PN1

JUSTICE ROSS: Good morning, can I have the appearances in Sydney please?

PN2

MR R KRAJEWSKI: If the Commission pleases, Krajewski, initial R. Fire Protection Association Australia.

PN3

JUSTICE ROSS: Thanks Mr Krajewski. In Melbourne?

PN4

MS B PAUL: Paul, initial B from Ai Group, your Honour.

PN5

JUSTICE ROSS: Thanks Ms Paul. In Brisbane?

PN6

MS L ZHOU: Zhou, initial L, appearing for ABI and New South Wales Business Chamber.

PN7

JUSTICE ROSS: Thank you. There's no need to stand. It's easier if you keep - yes, that's fine.

PN8

MR J O'DWYER: O'Dwyer, initial J from Master Electricians Australia. Thank you, your Honour.

PN9

JUSTICE ROSS: Thanks Mr O'Dwyer.

PN10

MR J WATT: Watt, initial J from Master Electricians Australia.

PN11

JUSTICE ROSS: All right, thank you. No appearance by the CEPU?

PN12

MR KRAJEWSKI: Doesn't appear to be.

PN13

JUSTICE ROSS: No? All right. The purpose of the mention is really to deal with item 4, the proposed new shift work clause and how the Fire Protection Association proposes to or wishes to proceed in relation to that claim. There was some discussion earlier that there might be a consent position emerging about it. There's been a debate about whether it was a technical and drafting issue or a substantive claim and really, the purposes is to find out where this thing is up to and where you want to take it.

PN14

MR KRAJEWSKI: Thank you, your Honour. Your Honour, well since the last time I think that the parties were all together, nothing really has occurred. That's going back quite some time.

PN15

JUSTICE ROSS: Right.

PN16

MR KRAJEWSKI: The position at that stage was that I think four of those parties were in agreement and two of them aren't here today, that's CEPU and NECA.

PN17

JUSTICE ROSS: Yes.

PN18

MR KRAJEWSKI: Themselves, with Master Electricians and ourselves had reached an agreement, as I recall. But an agreement had been reached that we thought that firstly there was scope for a shift work clause within the award, a specific shift work clause and I think overall, all four of those parties did not concede it to be a substantive issue on the basis that all that simply was, if we maintain that position of being renamed and clearly identifying shift workers separate from the normal hours of work provision.

PN19

JUSTICE ROSS: Had you reached - had that level of agreement reached the form of that clause?

PN20

MR KRAJEWSKI: I believe the group of four there, if I can use that term, I think we did in fact - I think Master Electricians finally put together a draft order in that regard and I can't immediately identify that. That was the position of those four parties. The other two parties AiG and ABL they had a different view.

PN21

I think the last correspondence that we received from them wasn't about much - February last, I should say, where they identified two or three items which were responded. We believe that we had responded to their concerns, but at no stage following that from my - I stand to be corrected - but at no stage after that was there any further communication in relation to that particular response.

PN22

JUSTICE ROSS: All right, well let's just deal with for the moment, the Master Electricians. Do you agree with Mr Krajewski's summary of where this matter is up to and then I'll go to ABI and Ai Group?

PN23

MR O'DWYER: Yes, your Honour I believe that whilst I don't think we actually had a complete agreement with the four parties, we weren't far away from it, but certainly the opposing views from AiG and ABL were certainly the main stumbling blocks from gaining consent, agreement there.

PN24

JUSTICE ROSS: All right. Let's go to ABI and then Ai Group. Mr Krajewski's indicated that you had raised some concerns about the clause and they had been responded to. Where's the matter up to from the position of your organisations?

PN25

MS PAUL: If I may, your Honour.

PN26

JUSTICE ROSS: There's no need to stand, Ms Paul, that's fine.

PN27

MS PAUL: Our position is that the responses don't really address the key issues which we have, which is (a) we don't see the necessity for the change, and there's been no cogent reason to provide - to indicate any necessity for the change. (b), we do have some concern about the removal of the distinction between continuous and non-continuous shift work and that's one of the critical aspects because the clause being proposed is a joint proposal of both those provision into one clause.

PN28

If nothing else, we say that this is a change and we don't believe it's addressed all of the necessary elements of why those two clauses have been separated for quite some time in relation to these awards. Finally, your Honour, we again have some concerns about the actual drafting and whether or not it actually makes it any easier for anyone reading the award to now understand if the FPAA clause were to be adopted. We believe that there's a substantive change. Thank you, your Honour.

PN29

JUSTICE ROSS: All right, and ABL?

PN30

MS ZHOU: I don't believe - there's not much to add today I agree, we're all in the same position here. One of the key concerns we have is one, we don't really see why it's necessary, it's not been addressed. Two, the potential impacts, although may not be intended, but the potential impacts that may create to the award itself. Also, we agree with Ai Group in the fact that we don't believe the drafting or the proposed draft actually clarifies the issue. It combines both continuous and other than continuous shift workers.

PN31

The word shift worker is not defined, and yet it seems to be used interchangeably with continuous shift worker. So, to us it seems to cause more confusion because it's not clear whether the reference to shift worker is to continue shift worker or not, other than continuous shift worker. Our position is the same as Ai Group and we don't believe that it should be dealt with in this proceeding. That's rather a substantive matter.

PN32

JUSTICE ROSS: Well, what about this as a way forward. I think the first step is that the group of four, if I can use the same characterisation, should have further discussions and finalise their position, that would be the first point. The second is you've heard Ai Group and ABL's concerns. They go to the merger of the continuous, non-continuous, what the necessity is of the provision and issues and issues around the drafting of it and its impact on the award in general.

PN33

Once the group of four have reached their position, then I'd encourage you to have further discussions with ABL and Ai Group with a view to reaching a consent position. If that can be arrived at, then it can be dealt with as a technical and drafting change on the basis that all the parties agree that the change is appropriate and necessary to achieve the modern award objective.

PN34

If you don't reach a consent position, I'll refer to the Bench that's dealing with the range of other substantive issues. Look, what I'd be minded to do is give you about four weeks to sort out your respective positions. If you can, Mr Krajewski provide a report by 4 pm on Friday 14 September and we'll post that on the website and make sure everyone gets a copy of it. Shortly after that, I'll list the matter for mention and at that point we'll make a decision about where it goes. Does that give you enough time?

PN35

MR KRAJEWSKI: Yes, your Honour. I make these comments firstly. Subject to the other parties, I'd like to get back to the Commission by the end of next week. I say that for one reason, I go away the week after for five weeks.

PN36

JUSTICE ROSS: That's absolutely fine, no that's fine.

PN37

MR KRAJEWSKI: I'll endeavour, following today's mention to get in contact with the other parties of their script form and see if we can organise a meeting in relation to that and then immediately following that, I'll get in contact with AiG and ABL and see if we can organise some sort of discussion before the end of next week and get a report to the Commission by next week. But that's all subject to peoples' movements of course, your Honour.

PN38

JUSTICE ROSS: How long are you away?

PN39

MR KRAJEWSKI: I'm back on 4 October, your Honour.

PN40

JUSTICE ROSS: Well, I'll list it for mention some time after. It's probably going to be mid-October I think. That will give you an opportunity when you get back to see if there's any further scope for discussion between the parties.

PN41

MR KRAJEWSKI: Yes.

PN42

JUSTICE ROSS: It's just I don't want to refer to add another issue to a substantive Full Bench if there's a prospect of an agreed position between the parties. I understand the concerns ABL and Ai Group have at the moment about the proposal, but let's see if we have an opportunity to work through it.

PN43

MR KRAJEWSKI: Your Honour, if I might just finish up and not to take it any further than that but first we believe that in our response on 3 March, I think it was last year, we did respond to those issues raised by both AiG and ABL. We will revisit those anyway and the issues that have been raised here this morning but endeavour to try to get this matter resolved as soon as we can.

PN44

JUSTICE ROSS: Yes, I think through direct discussion you're more likely to get to the bottom of what the concerns might be and that will give you an opportunity to address them and we'll see how we go.

PN45

MR KRAJEWSKI: Thank you, your Honour.

PN46

JUSTICE ROSS: Does anyone else have a different view or anything they wish to say at this stage?

PN47

MS PAUL: No, your Honour.

PN48

JUSTICE ROSS: All right, well I'd encourage to have those discussions. As I say, it will be brought to a conclusion through one route or the other, but let's see how we go through the course of further discussions between the parties.

PN49

Thanks very much for your attendance. I'll adjourn.

ADJOURNED INDEFINITELY [9.41 AM]