PN1

THE VICE PRESIDENT: I will take the appearances first in Sydney. Ms Bhatt, you appear for the Ai Group?

PN2

MS R BHATT: Yes, Vice President.

PN3

THE VICE PRESIDENT: Mr Baumgartner, you appear for New South Wales Motor Traders' Association?

PN4

MR A BAUMGARTNER: That's correct, your Honour.

PN5

THE VICE PRESIDENT: In Melbourne, Mr Butler and Ms Lettau, you appear for the AMWU?

PN6

MS L LETTAU: That's correct.

PN7

THE VICE PRESIDENT: Ms Burnley, you appear for the SDA?

PN8

MS S BURNLEY: That's correct.

PN9

THE VICE PRESIDENT: Mr Chesterman, you appear for VACC?

PN10

MR J CHESTERMAN: And I'm entering an appearance for MTA South Australia, your Honour.

PN11

THE VICE PRESIDENT: All right.

PN12

MR CHESTERMAN: As Mr Sheehan was unable to make it.

PN13

THE VICE PRESIDENT: All right. Thank you. Firstly, can I indicate that following the retirement of O'Callaghan SDP the Full Bench in this matter has been reconstituted, and that Bissett C is now the third Member of the Bench. So can I have a report back and whoever wants to can go first in relation firstly to the coverage issue. How far are we away from resolving that?

PN14

MS LETTAU: I'm happy to speak on that, your Honour.

PN15

THE VICE PRESIDENT: Ms Lettau. Ms Lettau, have you got a microphone near you? Your voice is a bit – can you speak into the microphone?

PN16

MS LETTAU: I do. Is that better?

PN17

THE VICE PRESIDENT: Yes. That's much better, thank you.

PN18

MS LETTAU: I'm pleased to report that as of late last week the parties have finally reached agreement on the drafting of both the Manufacturing Award coverage clause and the Vehicle Repair Service and Retail Award coverage clause.

PN19

THE VICE PRESIDENT: Yes.

PN20

MS LETTAU: The updated or marked exposure drafts that I sent through to the Commission late last week do reflect the agreed coverage clauses. Have you received a copy of those?

PN21

THE VICE PRESIDENT: Yes, I have. So let me have a look. I didn't realise they were agreed, but you say they're now agreed?

PN22

MS LETTAU: Yes, across all parties.

PN23

THE VICE PRESIDENT: All right. Let me just have a look at that. So I'm just trying to decode this. What's the significance of the parts in yellow?

PN24

MS LETTAU: So the highlighted sections indicate, this is in the Vehicle Repair Service and Retail Award ‑ ‑ ‑

PN25

THE VICE PRESIDENT: Yes.

PN26

MS LETTAU: ‑ ‑ ‑indicate the agreed changes to date.

PN27

THE VICE PRESIDENT: Yes.

PN28

MS LETTAU: So turning to coverage anything that's highlighted in yellow indicates an amendment or a change.

PN29

THE VICE PRESIDENT: So in 3.1(a) the words that are in yellow are new additional words, are they?

PN30

MS LETTAU: That's correct.

PN31

THE VICE PRESIDENT: Right, okay. All right. Thank you. So the other parties confirm that's agreed as between the parties?

PN32

MS BHATT: That's my understanding.

PN33

MR BAUMGARTNER: Yes. That's correct.

PN34

THE VICE PRESIDENT: Yes.

PN35

MR CHESTERMAN: Yes. That's correct, your Honour.

PN36

THE VICE PRESIDENT: Ms Burnley?

PN37

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

PN38

THE VICE PRESIDENT: All right. That's very helpful. So the Full Bench will give consideration to that. Secondly, Ms Burnley, had there been agreement about the issue of service station attendants, to put it loosely?

PN39

MS BURNLEY: This is to do with the rates, your Honour?

PN40

THE VICE PRESIDENT: Yes.

PN41

MS BURNLEY: Yes. Yes, there was. Your Honour, we sent through correspondence to the Commission on 22 March.

PN42

THE VICE PRESIDENT: Yes.

PN43

MS BURNLEY: A letter with draft determination.

PN44

THE VICE PRESIDENT: Yes.

PN45

MS BURNLEY: In which we said that all the parties – the majority of the parties had agreed to the draft determination. The only - excepting AiG, although they were consulted and said this was going in, and they'd read the draft determination and the letter, so they were aware of the position which had been reached.

PN46

THE VICE PRESIDENT: All right.

PN47

MS BURNLEY: So that's where the matter is, and we had a couple of suggestions there. So the motor trades' organisations had all agreed on the rates, and the date of operation, which is 1 July 2017. So that's where – and so this letter has been on the Commission website since that time.

PN48

THE VICE PRESIDENT: All right. So the parties all confirm that's agreed as well?

PN49

MR BAUMGARTNER: Yes, that is agreed. Yes.

PN50

THE VICE PRESIDENT: Mr Bhatt?

PN51

MS BHATT: It's my understanding that' it's not agreed by ‑ ‑ ‑

PN52

THE VICE PRESIDENT: Not agreed?

PN53

MS BHATT: Not agreed by Ai Group is my understanding. I have to confess that I don't have final instructions on that point. I wrongly assumed that we'd only be looking at the exposure draft today and my apologies to the parties and the Commission, but I can seek instructions later today from the relevant officer if necessary to confirm my position.

PN54

THE VICE PRESIDENT: All right. Can you provide that advice within seven days? Sorry, Ms Burnley?

PN55

MS BURNLEY: Yes, your Honour. If the AiG is going to oppose that we would also say that they'd need to put a written submission within seven days. They have been consulted. I did speak to Steven Smith of the Ai Group and he has had this correspondence prior to it being filed with the Commission. He hadn't been party directly with the negotiations which occurred during the exposure draft negotiations, that all the parties had been attending, or the majority of the parties had been attending, so if the AiG has not been represented; the Ai Group hasn't been instructed regarding this issue, obviously I'm not too sure why, we would suggest that the Commission issue a direction that they have seven days to either say yes or no, and if they are opposing this then they should also file a full written submission at that time, and then the SDA have seven days to respond to that, because 1 July is fast approaching and we wouldn't want to slip that date, because then that causes problems to all the motor trades organisation who have the majority of representation of these employees.

PN56

THE VICE PRESIDENT: Let's take this one thing at a time. Sorry, I thank you for reminding me of the significance of the 1 July date. Ms Bhatt, so when is the soonest you can convey your organisation's position about this?

PN57

MS BHATT: I can advise of our position by close of business today.

PN58

THE VICE PRESIDENT: Right. I think, Ms Burnley, I'll wait to see what the AiG's position is, and if the matter remains in dispute I'll then give urgent consideration as to what course of action to take to resolve it, but I think before requiring parties to file submissions it might be better if the Commission itself conducted an urgent conference in relation to the matter to see if it can be resolved that way before I proceed down to any path of arbitration.

PN59

MS BURNLEY: Yes. I'm unsure whether it can be, your Honour, because we have had our own consultations and the Ai Group decided not to participate in that, so we wouldn't want to see that as being a delay. So if it's useful to have a conference it would have to be a conference with the Commission, with a Commission Member, and we are conscious of the 1 July date.

PN60

THE VICE PRESIDENT: Yes, that's what I mean. Yes, all right. Are there any other substantive issues left in these proceedings with respect to the Vehicle Award?

PN61

MR BAUMGARTNER: There are two other matters, your Honour. There is a position of the parties in relation to the expression of hourly rates or driveway console operators and roadhouse attendants in clause 23.3. The parties have agreed that we'd like the rates expressed as they were in the 2010 award in a table of rates so that there's misunderstanding as to the rates or no confusion as to how the rates are to be calculated. Currently, under 23.3 it has loaded amounts to be added to the base hourly rates, and then a separate calculation for junior rates. So I guess that issue needs to be addressed.

PN62

THE VICE PRESIDENT: So does that directly connect with the SDA's proposal?

PN63

MR BAUMGARTNER: Yes, it does in one sense that the current proposal is to include the amendments on the current structure that's in the award. The parties have agreed, I think, that we want to move forward with the existing hourly rate structure, and then amend them in accordance with the traditional methods that we've always used. So I'm not sure whether that needs to be another hearing. This drafting of 23.3 has come out of the exposure draft, and I guess the drafters have decided an approach. The parties ‑ ‑ ‑

PN64

THE VICE PRESIDENT: I thought it came out of the Full Bench decision actually. Didn't it? You're testing my memory now, Mr ‑ ‑ ‑

PN65

MR BAUMGARTNER: I'm not sure, your Honour, but ‑ ‑ ‑

PN66

THE VICE PRESIDENT: You're testing my memory but I thought it may have come out of the Full Bench decision.

PN67

MR BAUMGARTNER: Yes. It just brings in a sense of uncertainty. I appreciate there is a proposal to have monetary rates in schedule B at the back of the award, but we've had a very simple straight forward structure in the award over many, many years, and the parties can't see any good reason to depart from something that's worked well for the industry and doesn't create any confusion.

PN68

THE VICE PRESIDENT: I hadn't looked in detail at the SDA's proposal but does it establish some sort of transparent relationship between the full-time rates and the casual rates?

PN69

MR BAUMGARTNER: It evens out those percentages.

PN70

THE VICE PRESIDENT: Because that's the difficulty I think.

PN71

MR BAUMGARTNER: At the moment you'll see the different percentage for console operators at 167 per cent.

PN72

THE VICE PRESIDENT: Yes.

PN73

MR BAUMGARTNER: But this proposal resolves that issue, so the percentage would arguably be correct. But when we've analysed this, and we've put submissions in about this, it does create different hourly rates than we currently have now based on the structure that's in place, and that comes down to rounding. If you have an hourly rate that you're adding a loading to, you're going to have a different rounded rate. The way the approach has been taken is that we go back to the weekly rates and use a formula to work out the new hourly rate when there's an increase and so ‑ ‑ ‑

PN74

THE VICE PRESIDENT: What do you mean a formula?

PN75

MR BAUMGARTNER: There is a formula where you use the new weekly rate for, say, level 4 and divide it by the old weekly rate for level 4, and that percentage difference is applied to the hourly rate. That's the ‑ ‑ ‑

PN76

THE VICE PRESIDENT: If the annual wage review allows for an increase of, say, 2 per cent ‑ ‑ ‑

PN77

MR BAUMGARTNER: Yes.

PN78

THE VICE PRESIDENT: ‑ ‑ ‑why do you need all that? You'd just apply 2 per cent to the hourly rate, wouldn't you?

PN79

MR BAUMGARTNER: With a percentage increase you can do it that way.

PN80

THE VICE PRESIDENT: Yes. But ‑ ‑ ‑

PN81

MR BAUMGARTNER: The difference is the flat money rises in the past, and that's why that formula was arrived at, because for many years there were flat money rises, and that's the reason for that approach. But, yes, you're right, with the percentage rise you can just use the percentage. But the real issue here is not so much that; it's more having the actual hourly rates in the award for simplicity rather than having to go to a separate table.

PN82

We do have an issue, which is another matter, which relates to schedule B. We don't support the inclusion of schedule B monetary rates in the award. We feel that because of the complications within the award, there's so many tables, that it does become quite confusing, and we think that can be an issue as well, because people may go to the wrong table. So that is a concern for us having the range of hourly rates under schedule B.

PN83

So we do have those two subsequent issues that we do want to get addressed.

PN84

THE VICE PRESIDENT: All right. In relation to the first issue, realising it's intertwined with the SDA's proposal is there any party which takes a different view about that?

PN85

MS BURNLEY: Your Honour, I might just seek – just give you some clarification regarding that draft determination which is attached to our letter and correspondence.

PN86

THE VICE PRESIDENT: Yes.

PN87

MS BURNLEY: The draft determination is based on the current 2010 Manufacturing Vehicle RS and R structure.

PN88

THE VICE PRESIDENT: Yes.

PN89

MS BURNLEY: So it doesn't have links to any percentages or formula, et cetera. So it just slots in currently there's three tables where there are these rates, and this changes 36.3 on the current award structure. We would think that there will be another submission coming about where this exposure draft is currently sitting, so I would think it's unlikely that a new exposure draft is going to be issued within the next month or two, so not prior to 1 July. So we think that we would need to use the current method of expressing rates in the MRS and R Award when issuing or resolving that casual console rate, and then there's a separate issue which Mr Baumgartner has alluded to, is in the future award; is how these rates are expressed or not expressed.

PN90

THE VICE PRESIDENT: Do you agree with the Mr Baumgartner that they should be expressed as dollar amount hourly rates?

PN91

MS BURNLEY: Yes. That's how that has always been determined.

PN92

THE VICE PRESIDENT: All right.

PN93

MS BURNLEY: Your Honour, you did raise a question about whether the Full Bench had made a determination regarding having percentages.

PN94

THE VICE PRESIDENT: Yes.

PN95

MS BURNLEY: There was some work done on that to show that that's where this issue arose. You could see that in it, but I think there wasn't a determination made regarding how that should be expressed in the Full Bench decision. It had arisen from the exposure draft work, so over the journey of this, I'm not too sure which exposure draft, but one of the latest ones it came up, and had put in these different percentages at different times.

PN96

THE VICE PRESIDENT: Yes.

PN97

MS BURNLEY: That's where the Full Bench were able to identify that there was an issue regarding this rate, but how the rates should be expressed going forward, and whether there is percentages is something that the parties would like to address the Commission on at a later stage, because it does get quite complex regarding all the various rates which apply, and then also the rates which apply in schedule B as well. There was repetition. The SDA, had made a submission about the exposure draft and the percentages which had been used regarding the service station attendants which had picked up various errors which had occurred in the translation into percentages, I'd say, over time and other issues. I'm just trying to find that submission, but maybe I haven't brought it with me today, but it was, I think, March or April of 2016, so ‑ ‑ ‑

PN98

THE VICE PRESIDENT: Ms Burnley, to cut this short, if the Full Bench decided to retain these rates as being expressed in dollar amounts, you wouldn't require to be heard any further?

PN99

MS BURNLEY: No, your Honour.

PN100

THE VICE PRESIDENT: Yes. All right. Does any party take a different view about that? Ms Bhatt?

PN101

MS BHATT: Not necessarily about that, but if I can just raise one matter for clarity, and Ms Lettau might be able to assist with this. My instructions are that the coverage clause as documented in the exposure draft that was filed on Friday is agreed, however there are various other changes that have been proposed to other provisions of the award that are not necessarily agreed by all parties. I had intended to address your Honour today as to what the appropriate process for that might be. Discussions between the parties to date have been extensive and have largely been productive.

PN102

My instructions are, and I hope I'm not jumping ahead, Vice President, but my instructions were to propose to the Commission that the parties be given a period of, for instance, two months to continue those discussions to review finally the exposure draft that we end up with, and then report back to the Commission. Issues such as, for example, whether a schedule of rates is included in this exposure draft would, I anticipate, be the subject of those discussions amongst other perhaps minor issues or more minor issues.

PN103

THE VICE PRESIDENT: Ms Bhatt, this Full Bench was assembled simply to deal with substantive issues and not technical drafting issues. So what I anticipate is that once I can be satisfied that the substantive issues have been resolved or determined it will then be referred back to the normal track of dealing with whatever stage this award was in, and I think that the appropriate course may be that the parties can then have a conference with the appropriate Member to go through these matters.

PN104

MS BHATT: We're, of course, in the Commission's hands as to the process. My reason for raising this now is because I think that some of the issues that are being discussed and ventilated have arisen as a result of the decision made to remove the vehicle manufacturing stream from this award, and so we were proceeding on the basis that it might, by virtue of that ‑ ‑ ‑

PN105

THE VICE PRESIDENT: Right. So they're consequential changes from the change to the coverage are they?

PN106

MS BHATT: That's my understanding. Because there are, of course, other terms and conditions in this award that related specifically to that group of employees. I apologise that I'm not in a position to better assist you. I think Ms Lettau is much closer to the detail than I am.

PN107

THE VICE PRESIDENT: All right. I understand that. So just going back to the hourly rate issue, does any other party wish to be heard in opposition to what Mr Baumgartner's proposed about that? No? All right.

PN108

The schedule B issue; have the parties discussed that? That is, you say, Mr Baumgartner, and I'm just looking it now ‑ ‑ ‑

PN109

MR BAUMGARTNER: Yes.

PN110

THE VICE PRESIDENT: ‑ ‑ ‑ because it's simply so extensive, it may create more confusion than assistance?

PN111

MR BAUMGARTNER: That would be our view.

PN112

THE VICE PRESIDENT: Yes. What's the views of the other parties about that?

PN113

MS LETTAU: If I may, your Honour?

PN114

THE VICE PRESIDENT: Yes.

PN115

MS LETTAU: The AMWU's position is that we don't have any major concerns with the inclusion of schedule B.

PN116

THE VICE PRESIDENT: All right.

PN117

MS LETTAU: We don't have any intention to prosecute that as an issue at this stage.

PN118

THE VICE PRESIDENT: Ms Burnley?

PN119

MS BURNLEY: Yes, your Honour, the SDA, we had no views of whether schedule B should or shouldn't be in the award. It is a complex structure, but we are fairly neutral as to whether it's in or out at this point in time.

PN120

THE VICE PRESIDENT: Mr Chesterman?

PN121

MR CHESTERMAN: Your Honour, we would support Mr Baumgartner on this. We feel that it overly complicates the award. The award has obviously gone through significant change and we feel that schedule B will perhaps add another complication down the track. We'd prefer to not see it in.

PN122

THE VICE PRESIDENT: Does that mean that it's left to individual employers to calculate all these rates themselves?

PN123

MR CHESTERMAN: Our positon has always been from the associations that – well, from the VACC point of view, but also I'd have to say, MTA South Australia, that we always calculated the rates based on the draft order provided by the Fair Work Commission, and put the matters of wage schedules to our members.

PN124

THE VICE PRESIDENT: If you're doing that, why shouldn't the award do that?

PN125

MR CHESTERMAN: It's just that sometimes a lot of our members rely more on a wages guide. In fact, they call our wages guide the VACC Award. They're quite confused with awards, and they would prefer to get the information on wages schedules from us ‑ ‑ ‑

PN126

THE VICE PRESIDENT: Yes.

PN127

MR CHESTERMAN: ‑ ‑ ‑than go to the award. They're only small businesses, so whilst they have an award, they generally rely on us, as an association, to provide that. I do provide the wages guides.

PN128

THE VICE PRESIDENT: Yes, all right. Thank you. Does anyone else wish to say anything about this issue? All right. I think perhaps the appropriate approach is to do it this way: we'll receive Ms Bhatt's advice about the service station rates. If it turns out that and the coverage issue are resolved, then I'm inclined to refer to Bissett C for further conference to finalise a draft in the award since she's dealing with the manufacturing award consequences as well. But if there needs to be a further hearing in relation to the service station rates, well, then that will have to be arranged. Is there anything else I can deal with now?

PN129

MS LETTAU: Your Honour, I might just raise a couple of further comments, if that's okay?

PN130

THE VICE PRESIDENT: Yes.

PN131

MS LETTAU: In respect of coverage, it's probably important to note that one of the agreed changes was to include the term "trailerable boats" into clause 3.1(a). The ‑ ‑ ‑

PN132

THE VICE PRESIDENT: Sorry, just hold on. Include what?

PN133

MS LETTAU: The term "trailerable boats".

PN134

THE VICE PRESIDENT: Trailerable boats.

PN135

MS LETTAU: That was the subject of quite a lot of discussion and that was agreed upon on the proviso that a definition of trailerable boats was included in the definition section at the back of the award.

PN136

THE VICE PRESIDENT: Yes.

PN137

MS LETTAU: So I just wanted to alert your attention to that when you're reviewing the changes to the coverage; that that does include an addition of a definition at the back of the award.

PN138

THE VICE PRESIDENT: Yes, all right.

PN139

MS LETTAU: In ‑ ‑ ‑

PN140

THE VICE PRESIDENT: But that doesn't affect the coverage of any other award, does it?

PN141

MS LETTAU: No.

PN142

THE VICE PRESIDENT: All right.

PN143

MS LETTAU: Additionally in respect of other outstanding issues, you'll see on the first page of the Vehicle RS and R Award that I emailed to you on Friday we've included some notes in respect of outstanding issues. I would agree that, aside from schedule B and clause 23.3, there really are no further substantive issues that the parties have identified at this stage, aside from the facilitative provisions which obviously need to be cleaned up at the end of this exercise. But I would like to point out, along with the comments from the AiG, that the AiG have only been a party to some of these discussions and have not had the opportunity to review all of the substantive changes that have been agreed by the other parties, and there's also one interested party in the AMWU in the metals division that would also like to have an opportunity to – sorry, I'm not sure if my microphone just went off. Can you hear me okay?

PN144

THE VICE PRESIDENT: Yes, you're fading out a bit. You need to stay close to the microphone.

PN145

MS LETTAU: The metals division of the AMWU would also like to have an opportunity to make one final review of the updated exposure draft that was sent through. So we would support the granting of some further time in order for the parties to do that. I don't know whether we need two months. Then the mater being referred to Bissett after that stage.

PN146

THE VICE PRESIDENT: All right. Thank you. Can I just clarify one matter about the coverage? So in 3.1(a) in relation to the reference to assembling, that is to be read as meaning assembling for sale?

PN147

MS LETTAU: That's correct.

PN148

MR BAUMGARTNER: That's correct. Yes.

PN149

THE VICE PRESIDENT: Not assembling for somebody else to sell?

PN150

MR BAUMGARTNER: You're quite correct.

PN151

THE VICE PRESIDENT: Thank you. Are there any other issues? All right. I thank the parties for their attendance, and I'll now adjourn.

ADJOURNED INDEFINITELY [11.00 AM]