PN1

(Audio malfunction)

PN2

JUSTICE ROSS: - - - by grouping. In this grouping, we're dealing (indistinct) noted at paragraphs 14 to (indistinct) of my statement of Sunday. They are also the applications which are referred (indistinct) statement of last Friday. So there are (indistinct), I broadly categories them as retail applications, that seek to extend the operation of Schedule X in the Fast Food Award, General Retail, Hair and Beauty and the Storage Services and Wholesale Award to extend the operation of the schedule from 30 June to 31 July.

PN3

If I can deal with that cohort first. Who do we have for the SDA?

PN4

MR A PARDO: May it please the Commission my name is Pardo, initial A. I appear for the SDA. With me is Mr Matthew Galbraith, also of the SDA.

PN5

JUSTICE ROSS: Thank you, Mr Pardo.

PN6

MR PARDO: Your Honour, if I might deal with all four at once for the sake of efficiency.

PN7

JUSTICE ROSS: Mr Pardo, I haven't finished taking the other appearances for that. So just hold on for a minute. Mr Millman for the NRA. Is that right?

PN8

MR A MILLMAN: Correct, your Honour.

PN9

JUSTICE ROSS: And Mr Booth for the Newsagents Associations. Is that correct? You may be on mute, Mr Booth. Bear with me for a moment.

PN10

Mr Booth are you there? No. Well, we will endeavour to get Mr Booth back. Is there anyone else with an interest in those four awards?

PN11

MR S BULL: Your Honour, it's Stephen Bull from the United Workers Union. I understand that we've lodged an application in relation to Storage Services.

PN12

JUSTICE ROSS: Yes. You have. All right. Thank you. We will deal with that one in that cohort as well. Anyone else (indistinct) what did you want to say?

PN13

MR PARDO: May it please the Commission. At the outset, your Honour, I just have to note that the line is quite bad. I occasionally miss significant portions of what you say.

PN14

But I will just briefly deal with all four, with the SDA's position. We just seek to amend our applications. We note that currently they say 31 July. We would just seek leave to amend that to 30 September, consistent with the ACTU position in the various other applications. We are in the Commission's hands, however, as to the mechanism by which we would effect that amendment.

PN15

JUSTICE ROSS: Well - - -

PN16

MR PARDO: We'd prefer if possible to - - -

PN17

JUSTICE ROSS: Yes. Let me deal with that now, Mr Pardo. I'd not be minded - I am not minded to grant leave to amend your application. You filed last week. You've only notified us now you want to amend it. All of the other parties have been on notice that you were seeking 31 July. So we will deal with the application on that basis. If, as you - as 31 July approaches, you wish to extend it to the 30th of September, then you could put an application into that effect.

PN18

MR PARDO: May it please the Commission.

PN19

JUSTICE ROSS: Anything further you wish to say?

PN20

MR PARDO: Not at this stage, your Honour.

PN21

JUSTICE ROSS: All right. Can I go to you, Mr Millman? What's the NRA's position in respect of the applications?

PN22

MR MILLMAN: Thank you, your Honour. The NRA would just like to register its support of the application by the SDA in this matter, with respect to the Hair and Beauty Award 2010 and the Fast Food Industry Award 2010, and the General Retail Award 2010.

PN23

JUSTICE ROSS: All right. Thank you. I am sorry, Mr Bull. I should have asked you is there anything you wanted to add in relation to the Storage Award?

PN24

MR BULL: We've made an application on the basis that Schedule X is extended to the 30 September.

PN25

JUSTICE ROSS: Have you? When did you make that?

PN26

MR BULL: That was yesterday - - -

PN27

JUSTICE ROSS: We are not dealing with that application today. There's been no- there's been insufficient notice of that application to any party that's had an interest. We are only dealing with the applications that were the subject of the - at the moment we are only dealing with the applications which were the subject of the statement on Sunday and the statement on Friday. It's those that were filed last week.

PN28

MR BULL: Okay. Look, so I understand the SDA has lodged an application in relation to - - -

PN29

JUSTICE ROSS: It has?

PN30

MR BULL: We would support their application which has the lesser duration.

PN31

JUSTICE ROSS: All right.

PN32

MR BULL: And it obviously makes it easier to (indistinct) which adds a month or so.

PN33

JUSTICE ROSS: Yes. All right. Thank you, Mr Bull. Is Mr Booth on the line now?

PN34

MR I BOOTH: Yes, your Honour. And I do apologise. We had a communication problem.

PN35

JUSTICE ROSS: No problem, Mr Booth. We've heard from the SDA and the United Workers Union indicating their position that they seek to extend Schedule X until 31 July for the Hair and Beauty, Storage Services Award, Fast Food and General Retail Award and Mr Millman on behalf of the NRA has indicated that the NRA supports those applications. What did you wish to say about those applications?

PN36

MR BOOTH: We support the application and would agree that appendix X in its entirety is extend for the period stated in the application.

PN37

JUSTICE ROSS: All right.

PN38

MR BOOTH: And we would foreshadow that if the SDA or other parties, including ourselves sought to vary the award for extended term we would more than likely support that.

PN39

JUSTICE ROSS: All right. Thank you, Mr Booth. Given the position of all of the parties, I will indicate rather than adjourning to consider the issue, I will indicate my position in respect of the proposed extension to 31 July for these four awards and invite my colleagues, Clancy DP and Bissett C to indicate their position. From my perspective, I am satisfied that the extension is necessary to ensure that these awards achieve the Modern Awards objective and I would grant each of the four applications and would publish reasons later. Deputy President Clancy?

PN40

DEPUTY PRESIDENT CLANCY: Thank you, your Honour. I agree with that outcome and that course of action. Thank you.

PN41

JUSTICE ROSS: Thank you. Commissioner Bissett?

PN42

COMMISSIONER BISSETT: Thank you, your Honour. I agree with the proposed variation and the course of action.

PN43

JUSTICE ROSS: All right. Well, that deals with those four. Can we now turn to the next group of awards which is set out at paragraph 15 of the statement of Sunday. They are the Aboriginal Community Controlled Health Services Award, the Aged Care Award, Ambulance and Patient Transport Award, Health Professionals and Support Services, the Medical Practitioners Award, the Nurses Award, Pharmacy Award, the Social, Community, Home Care and Disability Services Award and the Supported Employment Services Award.

PN44

In respect of each of these matters, they're the subject of applications by various parties, but in this case they seek to extend the operation of the schedule until further order of the Commission or other order in matter AM2020/13, which is the Paid Pandemic Leave claim.

PN45

Can I go through the people that (indistinct) having an interest in this matter? There's Mr Clarke from the ACTU? Mr Clarke?

PN46

MR T CLARKE: Yes, your Honour. Yes, your Honour, I'm on the line. Yes.

PN47

JUSTICE ROSS: We have Ms Liebhaber from the HSU.

PN48

MS R LIEBHABER: Yes, your Honour. I am on the line as well.

PN49

JUSTICE ROSS: Thank you. Mr Bull from the UWU?

PN50

MR BULL: That's correct, your Honour.

PN51

JUSTICE ROSS: Ms Wischer from the ANMF?

PN52

MS K WISCHER: Yes, your Honour.

PN53

JUSTICE ROSS: Ms Moussa from the VAU?

PN54

MS A MOUSSA: Yes, your Honour. Thank you.

PN55

JUSTICE ROSS: Ms De Vecchis from ASMOF.

PN56

MS M DE VECCHIS: Yes, your Honour.

PN57

JUSTICE ROSS: Ms Knight and Mr Robson from the ASU.

PN58

MS J KNIGHT: Yes, your Honour. Mr Robson has had to leave the hearing.

PN59

JUSTICE ROSS: Thank you. If we can deal with those, are there any employers with an interest in any of those matters? No. We indicated in the statement on Friday that anyone who wished to be heard in respect of these matters was to contact my chambers by 12 noon - I'm sorry, wishing to attend the hearing was to advice my chambers by 12 noon Monday, yesterday, and we haven't received any such advice.

PN60

Mr Clarke, do you want to - I note you are appearing on behalf of a number of these parties. What did you want to say in relation to this application?

PN61

MR CLARKE: Well, firstly your Honour, before actually filing the applications we gave notice of them to the Ai Group and ACCI, the Australian Federation of Employers and Industries, the Private Hospital Association, Leading Aged Care Services Australia, Aged and Community Services Australia, The Pharmacy Guild of Australia, the New South Wales Chamber - the Business Chamber and ABI who were the parties participating in the other proceedings in relation to the leave entitlements.

PN62

JUSTICE ROSS: Yes.

PN63

MR CLARKE: Overtime and leave entitlements in relation to these awards. We see ourselves as in a position of seeking what's hopefully a very brief extension to what's - to the existing Schedule X. And it's not an extension pending a trial. It's an extension pending the delivering of reasons by a Bench that's already reserved on an application which that Bench has indicated will be determined as quickly as possible. I'd say it's a matter of weeks rather than months before the decision is handed down.

PN64

The reason I - in order to sort of characterise it as an extension of existing interim condition relates to the history of how these matters were brought forward. The position of the ACTU and the unions involved in these nine awards from the outset was to support what the Commission itself described as a quick response in terms of the unpaid leave and annual leave flexibility, while at the same time wanting to agitate the matter of paid leave for the workers covered by those nine awards and that was the position we stated and was attributed to us and our affiliates at paragraphs 53 to 58 of the initial decision in relation to Schedule X.

PN65

The opportunity to ventilate the additional matter of paid leave was provided. There was no decision in the subsequent statement the following day. The first conference occurred on 14 April less than a week after the Schedule X decision was made. We filed detailed applications only two days later which seek to vary both the duration and the terms of Schedule X. And we put the whole issue of what leave entitlements ought to apply to these workforces in connection with COVID-19, within the ambit of the issues that might be decided by the Commission in those (indistinct) proceedings, having regard to section 599 of the Act, which is the sort of relief not limited to claim provision.

PN66

JUSTICE ROSS: Yes.

PN67

MR CLARKE: So in respect to the form of the order that we proposed in that (indistinct) proceeding, the standard issue that's before that Bench is in relation to what are the appropriate COVID-related leave arrangements to these work forces having regard to the evidence that was put in that proceeding and is what the unions are proposing a better solution? And no employer party in those proceedings raised any issue with our characterisation of the ambit in the hearing last week.

PN68

In the first conference we were asked to provide information on award coverage and proposed directions for the hearings of the claims in order to get a further conference statement. We got that done in less than a fortnight. The next conference was only two days later at which directions were issued and agree on 1 May and within 10 days after that we'd filed 34 witness statements, including three expert reports and the next directions were on 13 May when the matter was fixed for trial on 25th and 25th of June, which happened with the (indistinct) material to (indistinct) 17 June and some of it did and some of it didn't, but that's by the by.

PN69

What flows from that, we say, is we can't be criticised for failing to act promptly to have the COVID-related leave rights of these workers covered by these awards determined. We might have been a bit slow in filing these particular applications for the extension more promptly than we did when it became apparent to us there was no prospect that the other proceeding could have reached a conclusion before the expiry of Schedule X in its current terms.

PN70

Although, in our defence, I'd say as I said before, we put the other parties on notice prior to the hearing that the extension applications were made and we did make the submission on the full ambit of the issue before that other Bench, before that Bench and that was not contested.

PN71

We are really merely seeking to preserve the status quo until a Bench that's already reserved hands down its decision and that's one side, if you like, of the balance of convenience issue. Other aspects of the balance of convenience (indistinct)are that the existing provisions of Schedule X don't cost the employer anything. The existing provisions of Schedule X weren't opposed to start with.

PN72

The existing provisions of Schedule X have the utility that - in the sense that they save people's jobs and for some people allow them access to some income, if they're required to quarantine or self-isolate and the other employers that are concerned in those proceedings haven't raised their heads today, notwithstanding having been put on notice by both us in advance and by the Commission.

PN73

We'd say that prima facie case of the sufficient likelihood that these workers will be entitled to some form of leave entitlement related to the pandemic, quite clearly the pandemic is not over. It's still circulating in the community. The workers covered by these awards are not only among those people who might get it, but they are working in environments where we say they are more likely to get it. They are more likely to spread it. And they are more likely to spread it to people who are more likely to get a more severe form of the illness, if they get it - if they are to contract it.

PN74

So that needs to be borne in mind in adding an extra dimension to the invidious choice of some workers might face as is referred to in paragraph 68 of the (indistinct) position. It's not just about whether they come to work when they're unwell and what flows from that, it's that what flows from that might be a more serious illness among the aged, the unwell, people in indigenous groups and people with (indistinct) conditions and people with chronic (indistinct) such as those (indistinct) and there was obviously an amount expert evidence in the other proceeding that for obvious reasons I am reluctant to put the same expert evidence before two different Benches as the same time. And I did circulate some material a bit earlier in the day from the Department of Health - - -

PN75

JUSTICE ROSS: Yes.

PN76

MR CLARKE: - - - that relates to those issues, including the continued requirements in relation to self-isolation and quarantine.

PN77

We say there's a fundamental need to continue to fill the regulatory gaps identified in paragraphs 68 and 69 of the decision that's going to exist beyond today and that sort of (indistinct) findings outlined in paragraphs 118 to 133 of the decision are (indistinct) now as when they were determined 12 weeks ago.

PN78

I can only reiterate that the extension we seek is a very brief one, to run no longer than final orders being made in the other proceedings. We have not nominated a date, because, well, there's no utility in guessing and, as I've referred to, the ambit of was before the other Full Bench is really how, if at all, should Schedule X be different in these awards from what it takes from other awards.

PN79

We suggest that an order from this Bench that trespassed across that issue would be inappropriate in the circumstances and it would cut across the issues properly before that other Bench.

PN80

The 31 July date referred to in our draft determination (indistinct) for the preservation of leave which started before a particular date, and so that's subclause (d) of X.2.1 and subclause (c) of X.2.2 is unfortunately just a guess. Perhaps you're in a better position, your Honour, than I am or perhaps (indistinct) Clancy DP to set a date having regard to when a decision in the other matter is likely.

PN81

Are But the critical point for us is if you extend beyond the further or other order provisions which we've stated inevitably leads to the situation where you affect the determination in the other proceeding about what the extant position is and that may lead to the other Bench (indistinct) called on to hear further submissions and ultimately delay their determination. That's all I have to say in relation to those matters to your Honours and Commissioner.

PN82

JUSTICE ROSS: All right. Thank you, Mr Clarke. Did anyone else wish to add anything? No. Well, we will adopt the same approach as in the general retail matters. I will express my decision and then invite Clancy DP and Bissett C to indicate their position.

PN83

I am satisfied that the variations sought and the extension sought is necessary to ensure that these awards achieve the modern awards objective. I note the interaction with the other proceedings and the only issue upon which I would not wish to express a view is Mr Clarke's submission that in the other proceedings the unions have demonstrated a prima facie case for variation for obvious reasons I don't need to nor do I wish to express a view about that proposition.

PN84

But for those reasons I would grant the variations in the terms proposed in respect of the various health centre awards. Clancy DP?

PN85

DEPUTY PRESIDENT CLANCY: Thank you, your Honour. I agree with what your Honour has just put forward. That is I am satisfied the variations should be made and the extension granted in the terms made in the application. Thank you.

PN86

JUSTICE ROSS: Thank you. Bissett C?

PN87

COMMISSIONER BISSETT: Thank you, your Honour. I concur. Thank you.

PN88

JUSTICE ROSS: All right. Well, we will issue the variation determinations shortly. Can I move to the other two applications that were the subject of the statements on Friday and Sunday? The first is in relation to the Live Performance Award. This is an application by Live Performance Australia which seeks to extend the operation of Schedule X until 30 June 2022 and who do we have with an interest in that matter. Mr Hamilton?

PN89

MR D HAMILTON: Yes, your Honour. I am here.

PN90

JUSTICE ROSS: And do we have a representative from the Media and Entertainment Alliance?

PN91

MR HAMILTON: No, your Honour. Your Honour, just a preliminary point, I notice this morning with the running sheet that the Media and Entertainment Alliance had made application to vary the Live Performance Award in application AM2020/79, which is in the group 3 awards.

PN92

JUSTICE ROSS: Yes.

PN93

MR HAMILTON: Upon noticing that I emailed the MEAA person that was responsible for that application and he was unaware of our application even thought I mentioned I'd emailed MEAA on 24 June saying that we requested their support.

PN94

To cut a long story short, we've had correspondence just now and MEAA have indicated that they would support an extension for 12 months. I am not sure whether you wanted to join that matter with this matter or how to proceed with that other matter.

PN95

JUSTICE ROSS: I can take it on the basis of that there is a consent position with the major union to extend the operation of Schedule X to 30 June 2021. Is that what you're putting?

PN96

MR HAMILTON: That's correct, your Honour.

PN97

JUSTICE ROSS: Right. And you're content to essentially have your application determined on that basis.

PN98

MR HAMILTON: That's correct, your Honour.

PN99

JUSTICE ROSS: All right. Well, Mr Hamilton, I indicate I will express my decision in respect of that matter and then invite the Deputy President and the Commissioner to express their view.

PN100

Having regard to the significant impact of the restrictions put in place to contain the COVID-19 virus, the significant impact on the arts and recreational services sector, I am satisfied that the variation of the award to provide that Schedule X continue to operate until 30 June 2021, that such a variation is necessary to ensure that the award achieves the modern awards objective. And I would issue a variation determination to that effect.

PN101

Clancy DP?

PN102

DEPUTY PRESIDENT CLANCY: Thank you, your Honour. I confer. I concur, sorry.

PN103

JUSTICE ROSS: Bissett C?

PN104

COMMISSIONER BISSETT: Thank you, your Honour. I concur.

PN105

JUSTICE ROSS: All right. Thank you. Well, Mr Hamilton, that concludes that matter and it will also effectively deal with the application by me to which you have referred to.

PN106

MR HAMILTON: Thank you, your Honour. Just clarification on the MEAA application, they also in that application seek to vary two other awards, apart from the Live Performance Award.

PN107

JUSTICE ROSS: They do. With those applications, because there has been insufficient notice, we will come to those in group 3.

PN108

MR HAMILTON: And, your Honour, just on that we will have a interest in the Broadcast Award.

PN109

JUSTICE ROSS: Yes.

PN110

MR HAMILTON: Yes. Because of the late notice of that application I haven't registered my interest in that matter in the group.

PN111

JUSTICE ROSS: No, that's fine, Mr Hamilton. We won't be determining those matters this afternoon. We will just be dealing with a process for their determination. All right?

PN112

MR HAMILTON: Thank you, your Honour.

PN113

JUSTICE ROSS: Can I go next to the Air Pilots Award, which is an application by Flight Training Adelaide to extend the operation of Schedule X in that award until 31 December this year. Do I have Mr Mules on the line to deal with that matter?

PN114

MR G MULES: Yes, your Honour.

PN115

JUSTICE ROSS: All right. Is that correct? You are seeking to extend the operation to 31 December, having regard to the particular impact of the restrictions put in place to contain the virus on the aviation sector?

PN116

MR MULES: Yes. That's right. Just given the - I mean Aviation has taken a real hit, especially the airlines, but because we are in the training part of the aviation sector it hasn't really hit us yet. A lot of our students are international students and our business is going to take, yeah, a significant hit over the next six-month period.

PN117

JUSTICE ROSS: All right. Thank you, Mr Mules. Does anyone else wish to be heard in relation to this application? No. I note that interested parties were given an opportunity to advise my chambers by 12 noon yesterday if they wished to be heard and other than Mr Mules, we haven't heard from any other interested parties.

PN118

I'll indicate my decision in respect of the matter and then I would invite Clancy DP and Bissett C to indicate their decision.

PN119

Having regard to the particular impact of the restrictions put in place to contain the COVID-19 virus, the particular impact on the Aviation sector, I am satisfied that the extension of the operation of Schedule X until 31 December 2020 is necessary to ensure that the Air Pilots Award achieves the Modern Awards objective. And I would grant the application in the terms sought. Clancy DP?

PN120

DEPUTY PRESIDENT CLANCY: Thank you, your Honour. I concur.

PN121

JUSTICE ROSS: Bissett C?

PN122

COMMISSIONER BISSETT: Thank you, your Honour. I concur.

PN123

JUSTICE ROSS: All right. Thank you. Well, Mr Mules, we will issue a variation determination granting the extension later on this afternoon. Thank you for your application and for your interest.

PN124

MR MULES: Thanks, your Honour.

PN125

JUSTICE ROSS: Can I go to the range of matters which have been listed in group 3 in the running sheet? These are matters in respect of which applications were made yesterday and about which interested employer organisations have not had an opportunity to participate in the hearing or to express a view in relation to the application.

PN126

There are applications by APESMA. Do we have Ms Anthony on the line? I think we're taking a short adjournment now and my associate will get the group 3 participants on the line. Thank you.

SHORT ADJOURNMENT [1.57 PM]

RESUMED [2.14 PM]

PN127

JUSTICE ROSS: My apologies for the delay. This grouping deals with a number of Schedule X extension applications which were filed yesterday afternoon. Can I briefly go through each of the cohorts and then check who I have on the line in respect of each one? There is a group - a series of applications by APESMA. The Airport Employees Award, Architects Award, Animal Care and Veterinary Services, Local Government, Electrical Power, Professional Employees, State Government Agencies Award and the Water Industry Award. Do I have Ms Anthony on the phone in relation to those matters?

PN128

MS M ANTHONY: I am, your Honour.

PN129

JUSTICE ROSS: Thank you. Did anyone else have an interest in any of those awards?

PN130

MR B FERGUSON: Yes, your Honour. Mr Ferguson.

PN131

JUSTICE ROSS: Thank you, Mr Ferguson. Anybody else?

PN132

MR L IZZO: Your Honour, Mr Izzo, representing ABI and also ACCI. ABI certainly have interest in those awards.

PN133

JUSTICE ROSS: It's likely that ABI and Ai Group will have an - I'll take it that you've got an interest in each of the cohorts that I come to to save you announcing an appearance in each one. All right?

PN134

MR FERGUSON: Thank you, your Honour.

PN135

MR IZZO: Thank you.

PN136

JUSTICE ROSS: There are then a number of applications by the United Workers Union. Mr Bull? You are on the line for that?

PN137

MR BULL: That's correct, your Honour.

PN138

JUSTICE ROSS: And a number of application by the Australian Services Union. Ms Knight, are you there for the ASU?

PN139

MS KNIGHT: Yes, your Honour. I am here.

PN140

JUSTICE ROSS: And there are a number of applications by the AWU and Mr Duncalfe, you're on the phone for that?

PN141

MR Z DUNCALFE: Yes, your Honour.

PN142

JUSTICE ROSS: There are applications to vary three awards by the CFMMEU manufacturing division. Ms Wiles?

PN143

MS V WILES: Yes. I am here. Thank you, your Honour.

PN144

JUSTICE ROSS: And there is an application to vary three awards by the Media Entertainment and Arts Alliance. Mr Chesher?

PN145

MR M CHESHER: Yes. I'm here, your Honour.

PN146

JUSTICE ROSS: Mr Chesher, can I deal with one of yours while I've got you?

PN147

MR CHESHER: Yes.

PN148

JUSTICE ROSS: The Live Performance Award, as a result of an agreement reached between MEAA and Live Performance Australia, that award was varied earlier today to extend the period of operation of Schedule X until 30 June 2021. All right?

PN149

MR CHESHER: Yes. That's correct.

PN150

JUSTICE ROSS: All right. Thank you. Can I make a general observation and then put an issue to each organisation in respect of the period of the extension which was sought in these cases? The first observation is that because of the time frame, a number of these applications weren't filed until quite late yesterday. And the range of employer interests in respect of these matters have not been given an opportunity to participate in the hearing or to express a view in respect of the particular applications.

PN151

So in relation to that observation what we would propose to do is to issue a statement indicating the nature of the variations sought and expressing a provisional view in respect of the variations and provide interested employers with an opportunity to comment on that provisional view and we would provisionally list it for hearing in the event that there was an opposition to any of the applications.

PN152

The second observation I'd make is that there is an overlap between the groups of applications. For example, at least three of the organisations seek to vary the Water Industry Award, but the nature of the extension that's sought is different in each case. The cohort by profession - by APESMA seek to extend the operation of Schedule X until further order as does the UWU. The ASU seeks to extend until 30 September as does the AWU and as does the CFMMEU Manufacturing Division and that's also consistent with MEAA's position.

PN153

In order to try and reconcile those issues, is there any opposition, if we were to express a provisional view regarding under variation of the operative date of the Schedule X in each of these awards such that the period of operation was extended to 30 September. In other words, we try and get some consistency with respect to this complete cohort of awards and express a view about the extension of the schedule to 30 September this year.

PN154

Is there any opposition to that course, firstly from you, Ms Anthony on behalf of APESMA?

PN155

MS ANTHONY: No, your Honour. And that would apply for all 10 awards that we have applied for the extension of the operation of Schedule X.

PN156

JUSTICE ROSS: Yes. That's right. Except that the Health Professionals and Supported Services Award has already been extended on a slightly different basis. It's been extended until there is a further order by another Full Bench which is dealing the various applications for (indistinct) Pandemic Leave. But with that exception, that's right.

PN157

MR CLARKE: If I may, your Honour, I think that's the case in relation to the Ambulance Award too.

PN158

JUSTICE ROSS: Yes. That's right. The Health Sector Awards have been extended on that basis. So are it would be the other awards that you deal with, Ms Anthony.

PN159

Can I go to you, Mr Bull? Do you have any objection to that course?

PN160

MR BULL: No objection, your Honour. But I would note that our application seeks to extend the Water Award to 30 September this year.

PN161

JUSTICE ROSS: I've got a note that your others seek to extend until further order. That might (indistinct).

PN162

MR BULL: I think - look, they were all done in similar terms. So unless there was a ghost in my computer they should all be 30 September.

PN163

JUSTICE ROSS: All right. And can I just confirm that you are content with that course, Mr Chesher?

PN164

MR CHESHER: Yes, I am. Your Honour.

PN165

JUSTICE ROSS: All right. Is there anything - if we were to adopt the course that I've indicated which would be that the statement by the Full Bench expressing the provisional view that the schedule X in each of these awards, be extended to 30 September this year and provide interested parties with an opportunity to comment on that and with a hearing only if there was any opposition and if there was no opposition then we would proceed to make the variation determinations in those terms.

PN166

Is there any party with any concern about that process or wishes to say anything about it? Can I go firstly - well, Mr Clarke, was there anything you wanted to say before we go to the individual unions?

PN167

MR CLARKE: No, your Honour. I only say, your Honour, that (indistinct) I noticed the other thing - I'm sorry, I spoke. Perhaps I shouldn't have.

PN168

JUSTICE ROSS: No, that's all right. Well, can I invite Ai Group and ABI to make any comment about that proposal?

PN169

MR FERGUSON: Mr Ferguson, your Honour. We are content with that proposal. It seems like a sensible course of action, except for one matter, if I can raise a query?

PN170

JUSTICE ROSS: Sure.

PN171

MR FERGUSON: We had intended to participate in the group 2 hearing, which I think there might have been some miscommunication. But what falls from that, in particular, there wasn't going to be a level of opposition advanced to the variation to the awards but for perhaps in relation to the extension sought. I'm just not sure where that entirely landed.

PN172

JUSTICE ROSS: You want to know where that ended up?

PN173

MR FERGUSON: Yes. Particularly so the Health - my concern there is if it was further order, I understand the other proceedings and I was involved in those, but obviously the application there was contested - - -

PN174

JUSTICE ROSS: No, no - - -

PN175

MR FERGUSON: - - - and so whether or not - yes.

PN176

JUSTICE ROSS: Well, it is to further order, but that's - Mr Clarke mentioned that he anticipated that would mean weeks rather than months and in the event that it creates any difficulty, Mr Ferguson, you can simply ask for the matters to be called back on and we can address that as the issue emerges.

PN177

MR FERGUSON: Yes.

PN178

JUSTICE ROSS: But we didn't put a particular date for the period of operation in those awards, because there was interaction with the other proceedings.

PN179

MR FERGUSON: Yes.

PN180

JUSTICE ROSS: We also, for your information, made it clear Mr Clarke had put the proposition that the unions had demonstrated a prima facie case in the other proceedings for paid leave. We made it clear that we weren't expressing any view about whether that was right or not.

PN181

In relation to the other matters, the retail matters - - -

PN182

MR FERGUSON: Yes.

PN183

JUSTICE ROSS: The four Retail Awards, the NRA supported the applications as did the Newsagents Association. We granted

PN184

MR FERGUSON: Yes.

PN185

JUSTICE ROSS: We granted those applications to extend the Schedule X to 31 July.

PN186

MR FERGUSON: Yes.

PN187

JUSTICE ROSS: We declined an application by Mr Pardo for the SDA to amend their application to make it 30 September, because interested employer parties had not been given sufficient notice of that proposed variation.

PN188

MR FERGUSON: Yes.

PN189

JUSTICE ROSS: In relation to Live Performance, there was an agreed position between Live Performance Australia and MEAA that the Live Performance Award Schedule X be extended until 30 June next year and in relation to the Air Pilots Award, we are very the award consistent with the application to extend schedule X to 31 December this year.

PN190

We took the position in relation to Live Performance and the Air Pilots for a longer period, having regard to the more substantial impact of the restrictions that have been put in place to contain the pandemic upon the Arts and Recreational Services sector and on an Aviation.

PN191

I think the issue about your attendance and ABI's arose because I think that you had assumed that you were a respondent to those matters when, in fact, the statement had said that if any party wished to be heard they were to notify my chambers by 12 noon on Monday. But in any event, given the position of non-opposition, it's no great mischief that that's where they - - -

PN192

MR FERGUSON: (indistinct) I appreciate that explanation and I think while we communicated with chambers we perhaps weren't as clear as we should have been in any event. The outcome that you've described, there is only one that may cause me concern, but it may not in terms of the period of operation and, you know, we can deal with that if it arises.

PN193

JUSTICE ROSS: Yes.

PN194

MR FERGUSON: In relation to the group 3 applications, the course of action you're proposing allows us an opportunity to deal with anything that arises in relation to the provisional view about the period of its operation, which is the area where I think there will be any concern it will be relating to that.

PN195

So the course of action you're proposing, your Honour, we think has merit.

PN196

JUSTICE ROSS: All right. Thank you, Mr Ferguson. Mr Izzo?

PN197

MR IZZO: Thank you, your Honour. Yes, I might also indicate that there was no opposition from either ABI or ACCI with respect to the extensions in relation to the group 2 or tranche 2 awards that have recently been varied. In relation to the third tranche of awards, we have no opposition to the approach that's proposed. So there's no issue in relation to either of my clients.

PN198

JUSTICE ROSS: All right. Thank you, Mr Izzo. Does any of the unions wish to say anything about the course of action that we propose? That is, to express a provisional view approving the extensions until 30 September this year and providing interested parties with an opportunity to comment? Is there any opposition to that proposal?

PN199

MR BULL: Your Honour, it's Stephen Bull from United Workers Union. Just to clarify, will there then be a period where there's no Schedule X in place?

PN200

JUSTICE ROSS: There will be. Well, because Schedule X expires today and we would need to - I don't think we can - just bear with me for a moment. Look, we will deal with the issue to grant retrospectivity. But can I indicate this that we don't envisage this process taking more than a couple of days, Mr Bull and so at most you would have a gap of a couple of days. And I don't think there's any reasonable alternative, given that the applications were only filed yesterday afternoon.

PN201

MR BULL: No. I am not looking to (indistinct) the particular operation. I don't want to sound like a - I don't want to be difficult, but I am not quite sure whether the Commission has the capacity to make a retrospective award variation.

PN202

JUSTICE ROSS: No. I am pretty sure that it is limited to Section 160, dealing with ambiguity, and that wouldn't seem to be - - -

PN203

MR BULL: It's not ambiguous.

PN204

JUSTICE ROSS: No. I don't think there is a capacity to grant it, but nevertheless it's something that we will look at and if there is any capacity, we will set out what it is and we will express a view and parties will have an opportunity to comment on any provisional view we arrive at. All right?

PN205

MR BULL: Thank you.

PN206

JUSTICE ROSS: Was there anything - anyone else? No.

PN207

MR HAMILTON: Your Honour, it's David Hamilton from Live Performance Australia.

PN208

JUSTICE ROSS: Yes.

PN209

MR HAMILTON: Just a clerical type issue. Your Honour, in the AWU's application we have an interest in the Amusement, Events and Recreation Award. That should be 2020. Not 2010.

PN210

JUSTICE ROSS: Yes, the award itself. That's right.

PN211

MR HAMILTON: And if it makes things move along quicker, your Honour, we have an interest in the Amusement Award with regard to Exhibition Industry and also in the Broadcasting award with regard to cinema operation. We would agree to the extensions for those two cohorts, if your Honour pleases.

PN212

JUSTICE ROSS: Yes. I think the difficulty is that there will be other employer bodies with an interest. And so we will need to give them an opportunity. But thank you for the indication.

PN213

MR HAMILTON: Thank you, your Honour.

PN214

JUSTICE ROSS: All right. If there's nothing further we will issue a statement in respect of these matters later today. Thank you for your attendance and my apologies for keeping you so late. It's jus t that the other matters ran over time. Thank you, we will adjourn.

PN215

MS ANTHONY: Yes, sorry.

PN216

JUSTICE ROSS: Yes.

PN217

MS ANTHONY: There was one further matter. It's Ms Anthony from APESMA.

PN218

JUSTICE ROSS: Yes.

PN219

MS ANTHONY: It only came to my attention a little while ago today that one of the awards that we submitted the application for the extension of Schedule X, while we supported the schedule X being inserted into the award back in April, it appears that the Electrical Power Industry Award in fact did not have Schedule X inserted into it back in April.

PN220

JUSTICE ROSS: That's right.

PN221

MS ANTHONY: Our organisation supports having Schedule X inserted into the award and I just thought I would point that out and we are happy to leave it in the Fair Work Commission's hands as to whether it is possible to have it actually inserted into that award in the circumstances.

PN222

JUSTICE ROSS: Yes.

PN223

MS ANTHONY: And obviously the employer organisations or any other organisation might want to raise any objection.

PN224

JUSTICE ROSS: Thank you for that, Ms Anthony. That does put that application in a separate category and we will seek to address that in the statement as well.

PN225

MS ANTHONY: Yes. Thank you, your Honour.

PN226

JUSTICE ROSS: Anybody else? Last call. No. All right. Thank you very much for your attendance. We will adjourn.

ADJOURNED INDEFINITELY [2.33 PM]