PN1

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

PN2

MR P BONCARDO: If the Commission pleases, Boncardo, initial P, and I seek permission to appear on behalf to the Transport Workers Union.

PN3

JUSTICE ROSS: Yes. You don't need permission under the rules in review proceedings.

PN4

MR BONCARDO: If your Honour pleases. Thank you.

PN5

MR B FERGUSON: Ferguson, initial B, for the Australian Industry Group.

PN6

JUSTICE ROSS: Thanks, Mr Ferguson.

PN7

MR I MacDONALD: MacDonald, I, from the Australian Public Transport Industrial Association.

PN8

JUSTICE ROSS: Thank you.

PN9

MR R KINGSTON: Kingston, initial R, for ABI and the New South Wales Business Chamber.

PN10

JUSTICE ROSS: Thank you.

PN11

MR S CRAWFORD: If pleases the Commission, Crawford, initial S, for the Australian Workers Union.

PN12

MS T WALTON: And Walton, initial T, with Mr Boncardo for the TWU.

PN13

JUSTICE ROSS: Thank you. And in Canberra?

PN14

MR R CALVER: If the Commission pleases, Calver, initial R, for the National Road Transport Association.

PN15

JUSTICE ROSS: Thank you. And in Melbourne?

PN16

MR P RYAN: Thank you, your Honour. Ryan, initial P, for the Australian Road Transport Industrial Organisation.

PN17

JUSTICE ROSS: Thank you, Mr Ryan. We published this statement on 11 December and it deals with this afternoon's hearings from paragraph 21 and following. Is there anything that any party wants to say about the general issues? You can put those tomorrow if you wish, if you're going to be here in the morning, or is there anything you want to say about them now, anyone who's not going to be here tomorrow?

PN18

MR KINGSTON: Your Honour, we're happy to wait until tomorrow.

PN19

JUSTICE ROSS: All right. Anybody else? No? All right. Anything about the correction of the minor errors in these awards? No? Are there any other minor errors anyone has found? No? All right. The background paper notes that no award specific issues have been raised in relation to the Passenger Vehicle Transportation Award. Does anyone challenge that assertion? No? All right. Then let's go to the award specific issues and deal firstly with the Road Transport Long Distance Operations Award. There are two issues that have been raised in relation to this award. One relates to the introductory words in clause 4.2. That's an issue raised by ABI. It's the issue set out at paragraphs 25 through to 27 of the statement. Does anyone oppose ABI's suggestion?

PN20

MR KINGSTON: Your Honour, perhaps first if I could make the point, at paragraph 27 of the statement it sets out the proposed wording that ABI have submitted.

PN21

JUSTICE ROSS: Yes.

PN22

MR KINGSTON: In fact that's not quite what was submitted. What we are proposing is simply that the clause reads, 'In this award:', followed by the definition.

PN23

JUSTICE ROSS: Yes. No, you're right. That just sets out what the current – those words should be struck out. 'The following applies to the private transport industry engaged in long distance operations.' Is that right?

PN24

MR KINGSTON: That's correct, your Honour.

PN25

JUSTICE ROSS: Yes. No, no, I get it. Thank you.

PN26

MR KINGSTON: Thank you.

PN27

JUSTICE ROSS: Anyone got a problem with that? No? All right. Let's got to the second issue. This is dealt with at paragraphs 28 through to 31. And this is the TWU's contention that clause 25.3(b) conflicts with clauses 10.8 and 11.4. Am I right that these provisions went into the award with the relevant provisions in the award that match up with these clauses in the exposure draft, arising from the part time casual Full Bench decision? That's in – the termination is PR59902. Is that right?

PN28

MR BONCARDO: I think that is so, your Honour.

PN29

JUSTICE ROSS: The TWU was part of those proceedings.

PN30

MR BONCARDO: Quite.

PN31

JUSTICE ROSS: Why didn't you raise it when the termination was being settled?

PN32

MR BONCARDO: Your Honour, all I can say is that it is a matter that we have picked up. Perhaps it's a matter that ought to have been picked up earlier but it is something we have identified in the context of these proceedings, having analysed clause 25.3(b). We accept that the provisions of the exposure draft are in the same terms, or in equivalent terms to the current award.

PN33

JUSTICE ROSS: All right.

PN34

MR BONCARDO: We point out in our submissions what we contend to be an anomaly as between clauses 10.8, and I should also mention clause 10.9, as well, which deals with part-time employees and makes it clear that a part-time employee's ordinary hours of work will be eight hours a day or more. And they can be more if those additional hours are agreed with the employer. And we have a situation where in our submission, at least in the context of part-time employees, their minimum ordinary hours of work are eight, and then clause 25.3(b) provides that they are to be paid on public holidays, a minimum of four hours.

PN35

Clause 25.3(b) does to apply to casuals. Casuals are dealt with in clause 25.4. And there is no similar minimum four hour payment in clause 25.4. That is something that we also contend to be an oddity and the - - -

PN36

JUSTICE ROSS: When you say it's an oddity, isn't that the case under the current award, there's no minimum for casuals?

PN37

MR BONCARDO: Yes. Well, there is a minimum for casuals under clause 11.4.

PN38

JUSTICE ROSS: But that's generally for casual engagement, yes.

PN39

MR BONCARDO: For casual engagement of eight hours.

PN40

JUSTICE ROSS: Yes but there's no – 25.3, or 25.4 deals with the issue of payment for casuals.

PN41

MR BONCARDO: That's so.

PN42

JUSTICE ROSS: And it doesn't specify a minimum period.

PN43

MR BONCARDO: It doesn't.

PN44

JUSTICE ROSS: Is that what you say is the oddity?

PN45

MR BONCARDO: That does, in our view, appear to be a further oddity. There is an incongruity between 10.8 and 10.9, 10.8 in respect to - - -

PN46

JUSTICE ROSS: But, I'm sorry, why is it an oddity if – why wouldn't the general minimum engagement period apply?

PN47

MR BONCARDO: It would apply, and it does apply. And 25.4 isn't the oddity, in our submission and perhaps I wasn't clear about this. 25.3(b) is the oddity, but in the sense that there is a minimum payment period of four hours for part-time and full-time employees but nothing similar prescribed for casual employees and thus the default position under clause 11.4 would apply.

PN48

JUSTICE ROSS: All right, thanks.

PN49

MR BONCARDO: The TWU's position simply put, your Honour, is that clause 25.3(b) should be removed. It, in our submission has no work to do in the case of part-time employees given the terms of clauses 10.8 and 10.9. And it does create an unacceptable inconsistency in our submission between those provisions.

PN50

JUSTICE ROSS: So it has no work to do given the terms of what?

PN51

MR BONCARDO: Well, there's 10.8 and 10.9 in respect to part-time employees. There may be an argument that it might have work to do in the context of full-time employees. However this is an award which pursuant to clause 4.2, deals with long distance operations. That is, operations of 500 kilometres or more, or interstate operations of 200 kilometres or more, and it may well be able to be envisaged that there could be an interstate operation that would take less than four hours, but clause 25.3 is general in its operation. In my respectful submission it captures both long distance operations as defined by clause 4.2, and interstate operations. And a long distance operation of 500 kilometres isn't on any analysis going to take four hours.

PN52

JUSTICE ROSS: What do you say to AiGroup's submission that the specific provisions, that is 25.3 and 25.4, should take precedent over the general provisions in 10.8 and 11.4? Isn't that how you would normally read that instrument?

PN53

MR BONCARDO: That is how it likely would be construed. We accept that and that is why we point out what we say is the anomaly as between the provisions, and contend also that the Full Bench should remove 25.3(b) for that reason.

PN54

JUSTICE ROSS: All right. Anything from anyone that they want to add to their written submissions, or anything you want to say in reply?

PN55

MR FERGUSON: Just in reply. I might say at the outset, I understand that final submission to be an acceptance by the TWU that the proper interpretation of the award currently is that the minimum payment for public holiday is four hours.

PN56

JUSTICE ROSS: Yes.

PN57

MR FERGUSON: And we say that that is what the exposure draft, or the ultimate varied award should reflect and that a merit based case for making the change, quite a significant change, hasn't been made out. I don't know whether it's essential for me to grapple with the submissions about interpretation in too much detail given what's been put, other than to say our submissions have made it clear that we say you should apply the payment of public holiday provisions as wholly regulating this issue given they're more specific in their treatment of the matter.

PN58

But in relation to the two clauses that were raised about part-time employment at 10.8 and 10.9, your Honour is right. This was a product of the casual part-time employment case. I don't recall if there was any contemplation of this ousting the operation of the public holiday provisions. But in relation to what Mr Boncardo said, firstly in relation to 10.8, there's a subtlety to be borne here in that you can see where they're talking about minimum payments here, the manner in which you apply that differs based on the remuneration method adopted per kilometre, or per hour. None of that is grappled with in the public holiday provisions, which raises the spectre of, well, how would that actually be applied. If as we see it, as long as you're getting more than the minimum payment – well, payment for four hours' work, however it's worked out, that's sufficient, which probably doesn't take me that far in terms of the interpretation as I go through it.

PN59

But the second point I would make, 10.9, that only deals with ordinary hours of work. It doesn't deal with remuneration, at all, which is relevant in this award because you don't pay people simply by reference to the time that they work, in many instances. So it came back to what I was just saying, that you may pay by reference to the kilometres that have actually driven. So it - - -

PN60

JUSTICE ROSS: What do you say to the TWU's point that you can't drive that many kilometres in four hours?

PN61

MR FERGUSON: Well, that's right.

PN62

JUSTICE ROSS: I think it's put in a more nuanced way but that's how I'd express it eloquently.

PN63

MR FERGUSON: Which is why we say that the more specific provisions around public holidays deal with the minimum payments entirely. Because under this award you could, as Mr Boncardo said, have somebody performing an interstate journey that takes less than 500 kilometres, but in that instance the minimum four hours payment provision would be what applies.

PN64

JUSTICE ROSS: I see. So it has some work to do.

PN65

MR FERGUSON: It has some work to do.

PN66

JUSTICE ROSS: Yes.

PN67

MR FERGUSON: But the way you actually calculate the payment depends on the method of remuneration applied, because there's various ways you could be paid under this award, by kilometres, by the hourly driving rates, by the loading rates. And you just apply that in the ordinary way. The ordinary hours provisions that Mr Boncardo is referring to are there because section 147 requires an award to provide for the determination of ordinary hours, solicitor to have conformity with that you must prescribe that. They also have some work to do in terms of determining NES entitlements, superannuation entitlements and so forth. But I don't think there's any conflict with the part-time provisions.

PN68

JUSTICE ROSS: All right. Thank you. Anyone else about that point?

PN69

MR CALVER: No, we stand by our written submission, your Honour, and agree with the comments made by AiG.

PN70

JUSTICE ROSS: All right.

PN71

MR RYAN: Your Honour, Paul Ryan in Melbourne, just to make the observation that yes, there can be an interstate operation that will be 200 kilometres, at least 200 kilometres, which is accepted as a minimum period of work crossing a state border. If you insert all 320 kilometres after four hours worked, you deal with the other issue about payment by kilometres given that the notional divisor for kilometres is 75. I simply make that observation and generally agree with what Mr Ferguson has put forward.

PN72

JUSTICE ROSS: Thank you. Nothing further in relation to that award? Let's got to the Road Transport – I wonder if we might deal with the other two awards first. That's the Transport Cash in Transit Award, because the issues in both these awards are relatively confined, and Mr Boncardo, I'm going to want you to go through in some detail the TWU's submission in relation to the Transport and Distribution Award. We've got some questions about the divisor issues for the various parties but - - -

PN73

MR BONCARDO: Yes.

PN74

JUSTICE ROSS: Then all that's left really are the issues that you've raised - - -

PN75

MR BONCARDO: Yes, your Honour.

PN76

JUSTICE ROSS: Some of which have not been commented on by other parties and we just want to sort out where everyone stands on those.

PN77

MR BONCARDO: Certainly, your Honour.

PN78

JUSTICE ROSS: So we'll come to that in a moment.

PN79

MR BONCARDO: Certainly, your Honour.

PN80

JUSTICE ROSS: The Transport Cash in Transit Award, this is dealt with in paragraphs 46 and following in the statement. The first matter that's raised by AiGroup is the insertion of 'the shift' to avoid an ambiguity in clause 21.8. And there is a similar amendment proposed at 21.9. Does anyone oppose that amendment? No? Anyone want to say anything in relation to it?

PN81

MR BONCARDO: No.

PN82

JUSTICE ROSS: No? Can I got to the second issue raised by AiGroup which is an amendment that's been made in other exposure drafts. It's to insert the words, 'Any additional,' before 'all purpose allowances' in clause A1.2. Any opposition to that proposition? No? Anyone want to say anything about that? All right. The Waste Management Award, if we can deal with the footnote 1 in clause A2.3, I think the short version is that nobody supports the inclusion of the proposed text in footnote 1. I wasn't sure whether AiGroup is actually submitting that footnote 1 should be deleted or not, or whether your submission was just directed at the additional words. Because the AWU has come back opposing the deletion of the footnotes.

PN83

MR CRAWFORD: Your Honour, if it assists I think we have now reached agreement with the other parties that in response to the question in the green text box, that that wording should not be inserted as a footnote.

PN84

JUSTICE ROSS: No, I think everyone agrees with that. But it's whether AiGroup's submission goes broader than that and wants the footnote deleted, which is how your reply seems to have interpreted it. No, nobody wants the extra text inserted, I understand that.

PN85

MR FERGUSON: No, I don't think we are calling for that but perhaps I can just look through that while we carry on with another - - -

PN86

JUSTICE ROSS: Sure. The second issue in this award relates to clause 22.2, and this relates to the payment of annual leave loading on termination, and the AWU's submissions summarised at paragraph 60 of the statement. Does anyone want to say anything about that?

PN87

MR BONCARDO: Your Honour, as I understand it, and I don't purport to speak for all of the other employer parties but in discussions I've had with Mr Ferguson and I understand the AWU has also been privy to these, is that that matter can be resolved by deletion of the words, 'but it is not payable on leave paid out on termination.'

PN88

JUSTICE ROSS: Yes.

PN89

MR BONCARDO: So the sentence will end - - -

PN90

JUSTICE ROSS: No, after, 'and taken.'

PN91

MR BONCARDO: Yes, your Honour.

PN92

JUSTICE ROSS: Yes. So it doesn't then involve getting any deeper into the mire - - -

PN93

MR BONCARDO: Exactly.

PN94

JUSTICE ROSS: Of whether this issue is raised in other awards.

PN95

MR BONCARDO: Exactly.

PN96

MR FERGUSON: And I think an even more convenient way forward might be to delete that sentence in its entirety, because you'll see it adds nothing really.

PN97

JUSTICE ROSS: That's actually probably true. It's really only there because of the second part of it that you're about to delete.

PN98

MR FERGUSON: Yes, or a throw back to historical times.

PN99

JUSTICE ROSS: Yes. Because you've already said, 'During a period of annual leave an employee will receive a loading calculated on the wage rate,' and then you go into the loading.

PN100

MR FERGUSON: I think there's force in that, your Honour.

PN101

JUSTICE ROSS: Yes. All right. So if we delete the sentence, 'annual leave loading payment is payable on leave accrued and taken but is not payable on leave paid out on termination,' then everyone is content with that course?

PN102

MR BONCARDO: Yes, your Honour.

PN103

SPEAKER: Yes.

PN104

SPEAKER: Yes.

PN105

MR FERGUSON: And we're not proposing for the deletion of the footnote entirely.

PN106

JUSTICE ROSS: All right, then that resolves the other issue.

PN107

MR CRAWFORD: Your Honour, may I be excused now?

PN108

JUSTICE ROSS: No, that's why I've dealt with these matters, Mr Crawford, so you don't need to be detained. That's fine.

PN109

MR CRAWFORD: Thank you, your Honour.

PN110

JUSTICE ROSS: All right, that deals with those issues. Let's go back then to the Road Transport and Distribution Award. Let's turn to the divisor question first. There was a background paper which sought to summarise the submissions of each of the parties. Can we perhaps deal with some questions arising from that first, and then anyone can add anything they wish to say to their written material. Mr Calver, can I go to you first. So I'm just looking at paragraph 7 of your first submission which is dated 18 November, you set out some extracts from the award modernisation Full Bench.

PN111

MR CALVER: Yes.

PN112

JUSTICE ROSS: Did that Full Bench in that decision anywhere deal directly with the divisor issue?

PN113

MR CALVER: Not to my understanding, your Honour.

PN114

JUSTICE ROSS: And do you know if any of the submissions to the Full Bench directly raised the divisor issue?

PN115

MR CALVER: I do not, no.

PN116

JUSTICE ROSS: Can I take you to your submission and reply.

PN117

MR CALVER: Yes.

PN118

JUSTICE ROSS: I want you to expand on paragraph 22 in a moment. But if we can go to paragraph 23 - - -

PN119

MR CALVER: Yes, the - - -

PN120

JUSTICE ROSS: I don't follow the last sentence, 'that to proceed otherwise would provide retrospective effect.' How do you work that out?

PN121

MR CALVER: We're arguing, your Honour, that status quo is not reflected in the exposure draft because of the presence in the exposure draft of tables C.2.3, C.2.4, C.3.3 - - -

PN122

JUSTICE ROSS: No, I follow that but the variation determination, the draft variation determination which would vary the award in line with the exposure draft, is not going to operate retrospectively.

PN123

MR CALVER: No, but if the matter sits where it currently lies without variation being palpable then the – and defining of the Full Bench that the exposure draft reflected the status quo, would have that checked.

PN124

JUSTICE ROSS: No, no, no. But we don't have to make any such finding, at all. We could just deal with it as a matter of merit, whether the divisor should be 35 or 38.

PN125

MR CALVER: Well, you can now, your Honour, because the matter has been brought on by the very fact that the exposure draft reflects the divisor of 35 by reference to those tables which I just articulated. So in other words the if the exposure draft had not been published in that way, the status quo ante would have been published in the exposure draft award.

PN126

JUSTICE ROSS: Yes but how is anything we do going to have retrospective effect? I just don't - - -

PN127

MR CALVER: If the exposure draft award had proceeded to be published as is currently the case, then the implication would be that the divisor of 35 had been present from the initial making of the Modern Award. Because the exposure draft is - - -

PN128

JUSTICE ROSS: Leave aside the fact that we can't make any binding declaration of rights as to what the position was under the previous award, for a moment - - -

PN129

MR CALVER: No but the implication would be, your Honour, with respect, the implication would be that the exposure draft reflects the current award.

PN130

JUSTICE ROSS: No, it wouldn't.

PN131

MR CALVER: And our published - - -

PN132

JUSTICE ROSS: No, it wouldn't. We're deciding this issue as a matter of merit. And that's the beginning and the end of the argument about retrospectivity. And if we decide that the divisor is 35, that decision will be reflected in the variation determination which will operate prospectively.

PN133

MR CALVER: Well, your Honour, the matter is brought on now as a matter of merit because the exposure draft reflected the matters that I've referred to. It was not brought on as a matter of merit by the TWU as originally foreshadowed.

PN134

JUSTICE ROSS: Well, so what?

PN135

MR CALVER: And there is - - -

PN136

JUSTICE ROSS: What follows from that? Nobody is being denied procedural fairness. Everyone has had an opportunity to comment on everyone else's submission.

PN137

MR CALVER: Well, the process, first of all, is unusual. I have not appeared in proceedings where an exposure draft has triggered a matter of merit before, merely because (indistinct).

PN138

JUSTICE ROSS: Then you haven't been in many of the proceedings because as in there is no shortage of matters listed tomorrow where that's exactly what's happened. Parties have addressed matters in exposure drafts and the issues come up - - -

PN139

MR CALVER: Your Honour, rather - - -

PN140

JUSTICE ROSS: And they've argued it.

PN141

MR CALVER: But your Honour, rather than continue with this exchange with respect, I hear you in relation to the prospective effect of any variation that is made.

PN142

JUSTICE ROSS: All right. Can you explain paragraph 22 for me? Just expand on what's there?

PN143

MR CALVER: That was the research that was done by NatRoad at the time that the Modern Award review came about, in order to assess whether or not the divisor had been established at 35 or was the divisor at 38, based upon historical records.

PN144

JUSTICE ROSS: But you say there in the second sentence that two of the six pre reform awards, the ordinary working week was 35, is that right?

PN145

MR CALVER: That's my understanding, yes. Is that not accurate?

PN146

JUSTICE ROSS: But the award modernisation Full Bench decided to have two different ordinary hour provisions and that the one for oil distribution would be 35, isn't that right?

PN147

MR CALVER: But that's not in contest, your Honour.

PN148

JUSTICE ROSS: And that's why I'm not sure what the observation about the pre reform awards, how it assists us, that's all.

PN149

MR CALVER: The observation about the pre reform awards directly relates to the issue of the TWU proposing that the divisor should be 35 by reference to the award history, and it was not a matter that was without doubt and the basis upon which we believed that the 38 divisor has continued is part of the emanation of the award history. Equally, if you look at the basis of the establishment of the current Modern Award.

PN150

JUSTICE ROSS: But I'm just not following. Because you say in the third sentence, 'Out of the other four pre modern awards, three provided a divisor to calculate the hourly rate.' And that's 38. But in those awards are the ordinary hours for oil distribution workers 38?

PN151

MR CALVER: Well, yes.

PN152

JUSTICE ROSS: If the ordinary hours are 38, of course the divisor is going to be 38.

PN153

MR CALVER: But that does not necessarily become the fabric on which the Full Bench which devised this award proceeded. There was a disjunction in our view with reference through those paragraphs that I've extracted, a disjunction between ordinary hours and the manner in which ordinary rates were calculated.

PN154

JUSTICE ROSS: All right.

PN155

MR CALVER: And I mean those awards are there for reference in relation to a categoric statement about the calculation of minimum wages by reference to the relevant divisor which is absent from the current award.

PN156

JUSTICE ROSS: Yes. Does anyone else want to say anything further in relation to the divisor issue, in addition to what they've already said in their written submissions?

PN157

MR CALVER: May I just add to that before we move on, your Honour?

PN158

JUSTICE ROSS: Yes.

PN159

MR CALVER: In relation to the background paper, the proposition in paragraph 36 of the background paper - - -

PN160

JUSTICE ROSS: What was the paragraph, I'm sorry?

PN161

MR CALVER: Paragraph 36.

PN162

JUSTICE ROSS: No, I still can't hear you. What was the - - -

PN163

MR BONCARDO: Thirty-six, your Honour.

PN164

JUSTICE ROSS: Thirty-six, all right.

PN165

MR CALVER: I mean, paragraph 36 says that the award contains the contested divisor of 35. And therefore it actually – like the publication of the exposure draft, actually determines the matter in contention. That statement is the very matter in contention. We say the award is unique and does not express the divisor of 35 used for ordinary hours as the means to calculate the minimum wage. That's the very element in contention and can't be resolved other than by the words of the award itself, definitely not by a comparative check against other awards. And that point was clearly articulated in paragraph 10 of the network submission dated 18 November where we said while the disjunction before the ordinary hours for oil distribution workers and the setting of their minimum wage may lack coherence and that there is a clear linkage between these two concepts in other Modern Awards, interpreting the award now so as to make that link is not founded in the manner in which the award is currently established. And that lack of coherence is a matter not solved by the comparative analysis which is undertaken in the background papers.

PN166

JUSTICE ROSS: All right, thank you. Anybody else?

PN167

MR CALVER: Thank you.

PN168

MR BONCARDO: Very briefly - - -

PN169

MR RYAN: Your Honour, it's Paul Ryan from Melbourne and I'd just make a couple of comments. Firstly, I did participate in the proceedings that led to the making of these Transport Awards back in 2008/2009. I can confirm, and I've checked my notes, to my recollection the issue of the divisor was not raised by either the Full Bench or by any of those parties present simply because, your Honour, since the custom and practice is that you determine an hourly rate by dividing the weekly rate by the ordinary hours of work divisor.

PN170

JUSTICE ROSS: You don't know why no other party raised it, do you, Mr Ryan, and you don't know why the Full Bench raised it?

PN171

MR RYAN: No, I do not, your Honour. I can only go on my notes that it wasn't raised.

PN172

JUSTICE ROSS: Yes.

PN173

MR RYAN: Or if it was, I didn't write it down. So I'd simply leave it at that, at this stage.

PN174

JUSTICE ROSS: All right, thank you.

PN175

MR BONCARDO: Your Honour, very briefly, three points. Firstly, Mr Caver doesn't get any assistance from the sentence he extracts from paragraph 176 of the AIRC Full Bench which is set out at paragraph 15 of the background paper issued by the Commission in this matter.

PN176

JUSTICE ROSS: Yes.

PN177

MR BONCARDO: Secondly, paragraph 177 of that AIRC Full Bench makes it abundantly clear - - -

PN178

JUSTICE ROSS: At 177?

PN179

MR BONCARDO: 177.

PN180

JUSTICE ROSS: Yes.

PN181

MR BONCARDO: Makes it abundantly clear that the Full Bench determined that a 35 hour week, seven hour day would apply in the context of oil distribution employees. And we contend that the appropriate divisor in those circumstances must be 35, and this Full Bench has got it absolutely right in the tables that are annexed to the draft.

PN182

JUSTICE ROSS: I don't think you should lumber us with the exposure draft.

PN183

MR BONCARDO: Certainly.

PN184

JUSTICE ROSS: That's been the calculation that's been made.

PN185

MR BONCARDO: Yes.

PN186

JUSTICE ROSS: And the area within the Commission administration has produced it but - - -

PN187

MR BONCARDO: But the divisor that has been used of 35, in our respectful submission, are correct. It's consistent with the Modern Award as it had existed since 2010. And finally, your Honour, and I don't want to advance this issue at this point and jump around, but the TWU does withdraw its contentions in respect to clause 14.4, and we do take - - -

PN188

JUSTICE ROSS: Clause?

PN189

MR BONCARDO: Clause 14.4.

PN190

JUSTICE ROSS: Just bear with me for a moment.

PN191

MR BONCARDO: It's probably convenient to deal with this issue now, your Honour.

PN192

JUSTICE ROSS: Yes, so that's 14.4 in your submission in relation to the Road Transport and Distribution Award, is that right?

PN193

MR BONCARDO: That's so, your Honour. So that that contention is withdrawn and there is with respect to the AiG, some force in the submission that clause 14.6 can't work without clause 14.4. And clause 14.6 in our submission makes it plain that the divisor must be 35, given the way that RDO's are able to be structured under clause 14.6(a). There's a ten day week. You work nine days, seven hours 47 minutes per day, which is just over seventy hours. And then you are entitled to either seven hours' pay at ordinary time rate, or in the event that an RDO falls on a public holiday, seven extra hours of annual leave. Those are powerful indicators in our submission that the divisor must be 35, being eight lots of seven.

PN194

JUSTICE ROSS: Right, thank you. Anybody else on this issue?

PN195

SPEAKER: No.

PN196

MR CALVER: Your Honour, in response to the TWU, the matter was set down to be litigated as part of the Full Bench proceedings. Up until recently the exposure draft contained a note indicating that this matter was to be litigated. It is not a matter that is plain on its face. It is a matter that is in contention. And the ordinary hours provision that has been alluded to can stand on its own terms without being referenced to a difference divisor that would on its own make sense. If it please the Commission.

PN197

JUSTICE ROSS: All right, let's move to – I think the only other matters in respect of this award are those which are set out in the TWU's submission of 21 November. If we go through those, the first deals with the conversion of casual employment. I mean, as has been the case, arising from the Trans One decision and I don't think anyone contests the proposition that if there's a current casual conversion clause in the award then it's that clause which would be inserted in the variation determination. You have withdrawn the submission in respect of clause 14.4.

PN198

MR CALVER: Yes, your Honour.

PN199

JUSTICE ROSS: Can we go to the submission in respect of clause 17.2. The proposition here is that the tables in schedule C, in particular, tables C4.3 and C4.4, which relate to casual oil distribution employees do not include overtime provisions for those casuals. Is the question of overtime for casuals in contention in this award?

PN200

MR BONCARDO: No, your Honour. The proposition is simply that it would be of utility for those rates to be set out in the relevant tables.

PN201

JUSTICE ROSS: All right. Well, where is overtime for casuals dealt with in the award?

PN202

MR BONCARDO: Overtime for casuals, your Honour, is dealt with firstly in clause 11.5.

PN203

JUSTICE ROSS: So are we dealing with the current award here?

PN204

MR BONCARDO: I apologise, your Honour. We're dealing with the exposure draft.

PN205

JUSTICE ROSS: All right.

PN206

MR BONCARDO: Does your Honour wish to me to address the exposure draft, or the current award?

PN207

JUSTICE ROSS: Sure. And if there's any difference between the two, people can let me know.

PN208

MR BONCARDO: Yes.

PN209

JUSTICE ROSS: So 11 point - - -

PN210

MR BONCARDO: 11.5, your Honour.

PN211

JUSTICE ROSS: Yes. That's the right to request casual conversion?

PN212

MR BONCARDO: I'm in the exposure draft, your Honour. I apologise.

PN213

JUSTICE ROSS: Just bear with me for a moment. I've got the long distance - - -

PN214

MR BONCARDO: The relevant provision of the current award is 12.5, and then you - - -

PN215

JUSTICE ROSS: No, that's fine. I just had the Long Distance Award for a moment. Eleven point?

PN216

MR BONCARDO: 11.5, which incorporates and makes reference to the overtime rates specified in clause 21.

PN217

JUSTICE ROSS: Yes. All right. So does anyone dispute the proposition that casuals get overtime in accordance with those provisions? And if they don't, then I suppose why wouldn't the relevant tables be included in the schedule? What did you say the clause in the current award was?

PN218

MR BONCARDO: I think I've got that wrong from my – I've said 12.5, your Honour, but if your Honour will bear with me - - -

PN219

JUSTICE ROSS: No, that's all right. No, I don't think it's 12.5.

PN220

MR BONCARDO: No, it's not 12.5, I apologise.

PN221

MR RYAN: 12.5(d).

PN222

MR BONCARDO: 12.5(d). 12.5(d) in 27.1.

PN223

JUSTICE ROSS: Yes. And the exposure draft is in the same terms, is it?

PN224

MR BONCARDO: It applies with the same terms, your Honour.

PN225

JUSTICE ROSS: All right. Does anyone take issue with any of that? Anyone opposed to including overtime provisions for casuals in table C4.3 and C4.4?

PN226

MR FERGUSON: We're opposed – we would like the opportunity to briefly review what's proposed in terms of how we would actually calculate that out, if that's possible.

PN227

JUSTICE ROSS: We just calculate it out based on - - -

PN228

MR CALVER: We think it's unnecessary too, your Honour.

PN229

JUSTICE ROSS: Well, it's in other awards. Why wouldn't you put it here?

PN230

MR CALVER: Because the example under clause 12.5(d) is perfectly plain and palpable and - - -

PN231

JUSTICE ROSS: Yes, but why wouldn't we just do the calculation for people and put it in the schedule? We've got the shift rates, we've got the public holiday rates. Why wouldn't we just put out what the overtime rate is?

PN232

MR CALVER: As we've said in our written submission if our position oil distribution workers is upheld then separate tables at C4.3 and C4.4 are OTO's in any event, but yes.

PN233

JUSTICE ROSS: All right, anybody else?

PN234

MR KINGSTON: Your Honour, we support the inclusion of the rates but as AiG indicated we would appreciate an opportunity to review the rates that are being proposed prior to their insertion.

PN235

MR FERGUSON: Sir, the only reservation in that that I have, to be clear, is that one of the issues in contest is how the table should display the overtime rates for casuals generally, which we haven't got to that issue yet. The award obviously prescribes a specific rate which is the ten per cent casual loading. I think there is some sort of assertion that that should be different in the context of, say, weekends where there are different penalty rates. Now I think where that might evolve to is that that's not an argument that 10.5 doesn't deal with this issue, but that as a matter of merit the penalty rate should be higher, which we will contest.

PN236

JUSTICE ROSS: Yes, that's a merit argument. That's not going to be dealt with in these proceedings, that's for sure. Well, why don't we simply invite the TWU to file a draft schedule C to include overtime provisions and then parties can have an opportunity to comment on that?

PN237

MR BONCARDO: Certainly, your Honour.

PN238

MR FERGUSON: And we'd be content with that.

PN239

JUSTICE ROSS: All right, let's go to the next issue which is clause 23.1(d), work on a Sunday for casuals.

PN240

MR BONCARDO: Your Honour, this is the matter that my friend, Mr Ferguson, just raised.

PN241

JUSTICE ROSS: Yes.

PN242

MR BONCARDO: And I raise it with some trepidation given your Honour's current remarks but if - - -

PN243

JUSTICE ROSS: Yes. Well, this isn't the forum for new claims for penalty rates so - - -

PN244

MR BONCARDO: I appreciate that, your Honour. But very briefly, the proposition is this, that a casual working ordinary hours under clause 23.1 on a Sunday gets a loading of 225 per cent. Clause 11.5 read with clause 11, means that a casual working on a Sunday, for example, will get their loading of 150 per cent if they're working outside of their ordinary hours, for the first two hours, and 200 per cent thereafter, plus the 10 per cent provided by clause 11.5. You have a position where overtime on a Sunday is remunerated for casuals at a lower rate than ordinary time hours. And we say that that is anomalous and we say that is contrary to the relevant award (indistinct).

PN245

JUSTICE ROSS: And is that the position under the current award?

PN246

MR BONCARDO: Yes, your Honour.

PN247

JUSTICE ROSS: Why haven't you made an application before now?

PN248

MR BONCARDO: It's something that, your Honour, we have noted in our recent analysis of the exposure draft.

PN249

JUSTICE ROSS: That doesn't really answer my question.

PN250

MR BONCARDO: It doesn't answer your Honour's question, other than it's only just come to our attention.

PN251

JUSTICE ROSS: No, you can pursue that issue by an application once we've dealt with the variation determination arising from this.

PN252

MR BONCARDO: If the Commission pleases.

PN253

JUSTICE ROSS: And then we can have the argument then about it.

PN254

MR BONCARDO: Certainly.

PN255

JUSTICE ROSS: Or somebody else can have the argument then. So that's the issue about 23.1(d). The annual leave loading point, 24.4 and 24.9, what's that about? Is this the – is this the shift premium question?

PN256

MR BONCARDO: Yes, your Honour. Yes.

PN257

JUSTICE ROSS: Yes. No, no, all right.

PN258

MR BONCARDO: It's dealt with in our submissions at paragraph 19.

PN259

JUSTICE ROSS: Yes, all right. Then let's go to schedule C2, full time and part time employees.

PN260

MR BONCARDO: Yes, your Honour. Your Honour, these contentions relate to public holiday loadings under clause 23.2 of the award.

PN261

JUSTICE ROSS: The exposure draft or the - - -

PN262

MR BONCARDO: The exposure draft. I apologise, your Honour.

PN263

JUSTICE ROSS: No, that's all right.

PN264

MR BONCARDO: I'm using the terms interchangeably. Yes. your Honour, the issue that the TWU notes in respect to the tables that are published in relation to full time and part time employees, for example, and public holiday loadings is this, that under clause 23.2(a) and 23.2(b), a full time or part time employee, if required to work on a public holiday must be paid for four hours at the loaded rate set out in clause 23.2(a), plus the amount they would otherwise ordinarily be paid for that work under 23.2(b).

PN265

JUSTICE ROSS: Yes.

PN266

MR BONCARDO: In the event, for example, that a public holiday falls on a Tuesday and a full time employee is ordinarily rostered on to work eight hours on that Tuesday, that their employer directs them to work for the minimum of four hours, they are entitled in our submission to be paid four hours, their ordinary time rates, at 200 per cent, plus under 23.2(b), their ordinary eight hours. So the table that is set out for example at C2.1 sets out for a public holiday that is not Christmas or Good Friday, that employees are to be paid 250 per cent for each hour worked. That isn't strictly correct. They're entitled to be paid 150 per cent for each hour worked plus whatever their ordinary hours would be. So we say that that is something that ought be rectified either by an amendment to the table - - -

PN267

JUSTICE ROSS: So where it says, '250 per cent,' it should say what?

PN268

MR BONCARDO: '150.'

PN269

JUSTICE ROSS: Yes.

PN270

MR BONCARDO: And for Good Friday and Christmas Day, it should say '200 per cent.' And then our submission is that this could either be done by way of a note either to the table itself, or perhaps to clause 23.2, that a full time or part time employee is entitled to be paid additionally whatever their ordinary earnings for that day are.

PN271

COMMISSIONER BISSETT: It would be appropriate to put that under the table.

PN272

MR BONCARDO: Certainly, and we wouldn't cavil with that, Commissioner.

PN273

MR FERGUSON: And we would support that note in the context of this table, as well, directing people back to that clause.

PN274

JUSTICE ROSS: All right.

PN275

MR FERGUSON: And the changes.

PN276

MR CALVER: Yes, we express support for that note, as well, your Honour.

PN277

JUSTICE ROSS: All right, so that resolves the issue?

PN278

MR BONCARDO: It does, your Honour.

PN279

JUSTICE ROSS: A note underneath the table?

PN280

MR BONCARDO: Yes, your Honour.

PN281

JUSTICE ROSS: All right.

PN282

MR BONCARDO: And an amendment to the rates set out in the table, as well, the percentages.

PN283

MR FERGUSON: Yes, and the amendments that were described.

PN284

JUSTICE ROSS: Sorry, Mr Ferguson?

PN285

MR FERGUSON: The amendments that were described to resolve the issue to the - - -

PN286

MR BONCARDO: To the percentage amounts for public holidays.

PN287

JUSTICE ROSS: Perhaps in the same time frame as you are going to be providing, or dealing with the other proposition, you can deal with that one.

PN288

MR BONCARDO: Certainly, your Honour.

PN289

JUSTICE ROSS: All right, then we got to schedule C3, full time and part time employees, overtime.

PN290

MR BONCARDO: The same issue, your Honour, in relation to public holidays.

PN291

JUSTICE ROSS: Is everyone content with the same solution?

PN292

MR FERGUSON: It's probably not apparent that the note is necessary in this context because you're dealing with overtime provisions. So in the last context I see the force to what's being put. You're clarifying that these tables aren't wholly regulating payment in respect to ordinary hours. In this context the rates are the overtime rates. I'm just going to check in a moment whether the percentages are right to make sure I was looking at - - -

PN293

MR BONCARDO: Would your Honour pardon me?

PN294

JUSTICE ROSS: Sure.

PN295

MR FERGUSON: I don't think there's the same imperative to direct someone back to a clause dealing with payments for ordinary hours of work, under a table dealing with overtimes rates lest people be confused into thinking both are payable. And they Modern Award or may not be, depending on what was worked during the week.

PN296

MR BONCARDO: Your Honour, can I apologise and withdraw that claim, and explain to your Honours why. Twenty - - -

PN297

JUSTICE ROSS: No, no, you don't need to explain.

PN298

MR BONCARDO: Certainly, your Honour.

PN299

JUSTICE ROSS: I'm more than happy to just deal with it on the basis it's withdrawn.

PN300

MR BONCARDO: Certainly. It's as provided by 23.2(c) in relation to overtime hours worked on a public holiday.

PN301

JUSTICE ROSS: All right.

PN302

MR FERGUSON: Yes, and I'll just say 23.2(c) does prescribe the same sort of rates in relation to work outside of ordinary hours, so the rates appear to be accurate.

PN303

JUSTICE ROSS: All right. Then the next part of the TWU's submission is schedule C, table C, 4.1, 4.2 through to 4.6. And you note that they do not currently include provisions for the payment of overtime to casuals on Saturday and Sunday?

PN304

MR BONCARDO: Yes, and the proposition is that it should include those.

PN305

JUSTICE ROSS: And you've provided what that would look like at attachment 2, is that right? No.

PN306

MR BONCARDO: No, your Honour, I'm attaching - - -

PN307

JUSTICE ROSS: Attachment 2 is the - - -

PN308

MR BONCARDO: Attachment 2 deals with the point that your Honour swiftly disposed of earlier.

PN309

JUSTICE ROSS: All right.

PN310

MR BONCARDO: And so your Honour doesn't - - -

PN311

JUSTICE ROSS: So we don't need to trouble ourselves with that.

PN312

MR BONCARDO: Your Honour and the Full Bench don't need to trouble yourselves with paragraphs 30 to 32 of the submissions given that issue.

PN313

JUSTICE ROSS: No, that's fine.

PN314

MR BONCARDO: Your Honour, we would be content to provide updated tables for distribution amongst the parties if that is convenient.

PN315

JUSTICE ROSS: All right, thank you. And the parties can have an opportunity to comment when they get those.

PN316

MR BONCARDO: Yes.

PN317

JUSTICE ROSS: Clause 12.2, minimum wage rates. Is that about the divisor?

PN318

MR BONCARDO: Yes, your Honour.

PN319

JUSTICE ROSS: All right. And that's the last?

PN320

MR BONCARDO: That's the totality of the issues, your Honour.

PN321

JUSTICE ROSS: All right, thank you. How soon will you be able to - or just to clarify, you're going to provide the casual overtime tables C 4.3, 4.4, that's at paragraph 12 of your submission.

PN322

MR BONCARDO: There's the public holiday issue, your Honour.

PN323

JUSTICE ROSS: Yes, just bear with me for a moment. That's C2 - - -

PN324

MR BONCARDO: Yes, your Honour.

PN325

JUSTICE ROSS: Full time and part time employees, ordinary penalty rates?

PN326

MR BONCARDO: Yes, your Honour.

PN327

JUSTICE ROSS: And there's the updated tables, 4.1 through to 4.6 that we just discussed.

PN328

MR BONCARDO: Yes, your Honour. Your Honour, I'm instructed that those can be done by Friday.

PN329

JUSTICE ROSS: All right. We'll provide some time by mid January or so, for anyone to comment on those.

PN330

MR BONCARDO: If the Commission pleases.

PN331

JUSTICE ROSS: Anything else in relation to that award?

PN332

MR BONCARDO: Nothing further, your Honour.

PN333

MR CALVER: Yes, your Honour.

PN334

JUSTICE ROSS: Yes.

PN335

MR CALVER: In the exposure draft there's a note under clause 18, payment of wages.

PN336

JUSTICE ROSS: Just bear with me for a moment.

PN337

MR CALVER: Payment of wages on termination.

PN338

JUSTICE ROSS: Just bear with me for a moment, Mr Calver.

PN339

MR CALVER: Sorry. Yes, of course.

PN340

JUSTICE ROSS: That's all right. Yes, that's right, it's being considered in matter AM2016/8, that note?

PN341

MR CALVER: Eight, yes. And we have an active application in respect of payment of wages. I would imagine that the exposure draft would be finalised before those proceedings are brought on.

PN342

JUSTICE ROSS: I think that's a safe bet. I think the payment of wages Full Bench dealt with the three consent matters and there are a swag of matters that are contested, and it's likely we'll put out a statement on the contested matters in January and February.

PN343

MR CALVER: Thank you, your Honour.

PN344

JUSTICE ROSS: But I don't think there'll be a concluded determination of those issues before the exposure draft takes effect. That's right.

PN345

MR CALVER: Thank you, your Honour.

PN346

JUSTICE ROSS: No, no problem. Nothing further? Okay - - -

PN347

MR KINGSTON: Sorry, your Honour, just one point if I may.

PN348

JUSTICE ROSS: Yes. Sure.

PN349

MR KINGSTON: I just noted the TWU submission in relation to the casual rates.

PN350

JUSTICE ROSS: Which submission are you looking at? Are you looking at the Road Transport and Distribution Award?

PN351

MR KINGSTON: The Road Transport and Distribution Award in relation to the casual overtime rates not appearing in the table.

PN352

JUSTICE ROSS: Is that paragraph 12 or - - -

PN353

MR KINGSTON: Paragraph 12, yes.

PN354

JUSTICE ROSS: Yes.

PN355

MR KINGSTON: Clause 17.2. I notice the heading there deals with the oil distribution workers so I'd just like to clarify whether the intention is to add overtime rates for all the casual employees in the tables, or just the oil distribution workers.

PN356

MR BONCARDO: The intention is to add them for all employees.

PN357

JUSTICE ROSS: Sorry?

PN358

MR BONCARDO: The intention is to add them for all employees, your Honour.

PN359

JUSTICE ROSS: Does the current award provide overtime for all?

PN360

MR BONCARDO: Yes, your Honour.

PN361

JUSTICE ROSS: All right, nothing further?

PN362

MR KINGSTON: Thank you, your Honour.

PN363

MR BONCARDO: Nothing further, your Honour.

PN364

JUSTICE ROSS: Thank you all for your attendance.

ADJOURNED INDEFINITELY [3.03 PM]