PN1

VICE PRESIDENT HATCHER: Yes, can I take the appearances. Mr Barlow, you appear for the CPSU?

PN2

MR BARLOW: It if please the Commission, your Honour.

PN3

VICE PRESIDENT HATCHER: Yes, Ms Dabarera, you appear for the UWU, that's a bit of a tongue twister.

PN4

MS DABARERA: Yes, your Honour.

PN5

VICE PRESIDENT HATCHER: Mr Clarke, you appear for the ACTU?

PN6

MR CLARKE: Yes, your Honour.

PN7

VICE PRESIDENT HATCHER: Mr Ferguson and Mr Harrington, you appear for the Ai Group

PN8

MR FERGUSON: Yes, your Honour.

PN9

VICE PRESIDENT HATCHER: And Mr Izzo, you appear for the ABI and New South Wales Business Chamber.

PN10

MR IZZO: Yes, your Honour.

PN11

VICE PRESIDENT HATCHER: Right, so who's got the luck of going first?

PN12

MS DABARERA: Your Honour, we might to a brief submission highlighting our key points.

PN13

VICE PRESIDENT HATCHER: Yes.

PN14

MS DABARERA: We have filed a submission dated 3 October and a submission in reply dated 8 November and we have sought to respond to the core question in the directions within those submissions, in some detail. We rely on those submissions, but I just highlight what we say are the key issues to deal with. The United Workers' Union says there is a lack of clarity within clause 4 of this award, specifically in clause 4.2 and 4.3. We support a variation of these clauses to clarify the coverage.

PN15

In respect of clause 4.2 we say that the circumstances that led to the decision in United Voice v Gold Coast Kennels Discretionary Trust in 2018 highlights the ambiguity in the clause, in that it became apparent that the bet boarding industry in Queensland had incorrectly regarded itself as award-free, and that the Fair Work Ombudsman had provided advice that the industry in Queensland was award-free. The current terms of clause 4.2 appear to give a rise to a reading, to at least some, that the critical question in determining coverage under the Miscellaneous Award is whether or not a class of employees has traditionally been covered by awards, rather than what we say is the correct question, which is whether or not a class of employees has traditionally been covered by awards or not, because of the nature of seniority of the role.

PN16

Even though clause 4.2 does refer to the nature and seniority of the role, it is apparent that this has been misunderstood in the way that the clause is phrased in the context of the clause. We say that clause 4.2 should be drafted in a manner that leaves no doubt as to what the correct issue is to be determined. We say that the phrasing of this can usefully be drawn from paragraph 37 of the Pet Resorts decision and we have proposed that clause 4.2 is amended to reflect that phrasing. It should simply state:

PN17

The award does not cover:

PN18

1. The classes of employees who have not been traditionally covered by awards; and

PN19

2. This must have been because of the nature or seniority of their role.

PN20

VICE PRESIDENT HATCHER: If we pause there.

PN21

MS DABARERA: Yes.

PN22

VICE PRESIDENT HATCHER: I mean I have two questions. First of all, how is an every day use of the award, whether it might be a small employer or employee, going to be able to possibly understand what the traditional coverage of their area of work is and the reason for that? That is, it was hard enough for the Full Bench to do it in the Pet Accommodation case. How is a lay person supposed to work that out?

PN23

MS DABARERA: Well, we say it goes to really the issue of the nature of the role and the seniority of the role. So, the way that the award should work, if an industry has been traditionally covered and you know, there may be senior people in that industry who are covered, that would generally be found within the terms of a particular modern award.

PN24

If they're not covered under the terms of a particular modern award, then we need to look at whether the reason that they haven't been covered is because of the nature or the seniority of the role. That essentially goes to the classifications in the Miscellaneous Award. If the employee fits within those classifications, we would say that's indicative of them being covered by that role.

PN25

VICE PRESIDENT HATCHER: Well, if that's right, then you don't need 4.2 at all, do you?

PN26

MS DABARERA: Only in the sense that it would need to reflect the exclusion in section 143(7).

PN27

VICE PRESIDENT HATCHER: Yes, but as long as the coverage clause is consistent with 143(7), it doesn't need, does it, to repeat the words of the section or reflect it, as long as in practice or in operation, it operates consistently with the section.

PN28

MS DABARERA: We would agree with that, your Honour.

PN29

VICE PRESIDENT HATCHER: I mean, the other question I was going to ask you is, that leaving aside the persons who are specifically nominated, that is managerial employees and professional employees, such as accountants and finance and et cetera, et cetera, leaving aside those people, does 4.2 exclude anybody who is otherwise covered by 4.1 That is, is there any actual group of people we can identify out there in the real world, who would be covered by 4.1 but excluded by 4.2?

PN30

MS DABARERA: In terms of our coverage, your Honour, we had a think about that, and we could not identify classes of employees who would be excluded.

PN31

VICE PRESIDENT HATCHER: Because if we can't identify that it has any practical work, it makes you wonder whether the clause can simply say the award does not cover managerial employees, professional employees such as accountants, et cetera, if the remaining words don't actually do anything.

PN32

MS DABARERA: That would be one option. We have raised in our submission that there may be issues in terms of some of those groups that are listed in that some of those groups at least are covered by other awards and there may be questions as to the legitimacy of excluding them from the modern awards system.

PN33

VICE PRESIDENT HATCHER: Well, no, clause 4.2 only excludes them from this award, it doesn't exclude them from any other award.

PN34

DEPUTY PRESIDENT ASBURY: Because you've got 4.1

PN35

VICE PRESIDENT HATCHER: If they're covered by another award, they won't fall within 4.1 in the first place.

PN36

MS DABARERA: Sorry, I expressed that no so well. What I was saying is that there might be - they list types of employees which we say there might be questions about whether they should be excluded from clause 4.2.

PN37

VICE PRESIDENT HATCHER: Such as

PN38

MS DABARERA: Well, for example, in legal, there may be a question as to whether graduate level or lower level legal qualifications should be excluded from the Miscellaneous Award.

PN39

VICE PRESIDENT HATCHER: My recollection is graduate lawyers are covered by the Legal Services Award, are they not?

PN40

MS DABARERA: Yes, that's correct, but more broadly, if they were working in a different type of organisation.

PN41

VICE PRESIDENT HATCHER: What, a legal role in a non-legal industry employer?

PN42

MS DABARERA: Yes, yes. I mean there wouldn't necessarily be a lot of employees, but we have just raised that issue as to whether that list is - - -

PN43

DEPUTY PRESIDENT ASBURY: At the Bar Table, there might be a few.

PN44

VICE PRESIDENT HATCHER: Pastoral organisations. But they would be people who would fall within the 143(7)(a) exclusion, wouldn't they?

PN45

MS DABARERA: Well, we would say there's a question about that, depending on how special assessed skills are, and we also say that the issue with just looking to traditional awards is that the economy changes and there might be some roles that were once quite specialised and able to negotiate higher or better salaries, but now that role might not have the same status.

PN46

In respect of clause 4.3, we say that this clause excludes those who are excluded from the coverage in another modern award and we say this gives rise to potential ambiguity about the coverage of classes of employees who should rightfully be captured by the Miscellaneous Award.

PN47

In our submission, we have listed some examples, such as child minders in fitness centres, family day care employees and cleaners and security guards who are not working for a contract service, who are arguable excluded from coverage under the Miscellaneous Award, because of the terms of 4.3. These are jobs that are low paid, or at most, modestly paid. These are jobs that either require no formal qualification or a Cert III level qualifications. Very much the type of work that is highly appropriate for award coverage and similar in nature to the type of work traditionally covered by many awards.

PN48

We say clause 4.3 has no legitimate work to do and should be deleted. Clause 4.2 or alternatively, as your Honour has stated, clause 4.1 and the classification structure should be sufficient to exclude the relevant classes of employees that are intended for exclusion under the terms of the ministerial request and in accordance with section 143(7) of the Act.

PN49

As noted in our submissions, we see the current terms of clause 4.2 and 4.3 as excluding a broader group of employees than requested under the terms of the ministerial request. However, we acknowledge that in varying the terms of the modern award, the correct approach is to address whether the variations are consistent with the modern award's objective and other relevant sections of the Fair Work Act.

PN50

We have addressed the modern award's objective in our submission in reply at paragraphs 9 to 20 and I can go into that if required, but otherwise, it is addressed there and we would say that the variation to clarify clause 4.2 and the deletion of clause 4.3 would be consistent with the modern award's objective. We say further, such a variation would be consistent with the terms of section 143(7) in that it would ensure that the award was only excluding from the award, from the coverage of the award, only those who are excluded by section 143(7).

PN51

We also say it would be consistent with section 163(4) of the Act, which states that the Miscellaneous Award is expressed to cover employees who are not covered by any other modern award. As such, we say a variation to clause 4.2 should be made in the terms we propose and the deletion of clause 4.3 should be made as well. Unless there are other questions, your Honour.

PN52

VICE PRESIDENT HATCHER: Mr Barlow.

PN53

MR BARLOW: Your Honour, we have filed written submissions in this matter, but we didn't file a submission in reply. So, today I might just touch on some of the elements of our submissions that support the UWU's position and also if you permit me, dealing with some of the issues that are raised also in my colleagues from the ABI and AiG's submissions.

PN54

But dealing with your question to Ms Dabarera first. Does 4.2 exclude anyone that we're able to identify that's not otherwise listed? The short answer from our perspective, your Honour, is I don't know, and that's obviously one of the roles we're today. But the CPSU's submissions in terms of the named categories in 4.2 which says:

PN55

Have not traditionally been covered by awards, including managerial, professional accountants, finance, marketing, legal.

PN56

From a public service perspective, your Honour, where there are awards that cover almost all of those types of work, in some senses, yes they are covered by another award, so this wouldn't necessarily apply to them. But as a statement of fact, it is true, some industries haven't covered these, but other industries have, so I'm not too - the exclusivity of that, basically says - it doesn't say these are examples of work that isn't covered, it says this is the work that isn't covered, traditionally. I don't think that is necessarily true of many other modern awards and obviously, from awards that cover public services, your Honour.

PN57

But going back to my colleague Ms Dabarera's submission regarding the Gold Coast Kennels case, I think, and you've raised the question why didn't you just rely on the coverage clause, sorry, rely upon the classification clause or rely again upon the - why would you recite the Act again. I think the two comments I would make is, yes a lay person would have trouble reading this award, and it may actually be a difficulty, not just for professionals, but other awards as well may very well have coverage clauses that mean a lot more to the people in this room than to the people on the job there, particularly small businesses.

PN58

I think the two elements of the coverage clause that strike me are it's got that exclusion which I say, I think there are questions around. The Full Bench reversed it in that case in order to give it a sensible reading and I think that should at least give a indication that if those words are going to be used, it may very well be it needs to be reversed to make it more sensible and interpretable to other people. It also suggests, your Honour, and while we're dealing with 4.2, your Honour, the award modernisation request at 4(a), your Honour, refers essentially to coverage.

PN59

Now it deals with two groups. The first group is what it covers and the second group what it doesn't cover in terms of the specific award modernisation request for this award.

PN60

Is not covered by any other award but performing work of a similar nature to that that's traditionally paraphrased or covered, but it can't cover those due to the seniority or nature who have not traditionally award covered.

PN61

Now, the coverage clause at 4.2 only includes one of those references, but not both. It would be my suggestion, I don't put it any more highly than that, because we haven't put on a draft determination or whatever, that if this clause is found to either be ambiguous or difficult or inconsistent, potentially, addressing the other questions asked by President Ross and this Full Bench in this matter, about consistency with the award modernisation request on the other hand, and also consistency with the Fair Work Act and in particular, section 147(3).

PN62

But I think it's open to the Full Bench to put something in there that says what it does cover and also what it doesn't cover.

PN63

VICE PRESIDENT HATCHER: I mean the starting point may be not to look at 4.2, but look at 4.1. Does 4.1, read alone, that is, it operates in conjunction with the classification structure, is it consistent with section 143(7) and the award modernisation increased. And if it is, then that begs the question what is the purpose of 4.2? It may be that the classification structure itself sets out the work which is similar in nature to work that's covered by other awards, that is, low skilled work, tradespersons' work, sub-tradesperson - - -

PN64

MR BARLOW: Because it goes up to trade level, from memory.

PN65

VICE PRESIDENT HATCHER: And that's it. In one view, that is the type of work that is traditionally covered by awards.

PN66

MR BARLOW: If you just permit me, your Honour, I haven't actually turned - looked at the classification structure this morning. From memory it is - I was going to use the word vague, maybe that's not a very scientific word.

PN67

VICE PRESIDENT HATCHER: It's basic.

PN68

MR BARLOW: It is, I suggest generic and I think that is being generous.

PN69

VICE PRESIDENT HATCHER: You have - generic, yes, but it's got an entry level classification, that's one.

PN70

MR BARLOW: Yes, and then - - -

PN71

VICE PRESIDENT HATCHER: It's got a sub-trade semi-skilled classification, that's two, it's got a trade classification, that's three, and an advanced trade, that's four - sub-professional, advanced trade.

PN72

One view might be that that of itself, is describing work of a similar nature to that which is traditionally covered by awards.

PN73

MR BARLOW: And certainly, would probably be, in most circumstances, exclude anyone who is a manager.

PN74

VICE PRESIDENT HATCHER: Well, I can't see how it would include anybody who is listed in 4.2

PN75

MR BARLOW: Public relations, IT.

PN76

VICE PRESIDENT HATCHER: I mean the examples given, must relate to the terms managerial, professional. I mean it says such as, they're given as examples of people who are managerial and professional employees.

PN77

MR BARLOW: Yes.

PN78

VICE PRESIDENT HATCHER: And the classification structure does not cover managerial and professional employees, full stop.

PN79

MR BARLOW: Yes. I take your point, your Honour, and the CPSU hadn't previously paid much attention to the classification structure. We were more concerned about the issues that arise in 4.2 and 4.3, which it may very well be where I take you now, if that's okay.

PN80

The CPSU hasn't previously put on in its written submissions, particular submissions about 4.3, but there is an application here from United Voice, basically in some senses to delete that clause, and I would go along and say that we support their position. We also support their position of adjusting 4.2 if that's deemed necessary by the Full Bench.

PN81

But my colleagues, Mr Ferguson and Mr Izzo have put on submissions basically seeking no changes to this award, your Honour. One of their central positions that we wish to reject, is that it was the intention of the award modernisation process, not to cover by this award, classes of employees who are not managerial or professional, but not otherwise covered by another modern award, your Honour. In some senses, that's the central submission; that is in some senses the work done by 4.3. 4.3 says if you're generally within the industry of another award, but not in the classification structure, I'm sorry, you're not covered by this award.

PN82

I think the CPSU objects to this position including because at the time of making this award, I think there was an assumption from at least some parties that as shown by the ministerial request, bits and pieces might fall out of the modern award system, and you needed to make sure that people who shouldn't fall through those gaps are nonetheless, gain the benefit of some form of award coverage, not just for unfair dismissal purposes, but also for the purpose of a minimum safety net, your Honour.

PN83

We say that, or the CPSU says 4.3, as it is excluded, goes beyond the ministerial request at 4(a) of the request and also goes beyond section 147(3), your Honour. It goes beyond those two because unnecessarily, it's not required, the Act doesn't require - the Fair Work Act doesn't require it go beyond, and the award modernisation request doesn't say if you're not covered by another modern award, you're also not covered by this one. That is the effect of 4.3, your Honour, and we say that is one of the reasons why 4.3 should go, because it can have the consequence that people who might be traditionally award covered or performing work that is similar to traditionally award covered employees, but who are not senior or professionals, don't get the benefit of this award.

PN84

The examples United Voice highlight are examples of, as you've identified in the classification structure, the type of work that would usually, either because it's got pre-reform instruments, or whatever, or in the pet foods industry, it obviously didn't have a critical mass sufficient to be covered as part of the award modernisation process, but there was some award coverage. It is the type of work that as that decision in Pets Resorts illustrated, are the type of workers that you would ordinarily say are covered by, and performed work that is award covered.

PN85

The central position of the AiG we say, is untenable and the ABI is untenable. How could you have an award that is meant to catch the gaps in the award modernisation system and then say, but those that are excluded from another classification structure in another award don't get the benefit of this award? The answer is, the AiG in particular, place reliance upon the submissions made by the Commonwealth government at the time regarding the coverage of this award and here I'm referring your Honour to paragraph 33 of the 8 November AiG submissions, which then pick up paragraph 34 of the government submissions. They use this to support this position, that "It shouldn't cover employees expressly or purposely excluded from the classification structure of another industry award."

PN86

The government submissions I think they use the word purposely, there, your Honour. In some senses that is in and of itself a little bit problematic. There were decisions during the award modernisation process to deliberately exclude groups of employees, but I think it is a big leap to say that all the groups that were excluded intentionally or unintentionally through that process, were done because of the nature or seniority of the role that they're not traditionally award covered. This is where the Full Bench making this award took that submission and said well actually yes, this actually - 4.3 is supported insofar as it shouldn't cover people who don't - who are in an industry but not covered by the classification structure.

PN87

4.3 in our submission goes too far. It goes further than is required by the Fair Work Act and further than required by award modernisation request at 4(a). Going to the gaps in coverage, there are I think, there may be decisions of the Australian Industrial Relations Commission, as part of that process, where they said, well this type of employee shouldn't be covered by this award, no matter - because of the nature of their work, or so forth. My colleagues refer to some in their submissions.

PN88

But there will be other examples, and obviously I don't necessarily have any to hand off the top of my head, your Honour, where there were unintentional exclusions or there were decisions based upon, well there wasn't sufficient award coverage at the time for them to be included as part of a modern award. There may have only been one NAPSA and another pre-reform award that only named a certain number of employees in its respondency and that wasn't sufficient at the time of that process, to create that classification or that type of work in that award. I would assume there would be a fair few in that category, given the hast and the pressure under which that process put both the Commission and also the parties to create the modern award system.

PN89

It's in that sense that the purpose of the miscellaneous award to pick up those gaps, to pick up those holes where you may have been covered by a pre-reform award, but you're not covered a pre-reform award but you're not covered by the classification structure in that industry. I think the Miscellaneous Award performs a very - should perform a very important role to plug those gaps, as limited as they may be and ensure that workers who do perform work that is traditionally award covered, and are not excluded because of their seniority or the professional nature of their work, do maintain award coverage. If it please the Commission.

PN90

VICE PRESIDENT HATCHER: Mr Clarke. Thank you.

PN91

MR CLARKE: Yes, thank you. Look, we're obviously supportive of the position of our affiliates, in oral submissions today and in the written submissions. Coming to the issue in relation to clause 4.2 and the discussion that ensued about whether or not you're better off deleting it, I think that the difficulty that sort of confronts all of this and confronted the Full Bench to begin with, is trying to find reliable proxies for something that people can understand.

PN92

The classification structure referred to in clause 4.1, as you've identified, all refers to work at trades and advanced trades or below. There was some discussion about exactly how far up the qualifications framework it would go in the making of the miscellaneous modern award. I think it's either the initial or the reply submissions of the Ai Group take you to, I think, was it - either the 2008 or 2009 decision that ventilated that and the decision was taken to pull out the qualification.

PN93

If you accept that you can take a high-level view of what similar nature means, then there wouldn't be a reason to retain clause 4.2 and ask users of the award to attempt to go through an exercise of looking at why particular people were excluded from the award system.

PN94

VICE PRESIDENT HATCHER: If somebody could actually identify a real life class of persons to whom clause 4.2 applies, that would be a different thing. But just dealing with the abstract, is a different question.

PN95

MR CLARKE: I can identify a difficulty with clause 4.2 which is referred to in the submissions of Ai Group. I don't recall whether it was raised in relation to clause 4.2 or in relation to clause 4.3, but both Ai Group and the New South Wales Business Chamber and ABI, one or the other or both.

PN96

MR IZZO: Both.

PN97

MR CLARKE: Both, who are looking at - I think it's in relation to the submissions in clause 4.3, where they sort of seek to make the point that don't worry too much about the fact that the words in clause 4.3 don't appear I the Act and don't appear in the award modernisation request. Because the reality is that if somebody was excluded from an award, probably the reason they were excluded from an award is because of a reason that's related to the nature of their role, the seniority of their role and so forth.

PN98

The Aluminium Award decisions are referred to in that context which isn't actually about the entire exclusion of anybody from the award system, it's just about which award they're going to be covered by. The Graphic Arts decision is referred to which simply says that we're not going to cover web designers in this award. Curiously, there's a reference to a decision after the award modernisation process is completed which was an application by the MEAA to have a new award created for public relations specialists.

PN99

The citation is given to the decision there and it refers to the fact that some effort - there were some submissions earlier in the award modernisation process where the union had indicated that it wanted to get public relations specialists covered under a specific award, but evidently, didn't proceed with it, or it didn't get picked up and I think my organisation and the union after award modernisation, sought to have an award for public relations specialists, characterising it as something that kind of fell out, that we didn't get to, that was unfinished business.

PN100

Now, whilst you might sort of be critical of that kind of a submission, the reality is that the Australian Industrial Relations Commission had 18 months to make the entire modern award system. We're into year six and we still haven't reviewed all of them, yet. So there was a reasonable amount of pressure on people at the time, but the reason I refer to it is that clause 4.2 of the Miscellaneous Award, specifically gives the example of public relations workers as people who, because of the nature or seniority of their role, not being traditionally covered by awards.

PN101

There was an award, as the decision referred to Ai Group notes, it was made in the 1990's, the Public Relations Industry Award 1990, back in the days where everyone had to have - initiate an industrial dispute and serve a log of claims and so forth to get an award up, so obviously a Federal award. Named respondents in New South Wales, ACT, Victoria, Queensland, South Australia, Western Australia, Tasmania. Common rule declarations effective in the ACT and Victoria. Are they people who are traditionally covered by awards because of the nature of seniority of their role? Not they're not. Well, why are they mentioned in that clause?

PN102

It's a clear example where I think what you're asking for is, is there somebody that we're excluding here who we shouldn't be, and that's a very clear example, I would think. Now I know that there's issues raised, I think particularly in the AiG submission about well when you interrogate this issue of traditional award coverage, there's a question of degree there. But aside from the Northern Territory, there was nowhere where this award wasn't effective for some people.

PN103

Sorry, it's AP 825430 COV, Public Relations Industry Award. That's the code. It is on your website at the Fair Work Commission website.

PN104

So that's one example. I think that's probably all I needed to say about clause 4.2. I note that the written submissions of United Voice do put a position that the examples should go, that's one reason why the examples should go, but we also see - and if you're retain words to the effect of what's in 4.2, you could express them more clearly as perhaps was done in Pet Resorts decision. But I take your point, your Honour, that that requires somebody to go through a very difficult exercise which the Australian Industrial Relations Commission Full Bench was not able to do. The simpler approach may well be to just rely on the classification structure and take similar nature at that higher level of obstruction of pre-professional work, as a safe bet.

PN105

Reminding you of course, that you're on less dangerous ground effectively, if in expanding, if you are expanding, the coverage of award than you are by restricting it, because there are prohibitions on the Commission restricting it in section 163(1) to mean that somebody falls out of award coverage. Was there anything you wanted to ask about 4.2 before I move to 4.3?

PN106

VICE PRESIDENT HATCHER: No.

PN107

MR CLARKE: All right. Look, our position in relation to 4.3 is the same as the position of the United Workers' Union in that it's got to go. It doesn't have any - there's no clear link between anything that's in 4.3 and anything that was either in the modern award request or that appears in the legislation as we see it today, almost a decade later. As it goes with respect to the Australian Industrial Relations Commission, and noting the circumstances in which these awards were made, it appears that the issue of coverage by a modern award and coverage by the modern award system became a little bit lost in the distinctions when they were attempting to - sorry, traditional coverage by the award system and coverage or not by a particular modern award became a bit confused in the resolution of this issue.

PN108

I'd note, there are particular parts of the award modernisation request that are referred to in the 2009 decision of the AIRC Full Bench. Notably, one that's not referred to is 2(f) which is that:

PN109

The creation of modern awards is not intended to exempt or have the effect of exempting employees who are not high income employees from modern award coverage or application unless there is a history of exempting employees from coverage across a wide range of pre-reform awards and NAPSA's in the relevant industry or occupation.

PN110

What the output however, of clause 4.3 seems to be is that anybody who is left out of a modern award for whatever reason, can't be covered by this award. That is a clear disconnect between the purpose of the modern award request and indeed, the way award coverage is reflected today. The way the Miscellaneous Award coverage ought to be determined today is that section 163(4) is the broad rule, which is a definitional provision. It's the award that covers people who aren't covered by any other award. This is also expanded upon in United Voice's submissions.

PN111

Section 143(7) is the exception. In clause 4.3 has no relationship to any of those things.

PN112

VICE PRESIDENT HATCHER: Does that amount to a submission that as currently framed, the award does not conform with 163(4), because it's actually not expressed to cover employees for not covering any other modern award? Its impact is expressed - - -

PN113

MR CLARKE: Well, 163(4) is the rule, but 143(7), so 163(4) does get narrowed. There is conceivably an overlap, you know, there's a Venn diagram, if you like, between the categories referred to, the two categories referred to in 143(7) and the two categories referred to in 4.3, but they're completely different. They're different concepts and I attempted to explain it in our reply submission, including by reference to the Fair Work Transitional Provisions and Consequential Amendments Act, is that it?

PN114

I think it was in schedule 3 and schedule 5 of that Act that anticipated that as modern awards were made, the source instruments, if you like, the award-based transitional instruments would be sequentially terminated. Then as each modern award that completely replaced an award-based transitional instrument was made, the source instruments would be terminated. Then a curious provision that said and the others that are left at the end of the modern award process, that haven't been completely replaced, therefore the implication being there are some that are not completely replaced by a modern award, (other than the Miscellaneous Award) would then be terminated.

PN115

There was a clear understanding that there were people who, for whatever reason, and we all know the reason, we all remember that the Full Bench Commission took this critical mass approach of where's the biggest area of commonality and if it's within that area of commonality, it goes in a modern award, and if it's not, it falls down by the side. Those people who fell down by the side, we would say ought to be covered by this. But clause 4.3 frustrates that from happening. It frustrates the very thing that the transitional provisions anticipated would happen from being given effect to.

PN116

DEPUTY PRESIDENT ASBURY: Or it might have been because the NAPSA's or the pre-reform instruments didn't cover those people to start with. So, for example, contract security, notoriously didn't cover traffic control, if it was not undertaken by a contract security company, your only other option was maybe a civil construction award, which didn't cover it either unless the employer was in the civil construction industry. So, you had a group that arguably fell through that way.

PN117

MR CLARKE: Yes.

PN118

DEPUTY PRESIDENT ASBURY: Or the Fitness Award with the child care worker, working in a fitness centre.

PN119

MR CLARKE: Yes, that's right.

PN120

DEPUTY PRESIDENT ASBURY: Were never covered to start with, but arguably there's a modern award that describes or defines their work. It's just an industry-based award, so it doesn't cover them.

PN121

MR CLARKE: That's right, and coming back to that provision that I referred the Bench to earlier in the modern award request about the intention to not exempt people who are not high income employees from the award system. Again, that's somewhere where clause 4.3 is rubbing up against what the evident intention and purpose of the process would be.

PN122

Are there any questions about 4.3, or I'll leave it there?

PN123

VICE PRESIDENT HATCHER: No.

PN124

MR CLARKE: I'm happy to leave it there anyway.

PN125

VICE PRESIDENT HATCHER: Mr Ferguson.

PN126

MR FERGUSON: Thank you, your Honour. Look, my organisation has filed two submissions in the context of the proceedings. The first on 10 October and the second on 8 November. I won't traverse all of that detail, but I don't wish to demur from it either. What I really want to do today, apart from answering any questions that arise or have arisen, is just emphasise, and this is in relation to two points.

PN127

The first is, I want to address what we say or why we say the current wording in clause 4.2 of the award is appropriate and in that context, I want to talk a little bit about the operation of section 143(7) and that will be relevant to a number of matters that have arisen. Then I want to explain why we say it's crucial that the further restriction in clause 4.3 be retained and the coverage of the award not be recast that it applies to all class of employees who are not necessarily excluded by section 143(7).

PN128

I have to say that my organisation is very strongly opposed to the expansion of the coverage of this award and part of that is a concern that it will have adverse consequences for some employers, and in part, that it may have unforeseeable adverse consequences for employers in the material before you.

PN129

VICE PRESIDENT HATCHER: One of the questions is to what extent there will be an expansion of coverage; whether this is just a matter of unnecessary verbiage, or whether these provisions actually have any practical work to do and who they actually affect, which is based on submissions almost complete unknown at this stage.

PN130

MR FERGUSON: Well, I'll come back to why we say the provisions aren't unnecessary on various bases, but partly, for the purposes of ensuring conformity with the Act. But in terms of who they apply to, or who might be excluded, my organisation for a start, at paragraph of our written submissions, our October submissions.

PN131

VICE PRESIDENT HATCHER: The first submission?

PN132

MR FERGUSON: The first submission. Sorry, it might be page 50. It's page 20, rather. We were there extracting a submission that we advanced in the award modernisation process and in that process, we set out just by way of an example, a list that we say - roles that are award free.

PN133

VICE PRESIDENT HATCHER: Yes, but do any of those fall within 4.1? If they don't fall within 4.1, what 4.2 does is meaningless. I mean I'm just skimming it now, but it doesn't seem to me that any of those positions would fall within the classification structure.

PN134

MR FERGUSON: So, it's the classification structure and I'll come - I may as well deal with these issues now, because we'll say that they're examples, but that in reality there is probably a myriad of examples out in the community of award-free roles. It's impossible to be certain about that and part of the reason we've struggled to propose specific criteria or additional exemptions is that we think - it's very had to definitively define all of the people who should be award free, because it is - there are so many variables.

PN135

But I take your point about classification. If we go to the classification structure, the first difficulty with this seems to be, and I hadn't apprehended going down this path, but frankly, it is exceptionally broad. If you look at level one, it doesn't even say what work these people undertake. It just says they've been there for a period less than three months and it says that they're not carrying out certain other duties.

PN136

DEPUTY PRESIDENT ASBURY: But it's work that's not covered by another award, so tell me where you would have people that would fit that definition, who wouldn't be covered by another modern award, or who shouldn't be? So, other than - - -

PN137

MR FERGUSON: There might be a raft of professional employees who would meet that definition.

PN138

VICE PRESIDENT HATCHER: So you say that, we look at level two for example, and you say that if you go to a financial controller, you say that because they're not performing the duties of level three and four, they would fall within two, literally? Is that the only - - -

PN139

MR FERGUSON: They could be, and that could be any profession or role as such; it doesn't define the work. I think it's an insurmountable problem.

PN140

VICE PRESIDENT HATCHER: Sorry?

PN141

MR FERGUSON: We think it's an insurmountable problem as that's framed.

PN142

VICE PRESIDENT HATCHER: Well, as it's framed, but maybe the better answer is to give greater definition to these classifications to describe the work that is meant to be covered and that is trades work and sub-trades work; semi-skilled work.

PN143

MR FERGUSON: I see your point and I'm just pausing for a moment. If you could describe sufficient specificity or the work and so forth - no, I'll withdraw that.

PN144

DEPUTY PRESIDENT ASBURY: Because on the current position if 4.2 is talking about that kind of nature or seniority of a role and professional roles, the listed roles, then there could probably never be anyone in that kind of role that would fall within level one, would there?

PN145

MR FERGUSON: Well, there would because level one is just a temple issue.

PN146

DEPUTY PRESIDENT ASBURY: Yes, but if it says, on the current coverage 4.1 covers employers throughout Australia and their employees in the classifications and then it does not cover the people in those roles. So, if there's a professional role, the fact that the person is in the first three months, it wouldn't cover them, would it? The Miscellaneous Awards wouldn't cover that type of employee.

PN147

MR FERGUSON: Are you saying that governs the work that was - sorry, I'm not understanding your question.

PN148

DEPUTY PRESIDENT ASBURY: Well, 4.2 talks about professional employees.

PN149

MR FERGUSON: Yes.

PN150

DEPUTY PRESIDENT ASBURY: So, if - it couldn't happen, because the classification structure can only apply to people who are covered by the award in the first place.

PN151

MR FERGUSON: No, no, and I think one of the purposes of 4.2 and one of the roles that it performs, is it provides clear articulation of people who would not be covered. Part of the reason is that it provides examples for people who would not be covered and they wouldn't be covered in part, because they fall outside of the classification. Now I think that takes me really to 4.2 and to the heart of it. The real work of the exclusion in 4.2, we say, is in the words "before including".

PN152

It says:

PN153

The award does not cover those classes of employees who, because of the nature or seniority of their role, have not traditionally been covered by awards.

PN154

Now, it then goes on to list some examples, but the important point is we say, that this doesn't limit the exclusion or expand it in any way. They're just, what we would say would be notorious examples of people who are award free. Now they obviously it appears, went in, in response to submissions from employer groups, raising the types of people who would clearly be award free. But there is - and we say that they shouldn't be contentious, but there's a practical benefit for listing those examples, because - - -

PN155

To take the point that fell from your Honour, if you're a lay employer or a lay employee, just reading the award and you're confronted with a clause that just says the award does not cover those class of employees, who because of their nature of seniority or their role are not traditionally covered. Look, it's not going to be immediately apparent in all contexts who is or who is not.

PN156

VICE PRESIDENT HATCHER: All right, so I take your point about the examples, but it's really the issue of people who don't fall within the examples and how 4.2 operates for them. I mean, who are they - one, who are they, and two, how is a lay person, employer and employee expected to make any practical sense of that?

PN157

MR FERGUSON: We've tried to identify some in that submission. Our submissions go through other classes of employees who, in the context of the award modernisation process, there was a fight about whether they should fall within award coverage of a particular award and one we point to was web designers and there was a strongly contested argument about graphic designers, as I understand it, with a view, I'm instructed, being that we thought that they were award-free.

PN158

Now, they weren't included in there and we'd say they wouldn't fall within the coverage of the Miscellaneous Award clause either, but admittedly we haven't got - - -

PN159

DEPUTY PRESIDENT ASBURY: But if they didn't, it wouldn't be because they - it would be because they were arguable information technology specialists. The problem is with 4.2, as I understand it, is that you've got, by the words "not traditionally been covered by awards", it doesn't say why they haven't traditionally covered. So, take a traffic controller. Why should a person who is performing work that is unarguably within the definitions of at least two awards, so they're directing traffic, they're - you know, but they're not covered by the security award, because they're not in the security industry. They're not covered by the construction award, because they're not in the construction industry.

PN160

MR FERGUSON: Yes.

PN161

DEPUTY PRESIDENT ASBURY: So, they have not traditionally been covered by awards. Why shouldn't they be?

PN162

MR FERGUSON: Well, we're not saying they shouldn't be. The issue is whether they should be covered the Miscellaneous Award, or not. And we say in that regard, to go on an examination as to the merits of why they were or why not, traditional covered by an award, is irrelevant; that would be an error, and I'll come to the Act.

PN163

DEPUTY PRESIDENT ASBURY: But it was nothing to do with merit, it was everything to do with the fact that when the awards were made, no one employed them - say the traffic controllers again, no one employed them who wasn't in contract security, but all of a sudden, they're were a whole lot of employers who were not in contract security who just started a traffic control business.

PN164

MR FERGUSON: And that's our view, is that the award wasn't - and I'll come to the section of the Act, intended to be a vehicle for the expansion of the award system beyond it's existing parameters. Now, it was an instrument that to some degree might have caught people who fell through the cracks, they may have been covered by awards previously and not within the awards system and I take the point that it wasn't just about award coverage, it was about the nature of the work. We don't shy away from the fact that there will be gaps.

PN165

DEPUTY PRESIDENT ASBURY: But they're not self-evidently gaps that should be there. You know, self-evidently, people in marketing, public relations, IT specialists, self-evidently, or arguably should not be award covered. But no one would have thought that people who hold a stop-go sign on the side of a road would not be covered by an award. Because when we had common rule civil construction awards everywhere, they were covered by that.

PN166

MR FERGUSON: Well, they were covered by that then, they might fall within the ambit of the Miscellaneous Award.

PN167

DEPUTY PRESIDENT ASBURY: Until they weren't employed by people who were in the civil construction industry or people who were in the security industry. So, the work was always - no one would have dreamt of saying it wasn't covered, until all of a sudden, technically it wasn't.

PN168

MR FERGUSON: No, I appreciate that and I'll come to the Act in a second, because I think that's where the answer lies. We're not saying that this means that there are people who should be entirely excluded from the award system. Now, what we say was the envisaged process and what we say is the appropriate process going forward for substantive reasons, which I'll come to, is if people say there's a gap and people point to cleaners, then the course of action is to look to varying the industry award potentially, to cover those people, the most appropriate industry award.

PN169

A party could make an application, obviously a proposed variation could be made by the Commission in a motion. You then given consideration to whether it's appropriate for the safety net to be expanded to cover that type of work. The difficulty we have with the miscellaneous award just being the catch-all for all of this, in the event that - or if you're varying it to make it the catch-all, and I'm jumping around a little. That risks, raises the possibility that you're imposing terms and conditions on employers that are wildly inappropriate for the specific arrangements of those employees or their operations. That can obviously have an adverse impact on employers in terms of cost and regulatory burden, which is the relevant consideration, but also on the flexible performance of work.

PN170

DEPUTY PRESIDENT ASBURY: It would probably have a lot less impact on employers because it's a pretty flexible award, than a lot of other ones. You know, a lot of employer if they had their choice would arguably say, thank we'll take the Miscellaneous Award.

PN171

MR FERGUSON: And I think that's right. I think that in a lot of cases, that will be the case and it might be a course of action that is proposed in the context of the specific scenario. But what's being contemplated here perhaps, is just a general catch-all rule that will apply to everyone where you don't know what all of these people are doing.

PN172

Now, it is not an overly arduous award in certain respect, but it would be wrong to say it's completely innocuous. It's got provisions in it for example, that set overtime penalties, it's got penalties outside of 7am, 7pm on week days, Saturdays, additional penalties for Sundays, public holidays. It's got provisions which require quite fixing of hours or work and so forth. Now I can think of award covered industries where that would be wholly inappropriate but they've been covered for decades.

PN173

To take one example, Road Transport Long Distance Operations Award. It doesn't have penalties, things like that. If it did apply, it would be a major problem for that industry.

PN174

DEPUTY PRESIDENT ASBURY: But they have their own award.

PN175

MR FERGUSON: But that's what I'm saying, is you can't just make the assumption that this award would be appropriate for any work that falls outside of the award system currently. The imposition of penalties and those sorts of restrictions I've just referred to could be a real problem. So, absent parties coming forward saying look, there are these people that fall through the gaps and they should be under the Miscellaneous Award. You shouldn't be varying the award to potentially cover them, and it comes - again, I'm jumping forward.

PN176

It comes to why we say it's important to keep the exclusions in clause 4.3. So, 4.3 does effectively mean that if you've got an industry award that applies, and there are classifications or exemptions, particular limitations and classifications or exemptions in it that means certain people at senior levels aren't covered, it's important, we say, that those limitations be maintained. Because otherwise, you run the risk of people in that industry potentially thinking when they're senior, that they're in the Miscellaneous Award.

PN177

DEPUTY PRESIDENT ASBURY: But that is not the issue that is of most concern, as I understand it from the unions' submission. The issue is that's of most concern is the people who would be covered by those modern awards. So, take child care worker in the fitness centre, for argument's sake. Not a senior person, not a manager, nothing of the sort. If that employer was in the child care industry, that employee would be covered. Arguably, their award-free, because they're doing work that's clearly within the scope of an industry award but for an employer that's not in the industry. So, they have no protection at all. Who would have envisaged that you would have child care workers in that setting 20 years ago; but you do. You have them everywhere; shopping centres, everywhere.

PN178

MR FERGUSON: The examination of whether or not that work is of such a similar nature is good; I'm not sure about the details of that work. I think just coming back to the first point you were making there, your Honour.

PN179

DEPUTY PRESIDENT ASBURY: In minding small children while their parents are otherwise occupied.

PN180

MR FERGUSON: Yes, yes, yes, no, no, no and look, I know that there's controversies in different context about child care and whether the work in different environments is the same, be it au pairs or all sorts of things, I don't want to tread into that treacherous ground; there's no evidence about anything of course. But I'm not trying to be caviller about that.

PN181

The point I want to make firstly, is the unions are calling for 4.3 to be deleted and that would mean that where there are restrictions on an entry awards coverage now, because it only goes up so far in the classification structure, or because there are specifically crafted exemptions for certain roles, the risk would be that they would then become people above that, or falling into those exemptions, would fall into the Miscellaneous Award.

PN182

DEPUTY PRESIDENT ASBURY: But there's two issues. There's one where the industry award has a specifically crafted exemption, and a classification structure that stops at a particular level and avoiding those people falling into the Miscellaneous Award.

PN183

MR FERGUSON: Yes.

PN184

DEPUTY PRESIDENT ASBURY: But then there's the other issue which is the industry award would apply to that work. No ifs, no buts, no maybes; basic level of a child care worker in the industry award and that person is working in the fitness industry. There's no classification in the fitness award for that type of worker, why should they not have at least some basic coverage under the Miscellaneous Award?

PN185

MR FERGUSON: Well, I'll come to the Act because I think the answer is probably that they might, if they were doing work that was not excluded by 4.2 or 143(7), which is probably why I'll go to that.

PN186

DEPUTY PRESIDENT ASBURY: But they wouldn't on 4.3, as it's currently worded.

PN187

MR FERGUSON: I see, yes, yes, yes.

PN188

DEPUTY PRESIDENT ASBURY: Because they would be in an industry covered by a modern award and not within the classification in the modern award.

PN189

MR FERGUSON: Yes, no, no, I see. So, I think the appropriate answer there, your Honour, is the appropriate remedy would be to look at the appropriateness of varying the industry award to cover those people. Because the industry award which has terms and conditions that are likely most relevant to that industry.

PN190

COMMISSIONER LEE: That may well be, but the case that her Honour is referring to, doesn't it fit full squarely within the paragraph 36 of the submissions that you quoted in your submission on page 22:

PN191

The primary purpose of the requirement to create the Miscellaneous Award, is to provide award coverage for those employees in new and emerging industries to perform work of a similar kind to that which has historically been regulated, until such time as a new modern award is created to cover employees engaged in that work or the coverage under an existing modern award is ready to cover those performing this work.

PN192

MR FERGUSON: And look, I must accept then that 4.3 is a fetter on the award performing that role. One, we say that on balance, should be retained because of the potential disruption that might flow and negative consequences that might flow from the removal of clause 4.3. We say that, particularly in circumstances where there is not a skerrick of evidence to establish that there is any of these people out there in existence that are falling through the cracks.

PN193

VICE PRESIDENT HATCHER: I think you just contradicted yourself. One, you said there was - it would have a disruptive effect, and two, you say there's no evidence it would affect anyone.

PN194

MR FERGUSON: No, we say the risk is that it will have a disruptive effect and you're being asked, or contemplating, possibly moving a variation to the award.

PN195

VICE PRESIDENT HATCHER: I mean we're not talking about senior employees here, because perhaps the classification structure needs some fine tuning, but it's not intended that they would ever fall within the classification structure. It doesn't cover managerial people, it doesn't cover supervisors, it doesn't cover professionals, and if the classification structure needs to be fine-tuned, make that abundantly clear; that can be done.

PN196

But once we get rid of - once we've dealt with those and put them to one side, is there any reason why there should be some low paid, semi-skilled employee who finds themselves not covered by an award?

PN197

MR FERGUSON: Let me take you to the Act, section 143, subsection (7). Now there are, a point that's lost two limbs on this. The first limb is paragraph (a) and it says:

PN198

A modern award must not be expressed to cover classes of employees who, because of the nature or seniority of their role, have traditionally not been covered by awards, whether made under the rules of the Commonwealth or the States, or who perform work that is not of a similar nature to work that has traditionally been regulated by such awards.

PN199

Now, the first limb, we make the point that there are two elements to it; it's nature or seniority. Seniority might be apt to cover managerial, perhaps some senior professional people and so forth, but nature is a separate consideration and it just requires that if people are in the nature of a role that's traditionally not been covered, well then the award most not be expressed to cover those people.

PN200

VICE PRESIDENT HATCHER: Yes, but what lot paid category - what category of low paid worker falls within that description?

PN201

MR FERGUSON: Well, if memory serves, in the award modernisation, there was in the aquaculture industry, an argument around people involved in fin and shellfish fishing in Tasmania and I think in oyster farming as well, if memory serves; it's in our submissions. Where there was a strong contest about the fact that those people should remain award-free. The Full Bench in those proceedings, in crafting the ultimate award, expressly contemplated that it would not cover those people who - I can't speak to about what they're paid - - -

PN202

DEPUTY PRESIDENT ASBURY: Or why. There might have been specific reasons at the time, or.

PN203

MR FERGUSON: What our submission must be is that if you don't include an inclusion in the coverage provisions, which mirror section 143(7), you risk the provision being in a state of non-conformity with the requirements of the Act. Because the first subsection does talk about nature and seniority, but the second section just says:

PN204

An award must not cover classes of employees who perform work that is not of a similar nature to work that has traditionally been regulated by such awards.

PN205

Now, again we read that, and some of these issues are being ventilated for the first time, but we admit that as a clear break on the ability for awards coverage to expand.

PN206

VICE PRESIDENT HATCHER: Well, of course it is, but the question is, is clause 4.1 standing alone, consistent with those requirements? That is, can anyone identify somebody who falls within 4.1 who should not be covered by an award by reason of 143(7)?

PN207

MR FERGUSON: And the only ones I can point to are those that I referred to in paragraph 20.

PN208

DEPUTY PRESIDENT ASBURY: They might not - the shellfish people and the - - -

PN209

MR FERGUSON: And the shellfish people and the web designers.

PN210

DEPUTY PRESIDENT ASBURY: But they might be not, you know, you probably need to look at the decision as to why they were excluded. For all you know, a whole lot of shellfish farmers from Tasmania are in dire financial circumstances to end up at the hearing or send a - I don't know. It's not beyond the realms of probability, that it's got nothing to do with 143 at all, and it's got to do with some unique - maybe they were confronting some shellfish plague in Tasmania; I don't know. But it's not necessarily because someone decided shellfish fishermen, or fisher-people should not be covered by an award, because they do some unique, special thing. Because arguably, they don't. They're in the aquaculture industry.

PN211

MR FERGUSON: Look, I don't want to mislead the Bench, but the decision's reference, if memory serves me it's by reference to the traditional award coverage issue, not a plague or anything like that. But I can't do that on my feet; I'd have to check.

PN212

VICE PRESIDENT HATCHER: I mean, do we expect oyster farmers to be ploughing through the Commonwealth Arbitration Reports in the 70's to find out were there - was there some award that covered them somewhere and if they were excluded, why they were excluded?

PN213

MR FERGUSON: No, and why we said at the start, if you can identify with certainty people that are excluded, there's utility in those being referenced, and that's why we say those notorious examples were referenced and should continue to be referenced. Because at a practical level, no one's reaching around to point out all these people. The people that you'd risk being covered would be the managers and the professional staff and so forth, and you look at the clause - as I said to you, I don't think the examples have an operative effect, I think they just clarify that these people aren't in because of 4.2 or because they fall outside of 4.1. That's consistent with a need to make an award simple and easy to understand.

PN214

VICE PRESIDENT HATCHER: I'm just wondering, if you look at the - go back to the classification structure.

PN215

MR FERGUSON: Yes.

PN216

DEPUTY PRESIDENT ASBURY: I mean, you're right in saying that it sort of implies more than it states. But if you had a sentence at the top that says no classification applies to a managerial or professional employee, point one. Then level and level two say that they apply to work which is at a lower skill level than three and four. That would remove any possible doubt that these people aren't - these more senior people aren't covered by the classification.

PN217

MR FERGUSON: That would remove the doubt about the senior people.

PN218

VICE PRESIDENT HATCHER: Yes, and then we're trying to find out some theoretical group of low paid people like oyster farmers or something which might fall within it.

PN219

MR FERGUSON: Yes, or people doing other - like recruitment consulting type people that might not be paid exceptionally large amounts, but the view might be that they're award free, but I want to tread carefully.

PN220

VICE PRESIDENT HATCHER: But I mean, do they perform work at a lower skill level than a tradesperson?

PN221

MR FERGUSON: Well, they're not necessarily trade qualified; they're not necessarily professional. That's when you get into a fray about what's a lower level skill mean. I can speak from experience of the recruitment involves a lot of talking to job candidates and sales type work. I don't know how you compare the two skills; I'm just not sure on my feet. But I think the bigger issue we get into here that really raises from all of this, is whether you can describe a class of employees with such breadth as to say it's just all low skilled work or a low skilled - it should be about the work or the role, it's not about the pay. That's not a relevant consideration. All low skilled work is traditionally covered by awards and therefore ensure that the coverage provision operates in conformity with what is the absolute requirement of 143(7).

PN222

Now, I don't want to drift too far into an interpretation on the run, because that wasn't an issue I think ventilated by any of the parties, but the risk is that if you take that approach, that the provision isn't in conformity with 143(7), because that's not the intent of that provision, or the proper interpretation, then the provision is invalid in the coverage clause, which is a very significant risk. That's why we say the more prudent course of action is draft a clause that reflects the requirements of the Act, because in all candour, it must do that in its operation.

PN223

There is some merit about reflecting both 143(7)(a) and (b). I not ABI, or ABL, they represent have advanced some wording that reflects the wording of 143(7)(b) and would probably add greater clarity, because I think as these proceedings show, parties have directed their attention to (a), not (b) and just overlooked that, and it's a separate, not differently operating provision. Include that, then you're at least in conformity with the Act, because the reality is that's just the bare minimum people that must be excluded. Then if you're going to identify some practical examples of people who are clearly in that, do it but we haven't come here with an ability to clearly identify who all these people are but that shouldn't mean that those people don't exist.

PN224

I mean, the reality is, without detracting from the weight of the submissions from those in the bar table, I don't think it could be said that the parties here necessarily have an understanding of every single type of work out there being undertaken by the many millions of employees in Australia and, of course, no other parties are engaging with this process so I'm not trying to be cute, I'm not trying to be - - -

PN225

VICE PRESIDENT HATCHER: No, no, I understand that but, I mean, it seems to me that the need for something workable and practical is illustrated by the Pet Resort decision because I don't know what came of it but the simple fact was it exposed the fact that a whole industry sector in Queensland had not been complying with awards with potential breach and back pay implications for many, many years and that was a result of the fact that there was a badly drafted clause which even the Fair Work Ombudsman had given wrong advice about.

PN226

MR FERGUSON: Look, I accept that and I - - -

PN227

VICE PRESIDENT HATCHER: You don't want people to be caught in that situation.

PN228

MR FERGUSON: No, no.

PN229

VICE PRESIDENT HATCHER: You need to be able to know whether they're covered or not.

PN230

MR FERGUSON: Look, we're not arguing against greater clarity if it can be achieved without running the risk of non‑conformity with this section or without the risk of potentially expanding coverage that would have all of the adverse consequences that we say weigh in favour of a more conservative approach. I think the pet food industry's an issue one is probably the first time there was that level of consideration of this award and I think, yes, parties got it wrong, obviously.

PN231

Part of the confusion may have been, and your Honour's closer to this than I am, around the questions of whether there had to be awards in multiple states or whether you could just have one state and there was that issue about the interpretation that was taken in light of the restrictions on state based differentials and I think that likely contributed to part of the confusion but if we step back, and the ombudsman does get things about awards wrong, with all respect to the ombudsman, with a fair degree of regularity, that doesn't necessarily mean that the awards always are the problem and it's actually striking that there's been an exceptionally low level of disputation around the operation of this award in the almost 10 years that it's been in operation.

PN232

There's only been a small number of decisions where there's been a contest. That is the most high profile in terms of the consequences for the industry but I don't think that all of the four - that that can lay with the award but, in any event, that decision will provide some guidance now and I think that was - and that will assist industry and we are proposing that the ABL(?) variation also be made to add further clarity but, look, we're not trying to argue against clarity if it could be achieved but we can't come here and say accurately that we can give you a list of everyone out there in the community that's excluded but there are people and part of the problem is we get job descriptions, you can't dig behind that, and consistent with the approach in this review has been that well on the face of it you want to leave the awards, assume that prima facie they're achieving the modern award's objective, unless a case has been made out or there is material before the bench that would establish that there's a problem that warrants addressing and, look, our concern here is partly that what you're doing might create more problems than the hypothetical issues out there.

PN233

Because, I said, we don't know about these fabled cleaners and security guards that keep getting raised in multiple proceedings, to be honest, that operate outside of the contract cleaning sector, there's no evidence of them, and it's been an issue been around for a long time now, as I'm aware, in other proceedings but no one comes forward ever able to identify where these people work and it seems to be just a hypothetical concern potentially but certainly we say that without evidence that wouldn't be something that would move you to do something.

PN234

If I could then go to section 163(4). Just to address any ‑ if there is an assertion, I'm not sure that an assertion was made by my friend, but that difference between the coverage of this instrument and the description there is an issue but firstly, section 163(4) is just a definitional provision. It's enlivened or it's there because section 163(1) refers to the Miscellaneous Award, so subsequently, for practical purposes, there's obviously a definition of what the Miscellaneous Award is.

PN235

I don't think that that definition is actually inconsistent with the coverage of the award, i.e. it is expressed to cover employees who are not covered by any other modern award. It's just not expressed to cover all employees who are not covered by any other modern award and there's nothing inappropriate with it not covering all employees because the Act doesn't say it has to and, in fact, this is the bigger issue and I think my friend did make this point, section 163(4) has to operate subject to section 143(7) anyway and there are limitations there so there might be some lack of clarity in the way the legislation has cast that but that doesn't - that not a compulsory unusual event, amend the award to reflect that and if you did, in fact, we say you'd have a problem because it would be non‑compliant with section 143(7).

PN236

Just a final point in defence of the proposition that we're saying that 4.3 should be retained. Part of the benefit of that is if you remove that you'd run the risk that, to a greater degree, you'd have people applying multiple awards, both the Miscellaneous Award potentially and the industry award which obviously runs contrary to that element of the modern award's objective which speaks - - -

PN237

VICE PRESIDENT HATCHER: Sorry, why is that?

PN238

MR FERGUSON: Well, because if there were people that were actively exempt from the Miscellaneous Award by virtue ‑ ‑ ‑

PN239

VICE PRESIDENT HATCHER: They'd be using two awards you mean?

PN240

MR FERGUSON: Yes, they'd be using two awards. You'd put an employer in a situation where instead of using the industry award they'd have to use both in some circumstances which have terms and conditions that can be entirely inconsistent and which could be a practical problem but it runs counter to that proposition that we need to have regard to the need to avoid unnecessary overlap in this system and that would just be squarely giving rise to some. Those are the submissions unless there are any further questions.

PN241

VICE PRESIDENT HATCHER: Thank you. Mr Izzo.

PN242

MR IZZO: Thank you, your Honour. There's four matters that I'd seek to address. They are firstly to just - there seems to be a bit of an issue or potential disagreement between the parties about what the phrase 'classes of employees who are not traditionally covered by awards' actually means so I'd just like to explore that briefly. I'd then like to address clause 4.2 and its inclusion in the Miscellaneous Award. Thirdly, I'll address clause 4.3 and finally I'd just like to make some final submissions about the nature of the decision that was made during the award modernisation process and what the Commission turned its mind to back in 2009 but I'll deal with that last.

PN243

I think, as the preliminary matter, there does appear to be some level of ambiguity, between the parties that is, as to what the phrase 'classes of employees who are not traditionally covered by awards' are exempt from the Miscellaneous Award. We have a very clear view as to what that phrase means. I'm somewhat troubled by some of the statements from the union parties as to their understanding of what that phrase means. That phrase, if I could hand it up, I think predominantly derived from the award modernisation request that was issued by Minister Gillard and if it assists if I can just hand a copy of the ministerial request up.

PN244

The phrase that 'The award is not intended to cover those classes of employees who, because of the nature or seniority of their role have not traditionally been covered by awards' predominantly derives from clause 4(a) of that request. We say that when read in the context of the ministerial request and in the context of the Miscellaneous Award, that phrase, what it means is one looks on an aggregate basis across the safety net as a whole, pre-2010, as to whether a particular occupation or particular role was generally covered by awards.

PN245

That is, you look at coverage across Australia generally and collectively before making a finding as to whether a position was traditionally award covered or not. The more awards a position appeared in or the more awards an occupation could be found, the more likely, of pre-2010, the more likely that that type of work can be said to be found traditionally in awards. I have somewhat of a concern that that approach is not necessarily one shared by some of the union parties.

PN246

Some of the comments that have been made suggest, particularly from the CPSU for instance, they've referred to lawyers or HR professionals being covered in a particular sector and therefore that particular role might be, for instance the public sector, that particular role might be something that then one couldn't say is traditionally exempted from award coverage. We also had a reference from the ACTU to public relations workers.

PN247

To the extent that it is contended that a different approach be taken, that is if you find someone covered somewhere at some point in time they then don't benefit from the exemption, we disagree with that and there's primarily two matters we point to in support of our interpretation of that phrase. The first is clause 2(a) of the ministerial request. Clause 2(a) says that 'The creation of modern awards is not intended to extend award coverage to those classes of employees' - - -

PN248

VICE PRESIDENT HATCHER: Where is this?

PN249

MR IZZO: It is the - - -

PN250

VICE PRESIDENT HATCHER: 2(a).

PN251

MR IZZO: Sorry, 2(a), yes. 'Those classes of employees', and it goes on such as managerial employees, 'who have traditionally been award free'. All I want to draw from clause 2(a) is that it directs attention to classes. It doesn't say you're not to extend award coverage to an employee who was traditionally award free. It talks in the plural and we say that is - inferentially suggests that the assessment that's to be conducted is more on a collective basis than an individual basis but to the extent that there's any doubt about it, we say it is made even more clear or expressly clear by clause 2(f) of the ministerial request.

PN252

Clause 2(f) says that the creation of modern awards is not intended to 'exempt or have the effect of exempting employees who are not high income employees from modern award coverage or application unless there is a history of exempting employees from coverage across a wide range of pre‑reform awards and NAPSAs in the relevant industry or occupation'. What we say clause 2(f) is doing, or what it is instructing the Full Bench, is it's saying that generally lower income employees should not be exempted from the award safety net unless there is a history of their exemption on a wide ranging basis or on a collective basis across a large number of NAPSAs and relevant other pre‑reform instruments.

PN253

The ministerial request does not say that it's to be universal. That is, the employees to be exempted from all award coverage pre-2009 in order to be exempted from the award safety net from 2010 onwards. It talks about wide range of pre-reforms and NAPSAs, so what it's suggesting is the Commission was to, again, look at this collectively coverage pre-2010 and if, in a large measure, these type of role wasn't covered, even though it might have been in isolated instances, then that type of role may remain award free under the new safety net.

PN254

DEPUTY PRESIDENT ASBURY: Isn't it the case though, Mr Izzo, that even the use of the word 'exempting' carries a connotation that it's been consciously done, it's just not an oversight, a result of a change in the types of employers that are employing the employees? The term 'exemption' had a particular meaning in previous common rule state awards and generally there was a specific exemption there and in Queensland, speaking from my experience, it was set by reference to just a percentage above the highest rate in the award.

PN255

There was a term that had an understanding in the common rule state awards about what exemption meant and it wasn't just 'We forgot about them' or someone changed their mind or changed the structure of the way they do business.

PN256

MR IZZO: I accept that - I don't think the ministerial request was directing attention to leaving people out inadvertently but what I think that clause 2(f) is directing the Commission is that it did have the ability to exclude certain persons from coverage if, on a collective basis, broadly they weren't covered notwithstanding there might have been isolated patches of coverage in certain - or in one award or in two awards and the reason for that is this, is that the minister knew full well that what was happening here was an aggregation of a large number of conditions across thousands of awards and so they weren't purist in the sense that they thought well no, every single individual who was ever award covered must still be award covered in the new regime because I think there's a sense that they knew that might be impossible which is why 2(f) isn't worded in such absolute terms.

PN257

What they did do though to create a safety net for anyone who fell behind was create a regime under the Act for take home pay orders to ensure that if anyone did suffer a reduction in take home pay as a result of the award modernisation process, there'd be a mechanism to address that, so that was the mechanism for dealing with losses on an individual basis.

PN258

But what was directed to the Commission as part of this process was to deal with things collectively and the reason I make this point will become apparent in a moment when I deal with the United Voice submission to have certain classes of employees removed from the Miscellaneous Award, but the second reason that I say that this phrase, traditionally covered by - classes of employees traditionally being award free or traditionally not being award covered, should be viewed collectively is if you actually look at the drafting of the Miscellaneous Award itself, so the Miscellaneous Award, at clause 4.2, says:

PN259

This award does not cover those classes of employees who, because of the nature or seniority of their role, have not traditionally been covered by awards

PN260

and then it goes on to reference 'managerial employees, professional employees', as we know, 'such as accountants, finance, marketing, legal, HR', et cetera. The bench knew full well that some of these employees mentioned were actually covered because that award modernisation bench made awards to cover such classes of employees. It made the Banking, Finance and Insurance Award which has express coverage for accountants, has express coverage for HR. It made the Social, Community, Home Care, Disability Service Award which has quite wide ranging classifications that will cover a number of those roles and so it also made, for instance, the Professional Employees Award which applies to IT specialists in the IT services industry, so it knew full well that there are isolated patches of coverage for these types of classes of people but the point being made was that at large, broadly speaking, they were still roles that, in an aggregate sense, were not covered by the award safety net and that is how we interpret the phrase whether someone is traditionally covered by an award or not.

PN261

The reason that becomes important is because we then come to the second matter we wish to address which is the position of a number of union parties that say that the examples of the types of roles to be exempted, such as accountants, finance, marketing, all should come out of the Miscellaneous Award. We see that as significantly problematic and the reason we see that as significantly problematic is that we're actually willing to concede that there are patches of coverage of these positions across the safety net pre-2010.

PN262

In fact, there's patches of coverage of these positions in the current modern award system and so if we exclude the examples then we are going to end up in a world of disputation and we are going to end up in a world where there's significant confusion.

PN263

VICE PRESIDENT HATCHER: Why?

PN264

MR IZZO: Because how is an - so you might have an employee or an employer - - -

PN265

VICE PRESIDENT HATCHER: Well, if they're covered by another modern award they don't get in 4.1.

PN266

MR IZZO: If they're covered by another modern award they don't get into 4.1?

PN267

VICE PRESIDENT HATCHER: They don't get in 4.1. There's nothing to exclude.

PN268

MR IZZO: That's right, your Honour, but if we don't have the examples then any union or any employee could easily contest that they're not covered by say the - let's take a human resources officer. That banking finance award has clear coverage for human resources officer. If you're a human resource officer in another industry, they may well point to the coverage in some industries and then justifying why the Miscellaneous Award applies to them because they would say 'Well traditionally human resources officers have had some level of award coverage therefore we should be covered by the Miscellaneous Award' and that's the importance of having the examples.

PN269

VICE PRESIDENT HATCHER: But they'd have to say that they fall within a classification which is a bit of a stretch.

PN270

MR IZZO: They would have to say they fall within a classification and I have heard your Honour's questions repeatedly this morning about well doesn't the classification structure solve that dilemma. I don't think it does because the way in which the classification descriptions are currently drafted is so broad and so generic that you could envisage a lower level marketing employee potentially being covered by those descriptors.

PN271

You could envisage the possibility of a public relations employee being covered under the current drafting and so the classifications would need some surgery at quite a forensic level of we were going to - - -

PN272

VICE PRESIDENT HATCHER: Mr Clarke says public relations people are traditionally award covered.

PN273

MR IZZO: This is why I think the examples are so important because what needs to happen, and this is why I say we need to understand what traditionally award covered means, I don't know the full history of public relations and haven't looked at it specifically, but what one would need to do is look collectively across the country and see what was the case historically, pre-2009. If there was an award in operation for a few years in a couple of states, that might not be sufficient to get you over the line. If the coverage, on the other hand, was quite broad ranging then Mr Clarke may be right.

PN274

VICE PRESIDENT HATCHER: It may be that if you, in 4.2, if you just kept the specific nominated classes, that is the nominated categories, but remove the awards because of 'the not traditionally covered because the nature or seniority of the role', that may actually firm up the exclusion not ‑ because Mr Clarke would say well they're traditionally award covered so they're not covered by the exclusion anyway because they're only examples.

PN275

Whereas if you simply say 'This award does not cover managerial and professional employees such as', it confirms that they're not covered whether or not they were traditionally award covered.

PN276

MR IZZO: That's right.

PN277

VICE PRESIDENT HATCHER: That is, it would improve the position.

PN278

MR IZZO: Well, it would improve the position for employers. It would be a change to the substantive operation currently. I don't think we'd be opposed to that but I do think it would change the current way in which the award operates because you - - -

PN279

VICE PRESIDENT HATCHER: Well, as long as we could be satisfied that clause 4.1, when read with a classification structure, does not contravene 143(7).

PN280

MR IZZO: Yes, and our concern is that at the moment, because of the broad nature of the classification structure, unless you have these exemptions there's a problem with compliance with 143(7), and so - and it almost becomes - I mean, the necessity for the examples becomes more apparent when you read the United Voice submissions because not only do they want to remove the examples, they have said in their submissions that they want to introduce a new classification into the award to cover professional type roles and that's the very type of problem I envisage if the examples disappear, is that we will end up with disputation about each of these categories, about whether they should or shouldn't be out of the safety net and clearly the Full Bench turned its mind to this in 2009 and was satisfied to exempt these employees and we will almost create and open an entirely new can of worms on pretty much each of these specified types of positions if we simply delete them and that's why we're quite significantly opposed to the deletion of the examples, so that's our view in relation to the operation of 4.2.

PN281

Much has been made by the union parties of the need to re‑cut the language, the reference to 'because of the nature or seniority their role' and flip where it appears in the clause. I don't particularly see the merit in that. I think the language is clear on both counts but if one was to adopt the language in the decision of the Pet Resorts case, I don't think that would actually materially change things.

PN282

Just before moving on from 4.2, I would like to make this point, as far as I understand the mistake, because your Honour, Hatcher VP, made a comment that it's quite undesirable that there was this large mistake made in Queensland, as far as I understand it much of the reasoning of the employers, and potentially the ombudsman in that case, was they decided that in Queensland there'd never really been any coverage of this type of work in Queensland therefore they traditionally hadn't been award covered and therefore were not covered by the Miscellaneous Award.

PN283

Again, that seems to be a misapplication of what that phrase means. Had they done they done the proper task, which is to look collectively across Australia, they would have identified, as the Full Bench did in that case, that there was coverage in New South Wales, there was coverage in two other states and that there was perhaps what you might describe as critical mass, to then - - -

PN284

VICE PRESIDENT HATCHER: Well, there was two mistakes. There was that mistake and there was a further mistake to say that even if they weren't traditionally covered it wasn't anything to do with the nature or seniority of their role. It was just a historical accident. Nobody ever said pet accommodation in Queensland shall not be covered by awards because of some singular feature of their employment. It was just a result of history.

PN285

MR IZZO: Yes.

PN286

VICE PRESIDENT HATCHER: That's why it's a double barrel requirement. It's not enough that they're not traditionally covered. There has to be some reason which can be attached to the issue of nature and seniority of the role.

PN287

MR IZZO: Within the drafting of the Miscellaneous Award, entirely agree with that, yes. There is, in the Act, the additional - - -

PN288

VICE PRESIDENT HATCHER: As with the Act.

PN289

MR IZZO: - - - the additional requirement which is why we've said that, indeed, there may be merit in introducing the additional requirement into the award as well. They're the matters that I wanted to address in relation to paragraph 4.2. 4.3 is a separate issue. The parties, the union parties, have rightly pointed out that the provisions in 4.3 were not subject to the ministerial request. That is, there wasn't a specific request to include clause 4.3 in the award.

PN290

What we've said in our submissions is that there's obviously been a deliberate decision by the Full Bench in 2009 in this regard and the reason for that is that the Full Bench was concerned that there may well be non‑managerial or non-professional employees that traditionally their work has not been covered and it did not wish to expand the coverage of the Miscellaneous Award and we give an example of that in our submissions and if I can take you to our primary submissions at page 14, starting at paragraph 6.10.

PN291

When the award modernisation bench was grappling with the coverage of the award, the Australian Meat Industry Council appeared with some vigour and excitement and drew attention to the Full Bench of the fact that meat inspectors had not been covered for 50 to 60 years and that they had concerns that if the Miscellaneous Award coverage terms that were being contemplated by the Full Bench at that time went through, the meat inspectors who had never been covered, and I don't think we would characterise as managerial/professional, would all of a sudden become covered and they were quite animated in raising those concerns to the extent that they had various submissions, they appeared orally and after that level of opposition was expressed, we then had the Full Bench shortly thereafter deliver its decision in which clause 4.3 appeared.

PN292

There isn't in the statement that issued the decision the direct link between saying 4.3 was directly responsive to the Meat Industry Council but what was clearly before the AMOD Full Bench in 2009 were concerns that there still might be people not covered by industry awards, who have never really been covered by industry awards, that you might expand the safety net to and we're worried about that and the AMOD Full Bench was worried about that and that's why they went to the effort of putting in clause 4.3 and what we say is that is a clear example where if you don't have clause 4.3 and you rely on clauses 4.1 and 4.2, then you might have a new category of worker covered by the Miscellaneous Award who has not traditionally been and who the intention to date has not been to include them and they, effectively - you've heard about the shellfish workers in the aquaculture industry, we say this is the next example and the difficulty we have is that these are isolated examples but the problem is no one really knows the full extent and we are somewhat blind here in relation to exactly what all the pockets are and we say that's why the award modernisation Full Bench included a provision like 4.3 because no one's actually across all the examples.

PN293

We just keep hearing snippets, aquaculture, meat inspectors, and in order to be safe, having a clause like 4.3 does ensure that people who were never intended to be covered remain uncovered. The problem with clause 4.3 is we are being told by the unions that there are examples of people who definitely should be covered that aren't and we're being told about the cleaners and we're being told about childcare workers in fitness and we acknowledge that when you look at some of those roles a question arises as to whether they should be covered by the modern award safety net but that can easily be addressed, and we say it should be addressed by the union parties, by seeking to have the relevant industry awards amended.

PN294

In the fitness industry, clearly there is an industry award there, it could be addressed. The other example that was given by the United Voice related to security guards and the specific example they gave was corrections and detentions where they think there's a particular problem. There's no industry award covering that industry and that's the forum in which any issue can be addressed and I echo a comment that was made by AiG.

PN295

To a large degree all of these arguments today are in the theoretical because you put aside the Pet Resort decision, there's been very little disputation at all about this award for 10 years and there aren't really that many examples of a actual significant disputation and if they were to arise, then that would be the appropriate time to make an application to vary an industry award coverage, so where we land on 4.3 is there's merit in having it because there are some examples of employees that were never intended to be covered by awards that this seeks to preserve their status, such as the meat inspectors, but (2) we acknowledge there might be some people that do fall through the cracks and there's another means of dealing with that and that's where we land on clause 4.3.

PN296

There's a final matter that I wish to address before I'm going to deal with just a couple of specific issues that arose. The final matter relate to the deliberateness of the decision in 2009. This bench will be very aware of the process of award modernisation and the fact that when you're sitting as a member of a bench dealing with a four yearly review, you often seek to understand where a decision/a clause came from, what the reasoning process was and unfortunately, as we all know, because of the process that ‑ the large scale process that was conducted in 2009, there's very little guidance as to why some clauses end up the way they did.

PN297

There's very limited reasoning that one can refer to. It is actually not the case with respect to this award though and, in fact, there was extensive consideration and I am just going to give this bench the relevant references. There is a statement from 25 September 2009 at paragraph 81, it deals with the Miscellaneous Award coverage clause. There is a statement from 4 December 2009 of the AMOD Full Bench and it starts dealing with the award at paragraph 146.

PN298

But then you have the hearing on 7 August 2009. The transcript of that hearing is illuminating. These aren't all the paragraph references but I just did this exercise in quite a cursory fashion, paragraphs 30 to 37, 45 to 49 ‑ ‑ ‑

PN299

VICE PRESIDENT HATCHER: Thirty to 37, yes.

PN300

MR IZZO: Forty-five to 49, 67 to 108, 217 to 218, 224 to 230 and 232 to 243. These are indicative, it's certainly not exhaustive, but all of those paragraphs deal with exchanges between the parties and the Full Bench about the coverage of the award and all the issues that we've been talking about today and so what we say is that it's inescapable that the clause that was ultimately adopted was actually arrived at as part of a very deliberate decision of a seven member Full Bench and if there is to be a departure, naturally there'd need to be cogent reasons for doing so.

PN301

This has, indeed, been acknowledged by the United Voice in their reply submissions at paragraph 4 and one might ask well if it was subject to such deliberate consideration, then why is it that we have in clause 4.2, if you like, and 4.3 some generic type clause drafting that, as your Honour, Hatcher VP, has pointed out, lay employers or employees might struggle with and I think the answer to that is because it's an extremely difficult task to actually properly quantify who's in the Miscellaneous Award when you don't have all the information, you don't have exhaustive examples and so what the bench has done is it's effectively being very careful to ensure it doesn't end up contravening section 143(7) of the Act, to ensure it didn't contravene the ministerial request and the best way it could come up with it was to have the drafting it had which still requires some effort on the part of the parties to actually work out whether someone's in or out but that's because they didn't obviously feel comfortable taking the further step of definitively or in more plain language explicitly carving out the award's coverage and that's why we say it's drafted the way it was.

PN302

Not because it was they heard from some of the union parties 'We all know the process was smashed together. It was done quickly'. Not in this award and not in this case, so that's our submission about the process that was undertaken in 2009.

PN303

VICE PRESIDENT HATCHER: Presumably the category that's the subject of exclusion in 4.2 must be a closed category. That is, it's work that existed as at 2009 which had not had traditionally been covered by an award for a certain reason. It can't keep on growing beyond that point because if there's new work beyond that point, then wasn't excluded from the awards system for any particular reason, it's just new work. Because there must a closed definable category of people who, as at that time, were not covered.

PN304

MR IZZO: Well, I think - - -

PN305

VICE PRESIDENT HATCHER: Then once you strip away the high income, the managerial and the professional employers, there's a question of who's left.

PN306

MR IZZO: It's an interesting question, your Honour, because - yes, I think that certainly that's an arguable approach to take which is that if the work didn't exist how can one assess whether it's traditionally been covered or not and I suppose that's the benefit though of section 143(7)(b) of the Act, which is not in the award, which also directs one to look at whether the work is of a similar nature to work that's been traditionally covered.

PN307

I think when you talk about emerging industries, that clause can certainly have application and, again, that might be a reason why that clause should actually be inserted into clause 4.2 of the Miscellaneous Award because that would certainly have the ability to deal with that type of scenario.

PN308

VICE PRESIDENT HATCHER: But surely if the award is expressed to cover semi-skilled and trades level work, it's work of a similar nature to that which has traditionally been covered by awards, and how much further do you need to go?

PN309

MR IZZO: Well, it depends because I think when you start to get into some of these examples like marketing or Mr Ferguson mentioned his detailed experience in the recruitment consulting industry, some of the work might not be sufficiently low skilled to be described as clerical and therefore caught by the Clerks Award but it might not be significantly managerial or professional enough to then move into a realm not covered by the Miscellaneous Award and an example is PR event co-ordinators.

PN310

VICE PRESIDENT HATCHER: A what?

PN311

MR IZZO: Someone in public relations that is involved in event co-ordination type activities. At the very, very basic level of that role they're probably covered by clerks because they're just doing clerical type processing of documentation, invoice, whatever, but then there's a whole level of that role which might involve going out to sites, that might involve all sorts of activities associated with putting on event that have completely different range of skillsets that from very skilled to not so skilled and they may well not necessarily be at above that kind of trade qualified level but they've never kind of been covered by awards, in our - by my understanding, and if we were just relying on the classification descriptors, that's where all of a sudden you get areas of grey, marketing, potentially PR and recruitment consulting perhaps, and that's why we're quite passionate about the examples still being in there because my understanding is most of the PR industry do not operate on the assumption that their event co-ordinators are award covered unless they are performing quite basic clerical duties and they never traditionally have been.

PN312

I know the ACTU take a different view on some of that for PR, and that supports our desire to maintain the examples. A couple of isolated matters that arose. There was - I think I've answered this but just for the sake of abundant caution, your Honour asked us clause 4.1, read alone, of the Miscellaneous Award, operate consistently with 147(3). Our position is because of the generic nature of the descriptors, at this stage it doesn't and that's why we need the other clauses.

PN313

There was a reference by the CPSU to the fact that clause 4.3 goes beyond the scope of the ministerial request. One of the points I'd like to make about that is, and we make this in our submissions, even if something's inconsistent with the ministerial request that does not, in today's world, justify a departure because the ministerial request no longer governs the exercise of functions by this Commission. The exercise of the Commission's functions are governed by the modern award powers conferred under that part of the Act that deals with modern awards, the modern awards objective, the other provisions of part 2.3 of the Act are the matters or are the broad considerations that govern the exercise of the Commission's function in the present day.

PN314

VICE PRESIDENT HATCHER: I suppose one approach we could take is to say in principal delete 4.3 but allow any party affected an opportunity to demonstrate that they're a group to which 413(7)(sic) applies so we can deal with specific ‑ so we do it then we hear who screams about it and then they can be given a fair opportunity before any change comes into effect to demonstrate that, in fact, they do fall within the 413(7)(sic) category.

PN315

MR IZZO: Well, I'd have two responses to that, your Honour.

PN316

VICE PRESIDENT HATCHER: It's the best way to get a response, put it that way.

PN317

MR IZZO: Well, I think, yes, my two responses, well these two issues, (1) that's certainly better than just deleting clause 143, absolutely, because of the unintended consequences that might arise, so we accept that, but (2) unfortunately, while some parties may come out the woodwork, the very nature of these processes some might not and the problem might not be realised until some point later and that's another possibility.

PN318

As we saw in the ‑ as you may have picked up in the overtime for casuals proceedings this morning, we've been articulating views about how some of the provisions in that space work in a large number of awards and haven't necessarily heard back from all parties notwithstanding they had a material interest and so it's not guaranteed and that's why our preference is to retain clause 4.3. The only other matter that I want to address is some comments that were made about section 163 of the Act and specifically 163(4).

PN319

There's been some suggestion, I think, or inference by the union parties that really the Miscellaneous Award should cover all employees except those who are exempt above 143(7). I think caution needs to be adopted in identifying that as the effect of 163(4).

PN320

VICE PRESIDENT HATCHER: Well, I think Mr Ferguson's already submitted it's a definitional provision only.

PN321

MR IZZO: That's precisely what we were going to say and just to support that, 163(1) talks - it makes reference to the Miscellaneous modern Award and what wants to do to coverage clauses by reference to that so, of course, they then need to talk about what the Miscellaneous modern Award is, so it's just definitional provision and one should not read too much into that issue.

PN322

VICE PRESIDENT HATCHER: Well, it's interesting that sub‑section (1) seems to say that if you want to exclude someone from a modern award who's already covered by (1) if the Miscellaneous Award is not a satisfactory alternative.

PN323

MR IZZO: That's right. It is interesting, your Honour.

PN324

DEPUTY PRESIDENT ASBURY: And (1) deals with varying and (2) deals with making.

PN325

MR IZZO: Yes. I mean, there's obviously a sense that there's a desire for the Miscellaneous modern Award ‑ there's a desire for employees to ordinarily be covered by industry or occupational awards and the Miscellaneous Award is for prescribed certain circumstances that fall out of that.

PN326

DEPUTY PRESIDENT ASBURY: Maybe there was a lot to be said for those little words 'all others not elsewhere classified' that used to be in every award and don't seem to be anymore.

PN327

MR IZZO: But they are broadly our submissions, unless there are any further questions.

PN328

VICE PRESIDENT HATCHER: All right, thank you.

PN329

MR FERGUSON: Before you go to the unions can we just deal with one question that fell from your Honour?

PN330

VICE PRESIDENT HATCHER: Yes.

PN331

MR FERGUSON: It was about whether the classes of excluded employees are closed, if you will. It appears to us that they certainly are not. It's just a question of whether any new work that arises is of a similar nature to work traditionally and if it's not, then they're exempt even though it might be entirely new category of work. But the other point I'd make in relation to the operation of section 143(7)(b), for clarity, is that the focus there is on simply the question of whether the work is or is not of a similar nature to work that's traditionally been regulated by awards.

PN332

It's not a question about whether the employment is suited to award coverage, if you will. It is simply an assessment of whether the work in its nature is similar to that undertaken elsewhere which is only a question, I take it, because there was a flavour to that in the context of Gold Coast Kennels but, of course, you weren't arguing about the Act and there were no arguments raised here so I make the point now because it's rising for the first time but, as I said, we have reservations about whether the class can be characterised as so broad to say just low skilled work but there are practical problems with that too but I can't take that further.

PN333

VICE PRESIDENT HATCHER: All right. No particular right of reply but does anyone else wish to say anything more?

PN334

MS DABARERA: Just briefly. The employers have made a submission to the effect that the matters we're dealing with here are largely theoretical and we say that that's not the case and we have a current dispute regarding the award coverage of mobile speed camera operators and that's referred to in our submission in reply. As I understand it, they're workers that are paid at level two of the Miscellaneous Award and don't require a formal qualification but we are in the Commission at the moment at the conciliation stage before Sams DP, well one of our branches is, in regards to their award coverage.

PN335

We'd say they should be covered under the Miscellaneous Award, the employees, at their award's rate so it something with current ramifications and we also point to the fair work advice that we've linked to in relation to child minders in fitness centres and family day care employees. That's advice that presumably employers and employees are relying upon.

PN336

VICE PRESIDENT HATCHER: Sorry, is this where the - I think it was a New South Wales government contract about mobile speed camera functions. Is that what that's about?

PN337

MS DABARERA: There's a case in Victoria about - there's a Serco case in Victoria in relation to enterprise agreement where that was contracted out which is referred to in the AiG's submissions and we would say that that case may need to be - with respect, that might not be the same. It might not come to the same conclusion in light of the Pet Resort's decision, yes.

PN338

VICE PRESIDENT HATCHER: Yes, all right.

PN339

MS DABARERA: The other matter that we just wished to briefly touch on is in relation to the idea that these sorts of employees can be dealt with by way - the award coverage of these types of employees can be dealt with by way of a variation application. We would point out that a variation to a modern award is not necessarily a simple matter and it would require an employee or the union or the Commission to take an initiative and it may be a contested matter that might have to go to hearing.

PN340

We say that's not a efficient way to deal with the issue of award coverage and that's not the way that we see the Act ‑ we think the Act, in terms of section 163(4) and also the inclusions in 143(7), that's not the way that the Miscellaneous Award is framed to deal with that issue. We see it as an award that's intended to capture those employees and then there may be circumstances when a variation application is made but it wouldn't necessarily always be made. That's all we wish to say, unless there are any questions.

PN341

VICE PRESIDENT HATCHER: No.

PN342

MS DABARERA: Thank you.

PN343

VICE PRESIDENT HATCHER: Yes, all right. Do you want to say something, Mr Clarke, or are you just rising, anticipating our departure?

PN344

MR CLARKE: Yes, just - no, just briefly.

PN345

VICE PRESIDENT HATCHER: Yes.

PN346

MR CLARKE: If that's all right.

PN347

VICE PRESIDENT HATCHER: Yes.

PN348

MR CLARKE: Just on the issue of the Full Bench, AIRC Full Bench, consideration of clause 4.3, I don't remember whether paragraphs 77 to 82 were - or sorry, to 91 were within the list that were referred to but there is an exchange there between Giudice J and Ms Bissett, as she then was, about this very issue of clause 4.3 and the issue of excluding people in the Miscellaneous Award - - -

PN349

DEPUTY PRESIDENT ASBURY: Sorry, 77 to 91?

PN350

MR CLARKE: Yes.

PN351

DEPUTY PRESIDENT ASBURY: No, it wasn't in the list but ‑ ‑ ‑

PN352

VICE PRESIDENT HATCHER: That's that transcript of 7 August 2009, is it?

PN353

MR CLARKE: This is the 7 August 2009, yes, yes, and the issue of the meat industry inspectors comes up and Ms Bissett, as she then was, representing the ACTU said:

PN354

Yes, I can see what the Meat Industry Council is getting at. They don't want - they say their meat inspectors have never been covered by the Meat Industry Award but that's fine but if you do what they're doing, you're going to end up with them not being covered by the public sector - they're currently covered by public sector awards now and so if they fall out there, then they're going to have nothing if you do what the Meat Industry Council says

PN355

and I just wanted to point out that Giudice J's responses to that issue were not - signified that there was a little uncertainty in his own mind about whether or not what was proposed by the Meat Industry Council as the solution was, indeed, the right one and I'll just read from the transcript - - -

PN356

VICE PRESIDENT HATCHER: Sorry, before you do, Mr Clarke, so I just have trouble having - understanding you. These meat inspectors are employed by who?

PN357

MR CLARKE: I think they're employed by the - - -

PN358

DEPUTY PRESIDENT ASBURY: AQIS or whatever it's called, the ‑ ‑ ‑

PN359

MR CLARKE: Public. Yes, it was a public body.

PN360

DEPUTY PRESIDENT ASBURY: Quarantine.

PN361

MR CLARKE: You'd know.

PN362

MR BARLOW: Sorry, your Honour, I can only speak to the extent about coverage. Obviously AQIS, for the meat export purposes, have meat inspectors which have traditionally been public servants and will obviously always be CPSU members as well, your Honour, but there are others in the industry that also perform the function, as I believe, of meat inspectors but under a devolved meat inspection regime that AQIS is now running, your Honour, which might actually post-date the submissions and considerations from 2009, so I can't necessarily help in that regard but what I'm suggesting is many meat inspectors in Australia would be covered by Commonwealth public service but there may, in fact, be others employed in the industry, because obviously their employment under AQIS is for export meat purposes not for domestic purposes, your Honour.

PN363

VICE PRESIDENT HATCHER: All right, yes, go on.

PN364

MR CLARKE: But the simple point was that just because somebody's been excluded from one award doesn't mean they've been excluded from everything and you shouldn't come up with a clause that results in that position there well look somebody's been excluded from this award over here therefore the Miscellaneous Award can't cover them. They're different, as I said in my initial submissions about excluded from an award versus excluded from the award system. Giudice J had said, in response to that issue, he said:

PN365

HIS HONOUR: Yes, but if you take the general point that there is some significance in it, isn't there, that the modern awards will all have a classification structure and one could assume that there will be some people employed by an employer covered by the award who aren't within the classification structure and that that's, well deliberate probably isn't the right word, but that's customary coverage in that industry.

PN366

MS BISSETT: Yes.

PN367

HIS HONOUR: And the question is how do you preserve that position? What words do you use in this general award if, indeed, it's appropriate to preserve it and I'm assuming for a moment that there will be cases in which it's appropriate to preserve it because they've traditionally not been covered and I hope I'm paraphrasing paragraph 4(a). But the option seemed to be try and devise some general words along the lines that a number of parties have tried to and perhaps to identify specifically the areas of exclusion that you know about or that the parties bring to attention but there's a bit of an issue here, isn't there, as to how you go ahead and do it.

PN368

I think - okay, now we're doing theatre sports, it'd be time warp, space jump, we're back in the same spot, but I think the bench certainly, in its interactions with the parties, didn't seem to want to create a position whereby the exclusion of a worker from an award equated to the exclusion of that worker from the award system. That's the point I wanted to make about that.

PN369

VICE PRESIDENT HATCHER: That seems to be what they did.

PN370

MR CLARKE: Yes, and what the Act said, and just in relation to there was some submissions made, I think by both the Ai Group, on behalf of the Ai Group, and ABI and New South Wales Business Chamber, regarding how far do you need to go to show traditional award coverage and I just wanted to make the point, and the point was made about how much things have changed in 20 years, traditional award coverage is not the function of award coverage just happening.

PN371

Award coverage could only happen because unions and employers had industrial disputes. Unions could only have industrial disputes within the limits of their rules, in some cases in particular states, so necessarily there's going to be some patchiness and if we are going to try and ‑ if this bench does go on to try and attempt to build some other proxy around traditional coverage, we'd just like you to bear that in mind that traditional award coverage should not be equated to the comprehensive coverage of an industry or occupation or, indeed, anything approaching the critical mass that was deemed necessary for award by award replacement throughout the award modernisation process.

PN372

Traditional award coverage is as much as we could get until middle of section 99. That's it, and in relation to ‑ yes, yes, just to - this may well have - you may have taken a point from Mr Ferguson's submissions but also that there's a - obviously that there is a retrospective and a prospective component in the coverage in section 143(7), so the coverage of the award can expand as new work ‑ section 143(7) has two limbs, one of them looks retrospectively, one of them looks retrospectively and prospectively so the coverage of the award needs to be expressed in a way that's flexible enough to enable that to happen as new occupations and industries emerge, which we're told is just around the corner and everyone's making lots of money out of it and it's all terribly exciting.

PN373

But the final point I wanted to make was about the alleged difficulties of multiple award coverage. I'll just say ‑ I'll just refer you to the point that we made in our submissions that the award modernisation request itself anticipated that the, at paragraph 8A, that the award would operate in a range of industries and occupations and, indeed, paragraph 2(a) specifically spoke about the extension of modern award coverage to new industries or new occupations who are working for - by employees in those industries or occupations is of a similar nature to work historically regulated by awards, so it's clearly contemplated that you could have one award overlap with another award where, for example, it dealt with a new occupation, that that was contemplated in the process to begin with. That was all I wanted to add.

PN374

VICE PRESIDENT HATCHER: All right, so we thank the parties for their submissions. We will reserve our decision and we will now adjourn.

ADJOURNED INDEFINITELY [12.28 PM]