PN1

THE DEPUTY PRESIDENT: It's Clancy DP on the line. Could I confirm I have Ms Devasia?

PN2

MS A DEVASIA: Yes, Deputy President.

PN3

THE DEPUTY PRESIDENT: Am I pronouncing that correctly?

PN4

MS DEVASIA: Yes, you are. Thanks.

PN5

THE DEPUTY PRESIDENT: Thank you. Then from the Ai Group, Mr Smith and Mr Harrington?

PN6

MR S SMITH: Yes, Deputy President.

PN7

MR H HARRINGTON: Yes, Deputy President.

PN8

THE DEPUTY PRESIDENT: Thank you. And from ABI, Mr Kingston?

PN9

MR R KINGSTON: Yes, Deputy President.

PN10

THE DEPUTY PRESIDENT: Thank you. There appears to be one outstanding matter in relation to the Graphic Arts Award, and that was referred to in the decision of the Full Bench of 27 April at 157, I think it is, and that is in relation to rates of pay on public holidays, and the issue of concern has been raised by the Australian Industry Group in its most recent submission to the Commission in relation to this award, and that is its submission of 22 April 2020. So I think that's what we're required to deal with today in conference. So I will hear perhaps firstly from the Australian Industry Group and then I'll ask the other parties for their views. So over to you, Mr Smith or Mr Harrington.

PN11

MR SMITH: Thank you, Deputy President. Hopefully this issue can be sorted out very readily because as we've set out in our submission, we think that the relevant intent of the clauses is quite clear, particularly when regard is had to the history of the clauses, but until the drafting of the exposure draft has not changed significantly for many, many years. We came up jointly with the AMWU with this concept of the overtime hourly rate to address other issues and there was no discussion about the public holiday rate, and by importing that concept of the overtime hourly rate into the exposure draft there has been an unintended consequence in the public holidays clause. In looking at the industry practice and the history of the relevant provisions, we submit that it's very clear that the appropriate rate for any time worked on a public holiday is 250 per cent of the ordinary hourly rate, not the overtime hourly rate, which would have the effect of creating a penalty of up to 325 per cent for permanent night shift workers who work on a public holiday. This matter only came to our attention after the Easter public holidays when some members got in contact with us and raised the issue, hence why we (indistinct) that submission when we did. That's the nub of the issue, Deputy President.

PN12

THE DEPUTY PRESIDENT: The issue won't arise for shift workers unless they perform overtime on public holidays. Is that the case?

PN13

MR SMITH: Yes. If they work ordinary hours on the public holiday they get 250 per cent of the ordinary hourly rate; but if they work overtime on a public holiday, what they are entitled to at the moment is the same 250 per cent of the ordinary hourly rate, which is obviously a very hefty penalty. So this would for the first time extrapolate that out to be a much higher penalty for if the correction is not made.

PN14

THE DEPUTY PRESIDENT: Okay. Mr Kingston, what's your view?

PN15

MR KINGSTON: We agree with the Ai Group, Deputy President. We have identified perhaps one further issue that is related. That would be resolved by the amendment that Ai Group are seeking. So it might be beneficial to ask Ms Devasia what her position is on this before we go any further down that road.

PN16

THE DEPUTY PRESIDENT: All right. Ms Devasia.

PN17

MS DEVASIA: I think probably draw a line under this part here and just actually say that the AMWU's position is that we agree with the AiG on the interpretation of how that application of the ordinary rates are paid during a public holiday. So I think that is an error where it has come up with the overtime hourly rate. That wasn't intended when we were coming up with the actual phrase "overtime hourly rate" or how that applies.

PN18

My only question to the Ai Group would be in relation to the overtime, our advice is that we don't - I'm still clarifying my instructions about how the overtime operates on public holidays. Does the Ai Group have anything on how that would be operating if there was overtime on a public holiday, or their views on how it operates currently, the award?

PN19

MR SMITH: Yes, we do. The way that it operates currently is people are paid the 250 per cent for all time worked on a public holiday, and that's why, you know, going back through all the versions of the awards over the years, it has really just had a rate for a public holiday, and there haven't been references to - there haven't been entitlements specified in the overtime clause because it - and I think the reason for that is that it's obviously a very high rate, 250 per cent, so that rate is a high level of compensation for overtime on a public holiday.

PN20

Because if it was ordinary time on a public holiday, people would be getting the normal time for the day or their ordinary time for the day, and another time; whereas if they work overtime on a public holiday, they're getting two and a half times more than they would have got. So it really is a lot more than what someone would get for ordinary time on a public holiday, for example.

PN21

MS DEVASIA: Our initial view is that is correct, that the way that it operates is essentially at the moment they just get the 250 per cent on the ordinary hourly rate. If perhaps I could just have till the close of business today just to clarify those instructions. But at this stage it's very much that we agree with the amendments that are being proposed by AiG. We don't propose to make any other changes to that.

PN22

THE DEPUTY PRESIDENT: All right. Mr Kingston, does that answer your question?

PN23

MR KINGSTON: In a way, Deputy President. If the position is that the union are generally in agreement but seeking some time to clarify that, we may leave it as is and add our support to that. Should the union come back and say that they do not agree after they've clarified their instructions, and seek for the exposure draft to remain as it is, then perhaps we may seek to make a further short submission. But that of course would depend on the response.

PN24

THE DEPUTY PRESIDENT: Okay. Well, interesting pathway here, because the exposure draft up until - the versions of the exposure draft up until 15 February 2019 had wording that is reflective of what is currently in the award at - what's in the current version of the award, I think, at clause 41, where it was stated at that time in the exposure draft at clause 31.3 that:

PN25

An employee required to work on a public holiday or a substitute day, as provided for in the NES or clause 31.5, will be paid double time and a half with a minimum payment of four hours, provided that -

PN26

and then it went on. So that was reflective of what is currently in the award. The version of the exposure draft changed, and was changed on 4 April 2019. That seems to have arisen from a process whereby there was a decision of the Commission on 23 November 2018, and that was concerned with a number of things, but what it did give rise to was a conference, I note, between the Ai Group and the AMWU where - and that conference took place on 20 December.

PN27

In the lead-up to that conference the Ai Group put up proposed wording to a number of clauses, which were then agreed by the AMWU, and one of those clauses was 31.3. That related to an Ai Group submission of 10 December 2018. So if the wording in the exposure draft changed in April 2019, it appears to have been prompted by that wording, Mr Smith, so I'm not sure - and it looked to have been agreed wording. So that's how the Full Bench picked it up, or the Commission picked it up into the versions of the exposure draft.

PN28

So I'm not sure what happened there, but anyway, if the position is agreed between the parties that something that - words that resemble or reflect clause 41 of the current version of the award - of the modern award - is the case, then I will report that back to the Full Bench. And the form of the amendment that is sought, it is noted, has that set out in the Ai Group submission of 22 April 2020 for amendments to be made in clause 37.3 of the exposure draft.

PN29

So I think what remains, then, Ms Devasia, is if you are able to confirm the union's position, I will await confirmation. And if you can email my chambers, copy in, if you have the details for Mr Smith and Mr Harrington. Do you have Mr Kingston's email?

PN30

MS DEVASIA: I think I do.

PN31

THE DEPUTY PRESIDENT: You do? All right. I've got them all here if you need them. If you can confirm the position, I will then report back to the Full Bench, and the Full Bench will reach a final position on the clause that's currently in the exposure draft. Is there anything further anyone wants to raise in relation to this matter?

PN32

MR SMITH: No, Deputy President. Thanks for your assistance.

PN33

THE DEPUTY PRESIDENT: Thank you. Ms Devasia?

PN34

MS DEVASIA: No, Deputy President, that's fine.

PN35

THE DEPUTY PRESIDENT: Thank you. Mr Kingston.

PN36

MR KINGSTON: No, thank you, Deputy President.

PN37

THE DEPUTY PRESIDENT: Thank you. All right. Ms Devasia, you mentioned perhaps by the end of the day. Is that achievable from your end?

PN38

MS DEVASIA: Yes, it is.

PN39

THE DEPUTY PRESIDENT: All right. I will await that further email correspondence from you, and we will go from there. Thank you very much. I will bring the conference to a close.

ADJOURNED INDEFINITELY [2.59 PM]