PN1

JUSTICE ROSS: Good morning. Do I have Mr Nucifora?

PN2

MR J NUCIFORA: Yes, your Honour.

PN3

JUSTICE ROSS: Do I have Ms Bhatt?

PN4

MS R BHATT: Yes, your Honour.

PN5

JUSTICE ROSS: And Mr Kingston?

PN6

MR R KINGSTON: Yes, your Honour.

PN7

JUSTICE ROSS: Look, Ms Bhatt, if I can go to you. As I understand it, the short point is that the matters in respect of which an annualised wage may be paid in satisfaction of are listed, I think, in clause 18.1 of the current exposure draft. You say, consistent with the observations of the annualised wage Full Bench, that it indicated that - this is at paragraph 17 of the background paper:

PN8

Where a modern award is in category 1, it currently allows for a wider range of award entitlements to be encompassed in annualised wage arrangements. Those award entitlements may be added to the clause.

PN9

In this particular instance you are proposing an amendment to clause 18.1. Is that to insert a reference to clause 15.4?

PN10

MS BHATT: Yes, it is, your Honour.

PN11

JUSTICE ROSS: And that is the only proposed change?

PN12

MS BHATT: Yes, your Honour.

PN13

JUSTICE ROSS: All right. That is on the basis that in the award prior to the variations inserted by the annualised wage Full Bench, an annualised wage under this award could be paid in satisfaction of, among other things, the penalty rates in clause 15.4.

PN14

MS BHATT: Your Honour, I don't think that's the basis upon which the submission is put.

PN15

JUSTICE ROSS: All right. What is the basis then?

PN16

MS BHATT: If I may, your Honour, the submission is put on the basis that the model term that was inserted into the Clerks Award contemplated that a salary be payable in respect of overtime and penalty rates, and that the amount that is payable pursuant to clause 15.4 of the exposure draft is such a rate.

PN17

I appreciate that this is perhaps not fully articulated in our written submissions, your Honour, but as a matter of merit in circumstances where the award permits the payment of a salary that satisfies the very vast majority of monetary obligations that are prescribed by the award, it seems perhaps unusual that this is one that was left out. We can't see a reason why it should be or why it needs to be.

PN18

JUSTICE ROSS: I follow the argument, yes.

PN19

MS BHATT: Yes. I have not had a chance to have a discussion with Mr Nucifora about this. I'm not sure what the ASU's attitude is.

PN20

JUSTICE ROSS: No. I'll find out. Perhaps if we go to that now, Ms Bhatt. Mr Nucifora, are you opposed to the proposed change?

PN21

MR NUCIFORA: Yes, your Honour. This is the first time we had considered it, although it had been raised at a previous time by AiG. However, we have a list here now of items and I'm not sure - as I was away for a period of time when this was happening, but it looks like the clauses that have been referred to in 18.1 have been increased to about 13 clauses from five. Now, some of them are more specific about the same themes, such as allowances, minimum rates.

PN22

In terms of the penalties for working through a lunch break, we would be opposed to that on the grounds of the health of employees. It really only promotes that arrangement where people would be on a consistent basis working through their lunch break when that might happen from time to time because they're particularly busy on a particular project.

PN23

We would say it is quite different from overtime and where there might be a pattern of work that's done at different times of the year, whether it be the end of the month, end of the financial year. Working through your lunch break is something that we would consider quite different from other - - -

PN24

JUSTICE ROSS: All right. Look, there is no need to go into the merits of it.

PN25

MR NUCIFORA: Yes, sure.

PN26

JUSTICE ROSS: I just wanted to know what your position was.

PN27

MR NUCIFORA: Sure, yes.

PN28

JUSTICE ROSS: Ms Bhatt, was this matter raised by Ai Group when the variation determinations were being finalised in the annual salaries common issue?

PN29

MS BHATT: Yes, it was.

PN30

JUSTICE ROSS: And the Full Bench didn't - well, in the variation determination they issued, it didn't reflect the outcome that you had sought in your submission.

PN31

MS BHATT: That's right, your Honour.

PN32

JUSTICE ROSS: Well, on what basis should we then change that if they have determined that question?

PN33

MS BHATT: Your Honour, I think the nature of that process was such that we weren't clear on what the union's position was and I think perhaps we were being optimistic, but we thought that it might be a controversial proposition that could be addressed through this process. We're not seeking to inappropriately reagitate something that has been dealt with somewhere else.

PN34

I hear what Mr Nucifora said. I don't think that it necessarily follows that if a salary can be payable in satisfaction of this amount, that will lead employers to not properly monitor the taking of lunch breaks or to not take other measures that would be taken to ensure that employees take their breaks. There are some very robust record‑keeping and reconciliation requirements that are now part of the annualised salary clause to make sure that employees are nonetheless remunerated as they would have been if the award had applied, but I don't know that I can take the matter any further, your Honour.

PN35

If the parties are not able to reach agreement on this - and it appears that we are not - then we would request that the matter be determined by this Full Bench based on what was put so far.

PN36

JUSTICE ROSS: All right. Do I take it ABI supports your position?

PN37

MR KINGSTON: We do, your Honour. That's correct.

PN38

JUSTICE ROSS: Okay. Ms Bhatt, the difficulty I have got is the Full Bench decision in the annualised salary matter - or there was no decision issued, as I read it, accompanying the final variation determinations. I can't find any reasons for the exclusion of the meal break provision as you had sought. Am I wrong about that or did they expressly deal with your submission somewhere?

PN39

MS BHATT: No, your Honour, there has been no decision and I'm not saying this disrespectfully at all. That's part of the reason why we have put the submission here. We weren't sure whether the submission has necessarily been rejected or if there is a reason why that - - -

PN40

JUSTICE ROSS: Yes.

PN41

MS BHATT: - - - suggestion hasn't been adopted that we can deal with or we can address.

PN42

JUSTICE ROSS: Yes.

PN43

MS BHATT: So that is the part of the context, too, but, yes, your Honour, there aren't reasons that have been published.

PN44

JUSTICE ROSS: All right. No, no, I follow the difficulty. The difficulty I have got is that I'm reluctant to, I suppose - to put it mildly - deal with an application as part of the finalisation process which seeks to make a change to a clause that has only recently been determined by a Full Bench which was constituted specifically to deal with the annualised salary matter.

PN45

I think the course that I would propose to adopt, Ms Bhatt, is to refer your matter to the annualised salary common issue and ask for a member of that bench to convene a conference in respect of the matter. It may have been that there are two possibilities: either your submission was overlooked or your submission was considered and rejected. I think the only people who know the answer to those questions are those who sat on the annualised salary common issue matter. I will refer the matter to them and they can determine the outcome.

PN46

In the event that you're successful before then, then an amendment will be made to the award. All right? Is there anything further in relation to this matter?

PN47

MS BHATT: No, thank you, your Honour.

PN48

MR NUCIFORA: No, your Honour.

PN49

MR KINGSTON: No, your Honour.

PN50

JUSTICE ROSS: All right. Thanks very much.

ADJOURNED INDEFINITELY [10.10 AM]