PN1

JUSTICE ROSS: Could I have the appearances please, firstly in Melbourne. Just keep your seat and if you wouldn't mind moving the microphone so that the others can hear you.

PN2

MS R PATENA: Thank you. If it pleases the Commission, Patena R, for the SDA.

PN3

JUSTICE ROSS: Thanks, Ms Patena. In Newcastle?

PN4

MS K THOMSON: If it pleases the Commission, Thomson initial K for ABI and the NSW Business Chamber.

PN5

JUSTICE ROSS: Thank you. In South Australia?

PN6

MR C KLEPPER: If it pleases the Commission, Klepper initial C for Business SA.

PN7

JUSTICE ROSS: Thank you. What I propose to do is to go through the draft summary of submissions which I think was dated 5 September and just ascertain whether items are pressed or not, having regard to the submissions that have been made by the other parties, and I also may make some comments on some of the submissions. We've adopted the same process I think, Ms Thomson, you may have been involved in one of these and Mr Klepper you certainly have been, where - involving other awards in the second tranche. Given the - and often on reflection parties decide not to pursue a particular item.

PN8

Given there are 70 odd in the retail award it's likely I'll adopt the same approach I've adopted in hospitality, and that is to go through them this morning and then see what's left at the end of that process and then re-publish the summary of submissions and have a further conference. So it's more likely to be an iterative process in respect of this award given the range of matters that have been raised. I think in the past or in the earlier matters, hospitality for example, we started by going through each item but it really depends on the views of the parties as to how you want to proceed. The alternative is that I go to each of you and you indicate which matters are not being pursued or where you have a changed position. Do you have any preference, Ms Patena?

PN9

MS PATENA: Your Honour, my preference would be to go through it by item, just to ensure that everything's picked up and there will be some matters that we may not press but that would be the best way. Or my preference rather.

PN10

JUSTICE ROSS: Ms Thomson and Mr Klepper, do you have anything to say about that or are you content to go through the issues item by item, reflecting what appears in the draft summary? Ms Thomson?

PN11

MS THOMSON: No, thank you, your Honour. I agree with Ms Patena.

PN12

JUSTICE ROSS: Right. Mr Klepper, are you content?

PN13

MR KLEPPER: I have no issues. I have no issues either, thank you.

PN14

JUSTICE ROSS: Let's go to the first item. It appears that in relation to this item, can I just go to ABI first. This involves the definition of departments of sections. Can I just ask you to be a bit careful when you're flipping over papers, Ms Thomson, you are hitting the microphone or it's - that's all we're hearing down here. Look, it seems like ABI's position may have shifted. You had originally proposed some wording but as I understand your reply submission you now agree with Business SA. Is that right?

PN15

MS THOMSON: Yes, your Honour. So essentially the position would be just to return to substantially the same wording that's in the current award, however that's achieved we're not fussed but we do think there's been a departure from that wording in the exposure draft.

PN16

JUSTICE ROSS: If we just go to the exposure draft for a moment. Mr Klepper, what do you say is the difference between the current definition and the definition used in the exposure draft?

PN17

MR KLEPPER: The definition - so the difference that we see, in the current award the department or section has a dedicated department or section manager.

PN18

JUSTICE ROSS: Yes.

PN19

MR KLEPPER: That manager has at least three subordinate employees, and that wording has - - -

PN20

JUSTICE ROSS: So is it the word "other" in the plain language draft rather than the use of the word "subordinate" that's the issue?

PN21

MR KLEPPER: Yes, that's correct.

PN22

JUSTICE ROSS: So if the word "other" was changed to "subordinate" that would satisfy your concern? This is in the plain language exposure draft.

PN23

MR KLEPPER: Yes, I believe that will address our concern, thank you.

PN24

JUSTICE ROSS: Well is everyone happy with that; SDA?

PN25

MS PATENA: I think we are happy on the basis that the revised wording reflects the existing GRIA clause. I just understand that the change - - -

PN26

JUSTICE ROSS: Well Business SA has raised the issue and - - -

PN27

MS PATENA: Yes.

PN28

JUSTICE ROSS: - - - the ABI's not pursuing its definition and - - -

PN29

MS PATENA: The ABI's not pursuing it? Yes, that's fine. Thank you.

PN30

JUSTICE ROSS: Right. Same with ABI?

PN31

MS THOMSON: The only comment I'd make, your Honour, is that whether or not, and this might just be a matter for the drafter to consider, whether the definition as it currently stands has the effect of perhaps limiting the department or section to just the one, which I know is not how it's supposed to operate because obviously it's a shop with a number of departments or sections.

PN32

JUSTICE ROSS: Yes.

PN33

MS THOMSON: But the singularity of the words is just a slight concern of mine.

PN34

JUSTICE ROSS: It's the singularity of the word as you put it, as also with the current award.

PN35

MS THOMSON: In that case, your Honour, that won't be pressed, but it's just an observation.

PN36

JUSTICE ROSS: Let's go to item 2, which is an SDA proposal. SDA still pressing this?

PN37

MS PATENA: Yes, your Honour. We do note the reply submissions that indicate that the definition does still capture employers less than 21 years of age, but it doesn't accurately reflect the definition of junior as it stands in this particular award.

PN38

JUSTICE ROSS: If we look at the particular award in clause 18.2, can I take you to that?

PN39

MS PATENA: Sure.

PN40

JUSTICE ROSS: It notes that junior employees will be paid the following percentage et cetera. Then you'll see there that one of the age brackets is 20 years of age, employed by the employer for more than six months and they're paid 100 per cent, so they're still regarded as junior employees under the current award.

PN41

MS PATENA: Sure.

PN42

JUSTICE ROSS: Where's the current aware definition of junior employees?

PN43

MS PATENA: There isn't one.

PN44

JUSTICE ROSS: To the extent that 18.2 refers to junior employees and then sets out the age brackets, I'm not really sure on what basis you're saying the definition in the PLD is inconsistent with the current award?

PN45

MS PATENA: I think that was on the basis that there is a definition. It wasn't clear to the SDA the benefit of including that definition on the basis that your Honour's drawn attention to 18.2. I will need to seek instructions, but I think we are unlikely to press that.

PN46

JUSTICE ROSS: If that is any different, if you can let AMOD know by close of business tomorrow.

PN47

MS PATENA: Will do.

PN48

JUSTICE ROSS: Does anyone else wish to say anything about that? No, all right. Let's go to item 3. This is the definition of long term casual. Anything the SDA wishes to say about this?

PN49

MS PATENA: No your Honour, just that we rely on our submissions in relation to the inclusion of that term. Our reading note doesn't currently contain a reference to long term casual, so I'm unclear of the need to introduce a definition into the award.

PN50

JUSTICE ROSS: I think it's picked up in 18.4 of the PLD.

PN51

MR KLEPPER: I'm sorry, I had trouble hearing what you just said there, your Honour.

PN52

JUSTICE ROSS: Sorry, what was that?

PN53

MR KLEPPER: I had trouble hearing what you said.

PN54

JUSTICE ROSS: Yes, just bear with me for a moment. I think the terms is used in clause 18.4(c) of the PLD which is intended to reflect 19.3(c) of the current award. That's why the definition is in the PLD.

PN55

MS PATENA: I suppose, your Honour, our concern was that the introduction of that definition introduces a concept of long term casual. It's not considered outside the context of apprentices, so we'd need further time to consider that, but if it pleases your Honour, if I can seek instructions as to whether or not we'll pursue that change.

PN56

JUSTICE ROSS: You can take it that in each case where you're seeking instructions, if you can let us know by 4PM tomorrow.

PN57

MS PATENA: Yes, will do.

PN58

JUSTICE ROSS: Thank you. Let's go to item 4, I think there's general agreement that the definition be amended so that there's the abbreviation NES. Does the SDA - just bear with me for a moment. What's the SDA's concern with - - -

PN59

MS PATENA: Look, I think we saw that there was a reference to contain a reference to section 59 which would direct - - -

PN60

JUSTICE ROSS: Just refresh my memory, what's 59?

PN61

MS PATENA: Sorry, I don't have a copy of the Act with me, your Honour, but for the purposes of getting through these proceedings expeditiously, we won't press this change with - we'll accept the wording in the PLD.

PN62

JUSTICE ROSS: Anyone else? No? Let's go to item 5. I think this is an SDA proposition. I think there's agreement that the definition of rostered day of be omitted in the PLD. Anyone have a different view? Okay. Let's go to item 6. This involves the definition of standard rate and there's a dispute regarding this issue. The definition of standard hourly rate only appears to be relevant for one of the schedules, that's schedule C.1.1.

PN63

MS PATENA: Your Honour, the SDA's reviewed the schedule and again, it's likely we will not press this. I will seek instruction, but I think we can be satisfied with the existing wording, noting the reply submissions.

PN64

JUSTICE ROSS: All right, everyone content with that course? Anyone want to say anything further? No? Let's go to item 7.

PN65

MS PATENA: Your Honour, the SDA would press this change and note that there doesn't appear to be opposition to our submission and this goes to the accessibility of - - -

PN66

JUSTICE ROSS: I'm not sure if this issue has been dealt with in an earlier decision, but I'll find out. But for the moment, is that correct? I note the Business SA submission that it's not opposing the SDA's proposal. Is that the same - is the same position taken by the ABI?

PN67

MS THOMSON: Yes, your Honour.

PN68

JUSTICE ROSS: We'll look into that issue has been the subject of an earlier decision, perhaps in the Group 1 awards and we'll let the parties know.

PN69

Item 8, this is the host company issue, the SDA coverage point. This issue also arose in the pharmacy award in the plain language redrafting of the pharmacy award, so that might inform the position taken in this award. Is there anything further you wish to say about this item?

PN70

MS PATENA: Just that in relation to the omission of the "perform at a location", just to seek perhaps - to understand why the plain language drafter has - yes, has felt the need to omit to understand the effect of that change, and if there is none then we can be satisfied. But again noting that your Honour has said the matter's been considered in the pharmacy award we'll look to be guided by the outcome there.

PN71

JUSTICE ROSS: Also we'll get you some information about why the change and the effect of it. Item 9. I think the award flexibility issue's been determined in the course of the Full Bench decision 2017 FWCFB 4419 and I think that was after your submissions were made in relation to this award. So do I take it that that decision determines that issue?

PN72

MS PATENA: Yes, thank you, your Honour.

PN73

JUSTICE ROSS: Let's go to item 10. I'm not - this is proposing a new column, employment category, in clause 7. To my knowledge that hasn't been done in any other award and bearing in mind clause 7 is simply really an index of the provisions elsewhere in the award, which provide for some facilitative provision. For example, clause 32.9 provides for the cashing out of annual leave and it indicates an agreement between an employer and an individual or in that case an individual, in some other cases a group of employees. I think the existing clause doesn't - that is in the current award - doesn't seem to set out the employment status, so I wasn't sure what the purpose of the proposal by the SDA was.

PN74

MS PATENA: The SDA's view was that it may assist, yes, the reader's understanding with who the facilitative provision would apply to but on the basis that if it is settled in terms of other awards that that's the structure of the table and it's viewed by all parties to be unnecessary then we will not press.

PN75

JUSTICE ROSS: Right. Let's go to the Business SA item 11. They note that the reference to 15.10(b) should be 15.10(a) and that seems to be correct. There's a - just let's go to, yes, can I just get you, Mr Klepper, to - is the point that Business SA is - the other points Business SA is raising really go to whether it's the annual leave in advance, cashing out et cetera, and TOIL, whether it should be to the whole clause or to a particular part within a clause. Is that the debate?

PN76

MR KLEPPER: Yes, it's the debate made on similar grounds as was last week with the hospitality and restaurant awards.

PN77

JUSTICE ROSS: Yes. No, I follow. Is there anything further you - look, other than the short point which seems to be - although I note the SDA doesn't agree but perhaps if you can check that - the reference to 15.10(b) and the proposition is that - this is employees regularly working Sundays, that this should be 15.10(a), and let's just go to that. It would seem that that is incorrect and it's not (b) it's (a). Can I take you to 15.10 and you'll see there that the facilitation is provided by (a) and (b) simply notes that:

PN78

An agreement to facilitate may only be entered into at the written request of the employee.

PN79

(c) is that that must be set out in the time and wages record et cetera. So the other (b), (c), (d) and (e) are limitations if you like on the facilitation provision but the actual individual agreement, facilitative arrangement, is specified in (a) not (b). So I think Business SA is right about that point.

PN80

MS PATENA: Yes, I do accept that that is a facilitative provision and that is an apparent error with the PLD but the SDA's view is that the reader would benefit from being directed to read the clause in its entirety to understand how it operates with its limitations.

PN81

JUSTICE ROSS: Well I suppose they'd do that if they just went to it. They're directed to (a) so I don't think there'd be much doubt they'd then read (b).

PN82

MS PATENA: Well there is a - yes, there is a cross reference from (b) to (a) and just again was the benefit in referring to the entire provision but I can seek instruction on whether we will press that matter, your Honour.

PN83

JUSTICE ROSS: Right. Mr Klepper, I gather you're content to leave the other issue you've raised about whether it's to the particular part of a clause or the general clause in relation to TOIL, cashing out of annual leave et cetera, to be determined on the basis of what you've already said. Is that right?

PN84

MR KLEPPER: Yes, that's right.

PN85

JUSTICE ROSS: Right. Let's go to item 12, this is also about the table and Business SA and ABI contend that the table should also refer to clause 23.11(b), which provides for the payment of a recall allowance and (b) says:

PN86

Unless otherwise agreed between the employer and employee, the employer must pay the employee at the appropriate rate of pay for whichever is the greater -

PN87

And then goes onto note that. That does appear to be a facilitative provision providing for individual agreement. The second matter that Business SA and the ABI say should be included is 29.10 and 29.10 deals with shift work, and it states:

PN88

The employer and the majority of the employees at a workplace may agree to substitute another shift for a public holiday shift. If so the provisions set out in table 10, penalty rates, apply for all hours of the substitute shift.

PN89

Again that is a facilitate provision and the mechanism is by agreement of the majority of employees at the workplace. Is there any dispute about those matters; that the table should be amended to reflect those?

PN90

MS PATENA: No dispute, your Honour.

PN91

JUSTICE ROSS: We'll make those changes. Again, item 13, now, this is a Business SA point and it contends that the reference to 25.3 � I see, Mr Klepper, this is another illustration of the proposition that this table should refer to the particular provision within a clause which is said to be facilitative and not the whole clause, and this is about the TOIL provision, I take it?

PN92

MR KLEPPER: Yes. That's correct.

PN93

JUSTICE ROSS: Again that matter can be determined on the basis of what's been put before the Full Bench. Item 14, well, that's the inclusion of the reference to 29.10, and we've already dealt with that. Item ‑ ‑ ‑

PN94

MR KLEPPER: If it assists, I believe that item 15 and 16 are also that pinpoint reference matter.

PN95

JUSTICE ROSS: They are. Thank you. So there's no need for us to spend any time on those. Let's go to item 17. The SDA, types of employment.

PN96

MS PATENA: Your Honour, we would press that.

PN97

JUSTICE ROSS: Just take me through the argument. So it's clause 8.3 moving between different types of employment. I think that's 12.10 of the current award; is that right? The conversion clause, and what's the area of concern?

PN98

MS PATENA: If your Honour will bear with me, I'll just read the existing clause.

PN99

JUSTICE ROSS: No, that's fine.

PN100

MS PATENA: The SDA's view is the wording of the existing agreed clause is stronger, also noting that there's been omission of the wording, "at a specified future date". I would just ‑ ‑ ‑

PN101

JUSTICE ROSS: Just take me through what you say is the difference. When you say the wording is stronger, which bit?

PN102

MS PATENA: I think in terms of, "No full-time or casual employee will be transferred by an employer to part-time without the written consent".

PN103

JUSTICE ROSS: But isn't that what (a) says?

PN104

MS PATENA: Look, it does say that. We're simply stating a preference for the current wording. Agree, the structure of the PLD clause improves the reading of the provision. Your Honour, note that I think that � look, we won't press the proposed redrafting of our wording because there is an error with the structure on that, but, look, at this stage, the SDA would be satisfied if the words "on a specified future date" can be reinserted into the PLD and don't press the other changes.

PN105

JUSTICE ROSS: All right. Just take me � right, I see. So the current award says:

PN106

A full-time employee who requests part-time work and is given such work may revert to full-time employment on a specified future date by agreement with the employer.

PN107

That's reflected in 8.3(c)(ii). Can I make this observation to the other two parties as well; that that provision, 8.3(c)(ii) may require some clarification because I think it would need some lead in words, because if you don't have them it may be read as saying, "A full-time employee may return to full-time employment at a date agreed" which seems a bit off. So (ii) is really directed to the circumstance where, if the request is granted, then they may return to full-time employment. So that's one point. The second point is trying to pick up the concern raised by the SDA, if the word "future" was inserted before "date", so:

PN108

In circumstances where a full-time employee has had their requested granted and becomes a part-time employee then they may return to full-time employment at a future date agreed in writing with the employer.

PN109

MS PATENA: I think, your Honour, in our paragraph 40 of our 2 August submission ‑ ‑ ‑

PN110

JUSTICE ROSS: Yes.

PN111

MS PATENA: ‑ ‑ ‑does pick up the wording:

PN112

A full-time employee may request to become a part-time employee and if the request is granted by the employer.

PN113

JUSTICE ROSS: Yes.

PN114

MS PATENA: So you're proposing that to omit "specified at a date in the future", is that ‑ ‑ ‑

PN115

JUSTICE ROSS: It would simply say:

PN116

and if the request is granted may return to full-time employment at a future date agreed in writing with the employer.

PN117

MS PATENA: Yes.

PN118

JUSTICE ROSS: All right. That would resolve � yes?

PN119

MR KLEPPER: If it assists the Commission Business SA also proposed some wording at paragraph 5.2 of our reply submissions.

PN120

JUSTICE ROSS: Just bear with me for a moment. Yes. The only difference between what I've gone through and Business SA's is the use of the word "specified", and I think we're at one, that is, Business SA and the SDA, that you'll have the lead in words:

PN121

If that request is granted by the employer, may return to full-time employment at a future date agreed in writing with the employer.

PN122

Does that suit all the parties?

PN123

MS PATENA: Yes, your Honour. Thank you.

PN124

JUSTICE ROSS: Mr Klepper?

PN125

MR KLEPPER: The reason I brought that up was, having a look at the drafting in paragraph 40 of the SDA's submissions ‑ ‑ ‑

PN126

JUSTICE ROSS: Yes.

PN127

MR KLEPPER: ‑ ‑ ‑I was going to put that having paragraph (c) split into three subparagraphs (ii) I think is not � I don't think it flows as well in terms of the plain language process.

PN128

JUSTICE ROSS: The SDA is not pressing ‑ ‑ ‑

PN129

MS PATENA: Yes, the ‑ ‑ ‑

PN130

MR KLEPPER: It seems to stand on its own.

PN131

JUSTICE ROSS: No, the SDA is not pressing that. The SDA is content with ‑ ‑ ‑

PN132

MR KLEPPER: My apologies.

PN133

JUSTICE ROSS: No, the SDA, as I understand it, is content with a variation to (ii) to insert the words at the beginning, as proposed by Business SA and the SDA, that:

PN134

If that request is granted by the employer, may return to full-time employment at a future date agreed in writing with the employer.

PN135

MR KLEPPER: Yes, my apologies. That's fine with Business SA as well.

PN136

JUSTICE ROSS: Does the ABI have a different view?

PN137

MS THOMSON: No, your Honour.

PN138

JUSTICE ROSS: All right. That seems to resolve that. I think that deals with item 18 as well. Let's go to item 19.

PN139

MS PATENA: If it would assist, your Honour, I think item 19 is more of a general comment on the part time provisions rather than a specific item in itself.

PN140

JUSTICE ROSS: We'll come back to that. Let's go to item 20. There are - bear with me for a moment. Items 20 through to 33 all involve the part time employment provisions, is that right?

PN141

MS PATENA: That is.

PN142

JUSTICE ROSS: Let's deal with them as a block. Are there any - do any of the parties wish to either indicate that some of the points they've raised are not pressed or there's any change to your position. Let's deal with that firstly. Ms Patena?

PN143

MS PATENA: Your Honour, at this stage, we are going to press - yes, at this stage we're not going to withdraw any matters.

PN144

JUSTICE ROSS: I think the issue of part time employment then can be the subject of a further conference as an item on its own and we'll seek the comments of the draft or in relation to the matters that you've raised. What about the positions of Business SA and ABI in relation to the part time clause? Is there any variation in your position, Mr Klepper?

PN145

MR KLEPPER: I'm just reviewing it. We only had one submission I believe, at item 23. Looking at ours, it's a point that we're not particularly wedded to, we're not there to die in a ditch over it, and so we're happy for it to be determined in what we have put.

PN146

JUSTICE ROSS: All right, thank you. And ABI?

PN147

MS THOMSON: No, we're pressing the submissions that we've made to the extent that they're, I suppose, that perhaps able to be resolved. If the drafter was minded to perhaps produce a revised clause, that might address most of our concerns, I suspect, based on our discussions with respect to the hospitality and restaurant industry awards.

PN148

JUSTICE ROSS: Well, that's the course we'll adopt in relation to the part time employment matters. Then if we go to casual employment and item 33. Business SA notes the submissions of the SDA are clear. If we look at 13.2(a) of the current award for a moment, it says:

PN149

A casual employee will be paid both the hourly rate payable to a full time employee and an additional 25 per cent of the ordinary hourly rate for a full time employee.

PN150

11.2 provides that:

PN151

An employer must pay a casual employee for each ordinary hour worked a loading of 25 per cent on top of the minimum hourly rate otherwise applicable under clause 18 minimum rates.

PN152

What does the SDA say is the difference between the two? What is it that you are seeking to remedy?

PN153

MS PATENA: Your Honour, I think if I can agree that perhaps the wording of our own submission wasn't clear. I think it's the reference to clause 18.

PN154

JUSTICE ROSS: Well, clause 18 sets out the minimum rates of pay for various classification levels and ages.

PN155

MS PATENA: Yes, that's correct. But if I am a casual employee who's working on a Sunday or a public holiday, I'm just unclear as to how the reference to my entitlement to - - -

PN156

JUSTICE ROSS: I'm not sure how the current award would help you either.

PN157

MS PATENA: This is an opportunity to probably - yes.

PN158

JUSTICE ROSS: Because it talks about 25 per cent of the ordinary rate of pay.

PN159

MS PATENA: I suppose that goes to a broader issue that we've raised in relation to the exposure draft that there is no definition for ordinary hours.

PN160

JUSTICE ROSS: We'll come back to that issue, but you're proposing the reinsertion of 13.2 and I'm not sure how 13.2 is to be preferred to 11.2 of the PLD. Because 11.2 directs them to 25 per cent of what and it does refer to each ordinary hour worked. The question of what casuals get on - for example, Sundays, or on a public holiday is dealt with in those clauses.

PN161

MS PATENA: Look, your Honour, I agree that there is a clarity in relation to what we are pressing in this regard. But I still think the SDA would like to see a reference contained either within that casual employment clause or clause 18 to other rates that may be applicable. If I can again seek leave to seek instructions on those and reply tomorrow by 4 PM.

PN162

JUSTICE ROSS: Sure, bearing in mind that - so as I understand it, you're not arguing that the PLD doesn't accurately reflect what's in the current award, it's that you think that there should be an additional reference in there?

PN163

MS PATENA: It may create an unintended consequence if I am picking this up and reading it that there is no reference to any other rate that a casual might be paid if I am only looking at that provision.

PN164

JUSTICE ROSS: Yes. Would your position be, and I'll check whether the other parties have any concerns about this, but would your position be addressed by, for example, a note that says the penalty rates applicable to casuals are set out in clause - in table 10 in clause 26.2, because that's where - - -

PN165

MS PATENA: Look, I think that would be satisfactory.

PN166

JUSTICE ROSS: But you'll come back, that's fine.

PN167

MS PATENA: Yes, I think that would go a way to address the issues that we've raised, thank you.

PN168

JUSTICE ROSS: All right, does Business SA or the ABI have any objection to a note in those terms?

PN169

MR KLEPPER: Perhaps if I could seek some instructions as well, and also reply by close of business tomorrow.

PN170

JUSTICE ROSS: That's find Mr Klepper. Ms Thomson?

PN171

MS THOMSON: Yes, if I could take that one on notice please, your Honour.

PN172

MS PATENA: Your Honour, I do apologise, if I could just get you to clarify that the note for penalty rates are applicable.

PN173

JUSTICE ROSS: Yes, just bear with me for a moment.

PN174

MS PATENA: Sure.

PN175

JUSTICE ROSS: Look, I'm not particularly wedded to this form but rather than - which is where I understood the SDA to be going, that there be as part of this clause 11.2, an express reference to the penalty rates that are applicable to casual employees. It would simply be a note saying that the penalty rates applicable to casuals are set out in table 10 in clause 26.2.

PN176

MS PATENA: Thank you.

PN177

JUSTICE ROSS: No problem. So if each of you can send to AMOD what your view is about those or that proposition by 4 pm tomorrow. If we go to item 35, this is about clause 11.5 of the PLD. This seems to be agreed with by ABI, is that right?

PN178

MS THOMSON: Yes, your Honour.

PN179

JUSTICE ROSS: So that's agreement to the redrafted version and Business SA?

PN180

MR KLEPPER: Yes, we agree as well, thank you.

PN181

JUSTICE ROSS: Thank you. Item 36, I think that's also one that you're going to come back on.

PN182

MS THOMSON: Yes.

PN183

JUSTICE ROSS: Item 37. Well it's - I think that is a new provision but it doesn't appear in the general retail award. Does anyone take a different view to that? Is it somewhere else in the general retail award? Junior rates are dealt with at clause 18 of that award and it doesn't seem to make any reference to that, so it would appear on that basis it's a substantive change and as the SDA notes it's not the intent of the plain language process to introduce a substantive provision. Does anyone on that basis oppose the deletion of clause 13.3 from the PLD? No?

PN184

MS PATENA: No, your Honour.

PN185

MR KLEPPER: No, your Honour.

PN186

JUSTICE ROSS: That will resolve that issue, I think. Let's go to item 38. I think it's generally agreed that the words "as determined by the employer" be inserted after "skill level" in clause 14.2. Is that right?

PN187

MS THOMSON: Yes, your Honour.

PN188

JUSTICE ROSS: Yes, that's I think agreed by ABI and Business SA?

PN189

MS THOMSON: Yes, your Honour.

PN190

MR KLEPPER: Yes, your Honour.

PN191

JUSTICE ROSS: That would seem to resolve that issue. Item 39, now this is a Business SA - bear with me for a moment. So it's 15.10(d), and it's the words "at any time" that it's proposed be deleted. Is that right, Mr Klepper?

PN192

MR KLEPPER: Yes, that's right. We just don't see that those three words add anything to the clause.

PN193

JUSTICE ROSS: On the face of it that seems right. Does anyone object to the words "at any time" being deleted? SDA, no?

PN194

MS PATENA: No objection.

PN195

JUSTICE ROSS: ABI, no?

PN196

MS THOMSON: No, your Honour.

PN197

JUSTICE ROSS: Right. So that can be resolved by the deletion of those words. Let's go to item 40. Can the SDA just go - well, just tell me what the issue is here?

PN198

MS PATENA: I think, your Honour, with the existing GRIA the clause 27.2 has got a heading of "Ordinary hours", and then 27.2(a) references the spread of hours. Now in terms of the reference to - so the PLD removes reference to spread of hours but elsewhere in the - sorry, I've adopted the acronym PLD now but exposure draft.

PN199

JUSTICE ROSS: Yes, no, that's fine.

PN200

MS PATENA: Elsewhere in the award the term or the phrase is used and it hasn't been used consistently. So I suppose what we are seeking is where those terms are used within the PLD, they're understood to have the same meaning.

PN201

JUSTICE ROSS: Right. Well if I look at the items 40 through to 55, they all relate to clause 15 and like the proposition in relation to part-time work, that might benefit from some specific comment back from the drafter. But is there anything any party wishes to say by way or clarifying their position on any of those matters at this stage?

PN202

MS PATENA: Your Honour, if I could ask has there been in any of the - where this process has been undertaken for other awards, a definition inserted into any exposure drafts in relation to ordinary hours?

PN203

JUSTICE ROSS: Yes.

PN204

MS PATENA: To take that question - - -

PN205

JUSTICE ROSS: Yes, the ordinary hours of work - well, it's common in a number of awards to - - -

PN206

MS PATENA: It is common, yes.

PN207

JUSTICE ROSS: - - - to define the ordinary hours of work by reference to - and look I only use this as an illustration but either by days or a combination of this, for example, Monday to Friday it's 38 hours per week worked Monday to Friday between the hours of 6 am and 6 pm, for example would be a definition of ordinary hours.

PN208

MS PATENA: Yes. I suppose I should have directed that in terms of within the definitions clause, but that's fine, I will - - -

PN209

JUSTICE ROSS: Normally it appears in the hours of work clause.

PN210

MS PATENA: Yes.

PN211

JUSTICE ROSS: So what you, you know, 27.2 of the current retail award deals with ordinary hours and it provides that ordinary hours may be worked between a certain spread and I suppose you could infer that from clause 28 of the current award it refers to a 38 hour week, that ordinary hours are for a full-time employee 38 hours per week worked within the following spread.

PN212

MS PATENA: Yes.

PN213

JUSTICE ROSS: The spread is 7 am to 9 pm Monday to Friday, 7 am to 6 pm Saturday, and 9 am to 6 pm Sunday, and there are various provisos and exceptions provided to that. The current award is quite difficult to work your way through to answer your question about what ordinary hours of work are, and that's why I think this is an issue that clause 15 of the PLD is a matter that probably requires some separate consideration once we've � and thus far we've identified that really it's the part-time provisions and the provisions in clause 15 that require more detailed consideration and we'll get the drafter's comments back on the various submissions that have been made. The other items that have been raised can be dealt with. They'll either be withdrawn or the parties are content to rely on what they've already put in and the Full Bench can make a decision about them.

PN214

MS PATENA: Yes. Thank you, your Honour.

PN215

JUSTICE ROSS: But is there any part of those items that I mentioned, 40 and following up to, I think, item 55 that either the SDA or ABI or Business SA wish to alter their position or wish to indicate that a matter is no longer pressed? Anything from you, Mr Klepper?

PN216

MR KLEPPER: I'm just having a quick look through. I don't believe � no, we're not going to change our position on anything. Thank you.

PN217

JUSTICE ROSS: All right. ABI?

PN218

MS THOMSON: Similarly, your Honour.

PN219

JUSTICE ROSS: As I say, we'll get the comments from the drafter in relation to those matters and that can be the subject of a further conference just going through the detail of that clause. Then that takes us to item 56. If I go to you first, Mr Klepper, you say the clarity of table 2 could be enhanced. This is about the retaining the row applicable to employees who work less than four hours.

PN220

MR KLEPPER: Yes. That's correct.

PN221

JUSTICE ROSS: But employees who work less than four hours don't get an entitlement, so bearing in mind the table talks about entitlements to meal and rest breaks, and plainly you have to work more than four or more hours to be entitled to any break. I'm just not sure � it may confuse bearing in mind the heading is, entitlements to meal breaks and rest breaks, and if you include a column where they're not entitled to it. I think that's the reason the current table was adopted.

PN222

MR KLEPPER: If I may make two submissions on that?

PN223

JUSTICE ROSS: Sure.

PN224

MR KLEPPER: Firstly, I would probably put that it could be that we got a table discussing the entitlements to meal breaks to say that there is no entitlement within a certain parameter, so working fewer than four hours, and that was our thought in the initial submissions, that it would be appropriate for the table. But taking what you've put just prior perhaps it could be that a separate subclause in clause 16 just to make clear that employees who work fewer than four hours have no entitlement to a rest or a meal break, just so that the PLD isn't silent on that.

PN225

JUSTICE ROSS: Right. Would that proposition be satisfied if the note under the table was to that effect? So if it noted, you know, note 1: that employees working less than four hours are not entitled to rest breaks or meal breaks?

PN226

MR KLEPPER: With respect, I'd say that I don't think Business SA would be as happy with that, given the, for lack of a better word, authority put by a clause or a subclause compared to a note where putting to a reader a specific subclause or something in the actual text of the provision saying that there is no entitlement to a rest break or a meal break if you work less than four hours carries more, so, yes, like I say, lack of a better word, authority to the average reader.

PN227

JUSTICE ROSS: I mean, if you look at � a note would still convey to the reader that people who work less than four hours are not entitled to a rest break or a meal break, but it seems a bit odd to put a substantive provision in. So for example if we look at meal allowances in the current award it provides that in 20.1(a):

PN228

An employee required to work more than one hour overtime after their ordinary ending time without the giving of 24 hours' notice is to be paid a meal allowance of $17.92.

PN229

It doesn't say that an employee who works less than one hour overtime is not entitled to a meal allowance of $17.92. Do you follow what I mean? I mean, elsewhere in the award it sets out the circumstances in which you're entitled to a particular benefit. It doesn't say if you work less hours or if you don't meet the requirements of the clause you're not entitled to the benefit. This would be the only area or the only part of the award that did that.

PN230

MR KLEPPER: Yes, I certainly follow what you're saying. I take what you're saying. Really we are in the Commission's hands. It's simply that the current award specifies this. Our preference would be that the PLD specifies it. The manner in which it's specified, if the note is deemed appropriate, then we're happy with a note. We just wouldn't like to see it lost.

PN231

JUSTICE ROSS: All right. I follow. I'll ask the drafter to have a look at the table, and to look at the suggestions that have been made including the SDA's proposition that the table could be improved by adding a third column, so the entitlement to both rest breaks and meal breaks is easier to reference, and we'll come back with a redrafted or some comments about the various proposals and deal with them at the following conference.

PN232

Let's go to item 57. What does the SDA want to say about that?

PN233

MS PATENA: I think, your Honour, this is in relation to the table.

PN234

JUSTICE ROSS: Yes.

PN235

MS PATENA: It's similar to the points that we were trying to raise in relation to casual rates that it is a minimum hourly rate table, and it doesn't reference other additional amounts that would also apply as a minimum entitlement, and therefore made three submissions for additional notes to be added.

PN236

JUSTICE ROSS: Can I deal with them as we go through it. The insertion of the words "at least" before "the minimum hourly rate", that's not a proposition that's been adopted in any other award. It simply sets out what the minimum rates are. You could put "at least" before everything in a modern award because it is the safety net, so I'm not sure that the words "at least" could be said to be necessary in circumstances where you've got the words "minimum".

PN237

MS PATENA: Yes, look, I certainly take your point, your Honour. I think the proposal to add those words were on the basis that there are - it may alert to the fact that there are additional amounts that may be payable to an employee, but I think that we would not press that on the basis of the good point that you just raised. But in terms of the additional notes, I think that is something that we would press.

PN238

JUSTICE ROSS: What are the views of Business SA and the ABI about the additional notes?

PN239

MR KLEPPER: I think from Business SA's perspective, we're not - I'm certainly not aware of other awards which have taken that approach, or inserting additional notes to minimum rates clause. It's something that we put is not strictly necessary, but we're not going to fight to the last on it.

PN240

JUSTICE ROSS: All right. ABI?

PN241

MS THOMSON: I have a similar view, your Honour. Don't think the notes are necessary and also support the comments that you have made with respect to the insertion of the words "at least". Certainly, don't that that's necessary in the circumstances either.

PN242

JUSTICE ROSS: Is the SDA content for - as I understand your position, you're not pressing the proposition about the insertion of the words "at least", but you are pressing the three notes.

PN243

MS PATENA: Yes, that's correct.

PN244

JUSTICE ROSS: Are you content to rely on what you've already said about that, and that can be determined by the Full Bench?

PN245

MS PATENA: I'll seek instructions to whether we want to make any further comments in that regard, your Honour.

PN246

JUSTICE ROSS: All right, 58 I think is the same point that we've referred to earlier, that's the definition of junior employee. That relates to the same discussion that we've had earlier on.

PN247

Now 59, this relates to clause 19, the higher duties clause which - now bear with me for a moment. I think it's in 20.12 of the current award. What change do you seek?

PN248

MS PATENA: Your Honour, apologies I do need to review our submission, if I could just take a moment, as I'm not clear on the summary.

PN249

JUSTICE ROSS: No, that's fine. I think the approach that's been taken in clauses 19.1 and 19.2 is it's been assumed that the reference in 20.12 of the current award, when it talks about a higher rate than the ordinary classification rate, then it's referring to the minimum hourly rate and that seems to be - I mean, that would be consistent with other higher duties clauses, that if you're employed as a level 2 employee and that's your ordinary classification rate, and you're working for more than a specified period and in this award, it's more than two hours on a day or shift, then at a higher classification level, than you're paid that higher classification rate for the whole day. If you work less than the specified time, then you're paid for the time you've worked at the higher classification rate.

PN250

I'm not sure what - you want to add the word "minimum" but - - -

PN251

MS PATENA: I think again, your Honour, and it may be our submissions on this particular revision do need to be clarified. Again, I think that's in line with the absence from the minimum rates table with reference to other rates that may apply, so there is the minimum hourly rate but the reference to penalty rates is not there. I think that's what we may have been trying to pick up on in terms of that submission.

PN252

JUSTICE ROSS: Bearing in mind it's not in the current clause 20.12 either.

PN253

MS PATENA: Your Honour, it doesn't refer to a minimum rate; it applies to the higher rate for such day shifts, so it's probably a looser term, but I - - -

PN254

JUSTICE ROSS: Sure, but it's looser in the sense that what we're trying to do is to clarify it and it compares it to 'than their ordinary classification are to be paid at the higher rate'. Really, it's about you being paid at your higher classification rate. I don't think there'd be any argument that if that was on at a time which attracted penalty rates, then the penalty would be referrable to your higher classification rate.

PN255

MS PATENA: I'm sure there would be no disagreement with parties on that point, but it's just for that to be apparent to anyone else who picks up the award and again, I can seek instructions on any further submissions we might make on that point, but noted.

PN256

JUSTICE ROSS: If the note is made to the earlier clause, that dealt with casuals really, so that won't assist in this regard.

PN257

MS PATENA: That's clause 18. Look, I think that would be satisfactory.

PN258

JUSTICE ROSS: Which clause was that about? I'm not sure that will deal with this issue. That was really talking about the casuals, the 25 per cent, and the note was referrable to penalty payments they may have received for working at particular times. I'm not sure that's going to deal with anything in here about higher rates.

PN259

You say it should be varied to ensure consistency, with the current award and the word "minimum", be deleted.

PN260

MS PATENA: Your Honour, if I could just clarify, that we won't press the removal of the word "minimum", but it's a broader question of understanding where there's a reference to - and understanding there is no direct reference in the existing agreement to another clause. But where there's a reference to minimum rates and the table that exists within the exposure draft, includes minimum hourly rates and a reference to penalty rates so that provision can be read in its entirety and the reader understands that in the context of what is paid for that time, those higher duties are performed. If that would aid the Commission if I clarify that with our response tomorrow, I'll do that.

PN261

JUSTICE ROSS: Thank you. Well let's go to item 60. This deals with meal allowances and I think as the SDA correctly notes there is a substantive change in the PLD as opposed to the current award, and that is that the current award refers to 24 hours' notice whereas the PLD talks about not being advised on or before the previous day. This is if - and I think that's generally agreed by ABI and Business SA. So if we go to in the PLD 23.2(a)(ii) and that's the provision at issue, if it said the employee was not given at least 24 hours' notice of that requirement, that would meet the concern, is that right? The reference to that requirement is the requirement to work overtime which is referred to in (i).

PN262

MS PATENA: Your Honour, could you just repeat where you're proposing to add - to make that - - -

PN263

JUSTICE ROSS: Sure. You'd take out, in 23.2(a)(ii) of the PLD it currently says:

PN264

Employee was not advised of that requirement on or before the previous day.

PN265

Rather than that, it would say:

PN266

The employee was not given at least 24 hours' notice of that requirement.

PN267

Which would seem to be consistent with 21.1 of the current award, which provides an employee - deals with meal allowance and in subparagraph (a) it says:

PN268

An employee required to work more than one hour of overtime after the employee's ordinary time of ending work without being given 24 hours' notice will -

PN269

et cetera.

PN270

MS PATENA: Yes, I agree that would be satisfactory.

PN271

JUSTICE ROSS: Right. Is that - does that deal with the issue as far as ABI and Business SA is concerned?

PN272

MS THOMSON: Yes, your Honour.

PN273

MR KLEPPER: Yes, it does, thank you, your Honour.

PN274

JUSTICE ROSS: Right, thanks. Let's go to item 61. Now this is the issue around uniform and 23.3. If the word in 23.3(a) - bear with me a moment - in the bracket means "any article of clothing including". Well just before "any article of clothing" you could insert I think - you could insert the reference to a uniform in the section in brackets. So it means any article of clothing including a uniform or waterproof or other protective clothing. Do I take it that you just want the word "uniform" in there somewhere.

PN275

MS PATENA: I think that's - yes, that is key.

PN276

JUSTICE ROSS: That doesn't seem to be particularly opposed by any of the other parties.

PN277

MS PATENA: Your Honour, if I could make a further point - - -

PN278

JUSTICE ROSS: Sure.

PN279

MS PATENA: In relation to special clothing, that I think the SDA's preference would be for the including of - in brackets in 23.3(a):

PN280

Including uniform, waterproof, protective or other clothing.

PN281

I think in line with the current first sentence of the GRIA provision at 20.2(a), which says:

PN282

Such as uniform dress or other clothing.

PN283

I'm not sure that the current PLD picks up - it picks up other protective clothing, not other clothing.

PN284

JUSTICE ROSS: I'm not sure I'm following.

PN285

MS PATENA: I'm trying to think of an example to illustrate the point.

PN286

JUSTICE ROSS: It's really where the employer requires you to wear anything, any particular item of clothing.

PN287

MS PATENA: That's right and look, if I can give an example of where - if within a supermarket that you will be, you know, required to wear a uniform which may be, you know, a polo top of a distinctive colour. In a small fashion chain you might be directed to wearing other clothing which is, you know, the current season's apparel. But it's not protective and it's not - it wouldn't be classified as what you would traditionally understand to be uniform but it would be other clothing, and that's what - I suppose that's what we would be wanting for the provision to pick up and I'm not sure it does in the current wording.

PN288

JUSTICE ROSS: Well I think the current wording probably does pick that because it means any article of clothing - - -

PN289

MS PATENA: Sorry, I did - - -

PN290

JUSTICE ROSS: Yes, including waterproof or protective. It's just that it doesn't specifically refer to a uniform.

PN291

MS PATENA: Yes, I did - I omitted to reference that point. It's the brackets, so I think on that basis the inclusion of the word uniform would be satisfactory but if I have any - I'll seek instructions as to whether or not we've got any further points to make - or submissions to make in that.

PN292

JUSTICE ROSS: I think well, the inclusion of the word uniform is consistent with the position put by both ABI and Business SA. Is there anything further either of those organisations wish to say about that issue?

PN293

MS THOMSON: No, thank you, your Honour.

PN294

MR KLEPPER: I'll just question whether the SDA is pressing to have the current clause - the wording of the current clause or just having the uniform word put into the PLD, because Business SA preferences the PLD drafting.

PN295

JUSTICE ROSS: No, no, I note that and as I understand it the SDA is content with the insertion of the word uniform into the current PLD drafting.

PN296

MS PATENA: That's correct.

PN297

JUSTICE ROSS: Yes. I think that's your preference as well, Mr Klepper. Is that right?

PN298

MR KLEPPER: Yes that's right, thank you.

PN299

JUSTICE ROSS: Right. Well we'll do that. Let's go to item 62. Yes, the word "township" has created some - well some challenges in other awards as well, and the SDA's submissions is that that might require some definition, bearing in mind that clause 23.6 of the PLD is really in the same terms as 20.6 of the current award. It doesn't define it either. Does the SDA have a definition of township?

PN300

MS PATENA: I think, your Honour, that response was provided on the basis that, yes, the note in the exposure draft noted that it did require a definition.

PN301

JUSTICE ROSS: Yes.

PN302

MS PATENA: And that submission is in line with the submissions that we made as part of the pharmacy plain language process.

PN303

JUSTICE ROSS: Yes. I'm not sure we didn't anything in that.

PN304

MS PATENA: Yes, I'm not sure where that landed, so again it's just getting clarity.

PN305

JUSTICE ROSS: It's really a case of, I mean for what it's worth, I think the drafter and I agree with you that it would be desirable to have a definition. It's just we don't know what that definition might be. And it was really the purpose of the question was really to invite any suggestions for a definition. So I perhaps might ask each of you to give some thought to that and to let us know if you have any further thought about how the term should be defined.

PN306

Let's go to item 63. You want the current clause 29, as I understand it. You want the current clause 29.1. Let's just go to that. This is about reasonable overtime, and you prefer that to clause 25 of the PLD.

PN307

MS PATENA: Your Honour, just from the PLD that provision I think that came out of the reasonable hours test cases being removed from the exposure draft.

PN308

JUSTICE ROSS: Yes.

PN309

MS PATENA: So just seeking some understanding perhaps from the drafter as well as to why.

PN310

JUSTICE ROSS: Yes. No, I follow.

PN311

MS PATENA: What ‑ ‑ ‑

PN312

JUSTICE ROSS: So it's really that clause 29.1 of the current award � yes, it may simply be a misunderstanding on the drafter's part that they may have thought it was a reference to the NES in section 62, the circumstances in which an employee may refuse to work additional hours. Yes. That might be an issue that raises a broader question, and we'll have a look at the extent to which the reasonable overtime clause that appears in 29.1 of the current award has been retained in other awards. To my knowledge it's not been deleted and there hasn't been a debate about whether it should be, so on the face of it, bearing in mind the plain language exercise is not intended to vary substantive provisions, on the face of it, it should be reinserted. If there is then a debate about whether that reasonable overtime term should be deleted from this award then probably the same point is raised with all awards, and the point that could be taken is this; that, well, that provision is no longer necessary because it's dealt with in section 62 of the NES, but, and I'd make this observation to both ABI and Business SA, that's a broader argument than just this award, because that term reflects a previous test case provision, so if that proposition is to be agitated I think it should be agitated across all modern awards and, if that's the view employer organisations want to take, then you should take it, in fairness, in respect of every modern award. So perhaps you might consider that position.

PN313

For the moment the Commission's view would be, bearing in mind that this isn't an exercise to effect substantive rights, and without prejudice to whatever employers may wish to say about whether that reasonable overtime term should be retained, as part of this exercise, we will put it in into the PLD, because the plain language exercise is not dealing with those substantive questions, and employers can consider whether or not they wish to take the point more generally in respect of all modern awards, or all modern awards that have been varied to include that provision. But that's how we'll deal with it at the moment, and the parties can give further consideration to it.

PN314

Yes. If we go to 64, this is a point that both ABI and Business SA make, and it was a similar omission from, I think, the hospitality award, but clause 29.2(d) of the current award basically states that each day stands alone, and that provision has not been replicated in the PLD and for the same reasons that the plain language redrafting exercise is not intended to effect substantive rights that I'd propose that clause 29.2(d) of the current award be reproduced in clause 25.1 of the PLD. Is there any opposition to that course from the SDA?

PN315

MS PATENA: No, your Honour. I thought that we also picked up that point in our submissions, but we didn't � no, there's no opposition, and support that submission of ABI New South Wales.

PN316

JUSTICE ROSS: All right. We'll adopt that. Let's go to item 65. This is the interaction with clause 15; is it not?

PN317

MS PATENA: That's correct, your Honour. To go to your point earlier I think that there is, in terms of applying overtime and reading the current award, it is not always easy to navigate, but, yes, we want to ensure that where overtime is � no entitlement to overtime occurs for rostering outside the spread of hours, for example, outside of the rostering provisions in the existing clauses 27 and 28, that they're picked up, so that was a more general point about the construction of that clause.

PN318

JUSTICE ROSS: We might return to item 65 once clause 15 has been resolved and deal with it that way.

PN319

MS PATENA: That would be good, your Honour.

PN320

JUSTICE ROSS: Item 66 has been resolved. That's the overtime on each day point that I've referred to in item 64. Item 67, I'm not really sure to what extent - I mean, the SDA's proposition here is that - as I understand it, is that clause 26 changes the legal effect of the current award provisions, and that proposition's opposed by Business SA. Perhaps if the SDA can - bearing in mind that clause 26 was intended to have the same effect as clause 29.4 of the current award and 26.1 of the PLD is intended to be just a simple explanatory statement of what the clause is about.

PN321

MS PATENA: Your Honour, sorry, could I just get you to repeat by reference to clause 26.1 what - - -

PN322

JUSTICE ROSS: Well 26.1 is simply intended to be an explanatory statement of what the clause is about, and you see the same sort of - this is intended to assist the reader, you see a similar thing in for example - in the introduction to clause 23, though that should be in the PLD, 23.1 where it says:

PN323

Clause 21 gives employees entitlements to monetary allowances.

PN324

That should be a reference to clause 23. So it just says - it's a bit of a descriptor about what this clause is on about, and you'll see the same sort of thing in other parts of the award - bear with me for a moment, or of the PLD. In penalty rates - sorry, that's what we were dealing, but that's the intent of it, it's sort of an introduction and tells you what's in the clause. So it's intended to be an aid to the reader.

PN325

MS PATENA: Can I just pose a question about that explanatory statement?

PN326

JUSTICE ROSS: Yes.

PN327

MS PATENA: Just to understand how the reader's benefited by reference to overtime. Would it be sufficient for it to read clause 26 sets out penalty rates for hours worked at specified times on specified dates, or on specified days.

PN328

JUSTICE ROSS: Yes.

PN329

MS PATENA: I think that the SDA's got broader concerns about the interaction with penalty rates and overtime, so we're just - - -

PN330

JUSTICE ROSS: So if you put a full stop after "or on specified days" full stop.

PN331

MS PATENA: Would it - - -

PN332

JUSTICE ROSS: Well it may be if it said:

PN333

Clause 26 sets out the penalty rates for ordinary hours worked at specified times or on specified days.

PN334

MS PATENA: Would it be - - -

PN335

JUSTICE ROSS: Because that would distinguish it from overtime.

PN336

MS PATENA: I suppose to - or by reference to - if it's appropriate that a reference to the spread or span of hours is made there. I'm just - I think - - -

PN337

JUSTICE ROSS: Well I think if you said - maybe that's the earlier point but if you said ordinary hours and the other more challenging issue is to define ordinary hours.

PN338

MS PATENA: Yes.

PN339

JUSTICE ROSS: We'll do that in clause 15.

PN340

MS PATENA: Yes.

PN341

JUSTICE ROSS: When we come to it. So if 26.1 said:

PN342

Clause 26 sets out penalty rates for ordinary hours worked at specified times or on specified days.

PN343

That would address the concern that the SDA is raising about that provision. Does Business SA or the ABI have any objection to that change?

PN344

MR KLEPPER: Can I just take that on notice and just give it some more consideration?

PN345

JUSTICE ROSS: Sure.

PN346

MS THOMSON: Similarly, thank you, your Honour.

PN347

JUSTICE ROSS: Well if you can get back to me shortly about that, let's look at close of business tomorrow. If any party that needs more time if they can contact my chambers. What are the other points that the SDA raises about clause 26? In what way are you saying it's a problem?

PN348

MS PATENA: I think our primary concern was the interaction with overtime and how that would be read, your Honour. I'll just refer to the submissions.

PN349

JUSTICE ROSS: Well that's why 26.1 expressly refers to overtime, I suppose.

PN350

MS PATENA: Yes. Yes. Your Honour, if I could request that we review our position and I'll seek some instructions as to any further submissions we make on that - in relation to that exposure draft.

PN351

JUSTICE ROSS: Right. Well that - all right. That might be the position you also take with 68, which is about 26.3.

PN352

MS PATENA: Yes.

PN353

JUSTICE ROSS: Let's go to 69, Business SA's submission. Anything further you want to say about that, Mr Klepper?

PN354

MR KLEPPER: I'm just reviewing our submission now to see if there's anything to add to it. I don't think there's anything that Business SA wishes to add. I think that as stated in our submission our preference is to have the reference to persons specifically employed but again it's not something we are particularly wedded to. It's merely a preference.

PN355

JUSTICE ROSS: Right. So that could be determined on the basis of what you've already put.

PN356

MR KLEPPER: Yes, it can, thank you.

PN357

JUSTICE ROSS: Does any other party wish to say anything about that? About item 69? No? Let's go to item 70, ABI?

PN358

MS THOMSON: I have to confess, your Honour, unfortunately I'm not sure entirely what I was getting at that because it's obviously under the heading "Greater pay for shift work", so that's no longer pressed.

PN359

JUSTICE ROSS: Right. Look, I think it reflects almost precisely the exact wording in 30.3(e) of the current award but in any event the issue's not pressed.

PN360

MS THOMSON: No, your Honour.

PN361

JUSTICE ROSS: Let's go to item 71, this is really about where it's located isn't it?

PN362

MS PATENA: Yes, and your Honour that's our preference again understanding that this is part of - if this reflects the - - -

PN363

JUSTICE ROSS: It does, yes, the general.

PN364

MS PATENA: Yes, yes, we will not press that.

PN365

JUSTICE ROSS: Right. Then item 72, this is in schedule B.

PN366

MS PATENA: Again I think that reflects our previous submissions in relation to the use of that term ordinary hours.

PN367

JUSTICE ROSS: Right. So is that something - I don't think schedule B was - has it been the subject of any change in the plain language exercise?

PN368

MS PATENA: That goes to item 73, there's the addition of a note, but that's the next item.

PN369

JUSTICE ROSS: We'll come back to 72 once perhaps clause 15 has been clarified. If we go to item 73, it's proposed that the note be deleted. Is there any opposition to that? No? Let's just go - that's the note you're talking about here is the one immediately under the heading schedule B.

PN370

MS PATENA: That's correct, your Honour.

PN371

JUSTICE ROSS: Yes, all right. If there's no objection, the note can be deleted. I'm not sure about the second point. What do you mean by that:

PN372

Further variations be made to ensure it accurately reflects all terms and conditions of the award, not just wage rates.

PN373

MS PATENA: I think that's by reference - if that note was retained, the table would need to - yes, sorry, that wasn't clear.

PN374

JUSTICE ROSS: I see. If you delete the note, that solves that problem.

PN375

MS PATENA: Yes, it's a compliance, yes.

PN376

JUSTICE ROSS: Yes, your concern is that if that note is in there, it might suggest that you meet every obligation in the award simply by paying those rates.

PN377

MS PATENA: Yes, that's correct.

PN378

JUSTICE ROSS: Well, deleting the note sort of deals with that point.

PN379

I think you get back to us in relation to a number of the issues to confirm your respective positions by 4 o'clock tomorrow. I'll make sure that the transcript of today's proceedings gets loaded onto the website and a copy sent to each of you as soon as it's available so that you check where we're up to in relation to it.

PN380

From my perspective, the substantive issues that require some feedback from the drafter and some further discussion in a conference relate to part time employment and clause 15 dealing with hours. We'll schedule a further conference to deal with those matters and we'll update the summary of submissions to reflect the outcome of today's conference and whatever the parties submit in relation to the various items we've discussed by 4 pm tomorrow.

PN381

Is there anything further, or anything further any party wishes to say? No? All right, we'll schedule a further conference in due course to discuss those other issues.

PN382

Thanks very much. I'll adjourn.

ADJOURNED TO A DATE TO BE FIXED�� [11.20 AM]