PN1

VICE PRESIDENT CATANZARITI: Thank you. I'll take the appearances.

PN2

MR M GIBIAN: May it please the Commission. I appear for the Transport Workers' Union. Ms Viviani is with me. I'm a little affected by a cold, so I hope that doesn't interrupt my submissions.

PN3

VICE PRESIDENT CATANZARITI: Well, don't pass it on.

PN4

MR G MILLER: If it pleases, Miller, initial G, appearing for the AMWU.

PN5

VICE PRESIDENT CATANZARITI: Thank you, Mr Miller.

PN6

MR Z DUNCALFE: May it please the Commission, Duncalfe, initial Z, for the AWU.

PN7

VICE PRESIDENT CATANZARITI: Thank you, Mr Duncalfe.

PN8

MS R BHATT: If it pleases, Bhatt, initial R, appearing for the Australian Industry Group.

PN9

MS K SRDANOVIC: May it please the Commission, Srdanovic, initial K, from Ashurst Australia and appearing for the entities within the Qantas Group today.

PN10

VICE PRESIDENT CATANZARITI: Today. Thank you for the voluminous material that has been received by the Commission. Yes, Mr Gibian.

PN11

MR GIBIAN: Yes, as the members of the Bench will know, this is a - or in this part of the proceedings, an issue is raised in that my client and the other unions seek a variation to the award, the effect of which is to align overtime rates for continuous and non-continuous shift workers.

PN12

I'm pleased to say that I think we've resolved any difficulties in relation to the evidence and as I understand, there'll be no need for cross-examination of any of the witnesses. Is it convenient just to deal with the receipt of that initially?

PN13

VICE PRESIDENT CATANZARITI: Absolutely.

PN14

MR GIBIAN: There were three statements, in addition to the submissions that have been filed, there were three statements. The first that I have is that of Therese Walton. That was of 29 January which is seven pages and 40 paragraphs, plus there's annexures; a number of annexures which run up to TW18.

PN15

VICE PRESIDENT CATANZARITI: Well, make the statement of Therese Walton exhibit A.

EXHIBIT #A STATEMENT OF THERESE WALTON DATED 29/01/2019

PN16

MR GIBIAN: I did promise to indicate that for the record that we're content for the first sentence of paragraph 9 and the first sentence of paragraph 39 of Ms Walton's statement to be received as submissions.

PN17

VICE PRESIDENT CATANZARITI: Thank you.

PN18

MR GIBIAN: All right, I'm sorry, the second sentence of paragraph 39, not the first sentence.

PN19

VICE PRESIDENT CATANZARITI: All right we can deal with it. The second sentence of paragraph 39 is treated as a submission.

PN20

MR GIBIAN: Sorry, and the first sentence of paragraph 9 as well.

PN21

The second statement that I have is the statement of Shane O'Brien also of 29 January 2019 which is of three pages and 10 paragraphs plus one annexure. In that statement I was asked to indicate that the estimate that is provided in the first sentence of paragraph 8 is only relied upon as Mr O'Brien's estimate based upon his knowledge attained from working for the TWU in relation to the Aviation industry in the period that he set out in his statement. Other than that, I understand there's no objection to it.

PN22

VICE PRESIDENT CATANZARITI: The statement of Mr O'Brien will be exhibit B.

EXHIBIT #B STATEMENT OF SHANE O'BRIEN DATED 29/01/2019

PN23

MR GIBIAN: The third statement is that of George Stella also - the version I have is not actually dated, but in the event, it runs to four pages of 28 paragraphs and there's a single annexure. In that statement I indicate that paragraph 24 on the fourth page is only intended to reflect Mr Stella's own experience rather than providing some order, opinion. Sorry, that applies to paragraph 24 and 26 and I don't read paragraph 28.

PN24

VICE PRESIDENT CATANZARITI: Thank you. We should get a signed version of that. We don't have one on our records either.

PN25

MR GIBIAN: Yes, I'm not sure - we'll deal with that. I'm sorry I hadn't noticed that, your Honour.

PN26

VICE PRESIDENT CATANZARITI: That will be exhibit C.

EXHIBIT #C STATEMENT OF GEORGE STELLA UNDATED

PN27

MR GIBIAN: Other than the submissions, that's the evidentiary material that my client relies upon.

PN28

Do you just want to tend to that?

PN29

MS K SRDANOVIC: By way of housekeeping, we did file an exhibit book which comprises largely of the documents that were submitted by the various stakeholders during the party 10A award modernisation proceedings. It is quite voluminous. Having said that, there were a couple of documents which we circulated by email on Friday and this morning which also - - -

PN30

VICE PRESIDENT CATANZARITI: We've printed all those out, the additional ones.

PN31

MS K SRDANOVIC: Yes.

PN32

VICE PRESIDENT CATANZARITI: When you say a few extra ones, that's how big the extra ones were.

PN33

MS K SRDANOVIC: Indeed. Indeed, I do have copies for the other parties as well if needed, but we would propose to mark that entire volume as an exhibit to the extent that the parties refer to it. It is paginated which should hopefully provide for ease.

PN34

VICE PRESIDENT CATANZARITI: Yes. I think we'll mark that exhibit 1.

PN35

MS K SRDANOVIC: May it please.

PN36

VICE PRESIDENT CATANZARITI: I think we'll mark that exhibit 1.

EXHIBIT #1 EXHIBIT BOOK COMPRISING DOCUMENTS SUBMITTED BY THE VARIOUS STAKEHOLDERS DURING THE PARTY 10A AWARD MODERNISATION PROCEEDINGS

PN37

MR GIBIAN: As far as necessarily possible with those additional documents, but I'll sort that out to the extent it's necessary. There's nothing else?

PN38

MS K SRDANOVIC: Nothing further.

PN39

VICE PRESIDENT CATANZARITI: Thank you.

PN40

MR GIBIAN: I think we can proceed directly to submissions if that's convenient.

PN41

As the Bench will be aware from the submissions, the position that my client - - -

PN42

VICE PRESIDENT CATANZARITI: Sorry, there's just one other - we need to mark the amended draft as a separate item because you filed the original draft, but you'll be going to the amended draft as your determination.

PN43

MR GIBIAN: Yes.

PN44

VICE PRESIDENT CATANZARITI: We just need to make sure we're all on the same page, that the document that we're proceeding with is the amended TWU1. I think we might mark that as exhibit D, so everybody is focused on that document.

EXHIBIT #D AMENDED TWU1

PN45

MR GIBIAN: Yes, may it please. There was something I was going to raise about the form of that too, but I'll come to that in a moment, if that's convenient. Thank you, your Honour.

PN46

As the Bench will have apprehended, the TWU submits that the variation is necessary to ensure that the aware provides a fair and relevant safety-net, essentially in that the present provision or the distinction that exists or appears to exist between the overtime rates for continuous and non-continuous shift workers appears to have arisen without - as a departure from the pre-reform awards and without particular attention or justification being given to that matter.

PN47

Secondly, that no substantive or principal justification for the differentiation in the context of this award appears to be advanced. Thirdly, that the present provision does not work consistently with other provisions within the award.

PN48

What I propose to do orally and hopefully relatively briefly was firstly, just go to the relevant provisions of the award and identify the variation that is - or the effect of the variation which is sought. Secondly, if it is of assistance to the Bench and I don't think it will take terribly long, but just go to a number of references within the bundle of material which has been provided. It is a relatively small number the Bench will be pleased to know.

PN49

Obviously, there are, within the volume of the material that Qantas has conveniently provided, is largely taken up by the repeated copies of the various drafts that were proposed by the various parties and the submissions going to other issues, not to this particular issue. But I did think it might be useful just to try and identify out of those materials the extent to which, or the absence of reflection upon the particular issue which is now raised.

PN50

Thirdly, just go to the question of whether there is any principal justification for the differentiation and the interaction between the various provisions of the award.

PN51

Do the members of the Bench have a copy of the award as it presently stands? I don't know whether it is all - - -

PN52

VICE PRESIDENT CATANZARITI: No, I don't think we brought the award in as it presently stands.

PN53

MR GIBIAN: Perhaps I can just then - sorry, I assume perhaps that - I'm not sure we can remedy that immediately. What I wish to do is just briefly identify the relevant provisions of the award and I'll just have to do that orally. I think relevantly, it's probably sufficient if I note the provisions which are set out in the TWU's initial submissions, although I don't know that 32.1 is actually set out in its full terms.

PN54

If the Bench has the initial submissions of the TWU that were filed in January.

PN55

VICE PRESIDENT CATANZARITI: Yes, we have that.

PN56

MR GIBIAN: The relevant provision of which is 32.1(a) at least is set out at paragraph 4. Before coming to 32.1 though, it is useful just to put that in context of the hours of work and rostering provisions. Those at least, some of them are set out at paragraph 9 on the third page of those submissions. Clause 28 of the award deals with ordinary hours of work, as is highlighted in the heading 28.2 deals with ordinary hours of day work and the pattern on which those hours can be worked.

PN57

I note that little (c) provides that ordinary hours for day workers that work continuously, except for breaks between a stand of 7am and 6pm, I should say unless that is altered by up to an hour by agreement between the employer and the majority of employees.

PN58

The ordinary hours for shift work are then dealt with in 28.3 and there's a definition in 28.3(a) that appears in paragraph 10 of the written submissions of continuous shift work in a manner which will be familiar, meaning work carried out on consecutive shifts throughout the 24 hours of each - of at least six consecutive days without interruptions. The ordinary hours are otherwise in little (b) and little (c), dealt with as an aggregate of hours over a 28 day period or longer period if that is achieved by way of agreement.

PN59

I don't think these provisions are set out in the submissions, but I will just note that there is a distinction between continuous and non-continuous shift workers for break provisions in respect of meal breaks in 29.2 and crib breaks in 29.3 of the award. I think the only clear differentiation is between continuous and non-continuous shift workers, leaving the leave provisions to one side.

PN60

Clause 13.2 which is also not set out in terms in the submissions provides for the shift work rostering and requires shift work rosters to the (a), specify the commencing and finishing times in little (b) are changed to the shift work rosters to be with at least seven days' notice. And then little (c) which has received some attention in the submissions, requires that an individual employee who is required to change their shift, be given at least two days' notice. Otherwise, be paid at double time for those shifts.

PN61

Clause 30.7, which is also relevant to the submissions advanced. It is set out in the - in any event, it provides for shift penalty rates including that in little (a) the shift workers be paid penalty rates for weekend and public holiday work, including involving double time on a Sunday and on public holidays.

PN62

Then clause 32.1, subclause (a) of which is set out at paragraph 4 on the first page of the initial submissions of the union. That provides in little (a), all work done outside ordinary hours on any day or shift, except where the time worked is worked by arrangement between the employees themselves, must be paid at time and a half for the first two hours, or double time thereafter until the completion of the overtime work. Then in the second sentence, for a continuous shift work at the rate for working overtime is double time.

PN63

I note that clause 32.1(b) as it presently stands, provides that for the purposes of this clause the ordinary hours means the hours worked in an enterprise fixed in accordance with clause 28.2(c). Which as the Bench will have apprehended from the earlier provision is the provision dealing with day work and not shift work. That creates some difficulty in terms of reading the award together.

PN64

The way in which my client has proposed that the overtime provision be varied is, your Honour, as the presiding member has indicated, set out in the amended TWU1. The members of the Bench will see the effect of that is to seek to separate in a proposed new (a) and (b) the treatment of day work and shift work. The day work provision would be to the same effect as the existing provision. It is proposed to insert a little (b) to the effect that all time worked in excess of or outside ordinary hours or on a shift other than a rostered shift must be paid at double time.

PN65

The matter I was just going to note in that respect is that the draft that's been provided, hasn't included the exception for arrangements directly between employees in little (b). There was no intent for that not to be part of the provision. It's accepted that that's been the historical position. So we would be content for the bracketed words that appear in little (a) to also appear in little (b).

PN66

The second change is in the proposed little (c) which would provide that for the purposes of the clause, ordinary hours means the hours of work - - -

PN67

VICE PRESIDENT CATANZARITI: I'll get you to file an amended document.

PN68

MR GIBIAN: We'll do that, yes. The proposed little (c) sets out a proposed definition of ordinary hours which refers to 28.2 as the existing provision does in respect of days work but has added a reference to 28.3 and 30.2 in relation to shift workers, to correct what appears to be an omission in the award. That is that the definition of ordinary hours for the purpose of the overtime clause as it presently stands only refers to the ordinary hours provision for day workers, notwithstanding the fact that the provision itself refers to shift work in terms.

PN69

Now some issue has been raised in relation to that matter. I don't know what the objection is to the correction of that. The substantive change is obviously that we seek, in the proposed clause 32.1(b) that all work in excess of ordinary hours for shift workers be paid - or workers working shift work be paid at double time.

PN70

As will be apparent from the submissions, part of what the union says is that to the extent there is a differentiation between the overtimes rates for continuous and non-continuous shift workers, that departed from the situation relevant to pre-reform awards and appears to have been done without any substantive submission that that should occur or the basis upon which it should occur in the award modernisation processes.

PN71

If it's of assistance to the Bench, as I say, I propose to go through and just briefly identify what appear to us to be relevant documents in the bundles that have been provided by the representatives of the Qantas Group. Ms Walton has dealt with these matters in her statement which was marked as exhibit A, commencing at paragraph 11 and annexe some of the relevant document. But since a more complete version has been provided, it might assist to highlight those relevant, to the extent they are of assistance, relevant parts of those documents.

PN72

The commencement of the proposition is that the relevant pre-reform awards provided for double time, overtime for all shift workers. Ms Walton has identified those relevant provisions in the pre-reform awards from paragraph 12 to 17 of her statement on page 3. I didn't propose to go through all of that - to go through each of those. Those awards are contained within volume one of the exhibit book which was provided, commencing at page 1.

PN73

Can I just note - as I say, the provisions are referred to in Ms Walton's evidence and it's unnecessary to go to each of them. Can I just note that what appears to have been the most significant model for the modern award was the Airline Operations (Transport Workers') Award. It's the first award under tab 1. The relevant provision is on page 51. The page number is in the middle of the bottom of the page, at which clause 28 dealt with overtime.

PN74

Clause 28.2 in the middle part of page 51 dealt with payment for working overtime and provided separately for day work and shift work, with 28.2.2 providing that all time worked in excess of or outside ordinary hours or on a shift other than a rostered shift must be paid at the rate of double time.

PN75

Equivalent provisions as I say, are contained within the other awards. I don't - unless the Bench would wish me to, I'm happy to note the fact that Ms Walton referred to those in the relevant provisions in her statement from paragraphs 12 to 17.

PN76

In coming then to the award modernisation processes, can I note that what appears to have occurred is that the initial drafts were provided jointly by Qantas and Ai Group. The initial submissions in that respect that were advanced on behalf of the Qantas Group commenced still within volume one at page 553.

PN77

VICE PRESIDENT CATANZARITI: Our folders do not have 553 in volume one.

PN78

MR GIBIAN: Okay.

PN79

VICE PRESIDENT CATANZARITI: They are in volume two.

PN80

MR GIBIAN: I have two volumes. All right. I'll just have to stick with the page numbers.

PN81

VICE PRESIDENT CATANZARITI: Stick with the page numbers.

PN82

MR GIBIAN: Page numbers, if that's the convenient course. There are tab numbers; I don't know if that assists any further. But I'll just stick with the page numbers, if that's the best marker. As I say, those submissions commence at page 553 and were dated 6 March 2009. I just note at page 556 and 557, there's a reference to the current industry award coverage and to the relevant awards. On page 557 at 4.2 a reference to the Transport Workers' Award which it was indicated covered a majority of the employers in the Airline Operations industry.

PN83

Together with - and sorry, at page 560 and onwards, there's a reference - there's a description of issues in relation to the draft ground handling award. At 561 there's a heading towards the top of that page 5.4 Awards Used, at which it was indicated that on the basis of the submissions above, we have used the Transport Workers' Award where possible in drafting.

PN84

Attached to those submissions was a draft proposed award put forward by the Qantas Group and Ai Group. The overtime provision was then clause 25 appearing on page 600. In a manner which does closely resemble the previous Transport Workers' Award is 25.1 with a requirement to work overtime, 25.2 payment and at little (a) and little (b) separately dealt with day work and shift work. For shift work 25.5 little (b) indicated that all time worked in excess of or outside ordinary hours on a shift other than a rostered shift must be paid for at double time unless the time worked, is worked by arrangement between the employees themselves.

PN85

The ACTU the put forward submissions initially of 18 March 2009 which commence at page 709. In that respect, I just note a couple of passages which appear at page 710 on the second page of the letter that provided the proposed draft award. Right at the top of page 710 the ACTU indicated that the Aviation Industry has been subject to Federal Award regulations since the earliest days of the industry in Australia, as required by the national and international nature of the sector.

PN86

These awards have been developed and maintained and varied over the years to reflect the dynamic nature of the industry and to provide appropriate safety-nets of wages and conditions in the industry. There's then further reflection on the nature of the aviation industry. Then in the fifth paragraph on that page it was indicated that the attached award endeavours to maintain the existing safety-nets of wages and salaries and conditions of employment.

PN87

There is then commencing at page 711 a draft award, and the overtime provision of which is at page 772. It was then clause 38 overtime and 38.1 dealt with payment of overtime and as I say, despite the indication that it was intended to maintain the existing safety-net, in this respect the draft in little (a) indicated that all time worked outside ordinary hours on any day or shift, must be paid at time and a half for the first two hours at double time thereafter. Then only for continuous shift work the rate for working overtime is double time.

PN88

COMMISSIONER CAMBRIDGE: That was the identification of the qualification for the double time to involve continuous shift worker rather than shift workers generally?

PN89

MR GIBIAN: Yes. So, it appeared to come from the union's submission. It's a mystery to us as to why it got in there. As I will come to, it seems to have been then adopted with everyone saying we were maintaining the existing arrangements, but even not noticing, or no one seems to have remarked upon that change. There were remarks upon other aspects of overtime arrangements, but as I say, not in relation to that change or why it was done, or any justification for that course being followed.

PN90

Then there were - and I'm going to volume two in mine. I'm not sure what volume you're in. Further submissions were put forward in more detail by the ACTU on 1 April 2009. Those commence at page 969.

PN91

VICE PRESIDENT CATANZARITI: Volume three of ours.

PN92

MR GIBIAN: Again, there doesn't seem to be any specific reflection upon this particular issue, but can I just note what was said at page 987, page 17 of those submissions, where a heading appears above paragraph 65, Content of Union's Draft Award. Note, particularly at paragraph 68 what was said, that in the union's submission attachment B shows the provisions of the union's draft are firmly based in the underpinning industry awards operating in the aviation industry. In a general sense, that appears to be an intention.

PN93

COMMISSIONER CAMBRIDGE: But this wasn't a process where some things wouldn't go backwards and other things might go forwards.

PN94

MR GIBIAN: I accept that as a general proposition. I suppose subject to two things; one is an instance in which things might go backwards so to speak, is where for some employees at least, is where there was some different condition in various awards that covered particular industry. I think generally the approach adopted was that the provision of most general application was probably to be followed more generally, which may involve some change for some employees if they had a different condition under a different award. But that doesn't seem to be the case here.

PN95

Secondly, in the absence of there being, as I'm coming to any identification that this was in fact a change and justification being given for it, it's very difficult to infer that there was some conscious trade-off between something and something else. It means, if the employers had put forward we think that's not the appropriate to go forward in a modern award for this, this and this reason and there'd been an argument about it, and it had come out in a particular way well, so be it. But none of that appears to have happened.

PN96

COMMISSIONER CAMBRIDGE: So there's no evidence of some concession for this position apparently adopted at first instance by the ACTU to make a distinction for continuous shift work?

PN97

MR GIBIAN: No. And indeed, as I say, the employer's initial draft contained the pre-existing arrangement which was double time for all overtime for shift workers. Yes, and as I say, if there was some trade-off or some conscious reflection upon it, then there's something to obviously what you say Commissioner. But in the absence of that, it's difficult to make too much of the potential for trade-offs or I think swings and roundabouts, is how the Ai Group put it.

PN98

This award - sorry, these submissions of the 1 April, then attached at attachment A, a draft award. I just note at page 1065 the overtime provision is in perhaps slightly incomplete form, reflected in that what is now proposed clause 36, 36.1(a), simply provided that all work done outside ordinary hours on a day or shift, must be paid at time and a half for the first two hours and double time thereafter.

PN99

Then in the second sentence all time worked in excess or outside of ordinary hours on a shift other than a rostered shift will be paid at double time. It appears the second part is intended to refer to shift workers, but it seems to be an incomplete drafting.

PN100

There was also attached then a document at attachment B to those submissions, which in table form contained certain drafting notes. The numbering seems to be slightly off again, but at page - no I'm sorry, this time the pages are in landscape format but it's 1127. We need attachment B to those submissions. There's a reference to what is there recorded as clause 37 dealing with overtime. It's said at 37.1(a) that this is the industry standard for day workers. The standard provision covering shift workers has also been added to the draft.

PN101

Now, as I say, to the extent that there seemed to be a differentiation between continuous and non-continuous shift work, that doesn't seem to have been correct. But the intention seems to have been to reflect pre-existing award conditions. Those submissions also attached at attachment C a document which purported to summarise the positions of the parties, or of interested parties, commencing at page 1130.

PN102

At page 1133, of the table, the second entry refers to overtime at the top of page 1133 and refers to the position of the parties as both being that for day work it be two hours at time and a half and thereafter shift work would be double time. That is asserted to be the position of both parties.

PN103

The next document is that submissions were also filed by Qantas or on behalf of the Qantas Group of 1 April. They commence at page 1134. So far as overtime is concerned, attachment 1 to those submissions contained another list noting the positions of the parties. At page 1183 in landscape format at point 39 on the bottom part of that page, or entry 39, the positions with respect to payment of overtime are dealt with. And what was recorded as 25.2 is proposed by the Qantas Group, and Ai Group originally provided for day work and shift work, shift work all at double time.

PN104

And it then is there set out at clause 38.1 in the next column, 38.1 of the ACTU's initial draft, noting the - in (a), the final sentence referring to continual shift worker, for a continual shift worker only the rate of overtime would be double time. And the comment that's noted is that there's an agreement with the ACTU clause, except for certain matters not presently relevant. So no comments have been made on the distinction between the rates that would apply for shift workers other than continuous shift workers.

PN105

In the submissions there were comments about other matters, as I say: the need for there to be an exception for arrangements between the parties and the like. Then the draft award with some rotation was also provided by Qantas Group and the Ai Group at that same time on 1 April 2009. And it's perhaps to the same effect, but at page 1235 there's what was then clause 26.2 headed Payment For Working Overtime.

PN106

The drafting note in the box that appears under the heading is to the same effect as to the table to which I've just taken the Bench and refers to acceptance of the ACTU clause subject to certain matters not presently relevant, and (a) contains the reference to continuous shift work being at the rate of working overtime for continuous shift workers only would be double time. That provision in those terms then made its way into the exposure draft.

PN107

I think I had perhaps erroneously assumed that the exposure draft was a document that was in this bundle, but as I understand it was one of the additional documents that was provided. Exposure draft dated May 2009.

PN108

MS SRDANOVIC: The decision is at page 1274

PN109

MR GIBIAN: I'm told that the decision in that respect is at page 1274, but the exposure draft itself was not in the materials. And the provision then found its way into the exposure draft, it was clause 30 at that point in time, and in the exposure draft clause 30.1(a) was in the same form as the initial ACTU provision. And that is contained in the second sentence, that is that it was only for continuous shift workers that the rate of working overtime is double time.

PN110

The bundle contains the hearing, or transcripts of the hearings and the like, and I don't propose - I don't think anyone has pointed to any aspects of those in which this issue was specifically adverted to and this change was specifically adverted to. And the overtime payment provision in that, in the form of the exposure draft, then became what was initially clause 31.1 of the award, now 32.1, which appears at page 1742 of the bundle.

PN111

So what, in my client's submission, is drawn from that is that the position in relation to payment of overtime for shift workers in the relevant pre-reform awards was that overtime for all shift workers was paid at double time, and the clause 32.1(a) as it presently is was not derived from any of the relevant pre-reform awards. The drafts initially provided by employer groups followed that same pattern and had a separate provision for day work and shift workers, and that overtime for shift work would all be payable at double time.

PN112

The reference to continuous shift workers only being the subject of that double time provision appeared for reasons which are not apparent from any of the material in the initial draft provided by the ACTU, and that appears to have been then adopted by the employer groups, and then in the exposure draft in the ultimate award that was made, without anyone making a submission which noted that it was a change, or provided any rationale or reasoning or justification as to why that change would be made from the pre-existing arrangements applying in the relevant aviation awards.

PN113

And it does seem to have arisen by way of inadvertence, perhaps drafted in from other awards. It is unclear. But as I say, none of the record - and I don't think anyone has pointed to any part of the proceedings or the submissions as part of the award modernisation process which provided any - even identified that this was a change, or much less providing any rationale or justification for that change being made.

PN114

In that respect, as we understand the employer's submissions, there really seems to be principally one response to it, and it's really what Cambridge C raised with me, and that is that the award modernisation process involved a balancing, that there are swings and roundabouts, and that it's not appropriate for the union now to go back and say, "Well, this one thing didn't work out as we - or the provision wasn't as the unions would have wished it to be."

PN115

The difficulty with that submission is that - that submission would have weight, as I say, if the situation was that any of the pre-reform awards contained this provision in the sense that one had to be - one pre-existing condition was required to be selected and this was the one. But in the circumstances in which all of them appeared to provide for payment of overtime for shift workers at double time, it's not a situation in which there was a balancing of existing conditions in this respect.

PN116

And in the absence of there being any submissions that appear to even identify that this was a change, one can't infer that it was a trade-off against something else, some other award provision that was made, in our submission. And it doesn't greatly assist to simply say in a general sense that the award modernisation could have involved a degree of balancing or trade-offs or swings and roundabouts, whatever language is used.

PN117

The second opposition submission that's advanced, as it were, appears to be that even if it was an error, it still must now be necessary in order to meet the modern awards objective in order to change the award provision. In that respect I guess we say two things. The first is that if the historical condition in this industry has been departed from without justification being identified, then we do think it is necessary, in order to provide a fair and relevant safety net, to return the award to its general industry standard which has existed for many years so far as the payment of overtime is concerned. That's the first proposition.

PN118

The second proposition is that there doesn't appear, in my client's position, to have been advanced in any of the other submissions any principal justification for the differentiation between overtime provisions for continuous and non-continuous shift workers in the context of this award or this industry. I note in that respect that the definition - there's not a definition in the award of continuous shift worker as such. There is a definition in clause 28.3(a) of continuous shift work as meaning:

PN119

Work carried out on consecutive shifts of employees throughout the 24 hours in each of at least six consecutive days.

PN120

The definition focuses upon the pattern of work in the workplace, that is that there are shifts running over the - in a manner which is familiar in other awards - that there are shifts running over a 24-hour period. And that threshold is not past if the operations of the employer or the shifts are to any extent less than 24 hours.

PN121

This is an industry in which it is frequently the case that the employers would operate shifts on most of, but not quite all of 24 hours, in the sense that there will be a period of time where the - by reason of curfew or just because flights are not run at those times, the operations don't proceed for a relatively short period of time during the night, but otherwise they are throughout the remainder of the spread of the day. For that reason they are perhaps close to being continuous shift workers but not quite, or likely to be close to being continuous shift workers but not quite.

PN122

And no, as I say, coherent justification appears to us to have been advanced as to why there should be some different overtime rate for those two groups of employees, depending purely on whether the employer's operations happen to go the full 24 hours or somewhat short of the full 24 hours. To the extent any justification has been advanced, it's said that continuous shift workers may experience greater disruption to personal, family and social life, and the like.

PN123

In a general sense that may be accepted, subject to two matters: firstly presumably that the extended disruption to personal, family and social life that may be involved in continuous shift work is presumably intended to be compensated for by other provisions, whether or not that employee is required to work overtime or not; and no reason has been advanced as to why there is greater disruption for working overtime for continuous as opposed to non-continuous shift workers.

PN124

And secondly, as I say, in the context of this industry the degree of difference between a continuous and non-continuous shift worker may be relatively slight in the sense that the operations are the best part of 24 hours but not quite.

PN125

It has been pointed out there are some other awards containing just this differentiation, and I think three have been pointed to. In my submission that doesn't greatly assist in the absence of any identification as to the history of those provisions or why those provisions are in the awards that they are. And to the extent that that is a provision appropriate in other industries, it's not, as I say, the historical position in the aviation industry.

PN126

The third and final matter that I propose to address orally, subject to any questions ‑ ‑ ‑

PN127

VICE PRESIDENT CATANZARITI: Just before you move onto that, when do you say the unions first became aware of this problem?

PN128

MR GIBIAN: I don't know when the unions became - if your Honour's question is: should it have been picked up earlier? Obviously it should have been picked up and corrected.

PN129

VICE PRESIDENT CATANZARITI: Yes. Nine years have passed.

PN130

MR GIBIAN: Indeed. No doubt it should have been picked up earlier. I suppose we would say two things about that. the first is that the explanation may be as is described in the evidence, that many employees in this industry are covered by enterprise agreements which have the double time overtime provisions in respect of shift - I'm sorry?

PN131

DEPUTY PRESIDENT ASBURY: But we did get the submission from Qantas about the Jetstar agreement, which would be impacted for future negotiations if the claim was granted. So it wasn't noticed at that point either, when that agreement was negotiated and considered?

PN132

MR GIBIAN: All I can say was it was raised in the context of this award review process. I can't specifically say whether it was raised in the context of the Jetstar agreement or not. In the context of Jetstar agreement I think all that's said is that there is a different provision in the Jetstar agreement. At best - any change will not directly affect that agreement, obviously enough. At best it would be a factor to be considered as part of a BOOT analysis if there was a replacement agreement sought in the same terms. And obviously subject to an overall assessment it well may be possible to have that provision in an enterprise agreement.

PN133

I don't think it's suggested by Qantas that the Jetstar agreement would otherwise pass the BOOT even with that provision, but that would be an assessment that would be required to be made in the context of any replacement agreement. I have to accept the matter should have been raised at an earlier point in time, certainly the two-yearly review, but if a provision which doesn't have justification and departs from the historical award standards was only raised in the four-yearly review, then at this stage then that doesn't actually tell - it should be corrected nonetheless. It doesn't actually tell against its correction if the provision is not an appropriate one.

PN134

VICE PRESIDENT CATANZARITI: So you accept it should have been picked up in the two-yearly review, but for whatever reason it wasn't picked up.

PN135

MR GIBIAN: I accept that - I can't say that it shouldn't have been, it should have been. But if it wasn't, it wasn't. No doubt the industrial parties have a lot of matters to deal with. That's not an explanation or justification, it's just the fact of the matter. If it wasn't picked up, it wasn't.

PN136

VICE PRESIDENT CATANZARITI: On your argument the ACTU put it in, and then everybody proceeded on a particular basis and nobody, until recent times, took issue to it. That seems to be the origin of the clause.

PN137

MR GIBIAN: Yes. And as I say, it would be different if it was identified and the subject of some kind of submission, that that was the change, but that there was a substantive change in that respect as a consequence of the award modernisation, but that just simply doesn't seem to have happened.

PN138

VICE PRESIDENT CATANZARITI: The AiG take issue in their submissions that to do this at this point without a merit argument is problematic, it having gone for nine years and agreements have been made and measured consistent with the modern award as it existed.

PN139

MR GIBIAN: I understand that submission. Perhaps there are two things. One is as I say, if it was an error or an inadvertent change, then in my submission it should be corrected, and subject to the Jetstar agreement, many other enterprise agreements in the area seem to have the double time provision for shift workers.

PN140

Secondly in terms of a merit argument, we don't say it's entirely absent of merit argument in the sense that no one has - we haven't tried to bring a large evidentiary case, but we've brought a witness who has referred to the difficulties that are encountered by shift workers generally and overtime or shift workers; and the absence of anyone pointing to any rationale for the distinction in the context of this industry.

PN141

So we don't say it's advanced in the absence of a merit case, there's simply nothing put forward as to why there is a great - a differential between the overtime arrangements for continuous and non-continuous shift workers, particularly given the nature of many employees in this industry that to operate over large parts of the day, if not 24 hours.

PN142

The third point that I wish to raise was just the degree of harmony between this provision and the other provisions within the award. There are essentially two matters in that respect. The first is as identified at the outset, that at present there is an ambiguity within clause 32.1 perhaps generally in the sense that 32.1(a) refers to, "Payment of overtime for work done outside ordinary hours on any day or shift", and then specifically refers to continuous shift workers.

PN143

But (b), in defining ordinary hours for the purposes of the clause, refers only to hours being fixed in accordance with clause 28.2(c), which is a provision that applies only - deals with the ordinary hours for day workers only and the span of hours for day workers only and not shift workers. And there's an obvious - and perhaps assists their argument that generally the award hasn't been subject of great reflection in the sense that the provision - the definition of ordinary hours must also refer to the ordinary hours arrangements for shift workers, given that the clause deals with overtime apparently for both day workers and shift workers.

PN144

The second difficulty which I think is at least acknowledged by Qantas, if not Ai Group, is that there is a tension at least between a provision which would provide for shift workers to receive overtime at a time and a half in the first two hours, at least so far as overtime on Sundays is concerned in the context in which clause 30.7(a) provides that shift workers are to be provided penalty rates for all work on weekends and public holidays are double time.

PN145

So either one must prevail over the other, I suppose. If the overtime provision deals with the overtime worked on a Sunday, then the shift worker would, at least on overtime than they do on ordinary time for Sunday work; if clause 30.7 prevails, then it would be double time, notwithstanding the overtime provision. And I think there's a broader acceptance that that itself creates some difficulty in the context of the drafting of the provision - of the award read together.

PN146

My client's submission is that those difficulties are best remedied - some variation is necessary to address those difficulties, and the clearest remedy for the difficulties is to align the overtime provisions for continuous and non-continuous shift workers in a way that was the case in the pre-modern awards.

PN147

DEPUTY PRESIDENT ASBURY: Do you say that that Sunday work clause - I'm sorry, I haven't got the current award, but I've got the 2010 version which was in the - and I think there has just been and extra clause added in at the beginning so all the numbering seems to have shifted by one. So clause 32 - - -

PN148

MR GIBIAN: I think that's right, yes.

PN149

DEPUTY PRESIDENT ASBURY: Clause 32 of the version that I've got, which is either clause 31 clause 33 and the current one, I can't think which one, probably clause 33 in the current version, but clause 32 in the 2010 version.

PN150

MR GIBIAN: Yes.

PN151

DEPUTY PRESIDENT ASBURY: Is it the case that that clause may well be referring to ordinary hours? So where you're working ordinary hours on a weekend, that's the ‑ ‑ ‑

PN152

MR GIBIAN: Yes, I think what's now clause 33, headed Sunday Work ‑ ‑ ‑

PN153

DEPUTY PRESIDENT ASBURY: Yes, because it's different. It's not in the overtime clause, it is a separate clause.

PN154

MR GIBIAN: Yes. So that's the provision dealing with day workers, and what's now clause 30.7 and was at that stage clause 29.7 on page 1723-1724 deals with the payment of shift workers for all work. As I say, so far as shift workers are concerned the point that has been raised is that there is a - - -

PN155

DEPUTY PRESIDENT ASBURY: Sorry to interrupt you. Clause 27.2 of this version of the award, so I'm assuming it's roughly the same in the present version, clause 27.2(f), so day work normally Monday to Friday, but this was always the standard type of provision. You could agree to work ordinary hours on weekends, and then that would be when clause 32 would operate, so it would operate where you change the weekly spread. That's the point I'm making, it's not in the overtime clause.

PN156

So if you were coming to a construction of this award and trying to work out who got what for what, it is at least arguable that that clause 32 applies to day workers for whom clause 27.2(f) has been utilised to broaden the spread of hours. So that's why they're getting double time for the Sunday, because normally they wouldn't work on Sundays, they're not shift workers, they're not working rotating shifts for where they pick up loadings, et cetera.

PN157

So that was always - you know, there were a lot of awards back, you know, in my time looking at pre-modern awards it was pretty standard that the rate of overtime for continuous shift workers was double time; the rate of overtime for non-continuous shift workers where the shift didn't go for the required number of days was time and a half the first two hours, double - or three sometimes, and double time thereafter; non-continuous got underpaid meals, continuous got paid meals.

PN158

You know, arguably there's nothing extraordinary except the context of the award is where these provisions came from with how the award is now.

PN159

MR GIBIAN: Can I perhaps say two things about that. Firstly clause - what's now 28.2(f), 27.2 I think in the copy your Honour has, and clause 33 as it presently is - in dealing with day work I don't disagree with what your Honour has said about that. Presumably that's a provision which is - the Sunday work provision is a provision which is intended to apply where there has been an agreement to - would apply at least where there's an agreement to work Saturday or Sunday for day work, although it does provide a minimum of - 33.1 does provide a minimum engagement of four hours, which presumably would apply in overtime as well, that is overtime was worked on Sundays.

PN160

So far as shift workers are concerned, it's dealt with at what is now clause 30.7, clause 29.7 in the copy your Honour has, which just provides that the penalty rate for work on weekends and public holidays is, relevantly to a Sunday, to be double time.

PN161

DEPUTY PRESIDENT ASBURY: Yes.

PN162

MR GIBIAN: And the potential disjuncture with clause 32.1 is that if that applies to overtime worked on a Sunday, then on one reading it least there will be a lower rate for overtime on the Sunday than for ordinary time worked on a Sunday, which doesn't seem right; or on another hand there's just a clash between the provision that's clearly work on a Sunday ‑ ‑ ‑

PN163

DEPUTY PRESIDENT ASBURY: Or there's no clash because clause 32 doesn't apply to overtime at all, it's a clause that - it relates to the day worker where you've got - because arguably that's why it's - I'm just saying there may be an explanation that makes all these terms work in complete conformity if you read clause 32 as applying to ordinary hours worked on weekends, because that was again - if my memory serves me correctly that was always the case.

PN164

So employers have the ability to broaden the spread to work ordinary hours on a weekend, but all the ordinary hours on a Saturday were generally time and a half and all the ordinary hours on the Sunday work double time, that sometimes were different. They were paid as overtime hours in other awards. I think the old metal industry award, they were paid at overtime rates but they weren't overtime, they were part of the 38 ordinary hours. And arguably that's all that clause 32 is.

PN165

MR GIBIAN: So far as shift workers at clause 30.7 or 29.7.

PN166

DEPUTY PRESIDENT ASBURY: I guess I'm just saying: is it such a big anomaly, really, when you look at what was intended, arguably, to do?

PN167

MR GIBIAN: Well, as I say, in our submission it does seem odd that there would be then a lower rate for overtime than ordinary time on a Sunday.

PN168

DEPUTY PRESIDENT ASBURY: Except the explanation may be because the overtime clause that you're looking at it relates to shift workers who are getting shift penalties, et cetera; some are getting paid meal breaks, some aren't. That might be the explanation. But in any event, I understand your argument.

PN169

MR GIBIAN: Of course the historical position in this industry is that all shift workers were getting double time for all overtime, so there wasn't a difficulty in the previous awards, obviously, there was already - there was no disjuncture there.

PN170

DEPUTY PRESIDENT ASBURY: So the only difference really for the purposes of the continuous shift work definition really then was the paid meal breaks.

PN171

MR GIBIAN: Yes.

PN172

DEPUTY PRESIDENT ASBURY: Yes, I understand.

PN173

MR GIBIAN: Yes. As I say, there are some difficulties with the way it has been put together. At least the definition of ordinary hours in clause 32.1, and as I say, the disjuncture that does seem to exist between ordinary time and overtime on Sundays for non-continuous shift workers, at least. I think that was all I propose to say, unless there are any further questions that I can assist the Bench with.

PN174

VICE PRESIDENT CATANZARITI: Thank you.

PN175

MR GIBIAN: Obviously we rely on our written submissions.

PN176

VICE PRESIDENT CATANZARITI: Mr Miller.

PN177

MR MILLER: Thanks, your Honours and Commissioners. There's little that I can usefully add to my learned friend's submissions, so unless there's any questions about the AMWU's written submissions, we would continue to rely on them and note that we support the TWU's submissions.

PN178

VICE PRESIDENT CATANZARITI: Yes. Thank you. Mr Duncalfe.

PN179

MR DUNCALFE: Thank you, Vice President. As my friends have said before, we filed written submissions in this matter and we continue to rely on those. We also support the submissions of the TWU and the AMWU. And as my learned friend Mr Gibian has gone through quite thoroughly, we do rely on those, and there's nothing more for us to really add, except for the question from the Vice President earlier about when the unions first became aware of this issue.

PN180

For the AWU that was for the first publishing of the exposure drafts of this award when schedule B was inserted to actually have the rates of pay. The current award doesn't actually have the rates of pay for overtime and all those, the tables that were inserted into schedule B. And so we picked up in the submission I believe of 30 June 2016 was that a non-continuous shift worker was to be paid at a rate of 150 per cent, as in a drop in their rate of pay as they entered into overtime, which we thought was - we thought it was an error at first because we thought that outcome was quite absurd.

PN181

That was the first time that we actually picked up on that. We pursued that through the technical and drafting stage because we thought it was just an error in between the nexus between two: which of the 30.7(a) and 32.1(a) has prevalence here for the non-continuous shift worker who entered into overtime on Sundays? We pursued that as a technical and drafting claim right up until the point where it referred to this Full Bench, and therefore we changed that into a substantive claim to join with the AMWU and the TWU.

PN182

If there's nothing further, that's all the submissions the AWU have.

PN183

VICE PRESIDENT CATANZARITI: Thank you.

PN184

MS BHATT: Vice President, there's at least a couple of issues that have been raised by Mr Gibian today. I would benefit from giving them some further consideration, and I wondered if the Bench would indulge us and provide us with a 10-minute adjournment before the employer parties make their submissions.

PN185

VICE PRESIDENT CATANZARITI: Yes, we will take a morning tea adjournment.

SHORT ADJOURNMENT [11.03 AM]

RESUMED [11.35 AM]

PN186

VICE PRESIDENT CATANZARITI: Thank you, Ms Bhatt.

PN187

MR BHATT: Thank the Commission for that.

PN188

The Australian Industry Group filed written submissions opposing the Union's claims on 1 March 2019 and we continue to rely on those submissions. In addition today, I seek to reinforce some of the key contentions that we have made in response to the claims to deal with the evidence that has now been tendered and to respond to both the written reply and the oral submissions that have been made by the unions today. I propose to do that by reference to the following key issues.

PN189

The first thing, the characterisation of the variations sought and the nature of the claim. The second is the Part 10A award Modernisation process. The third is the disutility of performing shift work and finally, the relevance of enterprise agreements operating in the industry.

PN190

Now that I've identified it, I'll come to some of the evidence later, but as an overarching observation, I should say that some of the evidence that we identified previously has been objectionable in the strict sense, has nonetheless been admitted this morning. We say that for the reasons that have been articulated in the document filed by the Australian Industry Group on Friday, that evidence that has been admitted should be given little, if any, weight for the reasons that have been articulated in that document. But I'll come to more of that later.

PN191

If I can deal firstly with the variation that has been sought and the nature of the claim that has been advanced. Broadly speaking, as the Commission knows, the proposed variations seek to increase overtime entitlements for non-continuous shift workers, such that they would be entitled to double time for all overtime worked.

PN192

To some extent the case that has been mounted by the unions, focusses on the issue of the rate that is applicable to the performance of such work on Sundays. There's an argument that the relevant clauses are ambiguous or that there's some disharmony that arises from them. For clarity, apart from anything else, it is the Australian Industry Group's position that the union's claims in its entirety should not be adopted to the extent that they apply to Sunday and otherwise. We do not accept that any difficulty arises from the current provisions.

PN193

Perhaps we don't need to do this in detail, but to pick up on some of the points that were exchanged between Deputy President Asbury and Mr Gibian earlier this morning, it is the Australian Industry Group's position that clause 30.7 of the award, and I understand that the Bench might now have a copy that the Vice President's Associate has kindly provided.

PN194

VICE PRESIDENT CATANZARITI: We do have that.

PN195

MR BHATT: It's our understanding that clause 30.7 of the award provides for the relevant entitlements for the performance of ordinary hours for shift workers. That clause 32.1 applies to the performance of overtime and to the extent that there is any perceived tension between those provisions, and we don't say that there is, but if there is, the more specific provision overrides the more general provision. And we say in this case, that is the overtime clause. The overtime clause is the more specific clause in relation to the performance of overtime and so it would apply.

PN196

Deputy President Asbury earlier today referred to clause 33 of the award. Clause 33.1 provides for a minimum payment period. It doesn't deal with the rate for work performed on a Sunday and 33.2 relates only to day workers but it states that all time worked on a Sunday will be paid at double time. It's perhaps telling that that provision does not extent to shift workers. The provision does not provide that all hours worked on a Sunday for a shift worker are also to be paid at double time.

PN197

In our submission, that may be a relevant contextual consideration to the extent that the Commission turns its mind to the operation of the current clauses that are contained in the award.

PN198

Notwithstanding the contentions or the submissions that have been advanced by the Unions, we say that the changes that they have proposed in these proceedings are significant in their nature. I think it's been accepted by the TWU in their written submissions that the variations proposed do go beyond what might be characterised as a mere clarification of the existing provisions. It's for that reason that we say that a proper merit cases founded in probative evidence is necessary to move this Commission to make the changes proposed.

PN199

In our submissions, we've identified that we consider that the TWU's claim goes beyond simply increasing the overtime rate and that it potentially expands the circumstances in which overtime may be payable. Now, in its written reply submissions, the TWU has identified that that's not its intention, but there's been no alternate proposed forthcoming that addresses the issue that we've identified.

PN200

We remain concerned, notwithstanding the submission that's been made by the TWU that that would be the consequence of the terms of its proposal, inadvertent though it may be, and that there's be no justification provided for that element of the claim if it is to be advanced in that sense.

PN201

Finally, before I move off this issue, Mr Gibian made some reference to today about there being a disharmony between clause 32.1(b) of the award which relates to overtime and the way in which it operates with provisions dealing with the ordinary hours of shift workers. I think the submission is that 32.1(b) refers only to 28.2(c) which relates to day workers and there is no comparable cross-reference to provisions dealing with the ordinary hours of shift workers and to that extent, that is one of the issues that the TWU's claim seeks to remedy.

PN202

Whilst I don't have a copy of the Commission's decision or the exposure draft that has been published in the context of this review to hand. The Commission will likely recall that this is an issue that has been identified and it is our understanding, resolved through the exposure draft process. In this review there was compromises sought that was reached between the parties such that this provision would be amended such that it would refer to clause 28.3 of the current award.

PN203

Ms Srdanovic's helpfully just handed me the decision. The citation is [2018] FWCFB 1548 paragraphs 108 to 110.

PN204

DEPUTY PRESIDENT ASBURY: Sorry, paragraphs?

PN205

MR BHATT: 108 to 110.

PN206

DEPUTY PRESIDENT ASBURY: Thank you.

PN207

MR BHATT: Turning then to the Part 10A award Modernisation process, much is sought to have been made by the unions in these proceedings about that process and it appears to us that a central tenet of the Union's argument is that the distinction between continuous and non-continuous shift workers for the purposes of overtime is an unintended consequence that has flowed from the award Modernisation process.

PN208

They appear to rely significantly on the fact that the initial proposal to include such a distinction was filed by the ACTU on behalf of its affiliates at the start of that process. They further argued that that issue of whether such a distinction should in fact exist in the award, wasn't given any actual consideration either by the parties or by the Commission.

PN209

Now I don't intend to labour through the volumes of the material that the Commission has before it in relation to that process, but having closely examined the documents which include those that Mr Gibian has taken to this warning, it appears to us that in fact at the site of the process, there was somewhat of a back and forth between the parties about what the appropriate overtime entitlement should be.

PN210

It started with a draft award that was filed by the ACTU and on or around the same time the Qantas Group and Ai Group both filed draft instruments that contained proposals and those proposals were in different terms. There was subsequently a second round of draft instruments that were filed. The ACTU at that point in time altered its position such that all shift workers would be entitled to a higher overtime rate.

PN211

The Qantas Group filed a draft award and a submission in which it altered its position to adopt the ACTU's first position and, in a submission, accompanying that draft award that was filed on 1 April, and I'm reading from page 1134 of the exhibits book.

PN212

DEPUTY PRESIDENT ASBURY: 1134?

PN213

MR BHATT: Of the exhibit book.

PN214

VICE PRESIDENT CATANZARITI: Yes. I think that's our folder three.

PN215

MR BHATT: Yes, towards the top of the page the submission states:

PN216

The Qantas Group in conjunction with Ai Group has now considered the draft award filed by the ACTU on 18 March 2009.

PN217

That's that first draft award that I've referred to. Then, just past halfway down the page there's a subheading ACTU draft.

PN218

The position taken by the Qantas Group in response to the ACTU can be divided broadly into the following four categories.

PN219

The submission then goes on to describe the four categories into which the various clauses proposed in the ACTU draft appear to fall. If nothing else, that submission demonstrates that consideration had been given by the Qantas Group to the proposal that had been put forward. At paragraph (b), it states:

PN220

Clauses where there is a substantive difference between the clause proposed by Qantas Group or Ai Group and the cause proposed by the ACTU, that the Qantas Group is prepared to agree to the ACTU clause.

PN221

That is, there was a category of clauses where there was some distinction between the two that the Qantas Group had adopted the ACTU proposal because it was prepared to do so.

PN222

Following this back and forth was the publication of an exposure draft by the Commission in May of 2009. That exposure draft adopted what had become the Qantas Group proposal for the relevant overtime clause. From that point onwards it seems to us that that exposure draft became the focal point of the proceedings and effectively subsumed whatever debate might have come before that between the parties in the context of the relevant draft award.

PN223

Following the publication of that exposure draft, I've not been able to identify any debate between the parties about the relevant overtime provision. In that context, it's hardly surprising that the Commission went on to adopt that provision as it was found in the exposure draft and did not seek to make further comment about it. Certainly not surprising, when consideration is given to the nature of the process that was the Part 10A award Modernisation process and the very significant number of awards and issues pertaining to those awards that were dealt with by the Commission in each of its decisions.

PN224

DEPUTY PRESIDENT ASBURY: But Ms Bhatt doesn't that part of the further submissions by the Qantas Group that you've just taken us to.

PN225

MR BHATT: Yes.

PN226

DEPUTY PRESIDENT ASBURY: Doesn't (b) really - I mean given it says we're prepared to adopt, doesn't that seem to indicate that look, we understand there's - we're prepared to accept certain aspects which really implies - you can agree or disagree with this, that we're conceding a better provision that we otherwise would have; we're prepared to accept that.

PN227

Because arguably, I mean, what - if there was an error on the part of the ACTU then the error - and there was a mutual error, then if we hold people in perpetuity to mutual errors, I mean if the employers had have made a mistake; if all the awards had have provided for time and a half for the first two hours and et cetera. Then they were standing here saying well, all the preamble awards said this, clearly there's been an error, we didn't intend to do something.

PN228

You know, the shoe could easily be on the other foot and do we want to create a scenario whereby if there is an error and I don't know - I haven't for my part, formed a view one way or the other at this point. But let's say a party come to the Commission and says we made a mistake. We didn't realise what we had done at this point and here's the evidence that we never intended to do it because nothing that was there to start with provided for that.

PN229

As Unions, is it really logical that we would have put forward a proposal that was for less than what we already had and we've made an error and here's where they've picked up? Because they originally agreed with the awards as they were; they've picked up our error; it's a mutual error and we want it fixed. Is there some equity or justice in fixing it, if that's the case? Or do you not concede there was an error?

PN230

MR BHATT: Well, firstly, we don't concede that there was an error. Certainly, the material that has been put before the Commission in the context of these proceedings does not establish that there has been an error. I mean, I guess the difficulty with this is that the parties and to that extent, the members of this Full Bench are dealing with the documents on their face as they were filed some 10 years ago.

PN231

VICE PRESIDENT CATANZARITI: You say you don't concede an error because you've specifically turned your mind to it on page 1183; that's what you rely upon. Because on any view, the clause is there. Agree to the ACTU clause except for the following.

PN232

MR BHATT: And the commentary at page 1183 is I think, consistent with the earlier - - -

PN233

VICE PRESIDENT CATANZARITI: With the covering letter.

PN234

MR BHATT: That's right. That's right. But in any event, to deal further with the question that the Deputy President asked me earlier, I mean ultimately, regardless of what was in the state of minds - regardless of what was in the minds of the parties at the time, it was ultimately a matter for the Commission. It was the Commission that made the awards, the Australian Industrial Relations Commission as it was then. The task that it had before it was to ensure that when the awards were made, a balance was struck between the interests of employers and employees. By virtue of the award Modernisation request it was required to ensure that the process didn't disadvantage employees, it didn't increase costs for employers.

PN235

I think that's where this concept of swings and roundabouts, as crude as that might sought, appears to have emerged. I think there was some discussion about this between Commissioner Cambridge and Mr Gibian this morning. Contrary, we say, to - I think it's in the AMWU's written submissions, and the submissions Mr Gibian made this morning. In our view, that assessment was not a clause by clause assessment. It was not a matter of analysing the provisions that applied prior to the making of the modern award as compared to the proposed modern award.

PN236

It was an analysis that necessarily involved a holistic consideration of the terms and conditions afforded by the various relevant instruments as compared to the proposed modern award. Now, I think Commissioner Cambridge made this point earlier today that the process was not one about no employee entitlement falling back at all, or being reduced through that process. In fact, the Commission expressly acknowledged that the creation of modern awards would result in some conditions decreasing as well as others increasing.

PN237

It was in that context that appropriate transitional provisions were formulated. I think we've extracted the relevant part of the Commission's decision that deals with this exact point in our written submissions at pages 18 to 19.

PN238

But I think ultimately, as I said earlier, the matter ultimately turned on the Commission's consideration of the proposals that were before it. The question before this Full Bench is whether the proposed clause is necessary to ensure that the award achieves the modern award's objection. That consideration doesn't turn on what was in the minds of the parties some 10 years ago. We say that even if contrary to our submission the Commission were to conclude that the issue wasn't considered during the Part 10A award modernisation process or that there was some inadvertence, that conclusion is irrelevant to the Commission's consideration or application of the test imposed by section 138 of the Act.

PN239

I think the TWU today has submitted that the current clause reflects a departure from the industry standard that applied prior to the modern award being made, which in its submission it does. Then it is necessary that the clause - - -

PN240

VICE PRESIDENT CATANZARITI: But isn't there another factor that in reality, there were not many people doing continuous shift work? I mean, it's not a feature of this particular industry at the time, even today. There are shift workers, but continuous shift has particular meaning. For my part, I'm struggling to understand how - you know, it seems like they've lifted a clause from somewhere else, which is relevant where there are continuous shifts and you're saying that covers the field because of that drafting.

PN241

MR BHATT: To the extent - and I was going to come to this later, because I think it's a submission that the TWU has made today as well. But continuous shift work is not a common feature of the industry; that's a factual proposition that's - well a factual assertion that's made by the - made from the Bar Table. It's not one that we accept; it's not one in support of which any evidence has been filed in these proceedings.

PN242

VICE PRESIDENT CATANZARITI: Well, that gives me - I'm sure that could be readily dealt with by putting evidence on, because speaking for myself, I have an impression that continuous shift work is not common in the industry.

PN243

MR BHATT: I don't have instructions either way to assist the Bench with that issue; that is, that the prevalence or otherwise of continuous shift work in the industry. But I do know though that - - -

PN244

VICE PRESIDENT CATANZARITI: Commissioner Cambridge may be best placed because he knows a lot more about continuous shift work in this industry.

PN245

COMMISSIONER CAMBRIDGE: Perhaps if - I mean I think the submission has been put that the nature of airport operations isn't likely the nature of operation of a lead smelter or a steel blast furnace where - the concept of continuous shift work is ordinarily applied to rotating 24 hour shift operations. I think just as a general proposition, I don't think we're looking at the nature of the industry here isn't like that.

PN246

If you think that's wrong, then obviously, perhaps there needs to be some empirical evidence about that. But I would have thought that we're dealing more with circumstances where we have shift work that doesn't fit within that concept of 24 hour rotating continuous shift work. I'm in accord with the Vice President's general understanding of that. If that's wrong, then we'd need to be disavowed of that view.

PN247

MR BHATT: I don't think I can take that further than to say that I don't have instructions today as to the extent to which our members employ workers on continuous shift work. Continuous shift work is not new in this industry to the extent that it is recognised by the award system because as has been identified, continuous shift worker as a concept was found in the pre-reform Transport Workers' Award.

PN248

I don't think we can assume based on the material that is before the Commission that employers to not utilise those provisions. In fact, my understanding is that some of the enterprise agreements that are referred to by Mr O'Brien also contemplate continuous shift work. Now, in the context of an enterprise specific instrument that has been struck between an employer, its employees and the relevant bargaining representatives, tends to suggest that it is perhaps a shift pattern that is utilised by at least those employers. But I can't take that any further than that.

PN249

DEPUTY PRESIDENT ASBURY: Ms Bhatt, while you're being diverted from submissions, can I just take you back to a point you made about the transitional arrangements a few minutes ago?

PN250

MR BHATT: Yes.

PN251

DEPUTY PRESIDENT ASBURY: It strikes me that if you're right, so if this was something that was - that we can't accept was an error; so, there was a change. It doesn't seem to be in dispute that this would have been a change, because previously all shift workers in all of those instruments were entitled to double time for all their overtime, then why wouldn't A.6 of the transitional schedule have applied, because that would have been loading that would have been the employer, but for the operation of an agreement-based transition. It would have been subject to the phasing-in arrangements.

PN252

So, it would have been 80 per cent. It wasn't an inconsequential amount. It was, you know, the difference between time and a half and double time, it would have been subject to the phasing of 80 per cent, 60 per cent, 40 per cent, 20 per cent. And was it? So, if it was really deliberate, then it would have been subject to that phasing, wouldn't it?

PN253

MR BHATT: That's my understanding. Unless I'm misunderstanding the Deputy President's question and you'll correct me if I am, I think that the expression consideration given by the Commission when the transitional provisions were formulated and then adopted across the award system, were formulated in exactly that context.

PN254

There was a recognition that entitlements in some cases would be decreased and in other cases would be increased and that it was in the interests of employers and employees respectively that those transitional provisions be implemented and then applied.

PN255

DEPUTY PRESIDENT ASBURY: They might not have been if no one knew about this until 2016. That was the first time it came to anybody's attention.

PN256

MR BHATT: And whether or not that was the first time that this came to anyone's attention is - I suppose that's a question of fact and there might be some dispute between the parties that are here today about whether or not that's true. But again, I don't think I can take that further.

PN257

DEPUTY PRESIDENT ASBURY: No, thank you.,

PN258

MR BHATT: Unless there are any other questions about the Part 10A process, I'll move on then to submissions that have been made about the disutility of performing shift work. Now, the Unions have sought to argue that there is no distinction between the disutility performed by continuous and non-continuous shift workers and therefore, the same overtime rate should apply to both groups of employees. We've responded to that contention in our written submissions.

PN259

But since then, there's been some specific mention made by the TWU to the absence of any apparent difference in disutility when performing the first two hours of overtime, which is essentially what's in question in the context of the claim that's been advanced. In our submissions its conceivable that the disutility associated with performing any overtime on continuous shift work is greater by virtue of the range and variability of the hours that an employee might be required to perform on a 24/7 shift pattern.

PN260

But in any event, in our submission, the award seeks to strike a balance between the entitlements that are ascribed to different groups of employees by reference to the type of work that they perform. The grant of the Union's claim would upset this balance and potentially call into question the basis upon which other award provisions for a distinction between continuous and non-continuous shift worker.

PN261

I think Mr Gibian took you to provisions earlier today that deal with meal breaks and crib breaks. There's also the annual leave provision that affords an additional week of annual leave, in some cases to continuous shift workers. In our submissions, it's also relevant that there are many other awards that draw a distinction between continuous and non-continuous shift workers. It our submissions we've listed, I think it's about 17 awards that draw a distinction between the two types of shift work for the purposes of overtime in a similar vein.

PN262

To this extent, this award is certainly not out of step with the way that the modern award system generally deals with the matter.

PN263

VICE PRESIDENT CATANZARITI: Of course, what we don't have in relation to those awards is the history of those awards as to whether they didn't have the problem in the first place.

PN264

MR BHATT: Yes. No, I understand that.

PN265

The only evidence that's before the Commission about the disutility of performing shift work, is that of Mr Stellar who is an employee of Dnata Catering. Mr Stellar is not a continuous shift worker. It's not clear from his statement whether he's ever performed continuous shift work. Despite this, he purports to give sweeping evidence about the potential implications of performing shift work for all shift workers generally, which is evidence that you can't properly give. He's not an expert witness; he's not undertaken any study or analysis of the health implications or otherwise of performing shift work.

PN266

In our submission, much of the evidence that he has given, he doesn't have a proper foundation for. So, to that extent it's of very limited probative value and should not be given any weight by the Commission.

PN267

Finally then, if I can turn to the relevance of enterprise agreements operating in the industry. The Unions have asserted that the impact of the claim will be minimal due to the prevalence of enterprise agreements operating in the industry and the extent to which they provide for above award overtime entitlements.

PN268

The Unions rely in this regard, on the evidence of Mr O'Brien. Attached to Mr O'Brien's statement is a list of companies with whom the TWU has negotiated enterprise agreements that are underpinned by the Airline Operations Award. The table then purports to identify whether those agreements provide for a rate of double time for all overtime performed by shift workers covered by the agreement.

PN269

I should say that in our view, that part of Mr O'Brien's statement constitutes nothing other than his opinion about the proper interpretation of the relevant instruments. On one view it's of limited probative value. Whether an instrument provides a certain entitlement or not is a question of law.

PN270

We also have some concerns about - - -

PN271

VICE PRESIDENT CATANZARITI: Are you suggesting that if you went to the Virgin Ground Crew agreement you wouldn't find the clause provided what it said there?

PN272

MR BHATT: I'm about to take the Commission to at least one enterprise agreement where we have a view that the statement doesn't accurately reflect the entitlement afforded. There's a reference in that table to Cabin Services Australia. Can I hand up copies of the enterprise agreement to the Bench?

PN273

VICE PRESIDENT CATANZARITI: Mr Gibian, I see where this becomes a live issue. You have all those agreements with the clause extracted.

PN274

MR GIBIAN: We could certainly provide that. I was just notified of this - I think this is the only one which is alleged to be in error; I was just provided with it now. We'll check that.

PN275

DEPUTY PRESIDENT ASBURY: No, I think the submission is at least, this is one.

PN276

VICE PRESIDENT CATANZARITI: At least, is the submission.

PN277

MR GIBIAN: Well, we're happy to provide them all. If there's been an error made, well we're happy to own up to it of course. But, I think this is the only one that's been suggested at least.

PN278

MR BHATT: I say at least, because I haven't undertaken a comprehensive review of all of the enterprise agreements referenced, and that is in part because there's been some difficulty with identifying what the relevant enterprise agreement might be, given that the title of the agreement or the agreement code hasn't been provided.

PN279

If I can take the Commission to clause 10.3(a) of the agreement. I just note that it defines continuous shift work in relevantly similar terms to the award. And then if I take the Commission to clause 13.2(a), page 16. The provision provides for overtime rates for all work done outside ordinary hours on any day or shift. It requires that the employees be paid at the overtime one rate set out in the schedules for the first two hours and the overtime two rate set out in the schedules thereafter until the completion of the overtime work.

PN280

It then goes on to provide that for continuous shift workers, the rate for working overtime is the overtime two rate. Now, these references to overtime one and overtime two can be explained by reference to schedule one, starting page 38 of the agreement. The Agreement articulates that the dollar amounts that are payable in these schedules - at the bottom of the page the Commission will see that the dollar amounts that are ascribed to overtime one and overtime two which equate to about time and a half and double time of the base hourly rate. They come in slightly under.

PN281

In any event, it appears that the structure of the overtime provision resembles that which is contained in the award. It doesn't provide for twice the hourly rate for shift workers. I also note that Mr O'Brien's evidence doesn't appear to constitute an exhaustive list of enterprise agreements applying in the industry. His evidence is that enterprise agreements are for which the TWU is a bargaining representative. It's also relevant that the enterprise agreement - - -

PN282

VICE PRESIDENT CATANZARITI: Just before you move on, I'll make this exhibit 2. I think we should have this formally identified. This is the Airline Cleaning Cabin Services Australia Enterprise Agreement.

EXHIBIT #2 AIRLINE CLEANING CABIN SERVICES AUSTRALIA ENTERPRISE AGREEMENT

PN283

MR BHATT: Thank you. The enterprise agreements referred to by Mr O'Brien also don't cover all of the streams of classifications within the award. As the Commission knows, there are four streams of classifications within the award. They appear to run primarily to the transport workers' stream, and in his statement, he notes that some of the agreements cover multiple streams of the award, but it's not clear which ones they are or to what extent.

PN284

In our submission, the scope of the evidence is therefore limited. It doesn't provide the Commission with any evidence as to the prevalence of enterprise bargaining covering employees engaged in other streams of the award, or terms and conditions that apply to employees who are so covered. For all of these reasons we say that the probative value and the relevance of Mr O'Brien's evidence is somewhat limited.

PN285

If I can deal just briefly then with submissions that have been made about the issue of enterprise bargaining. The relevance of the minimum safety net to enterprise agreement covered employers and the potential consequences of the grant of a claim on the, should not be under-estimated. Contrary to the Union's submissions, the mere existence of an enterprise agreement operating in the industry, does not of itself, render their claim inconsequential or even of limited consequence for employers covered by agreements. They're not somehow insulated from the consequences of the claim.

PN286

The material before the Commission does not establish that enterprise agreements operating in the industry are such that they would continue to pass the Better Off Overall Test if their claim was granted. In fact, in our submission it's notorious that employers seeking the approval of enterprise agreements in the industry are required to provide a number of undertakings to the Commission in order to satisfy the Commission that the agreement passes the Better Off Overall Test.

PN287

In my endeavours to review some of the agreements that have been referenced by Mr O'Brien, this has become quite apparent. There are some employers who have been required to provide pages of undertakings, some of which relates specifically to overtime rates applicable to part time employees, a matter which I think the Qantas Group submissions deal with in some detail.

PN288

In our submission, this issue is potentially particularly relevant in the context of enterprise agreements that afford their employees loaded rates, some of which have been identified by Mr O'Brien. His evidence also demonstrates that an employer's operations might not be entirely covered by enterprise agreements. It appears that there are some employers whose certain sites are covered by enterprise agreements, but others continue to rely on the award.

PN289

Menzies Aviation is one such example and, in such circumstances, it cannot be said that a further increase to the minimum safety net would not adversely impact on those employers. Beyond that, our written submissions deal in detail with the modern award's objectives and the various factors listed at section 134(1) on which we continue to rely and I don't need to repeat them today.

PN290

So unless there are any questions, those are our submissions.

PN291

DEPUTY PRESIDENT ASBURY: Ms Bhatt, I'm sorry again to take you back, but can you just go back to the point you made about another matter dealing with the disharmony between clause 32.1(b)?

PN292

MR BHATT: Yes.

PN293

DEPUTY PRESIDENT ASBURY: Can you just take me back - I'm sorry, I just got a bit - so, the proposal is that - or what's been agreed is that what will happen? It will refer to clause 28.3?

PN294

MR BHATT: The proposal is that - - -

PN295

VICE PRESIDENT CATANZARITI: The Full Bench is here.

PN296

MR BHATT: That clause 32.1(b) will be amended.

PN297

DEPUTY PRESIDENT ASBURY: Hang on a minute, just let me get that. Yes, 32.1(b), yes.

PN298

MR BHATT: Will be amended, so that it will refer to clause 28.2, which is ordinary hours of work for day work.

PN299

DEPUTY PRESIDENT ASBURY: So (a) will refer to 28.2? That's the bit I missed. Okay, so (a) will refer to 28.2.

PN300

MR BHATT: No, Deputy President, subclause (b).

PN301

DEPUTY PRESIDENT ASBURY: Yes.

PN302

MR BHATT: Will refer to three clauses. The first one is 28.2.

PN303

DEPUTY PRESIDENT ASBURY: Right.

PN304

MR BHATT: The next one is 28.3.

PN305

DEPUTY PRESIDENT ASBURY: Yes.

PN306

MR BHATT: And then 28.4(a).

PN307

DEPUTY PRESIDENT ASBURY: Right. So basically it will be however you have set the hours for any category of employee, in accordance with clause 28, outside that or in excess of that is overtime?

PN308

MS BHATT: That's right.

PN309

DEPUTY PRESIDENT ASBURY: So I only heard one of those. I think I've got someone's cold, I missed two of those subclauses there.

PN310

MS BHATT: No, Deputy President, I didn't take you through all of that detail the first time, that's why.

PN311

DEPUTY PRESIDENT ASBURY: Okay.

PN312

MS BHATT: What that proposal doesn't to is reference the overtime entitlement to the provision dealing with shift work rosters, which is what the unions here appear to be seeking to do. Some of the anxiety in our written submissions comes from that.

PN313

DEPUTY PRESIDENT ASBURY: Now I understand. So, essentially, that reference to - because I accept that reference to (c) limits it, and what the intention of that variation will be is to say once you set your hours, in accordance with clause 28, then anything outside of or in excess of that will be overtime, but it doesn't deal with the rate of overtime, depending on the roster.

PN314

MS BHATT: Yes.

PN315

VICE PRESIDENT CATANZARITI: I understand, thank you.

PN316

COMMISSIONER CAMBRIDGE: Could I just ask you this question? Theoretically, I'm a non continuous shift worker and I'm going to be working two hours of overtime on Sunday, in addition to my ordinary Sunday shift. What would I be paid?

PN317

MS BHATT: You'd be paid in accordance with clause 32.1(a), which would entitle the employee to time and a half for those two hours.

PN318

COMMISSIONER CAMBRIDGE: So I'd be working at double time up until I started overtime and then I'd be going to time and a half?

PN319

MS BHATT: That would be the effect of the provisions, yes.

PN320

COMMISSIONER CAMBRIDGE: Thank you.

PN321

MS BHATT: Thank you.

PN322

VICE PRESIDENT CATANZARITI: Thank you. Ms Srdanovic?

PN323

MS SRDANOVIC: Thank you, your Honours and Commissioner. I propose to address a number of matters that have arisen during the course of Ms Bhatt's submissions and also in the submissions advanced today by Mr Gibian and the others in support, before turning to some of the more substantive issues going to the history.

PN324

If I can perhaps start with the hours of work variation, which is referred to in the most recent decision, published by the Full Bench, and Ms Bhatt outlined the citation for that. The relevant paragraph dealing with the overtime, technical and drafting issues were, as Ms Bhatt indicated, from paragraphs 108 to 110.

PN325

Just to point out that that was the subject of quite a bit of discussion between the parties in the lead up to actually making submissions on that point. At paragraph 109 it's indicated that:

PN326

Qantas agrees with the following amendment to clause 23.1(b) of the exposure draft on the basis that overtime is not payable in circumstances where there is a change to the shift roster made in accordance with clause 17.2.

PN327

And that, I think, is then going to a difference of position, which is then advanced by the TWU in the variation it seeks to the overtime clause. I just wanted to point out that particular item. The parties were invited to make submissions on that provisional view, which was expressed by the Full Bench and, as far as I'm aware, no particular submissions were advanced, but that decision sits where it does, on the current wording of the exposure draft.

PN328

Second, there have been some questions directed to the nature of the industry and the extent to which continuous shift work is a feature of the industry. I don't have any empirical evidence to advance standing here before you now, but my instructions are that it is variable as between probably different groups.

PN329

So as you can appreciate, this is an award which deals with multiple streams of workers. There's transport workers, store person and logistics, maintenance and engineering and also clerical and administration. So what I understand to be the position will be that in maintenance and engineering, for example, continuous shift work would more so a feature of that particular steam versus the position, perhaps with a clerical and administration stream.

PN330

Continuous shift work I think is something which is clearly contemplated as being possible within the industry. So much is indicated by the historical context that led to the making of the award, but I don't think we could say, for example, that continuous shift work is not a feature of the industry at all.

PN331

The other point to make on that is that this is an award, and I'm going to develop this in more detail, but it's an award that provides for a definition of early morning shift and when you have a look at the definitions which span early morning shift, day shift and then there are two definitions of night shift, it seems to cover the clock. So although you may not be a continuous shift worker, at least on this award early morning shift is a shift commencing between 4 am and 7 am, which attracts a particular penalty or a loading. That, in and of itself, is not necessarily a feature of all modern awards. So the nature of the industry is reflected in the definitions of shifts and in the loadings which are attached to it.

PN332

The third mater to address is on this question of when did the parties or the unions become aware of this issue. Now, we've heard the AMWU advance a position that it became aware when the exposure draft was published, in 2016. If I can indicate, our understanding has been that it became aware of this, what it describes as an anomaly, between being paid ordinary hours on a Sunday, at the rate of double time if you're a shift worker, but then moving into a drop to 150 per cent for your first two hours of overtime, Cambridge C going to your point, and then thereafter attracting double time.

PN333

As that matter, it was known as item 48 in the technical and drafting stage, as that matter has then progressed, it's become more about or it's diverged into two issues really. That remains an issue, "What does a shift worker get for overtime rates on a Sunday?", but then there's a broader issue, which is the one that's being opposed by the Qantas Group, that the rate of overtime for all shift workers is then double time.

PN334

Now, on that - - -

PN335

VICE PRESIDENT CATANZARITI: The Qantas position is that the anomaly on a Sunday should be fixed.

PN336

MS SRDANOVIC: It is. Yes, we don't oppose that, your Honour. On the second issue, however, and this question of notice, my instructions here, and apologies, I don't have a copy of the decision to hand up, but what you will see is that our written submissions refer to, at attachment A, a number of enterprise agreements, and perhaps not all of them, which deal with part-time conditions of employment for shift workers within the Qantas Group.

PN337

As a general proposition what you can see is that some of these enterprise agreements provide for part-time shift workers to have their days, their hours on a particular day extended at single time rates up to, for example, 7.6 hours, in the case of the Transport Workers' Agreement, which is the first one listed.

PN338

Now, what that means is that each and every time an enterprise agreement like this is submitted for the better off overall test, invariably a question arises as to the comparison between single time rates versus overtime rates. The Qantas Group has made, depending on the entity, various submissions in relation to these enterprise agreements, about what is the proper basis for that comparison. But it is clearly an issue, in terms of the overtime rate that is payable to shift workers and, in that regard, I can refer to a decision of Drake SDP, from 5 July 2013, I do have the citation, having just looked it up in the break. Just one moment, I'll provide the citation and we can provide a copy of the decision following.

PN339

Just while we're getting that, that decision, at paragraph 6 - here we are, [2013] FWCA 3953. This is a decision which concerned an application for approval of the Qantas Courier Agreement 2013, pursuant to which the ASU and the TWU were bargaining representatives or at least involved in contesting the application for approval of the agreement.

PN340

There was a specific issue about the methodology which Qantas used to compare the rate of overtime which would be payable for a part-time shift worker under the agreement versus the award and we can discern that from paragraph 6 of the decision. In fairness, Mr Gibian does not have a copy of this in front of him, but what that decision does refer to and, I think, what the file would indicate is it says:

PN341

Qantas provided a comparison of clerical 2.1 extension hours -

PN342

And if I pause there, these are the extension hours I'm referring to on the particular day in question, which are extended at single time:

PN343

and written submissions.

PN344

It goes on to say:

PN345

Following the hearing Qantas provided a copy of correspondence between the TWU and Qantas regarding this issue, and a further written submission regarding the actual hours of the two employees in this classification.

PN346

Now, that goes to the methodology around what is the rate of overtime that's payable for a shift worker who may not be a continuous shift worker. And, in that regard, we would say since at least 2013, if not earlier, the union, particularly the TWU, would have been on notice about how Qantas was applying the particular overtime rates within the Airlines Operations Ground Staff Award. So much so it can further be discerned from the fact that the part-time shift worker clauses do provide for that. And that is a matter which is the subject of, invariably, submissions by the various entities. It's dealt with in the forms F17, which are filed in support of applications for approval and, occasionally, undertakings are required to be given.

PN347

DEPUTY PRESIDENT ASBURY: Is that because the extension has the effect of changing the ordinary hours for the day for that part-time employee?

PN348

MS SRDANOVIC: It becomes overtime for that part-time employee for that day, for the purposes of the award. But for the purposes of the enterprise agreement it's an extension paid at single time.

PN349

I am also aware, on instructions, that this is an issue that has come up also, for example, with the Qantas Ground Services Ground Handling Agreement, in 2015. I surmise that the Commission's file for that particular agreement would also refer to various matters relating to part-time shift workers.

PN350

These are all matters which we can address further, in writing, if your Honours and Commissioner would like further material on that, but I think it's relevant to the question of notice.

PN351

If I can then turn to, unless you have any further questions on those matters, propose to go to the history of the making of this award. Having been involved in it, as a lawyer, right back from 2008/2009, there was a very extensive history that related to the making of this award.

PN352

So much can not be discerned from the volume of material filed but can indicate there were various conferences held between the parties. The ACTU was obviously involved. The ASU and the ALAA, in particular, were very involved. This also does not come out from the material that's been filed, but this award was then the subject of an award modernisation variation request, which was issued by the Minister at the time, so there was another look at classifications and rates of pay for particular stream of employees.

PN353

Looking then at the history, a lot seems to have been made by this suggestion that the inclusion of the word "continuous" before "shift worker" was perhaps unintended or that no one seems to have turned their minds to the issue. We do take issue with that, as a general submission and proposition.

PN354

Both Mr Gibian and Ms Bhatt have taken your Honours and Commissioner through the various awards that were filed. In particular, however, I just want to go to the page 1134 of the exhibit book and to put these submissions in context. This was the second set of submissions which the Qantas Group filed, accompanying the second draft award which it submitted and I think it's relevant to note that the Qantas Group did submit two awards as part of the process, and so did the ACTU.

PN355

The position that was taken, and Asbury DP, your Honour did ask, "Does this mean that the Qantas Group was just saying we concede this point?". What you can see when you work through, and I can take you to a specific example, is that there was very much a rebalancing of the terms and conditions and looking at what would be the safety net for a variety of streams of employees and also looking at the safety net entitlements for shift workers.

PN356

You can see, at page 1135, that there were some examples where there was a substantive difference between the clauses proposed by Qantas Group and Ai Group, and the clause proposed by the ACTU and the Qantas Group would press for it.

PN357

Subparagraph (b) then, which proceeds that, is that the Qantas Group did compromise on certain matters but then also accepted the position which had been advanced by the ACTU, in respect of certain matters.

PN358

I do think something should be made of the fact that as you go to page 1183 the two clauses there, when it comes to overtime, are clearly compared side-by-side. It's not as though it's a case of trying to get something through to the keeper and just hoping for the best. They're clearly compared side-by-side and the Qantas Group indicates its agreement with the ACTU clause, save for the specific matters referred to there.

PN359

What's then, I think, even more telling is if you go to the second ACTU draft award that's filed, and that's at page 1065 of the exhibit book and perhaps we're all operating on different volumes, I won't attempt to guess the volume that that's in for you, but - - -

PN360

VICE PRESIDENT CATANZARITI: 1065?

PN361

MS SRDANOVIC: Yes. Page 1065. So what this document is here, commencing at page 968, is the second draft award that was filed by the ACTU. Notably, it's filed on 1 April, or that's the date stamp that's on it, which is the same date that the Qantas Group filed its second draft award, on 1 April.

PN362

VICE PRESIDENT CATANZARITI: An unfortunate date, in may respects.

PN363

MS SRDANOVIC: Indeed. Well, at page 1065 we say the ACTU here has actually modified the wording of the overtime clause as between the first draft it submitted and this draft. Now, the first sentence here:

PN364

All work done outside of ordinary hours on any day or shift paid at time and a half for the first two hours, double time thereafter.

PN365

We say that would seem to have a link in with day work. And then the second one:

PN366

All work in excess of or outside the ordinary working hours, or on a shift, other than a rostered shift, will be paid at the rate of double time.

PN367

If you then have a look at what the TWU is today seeking to advance before the Commission, supported by the other unions, the wording there is not entirely dissimilar, save it's separated by subparagraph (a) and subparagraph (b), to the determination which is today being sought.

PN368

That's significant, we say, because by the time the Australian Industrial Relations Commission, as it then was, comes to actually publish an exposure draft, it has before it three different versions of an overtime clause. It has the original one, submitted by the Qantas Group, I believe on 6 March. It then has the modified Qantas Group version, submitted on 1 April, and it has the ACTU's position, which is submitted on behalf of the affiliate unions, in clause 36.1.

PN369

DEPUTY PRESIDENT ASBURY: When was that submitted?

PN370

MS SRDANOVIC: On 1 April.

PN371

DEPUTY PRESIDENT ASBURY: Who got theirs in first, on the 1st?

PN372

MS SRDANOVIC: That I don't know. But by the time the Commission comes to publish the exposure draft, that's on 22 May. So there is a period here, between 1 April and 22 May, where the Commission had this material before it and, notably, as I've mentioned, the three different overtime clauses.

PN373

If you go then to the decision which published the exposure draft award, and that's at page 1274 and following of the exhibit book, paragraphs 12 to 16 deal with the airline operations industry and paragraph 16, I think, is particularly relevant here. We see the Commission says, and I'll read it for the transcript:

PN374

We've sought to adopt classifications currently applicable in the airline industry for transport workers, clerical, maintenance and stores employees and applied rates that we believe reflect properly fixed minimum rates for the classifications involved. We've included an eight level structure for each of the transport, clerical and maintenance streams and a five level structure for stores and logistics.

PN375

Then, if I can emphasise:

PN376

Obviously, in an exercise such as this, there is a balance to be struck in formulating classifications and rates because of the significant differences that exist between the current instruments.

PN377

Now, at this point no doubt the unions would advance a proposition, "Well, there was no difference in the rate that applied to overtime, the various clauses of the pre-reform award were all the same". However, what that ignores is that there were, in fact, differences with a number of other provisions. In our written submissions we referred to the span of hours clause generally, but if I can go on to expand upon that because it feeds into the definitions of shifts.

PN378

Again, looking at our written submissions, which were filed on 6 March 2009, you'll find that at page 573 of the exhibit book. As you're bringing that up, this is a schedule which the Qantas Group had prepared at the time, which was to be read in conjunction with the draft award which was filed.

PN379

Clause 24.2, just to confuse things even further, because no doubt it reflects any of the numbering. It was, in the Qantas Group draft, the clause which contains the definitions of what is an early morning shift, what is a day shift, what is a night shift, what are the applicable ratings.

PN380

On page 573 there, there is some commentary which we had submitted in support of the position around the early morning shift definition, the fact that it varied across all awards and that the shift definition varied across all of the awards and that the shift definition varied across all of the awards.

PN381

Ultimately, Qantas Group proposed a definition of early morning shift between 5 am and 7 am and what you can see, if you then go to the comparison table, where we lined up the Qantas Group position and the ACTU clause, when it filed the 1 April award, was that the Qantas Group then modified its position for the definition of early morning shift from 5 am to 7 am to agree with the ACTU clause, attempting to reduce the areas of compromise, to 4 am to 7 am, and that ends up being the definition of early morning shift, which we then see in the current award today.

PN382

The fact that there is a compromise with the definition of shifts compromises with the loadings which apply to shift workers, can be seen as part of the overall swings and roundabouts balancing exercise, which we say was before the Commission as it made the award and which was clearly before the minds of the entities within the Qantas Group, as it struck its position with respect to what would be an appropriate safety net for shift workers.

PN383

COMMISSIONER CAMBRIDGE: Before you move off that, if you look at page 573 you've just taken us to, this is rather a strange expression, "Continuous afternoon and night shift". That's part of the dilemma, isn't it? You see this is the concept of continuous shift work and people looking at the idea of that applying to a continuous afternoon and night shift. It seems to me that that's the oxymoronic, you can't say that.

PN384

MS SRDANOVIC: That actually arises in a different context around the pattern of work where continuous shift extends for five or more, five consecutive - - -

PN385

DEPUTY PRESIDENT ASBURY: Five consecutive afternoons or nights, yes.

PN386

MS SRDANOVIC: Which goes to the pattern, not the individual. It's different to the concept of continuous shift work.

PN387

DEPUTY PRESIDENT ASBURY: So you were agreeing there that you would extend that provision that says, "If the afternoon or night shift doesn't extend for -" but see, that was always, again - - -

PN388

MS SRDANOVIC: This has been the subject of a decision going back, I think, to the 1970s.

PN389

DEPUTY PRESIDENT ASBURY: Yes. Whether it's the shift or the person that has to continue was always - - -

PN390

MS SRDANOVIC: That's right.

PN391

DEPUTY PRESIDENT ASBURY: Yes, but that was that clause that you were - - -

PN392

MS SRDANOVIC: That was that clause.

PN393

DEPUTY PRESIDENT ASBURY: Yes, I understand.

PN394

MS SRDANOVIC: Not to do with continuous shift work, for the purposes of overtime. It's the clause which, I can go to it now in the current award.

PN395

DEPUTY PRESIDENT ASBURY: Yes, I was just looking at it.

PN396

MS SRDANOVIC: Yes, clause 30.5, which is:

PN397

Shift workers who work only the afternoon or night shift, which does not continue for at least five consecutive afternoons or nights must be paid at the rate of time and a half for all such shifts worked.

PN398

There is a long history of case law which goes to what that provision means, in the context of the system of work that you look at.

PN399

DEPUTY PRESIDENT ASBURY: There's also - that case law also goes to what continuous shift is, because it's the same argument. So if you slot into a roster where it's going for six consecutive days or nights, then you're working in that roster. But it's the roster, not you, that attracts - - -

PN400

MS SRDANOVIC: That's right. That's right, your Honour. So I respectfully submit that that's dealing with a different proposition to the one that is before the Bench for consideration, with the variation that's being sought.

PN401

DEPUTY PRESIDENT ASBURY: But that's why it may be relevant that - so you would say that's why it may be relevant that some parts of operations may be working a continuous roster, such as engineering? So somewhere in the operation there is a continuous roster going and therefore - yes, I understand.

PN402

MS SRDANOVIC: Yes. I think that is significant, because we can't overlook the fact that this award does bring together multiple streams with different allowances that apply to different streams and all of it goes to the nature of the work within those streams.

PN403

So, ultimately, where that gets us to, in our submission, is that this review, and this is set out in the preliminary jurisdictional issues decision, which the Bench will be very familiar with and which the parties will be familiar with, that this review proceeds, prima facie, on the proposition that the award, when made, was meeting the modern awards objective. That decision also pays some homage to the historical context applicable to each modern award and to take into account previous decisions relevant to any contested issue.

PN404

In our submission, the Bench should feel comfortable and be able to get to the point that this is not a case that there was no material before the Commission when the award was made, going to the differences. Indeed, the ACTUs final draft, we would say, closely mirrors what the TWU is today seeking to advance and, ultimately, the overtime clause was the subject of consideration by the parties and those who were involved in the part 10A proceedings. There was material before the Commission and, ultimately, the final award that was made reflects a position, with respect to the overtime. So your Honours should be able to come to the finding that, similar to what occurred with the rail industry award, that the history does support the current award in its terms.

PN405

That rail industry award decision is referred to in the Ai Group submissions and also, in reply, the AMWU deals with that. That's at [2017] FWCFB 719.

PN406

If I can then deal with the suggestion that any variation must be necessary, or not just the suggestion, it's actually the matter which the Commission must be satisfied of.

PN407

Now, the principles are all well set out in the submissions that has been filed by the parties but it is important, I think, to emphasise that any variation here must only be made to the extent that is necessary to actually meet and achieve the modern awards objective.

PN408

Now, there is well settled case law that the question of what is necessary to achieve it is a value judgment and it's the Qantas Group's position that this award does set an appropriate safety net and the variations sought would not be necessary to ensure that the award provides for a fair and relevant safety net.

PN409

VICE PRESIDENT CATANZARITI: Well, at least so far as exhibit 2 is concerned, the one we do have before us, for which it is noted that the TWU was a bargaining representative, noted (indistinct) covered in the organisation, the existing clause in the award was not content as being worthy of change in the agreement. So it goes to the point of whether it meets - that is necessary to (indistinct) the clause.

PN410

MS SRDANOVIC: Certainly. That's one example but there are many other examples and I think the - - -

PN411

VICE PRESIDENT CATANZARITI: Well, this is very late, that's the very reason why I raise it, because it's 2018, November.

PN412

MS SRDANOVIC: Yes. It's interesting. This effect of the submission sort of goes both ways, when you come to look at section 134(b) and the need to encourage proactive bargaining because when we see the AWU written submissions, for example, at paragraphs 47 and 48, that because of the predominant characterisation of overtime at double time for shift workers in a lot of the enterprise agreements, dealing with full-time, that there would be a limited impact on employers. If you accept that at face value then I think the next question to ask is why would this variation be necessary to encourage collective bargaining.

PN413

The flip side of that is that there is that example before you, also the part-time shift workers, who are extended at single time where we've listed those at attachment A to the Qantas Group's submissions, the Jetstar example, which is referred to in our submissions, which then go to what sort of effect would this have for costs on employers. Accepting that the Commission does not have any material before it going to the BOOT impact, because that would have to be seen in the context of any agreements which are subsequently bargained for. We do see there would be an impact on employers in applying the BOOT for those particular categories of workers, which is relevant to section 134(f), and that is a matter which we do refer to in our written submissions.

PN414

Come back to the fact, however, that what is required to establish that it is necessary would require a substantive merits case that is supported by probative evidence, and in our respectful submission, the union's case does not go far and does not meet the case that would be required to be met to actually establish this. It's one thing I think to say not all - and I think the Full Bench in its preliminary jurisdictional decision acknowledged this - not every variation will require a substantive merits case, but this is one where if you're seeking to change the overtime rate for all shift workers we firmly say falls into the category of requiring more detailed evidence.

PN415

Looking then at the material that has been filed, Ms Walton's statement sets out the history of the making of the award but does not go much further than that. It also does not explain the second ACTU wording of the clause, which appears to depart from the notion that continuous shift worker rates is the only one which would be double‑time overtime. Mr Stella's statement has been the subject of objections, and support the Ai Group's primary submissions in relation to the rate which should be given that. It's apparent also that Mr Stella is covered by an enterprise agreement which provides for overtime payments at double‑time for full‑time employees, and I think his statement goes no more than really talking to his personal preferences as a shift worker.

PN416

Then we get essentially to this submission we would advance that it would be desirable for the award to be varied in the union's case in the manner that is being proposed, but none of the submissions advanced, we say, engage with the idea that it would be necessary to actually achieve the modern awards objective. Mr Gibian on his feet today did say it would be necessary, as indeed we would expect him to, but there are paragraphs in the TWU's submission that - paragraph 40, for example, of 29 January - which go to it being that the variation will assist in achieving the modern awards objective, and I think that characterises what we would say is the overall tenor, that it would be desirable that the current award reflects the best of everything that existed in the pre‑reform awards, but that sort of line‑by‑line approach fails to have regard to that overall balancing exercise, particularly for the shift workers, as we mentioned.

PN417

Briefly then, coming to the safety net of terms and conditions, I think that notion of a safety net is critical. There are examples, and these are referred to in the Ai Group's submissions, that if what you're seeking by way of a variation is effectively a ceiling of terms and conditions as opposed to a safety net, that is not something which in and of itself should support the variation being made.

PN418

And then if I can just address a couple of points going to section 134, to the extent that I have not already dealt with them: subparagraph (a), we would say, is a neutral consideration; 134(b) and the need to encourage collective bargaining, I have addressed that already in respect of what the enterprise agreements within this industry go to. However, the union's case has not advanced any material to say that that is necessary to actually encourage collective bargaining and return to the idea of a safety net. The next one which has attracted some submissions by the parties is 134(da) and the need to provide additional remuneration. That is addressed by the TWU at paragraphs 41 to 43 of their 29 January submissions, but in our respectful submission, what the TWU is failing to acknowledge with that is that non‑continuous shift workers who are working overtime are provided with additional remuneration, and the Ai Group has some very detailed submissions going to authorities on the fact that an additional payment beyond what you would get for ordinary hours is additional remuneration on that point, and there isn't that we have seen that engages substantively with that proposition beyond that it would be more generous or desirable, or reflects what we had some nine years ago. Turning then to subsection (f) and the likely impact on business, including on productivity, employment costs and the regulatory burden, I've referred here to the differences for part‑time shift workers and fairly say that that would become an issue here.

PN419

So in conclusion, we would say that the principles establishing the framework are clearly well‑settled. They have been the subject of submissions, written submissions by the parties, and in our respectful submission, the unions have not advanced a merit‑based case which would warrant changing the position, but more importantly, the material that has been the subject of the exhibit books does demonstrate that this was the subject of detailed consideration and submissions by the parties. The simple fact of three versions of an overtime clause being before the Commission when it made the award, and then also modifications with respect to shift definitions, all go to making that submission in and of itself unsustainable. Unless there are any further questions, that's all I propose to go to.

PN420

DEPUTY PRESIDENT ASBURY: I just have one question. With respect to Qantas's position in relation to the Sunday penalty, if I could describe it as that, the matter that Qantas does accept should be addressed, is the basis that Qantas accepts that, is it that it accepts that there was an error or does it accept that there is a case for doing it on the basis of the principles set out in the Act, the modern awards objectives and the like, or is it a combination of both?

PN421

MS SRDANOVIC: We don't accept that it was an error. It more goes to what appears to be an anomalous situation of dropping down to single time as opposed to - sorry, to 150 per cent from 200 per cent. That being said, it is not a variation which we oppose. I know from when it was the discussion between the parties, there are other awards where that does happen. So I think to say it's an error would be putting an incorrect characterisation, but we do not see the merit in opposing that particular variation.

PN422

DEPUTY PRESIDENT ASBURY: Yes. So you would just say it's self‑evident on its face that there is some anomaly there and that you're not opposed to correcting it?

PN423

MS SRDANOVIC: That would be a correct characterisation.

PN424

DEPUTY PRESIDENT ASBURY: Yes, I understand. Thank you.

PN425

MS SRDANOVIC: Thank you, your Honour.

PN426

VICE PRESIDENT CATANZARITI: Thank you. Mr Gibian?

PN427

MR GIBIAN: Thank you. Just a few matters. Just on that last point, as I understood AIG's position, it was to suggest that for day workers, clause 33.2 would have the effect that all time worked on Sundays including overtime would be paid at double‑time, but at clause 30.7 with respect to shift workers would have a different operation and only provide for time‑and‑a‑half for the first two hours of overtime despite ordinary time having been dealt with as double - or paid at double‑time. There are two things to say about that. Firstly, as is accepted by Qantas, we think that would be an anomalous situation, to be going backwards in pay when you work overtime. It's also strongly arguable at least, and that's probably sufficiently to put it at this point that clause 30.7(a) would be to the same effect for shift workers as 33.2 for day workers in the sense that it says - it doesn't use the word "all", but it says "shift workers must be paid the following penalty rates for work on weekends and public holidays." So it says "work" in the general sense. And I think a submission was advanced the general would overcome - or the specific, sorry, would prevail over the general. I mean, there's an argument about what's specific and what's general in that context, but it's a matter at least that should be resolved clearly, and the appropriate weight for it to be resolved clearly is for, at the very least, all overtime on Sundays to be paid at double‑time.

PN428

So far as the award history is concerned, what is absent from any of the submissions advanced by the employer parties is that: is any reference to a change to the overtime rate for non‑continuous shift workers has been subject of any debate, identification or trade‑off, and the reference at page 1134 to Qantas having compromised about various matters would suggest that it understood what it was compromising on was conditions which were more favourable to employees than it had been willing up to that point to offer, rather than accepting a position which was less favourable to employees, as was the case for overtime for non‑continuous shift workers. The fact that - and this point was made in Qantas's submissions and by reference to page 573 of the bundle - that other clauses, such as in that instance definitions of shifts were subject of debate and trade‑offs, in some respects would seem to support the idea that there wasn't an intention, or support the inference that there wasn't an intention to look at changing the overtime rate for non‑continuous shift workers.

PN429

Qantas has also referred to - and I didn't detect this in their written submissions, and I perused(?) them obviously - but sought to identify or place some reliance upon the draft provision advanced by the ACTU in its submissions on 1 April 2009 at page 1065, which I also took the Bench to in the overview of provisions. That provision or that drafting seems to be on its face incomplete and is nonsensical because it has two sentences, both of which refer to all work outside of ordinary hours or outside of a shift, one at time‑and‑a‑half, the first two hours, and double‑time thereafter, and the other double‑time, it doesn't actually contain the words "shift worker" or "continuous shift worker" and would perhaps indicate that there was confusion or lack of attention to that issue rather than that there were contending positions put by the parties, which were then resolved by the Full Bench, and indeed the absence of any submission at all going to any contending position would only support that inference, with respect.

PN430

So far as the position so far as enterprise agreements are concerned, we would obviously be happy to provide an extract of the relevant provisions referred to in Mr O'Brien's evidence if that would assist the Bench. Can I make two observations though? The first was just in relation to the Jetstar agreement, which is referred to in the Qantas submissions and Asbury DP asked me some questions about. I just wish to highlight that that is the Qantas Engineering and Maintenance Agreement, so not an agreement my client was involved in the making of. I think I wasn't clear on that point when your Honour raised that matter with me. The agreements to which my client is involved, and indeed the ASU agreements, have double‑time for all shift work ,and the relevant provisions are in the table that is annexed to Qantas's submissions, and that includes the Jetstar agreements referable to those relevant workforces.

PN431

Secondly, AIG has provided today a copy of a Cabin Services Australia Enterprise Agreement 2018, which contains a provision really in the same terms as the award. Obviously I don't have any instructions about what led to this agreement being made. I would say two things about it. One is the fact that an enterprise agreement contains such a position is obviously available subject to passing the BOOT, and I suppose a BOOT issue in that respect would not arise given the terms of the award as it presently exists, but we don't know anything about what type of employees were - I understand that they were dealing with catering (indistinct), but we don't know anything about the nature of the work that is done by the employees or the (indistinct). The second observation I would make, and admittedly this is made on only a cursory opportunity to examine the award, is it does seem to really just copy and paste the award substantially - that's not a criticism, but the relevant provisions just seem to be extracted and placed from the award into the enterprise agreement. So whether it was a conscious attempt to produce a different position and had historically existed in that enterprise or elsewhere in the aviation sector, not much can be drawn from that, with respect.

PN432

So far as the patterns of work in the industry are concerned, Qantas suggested that maybe continuous shift work may be a feature of, or is more likely to be a feature of, engineering and maintenance work than the other areas of work. I was just going to note in that respect, and this appears at page 412 of the exhibits book, the relevant provision in the pre‑modern award applying to engineering employees was clause 18.3 of the then aircraft Engineers (General Aviation) Award 1999, which provided for double‑time for all overtime for shift workers, so there wasn't any differentiation - I would say it makes sense to say that 24‑hour operations are more likely in maintenance or in engineering, but I don't actually know. I don't have instructions to whether it's right or wrong, but I just thought I would note it that the pre‑existing awards in engineering also provided double‑time for all shift work overtime. And I think the final point - - -

PN433

DEPUTY PRESIDENT ASBURY: That wouldn't have ever applied to the airlines though, would it, the General Aviation Award - it wouldn't have applied? The General Aviation - - -

PN434

MR GIBIAN: They were always specific awards.

PN435

DEPUTY PRESIDENT ASBURY: I think the - - -

PN436

MS SRDANOVIC: I think they were enterprise awards.

PN437

MR GIBIAN: Look, that would be my general understanding.

PN438

DEPUTY PRESIDENT ASBURY: My recollection is it didn't, because general aviation was always distinct from airlines.

PN439

MR GIBIAN: Yes.

PN440

DEPUTY PRESIDENT ASBURY: It was everything else.

PN441

MR GIBIAN: I think all I can say is your Honour may well be right about that. That would seem to fit with my general understanding, but I don't want - - -

PN442

DEPUTY PRESIDENT ASBURY: No.

PN443

MR GIBIAN: And your Honour may know more about it than I do, but I don't want to be held to a position where I can say I know the history of it intimately, but that generally sounds right. The final point I wish to raise was that Qantas has referred to provisions that it has in some enterprise agreements allowing for extension of part‑time shift workers' hours at single time and that BOOT issues have been raised in relation to some of their agreements in that respect. I was just going to note that that's an issue that, to the extent there's a BOOT issue in that respect, it arises from the existing provisions of the award and wouldn't be altered by the variation we now seek. That's because clause 11.4 deals with part‑time employment, and 11.4(c) provides for part‑time shift workers, and (iii) provides that all time worked in excess of the rostered daily hours of part‑time shift workers will be overtime and paid at the appropriate overtime rate. So it's a BOOT issue that arises at the present and wouldn't be changed by the - that is, the BOOT issue - the change is only to the extent that there would be a change to the rate. Sorry, I think there was an apprehension I was saying it a little more broadly than - that is, the single time aspect is already clearly a differentiation from the award.

PN444

DEPUTY PRESIDENT ASBURY: Yes. It's just the extent of the differentiation.

PN445

MR GIBIAN: It may be justifiable on BOOT grounds, but it would only be to that extent of the first two hours of such an extension.

PN446

DEPUTY PRESIDENT ASBURY: Yes.

PN447

MR GIBIAN: Sorry, I didn't mean to state it more broadly than that, but that's - so there's already a BOOT issue in that respect obviously. Unless there's anything further, those were the - that's everything.

PN448

VICE PRESIDENT CATANZARITI: Thank you. Thank you, Mr Gibian. Anything from Mr Miller or Mr Duncalfe?

PN449

MR MILLER: Thank you, your Honours, Commissioner. I'll be brief. I just want to address briefly some of the matters that have been raised by my friend of the Australian Industry Group. The Australian Industry Group claims that the current interpretation of the award is such that clause 30.7(a) only applies in respect of ordinary hours in respect of Sunday to prescribe the penalty rate of double‑time for non‑continuous shift workers on Sunday, but only in respect of ordinary hours worked on that Sunday, and 32.1 applies with respect to overtime. The problem with this construction is two‑fold. Firstly, it ignores the fact that clause 30.7(a) refers to work being payable at double‑time on a Sunday. Overtime is clearly work. Secondly, it results, as has been canvassed already today, in a potentially absurd outcome whereby a non‑continuous shift worker could be working a rostered shift on a Sunday, be remunerated at double‑time, and then go into overtime and receive a lesser rate of pay. The AIG say that they don't support a variation, even to clarify this position, with respect of the penalty rate on Sunday for non‑continuous shift workers. It's therefore possible to draw the inference that AIG say that it is appropriate that non‑continuous shift workers receive a penalty rate of nearly 150 per cent for overtime worked on a Sunday. This is quite an extraordinary position for the AIG to take. What the AIG is saying is that it is consistent with a fair and relevant safety net for non‑continuous shift workers to receive less for working overtime on a Sunday compared with ordinary hours on a Sunday, and we would urge your Honours and Commissioner to reject this submission.

PN450

The idea of an employee receiving less for overtime compared with ordinary hours is inherently contradictory with the concept of a fair and relevant safety net, and we would submit that any reasonable person would agree with that proposition. Indeed, the AIG construction of clause 30.7(a) would appear to be prima facie contrary with section 134(1)(da) of the Act, which mandates a consideration of whether the award provides additional remuneration for working overtime. This subsection was of course considered in the penalty rates case where the Full Bench said - I think it was at 192 - that the expression "additional remuneration" in the context of 134(1)(da) means remuneration in addition to what employees would receive for what are normally characterised as ordinary hours. In our submission, where a person can work ordinary hours on a Sunday, this should be the comparison; otherwise the comparison is of little utility, as can be seen with this present example whereby it is contended that employees could be remunerated less for overtime compared with ordinary hours.

PN451

In any event, as the Full Bench states at paragraph 202 of the penalty rates decision, a central consideration is whether a particular penalty rate provides employees with fair and relevant compensation for the disutility associated with working at the particular time to which the penalty attaches. It is our submission that any reasonable person would agree that overtime on a Sunday contains greater disutility compared with the working of ordinary hours on a Sunday, for reasons which are self‑evident. If the overtime clause in an award provides, as the current Ground Staff Award does, if such an award provides a distinction in the overtime clause between continuous and non‑continuous shift workers, then the clause that provides for the weekend penalty rates for shift workers should apply both to overtime and ordinary hours on the particular day. This is how the interaction works in all the other awards, to the best of my knowledge, where there is a distinction between continuous and non‑continuous shift workers for the purposes of the overtime clause. For example, the equivalent clause in the Manufacturing Award to clause 30.7(a) is almost identical to the Ground Staff Award; that is the provisions between the Manufacturing Award and the Ground Staff Award that deal specifically with the overtime rates, so that apply specifically with the penalty rates for working weekends are almost identical. The only difference that I was able to identify was that the Manufacturing Award refers to "all work" whereas, as I've already stated, the Ground Staff Award merely applies to "work." The Australian Industry Group to the best of my knowledge don't appear to contend that non‑continuous shift workers in manufacturing receive a penalty of 150 per cent for working overtime on a Sunday.

PN452

So we don't say that the word "all" is necessary to give the clause the meaning that we say it has, which is that non‑continuous shift workers should be remunerated at double‑time for all work performed on a Sunday, but in any event, we have put it forward as an alternative position should your Honours and Commissioner not be prepared to accept our primary position, but agree that some clarification with respect of Sunday is necessary. I note as well Qantas have put forward a position to address the particular issue with respect of Sunday. Theirs is slightly different to ours. It's a proposed variation to clause 32.1(a) rather than our proposal, which is a variation to 30.7(a). Either would address the mischief which has been identified, so we're not going to die in a ditch over which is preferred, but we do put that forward as an alternative position should our primary position not be accepted. Unless there's any questions about that, I have nothing further.

PN453

VICE PRESIDENT CATANZARITI: Thank you.

PN454

MR MILLER: Thank you.

PN455

VICE PRESIDENT CATANZARITI: Anything, Mr Duncalfe?

PN456

MR DUNCALFE: Thank you, Vice President. Nothing further from the AWU. My friends in the TWU and AMWU have canvassed the issues thoroughly.

PN457

VICE PRESIDENT CATANZARITI: Thank you. Yes, last reply?

PN458

MS SRDANOVIC: May I just - very briefly it goes to a more complete answer to a submission I made earlier around continuous shift work and non‑continuous shift work in terms of the instruction that I have with respect to the TWU having 24‑hour operations. My instructions are that there are some areas at least within Qantas Airways where that is a feature, or within the Qantas Group, being Sydney International Terminal with pushback, Sydney International Terminal with fuelling. Also then there's the ASU operation centre. Beyond that as well, there's line maintenance, and then engineering within Jetstar and their operations centre within Jetstar. So just to provide a more complete answer that it is a feature in some, not all, parts of business, whereas my answer earlier was more specific to maintenance and engineering.

PN459

The other matter just briefly, Asbury DP, you asked a question around - which I think goes to the history of enterprise awards within the Qantas Group - Qantas Airways Limited was typically the main respondent to those enterprise awards. Our very early on submissions filed 6 March 2009, you will see at page 559 and following of that exhibit book a bit of a summary of the history and of regulation within that area. So that General Aviation Award did not, for example, name Jetstar Airways or some of the other entities within the Qantas Group, but then there were other awards which may have applied to particular operations, such as the Metals Industry Award. But a lot of that is set out in our earlier submissions, just to answer that more completely. Thank you for that short indulgence.

PN460

VICE PRESIDENT CATANZARITI: Anything arising from that, Mr Gibian?

PN461

MR GIBIAN: Look, I don't have instructions on the specific aspects of Qantas's operations. We could provide that if needed. I was just going to say, I think your Honour the Presiding Member asked us to provide an amended draft variation incorporating the exception for arrangements between employees in the delay as well as the - we should be able to do that today or tomorrow.

PN462

VICE PRESIDENT CATANZARITI: Thank you. The decision is reserved. The Commission is adjourned.

ADJOURNED INDEFINITELY [1.12 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A STATEMENT OF THERESE WALTON DATED 29/01/2019. PN15

EXHIBIT #B STATEMENT OF SHANE O'BRIEN DATED 29/01/2019........ PN22

EXHIBIT #C STATEMENT OF GEORGE STELLA UNDATED................. PN26

EXHIBIT #1 EXHIBIT BOOK COMPRISING DOCUMENTS SUBMITTED BY THE VARIOUS STAKEHOLDERS DURING THE PARTY 10A AWARD MODERNISATION PROCEEDINGS..................................................................................................... PN36

EXHIBIT #D AMENDED TWU1......................................................................... PN44

EXHIBIT #2 AIRLINE CLEANING CABIN SERVICES AUSTRALIA ENTERPRISE AGREEMENT...................................................................................................... PN282