's in the Fast Food Award, it's also not in the General Retail Industry Award.

PN102

And I guess having regard to the fact that given that those industries have the issues and some of the parallels in their workforces have been the subject of evidence in the award modernisation proceedings as a whole, our concern would be that it's not evident again that an eight hour minimum, absent the flexibilities that were previously sought, would be suitable, having regard to the industry.

PN103

THE DEPUTY PRESIDENT: Yes. I understand that you say that there may be a minimum in some other awards, but it comes with the flexibility that was declined in the particular award.

PN104

MS CRUDEN: Yes. Yes, your Honour, that is the point.

PN105

THE DEPUTY PRESIDENT: All right.

PN106

MS CRUDEN: Those are the key points that we would request be reflected in the report.

PN107

THE DEPUTY PRESIDENT: And 12.2(f)?

PN108

MS CRUDEN: Yes. Ms O'Brien will address you on that.

PN109

MS O'BRIEN: Your Honour, this was an issue that was discussed at quite length at the last conference. Looking at that construction of 12.2, similar provisions were actually provided in three of the pre-modern awards for this industry, but two of those were subject to the meal and meal breaks which provided the clarity that we were seeking last time.

PN110

What is difficult with that here is when you interact it with clause 27.2 of this award, sub-clause (d) states that the time in taking rest and meal breaks, and the duration of meal breaks form part of the roster and are subject to the roster provisions of the award. However, in this current version of the award there's no roster provision, so even that clarity doesn't work.

PN111

So perhaps - in the consequential amendment in clause 27.1(d) that would state something to the effect that the breaks are subject to the provisions of the award, allowing for variations of agreements made under clause 12.2 of the award.

PN112

MR GALBRAITH: Deputy President, I think when we did explore this issue at the last conference we did acknowledge that restriction at 12.2(f) may not be compatible with additional hours.

PN113

THE DEPUTY PRESIDENT: Perhaps you can ‑ ‑ ‑

PN114

MR GALBRAITH: Therefore we think we could work with AiG on that point.

PN115

THE DEPUTY PRESIDENT: So can I ask the parties to actually provide me with a set of words that I can reflect in the discussion paper; not as a final position, but as a potential means of addressing that concern.

PN116

MR GALBRAITH: I think our position would be 12.2 remains as it is, and then possibly a variation ‑ ‑ ‑

PN117

MS O'BRIEN: To 27.

PN118

MR GALBRAITH: ‑ ‑ ‑ to 27. But you can help me draft that.

PN119

THE DEPUTY PRESIDENT: All right.

PN120

MS O'BRIEN: And then the final one we wanted to discuss was the provision in 12.3(a). This is where we have an in-shift variation, which again was discussed at length at the last conference. The difficulty from the employer side is the timing at which that recording may take place. And I do note there has been some redrafting in this section, and I do accept that - we accept that an oral agreement will have been formed, but a difficulty still remains at the time at which the actual writing occurs. I'm not sure that that's still completely clear.

PN121

What we would propose in 12.3 would be amend subsection A to be:

PN122

Any agreement to vary the regular pattern of work for a particular rostered shift must be recorded as soon as practicable at or at the end of the shift.

PN123

So that's more of a question of when the writing is to occur, because I understand the agreement is within shift.

PN124

THE DEPUTY PRESIDENT: "At end of shift" is not particularly precise. I would accept that. I mean, end of shift is that one minute past the end of shift; is it five minutes; is it 10 minutes? I mean, the intention is that you would capture and record the agreed variation before the individual employee left the premises, I would have thought. Although I expect that he could jump on his ham radio when he gets home, or send a fax. Yes, I understand the issue.

PN125

MS O'BRIEN: We just have a concern that if there has been - you know, perhaps it's a very busy shift and the person has left or, you know, the manager has not realised that they've left ‑ ‑ ‑

PN126

THE DEPUTY PRESIDENT: Otherwise engaged, yes.

PN127

MS O'BRIEN: ‑ ‑ ‑ that you've triggered an award breach which potentially attracts a penalty through the non-recording, which is potentially quite an onerous - so some flexibility to do it, you know, at or before the end of the shift, or as soon as reasonably practicable I think would avoid an unnecessarily restrictive or onerous approach which could potentially trigger non-compliance breaches by an employer.

PN128

THE DEPUTY PRESIDENT: I guess this is the whole difficulty with is changing the basis from prior to post, so to speak. Because I'm not saying it would be widespread incidence, but they may be a verbal agreement, and then a manager is chasing an individual for acknowledgement by way of text or email to reflect the agreement that was reached mid-shift that they would work an extra couple of hours, and any individual might simply not respond to that.

PN129

Now, I guess that also exposes the employer to a technical breach if they haven't got a record of the individual's agreement. And that's one of the challenges that flows from providing some additional flexibility for the employer. I'm not sure how you overcome that. Whether you say "at or before the end of the shift" or whether you say "at the end of the shift or as soon as reasonably practicable thereafter", you might still have a recalcitrant employee, or you might have an employer who might be disingenuous in what he's seeking to record.

PN130

MR GALBRAITH: Deputy President, this provision I think requires considerable thought. We understand that a business might be busy and there is - possibly it can be difficult to get agreement during a shift, but we ‑ ‑ ‑

PN131

THE DEPUTY PRESIDENT: Well, no, getting a written agreement.

PN132

MR GALBRAITH: Written agreement ‑ ‑ ‑

PN133

THE DEPUTY PRESIDENT: Verbal agreement is probably easy.

PN134

MR GALBRAITH: - - - sorry. Verbal is okay. But somehow recording it. But we would be very cautious around "reasonably practicable at the end of a shift". We wouldn't want it blowing out 15 minutes, 30 minutes, one hour. Young employees I think at the end of their shift would be happy to record something within five or 10 minutes of the end of their shift, but not an hour or two or ‑ ‑ ‑

PN135

THE DEPUTY PRESIDENT: Well, this is the difficulty in distilling that that the Bench has been satisfied is warranted, and that is some additional flexibility around this issue of mid-shift roster changes, in having something that is precise enough to be enforced. What does "at end of shift" mean? What does "as soon as reasonably practicable" mean?

PN136

MR GALBRAITH: I'm just sort of thinking aloud here. Do you put a "15 minute but no later than 15 minutes"? And I'm not saying that I'm going to agree to that or - I'm going to have to seek instruction, but do we cap it, put a time on it?

PN137

MS O'BRIEN: I think it's also further difficult when the SDA is proposing that when there's an absence of that written agreement, and that can be clearly the fault of either party, that employer is going to face the overtime burden as well. So I think that further complicates the issue.

PN138

THE DEPUTY PRESIDENT: It's just all of these arguments lend weight to making no changes, but we've already formed the view that a change is appropriate. I don't think we want to retreat from that position, it's just how you can ‑ ‑ ‑

PN139

MR GALBRAITH: I don't think we would support the type of words that would permit an employee to game the system to trigger an overtime rate. I mean, if the employer did everything right and gave the employee the opportunity to somehow document, and the employee took off or avoided that opportunity ‑ ‑ ‑

PN140

THE DEPUTY PRESIDENT: Declined to do so.

PN141

MR GALBRAITH: ‑ ‑ ‑ then I don't think that should trigger overtime. But how do we draft that?

PN142

MS O'BRIEN: Yes, I think that's what will have to be clear. And I think therein lies the difficulty with - one of the propositions you had was that if there's no record that overtime is payable, so if there's no record created, so for example if it is because the employee hasn't documented it, then that would make any employer liable.

PN143

MR GALBRAITH: That's why our position is that there's a discussion around - and there's consultation around working with the additional hours, and at the point of that discussion there is some record. And I understand what you're saying, often it's in verbal, it's during a busy shift and needs to be recorded at another time. But I think the greater the time period between the discussion and the consultation and the recording, leaves the situation open to disputes.

PN144

MS O'BRIEN: And some of these issues as well, I think, tie into a concept that we were discussing at the first conference. The points that we just raised about it not being entirely within the employer's power to finalise the written agreement. So at the first conference we were discussing whether or not it's a verbal agreement, but whether or not the recording is a recording of the verbal agreement, whether it's a unilateral recording or a mutual recording.

PN145

THE DEPUTY PRESIDENT: I think there has to be evidence of agreement.

PN146

MS O'BRIEN: Evidence of agreement, yes. So it's a mutual recording. Okay.

PN147

THE DEPUTY PRESIDENT: Yes. I mean, normally there are different ways it can be captured. In those stores that still use a roster on the wall, and I don't know if any do, it can simply be a roster with a change and a signature, or a text between the employer and the individual confirming the agreed extension of hours by three hours.

PN148

MS O'BRIEN: Yes.

PN149

THE DEPUTY PRESIDENT: "Yes, I agree." I think that's the more likely scenario. I don't think it creates more work then for an employer to go and send an email, maybe the employee can pick it up on their phone before they leave the store, and say, "Yep. Agree." Those seem to me to be the 99.9 per cent of changes would be reflected in that manner.

PN150

MR GALBRAITH: Are we over-emphasising the difficulty of just recording an agreement? Possibly a text and a response text. Kids are all on their phone all the time comes the process. And if that becomes the process, then that might be a 30 second activity.

PN151

THE DEPUTY PRESIDENT: Yes.

PN152

MS O'BRIEN: But I also know with this age group, they're not on their phone texting their employer. Perhaps engaging in other activities ‑ ‑ ‑

PN153

THE DEPUTY PRESIDENT: They are texting, but ‑ ‑ ‑

PN154

MS O'BRIEN: ‑ ‑ ‑ so I think we have to be ‑ ‑ ‑

PN155

MR GALBRAITH: As long as they're not doing anything inappropriate during those hours that they should be working, because I wouldn't want to see them exposed to a risk of disciplinary action.

PN156

THE DEPUTY PRESIDENT: Okay. Be on the phone agreeing to a change in hours, but none of the other stuff.

PN157

MS O'BRIEN: Yes, none of the other things.

PN158

THE DEPUTY PRESIDENT: I'm not sure we're any closer to coming up with an idea about how you could capture that in a practical way which didn't expose the employer to the risk of prosecution for want of an individual employee inadvertently or deliberately declining to agree.

PN159

MR GALBRAITH: Can I ask, in terms of the larger employers, the big fast food operators, would there be systems in place now that could be modified slightly? They've all got Intranet and more modern terminology for their communication systems.

PN160

MS O'BRIEN: My understanding at the moment is that they have either at-face technologies where the roster line, for argument's sake, is released, and employees within that system can put in their availability, so when you're writing the roster, those line up. But this function to actually record an agreement is not an aspect of that technology at the moment.

PN161

MR GALBRAITH: I suppose we're looking at two. One is the big operators who have possibly ‑ ‑ ‑

PN162

THE DEPUTY PRESIDENT: Who have already got - they've already got provisions which provide greater flexibility than in ‑ ‑ ‑

PN163

MR GALBRAITH: But the minor operators - you know, a single business ‑ ‑ ‑

PN164

MS O'BRIEN: And it may be that they do the roster initial, but certainly the big players' apps at the moment are not - don't have this functionality.

PN165

THE DEPUTY PRESIDENT: Okay.

PN166

MS O'BRIEN: So that's why I think ‑ ‑ ‑

PN167

MR GALBRAITH: ‑ ‑ ‑ agreements where there are traditional hours provisions, so probably they're not subject to this anyway because of their enterprise agreements.

PN168

THE DEPUTY PRESIDENT: That's right. My recollection is most of the agreements that were in evidence had varying degrees of flexibility around the span of hours and additional hours.

PN169

MS O'BRIEN: I think one of the things we put forward last time is if there would be an option that when you logout of the system and an email could automatically be generated, but even in that system we then have the issue of what is the employee's response to that email? And if it is just a, "Yes, I agree", that could happen, but I think last time ‑ ‑ ‑

PN170

MR GALBRAITH: Finger scanning, is that what you-Wednesday

PN171

MS O'BRIEN: Finger scanning, yes ‑ ‑ ‑

PN172

MR GALBRAITH: We have a slight concern about finger scanning because that's generally a record of when you've left the building. It's not necessarily an indication of an agreement to ‑ ‑ ‑

PN173

MS O'BRIEN: Not the agreement.

PN174

THE DEPUTY PRESIDENT: All right. So I've captured the issue, and that is the desire of Ai Group to have some broader timeframe than "as soon as reasonably practicable", but the issue is then how soon after the end of the shift the agreed variation is captured, be that in hard copy form or electronically. And I understand the SDA concern. You would prefer that there be some - if needed, some hard timeframe within which it needed to be captured.

PN175

Even if you were to do that, it still doesn't avoid the risk that whether you say 15 minutes or prior to the commencement of the next shift, as an example, it still doesn't eliminate the risk that an employee may simply ignore a text, ignore an email, decline to sign a roster, and then the employer technically is obliged to then pay overtime because it doesn't have that record of the agreed variation of the hours.

PN176

And I think the incidence of this is probably quite high, I would have thought, people changing their hours in the middle of a shift. That seemed to be coming out of the evidence as quite a regular occurrence. People don't turn up, somebody is sick, somebody goes home. Easy to manage those ongoing, "Oh, I can work Fridays now." "Oh, great. Now I'll start rostering you for that. Just sign here." That's probably easier.

PN177

Well I would welcome any suggestions from the parties in terms of potential wording. You don't have to confer and agree on that, but you can certainly provide any suggested wording.

PN178

MR GALBRAITH: I think the position I indicated at the beginning of the conference was that we were satisfied with the wording as it is, so possibly AiG put some words to us, particularly around the situation where if you don't get an employee record, then it triggers overtime when the employer has done everything right.

PN179

THE DEPUTY PRESIDENT: Yes.

PN180

MR GALBRAITH: We could look at that. But I think I just want to make the point again, where you have a situation of employees waiting around after a shift to formalise that agreement.

PN181

MS O'BRIEN: I think one of the issues the SDA has raided in relation to 12.2(d) about whether it's commonly used, I think it's our preference - and Leanne will tell me if I'm wrong on this - would be just to leave it as it's drafted. I think "any" encompasses commonly-used employer electronic means ‑ ‑ ‑

PN182

MR GALBRAITH: I don't think we need to spend a lot of time on that. It was a suggestion. But look, I will have a think as well. I mean, I know when employers move from paper pay slips to electronic pay slips, there's generally a small percentage of employees who don't have the ability to access electronic pay slips, and employers will often continue with the paper pay slips. I just want to be mindful that if there is a form of communication, it's one that's widely used.

PN183

THE DEPUTY PRESIDENT: Were there any other issues that were raised by the SDA that you want to comment on?

PN184

MS CRUDEN: For completeness I'm happy to just comment on the balance of them. I believe the respondent at 12.2(d), the observation was made regarding a preference for clause 12.3 and 12.4 to be split. We agree, and also happy with that approach. Clause 12.5 and the request that the wording amended to refer to a situation where there is no record, overtime is payable; and a similar request was made for a new 26.2(f) in that regard.

PN185

Given some of the issues today, I think that concern we have in that regard is it's really - the concern I understand that that goes to is that there has not been an agreement. So if it was something more to the effect of where the employer is unable to demonstrate agreements, so that could be via the written record or otherwise, then there would be an issue.

PN186

So if for some reason the record had been waylaid, the written record, but there was no dispute between the employee and the employer that it had been agreed, for example, wording to the effect that yes, the employer can - provided the employer can demonstrate the agreement, would be more satisfactory in that regard.

PN187

Clause 12.6, the SDA had no objection. We've obviously clearly recorded our objections in respect of the eight hour minimum weekly. Clause 26.2(e), the wording concern wasn't one that we had identified or were particularly attuned to in this context, but note that in the event it could give rise to a technical issue, we would welcome any clarification in that regard.

PN188

THE DEPUTY PRESIDENT: All right. I think I've got all the feedback that I need. The only thing that I had asked the parties to do was look at 12.2(f) and 27.1(d), the consequential amendment, and Ai Group to draft and provide. So that was the meal break issue. Could you make sure that RAFFWU is copied in on all of that.

PN189

MS CRUDEN: Yes.

PN190

THE DEPUTY PRESIDENT: If you can confer and perhaps provide some proposed wording in that by - would by the end of next week be okay?

PN191

MS CRUDEN: Yes, that's suitable.

PN192

THE DEPUTY PRESIDENT: All right. I would like to try and close out the paper within the next week, circulate it to the parties, provide it to the Present, and then we can get on and I guess provide something to the parties on which they can make formal submissions.

PN193

MS CRUDEN: I believe next Friday is Good Friday, so maybe Thursday ‑ ‑ ‑

PN194

MR GALBRAITH: Good Friday ‑ ‑ ‑

PN195

THE DEPUTY PRESIDENT: Yes, I know. The period ‑ ‑ ‑

PN196

MR GALBRAITH: ‑ ‑ ‑ holidays and ‑ ‑ ‑

PN197

MS CRUDEN: Yes.

PN198

THE DEPUTY PRESIDENT: I think 90 per cent of Melbourne won't be at work for about 10 days, I believe. A super long weekend, they say. Any other comments at this stage?

PN199

MR GALBRAITH: No, Deputy President.

PN200

MS CRUDEN: Not from us.

PN201

THE DEPUTY PRESIDENT: Thank you for that. That was good feedback. I note that there's some considerable objection to aspects of it, but I think much of the rest of the clause can probably be managed through. All right. Thank you very much. Have a good Easter.

ADJOURNED INDEFINITELY [10.51 AM]