PN1

THE DEPUTY PRESIDENT: I'll take appearances, please.

PN2

MR M NGUYEN: Your Honour, it's Mr Nguyen, initial M. I appear for the Australian Manufacturing Workers' Union.

PN3

MR B FERGUSON: Your Honour, Ferguson, initial B, for the Australia Industry Group.

PN4

THE DEPUTY PRESIDENT: Thank you. As I understand – well, there's, I suppose, at least two issues to discuss; one is the draft award, its contents, it's status, anything else relating to it; and the second is directions, and you've all put views on all of those things. So who'd like to start?

PN5

MR NGUYEN: Your Honour, it's Mr Nguyen. I guess I'd go first. In terms of the draft award I've just provided a revised coverage clause to your Chambers last night which you should have a copy of.

PN6

THE DEPUTY PRESIDENT: I have it, yes.

PN7

MR NGUYEN: It's essentially the same as what was distributed to the parties in January, however there's just one change which I've made following discussions with the Pilots Unions which is to 4.2(c) which is an exclusion for the Air Pilots Award. It's not the union's intention that air pilots or helicopter pilots should be covered by the award. So that's really the only change which the interested parties would not have seen which is the exclusion for the Air Pilots Award. But other than that ‑ ‑ ‑

PN8

THE DEPUTY PRESIDENT: So 4.2(d) is the only change to the earlier draft?

PN9

MR NGUYEN: 4.2(c), yes.

PN10

THE DEPUTY PRESIDENT: I'm sorry, 4.2(c).

PN11

MR NGUYEN: Yes, is the only change to the earlier draft that was distributed to the parties in January. I don't think that the January draft was given to the Commission at that time, but for the purposes of the other parties' consideration of the definitions and the coverage it's essentially the same as what was discussed with the parties in January, and then there was a conference between interested parties without the assistance of the Commission in February.

PN12

THE DEPUTY PRESIDENT: Is this your final version of the award or do you have others?

PN13

MR NGUYEN: This is what the current final version of the coverage clause, but in terms of the draft ‑ ‑ ‑

PN14

THE DEPUTY PRESIDENT: No, no, no, that wasn't my question. Just listen. The question was this: is this the final version of the draft you propose, or what is it?

PN15

MR NGUYEN: This would be the final version of the coverage clause that we propose, yes.

PN16

THE DEPUTY PRESIDENT: And the rest of the award?

PN17

MR NGUYEN: The contents of the draft award, which we provided to the Commission last year, is based on the enterprise award which existed for CHC Helicopters.

PN18

THE DEPUTY PRESIDENT: Yes.

PN19

MR NGUYEN: Following further consultation with members we propose to, before filing our submissions, review the current standard which exists in enterprise agreements and reviewing those to see whether or not there are any other entitlements and conditions which have been established by custom and practice in the industry over the last 30 years which should also be included in the modern award.

PN20

THE DEPUTY PRESIDENT: When will that be? When will that be? When will you have a final draft?

PN21

MR NGUYEN: It was intended that we would file them with our first round of submissions.

PN22

THE DEPUTY PRESIDENT: All right. So that's your proposal, and on directions you propose, what, 10 weeks, four weeks, a directions hearing, and then an actual hearing. Is that your proposal?

PN23

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

PN24

THE DEPUTY PRESIDENT: Do you have anything else you want to say?

PN25

MR NGUYEN: I think our original proposal was actually for 12 weeks, but obviously if it's the intention of the Commission to try and conclude before the end of the year we'd seek to assist in accommodating that as long as there is equal time for the parties, and also that time for any reply submissions because we do ‑ ‑ ‑

PN26

THE DEPUTY PRESIDENT: I don't see why we can't have a hearing in say November and deal with it then. Between now and November is plenty of time for you, I would have thought, to formulate your submissions, and presumably for the employers to respond, though obviously I'm open to persuasion and we'll hear from the employers in a minute.

PN27

So is there anything else you want to say?

PN28

MR NGUYEN: I think from the timeline that we had drawn out that it was unlikely that we would be able to fit in all of the steps in the process that we think are necessary for the fair and just conduct of the proceedings to have a hearing by November.

PN29

THE DEPUTY PRESIDENT: So you want a hearing in, what, early December or something?

PN30

MR NGUYEN: It was sort of mid – yes, early December.

PN31

THE DEPUTY PRESIDENT: You really have to – well, all right. Is there anything else you want to say? That's it?

PN32

MR NGUYEN: No, that's it.

PN33

THE DEPUTY PRESIDENT: We'll hear from the AiG.

PN34

MR FERGUSON: Yes. Thank you, your Honour. There are two key issues which I think there might be utility in going through. Our first concern relates to the intended coverage of this instrument. By way of background the catalyst, as I understand it, for this application where proceedings seek a modern enterprise award that was to cover parties engaged in, or a party engaged in, rescue work, helicopter rescue work if you will.

PN35

The Full Bench there made the observation that there were a small number of other employers engaged in that sort of work, and within that context, as I understand it, the AMWU foreshadowed an application to cover those employers or those employees engaged in that work. The first general concern we have, and this will govern the nature of our interest in this to a degree, is that it appears on the wording of the coverage clause that they now intend to cover persons who have certain qualifications or skills whenever they're working in a helicopter that is performing more than rescue work, performing any sort of transportation task. So it's potentially much broader in terms of application. That causes some difficulty because it's hard to identify precisely who all those, a broader range of employees, might be. I think we have a reasonable handle on who the employers in rescue might be, at least within our membership, to some degree. But what we've sought from the union is and the union has just talked about it in the intention to revisit the terms of the award based on the industry. Who are all the employees in the industry you intend to cover; because if it's just rescue work then our interest is potentially much narrower. But I am not sure that the wording is such that it only captures rescue work. It appears to capture anyone who has certain qualifications and they happen – well, that's it.

PN36

THE DEPUTY PRESIDENT: There's no provision that I noticed that confined it to rescue work.

PN37

MR FERGUSON: No, there's not. They have sought an occupational award and not even an occupational award which is limited to a narrow range of activities. It seems to be engaged in anyone who has certain skills and works in a helicopter undertaking transportation of passengers. So you have the bizarre outcome that they're seeking an award that, for example, has a fitness allowance of almost $1000, and an allowance to cover the cost of things like wetsuits and so forth or anyone who happens to work in a helicopter. I don't want to drift into the terms of the substantive award, but the first cause we have is it's hard for us to identify who in our membership has an interest in this award when it's potentially much broader than the AMWU had foreshadowed, and are potentially seeking to cover. If it was an ‑ ‑ ‑

PN38

THE DEPUTY PRESIDENT: Are helicopter pilots covered by any award at present?

PN39

MR FERGUSON: I couldn't be certain of that. Mr Nguyen probably can advise. I think there is an award that potentially covers them. I had been thinking about helicopter crew. Mr Nguyen might be able to help you though.

PN40

MR NGUYEN: I understand from the Pilots Union that the Air Pilots Award would cover helicopter air pilots.

PN41

THE DEPUTY PRESIDENT: You said last time at paragraph 10 that they wouldn't be covered by any award currently aside from potentially the Miscellaneous Award, was what you said. Is that right or is that wrong?

PN42

MR NGUYEN: I think – just so I can understand the question, are you asking about the helicopter pilots, or the helicopter air crew?

PN43

THE DEPUTY PRESIDENT: I'm asking about the persons referred to in your coverage proposal.

PN44

MR NGUYEN: Yes. In terms of the helicopter air crew we say that there's not another modern award that would be applicable aside from the Miscellaneous Award. Sorry, I mustn't ‑ ‑ ‑

PN45

THE DEPUTY PRESIDENT: Say that again? Could you say that again?

PN46

MR NGUYEN: In terms of the helicopter air crew, I apologise I must have misheard the question. I thought you were asking about the pilots. The air crew are not covered by any other award as far as we understand except for potentially the Miscellaneous Award.

PN47

THE DEPUTY PRESIDENT: So pilots are covered by the Pilots Award you think?

PN48

MR NGUYEN: That's right. We propose to exclude employees who are covered by the Pilots Award in 4.2(c).

PN49

THE DEPUTY PRESIDENT: So you're only going to seek to cover the air crew of helicopters?

PN50

MR NGUYEN: That's correct, your Honour.

PN51

THE DEPUTY PRESIDENT: And they're not covered by any award you think, other than possibly the Miscellaneous Award; is that right?

PN52

MR NGUYEN: That's correct, your Honour.

PN53

THE DEPUTY PRESIDENT: Who are these employers? Who are they? And it's not confined to rescue, is it?

PN54

MR NGUYEN: The reason why we say that it cannot be confined to rescue is because in the industry rescue crew persons are required to work with a fully qualified aircrew person, so if you had an award that only applied to a rescue crew person it would be applicable to essential – like, the base qualification for the occupation. So once someone is qualified as a rescue crew person then they obtain further qualifications which lead them to become an air crew person. Air crew persons can operate in a helicopter alone without supervision, whereas rescue crew persons must operate with a fully qualified air crew person supervising them, and then the ‑ ‑ ‑

PN55

THE DEPUTY PRESIDENT: So if it's not the confined to rescue the AiG has asked who are these employers? Who are they?

PN56

MR NGUYEN: The employers include – a lot of the work is through service contract arrangements so some of the ‑ ‑ ‑

PN57

THE DEPUTY PRESIDENT: Does that include mining and agriculture and ‑ ‑ ‑

PN58

MR NGUYEN: The helicopter service providers can work across a range of different industries including mining, the health industry, as well as what people might see in a day-to-day at sort of beach and surf life rescue, but it can also be in other areas such as, for example, mine transportation and in regional health services.

PN59

THE DEPUTY PRESIDENT: Agriculture?

PN60

MR NGUYEN: It's not the intention that it would – I think there are classifications which may cover pilots operating helicopters that only perform crop spraying, but those pilots wouldn't be covered by this award.

PN61

THE DEPUTY PRESIDENT: Because pilots are excluded? Yes.

PN62

MR NGUYEN: That's right.

PN63

THE DEPUTY PRESIDENT: So where are we at, then?

PN64

MR NGUYEN: I think there's going to be ‑ ‑ ‑

PN65

THE DEPUTY PRESIDENT: Are you asking for directions or what are you doing? What are you asking for?

PN66

MR FERGUSON: Could I raise one additional issue perhaps?

PN67

THE DEPUTY PRESIDENT: All right.

PN68

MR FERGUSON: Just before we get to that. The first issue which colours at the level of engagement and the nature of engagement is this coverage issue, and it's frustrating that we can't seem to get an indication of any employers outside of rescue services specifically who the union have in mind, and it seems to me that they're going to have to inform the Commission as to who these employers might be to get this claim up. But putting that aside our next issue is we need certainty around the terms of the instrument that they're seeking in order to advance this.

PN69

Even within just the narrow range of rescue field we have members with a relevant interest. The level of engagement with those members or their interest will be dependent on the final terms of the instrument sought, and we have engaged with them, but it's difficult to get any clear instructions around this or a position on it while we have uncertainty from the union as to what exactly those terms might be. As you'd appreciate there will be work that has been undertaken in terms of assessing the claim and working out the potential impact of the claim.

PN70

We can't undertake that work while the union is still saying, "Well, we might change our proposal based on further consultation with members", in this unknown industry, which means we can't do anything meaningful on this at the moment, which is ‑ ‑ ‑

PN71

THE DEPUTY PRESIDENT: When you see the final submissions and a draft award attached you'll know where you stand, won't you?

PN72

MR FERGUSON: That's right. Which is why we were suggesting though that given they've been now proposing this for years that they should be in a position to advance that proposal initially for the draft award given that this isn't a party/party claim. There will then be the opportunity for the community generally to assess the claim that is being mounted at an early stage. They could then put submissions on in support of it. I appreciate that there to a degree that it can be cured later on but I can't sensibly say to you that we'll only need X number of months to respond until we know the claim, and that is not being cute. The difficulty is that is the only point at which we can vehemently engage with people, and we don't even know the extent of that engagement that is required at the moment because of the breadth of ‑ ‑ ‑

PN73

THE DEPUTY PRESIDENT: I suppose one point you could make, if the time hasn't been sufficient, is just that. You could say the time hasn't been sufficient.

PN74

MR FERGUSON: That's right. We could make an application for an extended ‑ ‑ ‑

PN75

THE DEPUTY PRESIDENT: You could do a range of things.

PN76

MR FERGUSON: Yes.

PN77

THE DEPUTY PRESIDENT: That might be one of them. There's a whole range of possibilities. I can't anticipate what the award would look like. I can't anticipate what your reaction will be, but prima facie there's probably no problem with them drafting an award in, say, a month and putting a submission in, I don't know, 10 weeks or something, and then you look at that and you'd be given a certain period of time, say, 10 weeks, whatever, and if it's not enough I suppose that's the first point you'd make for whatever.

PN78

MR FERGUSON: Yes. That's right. I don't wish to make this utterly difficult because our level of interest will depend on what the terms are, and it may evaporate.

PN79

THE DEPUTY PRESIDENT: I can't see why they would pursue rescue specific provisions for non-rescue helicopter air crew, which I think is the point you made, isn't it?

PN80

MR FERGUSON: It seems a little battling, but it seems what they intend to do, and we will then have to go through ‑ ‑ ‑

PN81

THE DEPUTY PRESIDENT: We'll see. They may not. They may or they may not. We'll see about that.

PN82

MR FERGUSON: That's right. I would just be anxious that the timeframes that are forwarded notionally in the directions be not overly tight for us because we will have to go through a process of engagement before we even get to the preparation of the response.

PN83

THE DEPUTY PRESIDENT: All right.

PN84

MR FERGUSON: Obviously we will require liberty to apply for an amendment to those in the event that there is something that flows from that engagement. So that underpins what we were thinking. We were trying to be productive and advance the matter and suggest, look, there might be parties that come forward in support of this application once they know what the term is, but that's the way, in these sorts of proceedings, we've generally tried to ensure it unfolds. But, look, if the union need a period so be it, as long as we're not prejudiced as to the final outcome and we get a sufficient period to engage with our membership and respond we're content.

PN85

THE DEPUTY PRESIDENT: All right. Thank you for that. So AMWU, how long do you need? Your proposal, as I understand it, is to provide a draft award and a submission at the same time; is that right?

PN86

MR NGUYEN: That's correct, your Honour.

PN87

THE DEPUTY PRESIDENT: How long do you need to do that?

PN88

MR NGUYEN: We would request that 10 weeks as you'd indicated earlier at a minimum.

PN89

THE DEPUTY PRESIDENT: What does that take us to?

PN90

MR NGUYEN: From today it would take us to mid-September.

PN91

THE DEPUTY PRESIDENT: Mid-September? Thirteenth September. So by 13 September you'll provide a final draft award and a written submission and evidentiary material supporting your award; is that correct?

PN92

MR NGUYEN: That's correct, your Honour.

PN93

THE DEPUTY PRESIDENT: So we could give the employers, what, 10 weeks?

PN94

MR FERGUSON: Yes.

PN95

THE DEPUTY PRESIDENT: It should be enough but it may not be.

PN96

MR FERGUSON: Yes, 10 weeks accompanied by liberty to apply.

PN97

THE DEPUTY PRESIDENT: Yes. Yes, accompanied by liberty. Obviously there will need to be grounds for, you know, variation in the sense that I'd assume you'd make your applications in good faith.

PN98

MR FERGUSON: Yes. I say now I consent to the 10 weeks because I see the utility in the timetable being notionally set down because there are parties beyond us that may have an interest in this, and depending on what we see our interest may evaporate.

PN99

THE DEPUTY PRESIDENT: Indeed.

PN100

MR FERGUSON: That is why I say liberty to apply.

PN101

THE DEPUTY PRESIDENT: All right.

PN102

MR FERGUSON: But ‑ ‑ ‑

PN103

THE DEPUTY PRESIDENT: So we'll put liberty to apply in.

PN104

MR FERGUSON: Yes. Then not further timetable the matter, because I think if we start to lock in any tentative dates or anything like that and your Honour may be in no position to do that ‑ ‑ ‑

PN105

THE DEPUTY PRESIDENT: What's 10 weeks after the – 22 November is 10 weeks after 13 September. So we'll get a written submission which may well be a written submission plus evidentiary material, or it may be something else, depending on the content of the award.

PN106

MR FERGUSON: Yes. These are the directions that contemplate, you know, comprehensive submissions and all written evidence to be brought.

PN107

THE DEPUTY PRESIDENT: All right. With liberty to apply?

PN108

MR FERGUSON: With liberty to apply, and in the event that we envisage before that that that wouldn't be appropriate we would raise it before that in all likelihood.

PN109

THE DEPUTY PRESIDENT: I think we'll leave it.

PN110

MR FERGUSON: It's a matter for us, all the parties, of course, but we don't (indistinct) it.

PN111

THE DEPUTY PRESIDENT: What do you say about that AMWU? Are you happy that we don't do any further directions after that; after 22 November?

PN112

MR NGUYEN: In terms of what happens after that I think, at a minimum we would be requesting that there should be time afforded to the applicants to provide a right of reply because we anticipate that there will be arguments raised in the Ai Group's submissions which no one would have ever heard of before, and that those arguments should be met before it comes to a hearing.

PN113

MR FERGUSON: I'll take that as a compliment, but perhaps what we should just do is list it for a further conference or mention so that we can then decide what the appropriate course of action is because there may be no submissions.

PN114

THE DEPUTY PRESIDENT: Indeed. So the AiG proposal then is this: that it's as we discussed, 10 weeks/10 weeks with liberty to apply. We then have a direction hearing. Is that what you're suggesting?

PN115

MR FERGUSON: Yes. I think that ‑ ‑ ‑

PN116

THE DEPUTY PRESIDENT: What, about two weeks later or something?

PN117

MR FERGUSON: Yes, that should allow the union an opportunity to consider anything we put.

PN118

THE DEPUTY PRESIDENT: Would that be all right, AMWU? Two weeks later we have a directions hearing?

PN119

MR NGUYEN: I think I would feel more comfortable if we did actually set down a date for the reply submissions so that we could begin working towards that.

PN120

THE DEPUTY PRESIDENT: We don't know whether they'll agree or not.

PN121

MR NGUYEN: To our proposal for an award?

PN122

THE DEPUTY PRESIDENT: Yes. They said they may not put a submission, I think. I'm sure they'll correct me.

PN123

MR FERGUSON: Yes. No, it depends on what the final form of the proposal is and what the reaction of our membership is. So it seems a little bit premature to be setting dates for reply submissions when we haven't even got to that. We don't know what the size of the case mounted by other parties are going to be. I'm just trying to be efficient because otherwise we'll set this timetable down and we could just be delaying the matter for a number of weeks more unnecessarily. It may be the AMWU is just ready to go.

PN124

MR NGUYEN: I think if that's the case then, you know, if there are no submissions to reply to then it would be possible to schedule the hearing.

PN125

THE DEPUTY PRESIDENT: Have a hearing.

PN126

MR FERGUSON: Yes. And that's why I'm suggesting have a directions hearing shortly after the reply date.

PN127

MR NGUYEN: I think that's going to be unlikely though. Given the discussions of the parties so far there's been very strong opposition to any new award covering these people so I don't agree with the characterisation that it's likely ‑ ‑ ‑

PN128

THE DEPUTY PRESIDENT: All right. So you want a reply date by when?

PN129

MR NGUYEN: At least six weeks, your Honour.

PN130

THE DEPUTY PRESIDENT: So six weeks after 22 November is what?

PN131

MR NGUYEN: It's coming in to January.

PN132

MR FERGUSON: That's 3 January.

PN133

THE DEPUTY PRESIDENT: So you're going to be working over the Christmas/New Year period. Sorry about that. That was your proposal.

PN134

MR NGUYEN: Yes. I mean, if that's what it has to be, then that's what it has to be.

PN135

THE DEPUTY PRESIDENT: I don't expect you to work Christmas Day or New Year's Day.

PN136

MR NGUYEN: Perhaps if we can push it out to Friday, 5 January.

PN137

THE DEPUTY PRESIDENT: 5 January. All right. Then what do you want to do after that? Set down hearing dates in February or ‑ ‑ ‑

PN138

MR NGUYEN: After that point we're in the Commission's hands in terms of a further mention and then hearing.

PN139

THE DEPUTY PRESIDENT: All right.

PN140

MR FERGUSON: I think further mention. I'm not in a position to start coming to dates for hearings and I think the reality is if we end up having an interest it may be that we can accommodate this timetable or may not. I don't know without getting instructions, because it may be a very narrow but significant interest, and I need to talk to that member.

PN141

THE DEPUTY PRESIDENT: All right. So the dates I've got is this, for far; we've got 13 September 2017 the union to provide a final award plus full written submissions and evidentiary materials in support; 22 November 2017 the AiG or any other party supporting or opposing to provide full written submissions and evidentiary material in support with liberty to apply.

PN142

MR FERGUSON: It seems an odd outcome if other parties supporting filed on the same day as those as opposing.

PN143

THE DEPUTY PRESIDENT: Are there any other parties who support, or is it just you two?

PN144

MR NGUYEN: Your Honour, we anticipate that the Australian Workers' Union may also support a variation of an award for helicopter air crew persons.

PN145

THE DEPUTY PRESIDENT: Can they do it at the same time as you?

PN146

MR NGUYEN: I will consult with them.

PN147

THE DEPUTY PRESIDENT: It would make sense.

PN148

MR NGUYEN: I think that it would be preferable if the union's worked together but unfortunately there's no one from the AWU here. But the last conversation I had with them was that we did intend to work together, but unfortunately I don't have confirmation of that from Ms Walsh from the AWU.

PN149

THE DEPUTY PRESIDENT: Put it this way, if I put a date after you put submissions for them to put submissions that would push back potentially the AiG reply and delay it further. Do you see?

PN150

MR NGUYEN: I think we can proceed with these directions and if the AWU feel that that they want to see our submissions first they can apply for a variation to the directions. That may be the best way, but for the AMWU we can commit to the Commission that we will engage with the AWU and hopefully we'll be putting something in together with them.

PN151

MR FERGUSON: What about if we just had other parties supporting to file one week later?

PN152

THE DEPUTY PRESIDENT: Yes. Why don't we don't do that?

PN153

MR NGUYEN: Okay.

PN154

THE DEPUTY PRESIDENT: At the same time or one week later. So one week after 13 September is 20 September. I mean, you're going to be coordinating I hope, to some degree, those who support you.

PN155

MR NGUYEN: Yes, we will, your Honour.

PN156

THE DEPUTY PRESIDENT: So they should be in a position to either put it at the same time or shortly after. So we're left then with 5 January 2018 is the last date. So what do we do after that?

PN157

MR FERGUSON: To list the ‑ ‑ ‑

PN158

THE DEPUTY PRESIDENT: I have a difficulty in January, so can we have a mention in early February?

PN159

MR FERGUSON: That would be suitable.

PN160

MR NGUYEN: Yes, your Honour.

PN161

THE DEPUTY PRESIDENT: We'll have a directions hearing early February. This is consistent with other awards, isn't it? It's not unique this sort of timetable?

PN162

MR NGUYEN: This matter is novel in the sense that we are seeking a new award to cover an occupation that hasn't had modern award coverage before, so I think there's no real standards.

PN163

MR FERGUSON: The timetable is not unique. The gap between the proponent of the claim and supporters is tighter than usual, but the range of support is perhaps likely to be narrower, and the matter should take no one by surprise. It's been on foot for years, so it may be suitable. I don't see any difficulty with this.

PN164

THE DEPUTY PRESIDENT: So we've got some draft directions, then. Anything else we need to do, or is that it?

PN165

MR NGUYEN: That's it, your Honour.

PN166

MR FERGUSON: That's it. The one point I will raise is the draft directions – because I just want to make sure I've heard clearly, I think the draft directions proposed by the AMWU were sort of directed towards a general abstract question about whether these people should be covered or not. As I understand it, the directions you foreshadowed were about a proposed award and submissions in support of and evidence or material in support of that proposed award. It's a claim that we're considering here, not ‑ ‑ ‑

PN167

THE DEPUTY PRESIDENT: Indeed.

PN168

MR FERGUSON: Yes.

PN169

THE DEPUTY PRESIDENT: A final version of the proposed award and full submissions in support including evidentiary material.

PN170

MR FERGUSON: Yes. Thank you.

PN171

THE DEPUTY PRESIDENT: Thank you very much for attending today. I'll issue directions on the basis that we've agreed. So thank you very much.

PN172

MR NGUYEN: Thank you, your Honour.

PN173

MR FERGUSON: Thank you, appreciate it.

ADJOURNED TO A DATE TO BE FIXED [12.05 PM]