PN1

THE VICE PRESIDENT: Yes, I'll take the appearances. Mr Cooney, you appear for the ASU in Melbourne?

PN2

MR J COONEY: Yes, I do.

PN3

THE VICE PRESIDENT: Ms Bhatt, you appear for the Australian Industry Group in Sydney?

PN4

MS R BHATT: Yes, Vice President.

PN5

THE VICE PRESIDENT: Ms Thomson, you appear for ABI and the NSW Business Chamber in Newcastle?

PN6

MS K THOMSON: Yes, your Honour.

PN7

THE VICE PRESIDENT: And Mr Klepper, you appear for Business SA in Adelaide?

PN8

MR C KLEPPER: Yes, your Honour.

PN9

THE VICE PRESIDENT: Can I note that I've got Mr Moran QC appearing with me at the Bench as on the previous occasion. Ms Bhatt, I might lead off with you. In respect of the document which AiG filed, it wasn't clear to us to what extent that represented the views or the conclusion of all the parties or just some of them. Can you clarify that?

PN10

MS BHATT: Is the Vice President referring to the correspondent that we've filed or the revised summary document?

PN11

THE VICE PRESIDENT: The revised summary document really.

PN12

MS BHATT: It is our understanding that it reflects the position of the parties based on the discussions that we've had, but the other parties had not reviewed a final version of the document before it was filed. They have seen previous iterations of it during the course of our discussions.

PN13

THE VICE PRESIDENT: When you say the parties, you mean all the parties currently in attendance at the conference?

PN14

MS BHATT: Yes, Vice President.

PN15

THE VICE PRESIDENT: All right. Do any of the other parties - Mr Cooney, can you move along a bit so I can actually see?

PN16

MR COONEY: I'm sorry.

PN17

THE VICE PRESIDENT: Make sure you travel the microphone with you. Have the other parties had a chance to review AiG's revised summary submissions to confirm that represents the joint view?

PN18

MR COONEY: Your Honour, I haven't had a chance to go through it as fully as I'd like, but I understood Ms Bhatt's right in that the previous document has reflected the views of the parties, so it would be just a matter for how that current document may have been from the prior document.

PN19

THE VICE PRESIDENT: All right. Ms Bhatt, is it appropriate firstly to start off with your document, which I haven't had the chance to intensively review, and can we just tick off the items which you understand the parties agree have been resolved by the revised exposure draft, so that we're then left with issues that we need to discuss?

PN20

MS BHATT: Yes, Vice President.

PN21

THE VICE PRESIDENT: So can you just start reading out the numbers of matters which you confirm are resolved?

PN22

MS BHATT: Yes. Item 10.

PN23

THE VICE PRESIDENT: Yes.

PN24

MS BHATT: Item 14.

PN25

THE VICE PRESIDENT: Yes.

PN26

MS BHATT: Item 16.

PN27

THE VICE PRESIDENT: Yes.

PN28

MS BHATT: Item 17.

PN29

THE VICE PRESIDENT: Yes.

PN30

MS BHATT: I understand that the submission made by Business SA at item 19 is withdrawn. If Mr Klepper is able to confirm that then that item might also be ticked off.

PN31

THE VICE PRESIDENT: Mr Klepper?

PN32

MR KLEPPER: Yes, I can confirm that has been withdrawn.

PN33

THE VICE PRESIDENT: Thank you. So item 19.

PN34

MS BHATT: Item 23.

PN35

THE VICE PRESIDENT: Yes.

PN36

MS BHATT: Item 25.

PN37

THE VICE PRESIDENT: Yes.

PN38

MS BHATT: Item 33.

PN39

THE VICE PRESIDENT: Yes.

PN40

MS BHATT: Item 34.

PN41

THE VICE PRESIDENT: Yes.

PN42

MS BHATT: I understand that at item 41 the submission made by ABI and the NSW Business Chamber is withdrawn. We might be able to deal with that similarly.

PN43

THE VICE PRESIDENT: Ms Thomson?

PN44

MS THOMSON: Yes, that's correct, your Honour.

PN45

MS BHATT: Item 43, item 47, item 50, items 51, 52 and 53, item 56, item 58, item 60, item 66, item 71, item 73, item 74, item 75, item 76, item 78, item 79, item 85, item 86, item 87, item 88, item 89, item 90, item 93, 95, 97, item 101, 102, 103, 108, 112, 117, 118, 119, 120, 125, 126, 127 - I'm sorry - 127, Ai Group's submission is withdrawn so it's resolved on that basis.

PN46

VICE PRESIDENT HATCHER: Yes.

PN47

MS BHATT: 129, 130, 133, 135, 140, 150. I think that's all of them, Vice President.

PN48

VICE PRESIDENT HATCHER: Thank you. Does any other party have any issue with any of that?

PN49

MR COONEY: No, your Honour.

PN50

VICE PRESIDENT HATCHER: All right. Well let's go back and then start dealing with the remaining items. So item 1, I think the note there is correct. Is there anything else we need to say about that?

PN51

MS BHATT: I don't think so, Vice President.

PN52

THE VICE PRESIDENT: Item 2, we note the comments there. I don't think there's probably any difficulty with that. I think it's probably not the right forum to do this, but the parties might consider whether that definition at some stage needs to be brought into the 21st Century; that is, I'm not sure whether anybody operates a telephone switchboard anymore. But in any event, I think we can proceed upon the basis that those amendments can be made. Item 3?

PN53

MS BHATT: Vice President, can I speak to this briefly?

PN54

THE VICE PRESIDENT: Yes.

PN55

MS BHATT: Ai Group had raised certain concerns about the definition of shift worker as it appeared in the first iteration of the exposure draft.

PN56

THE VICE PRESIDENT: Ms Bhatt, the volume has dropped out.

PN57

MS BHATT: I'm sorry. I'll start again.

PN58

THE VICE PRESIDENT: Yes.

PN59

MS BHATT: Ai Group had raised concerns about the definition of shift worker as it appeared in the first version of the exposure draft. That definition has since been amended, and the concerns we had first raised have been resolved; however, the definition now refers to, "an employee to whom Part 6 applies," and the way certain provisions in Part 6 have been cast in the most recent version of the exposure draft may give rise to some concerns from Ai Group's perspective. I suspect that we will deal with them when we get to the relevant item. I think it's item 106. So for our part, we would seek to reserve our position in relation to item 3, and several other items of this nature that will arise as we work through this summary, because they're associated with the way Part 6 has now been drafted.

PN60

THE VICE PRESIDENT: But assuming Part 6 is appropriately drafted, is there anything wrong with the definition?

PN61

MS BHATT: If it's appropriately drafted, then no, Vice President.

PN62

THE VICE PRESIDENT: So it's a Part 6 issue, it's not a definition issue?

PN63

MS BHATT: I think that might be right, yes.

PN64

THE VICE PRESIDENT: All right. Item 4?

PN65

MS BHATT: Vice President, the definitions clause refers to various tables that are contained in the exposure draft. From our perspective, a simple proposition, we think that the term needs only appear in a definitions clause and be defined if it's in fact used in the instrument. In this case, if you look at the list of tables 1 through to 7, save for table 3, that reference to the table is not in fact used anywhere in the exposure draft apart from appearing as a heading to the relevant table. So the submission was simply that it should be removed. They're not terms that need to be defined.

PN66

THE VICE PRESIDENT: Did you say table 3 is referred to somewhere, is it?

PN67

MS BHATT: Table 3 is referred to in three clauses. We've raised certain concerns about the way the reference to table 3 has been used throughout the exposure draft, and we'll see those submissions appear as we work through the summary, although I'm happy to deal with that now if that's more convenient. But I think the answer in relation to table 3 might be a little bit different to the other tables that have been referred to in clause 2.

PN68

THE VICE PRESIDENT: Let's deal with those table 3 issues now, so which items are they?

PN69

MS BHATT: Item 59 is the first, which relates to clause 16.2 of the exposure draft.

PN70

THE VICE PRESIDENT: Yes?

PN71

MS BHATT: Clause 16.2 says that, "In calculating years for the purposes of table 3, any service in the classification level" - and then it goes on. The way mechanically I understand that this would work is it refers to the table, presumably the reader of the instrument would then need to go to the definitions clause to work out where table 3 is; the reader would be told it's in clause 16.1 and then would turn to clause 16.1. This is not the best example or illustration of this problem because table 3 appears on the very same page. We'll see in some of the other clauses that we look at that the issue that we've raised is a little bit more pronounced. We simply think that the instrument would be simpler - - -

PN72

THE VICE PRESIDENT: So to cut you short, you want a cross‑reference which takes you straight to the clause?

PN73

MS BHATT: To the clause.

PN74

THE VICE PRESIDENT: Yes, all right. What are the other two examples of this?

PN75

MS BHATT: Clause 16.4.

PN76

THE VICE PRESIDENT: What item is that?

PN77

MS BHATT: Items 63 and 64.

PN78

THE VICE PRESIDENT: Is 64 a different issue?

PN79

MS BHATT: It's a slightly different issue. It incorporates this issue about the cross‑reference, but it deals more generally with the drafting of the preamble to.

PN80

THE VICE PRESIDENT: Well I'll come back to that. Was there another one?

PN81

MS BHATT: Yes, item 72, clause 21.3. If I can just add in relation to this clause, it refers back to table 3 which contains the adult rates, but if we look at the comparable provision in the current award, it is drafted so that if, for example, there was a junior employee performing higher duties, the employee would be entitled to the higher applicable rate as payable to a junior employee; they wouldn't suddenly be entitled to the adult rate for the higher classification. So to that extent, the exposure draft at 21.3, we say, changes the legal effect of the award.

PN82

THE VICE PRESIDENT: Just hold on a second. Ms Bhatt, in clause 16, what's the actual operative clause that you're relying upon?

PN83

MS BHATT: I'm sorry, I didn't understand the question.

PN84

THE VICE PRESIDENT: You want the clause to be redrafted just to refer to clause 16 as a whole?

PN85

MS BHATT: The higher duties clause?

PN86

THE VICE PRESIDENT: In item 72, I thought you wanted the reference to table 3 simply to be replaced with a reference to clause 16?

PN87

MS BHATT: Yes, Vice President, that is the submission that we had originally made, but over the course of our discussions and having reviewed the revised exposure draft - - -

PN88

THE VICE PRESIDENT: So I'm looking at the wrong column. So it would just say, "applicable to the higher rate under this award?"

PN89

MS BHATT: Yes. The reason for that is it was previously the case that employees under the Supported Wage System or covered by the National Training Wage Schedule were also dealt with in clause 16. That's no longer the case in the revised exposure draft. So in order to make sure that those groups of employees are also referred to, we consider that the simplest way would simply be to refer to the award generally rather than specific provisions.

PN90

THE VICE PRESIDENT: Do the other parties agree with that?

PN91

MR COONEY: Your Honour, we'd prefer that the wording in the current award - I understand what Ms Bhatt is saying. She is saying that really the risk refers specifically to a wages table, that the solution of other wages tables which might be relevant to a junior employee or a Supported Wage System employee who would be performing higher duties, that's as the ASU understands it, and we think that the matter could be resolved by the wording (indistinct) variation to the wording in the current award.

PN92

THE VICE PRESIDENT: What's the current provision, Mr Cooney?

PN93

MR COONEY: Currently (indistinct) the employee be required to perform - - -

PN94

THE VICE PRESIDENT: No, what's the number of the clause?

PN95

MR COONEY: Sorry?

PN96

THE VICE PRESIDENT: In the current award?

PN97

MR COONEY: 19.7.

PN98

THE VICE PRESIDENT: 19.7, did you say?

PN99

MR COONEY: (Indistinct).

PN100

THE VICE PRESIDENT: Yes, I see. All right. Does anybody else want to say anything more about this issue?

PN101

MS THOMSON: No, your Honour. Either of those two approaches I think would resolve the issue.

PN102

THE VICE PRESIDENT: All right.

PN103

MR KLEPPER: And Business SA is of a similar view there. I think either approach would clear up any difficulty.

PN104

THE VICE PRESIDENT: Thank you. Well let's go back to the order which we were, so item 5.

PN105

MS BHATT: I think there are a couple of issues that arise from the redrafted clause 4.1. The starting point is this is of course an occupational award. Clause 4.1(a) describes the employers that are covered by reference to the employees that would be covered. As I understand it, clause 4.1(b) is intended to ensure that those employees are also covered, but it says:

PN106

This occupational award covers private sector employees of employers mentioned in (a) who are wholly or principally engaged in clerical work.

PN107

The concern is that (b) might be read to mean that the employers must be wholly or principally engaged in clerical work, which would result in a situation where the coverage is cast as though it's an industry award.

PN108

THE VICE PRESIDENT: Would that be resolved by reversing the language so it says: private sector employees who are wholly or principally engaged in clerical work who are employed by employers mentioned in paragraph (a)?

PN109

MS BHATT: I think - - -

PN110

THE VICE PRESIDENT: I'll say that again: private sector employees who are wholly or principally engaged in clerical work described in schedule A classification structure and definitions, who are employed by employers mentioned in paragraph (a).

PN111

MS BHATT: I think that resolves the issue. If I can, an alternate would be to simply replace (b) with the words, "employees of employers described in clause 4.1(a)."

PN112

THE VICE PRESIDENT: So employees of employers, but that doesn't describe the function of the employees, does it? That is, it might - - -

PN113

MS BHATT: I understand the issue.

PN114

THE VICE PRESIDENT: Yes, it might be read as saying it covers all employees of such employers.

PN115

MS BHATT: Or them both.

PN116

THE VICE PRESIDENT: Well I think we understand the point. So what is the other point?

PN117

MS BHATT: The other point is the reference to schedule A in both paragraph (a) and (b). The coverage of the current award is expressed with reference to clerical work, which is a defined term, but doesn't refer to the classification structure. The classification structure lists various typical duties that are undertaken, and the way in which they're described is far more specific than the general definition of clerical work. The concern is simply that if the reference to schedule A somehow had the effect of reading down the potential coverage of the award, and that would alter the legal effect of the coverage clause.

PN118

THE VICE PRESIDENT: To fall within the award, you need to be, 1) within the coverage which is defined by the definition of clerical work, and 2) within one of the classifications, don't you? That's the current position, isn't it?

PN119

MS BHATT: Well if we go to the current clause 4.1, it makes no reference to the classification structure. So the way I would understand it is, to fall within the coverage of the current award, the employee must be undertaking clerical work as defined, and because the classification structure has been drafted the way it has, which is in terms that are quite broad and general, and by reference to the employee's characteristics and skill level as opposed to specific duties or competencies, a consideration of the classification structure is not necessary in determining coverage.

PN120

THE VICE PRESIDENT: That would only change the legal effect if you say there was currently people who perform clerical work who do not fall within any of the classifications, who are covered by the award. Is that the case or not?

PN121

MS BHATT: I'm not in a position to say this way or that. I think the way we approached this was that if it seems on its face that there might be some alteration to the way the provision would apply, then we've raised a concern about it.

PN122

THE VICE PRESIDENT: Yes. Does any other party want to say anything more about this?

PN123

MR COONEY: Yes, your Honour. I think the position of the ASU would be that the coverage clause in the (indistinct) exposure draft would be acceptable if the classification structure in schedule A, as Ms Bhatt had said, was consistent with the current modern award. The other point that - - -

PN124

THE VICE PRESIDENT: What does that mean?

PN125

MR COONEY: There are some changes to the wording of the classification - - -

PN126

THE VICE PRESIDENT: That's a separate issue, which we'll come to.

PN127

MR COONEY: Yes, that's a separate issue.

PN128

THE VICE PRESIDENT: Assuming that's resolved, you're content for it to cross‑reference to the classifications?

PN129

MR COONEY: Yes. I mean, the only other thing I'd say - I don't know whether we'll get very far on this - is that just we would have preferred the term industry work to have remained at 4.1(a) and 4.1(b), and I think it goes to the point that was made earlier that this is the 21st Century. I don't think I've ever heard an employee describe themselves as a clerk in the last 20 years, but I think it might be given the time and place.

PN130

THE VICE PRESIDENT: Yes, all right. Ms Thomson, Mr Klepper, do you want to say anything more about this?

PN131

MS THOMSON: Nothing further, your Honour.

PN132

MR KLEPPER: No, thank you, your Honour.

PN133

THE VICE PRESIDENT: All right, that's item 5. Item 6? So this is a matter for you, Mr Cooney - was it?

PN134

MR COONEY: Sorry, is that item 6.1 - - -?

PN135

THE VICE PRESIDENT: Item 6.

PN136

MR COONEY: Item 6, sorry. Yes, I think - - -

PN137

THE VICE PRESIDENT: Is this the same point about administrative work?

PN138

MR COONEY: It's the same point that I was just touching on.

PN139

THE VICE PRESIDENT: All right.

PN140

MS BHATT: I think it might actually be a slightly separate issue. This is in relation to the reference to clerical and administrative classifications for the purposes of identifying awards, employees who are covered by particular awards who are excluded from the coverage of the Clerks Award. So it doesn't actually touch upon the way in which the coverage of the Clerks Award has been cast. I think that is Mr Cooney's concern. But in any event, in response to certain issues that had been raised by Ai Group, 4.2 has been amended, and from our perspective the removal of the reference to the term, "administrative," in 4.2 resolves the concern that we had at item 6.

PN141

THE VICE PRESIDENT: All right. Anybody else? No, all right. Item 7 - this is the administrative work issue again.

PN142

MR COONEY: Yes, your Honour. As a matter of I guess plain language drafting, the position of the union is that "administrative" is a more modern, up‑to‑date term than "clerk" or "clerical." We had discussions with the AiG. I understand they're concerned that - they see that - they call higher administrative positions might fall within the award. We would say that that would be a matter of further interpretation down the track, but the substantial position of the ASU is that "administrative" is a more modern terminology than "clerk" or "clerical."

PN143

THE VICE PRESIDENT: As I said, that - I understand the point you're making but I suspect at some stage the parties need to have a more comprehensive modernisation of this definition and not deal with it by the sort of piecemeal way that it is. It really needs to give a deep analysis as to the type of work which people perform under this award in the 21st Century. All right, that's item 7. Item 8?

PN144

MS BHATT: Item 8 raises the same issues that were dealt with at item 2.

PN145

THE VICE PRESIDENT: What this, about the comma?

PN146

MS BHATT: It's about the absence of the definition of clerical work, as was the case in the first version of the exposure draft. I think the ASU, like some other parties, raised a concern with that definition being removed from the exposure draft.

PN147

THE VICE PRESIDENT: But that's resolved, isn't it?

PN148

MS BHATT: It's resolved in a sense that the definition has been re‑inserted, but there remain a couple of concerns about the definition that has been re‑inserted.

PN149

THE VICE PRESIDENT: Yes, right. Thank you. Item 9?

PN150

MS BHATT: The redraft of clause 4.2 raises at least one new concern from Ai Group's perspective. As I understand the current coverage clause to work, the Clerks Award does not cover an employer bound by a modern award that contains clerical classifications, and at clause 4.6 we are provided with a list of industry awards that contain such classifications, but that list is not intended to be an exhaustive one. The way in which clause 4.2 has been drafted, it suggests that it is only employers covered by any of the following awards with clerical classifications that are excluded from the Clerks Award, and the more general statement that we find at 4.1(a) of the current award doesn't appear in the exposure draft.

PN151

THE VICE PRESIDENT: Well are there any other awards that contain clerical classifications?

PN152

MS BHATT: I haven't undertaken an exercise of going through all the first modern awards.

PN153

THE VICE PRESIDENT: I understand the general point you're making. It would be desirable if we could give greater certainty as to how this clause operates. I understand the point you're making, Ms Bhatt. I think perhaps internally we might endeavour to check whether there are any other awards that contain clerical classifications and review the position.

PN154

MS BHATT: Yes.

PN155

THE VICE PRESIDENT: I mean, if the consensus could be reached that there is a list of awards that contain clerical classifications and there are no others, it seems to me desirable from the point of view of certainty that we have a complete list. So perhaps we should park that issue until we can work out whether there are any other awards that or even arguably contain clerical classifications.

PN156

MS BHATT: We're of course in the Commission's hands. If I can just raise one issue?

PN157

THE VICE PRESIDENT: Yes.

PN158

MS BHATT: I think, the Commission will of course be aware, that issue in and of itself may be a point of contention that involves not just the parties that are before you today; for example, the first version of the exposure draft listed the Children's Services Award. It is my understanding that there are some parties who in this review - - -

PN159

THE VICE PRESIDENT: Sorry, Ms Bhatt, I'm not sure why but your voice is - I know you can't move that microphone, but your voice is dropping in and out, so I think you need to start again.

PN160

MS BHATT: I'll sit closer, I'm sorry.

PN161

THE VICE PRESIDENT: Yes.

PN162

MS BHATT: The Children's Services Award was referred to in this list of modern awards in the first version of the exposure draft that we saw. It is my understanding that there is a substantial issue that has been agitated by some interested parties in this review about the coverage of clerical employees in the Clerks Award and the Children's Services Award and there's an argument about the proper interpretation of those two coverage clauses. So to the extent that the Commission may produce a list, there may be some broader interests that have something to say about that.

PN163

THE VICE PRESIDENT: Yes, all right.

PN164

MR COONEY: Sorry, your Honour - - -

PN165

THE VICE PRESIDENT: Please.

PN166

MR COONEY: I'm aware for instance that the industry awards, the Social, Community, Home Care and Disability Services Industry Award, has some clerical classifications. I can't think of another award which would have a comprehensive clerical classification, but certainly other awards do contain particular clerical classifications. I've got memories of having seen it at least a couple of years ago in the office. I'll go back to have a look for that.

PN167

THE VICE PRESIDENT: Yes, well that would be helpful. All right, item 11?

PN168

MS BHATT: Vice President, Ai Group hadn't filed any submissions in relation to clause 4.3(a) because at the time we had understood that it was going to be dealt with through some separate process, which we understand is no longer the Commission's intention. We've identified just one concern with clause 4.3(a) in the revised exposure draft. I'm looking at the text that appears in red. It says:

PN169

If the employee is not covered by another modern award containing a classification that is most appropriate to the work performed.

PN170

I think we'll find that the current clause 4.4 refers to an award container classification that is "more" appropriate, as opposed to "most" appropriate. From the perspective of a provision that is easily read and understood, I think the use of the word "more" makes more sense, and to the extent that it is the intention of 4.3(a) to fix an issue about overlapping award coverage between two other awards, that of course shouldn't be a matter for the coverage of the Clerks Award. So we just say that "most" should instead say "more."

PN171

THE VICE PRESIDENT: The residual conflicting coverage clause is currently clause 4.7, which says "most," and that has been retained in clause 4.5.

PN172

MS BHATT: Yes.

PN173

THE VICE PRESIDENT: So why wouldn't this clause be consistent with that approach, which I understand is in effect a model term?

PN174

MS BHATT: As I understand it, 4.3(a) simply deals with whether or not on‑hire employees are covered by this award or some other award, and for the purposes of making that assessment it is only necessary for the reader of the award to determine whether there is some other award that contains classifications that are more appropriate. There might be more than one such award that has classifications that are more appropriate, but that's all you need to assess or determine in order to work out whether or not that particular employee is in or out for the purposes of 4.3(a). You don't need to make an assessment as to which one is most appropriate - for the purposes of clause 4.5 - - -

PN175

THE VICE PRESIDENT: If we have two options and option one is more appropriate than option two, option one will be the most appropriate option, won't it? There can't be a difference, can there?

PN176

MS BHATT: But is it a matter for the Clerks Award to determine potential overlapping coverage between two other awards? That's what we were trying to grapple with.

PN177

THE VICE PRESIDENT: Well that's what 4.4 does currently, doesn't it? Subject to the difference between "more" and "most," it's the same thing that 4.4 does. Whether that needs to be there at all might be another question.

PN178

MS BHATT: With respect, Vice President, I am not certain that 4.4 does the same thing. I think the question that arises under clause 4.4 is: is there some other award that has more appropriate classifications. Or it might be that there is more than one other award that contains more appropriate classifications, and if that's the case then that clerk is not covered by this award, and the on‑hire employer is not covered by this award for the purposes of that employee; and then the employer and employee must look at those other two more appropriate awards to work out which covers them and which one doesn't by reference to the terms of those two awards and by reference to a clause that probably looks like clause 4.5 of this exposure draft, although I should note that I don't think that all awards necessarily contain that clause. I don't think it's a matter for this award to determine the potential overlapping coverage between two other awards for the purposes of on‑hire employees and employers, and I don't think 4.4 of the current award does that. It doesn't need to.

PN179

THE VICE PRESIDENT: Yes, all right. Ms Bhatt, why do we need these words at all, given that what is currently 4.7 and it is now 4.5 deals with the situation of conflicting awards in a general sense?

PN180

MS BHATT: I think I would have to take some instructions about that. As the Vice President has already indicated, these clauses about on‑hire employees and group training services are model provisions that were developed I think during the Part 10A process, and if there was any consideration of removing them from the exposure draft, we'd like to have an opportunity to go back and look at what was said about them and think this through fully.

PN181

THE VICE PRESIDENT: I haven't checked this, so you're saying that what is currently 4.4 is either a model or a common provision?

PN182

MS BHATT: Yes, Vice President. I think it appears in the very vast majority of awards, if not all.

PN183

THE VICE PRESIDENT: All right. Does anyone else want to say anything about this?

PN184

MR COONEY: I think we'd deal with it on the same basis. If that was the intention of the Commission, I'd consult with branches just to see the effect of 4.3 and 4.4 and the Part 10A process, and whether that can replace clause 4.5.

PN185

THE VICE PRESIDENT: As Ms Bhatt says, if a change of that nature would have implications on a whole range of other awards, then I don't think we're going to resolve it as part of this process. Anybody else on this item?

PN186

MS BHATT: I also wanted to raise an issue about 4.3(b), which relates to trainees.

PN187

THE VICE PRESIDENT: Yes.

PN188

MS BHATT: 4.3(b) says that:

PN189

The award covers trainees employed by a group training employer and hosted by an employer covered by this award.

PN190

So it seems to require that for a trainee to be covered the host employer must be covered by the award, and if we look at 4.5 of the current award, it doesn't require that the host employer be covered by the Clerks Award, and of course they might not be if they don't employ any other clerks that are caught by this award.

PN191

THE VICE PRESIDENT: So your point is that the group training organisation may supply a trainee to an employer who doesn't otherwise employ any clerical employees under the award?

PN192

MS BHATT: Yes.

PN193

THE VICE PRESIDENT: I understand that.

PN194

MS BHATT: Thank you.

PN195

THE VICE PRESIDENT: All right, 13 - what's the issue here? This is administrative again, is it?

PN196

MS BHATT: I'm sorry, is that item 13?

PN197

THE VICE PRESIDENT: Yes.

PN198

MS BHATT: I'm sorry, before we go to that, item 12, clause 4.4(d) has been amended to address an Ai Group concern, but the reference to subclause (a) at the end of the clause has been struck out in the most recent version of the exposure draft. We've been proceeding on a basis that that might have been inadvertent. In any event, we say it should be retained.

PN199

THE VICE PRESIDENT: Yes, I see. Ms Bhatt, I don't think it is an error, because the current award excludes employees excluded from award coverage, but it doesn't exclude their employers - 4.1, and there doesn't seem to be any reason why you'd exclude, for example, an employer entirely because, for example, it has one employee who is excluded from coverage by the Act.

PN200

MS BHATT: I understand the point.

PN201

THE VICE PRESIDENT: Thank you. Item 13?

PN202

MS BHATT: Clause 4.5 of the exposure draft refers to:

PN203

clerical work covered by the award containing the classification that is most appropriate to the work performed by the employee and the industry in which they work.

PN204

If we look at 4.7 of the award, it instead towards the end of the clause requires a consideration of the "environment in which the employee normally performs work." Put simply, we're not sure that the environment in which the employee works and the industry in which they work are necessarily the same thing. I think the environment in which the employee works is physically where they perform their work and a consideration of what goes on around them, but the industry requires consideration of what the employer or the employee's business does. For example - and I say this without having looked at the classification structures of these awards - but you could have an employer in the pharmaceutical industry, but an employee performing work in an environment which looks like a storage warehouse. I think this clause too is - - -

PN205

THE VICE PRESIDENT: That reference to the environment, is that in any other awards?

PN206

MS BHATT: I was just about to say I think again that this is a provision that appears in the very vast majority of awards and is drafted the same way.

PN207

THE VICE PRESIDENT: We'll have a look at that, Ms Bhatt. I just want to check how many awards also contain that language. I'm not sure I've seen it before.

PN208

MS BHATT: Yes, thank you.

PN209

THE VICE PRESIDENT: 15?

PN210

MS BHATT: 15, the issue we've raised has been resolved, but if we look at 7.2 of the exposure draft in relation to monthly pay periods, the clause number is missing; it says zero. It should be 19.2(b).

PN211

THE VICE PRESIDENT: Yes, all right; we'll fix that.

PN212

MS BHATT: Thank you.

PN213

THE VICE PRESIDENT: So 18?

PN214

MS BHATT: Ai Group says that clause 34.4, which is the annual leave in advance clause, is not a facilitative provision and therefore should be deleted from clause 7.2. The Commission of course understands a facilitative provision is not merely any provision that operates by agreement between an employer and employee. A facilitative provision is what is described in 7.1, a clause that allows the employer and employee to deviate from the matter otherwise regulated by the award by agreement, and we don't think that the annual leave in advance clause is a provision of that nature.

PN215

THE VICE PRESIDENT: Strictly speaking, you might be correct, Ms Bhatt, but is there any substantive issue here?

PN216

MS BHATT: I don't think there's a substantive one. The submission was put on the basis that an award is not - - -

PN217

THE VICE PRESIDENT: Facilitative of an NES entitlement, but not an award entitlement - that's your point, is it?

PN218

MS BHATT: That's right.

PN219

THE VICE PRESIDENT: All right. Number 20 - is this yours, Ms Thomson, first?

PN220

MS THOMSON: Yes, your Honour. The parties have agreed with respect to some wording, which is contained in the summary of submissions filed by the AiG. It is my understanding that that wording is generally supported between the parties and addresses our concerns.

PN221

THE VICE PRESIDENT: Can you just explain the issue first?

PN222

MS THOMSON: The issue is the inclusion of the number of hours, so the two words, "number of."

PN223

THE VICE PRESIDENT: As drafted it's facilitative in relation to 10.4(a), but not (b) and (c), so what's the problem with that?

PN224

MS THOMSON: The issue is about having a clear method for altering the start and finishing times, which is what currently exists in the provision in the current modern award.

PN225

THE VICE PRESIDENT: What provision is that?

PN226

MS THOMSON: 11.4.

PN227

THE VICE PRESIDENT: Thank you. So your contention is that the first sentence of 11.4 when it refers to change in hours refers to when hours are worked as well as the number of hours, is that the point?

PN228

MS THOMSON: Yes, so how those hours are actually worked.

PN229

THE VICE PRESIDENT: Mr Cooney, do you take any issue with that?

PN230

MR COONEY: As we understand 11.4, changes in hours is taken to read the start and finish time, as opposed I guess to 2.4(a) of the preamble (?) which is the number of hours, whether it be two full eight hours in the day.

PN231

THE VICE PRESIDENT: So it would cover 10.4(c) as well?

PN232

MR COONEY: I think that - - -

PN233

THE VICE PRESIDENT: Or the whole of 10.4, is that the - - -

PN234

MR COONEY: I think that 10.4(c) in the exposure draft addresses the issue at 11.4, and of itself 10.4(c) and covers as 10.4(a). The start and finish times would be inclusive with the number of hours.

PN235

THE VICE PRESIDENT: Anyway, Ms Thomson, where do you say the redrafted provision is?

PN236

MS THOMSON: In the summary of submissions at item 20, your Honour. So our suggestion is to remove the words, "number of," and then to include a reference to 10.4(c).

PN237

THE VICE PRESIDENT: Yes, I see. Where does that leave days, that is, 10.4(b)?

PN238

MS THOMSON: Days is dealt with at 10.6, your Honour.

PN239

THE VICE PRESIDENT: Yes. Do you agree with the changes, Mr Cooney? Perhaps they could be slightly more expansive to say: Changes to the number of hours to be worked under clause 10.4(a) - or changes to the times at which employees will start and finish work each day under 10.4(c) must be agreed in writing from the employer and the employees.

PN240

MS THOMSON: Yes, your Honour, that would have the same effect.

PN241

THE VICE PRESIDENT: Thank you. Mr Cooney, can we ask you to move your position to the centre? It's just that the monitor doesn't appear to be picking up what you're saying for some reason.

PN242

MR COONEY: Would it be in an appropriate time to just take a five‑minute break?

PN243

THE VICE PRESIDENT: Yes, all right. We'll take a short adjournment and we'll resume in five to 10 minutes.

SHORT ADJOURNMENT�� [11.23 AM]

RESUMED�� [11.31 AM]

PN244

THE VICE PRESIDENT: So where are we up to?

PN245

MS BHATT: Item 21.

PN246

THE VICE PRESIDENT: Item 21, all right. Ms Bhatt?

PN247

MS BHATT: That relates to clause - - -

PN248

THE VICE PRESIDENT: Yes?

PN249

MS BHATT: I'm sorry. It relates to clause 10.2 of the exposure draft, which is a new provision in the sense that there is no comparable provision in the award that we've been able to identify. We're simply concerned about the insertion of a provision like this that appears to introduce a blanket rule about the application of award terms to part‑time employees in the absence of some thorough examination having been undertaken as to whether or not it gives rise to some substantive change. There is a provision in the current award that says that part‑time employees are entitled on a pro rata basis to equivalent pay and conditions to those of full‑time employees, and on its face clause 10.2 turns that proposition on its head. We've had regard to the comments from the drafter, Mr Moran, in the summary of submissions and I understand the point that's being made that not every term and condition under the award is necessarily provided on a pro rata basis, but I can't put it too much higher than the fact that we have a concern about the fact that the clause that replaces it in the exposure draft inverts the position and might give rise to some substantial change. It's also not clear why such a provision is necessary.

PN250

THE VICE PRESIDENT: So what is the current provision which refers to pro rata?

PN251

MS BHATT: 11.2.

PN252

THE VICE PRESIDENT: I think you're implicitly accepting that that clause may be unsatisfactory because there are some provisions of full‑time employees which apply to part‑time employees not on a pro rata basis.

PN253

MS BHATT: I think there are some examples identified, such as meal breaks, for example, which in a practical sense - I don't know what pro rata‑ing those entitlements would necessarily mean. I think that the pro rata clause certainly has work to do in the current award, particularly in circumstances where the award prescribes only weekly wage rates - it doesn't contain hourly rates - but the exposure draft obviously moves away from that. We've had a look at the allowances and there is at least one weekly allowance, which is the first aid allowance, and it might be argued that a part‑time employee is entitled to the allowance on a pro rata basis. And that position too would be changed under the exposure draft in the absence of a clause like 11.2, and having regard to 10.2 of the exposure draft.

PN254

THE VICE PRESIDENT: In short, this drafting issue may be hiding a substantive issue about part‑time employment and what obligations apply to part‑time employees fully and on a pro‑rata basis.

PN255

MS BHATT: I think that if there are concerns that arise in relation to the application of particular provisions to part‑time employees, then they can of course be examined and dealt with specifically, but this sort of blanket approach of inserting a clause that says well everything applies the same way to all full‑timers and part‑timers could potentially be problematic.

PN256

THE VICE PRESIDENT: Yes. Does anyone else want to add to this?

PN257

MR COONEY: Your Honour, the ASU would like to - if there was going to a change from the current modern award, not in terms of 10.2, in the exposure draft, I mean we'd like to see the wording. I mean, for issues like breaks I honestly don't know how you would deal with that, but anyway, we'll leave that in the Commission's hands.

PN258

MR MORAN: Your Honour, we put it in like this to try and get some clarity, to make it clear how the award operates to part‑time employees, to say that well it applies to them in the same way except where you otherwise expressly provide, so as to give some certainty how it operated. And then obviously the issue about the pro rata entitlements couldn't apply across the board. It felt it should; it couldn't be intended that a 10‑minute break becomes a five‑minute break. So it's really a matter to be satisfied that where the award should differ in relation to a part‑time employee that that is made clear in the award, and I'm just wondering if the parties can point to somewhere where it isn't made clear, because then that really should be addressed.

PN259

MS BHATT: And if I - I mean, I think that's exactly the point. If there is a particular provision where there is some lack of clarity that's identified either by an interested party or by the Commission as to how that clause applies to a part‑time employee, then we can look at the specific terms of that clause, which we say would be a far better and more prudent approach than inserting a provision like this. I mean, for our part, I hear what's been said about meal breaks and there might be some other examples - for our part, we're not aware of that pro rata clause being interpreted in that way, and as I say, that clause is certainly relied upon in the context of the current award because there are only week wage rates. There might be other examples. But as Mr Moran has said, if there's a concern about a particular provision, of course we can have a look at that through this exercise, but we think that's a better approach than a clause like 10.2.

PN260

THE VICE PRESIDENT: Just for the sake of argument, what would the reaction be if clause 10 simply - that clause 10 of the exposure draft simply removed clause 10.2 and otherwise was the same? That is, I think on normal principles of interpretation you'd read the award as applying to everybody covered by it, unless it specifically provided otherwise; that is, I'm not sure that 10.2 says anything different from the way you read it according to the way you'd read any document.

PN261

MS BHATT: Ai Group would not have any concerns with the deletion of clause 10.2, and my instructions are that we would not necessarily press the inclusion of the current pro rata clause given the approach now taken in the exposure draft to the way many of the entitlements have been expressed.

PN262

THE VICE PRESIDENT: All right. Does any other party want to respond to that proposition advanced in arguendo?

PN263

MR COONEY: Your Honour, could I take that on notice?

PN264

THE VICE PRESIDENT: Yes.

PN265

MR COONEY: Thank you.

PN266

THE VICE PRESIDENT: Can you send us a note in the next seven days? Ms Thomson and Mr Klepper, do you want to respond to that?

PN267

MS THOMSON: We'd appreciate the opportunity to also take some instructions, your Honour, and respond in writing.

PN268

THE VICE PRESIDENT: Mr Klepper, likewise?

PN269

MR KLEPPER: Yes. We think that 10.2 being removed would likely solve the issue, but of course we then have to look, see whether there are any unintended consequences - and will of course provide a note if we find any.

PN270

THE VICE PRESIDENT: All right, seven days. Issue 22?

PN271

MS BHATT: 10.3, Vice President. Again a new clause doesn't appear in the current award. Firstly we're not sure why any such provision is necessary. It relates to NES entitlements, and the exposure draft now refers to the NES in relation to those specific entitlements - annual leave and personal carers leave. But also, we say that 10.3 is simply inaccurate. It says that a part‑time employee is entitled to payments for those entitlements on a proportionate basis, but as I understand it, those entitlements accrue on a proportionate basis to part‑time employees because they accrue by reference to ordinary hours worked. So it's not a question of the payment being proportionate.

PN272

THE VICE PRESIDENT: Anyway, you say they're unnecessary because that's an issue which is covered fully by the NES?

PN273

MS BHATT: Yes.

PN274

THE VICE PRESIDENT: Does any other party take a different view? All right. 24?

PN275

MS BHATT: As the Commission is of course aware, a very significant number of awards contain a definition of casual employment which is in the same or similar terms as 12.1 of the current award, that is, a casual employee is an employee engaged as such. That has been fundamentally changed by clause 11.1 of the exposure draft, which now says that an employee who is not covered by clause 9 or clause 10 must be engaged and paid as a casual. So firstly, it seems to remove the employer's discretion to employ an employee as a casual employee if they so choose. Secondly, if we look at clause 10.1, which defines a part‑time employee:

PN276

An employee who is engaged to work for fewer than 38 hours a week and whose hours of work are reasonably predictable is a part‑time employee.

PN277

That is, it seems that they're virtually deemed a part‑time employee.

PN278

THE VICE PRESIDENT: 10.1 is new or not new?

PN279

MS BHATT: 10.1 reflects the current clause 11.

PN280

THE VICE PRESIDENT: I think that's the difficulty that - I'd understand your point if 10.1 wasn't there, but where 10.1 says a person who works less than 38 and has reasonably predictable hours is a part‑time employee, that's an existing provision. By matter of logic, a person of that description could not be a casual, could they? And I say this is unusual because most awards don't have a clause like that, but this award does.

PN281

MS BHATT: Regardless, we don't think that clause 11.1 of the award removes an employer's discretion to employ an employee as a casual employee, even if they are engaged to work less than 38 hours a week and at that point in time their hours of work may appear to be reasonably predictable.

PN282

THE VICE PRESIDENT: I understand what you're saying, Ms Bhatt, from a policy perspective, but that indicates the problem is not so much with the new 11.1 but with the existing clause, which is now 10.1.

PN283

MS BHATT: I mean, if that's the view I think we would seek to be heard further on this. We see this as a very significant issue and I understand it's arisen in - - -

PN284

THE VICE PRESIDENT: I'm not determining the issue, Ms Bhatt.

PN285

MS BHATT: No.

PN286

THE VICE PRESIDENT: I'm just simply pointing out that it appears to me the logic of your submission is pointing to a difficulty with 10.1.

PN287

MS BHATT: And it might be that we give further consideration to that issue.

PN288

THE VICE PRESIDENT: Yes. Does anyone else want to say anything about this? Mr Cooney?

PN289

MR COONEY: I think the modern award clause 11.1 is not as strident as maybe the exposure clause 10.1 in its effect, and so the current clause 11.1 in combination with the current clause 12.1 may address the issues of the - - -

PN290

THE VICE PRESIDENT: I think this is pointing to a substantive problem, that is, the current provisions may in effect contradict each other; that is, clause 12.1 says casual employee is simply somebody who engages a casual, but then clause 11.1 currently - - -

PN291

MR COONEY: If you're less than 38 hours you're automatically a part‑time employee.

PN292

THE VICE PRESIDENT: If it proves predictable you have to be a part‑timer.

PN293

MR COONEY: On a then diagram there would be no room for a casual employee.

PN294

THE VICE PRESIDENT: Well under the new proposal that would be right.

PN295

MR COONEY: Yes.

PN296

THE VICE PRESIDENT: Under the old award there may be a contradiction between the provisions. Ms Thomson, do you want to say anything about this, or Mr Klepper?

PN297

MS THOMSON: We also have some concerns about the drafting, your Honour, and I understand it's a clause which is now found in quite some number of the plain language exposure drafts. So it's potentially an issue which has other parties who may have views, and if, as Ms Bhatt indicated, there is an opportunity to be heard, it might need to be perhaps a more broad exercise than just with respect to this award.

PN298

THE VICE PRESIDENT: Do you know any other major awards which have a clause which is like that in 10.1 of the exposure draft?

PN299

MS THOMSON: I know the Pharmacy Award does, your Honour.

PN300

THE VICE PRESIDENT: It does? All right. I think they take a different view about casuals in the Pharmacy Award though from my experience.

PN301

MS THOMSON: Yes, I appreciate there is a slightly different - - -

PN302

THE VICE PRESIDENT: Which is a bit unique.

PN303

MS THOMSON: Yes. My understanding, I think - and I'll have to double‑check, your Honour - that some of the more recent plain language exposure drafts, potentially Retail, Hospitality and Restaurant, also have a similar clause, but I'll have to double‑check that.

PN304

THE VICE PRESIDENT: Thank you. We might have to give some thought about that. Mr Klepper, did you want to say anything?

PN305

MR KLEPPER: Yes. I'd say that Business SA also shares concerns of this - could significantly change the understanding of who a casual employee is and how they may be engaged. We have, yes, also identified this as an issue which has come up in previous plain language exposure drafts, and yes, we would see to have this issue properly ventilated.

PN306

THE VICE PRESIDENT: Perhaps it should be referred to a different Full Bench, Ms Bhatt - I say with considerable trepidation.

PN307

MS BHATT: Yes, I can appreciate that. I just wonder whether the answer to all of this depends a little bit on what the part‑time provisions look like, which is the issue that your Honour has just identified, and I suspect that they are different even in the other awards that we've just identified as having been now - that on our part are the plain language redrafting process.

PN308

THE VICE PRESIDENT: All right. Item 26?

PN309

MS BHATT: We have simply identified that we may seek to be heard further in relation to clause 12.2, depending on how our concerns in relation to schedule A are resolved or not resolved. Perhaps we can park this issue for now?

PN310

THE VICE PRESIDENT: All right. 27, that's yours, Ms Thomson?

PN311

MS THOMSON: This is one for our part that has been resolved in the exposure draft by the amendments that have been made; but I think AiG may continue to have some concerns, which is the issue that Ms Bhatt indicated earlier on in our conference with respect to the reference to the section and whether or not the entirety of the shift work provision is actually appropriately drafted.

PN312

THE VICE PRESIDENT: Ms Bhatt?

PN313

MS BHATT: That's exactly right. The heading now refers to shift worker. Shift workers are a defined term by reference to clause 27 or Part 6 of the award, and we have some concerns about that, which might filter into other parts of the award that refer to shift workers. Our proposal would be that we return to this once we - - -

PN314

THE VICE PRESIDENT: That's item 106, all right.

PN315

MS BHATT: Yes.

PN316

THE VICE PRESIDENT: All right - 28, Mr Klepper?

PN317

MR KLEPPER: Yes.

PN318

THE VICE PRESIDENT: Is that resolved or - - -?

PN319

MS BHATT: It's dealt with by item 29.

PN320

THE VICE PRESIDENT: All right. Item 29 then?

PN321

MS BHATT: In relation to clause - - -

PN322

THE VICE PRESIDENT: So 13.2?

PN323

MS BHATT: Yes, I'm sorry. In relation to clause 13.2 of the exposure draft, some of the concerns that were raised by Ai Group have been addressed in the revised exposure draft. We remain of the view, however, that a provision of this nature is not necessary. It explains what the ordinary hours of a full‑time employee are, which simply repeats what's in clause 9. So for that reason, we say the provision is not necessary and can and should be deleted. We don't put it any higher than that.

PN324

THE VICE PRESIDENT: Yes, all right. Item 30?

PN325

MS BHATT: We make the very same submission about that, except that it relates to part‑time employees this time.

PN326

THE VICE PRESIDENT: All right. 31?

PN327

MS BHATT: The summary of submissions indicates that issues such as these in other awards have been deferred until the conclusion of the award stage. That's consistent with our understanding.

PN328

THE VICE PRESIDENT: Yes, all right. What stage is this award in?

PN329

MS BHATT: Group 2.

PN330

THE VICE PRESIDENT: 32, Ms Bhatt - 13.5?

PN331

MS BHATT: We have given some further thought to this - - -

PN332

THE VICE PRESIDENT: This is the between issue.

PN333

MS BHATT: Yes. We have given some further thought to this overnight. Ai Group withdraws its submission.

PN334

THE VICE PRESIDENT: Thank you. 35?

PN335

MS THOMSON: Yes, your Honour, I think this one is 35 and 36, are best considered together. To the extent that we have some concerns about the ordering or otherwise I think the substantial intent has been captured, but I think the AiG may have a different view with respect to that.

PN336

THE VICE PRESIDENT: Ms Bhatt?

PN337

MS BHATT: Clause 25.1(b) of the current award is the comparable provision. The essential difficulty is that the award and the exposure draft set different thresholds for when this clause has any application. The current award says that the clause applies where an employee works in association with other classes of employees who in fact work outside the spread of hours prescribed by the Clerks Award. But if we go to 13.7(a) of the exposure draft, it says that the clause applies:

PN338

if employees work in association with other employees covered by a different modern award, and the majority of employees in the workplace are covered by an award that sets the spread other than the spread set by this award.

PN339

It's clearly a different test that applies to the application of the clause.

PN340

THE VICE PRESIDENT: What's the current provision again?

PN341

MS BHATT: 25.1(b), second sentence onwards.

PN342

THE VICE PRESIDENT: Just look at the current clause. It's implicit that the other classes of employees are covered by a different award, isn't it? Otherwise it doesn't make sense.

PN343

MS BHATT: I think that might be so, but certainly it doesn't require a consideration of whether the majority of employees at the workplace are covered by an award that sets a different spread, which is what 13.7(a)(ii) does.

PN344

THE VICE PRESIDENT: If the other classes of employees are not a majority then the clause could never operate, could it, as a matter of logic? And if the other classes are not a majority but are minority, then this clause couldn't have any effect, even as it currently stands?

PN345

MS BHATT: I had not understood that to be the case.

PN346

THE VICE PRESIDENT: Because they won't be the majority? Mr Cooney, do you want to say anything about this?

PN347

MR COONEY: The ASU doesn't have a problem with the exposure draft wording.

PN348

THE VICE PRESIDENT: Ms Thomson, Mr Klepper?

PN349

MS THOMSON: Just having a closer look at it, your Honour.

PN350

MR KLEPPER: As am I, thank you, your Honour.

PN351

THE VICE PRESIDENT: I agree it's a bit head‑spinning. Anyway, while we're doing that, Ms Bhatt, so from your perspective if 13.7(b) simply says: the other employees are covered by a different modern award that sets a spread of hours other than set out in clause 13.5; that is, in effect it removes the reference to the majority.

PN352

MS BHATT: I think that resolves the issue, but if I may I'd like to take that on notice.

PN353

THE VICE PRESIDENT: All right. I doubt it could possibly make a difference. Ms Thomson, Mr Klepper, have you formed your opinion about this?

PN354

MS THOMSON: I suspect - excuse me, sorry, your Honour -I suspect the amendment proposed just now would resolve any lingering ambiguity, but as with the AiG, I would appreciate an opportunity to just further consider that.

PN355

THE VICE PRESIDENT: Are you likewise, Mr Klepper?

PN356

MR KLEPPER: Yes, please. Thank you.

PN357

THE VICE PRESIDENT: All right. Seven days to send in a note about that. All right, 36, is that the same? So is 36 the same issue?

PN358

MS BHATT: Yes.

PN359

THE VICE PRESIDENT: All right, 37.

PN360

MS BHATT: It's also the same issue.

PN361

THE VICE PRESIDENT: Yes, all right. 38 is the example.

PN362

MS BHATT: In the time given to us to consider item 35 and 36, can we also give consideration to 38? It should, of course, properly reflect whatever amendments we make to the substantive provision.

PN363

THE VICE PRESIDENT: All right, 39.

PN364

MS BHATT: 39 relates to clause 13.8 of the exposure draft. Clause 25.2 of the current award says that the ordinary hours of work are to be worked continuously which I understand is intended to preclude situations such as broken shift type arrangements. 13.8 says: "Ordinary hours of work are continuous." Frankly, we are not too sure what that means, but we consider ordinary hours is a concept that is defined by the awards. There are certain parameters set within which ordinary hours can be worked and it's the working of those ordinary hours that must be continuous. We are just not sure that, put simply, this makes sense. So, our proposal was that it should instead say ordinary hours are to be worked continuously.

PN365

THE VICE PRESIDENT: But you want the reference to the discretion of the employer retained as well?

PN366

MS BHATT: Yes.

PN367

THE VICE PRESIDENT: So what does that mean? What's the discretion?

PN368

MS BHATT: We think it makes - - -

PN369

THE VICE PRESIDENT: To work them not continuously?

PN370

MS BHATT: No, we say that the reference to the discretion of the employer does not relate to the requirement that ordinary hours be worked continuously and it doesn't have anything to do with the exclusion of meal breaks either. Those words make clear that apart from the fetters set by the award, an employer has the discretion to require an employee to work ordinary hours as and when they require. These are words that I think appear in some other awards. They certainly appear in the manufacturing award as well. I'm aware of situations in which disputes have arisen between employees and employers for whom AI Group has acted. We have relied on those words in circumstances where it's argued that, for example, by result of custom and practice, an employee has some contractual right to continue working particular hours and we in those circumstances would point to the award and say, well, no, the award provides the employer an absolute right to determine when your ordinary hours are within the parameters set by the award.

PN371

THE VICE PRESIDENT: Is there a provision in this award, like most awards, which sets the circumstance in which rostered hours can be changed?

PN372

MS BHATT: No, no, there are no rostering obligations and by virtue of that there are no provisions dealing with changes to rosters.

PN373

THE VICE PRESIDENT: All right, well, if that's what it means, shouldn't it say that? That is rather than just having a general reference to discretion to say what the discretion actually is, that is the employer - the ordinary hours - I assume, are we talking here about full time employees or not? We have previously discussed a different provision about part time employees where it required agreement. I mean, what are we talking about here?

PN374

MS BHATT: We are certainly talking about full time employees. I think we are also talking about casual employees and, as the Commission has identified, there are obvious restrictions as to when a part time employee can be required to work.

PN375

THE VICE PRESIDENT: Mr Cooney, what do you say about this issue of the discretion? Do you say under this award at least for full time employees, the employer has a discretion as to when you work your ordinary hours, an unfettered discretion?

PN376

MR COONEY: The way I would read the award would seem to provide the employer with that authority to do that. I would say that the branches weren't able to advise me of an instance when or that they were aware of when this had occurred.

PN377

THE VICE PRESIDENT: Ms Thomson and Mr Klepper, do you want to add to this debate?

PN378

MR KLEPPER: Not any further and just say that we agree with the position put by AiG.

PN379

MS THOMSON: Yes, that's our position as well, your Honour.

PN380

THE VICE PRESIDENT: Ms Bhatt, it would be better if we're going to keep the discretion to tempt a definition of what the discretion is, noting you will see the drafter's comment in the notes.

PN381

MS BHATT: I am not sure if this would resolve the Commission's concerns, but one way of addressing it might be to introduce a new clause within clause 13 that says that ordinary hours of work are to be worked at the discretion of the employer. Now, obviously that provision has to be read subject to or in conjunction with and subject to other provisions of the award that impose some fetter on that discretion.

PN382

THE VICE PRESIDENT: It might be that it should be broken up to say something to this effect: "Ordinary hours of work shall be (a) worked continuously and (b) otherwise worked at the discretion of the employer in accordance with the provisions of this award." Something like that.

PN383

MS BHATT: I can't see any difficulty with that at first blush, but may I take it on notice?

PN384

THE VICE PRESIDENT: Yes, all right. If the parties want to take a note of that and provide us with some advice within seven days, they can. All right, item 42. What is the - - -

PN385

MS BHATT: I'm sorry, I didn't mean to interrupt.

PN386

THE VICE PRESIDENT: Yes. No, go ahead.

PN387

MS BHATT: Clause 25.3 of the current award deals with notice of rostered days off. There is no provision in the current award that I can see that makes clear that an employee can be given a rostered day off by virtue of the manner in which their ordinary hours are arranged. But 25.3 proceeds on that basis because it says that if an employee is given an RDO then this is how much notice you have to give them. I assume that the purpose of clause 14.2 in the exposure draft is to remedy that and make clear that an employer can give an employee an RDO. But we have some concerns about the way in which it does that.

PN388

Firstly, it refers to a rostered day off system in the first line and we're just not sure what that means there is no notion of an RDO system as such that is contemplated in the current award. But perhaps more fundamentally, 14.2(a) says that in such a way that employees work longer hours each day as part of the ordinary hours of duty, longer than what? And it might not be the case that the employee works longer hours each day for the purposes of accruing an RDO. They might work longer hours on some days but not all.

PN389

THE VICE PRESIDENT: Yes.

PN390

MS BHATT: So for those reasons whilst we understand the intent of the clause, we have some reservations about the way it's been drafted. I think in our submissions, we have proposed an alternate which I will read out. It simply says an employer may give an employee a rostered day off during the employee's work cycle.

PN391

THE VICE PRESIDENT: But that doesn't explain the concept of how it works, does it? I mean, there are some awards which specify how this works in a very prescriptive way. So, they will say, for example, option A is to add 36 minutes to every single day and then you get a day off every four weeks.

PN392

MS BHATT: Yes.

PN393

THE VICE PRESIDENT: Obviously, this award is much more flexible, but it still needs to explain how the concept works, doesn't it? I understand your point about each day. I think that's legitimate. But beyond that, it's simply giving you a guide as to what we are actually doing here. That is, you work, do some additional work, and then you get a day off. Now, perhaps I should qualify that. I am told that clause 25.4 refers to a 20-day cycle, although that doesn't seem to be exhaustive. That's 25.4(f) of the current award.

PN394

MS BHATT: No, and 25.1(a) which allows for the averaging of ordinary hours grants some flexibility as to the period of time over which ordinary hours are averaged which might have some bearing on the length of the cycle and, therefore, when RDOs fall due.

PN395

THE VICE PRESIDENT: So even though it says 20 days, you could have a shorter roster cycle and by agreement you could have a longer roster cycle.

PN396

MS BHATT: That's how I read 25.1(a).

PN397

THE VICE PRESIDENT: That still leaves you with the position that the employer has a lot of flexibility and there is nothing in the award which actually explains how the concept of a rostered day off works. I mean, it might be obvious to all of us, but maybe not so much to other employers.

PN398

MS BHATT: I understand the point that is being made and in proposing a form of words, we were simply trying to come up with something that doesn't in any way undermine the flexibility that the award currently provides. We weren't sure that we could come up with an explanation that doesn't in some way end up changing the legal effect of the award.

PN399

THE VICE PRESIDENT: All right. Does anyone else want to add to this?

PN400

MS THOMSON: We have had the benefit of discussing that with Ms Bhatt and we do share some of her concerns about the position we previously put and think that there is a scope for perhaps dialling back on the level of detail, but take on board your Honour's comments about the level of flexibility then that gives the employer as well.

PN401

MR COONEY: Your Honour, I think 25.4(f) suggests that a rostered day off must be over the 20-day cycle and 12 days off in a 12-month period. Whether it contemplated a shorter nine-day fortnight type system is debatable, but I think that the plain language draft does go some way to providing a bit more certainty around the arrangements.

PN402

THE VICE PRESIDENT: Mr Klepper?

PN403

MR KLEPPER: We have nothing further to add beyond what has already been put by the other employer representatives.

PN404

MS BHATT: Sorry, can I just add that, obviously, in this process we haven't undertaken an exhaustive consideration of the various rostering arrangements that might be in place in practice and so our position would be that to the extent that the exposure draft introduces a clause that disturbs any such arrangements that that approach shouldn't be taken by the Commission.

PN405

THE VICE PRESIDENT: I take that as read, but you would have to tell us whether you can think of any roster arrangement that does disturb. So I take the point you make about each day and that obviously requires modification, but if you can, beyond that point, think of any other roster that might interfere with it, you should tell us.

PN406

MS BHATT: Yes.

PN407

THE VICE PRESIDENT: All right. All right, 44.

PN408

MS BHATT: Clause 14.7(a) of the exposure draft, firstly, refers to employees who work weekly hours under a rostered day off system in clause 14 which again it introduces this concept of a rostered day off system but it's not clear to us what that actually means and, in any event, I think it's foreign to this award and - - -

PN409

THE VICE PRESIDENT: Well, you need to think about that. You need a system necessarily to make this work. I mean, I'm not sure that you can do rostered days off on a wholly ad hoc basis, can you?

PN410

MS BHATT: But might it be the case that ordinary hours are averaged in a way that results in a rostered day off for a certain period of time which might not be particularly lengthy after which the system of averaging changes or the ordinary hours are no longer averaged.

PN411

THE VICE PRESIDENT: Yes, all right. Apart from that, is that - - -

PN412

MS BHATT: The clause then goes on to say that such employees must be paid according to the average number of hours worked. For my part, I can't find a clause in the current award that mandates pay averaging in such circumstances. I think that the award permits it, but doesn't require it. I assume then that clause 14.7(b) and (c) are intended to reflect 25.4(d) of the current award.

PN413

THE VICE PRESIDENT: Yes.

PN414

MS BHATT: Which relates to circumstances in which rostered days off are banked and admittedly the drafting of that clause is not particularly clear, but the way we understand it is if you work on a day that would have been a rostered day off, but for the fact that you have decided to bank it, you are not paid any additional penalty for having worked on that rostered day off. And later on when you do take the rostered day off for that week, you are paid an average amount. I think there are some awards that require the payment of a higher amount when you work on what otherwise would have been an RDO. I think this clause just makes clear that that is not the case under this award and I'm just not sure that 14.7(b) and (c) have the same effect.

PN415

THE VICE PRESIDENT: Sorry, what's the existing provision?

PN416

MS BHATT: 25.4(d).

PN417

MR COONEY: I think, your Honour, we were trying to get some clarity around how the rostered day off system works and so saying that you get paid according to the average number of hours worked, if you work on your rostered day off, you don't get any additional payment, and in the week where you take that rostered day off, you still get paid according to the average system. Certainly, the intent was to try and reflect what was in 25.4 and I'm still not clear how it doesn't do that. In what way is it different from what 25.4(d) says?

PN418

MS BHATT: So if an employer arranges ordinary hours in a way that gives an employee a rostered day off, I don't think that the award mandates that that employee's pay be averaged. I think the employer can still elect to pay the employee by the pay cycle by reference to the actual work performed. But 14.7(a) seems to say that if you have got this RDO system in place you must pay according to the average number of hours worked. Unless I'm missing something in the current award, I couldn't identify that that is the effect of the current clauses.

PN419

THE VICE PRESIDENT: But wouldn't the simple requirement to pay the minimum weekly rate lead to that same result? That is for a full time employee, the award doesn't authorise that any particular week he can be paid less than the minimum weekly wage, does it, which would be the consequence of what you're suggesting.

PN420

MS BHATT: I think we would have to give some further thought to that and I am also just not sure whether the way this provision is being drafted it relates only to the minimum rate or also requires consideration of other penalties and loadings. For example, penalties due for weekend work.

PN421

MR COONEY: Your Honour, maybe if the use of the word "average", it's something in, well, your normal pay for working that week. I mean, I think we're all in agreement if we're talking over a 20-day cycle that you get paid, for the sake of the argument, $100 for working 40 hours the first week, $100 for working 40 hours the second week, $100 for working 40 hours the third week, $100 for working 32 hours in the fourth week in rough times. Whereas the average sort of - I can see what's been tried to drive at, but averaging seems to imply that you're taking a gross and dividing it. Whereas if it's in terms of you simply get paid a minimum of your ordinary hours each week and it's the hours that you accumulate over that pay cycle that then at the end of the pay cycle provides the day off.

PN422

THE VICE PRESIDENT: I mean, I'm wondering, Ms Bhatt, particularly with (a) and (b), the point of this is to protect employers to ensure that there is not an accidental application of overtime penalty rates, isn't it?

PN423

MS BHATT: I think that's one of the purposes.

PN424

THE VICE PRESIDENT: That is.

PN425

MS BHATT: I just wonder if rather than trying to do this on the fly, it assists the Commission whether within the next seven days we provide a note which better articulates than what I have done today the concerns that we have with clause 14.7. We obviously haven't filed anything in writing about it yet because it's a provision that was introduced in the revised exposure draft.

PN426

THE VICE PRESIDENT: We will allow you to do that. It might also help, Ms Bhatt, as well, that rather than simply saying we should go back to the old clause whether you can take the revised exposure draft and make some modifications to it which might meet your concerns.

PN427

MS BHATT: We will endeavour to do that, Vice President, thank you.

PN428

THE VICE PRESIDENT: Yes, all right. All right, so what are the issues in 45?

PN429

MS THOMSON: If I may, your Honour, I think this is another issue with respect to employees which is dealt with in greater detail at 106.

PN430

THE VICE PRESIDENT: What is 106?

PN431

MS THOMSON: That's the shift worker issue, your Honour.

PN432

THE VICE PRESIDENT: All right, so that's your one. Is there other issues here?

PN433

MS BHATT: No, I think that deals with items 45 and 46.

PN434

THE VICE PRESIDENT: All right. All right, 48.

PN435

MS BHATT: 48 relates to the preamble at clause - excuse me, I'm sorry - 15.2 of the exposure draft. I think there might have been some consensus between the parties that the way in which that has been drafted is somewhat confusing and cumbersome and we wondered whether there was a simpler way of expressing the obligation to provide the meal break whilst retaining the precision that the drafter has obviously tried to maintain. Our proposal is set out in the final column of the summary document.

PN436

Your Honour, the first comment made just seems to be turning the provision around the other way without any change in substance in that in the plain language exposure draft it says that if the employee is required to work a certain number of hours on a particular day, they're entitled to a break as specified in the table. The suggestion is we say, well, you are entitled to a break if you work the specified required number of hours. It just seems to be a different way of saying the same thing and I can't really see what the advantage is.

PN437

THE VICE PRESIDENT: I think all you have done is taken out the reference to the items in the columns. That's really all you've done, isn't it?

PN438

MS BHATT: Yes.

PN439

MR COONEY: But the items - the references to the columns were there to give it certainty and clarity that you have got the size of break that's specified in relation to the column 1, the number of hours that you worked and it really was to bring certainty to the provision rather than having to say, well, you look at it and you get the appropriate number of breaks according to the number of hours you have worked.

PN440

THE VICE PRESIDENT: I think we will just note what you have said about that. I mean, this is done in accordance with the stylistic method, so I think that's all we need to say about it. 49, is that the same thing?

PN441

MS BHATT: It's related to that issue. I don't think we need to deal with it further.

PN442

THE VICE PRESIDENT: All right, that's noted. All right, 54.

PN443

MS BHATT: Clause 15.4 of the exposure draft requires the payment of a higher rate if an employee is required to work through their meal break. But, in our view, it doesn't make clear precisely what period of time over which that rate is payable. If we look at 26.1 of the award, the last sentence says: "Employees required to work through meal breaks, must be paid double time for all time so worked until a meal break is allowed." So we read that to mean that the double time is payable from the time at which you would have taken your meal break and you are working until you finish working and, in fact, are allowed the break. The problem with 15.4 is it doesn't include words akin to "for times so worked." So it's not clear when you actually pay the 200 per cent.

PN444

MR COONEY: Your Honour, the reason why we didn't put those words in is because if you read the words "for all time so worked," strictly that means all time worked through the meal break and that didn't seem to be what the clause was saying because it goes on to say that you get the extra pay until the meal break is allowed and I know we were concerned that if we say "so worked", it means worked through the meal break, if you read it strictly.

PN445

THE VICE PRESIDENT: So should it say, Ms Bhatt: "An employer must pay an employee who is required to work through their meal break 200 per cent of the minimum hourly rate for all working time until a meal break is allowed"? Is that the gist of what you are saying?

PN446

MS BHATT: No, because "all working time" might be read to mean, for instance, all time worked during that shift, which is not how we read 26.1.

PN447

THE VICE PRESIDENT: So just tell me how you read it again. What is the start of the 200 per cent and the finish of the 200 per cent?

PN448

MS BHATT: The start of the 200 per cent is when you would have taken the meal break that you are now required to work through.

PN449

THE VICE PRESIDENT: Yes, so let's say you are doing a conference about the Clerks' Award and we are going to work through the meal break at 1 o'clock and we're not getting a break until we leave at five, do you say we get 200 per cent from 1 o'clock to 5 o'clock?

PN450

MS BHATT: Yes.

PN451

THE VICE PRESIDENT: All right. We will have a look and see what we can do about that.

PN452

MS BHATT: Thank you.

PN453

THE VICE PRESIDENT: All right, number 55.

PN454

MR COONEY: Yes, your Honour. The concern there is that while the ASU accepts that the use of minimum hourly rate that if you have an employee who is earning above award rates that there would be any penalties and overtime and shift work payments legally will be only cast on the minimum hourly rate rather than the award rate that they would - sorry, the above award rate that they would be earning and I don't - - -

PN455

THE VICE PRESIDENT: That's correct.

PN456

MR COONEY: Yes, and I don't think that the current award makes that provision.

PN457

THE VICE PRESIDENT: Can you give me an example? I mean, in saying that, I should note, for example, when we set out the rates in the various tables which set out the various permutations of the rates which we haven't done before, that is all intended to make it clear that, for example, if you work on Sunday, the minimum rate is not - let's say it's double time, double time of whatever you are being paid, it's only double time of the minimum award rate. That is, it's not intended that we are regulating over-award payments. But if you can point to some existing different position, please do so.

PN458

MR COONEY: Could I take that on notice, your Honour?

PN459

THE VICE PRESIDENT: All right, seven days.

PN460

MR COONEY: Yes.

PN461

THE VICE PRESIDENT: But you could assume that the Commission would want a lot of persuading that we would be applying any penalty rates to over-award payments.

PN462

MS BHATT: Can I just refer Mr Cooney to the Commission's decision, 2015 FWCFB 4658, paragraphs 95 to 96, where earlier in this review a Full Bench decided this very issue that was agitated by other unions.

PN463

THE VICE PRESIDENT: Is that item 55 done? 57.

PN464

MS BHATT: Item 57 relates to the drafting of the preamble at clause 16.1 and we have set out our proposal in the summary. It may be another one that is simply noted and considered later, much like the meal breaks provision that we talked about earlier.

PN465

THE VICE PRESIDENT: All right, we'll do that. Then we go to 61. Whose issue is this now?

PN466

MR KLEPPER: I can say that from Business SA's perspective, the revised exposure draft does address our submission.

PN467

THE VICE PRESIDENT: All right, thank you. Is that true for you too, Ms Bhatt?

PN468

MS BHATT: Yes, Vice President.

PN469

THE VICE PRESIDENT: So, Mr Cooney, did you have something to consider here?

PN470

MR COONEY: Your Honour, we don't take issue with that.

PN471

THE VICE PRESIDENT: All right, thank you. I will put that as a resolved matter then. 62.

PN472

MS BHATT: It's the same issue as 61.

PN473

THE VICE PRESIDENT: So that's resolved.

PN474

MS BHATT: Yes.

PN475

THE VICE PRESIDENT: Right. 64.

PN476

MS BHATT: 64 is similar to some of the issues we have discussed earlier. It relates to the drafting of the preamble. We have set out proposal in the summary document.

PN477

THE VICE PRESIDENT: All right, so that's noted. Is 65 the same?

PN478

MS BHATT: Yes.

PN479

THE VICE PRESIDENT: 67?

PN480

MS BHATT: The issue raised by AiG Group has been resolved, however, clause 19.2(c) refers to paragraph 0 and it should say clause 19.2(b).

PN481

THE VICE PRESIDENT: Yes, all right. Yes, thank you. All right, 68.

PN482

MS BHATT: 68 and 69 deal with the same issues.

PN483

THE VICE PRESIDENT: Yes, which are?

PN484

MS BHATT: Which is 19.4 of the exposure draft.

PN485

THE VICE PRESIDENT: Yes. What's the issue?

PN486

MS BHATT: I take it that it's intended to reflect clause 23.4 of the award which seems to relate to circumstances in which the number of ordinary hours worked week to week fluctuates and allows for averaging, pay averaging. It's not clear that clause 19.4 of the exposure draft relates to ordinary hours of work. It refers to employees who work weekly hours under an averaging system may be paid according to the average number of hours worked and is not limited to ordinary hours.

PN487

THE VICE PRESIDENT: All right, so if we put in "ordinary" rather than - or put in a reference to "ordinary", would that resolve the problem?

PN488

MS BHATT: It would seem to, yes.

PN489

THE VICE PRESIDENT: Yes, all right. All right, clause 70. Item 70.

PN490

MS BHATT: We consider that this issue has been resolved in the amended exposure draft, but the reason I didn't raise it earlier is because I had understood that the ASU wanted some time to consider their position.

PN491

THE VICE PRESIDENT: Perhaps this should be parked until the annualised salaries judgment comes down.

PN492

MR COONEY: We would be very happy with that course, your Honour.

PN493

THE VICE PRESIDENT: Which is a work in progress, all right. Does that mean we leap ahead to 77?

PN494

MS BHATT: Yes.

PN495

THE VICE PRESIDENT: All right, what's this about?

PN496

MS BHATT: It's linked to the shift work issue. So, perhaps we park that for now.

PN497

THE VICE PRESIDENT: All right. That's 106 again, is it?

PN498

MS BHATT: Yes.

PN499

THE VICE PRESIDENT: All right, item 80?

PN500

MS BHATT: I think item 80 and 81 raise the same issues. So, if we go to clause 23.4 of the exposure draft.

PN501

THE VICE PRESIDENT: Yes.

PN502

MS BHATT: It sets out the rate payable for ordinary hours of work performed on a public holiday. Clause 24 of the exposure draft deals with rates paid for overtime work and there is no provision in there for overtime performed on a public holiday. So, we say that's a substantive change from the award. One way of dealing with that might be to simply reproduce 23.4 under the heading of "Overtime." But we just raise one issue with that. 23.4(d) gives an entitlement to a minimum payment of four hours and the way we understand the entitlement in the current award to work is if an employee works ordinary hours and overtime on a public holiday, they don't have an entitlement to two sets of minimum payments. They are entitled to a minimum of four hours' pay, not a minimum of eight hours of pay. We would rely on clause 31.3 of the - - -

PN503

THE VICE PRESIDENT: So what causes doubt about that?

PN504

MS BHATT: If in order to rectify the absence of overtime rates for public holidays, clause 23.4 was simply reproduced under clause 24 of the exposure draft, it may be read that for ordinary hours on a public holiday there is an entitlement to four hours pay and then under the new provision for overtime there is another entitlement to four hours minimum pay.

PN505

THE VICE PRESIDENT: Yes, all right. So do the parties have a view whether the simplest fix to this would be to add a reference to public holidays in table 5 which specifies the rate as 250 per cent?

PN506

MR COONEY: Your Honour, the ASU would be - that would be acceptable to the ASU.

PN507

THE VICE PRESIDENT: Anyone else?

PN508

MS BHATT: Just so I have understood this properly, the only change would be an extra row in table dealing with public holidays?

PN509

THE VICE PRESIDENT: Yes. So you will see it says, "Sunday, all day, 200 per cent," so it will be something like, "Public holidays all day, 250 per cent."

PN510

MS BHATT: I see no difficulty with that.

PN511

MR KLEPPER: Business SA has got no difficulty with that either, thank you.

PN512

THE VICE PRESIDENT: Yes, all right. All right, item 82.

PN513

MS BHATT: I think that raises the same issues at 81.

PN514

THE VICE PRESIDENT: Yes, same issue, all right. Would that dispose of 83?

PN515

MS BHATT: Yes, Vice President.

PN516

THE VICE PRESIDENT: All right, 84.

PN517

MS BHATT: That again relates to item 106, shift workers.

PN518

THE VICE PRESIDENT: All right. Then we leap ahead to 91.

PN519

MS BHATT: We might be able to deal with that in the same way as we have dealt with other submissions made about the preambles that appear above various tables.

PN520

THE VICE PRESIDENT: Yes, all right. So, that's noted. 92.

PN521

MS BHATT: 24.4(b) of the exposure draft in response to our submissions now says that the entitlement to the minimum payment that's there prescribed is payable only if the employee is available to work. The current clause requires that the employee must be ready, willing and available. I can see that the drafter has noted that to insert the words "ready and willing" in addition to "available" would create an issue because other clauses refer only to the availability of the employee and I assume therefore that the concern is one of consistency. But I think the point remains that they are two different thresholds. An employee who is available is an employee who is not otherwise occupied, but such an employee is not necessarily willing and ready to work. I think they are two different tests. So to change it in the exposure draft does change the legal effect of the award.

PN522

THE VICE PRESIDENT: But does it change it to the employer's disadvantage? It might be the other way around, mightn't it?

PN523

MS BHATT: Well, under the exposure draft, the minimum payment would be due if an employee is available to work but they are not willing to work. But under the award, that wouldn't be the case.

PN524

THE VICE PRESIDENT: "Ready, willing and able." But if you're not willing, you're not available, are you? If you just say, "I don't want to work for three hours," how can you be said to be available?

PN525

MS BHATT: Well, I think it depends on how the term "available" is interpreted. Objectively, "available" simply means not doing something else. As I said, not otherwise occupied. But I don't think such an employee - - -

PN526

THE VICE PRESIDENT: I am not sure that is the meaning. "Available" as in the sense of "capable".

PN527

MS BHATT: Well, if it were read that way, then that might alleviate some of our concerns. But I'm just not sure that it would necessarily be.

PN528

THE VICE PRESIDENT: All right. Does anyone else want to add to this? No? All right, 94. We might just do 94 and 96 and then we will break for lunch if that's convenient.

PN529

MS BHATT: Yes, thank you.

PN530

THE VICE PRESIDENT: So, 94.

PN531

MS BHATT: 24.4(c) requires minimum payment of four hours where overtime is worked on a Sunday and 23.3(b) provides for a minimum four-hour payment when ordinary hours are worked on a Sunday. But if we go to clause 27.2 of the current award, it prescribes the rate payable for all work on a Sunday. So we read that to mean ordinary hours and overtime. And then it says: "An employee required to work on a Sunday is entitled to not less than four hours' pay." So it's again the concern that the exposure draft gives rise to two entitlements to a minimum of four hours if they work ordinary hours and overtime on a Sunday.

PN532

THE VICE PRESIDENT: Sorry, I'm getting a bit - my brain is getting a bit tired. Ms Bhatt, can you explain that again? What's the ambiguity in the exposure draft? You have got the four hours minimum in (c).

PN533

MS BHATT: Four hour minimum in (c) and then if we go to 23.3(b).

PN534

THE VICE PRESIDENT: 23.3(b).

PN535

MS BHATT: That's another four hour minimum if you work ordinary hours.

PN536

THE VICE PRESIDENT: I see.

PN537

MR COONEY: Your Honour, I wonder whether the parties would be happy if in 23.3(b), if we made it clear that the four hours there is four ordinary hours and in 24.4(c) make it clear that the employee has to be available to work in four overtime hours?

PN538

MS BHATT: But I don't think that resolves the issue. I mean, if we look at - - -

PN539

THE VICE PRESIDENT: Your point is if they work a combination of ordinary and overtime hours on a Sunday, you could read that as saying you will get a minimum of four for the ordinary, but how do you get to overtime if you work more than four anyway? So if you don't work more than four hours on a Sunday, how do you get to overtime?

PN540

MS BHATT: Well, it might be the case if, for example, a part-time employee has agreed hours on a Sunday that are less than four hours or if a casual employee, for example, works a shorter number of hours on a Sunday. That means they have reached their 38 for the week and then they go into overtime for the rest of their shift. There could conceivably, I think, be circumstances in which you work a combination of the two.

PN541

THE VICE PRESIDENT: So it would require a provision to the effect that clause 24.4(c) does not apply where clause 23.3 does apply. Is that the substance of it?

PN542

MS BHATT: Yes, and we have set this out at paragraph 372 of our submissions and that the words proposed are to the same effect that you have just read out, Vice President. Provided that where clause 23.3(b) applies, an employee will not be entitled to an additional four hour minimum payment under this clause.

PN543

THE VICE PRESIDENT: All right. I think we have got the point about that, so we will have to fix that. All right, 96.

PN544

MS BHATT: Vice President, 96 relates to issues that will also arise in 98 and 99. Is it more convenient to deal with it after lunch? I am happy to do it now if you prefer.

PN545

THE VICE PRESIDENT: No, that's fine. All right, well, we will now adjourn for lunch. We will resume at 2 pm.

PN546

MR COONEY: Sorry - - -

PN547

THE VICE PRESIDENT: Mr Cooney.

PN548

MR COONEY: - - - your Honour indicated that we might be sitting to 5 o'clock. I have got childcare arrangements. I am subject to an authority even higher than the Commission in that so - - -

PN549

THE VICE PRESIDENT: No, that was just a very sick joke.

PN550

MR COONEY: All right, thank you.

PN551

THE VICE PRESIDENT: I think with the number we have got left, although a lot of things have been deferred to item 106, that we should finish well before four, shouldn't we?

PN552

MR COONEY: Thank you.

PN553

THE VICE PRESIDENT: Yes. All right, we'll now adjourn.

LUNCHEON ADJOURNMENT�� [12.59 PM]

RESUMED�� [2.03 PM]

PN554

THE VICE PRESIDENT: All right, Ms Bhatt, so we're up to 96. I think you said that travelled with what?

PN555

MS BHATT: It relates to some of the following items, 98 and 99.

PN556

THE VICE PRESIDENT: Yes, all right. So can you explain that matter to us.

PN557

MS BHATT: I will start with 96. It looks at clause 25.3 of the exposure draft.

PN558

THE VICE PRESIDENT: Yes.

PN559

MS BHATT: This is a provision that applies to day workers or employee other than shift workers, but the amended clauses refers to the period of time that passes between finishing one shift of ordinary hours and beginning the next shift of ordinary hours. Conceptually, I think I understand what the provision is trying to do, but we're of the view that using the word "shift" in a clause that doesn't relate to shift worker is potentially confusing.

PN560

THE VICE PRESIDENT: Yes, I understand.

PN561

MS BHATT: If it assists, the comparable clause in the current award is 27.3(b). It just refers to an employee's ordinary work on one day and ordinary work on the following day.

PN562

THE VICE PRESIDENT: Yes, all right. We get that, Ms Bhatt, so that's that.

PN563

MS BHATT: Thank you. Item 98 relates to 25.3(b). As I understand it, the intention of this part of the provision is that an employee is entitled to have a 10-hour break after they have finished the overtime and if any ordinary hours that they would otherwise have worked full during that 10-hour break, then they are not to suffer a loss of pay. Our concern is that the exposure says it refers to an absence during ordinary hours as a result which potentially ignores this concept of ordinary hours under the award as opposed to ordinary hours that the employee would have worked. It shouldn't be the case that the award requires the payment of a penalty for a higher amount where any period of time that is defined as ordinary hours for the purposes of the award falls within the 10-hour break. I think over the course of our discussions, the ASU suggested that that clause could be amended to refer to ordinary hours that they would otherwise have worked which we think would resolve the issue.

PN564

MR COONEY: Yes, your Honour, I was proposing that perhaps we could say ordinary hours not worked during the period of release from duty, if that would be acceptable.

PN565

MS BHATT: I think what we need to try and capture is the fact that they are ordinary hours which but for the 10-hour break that is mandated by subclause (a), the employee would have worked. And I'm still thinking through this, but I'm just not sure if the words that you have just proposed, Mr Moran, overcome that.

PN566

THE VICE PRESIDENT: What, during ordinary hours not worked as a result of 25.3(a), or something to that effect?

PN567

MS BHATT: Something to that effect. I mean, I think that's why we were considering the words: "Ordinary hours they would have worked." It just makes it clear that it only relates to hours they would otherwise have worked.

PN568

THE VICE PRESIDENT: Yes, all right. I think we can do something to fix that.

PN569

MS BHATT: Yes, thank you.

PN570

THE VICE PRESIDENT: So that's 98, is it?

PN571

MS BHATT: Yes, it is. Item 99 relates to clause 25.4 of the exposure draft. The amended version says that if an employer requires an employee to resume or continue work without having 10 consecutive hours off and then it goes on. We think that the difficulty with this amendment is that it would apply where an employer requires an employee to resume or continue, potentially regardless of whether or not the employee, in fact, resumes or continues.

PN572

THE VICE PRESIDENT: What, so if the employer issues a requirement and the employee refuses?

PN573

MS BHATT: Yes, or doesn't comply. I'm just concerned that on a literal reading of the words, that might be open. So what we had proposed is if the clause instead starts with, "If on the instructions of the employer, an employee resumes or continues work," that would resolve the concern.

PN574

THE VICE PRESIDENT: All right, we can do something with that, although I must say this whole clause begs the question of how 25.3 can be expressed in mandatory terms if 25.4 allows you to do something different.

PN575

MS BHATT: As the Commission would be award, provisions like this appear in lots of awards and I have seen that many of them say that the equivalent to 25.3 operates subject to 25.4 which I think would overcome the concern that the Vice President has just raised.

PN576

THE VICE PRESIDENT: All right, we will look at those matters.

PN577

MS BHATT: Thank you.

PN578

THE VICE PRESIDENT: All right, 100.

PN579

MS BHATT: This is a similar issue. 25.4(c): "Must not suffer any loss of pay."

PN580

THE VICE PRESIDENT: Should that be, if we work out a fix for 25.3(b), should 25.4(c) be drafted in a consistent fashion?

PN581

MS BHATT: I think it should, yes.

PN582

THE VICE PRESIDENT: All right, so we'll amend that consistently with 25.3(b). All right, then 104. Is this your issues, Mr - - -

PN583

MR COONEY: Yes, this is, your Honour. Your Honour, I think what we're saying here is just as a matter of employment - sorry, as a matter of your employment that you are informed that you're a shift worker and it goes to, I guess, item 106 in the sense of what actually constitutes a shift worker under this award.

PN584

MS BHATT: I think, in effect, what the ASU is proposing is a substantive change to the award. There is, of course, a separate avenue available to it in this review to agitate such an issue if it so chooses. I'm just not sure that this is the appropriate forum for it.

PN585

THE VICE PRESIDENT: So there is no current requirement to inform someone in writing that they are required to work - - -

PN586

MR COONEY: It's not a comparable provision.

PN587

THE VICE PRESIDENT: sorry?

PN588

MR COONEY: There is not a comparable provision in the current modern award. On that basis, your Honour, we are not seeking to pursue 104.

PN589

THE VICE PRESIDENT: All right. I will put that as resolved. All right. So, 105, can we deal with 105, 106 and 107 together?

PN590

MS BHATT: Yes, Vice President.

PN591

THE VICE PRESIDENT: All right. So, fire away. What's this about?

PN592

MS BHATT: This is about the shift work definitions. So, the way we understand the current clause 28 of the award to work is it defines certain shifts by reference to start and finishing times. And then 28.4(a) of the current award says, "Notwithstanding any other provisions of this award, an employee may be employed on shifts, in which case the ordinary hours of work are to be 38," and it goes on. Then, of course, there is a premium that is payable if an employee works any of the shifts that are defined in 28.1. Unlike some other awards, there is no requirement for a system of shifts as such to be put in place. If we look at 27.1 of the exposure draft, it says that: "All of part 6 would apply to employees who are required to work their ordinary hours on" - and then it defines the shift.

PN593

The concern is this or this is at least one part of the concern. If an employee is a day worker and the spread of hours which is 7 am to 7 pm under this award is extended by one hour so that it finishes at 8 pm and there is a facilitative clause that lets you do that, then such an employee would automatically be considered to work an afternoon shift and, therefore, part 6 would apply to that. It seems that an employer wouldn't have - well, I think there is a conflict between that and the ability to extend the span of hours for a day worker and have them work the extra hour, the extra ordinary hour.

PN594

THE VICE PRESIDENT: So, Ms Bhatt, what is the facilitative provision you're referring to?

PN595

MS BHATT: In the exposure draft, it's at 13.6.

PN596

THE VICE PRESIDENT: So, can we resolve at least that point by modifying 27.1 to exclude employees working pursuant to a facilitative arrangement under 13.6?

PN597

MS BHATT: I think that would resolve that issue. I'm just not sure whether there are other such issues that might arise by virtue of the way clause 27.1 has been drafted. I mean, I think the difficulty arises because the current award we say makes clear at 28.4(a) that an employee is a shift worker for the purposes of these provisions if they are so employed by the employer. Whereas in the exposure draft, an employee would be a shift worker if they're required to work their ordinary hours such that they meet any of these definitions and that would necessarily be the case, it would have to be the case.

PN598

THE VICE PRESIDENT: But when 28.4(a) says "employed on shifts," it necessarily means the shifts described in the clause, doesn't it, which is the same thing? That is there is no other shifts. They are people employed to perform shifts which fit within those definitions. Well, that's the implication.

PN599

MS BHATT: But 28.4(a) means that an employee is a shift worker if they are employed to work on shifts and assuming that they are the shifts that are defined, they have been employed to work those shifts. The exposure draft differs because regardless of whether they have been engaged to work on those shifts or engaged to work ordinary hours under some other part of the award, they automatically become a shift worker and part 6 would have to apply to them. And this particular issue - - -

PN600

THE VICE PRESIDENT: So you say that read literally if, for example, you are required to work on one day, a period of time when you're ordinary hours end after 7 pm, you become a shift worker, is that the point?

PN601

MS BHATT: Under the exposure draft, yes, and, I mean - - -

PN602

THE VICE PRESIDENT: I mean, it just - - -

PN603

MS BHATT: - - - I raised this issue about - - -

PN604

THE VICE PRESIDENT: Sorry, go on.

PN605

MS BHATT: Sorry. I raised this issue about the 8 pm because I'm aware that it does in fact arise frequently. This issue has been raised by our membership on numerous occasions that I am aware of and we rely on the words in 28.4(a) to resolve that issue. That is, you are only a shift worker if you are employed to work on a shift. But, of course, you might just be a day worker and your ordinary hours have been extended in which case you don't automatically become a shift worker and entitled to the shift penalty.

PN606

THE VICE PRESIDENT: So what if 27.1 said: "Part 6 applies to employees who are required to work one or more of the following types of shift work"?

PN607

MS BHATT: Subject to there potentially being a need to make some reference to ordinary hours because it's their ordinary hours that they need to work in accordance with one of these definitions, I think that might resolve the issue.

PN608

THE VICE PRESIDENT: All right, Ms Bhatt, we'll come up with something to fix all that.

PN609

MS BHATT: Thank you.

PN610

THE VICE PRESIDENT: Sorry, if we fix up the preamble to 27.1, does there still need to be an exclusion of the facilitative provision or not? Does that become unnecessary?

PN611

MS BHATT: It should become unnecessary. That would resolve the issue.

PN612

THE VICE PRESIDENT: All right, thank you.

PN613

MS BHATT: Vice President, may I just make one enquiry? It arises especially in relation to this issue, but perhaps some of the others that we have discussed today as well. To the extent that the Commission will give further consideration to the issues that we have raised, will there be a further opportunity to provide any comment regarding an alternate form of words?

PN614

THE VICE PRESIDENT: I think we're getting to the point - I mean, this consultation process has to come to an end fairly soon, so I think we're getting to the point where once we receive all the notes from the parties in seven days, we would be looking at issuing a further exposure draft.

PN615

MS BHATT: Yes.

PN616

THE VICE PRESIDENT: Then perhaps having a further limited opportunity to comment upon that before we wrap up the process.

PN617

MS BHATT: I am just conscious that issues such as this one that we have just discussed, for example, might have some implication for other provisions of the award and I am probably not in a position to be able to identify what all of the possible flow-on effects might be and we would like an opportunity to look at a revised exposure draft.

PN618

THE VICE PRESIDENT: That will be issued. I mean, I appreciate that if we are coming up with new words, the parties need to have an opportunity to comment upon at least clauses which contain new words.

PN619

MS BHATT: Yes, yes.

PN620

THE VICE PRESIDENT: I don't think we're going to keep on going into an endless debate about some of the other matters, but certainly there will be some opportunity to the extent that we have come up with something that hasn't been exposed before. We will certainly give the parties some opportunity to comment upon those.

PN621

MS BHATT: Thank you.

PN622

THE VICE PRESIDENT: All right. So, have we dealt with all the shift work issues then?

PN623

MS BHATT: We haven't dealt with item 107.

PN624

THE VICE PRESIDENT: Yes. What's that about? This is the table issue again, is it?

PN625

MS BHATT: No, it's just a missing cross-reference, Vice President.

PN626

THE VICE PRESIDENT: I see.

PN627

MS BHATT: Clause 27.2 should refer to 27.1.

PN628

THE VICE PRESIDENT: Yes, all right. That will be fixed. All right, 109.

PN629

MS BHATT: Vice President, there is a note that we have inserted in a summary of submissions. This is that same issue about the ability to vary the span of hours at both ends which we understand has been referred to the end of the award stage of the review.

PN630

THE VICE PRESIDENT: That issue, yes, that's still lurking, is it?

PN631

MS BHATT: Yes, yes.

PN632

THE VICE PRESIDENT: All right. Ms Bhatt, unless Parliament gets moving, we are going to have start a new review on 1 January.

PN633

MS BHATT: Yes.

PN634

THE VICE PRESIDENT: All right, 110.

PN635

MS BHATT: This again relates to item 106 which is the shift work definitions that we have just discussed.

PN636

THE VICE PRESIDENT: Yes.

PN637

MS BHATT: And those are the type of issues that I think we might want to have another look at when a revised exposure draft is published. I don't anticipate that there will necessarily be a difficulty.

PN638

THE VICE PRESIDENT: All right. 111.

PN639

MS BHATT: I think 111 will necessarily be dealt with by the items that follow.

PN640

THE VICE PRESIDENT: That follow?

PN641

MS BHATT: Yes.

PN642

THE VICE PRESIDENT: So what's that - - -

PN643

MS BHATT: It was just a general question, yes.

PN644

MR COONEY: That's the question about is an employee available to work, item 111.

PN645

THE VICE PRESIDENT: 111.

PN646

MR COONEY: I think at clause 28.3 of the exposure draft, it talks about an employee required to work ordinary hours on public holidays entitled to not less than four hours pay if an employee is available to work for four hours. And the question was, has that accurately reflected the current modern award and I think the ASU's response was that it does and I'm not sure about - - -

PN647

MS BHATT: And at 112, AiG Group's response was that it doesn't, but that issue has now been resolved.

PN648

THE VICE PRESIDENT: So what's the difference between 111 and 112?

PN649

MS BHATT: I think they're the same issue, Vice President.

PN650

THE VICE PRESIDENT: The same issue, all right. So, 111 is resolved?

PN651

MS BHATT: Yes.

PN652

THE VICE PRESIDENT: 113, is this you, Mr Klepper?

PN653

MR KLEPPER: Yes, we have had a look at the revised exposure draft and also the wording provided by AiG Group in their response and in our submission of Wednesday, we put forward that we actually preferred the wording put forward by AiG.

PN654

THE VICE PRESIDENT: All right. So what's happened here?

PN655

MS BHATT: So at 29.1(b) of the exposure draft, there is a facilitative provision and it says that it can be agreed between an employer and the majority of employees.

PN656

THE VICE PRESIDENT: Yes.

PN657

MS BHATT: The comparable provision is 28.3(b) of the current award which says that agreement can be reached between the employee and the majority of employees concerns.

PN658

THE VICE PRESIDENT: I see. So if we just had the word "concerned" that - - -

PN659

MS BHATT: So you only need "concerned", yes.

PN660

THE VICE PRESIDENT: Yes, all right. All right, that will be done. 114.

PN661

MS BHATT: I think there are a few concerns that arise from this. Firstly, 29.3(a) says that an employee who works on shift work can work a maximum of six shifts of 10 hours, but it doesn't explain that the maximum of six shifts can be worked over the period of a week. So it doesn't explain the period over which the maximum can be worked. Also - - -

PN662

THE VICE PRESIDENT: What's the corresponding current provision?

PN663

MS BHATT: 28.4(a).

PN664

THE VICE PRESIDENT: So if it says, "A maximum of six shifts of 10 hours in a week be can be worked," does that resolve it?

PN665

MS BHATT: That resolves part of it. I think the other difficulty is that read literally, a maximum of six shifts of 10 hours each seems to suggest 60 hours and we don't understand that reference to 10 hours to mean all hours. We assume that means 10 ordinary hours and that, of course, can't be correct. The drafting of - - -

PN666

THE VICE PRESIDENT: Isn't it saying that you could have some sort of rotating roster which might have variable shifts from week to week, but the maximum you can put in a single week is six times 10? I mean, it might be 20 the following week, but - - -

PN667

MS BHATT: Vice President, I don't think that the drafting of the current clause is particularly clear, but I am told that the way we understand it is that is that 28.4(a) means that an employee can only work six or less shifts in a week. So, they can't be required to work seven shifts in a week.

PN668

THE VICE PRESIDENT: So you say they are two separate requirements. One, no more than six shifts in a week and, two, no shift is to exceed 10 hours?

PN669

MS BHATT: Yes.

PN670

THE VICE PRESIDENT: So perhaps we could split (a) into two separate paragraphs, (a) and (b), to make them separate? Does that work, Eamonn?

PN671

MR MORAN: Yes, because, well, 29.2 already says that the maximum number of ordinary hours that can be worked in any day is 10.

PN672

MS BHATT: Yes.

PN673

MR MORAN: So, presumably that would be applying, so as long as we have got the cap on six shifts, it may be enough.

PN674

MS BHATT: Can I read a form of words that we proposed in our submissions?

PN675

THE VICE PRESIDENT: Yes.

PN676

MS BHATT: That 29.3 could simply say: "An employee's ordinary hours may be worked over a maximum of six shifts per week." I'm not sure if this second part is necessary, but if it is, a Sunday may be included which appears in the current award. And as Mr Moran said, the maximum shift length of 10 ordinary hours already appears in the previous clause.

PN677

THE VICE PRESIDENT: Well, that's one way of doing it, but it seems to me that if 29.2 is there, (a) could just say a maximum of six shifts in a week, couldn't it?

PN678

MS BHATT: Yes.

PN679

THE VICE PRESIDENT: All right, well, I understand that. That's 114. 115.

PN680

MS BHATT: I think 115 relates to the various issues that follow.

PN681

THE VICE PRESIDENT: 116, you mean?

PN682

MS BHATT: Yes, and various issues after that as well.

PN683

THE VICE PRESIDENT: All right, so what are we looking at here? 30. Well, take us through it, Ms Bhatt.

PN684

MS BHATT: 30.3 of the exposure draft requires the payment of a higher rate where an employee works through their meal break. It seems that that has been taken from clause 26.1 of the current award. It's the final sentence. At the start of clause 26.1, we see that it says: "Subject to the provisions of clause 28, shift work." And then it goes on to prescribe the entitlement to a meal break, some parameters as to when the meal break must be taken, and then prescribes a penalty that is payable if the employee doesn't take the break or the break isn't allowed. We say that the entire provision is to be read subject to clause 28. That is clause 28 deals wholly with the entitlement to breaks and any associated issues for shift workers and, therefore, the last sentence of that clause doesn't apply to a shift worker where they are required to work through their break. There is no separate - - -

PN685

THE VICE PRESIDENT: So the last sentence of what clause of the existing award?

PN686

MS BHATT: 26.1.

PN687

THE VICE PRESIDENT: 26.1. So where is meal breaks dealt with in 28?

PN688

MS BHATT: 28.4(f).

PN689

THE VICE PRESIDENT: Do you say under the current award there is no penalty consequence if you are required to work through a break or simply that working through a break is not permitted?

PN690

MS BHATT: 28.4(f) does not appear to contemplate an ability to require an employee to work through the meal break.

PN691

THE VICE PRESIDENT: All right, well, I understand that point. So, Mr Cooney, what's your view about this?

PN692

MR COONEY: We would agree with what has just been put.

PN693

THE VICE PRESIDENT: All right. So, 33.3 should simply be deleted, is that the consensus?

PN694

MS BHATT: Yes.

PN695

THE VICE PRESIDENT: Does anyone take a different view? So, that's deleted. All right, I understand that. All right, next is 121.

PN696

MS BHATT: We have raised similar issues to the ones we have raised previously about the preamble. We just ask that our submissions be noted in the same way.

PN697

THE VICE PRESIDENT: Thank you. 122, so what's the issue there, Mr Cooney? Is this - - -

PN698

MS BHATT: We would agree with that. We now not oppose that.

PN699

THE VICE PRESIDENT: All right, that is resolved. 123.

PN700

MS BHATT: Vice President, from AI Group's perspective, that issue is resolved in the amended exposure draft.

PN701

THE VICE PRESIDENT: All right. Mr Cooney, is there still an issue here?

PN702

MR COONEY: No.

PN703

THE VICE PRESIDENT: All right, I'll put that as resolved. 124.

PN704

MR KLEPPER: Sorry, may I quickly - I think I may have spotted a minor drafting error in 31.3.

PN705

THE VICE PRESIDENT: Yes.

PN706

MR KLEPPER: It appears that there are two columns if an employee is available to work for four hours and one has been inserted after "and" and then the existing one hasn't been deleted. Just a minor drafting point.

PN707

MS BHATT: So the issue at 124 - - -

PN708

THE VICE PRESIDENT: Sorry, what do you say should be deleted, Mr Klepper?

PN709

MS BHATT: Sorry.

PN710

MR KLEPPER: In clause 31.3, I am looking at the revised exposure draft with the changes tracked.

PN711

THE VICE PRESIDENT: Yes.

PN712

MR KLEPPER: It appears that where the strike through is "where the employee", there is a colon both before and after that. So it appears that there will be - - -

PN713

THE VICE PRESIDENT: Yes, all right.

PN714

MR KLEPPER: Yes.

PN715

THE VICE PRESIDENT: Yes, thank you. All right, 124.

PN716

MS BHATT: The issue at 124 is similar to one we have discussed previously. So, clause 28.3 of the exposure draft prescribes the penalty rate for ordinary hours of work on a public holiday for a shift worker with a minimum four-hour payment. And then clause 31.3 prescribes a minimum four-hour payment where an employee works overtime on a public holiday.

PN717

THE VICE PRESIDENT: So what - - -

PN718

MS BHATT: And so we had - - -

PN719

THE VICE PRESIDENT: Yes, sorry, go on.

PN720

MS BHATT: Sorry. We had suggested that a new subclause be inserted at the end of 31.3 that says that the entitlement would arise only if the employee is not entitled to a minimum four-hour payment under clause 28.3.

PN721

THE VICE PRESIDENT: So what item? Do you remember what item? We just talked about this earlier.

PN722

MS BHATT: I am trying to look for it, your Honour, I'm sorry. Item 94.

PN723

THE VICE PRESIDENT: All right. So if we note that we will fix this consistent with item 94.

PN724

MS BHATT: Yes, thank you.

PN725

THE VICE PRESIDENT: All right, 128.

PN726

MS BHATT: We have looked at the revised exposure draft again overnight and we haven't identified any concerns with it.

PN727

THE VICE PRESIDENT: All right, so I'll put that as resolved. 131.

PN728

MS BHATT: This again relates to the clause that grants a minimum break between two shifts and it's the issue of loss of pay for ordinary hours that would otherwise have been worked.

PN729

THE VICE PRESIDENT: So again if we - - -

PN730

MS BHATT: I think a consistent approach - - -

PN731

THE VICE PRESIDENT: What was the earlier item?

PN732

MR MORAN: I think it's 98, is it?

PN733

MS BHATT: Yes, it is, thank you.

PN734

THE VICE PRESIDENT: So I'll just note, fix consistent with 98?

PN735

MS BHATT: Yes.

PN736

THE VICE PRESIDENT: All right. 132, is it? Is this the same issue?

PN737

MS BHATT: It's not the same issue as the one we just discussed, but we have looked at a similar issue before.

PN738

THE VICE PRESIDENT: What item is that?

PN739

MR MORAN: 99.

PN740

MS BHATT: Yes.

PN741

THE VICE PRESIDENT: If we fix this consistent with item 99.

PN742

MS BHATT: Yes, thank you.

PN743

THE VICE PRESIDENT: All right. All right, 134. Again, we have done this, haven't we?

PN744

MS BHATT: Yes.

PN745

THE VICE PRESIDENT: So what item was that?

PN746

MS BHATT: 98.

PN747

THE VICE PRESIDENT: All right, so we will fix that consistent with item 98. All right, 136.

PN748

MS BHATT: The summary refers to clause 32, but that provision has now been moved to clause 21.8(a) of the exposure draft. And the clause in the modern award is clause 19.1.

PN749

THE VICE PRESIDENT: Yes, this rings a bell. So why wouldn't we take the same approach as the Pharmacy Award?

PN750

MS BHATT: Well I'm not close to the detail of precisely what happened in those details. AI Group doesn't have a relevant interest in that award, but our position is that on a plain reading of the words in clause 19.1, the entitlement arises only where an employee seeking to reach the employee's home and not the other way.

PN751

THE VICE PRESIDENT: What is it? 19.1?

PN752

MS BHATT: Yes.

PN753

THE VICE PRESIDENT: I think this is a problem because the reference to "commencing" must imply that it may apply to travel from home to work, doesn't it? That was the ambiguity which arose in the Pharmacy Award.

PN754

MS BHATT: Yes, and I understand the argument, but that ambiguity could equally be resolved by removing the references to the commencement of shift work. I mean, without having undertaken some research into the origins of this provision, it's unclear to us on its face how the provision was intended to work originally and the appropriate way in which the ambiguity should be resolved. But the approach taken into the exposure draft resolves the ambiguity by extending the entitlement.

PN755

THE VICE PRESIDENT: Well, it depends how you read it. All right, I think you can assume that if the existing clause is the same or in substance the same as the clause which was rectified in the Pharmacy Award, then we would follow the Full Bench decision. If there is some distinction between the existing clause and the Pharmacy Award, well, that might be a different question.

PN756

MS BHATT: If it pleases.

PN757

THE VICE PRESIDENT: I will put that as noted, but we will check the pharmacy provision which was remedied. Ms Bhatt, if you want to have a look at that and if in seven days you can point to some critical distinction between the clause here as it currently stands and the Pharmacy Award which would lead to a different outcome, you can seek to persuade us.

PN758

MS BHATT: Yes, thank you.

PN759

THE VICE PRESIDENT: All right, 137. Is this yours, Mr Klepper?

PN760

MR KLEPPER: Yes, it is, and it was on a similar basis as was put by AI Group, but we are no longer going to press that submission.

PN761

THE VICE PRESIDENT: All right, thank you. All right, 138.

PN762

MS BHATT: It deals with the same issue as - sorry, yes, it deals with the same issue as 136.

PN763

THE VICE PRESIDENT: All right. All right, 138.

PN764

MS BHATT: I'm sorry, 138 is resolved. It is the same issue as 136.

PN765

THE VICE PRESIDENT: So, 139, I meant.

PN766

MS BHATT: 139 is resolved in the amended exposure draft.

PN767

THE VICE PRESIDENT: All right. All right, 141.

PN768

MS BHATT: AI Group no longer presses that submission.

PN769

THE VICE PRESIDENT: All right, so that's resolved.

PN770

MS BHATT: Yes.

PN771

THE VICE PRESIDENT: 142.

PN772

MS BHATT: Resolved from our perspective in the amended exposure draft.

PN773

THE VICE PRESIDENT: All right, I'll put that as resolved. 143.

PN774

MS BHATT: Not one that we would die in a ditch over, Vice President. 37.1 says public holiday entitlements are provided for in the NES. I think the point made was that the NES deals with more than just entitlements associated with public holidays. It, of course, identifies what public holidays are for the purposes of the NES that otherwise - - -

PN775

THE VICE PRESIDENT: All right, that's noted.

PN776

MS BHATT: - - - but we will just leave that.

PN777

THE VICE PRESIDENT: Yes, thank you. 144.

PN778

MS BHATT: Item 144 relates to a provision that we have proposed to be introduced in the public holidays clause which would deal with this issue of the double entitlement to minimum payments arising in relation to ordinary hours of work and overtime being performed on a public holiday. It's been picked up as a separate issue in the summary.

PN779

THE VICE PRESIDENT: All right, so when we fix it up, as discussed earlier, this is resolved?

PN780

MS BHATT: Yes.

PN781

THE VICE PRESIDENT: All right, 145.

PN782

MS BHATT: If I can take the Commission back to clause 7.2 of the exposure draft.

PN783

MR KLEPPER: I'm sorry, I missed that. Which clause are we going back to?

PN784

THE VICE PRESIDENT: 7.2.

PN785

MS BHATT: 7.20.

PN786

MR KLEPPER: Thank you.

PN787

THE VICE PRESIDENT: Yes.

PN788

MS BHATT: Well, actually, I hadn't appreciated that an amendment had been made to clause 7.2 which potentially changes our position. So, the submission originally was that clause 37.3 which is the substantive facilitative provision should reflect what it is in the index of facilitative provisions. But it appears that in the amended version of the exposure draft, the index has been amended which I had not previously - - -

PN789

THE VICE PRESIDENT: So that's resolved, is it?

PN790

MS BHATT: I'm not sure that it is. Can I take that on notice?

PN791

THE VICE PRESIDENT: All right. All right, 146.

PN792

MR KLEPPER: This is a submission put forward by Business SA and it appears that AI Group put a submission along similar lines. We first of all identified a difference in language going from use of the word "characteristics" to "competencies," as it has the potential to change how the classification structure applies. And then in a more general sense, we expressed concern about looking at the classifications as a whole as part of this plain language process given the importance those schedules have in determining who was actually covered by the award.

PN793

THE VICE PRESIDENT: All right. Do you know why we changed that provision?

PN794

MR MORAN: In the current award in the schedule B, when it starts, the second paragraph says: "The key issue to be looked at in properly classifying an employee is a level of competency and skill that the employee is required to exercise in the work they perform." So, in looking at this, we thought that would be good to talk about competencies, rather than characteristics. But I accept it's a different word.

PN795

MS BHATT: If I can just, for our part, we have very serious concerns about the way this schedule has been redrafted and on one view it very seriously alters the way in which the classification of employees would be determined. I think that the way the current classification schedule is drafted, it broadly describes the characteristics that an employee at a particular level must have by reference to the nature of the work that they perform and their general skill level. And each classification level, particularly the lower classification levels, seem to contemplate a fairly broad range of skills and types of duties that might be undertaken.

PN796

But the way the exposure draft has been redrafted or the way the award has been redrafted, it now adopts this approach of listing various competencies which an employee must possess to be able to be classified at that level and it seems to require that an employee must possess all of those competencies which is not at all how the classification under the current award would work. And, I mean, as Business SA has identified, it may have some bearing on coverage, but it would also, I think, have the effect of classifying employees up or down the scale. So, can I give the Commission one example?

PN797

THE VICE PRESIDENT: Yes.

PN798

MS BHATT: I'm looking at level 2 of the current award, the second paragraph. It says:

PN799

Employees at this level are responsible and accountable for their own work. In some situations, detailed instructions may be necessary. This may require the employee to exercise limited judgment and initiative within the range of their skills and knowledge.

PN800

Then if we go to the exposure draft. I'm looking at page 42A.3.1. It lists the competencies and it says: "The general competencies and skills required of employees at this level include" - and it goes through and lists them all. For example:

PN801

The ability to exercise limited judgment and initiative within their skills and knowledge and the ability to check work and provide guidance to other employees at a lower levels.

PN802

So, it seems to be that you would have to have all of these general competencies and skills to be classified at level 2.

PN803

THE VICE PRESIDENT: Yes, well, I understand, Ms Bhatt. Did you or anyone identify how recent this was? We have lost Ms Bhatt, I think. We have lost everyone now.

PN804

MR KLEPPER: My apologies, I got cut off there.

PN805

THE VICE PRESIDENT: Yes, just hold on a second. We're just trying to fix all this.

PN806

MR KLEPPER: Sure.

PN807

THE VICE PRESIDENT: Ms Bhatt, or anybody, we are still waiting for Mr Cooney to return, but the current schedule A, can anyone briefly identify the history of it? That is how old is it? How recently was it put together?

PN808

MS BHATT: For my part, I don't know the answer to that, I'm sorry, Vice President.

PN809

MS THOMSON: Mr Cooney might actually be the best person to answer that question, Vice President.

PN810

THE VICE PRESIDENT: Mr Cooney, I was just asking the other parties, schedule A to the award, the classification structure, when was that put together?

PN811

MR COONEY: So I am looking at the submission from 2008 during award modernisation and the ASU put to the Bench that there were 116 existing clerical and admin awards. The ASU proposed having a classification from all those awards included into what has become the Clerks Private Sector Award. What the Full Bench determined to do was just use the classifications from the common rule awards which would typically have been the Victorian Private Sector Award. So that's where the classification structure emanated from.

PN812

THE VICE PRESIDENT: Do we know how far it went back in those awards?

PN813

MR COONEY: In those awards, I don't know when. I could easily establish it, but I don't know when the Victorian Private Sector Award was - the classifications were last amended, but I would imagine before 2000.

PN814

THE VICE PRESIDENT: All right. What's your view? What's your organisation's view about his?

PN815

MR COONEY: On an overall view outside the four year award review, we would like to see the classifications and the characteristics brought up to date.

PN816

THE VICE PRESIDENT: All right, well, that's a merit issue.

PN817

MR COONEY: Yes.

PN818

THE VICE PRESIDENT: But in terms of drafting, this is a drafting exercise as distinct from a substantive change. I mean, you can apply any time you like to change them, but - - -

PN819

MR COONEY: Yes, sorry, we would agree with what Ms Bhatt has put.

PN820

THE VICE PRESIDENT: All right, well, I think we understand the point that is being made and we will undertake a review of the redraft of schedule A and I think we are substantially persuaded that subject to some modification, we should basically return to the existing schedule. So that's 146 and 147. 148.

PN821

MS BHATT: Vice President, this is an issue that AI Group has raised in relation to the note that appears in the summary of hourly rates in all the exposure drafts. To my knowledge, the Commission has not made a ruling - has not issued a ruling in relation to it. It's a general concern that arises from the way it has been expressed.

PN822

THE VICE PRESIDENT: All right, so where is it? So, what page is the note on?

PN823

MS BHATT: Page 49.

PN824

THE VICE PRESIDENT: Yes.

PN825

MS BHATT: I think the short point is that it refers to employers who meet their obligations under this schedule, but that the schedule itself doesn't create or impose any obligations. It's the award itself that does that.

PN826

THE VICE PRESIDENT: Yes, I see the point. All right, well, we will have to work out a mechanism to resolve that issue, but I can see the point.

PN827

MS BHATT: Thank you.

PN828

THE VICE PRESIDENT: All right, 149.

PN829

MS BHATT: If I can take the Commission to page 50 of the exposure draft.

PN830

THE VICE PRESIDENT: Yes.

PN831

MS BHATT: B.2.1 sets out rates for shift workers and the first column says "Day". We don't think that's necessary. The concept, I mean, of a day shift doesn't exist as such under this award.

PN832

THE VICE PRESIDENT: Yes, I understand. All right, so we'll delete that. 151, is that the same issue?

PN833

MS BHATT: It's the same issue, but another table.

PN834

THE VICE PRESIDENT: All right, 152.

PN835

MS BHATT: The issue we raise has been resolved, but I should just say that I think there has been quite a significant amount of renumbering that has occurred in the revised exposed draft and we haven't checked that all of that is properly reflected in schedule C.

PN836

THE VICE PRESIDENT: All right, well, I will note that.

PN837

MS BHATT: We can endeavour to do so when the next exposure draft is published.

PN838

THE VICE PRESIDENT: All right, 153, Mr Klepper. So, we have dealt with that, haven't we?

PN839

MR KLEPPER: I think that there was a remaining concern we have regarding the definition of "clerical work" as it appears in the revised exposure draft in clause 2, simply being that there is some extra wording in the revised exposure draft that doesn't appear in the current award definition. The extra wording is at the end of the definition saying: "And administrative work of a clerical nature." And we may be mistaken, but we don't think that appears in the current award.

PN840

MR MORAN: Your Honour, the additional words were picked up from 4.1 of the current award, the coverage clause including administrative duties of a clerical nature. So that was then built into the definition of clerical work rather than setting it out separately.

PN841

THE VICE PRESIDENT: Does anyone else have an issue about this?

PN842

MR COONEY: Your Honour, the ASU believes that the words should appear at definition 2 simply for the sake that - and there has been some discussion between the parties about this, but otherwise administrative work of a clerical nature wouldn't be captured by the proposed award and it's clearly meant to given that it is in the coverage clause of the current modern award.

PN843

THE VICE PRESIDENT: Ms Thomson or Mr Klepper or Ms Bhatt, do you have any view about this?

PN844

MS BHATT: AI Group has identified a difficulty arising from the reference to administrative work in the definition based on what Mr Moran has put. The only thing I would say, and we touched on this briefly when we were looking at item 2, that there is a view held at least by some of the employer parties, I think, that it should say "administrative duties" instead of "administrative work" which would be consistent with clause 4.1 which is just out of concern that it might be arguable that "duties" implies what an employee is required to do. "Work" seems to require a consideration of what the employee actually does. There might suddenly be two different things, but apart from that, we don't have a concern with the amended definition.

PN845

THE VICE PRESIDENT: All right, we will put "duties" back in, otherwise, the submission is noted.

PN846

MR KLEPPER: I would add, having heard that explanation from Mr Moran, I don't think Business SA has a concern regarding that clause anymore.

PN847

THE VICE PRESIDENT: All right, thank you. 154.

PN848

MS BHATT: Clause 34.3 of the exposure draft is headed "Additional payment for annual leave" and then throughout the clause it now refers to an additional payment that is due which in the current award is called the annual leave loading which is, of course, a term that is well known and very commonly used especially in the award system and we say for that reason alone it should be retained.

PN849

THE VICE PRESIDENT: All right, we'll do that.

PN850

MS BHATT: But can I also - - -

PN851

THE VICE PRESIDENT: Yes, sorry.

PN852

MS BHATT: All right.

PN853

THE VICE PRESIDENT: Anything else?

PN854

MS BHATT: Well, I was only going to say that it potentially also raises a substantive issue because the model flexibility clause refers to annual leave loading. It would no longer be clear that that's a reference.

PN855

THE VICE PRESIDENT: Am I right in saying the Act refers to it as annual leave loading in section 139?

PN856

MS BHATT: Yes, in the permitted awards, yes, that's right.

PN857

THE VICE PRESIDENT: Yes, yes, all right. All right.

PN858

MS THOMSON: Just on that point, your Honour, and I note that the security industry or Security Services Award is one that is next up for plain language drafting, the issue of the annual leave loading and the use of that terminology, I just flag this as an issue for Mr Moran's attention, that will actually be potentially an issue that will have to be resolved the other way with respect to that award because of the way it's actually drafted which is an issue which has arisen when I was looking at this issue following our discussion between the parties. So I just flag that as something which we may have to revisit in the other plain language awards.

PN859

THE VICE PRESIDENT: All right, well, I am sure you will remember that, Ms Thomson. Finally, 155.

PN860

MS BHATT: The definition of minimum hourly rate in clause 2. It's defined as the minimum hourly rate prescribed by clause 16. Clause 16 sets out the adult rate and the junior rate. It used to also make reference to the supported wage system and the national training wage but it no longer does because they're in separate clauses. The concern being that wherever that term "minimum hourly rate" is used, it's not clear how that would apply to an employee who is being paid according to the supported wage system or the national training wage. Arguably, it picks up a higher rate.

PN861

THE VICE PRESIDENT: So, is the expression "minimum hourly rate" used in the award in connection with national training wage or SES employees?

PN862

MS BHATT: The term is used throughout the body of the award in relation to entitlements that those employees - - -

PN863

THE VICE PRESIDENT: Get.

PN864

MS BHATT: I'm sorry.

PN865

THE VICE PRESIDENT: You are saying the phrase is used in respect of entitlements in the award which apply to the national training wage and supported employment people.

PN866

MS BHATT: Yes.

PN867

THE VICE PRESIDENT: That's the point, all right.

PN868

MS BHATT: Yes.

PN869

THE VICE PRESIDENT: Have you got a suggested fix for this, Ms Bhatt?

PN870

MS BHATT: The definition could instead read: "Minimum hourly rates means the minimum hourly rate prescribed by this award." So it makes clear that it doesn't pick up over-award payments and it's simply the relevant appropriate rate.

PN871

THE VICE PRESIDENT: All right, well, I think we recognise the problem and we will give some thought as to how we can fix that.

PN872

MS BHATT: Thank you.

PN873

THE VICE PRESIDENT: All right. Have we dealt with all the issues? Mr Cooney, you have got time to pick up your children?

PN874

MR COONEY: Yes, and not get in trouble.

PN875

THE VICE PRESIDENT: All right. I thank the parties for their very considerable assistance. We will look forward to the further notes to be received within seven days and then the parties can anticipate that following that we will at some stage issue a further exposure draft. If there is nothing further, we will now adjourn.

PN876

MS BHATT: Thank you.

ADJOURNED INDEFINITELY�� [3.18 PM]