PN1

THE DEPUTY PRESIDENT: Thank you, I will open this mention into AM56/2017. The matter's been listed today for programming to see how it might be progressed before the Full Bench. If I could just start by taking the appearances please. Start with Sydney.

PN2

MS DEVASIA: Ms Devasia for the AMWU.

PN3

THE DEPUTY PRESIDENT: Thank you.

PN4

MS AMBIHAIPAHAR: Ambihaipahar for the CEPU.

PN5

THE DEPUTY PRESIDENT: Thank you.

PN6

MR Z DUNCALFE: Duncalfe, initial Z, for the Australian Workers Union.

PN7

THE DEPUTY PRESIDENT: Thank you. In Canberra?

PN8

MR B ROGERS: Rogers, initial B, for the NFF, your Honour.

PN9

THE DEPUTY PRESIDENT: Thanks. On the telephone?

PN10

MR E MOTTI: In Townville, your Honour, there's Eric Motti and Sarah Percy.

PN11

THE DEPUTY PRESIDENT: And you've also got Mr Luke and Ms Larsen.

PN12

MR MOTTI: In the (indistinct) on another line.

PN13

THE DEPUTY PRESIDENT: Thank you. Can everyone hear them?

PN14

SPEAKER: Yes.

PN15

SPEAKER: Yes, your Honour.

PN16

THE DEPUTY PRESIDENT: Great, thank you. Mr Motti, can you enlighten me. What is happening with respect to the Australian Sugar Milling Council or whatever that entity is currently known as?

PN17

MR MOTTI: Australian Sugar Milling Council is still there doing what it normally does, Deputy President, but there's no specific IR function done from there any longer, so it's more focused on other sort of industry based activity and for the purposes of this sort of arrangement what we're working with is basically we're representing the ASMC in these processes so I'm taking it back to the industry, I'm taking it back to ASMC and we're meeting with the other milling partners and trying to build a consent position up. I appreciate that's been a bit clunky because the last time we were sort of caught by surprise but I think we've sort of worked our systems out a bit better.

PN18

THE DEPUTY PRESIDENT: Right. Do you think, Mr Motti, it might assist if you were appointed as a representative in these proceedings by the parties that you're representing?

PN19

MR MOTTI: I mean if that's the procedural step that needs to be taken that's what I'll taken. I mean - but from my perspective, I have been appointed by ASMC to act here, so - - -

PN20

THE DEPUTY PRESIDENT: Right, well if you could get something in writing from there.

PN21

MR MOTTI: Yes.

PN22

THE DEPUTY PRESIDENT: Just so that when you speak and make a concession we know who it's being made on behalf of or when you put a position we just have something for the record. I'm not disbelieving you, Mr Motti, it's just that, you know, if you are representing - because you're not and Wilmar Sugar isn't an association, ASMC is, so I think it would assist if we had at least something from ASMC to say that you are acting on behalf of the sugar millers who are members of the ASMC and listing who those entities are.

PN23

MR MOTTI: Yes, will do, Deputy President.

PN24

THE DEPUTY PRESIDENT: Thank you.

PN25

MR MOTTI: I'll try to get that - it'll be within a week if that's - is that okay?

PN26

THE DEPUTY PRESIDENT: Perfect, yes, that's fine, thank you. Well, as I understand it the position that we have arrived at is that a previous Full Bench has identified a number of outstanding issues being the definition of seasonal employment, coverage and the definition of the sugar industry, hot work allowance, the schedule D summary of hourly rates of pay, piecework rates and casual loading and the issue of tool allowance, and I guess the purpose of the proceedings today is to see how the matter might progress.

PN27

Now did the parties want to endeavour to have some further conciliation conferences to see if their positions can be narrowed or are we simply listing the matter for hearing, in which case I'll issue directions requiring the party advocating for the change to the particular clause to take carriage in respect of that clause and put in submissions and any material it wishes to rely on, and the party responding to provide a response within an agreed time period. Perhaps if we can start from the unions' perspective who are all in Sydney. What's your view in relation to that?

PN28

MR DUNCALFE: Your Honour, Zac Duncalfe here from the AWU. So far we've managed to have a few offline teleconferences with Wilmar and the representatives from ASMC.

PN29

THE DEPUTY PRESIDENT: Yes.

PN30

MR DUNCALFE: We believe that a few of these issues, because some actually aren't initiated by any party. Some are from the Fair Work Commission, the Full Bench themselves, so with the seasonal employment, the coverage and definitions clause.

PN31

THE DEPUTY PRESIDENT: Yes.

PN32

MR DUNCALFE: I believe that we can probably land on a consent position on both of those.

PN33

THE DEPUTY PRESIDENT: Good.

PN34

MR DUNCALFE: We would like a little bit extra time to have further conferences offline and we'll include NFF in those as well, but I believe that those will probably be able to be resolved fairly easily. I think we're all thinking the same thing. We may need some assistance from the Commission in determining what it was that the Commission - that the Full Bench had an issue with precisely but that won't prevent us from coming up with some suggestions about how we can overcome what we believe the Full Bench has taken issue with in those proposals.

PN35

THE DEPUTY PRESIDENT: Yes.

PN36

MR DUNCALFE: The hot work allowance, we've had some really good constructive discussions with the same parties but we're still in the midst of determining which doesn't and which does apply of the other allowances, when the hot work allowance is being paid. I believe that we've narrowed that fairly significantly and we can also contact the NFF for further discussions about that offline as well.

PN37

The piecework loading calculation, I believe that the proposal by the NFF, I think that if they want to push that we will be opposing that, so that will probably go straight to arbitration. I don't see how conciliation will help there.

PN38

The second limb of the piecework loading calculation being how the piecework rate is calculated for casual employees. I believe that a conference before the Commission or maybe some written submissions would assist there. That would be my suggestion because I think that although it is - like there is arguments to be had. I think that that could be resolved fairly easily without going to arbitration but that's just our opinion. What's left is the schedule D which I think that we can make some progress with offline before convening before you again in a conference setting. The facilitated provisions, I think we can work that out between ourselves about what is, what isn't a facilitated provision and we can probably come to consent position. I think all parties would be able to come to a consent position on that because I don't think anyone's willing to die in a ditch over anything there.

PN39

THE DEPUTY PRESIDENT: Right.

PN40

MR DUNCALFE: So as a whole, the union's position would probably be if we could have a little bit more time to talk amongst ourselves because we have had some very collaborative discussions so far, and we have managed to narrow the issues and help each - and the parties have understood each other's respective positions and we've been able to make some headway there. I believe that a conference before you will probably be quite useful in both presenting any consent positions that we do arrive and also secondarily to maybe ventilate some further issues that may not require arbitration but just may need another perspective, and then I think that there will be a couple of those issues that will just have to proceed to arbitration that won't be helped by conciliation.

PN41

THE DEPUTY PRESIDENT: Right. So how long would you envisage you'd need to have these further discussions and before a conciliation conference could be held?

PN42

MR DUNCALFE: Well I'd like to ask all parties to see how busy they are but I was thinking maybe three weeks, to be able to maybe have - so we can schedule two more teleconferences with all parties and see if we can arrive at any consent positions there. I believe that we will and then a further conference before you to present those consent positions if we arrive at any and also to maybe just maybe knock some edges off a few of the things that we haven't specifically been able to arrive at but may need another perspective.

PN43

THE DEPUTY PRESIDENT: Right. The other unions, what's your position? Ms Ambi, Mr Duncalfe, you agree with that proposal?

PN44

MS AMBIHAIPAHAR: Yes, your Honour.

PN45

MS DEVASIA: Yes, Deputy President. I would only add from the perspective of the AMWU that the issue of the tools allowance would probably not be something that would be worked out between the parties.

PN46

THE DEPUTY PRESIDENT: Yes.

PN47

MS DEVASIA: It's likely to run to a full substantive arbitration. So I would ask for some - I would be guided by you whether you would want to wait till after the conciliation process to list it for arbitration, or if you would think that it's appropriate for those matters to be listed for directions and dates now.

PN48

THE DEPUTY PRESIDENT: It might be better to wait till after the conciliation, till we know if there are any other outstanding matters.

PN49

MS DEVASIA: I understand, Deputy President.

PN50

THE DEPUTY PRESIDENT: But the AWU would be the proponent of the change in respect of tool allowance and will take carriage on that matter.

PN51

MS DEVASIA: It would be the AMWU, Deputy President.

PN52

THE DEPUTY PRESIDENT: Yes, right. Thanks for that. Mr Rogers, what's your view about this proposal?

PN53

MR ROGERS: We're comfortable with that proposal, your Honour. I'd just like to make two points.

PN54

THE DEPUTY PRESIDENT: Yes.

PN55

MR ROGERS: The piecework rate, I note that in the decision which was published in October, it only addresses the interplay of the casual loading and the piecework rate, and I note that the NFF - practically before my time - the NFF made an application I believe to reduce the piecework rate from 20 per cent, the loading sorry, 20 per cent to 12.5 per cent. Just for the record I'd like to note that we're pursuing that claim. So I hope it's still before your Honour and I guess we'll need to go to arbitration but maybe you'd like to hear from the other parties on that.

PN56

THE DEPUTY PRESIDENT: Right. The unions, I take it, aren't going to consent to a reduction in the piecework rate from 20 per cent to what was it, 12.5 per cent?

PN57

MR ROGERS: 12.5, that's correct, your Honour.

PN58

THE DEPUTY PRESIDENT: Yes. So we might reach - Mr Rogers, do you think - is your position about the casual loading and it's interplay with the piecework rate contingent on your 12.5 per cent claim or can we deal in principle with the question of whether casual loading and piecework rates, how they relate?

PN59

MR ROGERS: I think the two issues would need to be considered together, your Honour. Because one of our arguments is that the 20 per cent rate compensated - the 20 per cent rate was imported from the Queensland pre-modernisation award which dealt with casual loading differently to the way the modern industrial system deals with casual loading and that 20 per cent reflected the fact that piecework rate - piece rate workers didn't get annual leave and sick leave. So the two issues are sort of intertwined.

PN60

THE DEPUTY PRESIDENT: Right. So we might need to park that with tool allowance. In any event, there's nothing to stop you having some further discussions about it. You might convince the unions of the righteousness of your position or you might not but there's nothing to stop you having further discussions. But it sounds like at least those two matters are going to need to be arbitrated. If there's a three week period, can you have two meetings in that three week period?

PN61

MR ROGERS: That was my other point, your Honour. I don't think - because I'll need to take instructions from a broad array of organisations, so I think three weeks is optimistic for two discussions but I'd like at least four.

PN62

THE DEPUTY PRESIDENT: Right, if we say four weeks. That would be - thank you for that. Mr Motti, what's the position of the Sugar Milling Council in relation to that proposal?

PN63

MR MOTTI: We'd support the approach taken proposed by Mr Duncalfe and the other unions on this matter, Deputy President. It's been a very positive process that's been run to date and I would actually like to acknowledge the contribution and the effort that our union reps has put into that. They've done the bulk of the preparatory work to facilitate the discussion, so I just want to acknowledge that.

PN64

THE DEPUTY PRESIDENT: Right.

PN65

MR MOTTI: We'd support the extension of three to four weeks for the consultations to occur.

PN66

THE DEPUTY PRESIDENT: Right, thank you. Well, if we make it a four week period, on the expectation that all of the parties are going to have two weeks within that period and by the end of the four week period I would also request the parties to provide a precis of where they have landed. So what the position is. We believe we have consent or close to consent or we have consent on these matters, we have the capacity to reach agreement with a further conciliation conference on these matters and we have a third tranche of matters that we are not going to reach agreement on and we all agree that they need to be arbitrated. That way we can have the conciliation going on while you're preparing material for the matters that need to be arbitrated so that we can expedite this proceeding. Because it has been going on for some time and I don't want it to be the last award that is finalised. If we could do it on that basis.

PN67

So you'll have two meetings in the next four weeks and at the end of that four week period you will file and serve a document that sets out the position where you have reached consensus. The matters on which you believe consensus is capable of being reached with some conciliation and the matters where there will not be consensus and they will require arbitration, and then we will at the next conference, we will deal with directions for the progress of those matters.

PN68

MR DUNCALFE: Sounds good, your Honour.

PN69

THE DEPUTY PRESIDENT: Right. Anything else we need to deal with? Well, thank you for your time this morning and on that basis I will adjourn the proceedings. Good morning.

PN70

SPEAKER: Good morning, your Honour.

PN71

THE DEPUTY PRESIDENT: Thank you.

PN72

MR DUNCALFE: Thank you, your Honour.

ADJOURNED INDEFINITELY [9.39 AM]