PN1

THE COMMISSIONER: Can you see me all right, Mr McCarthy and hear me?

PN2

MR McCARTHY: Yes, Commissioner.

PN3

THE COMMISSIONER: Good morning all.

PN4

MS SVENDSEN: Good morning.

PN5

MR BULL: Good morning.

PN6

THE ASSOCIATE: Sorry, Commissioner Lee?

PN7

THE COMMISSIONER: Yes?

PN8

THE ASSOCIATE: We can't quite hear you loud enough in Melbourne.

PN9

THE COMMISSIONER: Okay.

PN10

THE ASSOCIATE: Could you just move the mic in front of you a bit more please?

PN11

THE COMMISSIONER: Okay. Is that better?

PN12

THE ASSOCIATE: Yes. Yes, thank you.

PN13

THE COMMISSIONER: All right.

PN14

MR McCARTHY: Thanks, Commissioner.

PN15

THE COMMISSIONER: I've moved to the wrong side, sitting in front of you, Mr Snibby.

PN16

MR SNIBBY: Yes. I promise I won't breathe on you, Commissioner.

PN17

THE COMMISSIONER: Okay, good.

PN18

MS SVENDSEN: We have made those comments.

PN19

THE COMMISSIONER: Already.

PN20

MS SVENDSEN: Not quite. Yes, yes.

PN21

THE COMMISSIONER: All right, I was thinking we'd go through basically the order that they're in my folder, which is really apropos of nothing. But we'll start with ACS.

PN22

SPEAKER: Thank you, Commissioner.

PN23

MR McCARTHY: McCarthy in Melbourne.

PN24

THE COMMISSIONER: What's that?

PN25

MR McCARTHY: Could I just have a run through of who is in Sydney?

PN26

THE COMMISSIONER: Can't you see the Bar table?

PN27

MR McCARTHY: I can, but some of the people have changed from the last time so I'm not quite sure who everybody is.

PN28

MS SVENDSEN: Yes.

PN29

THE COMMISSIONER: Okay.

PN30

MR BULL: It's Stephen Bull from United Voice. I may have changed, or somebody else - - -

PN31

MR McCARTHY: Hi Stephen. How are you going?

PN32

MR BULL: Not too bad.

PN33

MS SVENDSEN: And I haven't changed, Andrew.

PN34

MR McCARTHY: Yes.

PN35

THE COMMISSIONER: Ms Svendsen is here. Mr Reid, from Aged and Community Services, Mr Brown from LASA, and Ms Margaret Chan from AB Lawyers.

PN36

MR McCARTHY: Okay, thank you.

PN37

THE COMMISSIONER: Yes. Okay?

PN38

MR McCARTHY: Yes. Thank you.

PN39

THE COMMISSIONER: No worries.

PN40

All right, so I thought we'd start with the ACS proposal. As I say, for no other reason than I was following the way it was laid out in my folder. Starting with the proposed new 14.4(c). So anything else that you wanted to say about that proposal?

PN41

MR BROWN: No, Commissioner, we think it's pretty clear what's in there and what we are wanting to achieve.

PN42

THE COMMISSIONER: Have you had any discussions with the unions about it?

PN43

MR BROWN: Andrew, did we touch on this one when we had our telcon a few weeks ago?

PN44

MR McCARTHY: It actually occurred to me afterwards that I think we didn't discuss this one.

PN45

MS SVENDSEN: No.

PN46

MS CHAN: We didn't discuss it at all.

PN47

MS SVENDSEN: I was actually re-looking at my notes from the teleconference this morning and I thought "Yeah, I think we missed that one". We talked about all the phone allowances and probably - and on-call allowance stuff, and probably concentrated on that primarily and we didn't get to this matter for some reason.

PN48

THE COMMISSIONER: All right, any views you want to express about it now?

PN49

MS SVENDSEN: Not ones that - I haven't changed my mind about it. Not ones that we haven't previously expressed.

PN50

THE COMMISSIONER: Mr Bull?

PN51

MR BULL: Similar views to the HSU. This is the rostering claim?

PN52

THE COMMISSIONER: That's right. It's essentially the change is that there's already enough provision to enable change without seven days' notice on account of illness or in an emergency. But this would allow for a roster to be altered at any time with the agreement of the employer and employees seemingly exclusive of illness or emergency. So it's like a right to amend.

PN53

MR BULL: It's a general one.

PN54

THE COMMISSIONER: A right by agreement, whatever that means, and we can explore that, to alter the roster at large. Yes.

PN55

MR BULL: That could often mean "We need you to work tomorrow. Can you work tomorrow?"

PN56

THE COMMISSIONER: Sure.

PN57

MR BULL: Yes.

PN58

THE COMMISSIONER: Yes, okay.

PN59

MR BULL: We'd disagree with that.

PN60

THE COMMISSIONER: Yes.

PN61

MR BULL: You need some rigidity around rosters and there's always the capacity to pay people overtime if you want them to work on hours outside the rostered hours.

PN62

MS SVENDSEN: I re-read the 2012 or the 2013 appeal decision really in relation to this matter to refresh my mind in relation to that, and I can't see how the wording gets around the issues raised in that decision about part‑time employees having control of their hours and not being asked to work or change their hours except without overtime applying.

PN63

The employers have said that the provision in the roster provision provides that in an emergency they can make changes, which it does provide those - I mean, there's an emergency provision included in it - but that it doesn't allow them to ask an employee. An employee can ask if they want to change their roster but it doesn't allow them to ask an employee to change their roster and get agreement. And I re-look at that decision and I go, "Yeah, with cause" and I don't think that the proposed wording gets around that and gets around that the difficulties - - -

PN64

THE COMMISSIONER: That is there is no - - -

PN65

MS SVENDSEN: Yes.

PN66

THE COMMISSIONER: It's open ended. It doesn't have any other driver. Okay.

PN67

MS SVENDSEN: And it doesn't get around the - - -

PN68

THE COMMISSIONER: But it could get around it if - - -

PN69

MS SVENDSEN: - - - premise that 10(c) is the - or sorry, 10(b) is the primary driver of hours for part‑timers, that the provisions are "We set the hours and roster format, hours of work, days of work, that sort of thing" and that takes primacy over the roster provisions. So yes, and my opinion on it, I think it gets past it and we're certainly not comfortable agreeing to such a change.

PN70

THE COMMISSIONER: If it did have some driver attached to it that was sort of broader than the emergency time issue, would that get around it?

PN71

MS SVENDSEN: Well, emergency provisions are already included.

PN72

THE COMMISSIONER: That's right.

PN73

MS SVENDSEN: And they're quite clearly there and that enables a response by employers in terms of roster changes where something occurs that they have no control over.

PN74

THE COMMISSIONER: Yes.

PN75

MS SVENDSEN: And it allows them to talk to people about that and that's fine. Where it's not in the context of that then overtime provisions should apply and that should be - that's just the way it should be. It's not about any request to change the roster other than in those urgent - in emergency situations it seems to me to be the employer wanting to fiddle with the roster and the hours of work that I've agreed with him at the start of my employment, and the premise behind the employer request is that that's fine but it's overtime.

PN76

THE COMMISSIONER: ANF?

PN77

MR BULL: Yes, we've similarly raised concerns about this and I think it's just the issue of - yes, I mean if suddenly there's a request to work extra hours and the employee basically feels that they have no other option really to agree to that, then you've got that situation where no overtime is payable and, you know, the prior agreement of - you know, there's no notice basically. It's just pressure is borne, employees feel pressure and, you know, they feel like they have to agree to it. So just as the way it stands at the moment we couldn't agree to it.

PN78

THE COMMISSIONER: Any reaction to that? I mean it is on - it does beg that question about how it would be regulated, you know, in the real world. An employer says - - -

PN79

SPEAKER: Yes, the pressure is (indistinct).

PN80

THE COMMISSIONER: - - - "I want you to alter your roster and - - -

PN81

MR BROWN: So the feedback we've got from our members is that they would like to give their part‑time employees more hours if the situation arose. However it's hard to do so given the current arrangements with the award. So we would say that if someone was offered to work those extra hours we'd say "We have a shift opening up this week. It's available for you if you would like to work it", employees do have the choice to say "Yes, I would like to take on that shift" or "No, sorry, it's outside my contracted hours. I can't do that because it doesn't fit in with my lifestyle". But from what we've heard, feedback from our members, is that a lot of employees do actually want to work those extra hours.

PN82

THE COMMISSIONER: So it's a part‑time issue? It's for part‑timers.

PN83

MR BROWN: Correct.

PN84

THE COMMISSIONER: Right. Now don't we have a provision that deals with that in the part‑time provision?

PN85

MS SVENDSEN: Yes.

PN86

MR BULL: Well, they can have agreed variations to their hours of work. So you can - - -

PN87

THE COMMISSIONER: What clause in the exposure draft?

PN88

MR BULL: It's 10.3 in the exposure draft.

PN89

MR BROWN: Yes, 10.3.

PN90

THE COMMISSIONER: So is there a problem with how that operates? I mean that does allow for - yes, presumably there's no overtime attracted - and you're not contending that, are you Mr Bull?

PN91

MR BULL: No, because it's an agreed variation to the ordinary hours worked.

PN92

THE COMMISSIONER: Well, it just says "to the hours of work" but presumably - - -

PN93

MR BULL: That would deal with the fact that, you know, if you're not - you don't do your shift on Thursday, you could do it on Wednesday or if there's an extra shift, you know, you - - -

PN94

THE COMMISSIONER: It's more likely going to be the extra shift is the issue though.

PN95

MR BULL: Yes, you can do the extra shift. You would agree to - - -

PN96

THE COMMISSIONER: If I work Monday to Wednesday. There's an extra shift on Thursday.

PN97

SPEAKER: "Would you like to work that?"

PN98

THE COMMISSIONER: I can agree to vary my hours and work to work that on the Thursday.

PN99

MS SVENDSEN: That's exactly right.

PN100

THE COMMISSIONER: Doesn't that - why does that not deal with the issue that your members have got?

PN101

MR BROWN: In terms of the working roster?

PN102

THE COMMISSIONER: That's what I'm getting at; how does that interact with the roster? You think that there's - is there something that needs to be done to the part‑time provision to make clear that provided you've complied with this provision that - - -

PN103

MR BROWN: So what we're saying, just so I'm clear as well where you (indistinct), Commissioner.

PN104

THE COMMISSIONER: Yes.

PN105

MR BROWN: If we do do an extra - if someone agrees to actually work those extra hours there, the rosters' provision won't come into place. It's simply an extra shift. It's not a change to the roster?

PN106

THE COMMISSIONER: That would be a way of approaching it, yes.

PN107

MR BULL: It's just an extra shift. Not everything is in the roster.

PN108

MS SVENDSEN: But that's already there.

PN109

THE COMMISSIONER: But they're your - - -

PN110

MS SVENDSEN: On any agreement, any proposal, and there's nothing in the context of the part‑time employment conditions at 10 that refutes the concept that suggests that only one party can propose additional hours or that you can only do it in an emergency or that it's one-off as opposed to permanent.

PN111

THE COMMISSIONER: No, no, but that's all fine.

PN112

MS SVENDSEN: That's all clear.

PN113

THE COMMISSIONER: That's all fine except what I'm hearing is the issue is if I've done that, I've approached you, I've asked you if you want to take up the - you're a Monday to Wednesday worker. I've asked you if you want to do Thursday. You've said yes. As Mr Bull says, that may or may not include - be seen as a change to the roster. You want to be not in breach of that provision, so it might be that the way that that can be resolved is by making clear that for the purposes of 10.3 if that is an issue, that any agreed variation to the hours of work will not be - you won't be caught by the seven day notice period. Fix it that way.

PN114

MS SVENDSEN: Unless, Leigh, Stephen, there's a bit of a disconnect between us and you guys as to what we think the roster situations or a roster change would come into play. Because I think for our members, Commissioner, that would be the one thing I would see someone wanting to work extra hours, an opportunity to work extra hours is there available to them and given the way the rosters clause is currently structured say "Well, can we actually do this without seven days' notice?"

PN115

MS SVENDSEN: 14.4(d):

PN116

Clause 14.4 does not apply where the only change to the roster of a part‑time employee is the mutually agreed addition of extra hours to be worked such that the part‑time employee still has two rostered days off in that week or four rostered days off in that fortnight.

PN117

I don't think there's any problem.

PN118

THE COMMISSIONER: That deals with it, doesn't it?

PN119

MS SVENDSEN: Absolutely it deals with it.

PN120

THE COMMISSIONER: It's already there. That was what I was getting at.

PN121

MR BROWN: Okay.

PN122

THE COMMISSIONER: The provision is already there.

PN123

MR BROWN: Yes, no worries.

PN124

THE COMMISSIONER: So that cuts you around it.

PN125

MR BROWN: Yes, absolutely. Given that as well, I would say shift swapping as well, Commissioner. If someone wanted to swap their shifts around - - -

PN126

THE COMMISSIONER: Well, just before we move on.

PN127

MR BROWN: Yes.

PN128

THE COMMISSIONER: But that deals with the prima facie problem - - -

PN129

MR BROWN: Yes.

PN130

SPEAKER: (Indistinct).

PN131

THE COMMISSIONER: That your members have got. You'd agree?

PN132

MR BROWN: That satisfies it, yes, Commissioner.

PN133

THE COMMISSIONER: Yes, so there's no basis to pursue the clause on that basis - sorry, the variation. So we're moving on to shift swapping. What do you want to - - -

PN134

MS SVENDSEN: If you want to undertake shift swapping it should be in an agreement. It's not a minimum requirement to meet - - -

PN135

THE COMMISSIONER: Can I just hear what he wants to say about it?

PN136

MS SVENDSEN: Sorry.

PN137

MR BROWN: Just when we have a member, they might say "I've got this shift I normally swap" sorry "I normally work" and they would like to swap it, where would that sit in terms of the clause 14.4 if someone wanted to swap their shifts around as a one-off? Not necessarily at the instruction of the employer but it could be something at the initiative of the employee. So say to their manager - - -

PN138

THE COMMISSIONER: Has it been a problem?

PN139

MR BROWN: I wouldn't say it's a systematic problem, Commissioner, but there have been instances. We've got feedback from members about changing the shifts around, swapping shifts at the employee's initiative.

PN140

MR BULL: But that's a management issue for an individual employer. If they allow that to happen, they allow that to happen but it's not a reason to sort of reappraise the rostering provision in an award. Technically it shouldn't happen because, you know, you roster an individual, there's some exercise of managerial prerogative in saying employee X is working on date Y and they shouldn't swap. In reality people do but, you know.

PN141

THE COMMISSIONER: Yes, but the question is if they do swap, have they breached the - is this the issue, have they breached the seven day notice requirement?

PN142

MR BROWN: Potentially it could work both ways as well.

PN143

THE COMMISSIONER: Yes, okay.

PN144

MR BROWN: I mean, I can appreciate what Stephen and Leigh are saying but we don't think it's going to lead to a systematic - - -

PN145

MR BULL: Well, I don't see the point of this. You know, this is an informal practice that does occur in workplaces and should just be left as it is. You know, you can invent all sorts of obtuse issues about it sort of being a contravention of the award but somehow I don't think we're going to end up in the Federal Court because, you know, Doris and Phyllis switched days on Tuesday with their part‑time cleaning job at an aged care facility.

PN146

THE COMMISSIONER: That may be your speculation, Mr Bull, but if there is a breach, there is a breach. I mean if there was a seven day notice requirement - I know I'm asking whether it is an actual problem, but technically it may well be. But that could easily be resolved by an amendment to 14.4(d) along the lines of where this has already got the carve-out for the mutually agreed addition of extra hours, right? Then you would also have a carve‑out that where there's a swapping of shifts, that the notice - - -

PN147

MR REID: The seven day notice is waived.

PN148

THE COMMISSIONER: The notice period wouldn't apply, then you wouldn't have an issue with that.

PN149

MR BULL: It's just, you know, you need - - -

PN150

MS SVENDSEN: I think - - -

PN151

MR BULL: You need the employer to actually - I would have thought most employers don't formally condone shift swapping, but it happens because obviously people get sort of stuck and so forth and it just occurs. But whether it's a problem which needs to be dealt with in the award, I don't know.

PN152

MS SVENDSEN: I don't think it's a problem that needs to be dealt with in the award. If it is a problem - and I have worked with people swapping shifts since 1978 and I haven't seen any problems with it to date. Fine, show us the problems but, you know, I still don't think it's something that in a modern award as a minimum thing, a minimum issue, is something that needs to be included. If there's a requirement to do rostering provisions in an enterprise agreement that allows for that sort of flexibility then it would be done so in the context of the employment circumstances. But it has never been contained in a clause that I have seen yet, and I don't think it has ever been a problem except where people feel like they're being forced to do something.

PN153

MR BULL: It's an informal practice which is outside the award.

PN154

THE COMMISSIONER: Yes, that's another way of looking at it.

PN155

MR BULL: And you don't recognise it and, you know, people will sometimes not be able to swap that shift when they want to go to the Madonna concert that night.

PN156

MS CHAN: That is one concern though, that if an employer's action in agreeing to two employees potentially swapping shifts they're potentially going to be in breach of 14.4(c). Because if it is then, you know, employers have agreed to something which basically benefits two employees but we don't want to be in breach of the award simply because we decided to accommodate our employees in this instance. There is that potential concern and I guess if - - -

PN157

MR BULL: Well, is it a potential concern? Has it ever occurred where - because who is going to progress the breach? The two employees that are happy? Is the prosecutor going to, you know, progress the contravention against themselves? These are absurd situations. I don't understand why we're even bothering with them. They're never going to materialise into the smallest of small industrial disputes.

PN158

MS CHAN: I think we're just trying to be thorough and cover all the possibilities.

PN159

MR BROWN: Yes, and even just to make it easier if people want to swap their shifts and the employer is um-ing and ah‑ing because they're not sure how to - where it clearly states in the award where they can actually allow this. We'd say that the amendment to clause 14.4 provides clarity. We'd say if it's agreed that's fine, we can go ahead with this.

PN160

THE COMMISSIONER: With shift swapping?

PN161

MR BROWN: Shift swapping or anything - - -

PN162

THE COMMISSIONER: But really we're at a point now where what you're after here has now - we've actually moved away from what is in your draft determination and now actually what you're proposing - well, it has emerged out of the conversation - is about a further carve-out for shift swapping from the notice period.

PN163

MR BROWN: With the 14.4, Commissioner, in terms of allowing a variation to the roster or altering the roster, would that not cover off on that as well? We'd say we can alter the roster whether that be the employer asking someone to work extra hours, whether it be someone wanting to swap their shifts.

PN164

THE COMMISSIONER: What, in terms of your proposed change? Yes, your proposed change is not - let's go back to the start. In terms of your raison d'tre for that proposed change, it falls away because you've already got it by virtue of 14.4(d), right, and you concede that. So we've then moved to a further issue of shift swapping.

PN165

MR BROWN: I would say it's another situation that has come up with members as well, Commissioner.

PN166

THE COMMISSIONER: Look, to be frank I think that that would have to be - you need to have a think about how big an issue shift - just to be clear, as I understand the tenor of the - where we've got to in the conversation it's now about shift swapping. That's the only issue because the other issue in terms of back to our Monday to Wednesday worker, "I want to work Thursdays" there's no issue in terms of the notice provision because we agree that 14.4(d) deals with that. Right?

PN167

MR BROWN: Agreed.

PN168

THE COMMISSIONER: So you don't need your variation for that. Your variation - - -

PN169

MR BROWN: Not for that reason, Commissioner. No.

PN170

THE COMMISSIONER: No, not for that reason.

PN171

MR BROWN: Yes.

PN172

THE COMMISSIONER: But now you're saying the other reason is the shift swapping issue. Well, I think you just need to have a think about how big an issue that is. Maybe have another talk to your membership, see whether you want to pursue it. I mean I think that's the - - -

PN173

MR BULL: And theoretically you can swift shop - shift swap, sorry, on the basis of illness or emergency. You can characterise whatever the reason - - -

PN174

THE COMMISSIONER: Mr Bull, I think it's a matter of whether or not - there's two approaches to it. One is as you alluded to; it's something that's dealt with without award regulation, it's just something that happens and in that sense there's no right to it, you understand that. So employees might request shift swaps, employers would be within their rights to say "Well, you've got no rights to swap shifts under the award so you can't do it". That would be a lawful and reasonable direction presumably, wouldn't it? Yes, so that's one way of dealing with it.

PN175

MR BULL: The employer would be in his or her right to say "No, you can't swap shifts".

PN176

THE COMMISSIONER: "You just can't do it. It stuffs us around. We don't really know what's going on. You know, you're on a shift, you do it."

PN177

MR BULL: And that would be a proper direction.

PN178

THE COMMISSIONER: So that's another way of skinning the cat. Alternatively there's the other road which is shift swapping comes into this in some - but you'd have to start talking about what it is and the - - -

PN179

MR BULL: And frankly - - -

PN180

THE COMMISSIONER: And it possibly opens another Pandora's Box. So you just need to think that through.

PN181

MR BROWN: Yes, we'll have a think, Commissioner.

PN182

MS CHAN: We may just take that away to our members.

PN183

MR BROWN: Yes.

PN184

THE COMMISSIONER: Yes.

PN185

MR BULL: If I were an employer I wouldn't want provisions in the award that condone shift swapping because, you know, it's unmanageable.

PN186

THE COMMISSIONER: Are you an employer, Mr Bull?

PN187

MR BULL: I beg your pardon?

PN188

THE COMMISSIONER: Are you an employer?

PN189

MR BULL: I'm not an employer.

PN190

THE COMMISSIONER: No.

PN191

MR BULL: I've worked for employers, and I wouldn't want people changing - you know, I wouldn't want to look at the shift - the roster and it's only a vague sort of description - - -

PN192

THE COMMISSIONER: We've finished this discussion point now. Thanks.

PN193

MR BULL: - - - of what people are doing.

PN194

THE COMMISSIONER: ANMF, anything else on that?

PN195

MR McCARTHY: No, nothing more to add.

PN196

THE COMMISSIONER: All right. Thanks. We'll move on to the on‑call allowance. So you've got a draft determination with no rates, but I read somewhere that there has been some discussions about this.

PN197

MR BROWN: Yes, there was. Yes I believe, if I remember correctly, my conversation a couple of weeks ago with Leigh and Andrew was something like depending on the day it would be equal to an hour worth or 150 per cent or 200 per cent or 250 per cent depending on the day that someone is actually on‑call so to speak.

PN198

MR McCARTHY: Sorry, are we talking about the on‑call allowance or the remote response?

PN199

MR BROWN: So the on‑call allowance.

PN200

THE COMMISSIONER: The on‑call allowance.

PN201

MR McCARTHY: So you're proposing a figure, are you?

PN202

MR BROWN: We bandied around last time I believe - - -

PN203

MS CHAN: I thought that was based on the Nurses Award.

PN204

MS SVENDSEN: It was based on the Nurses Award, which I acknowledged.

PN205

MS CHAN: Is that the standard rate?

PN206

MS SVENDSEN: Pardon?

PN207

MS CHAN: Is that a percentage of the standard rate of pay, the figure there? I can't remember.

PN208

MS SVENDSEN: I think it is a percentage of the standard rate but I haven't actually re-looked at it to look at it. I actually - it was noted in my first draft I'd thrown in the old rates and I updated them. That was simply it.

PN209

MR McCARTHY: Yes, the rates you proposed, Leigh? Is that what you're saying?

PN210

MS SVENDSEN: Yes.

PN211

MR McCARTHY: Yes, that's right. I think they match the percentage of the standard rate.

PN212

MS SVENDSEN: Yes.

PN213

MR McCARTHY: In the Nurses Award anyway.

PN214

MS SVENDSEN: They do.

PN215

MR McCARTHY: That's how you worked it out, yes.

PN216

MS CHAN: And that if I recall correctly I think we were saying that those - the acceptance of your on‑call clause depending on the outcome of the remote response clause?

PN217

MS SVENDSEN: Yes.

PN218

MS CHAN: Okay.

PN219

MS SVENDSEN: You would agree with that, Andrew? We're all on the same page?

PN220

MR McCARTHY: Sorry, I can't quite hear you, Margaret.

PN221

MS CHAN: Sorry, you would also agree that there had been discussion about potential acceptance of the HSU's on‑call allowance clause conditional on the outcome of the remote response clause? That's your inclination?

PN222

MR McCARTHY: Yes, that is. Yes. Yes.

PN223

MS CHAN: So is it then potentially worth - should we deal with the on‑call first or should we deal with the remote response first? Any thoughts?

PN224

MS SVENDSEN: Look, I think probably given our conversations on - our teleconference conversations, we indicated - the unions indicated very clearly where we had concerns in relation to the remote response allowance and what we were comfortable having conversations about and/or even agreeing about potentially, but that you were going to come back to us with some rewording in relation to that.

PN225

MR BROWN: Yes.

PN226

MS SVENDSEN: And that we didn't really talk about the on‑call because we talked about the whole lot together.

PN227

MR BROWN: Yes.

PN228

MS SVENDSEN: Rather than as separate issues. So it was - yes, I think probably we have to really talk about this. Are you able to email this to Andrew?

PN229

MR BROWN: Yes, yes. Sorry, Andrew, I had drafted something up which I handed over to Leigh and Stephen but haven't emailed you a copy yet, and I'll have to do that after the conference.

PN230

MR McCARTHY: That's okay. Thank you.

PN231

THE COMMISSIONER: Is there one for me?

PN232

MR BROWN: Yes, Commissioner. Excuse the poor formatting.

PN233

THE COMMISSIONER: Can you send this to Andrew now?

PN234

MS CHAN: Yes.

PN235

THE COMMISSIONER: Yes.

PN236

MS CHAN: Andrew, I don't know if you'll see the mark-up on your phone but I am just going to flick you a copy of the proposed variation.

PN237

MR McCARTHY: Yes, I won't be able to see it. Is it possible to send it to you, or?

PN238

THE ASSOCIATE: Commissioner Lee, it's Margot.

PN239

THE COMMISSIONER: Hi Margot.

PN240

THE ASSOCIATE: I'm sitting in here. If they'd like to send it to me and I could print it out, to give a copy?

PN241

THE COMMISSIONER: Yes, good idea.

PN242

MS CHAN: That could just work.

PN243

THE COMMISSIONER: Do you want to just give them your email address, Margot?

PN244

THE ASSOCIATE: It's (email address supplied).

PN245

MS CHAN: Not a problem. I will just amend that now and send that down shortly.

PN246

THE COMMISSIONER: Thanks, Margot.

PN247

So these are marked up changes to your remote response draft determination?

PN248

MR BROWN: Yes, Commissioner.

PN249

THE COMMISSIONER: Okay.

PN250

MR BROWN: As a result of conversations we had during a teleconference.

PN251

THE COMMISSIONER: Okay.

PN252

MR BROWN: On the 11th, I believe.

PN253

THE COMMISSIONER: So these reflect - it's not an in principle agreement or these are proposals from you, or where are we at?

PN254

MS SVENDSEN: They reflect the conversations that we had. We indicated that we had problems with the rate and the rates as expressed and we indicated that we weren't prepared to agree to an exclusion of the 10 hour break clause, which I think is at - 22.4 is the old award not the exposure draft clause numbering, isn't it? I can't remember.

PN255

MR McCARTHY: No, it's the exposure draft.

PN256

MS SVENDSEN: It is the exposure draft? Thanks, Andrew.

PN257

MR McCARTHY: It's the rest period after overtime clause.

PN258

MS SVENDSEN: And this adjusts that to - this is essentially - in fact it might be exactly but I'd have to relook at it - the clause that we agreed to as part of discussions in the Social Community Home Care Disability Services Award in relation to remote response and the exception at five or Roman numeral (v) is that 22.4 will not apply within three hours of the start of the commencement of any shift where the employee is going to work in three hours. So if they - then a 10 hour break wouldn't apply in those circumstances.

PN259

THE COMMISSIONER: Yes.

PN260

MR McCARTHY: So it's within three hours of the start of their shift?

PN261

MS SVENDSEN: It is within three hours of the start of the shift, Andrew, and then the rest of it, the changes are the rate of time and a half for the first two hours and double time thereafter. The clause (ii) provides for the rounding up to the nearest 15 minutes as was in the old clause, and (iii) provides for a minimum of one hour if they're called between 10 pm and 6 am.

PN262

MR McCARTHY: That was the other issue that I think we raised at the teleconference was the way there was a distinction between (ii) and (iii), between (ii) dealing with 6 am to 10 pm and (iii) dealing with between 10 pm and 6 am which had a minimum payment for one hour but the others didn't. So does that remain, that distinction, or has that been removed in the proposal?

PN263

MR BROWN: Yes, Andrew, the distinction remains. Margaret, David and I had a good chat about this and what we concluded, you could say, was that if someone was to require to be on remote response or on‑call it's likely that time would be between let's say 5 pm and 10 pm, and then from there on‑call through the course of the night and then in the mornings it's likely someone who's under remote response is going to be working during the day or alternatively it's highly likely there will be other people based at the facility that could actually deal with any query that comes through instead of going to someone who's on‑call or on‑call for the purposes of remote response between 6 am and 5 pm.

PN264

MR McCARTHY: But somebody might be on‑call between 6 am and 10 pm. Is that right?

PN265

MR BROWN: Potentially. I mean, potentially I guess that's the cover all but the likelihood though would be that you'd have someone who would be available after hours of what they normally work, which we would say would between 5 pm and 10 pm or between 5 pm and 6 am, and hence why there's different rates there because there's a different level of disutility there for being on‑call for the purposes of coming back to work - or, sorry, for the purposes of remote response.

PN266

THE COMMISSIONER: So I'll ask the basic questions. The way this works is you're either on remote response or on‑call, one or the other?

PN267

MR BROWN: So there's actually two I guess states to be in, Commissioner. On‑call for the purposes of coming back to work, recalled for duty. Or alternatively on‑call to provide remote response.

PN268

THE COMMISSIONER: So you wouldn't be providing remote response unless you were on‑call?

PN269

MR BROWN: Correct.

PN270

MS SVENDSEN: That's right.

PN271

THE COMMISSIONER: Okay.

PN272

MS CHAN: And the anticipation is because there should ordinarily have been somebody with the skills or capabilities between 6 and 10 pm to potentially respond to any situations that arise, the types of queries that might actually go to the on‑call person you would hope are more sort of discrete issues. Thus why the (indistinct) putting in (indistinct) so to speak.

PN273

THE COMMISSIONER: Yes, and if I'm recalled to work - - -

PN274

MR BROWN: All the work provisions would apply.

PN275

MR McCARTHY: The recall to work provisions apply.

PN276

THE COMMISSIONER: Yes, where are they in the exposure draft?

PN277

MR BROWN: It's 22.5.

PN278

THE COMMISSIONER: Yes.

PN279

MR BROWN: Yes.

PN280

THE COMMISSIONER: But at the moment that recall to work provision, where you're recalled to work overtime 22.5 operates without an on‑call provision because there is no on‑call provision at the moment?

PN281

MR BROWN: Correct, yes.

PN282

THE COMMISSIONER: Okay, so where are we at? What is the status of this? You're in furious agreement potentially?

PN283

MR BROWN: We're getting there.

PN284

MS CHAN: Yes, and we appreciate that this is probably the first occasion that you've seen the revised clause.

PN285

MS SVENDSEN: Yes.

PN286

MR McCARTHY: Definitely closer, yes.

PN287

THE COMMISSIONER: Yes. Well, how do you want to deal with this? You need a bit more time to have a look at it?

PN288

MS SVENDSEN: I think we need possibly a 10 minutes' conversation but other than that we'll be able to give an answer, and I'm not sure that there will be much change but I just want to have some conversations with Stephen and Andrew before we say yea or nay.

PN289

THE COMMISSIONER: All right, well why don't we do that now? What I'll do is - Margot?

PN290

THE ASSOCIATE: Yes?

PN291

THE COMMISSIONER: Would you be able to shut off the transcript? I'll have the employers step out of the room here and I will step out of the room and that will just enable Andrew in Melbourne and the union officials here to have a conversation.

PN292

THE ASSOCIATE: Okay then.

PN293

THE COMMISSIONER: And then what you can do is you can pop out of the room, allow them to have that private conversation then if you ring my mobile, Margot?

PN294

THE ASSOCIATE: Yes?

PN295

THE COMMISSIONER: When Andrew has come out and told you that they're good to do.

PN296

THE ASSOCIATE: Okay then. Fine.

PN297

THE COMMISSIONER: And just let them know when the transcript has been shut off.

PN298

THE ASSOCIATE: Right, okay then I'm just leaving them there now.

PN299

THE COMMISSIONER: Good on you. Okay, and then I'll come back.

PN300

MS SVENDSEN: Thank you.

OFF THE RECORD [10.16 AM]

ON THE RECORD [10.34 AM]

PN301

THE COMMISSIONER: You have agreed?

PN302

MS SVENDSEN: We are.

PN303

THE COMMISSIONER: Excellent.

PN304

So we're good to go, Margot? We're back online?

PN305

THE ASSOCIATE: The recording is back on.

PN306

THE COMMISSIONER: Thank you, Margot.

PN307

So the state of agreement then is a combination of the draft determination in the HSU's document in respect of the on‑call allowance in combination with this marked up amendment to the remote response allowance, put those two together and that's the agreement. Is that right?

PN308

MS SVENDSEN: Yes.

PN309

THE COMMISSIONER: Very good. I'll put those two provisions together. If I can get emailed to my chambers a copy of the remote response amended document?

PN310

MR BROWN: Yes, certainly, Commissioner.

PN311

THE COMMISSIONER: Thanks, and I'll just put that out to the parties indicating that as part of the notes of today's conversation I understand that that's an agreed position. Excellent, and that deals with all of your matters for ACS. So going on to HSU, casual employees. Any discussions about this one?

PN312

MS SVENDSEN: We didn't have any discussions actually about this one because the employers have indicated that they couldn't agree to it.

PN313

THE COMMISSIONER: Yes.

PN314

MS SVENDSEN: So we were - - -

PN315

THE COMMISSIONER: I thought it would fall into that category. It's you either pay the condition or you don't.

PN316

MS SVENDSEN: Yes.

PN317

THE COMMISSIONER: So I'm presuming that's the - - -

PN318

MR BROWN: It still stands, Commissioner.

PN319

THE COMMISSIONER: You'd rather not pay it than pay it. Any further advances on that? I mean it would seem to me that this is one that would go to arbitration unless my - - -

PN320

MS SVENDSEN: No, no, it's an either pay or not pay.

PN321

MR BULL: It's a submission one I would have thought.

PN322

MS SVENDSEN: It's a submission one, yes.

PN323

THE COMMISSIONER: You alluded to bringing witnesses. It's a matter for you as to what - - -

PN324

MS SVENDSEN: Look, we haven't sat down completely and addressed how we would do it. But if required we would bring some witness evidence, yes.

PN325

MR BULL: Is this just about disaggregating the loading from the payment?

PN326

MS SVENDSEN: Yes, I suppose.

PN327

THE COMMISSIONER: Well, it's the - - -

PN328

MS SVENDSEN: The clauses actually currently preclude the payment of the casual loading by reference. So it's not a questionable matter, it's precluded.

PN329

THE COMMISSIONER: It's not an ambiguity.

PN330

MS SVENDSEN: No.

PN331

THE COMMISSIONER: No.

PN332

MS SVENDSEN: There's no ambiguity at all and - - -

PN333

MR BULL: And I don't think - you wouldn't even need witnesses.

PN334

MS SVENDSEN: Yes.

PN335

MR BULL: Because it's a matter of what is - do you put in this review what appears to be the standard practice of this Commission is that, you know, the two things deal with distinctive issues - - -

PN336

MS SVENDSEN: There's a distinct - different entitlements, that's right.

PN337

MR BULL: - - - in the loading not being about full‑time and whatever, and.

PN338

THE COMMISSIONER: It's up to you how you prosecute the position.

PN339

MS SVENDSEN: Yes.

PN340

THE COMMISSIONER: Or you bring witnesses or you don't.

PN341

MS SVENDSEN: Yes.

PN342

THE COMMISSIONER: You all understand the principles by which these matters are determined. But there will be further directions set down, no doubt.

PN343

MS SVENDSEN: There will.

PN344

THE COMMISSIONER: So you can deal with that at that stage. But for the purposes of today, of my own notes having reviewed the matter yesterday, I didn't expect that there would be much utility in conversation around this because I couldn't see much overlap of interest, to be frank.

PN345

MS SVENDSEN: No.

PN346

THE COMMISSIONER: All right, well that deals with that. I will have that summary changed, which still says that the Part‑Time and Casual Bench is dealing with it and as we've established, it's not or hasn't. So we'll move on to the allowances other than on‑call recall which is now resolved. We've got for the HSU claims phone allowance, First Aid certificate, uniforms or laundry allowances and damaged clothing. Shall we start with the phone allowance?

PN347

MS SVENDSEN: I'm not doing very well here because I seem to be saying "We didn't get very far with this". No, we did actually have - we had conversations about the rest of these, more around damaged clothing and the - - -

PN348

MR BROWN: The phone allowance.

PN349

MS SVENDSEN: The uniform allowance intersection.

PN350

MR BROWN: Yes.

PN351

MS SVENDSEN: And some conversation around the phone allowance. The First Aid allowance we - I'm jumping, I know this, but I can kind of get it off the table about whether or not we can go any further with it; that the employers indicated that they were going to have some consultation with members and come back to us about whether or not there was any utility in talking about that. The phone allowance we talked around some caveats. The objection, if have accurately recorded this, was principally around refund of cost of purchase, being that they wanted some definite caveats around that but that their primary premise would be that an on‑call phone would be provided to the person who was on‑call, which is fine.

PN352

MR BROWN: Correct.

PN353

MS SVENDSEN: And so we had some conversations around how phone allowance may or may not work and of course I, having re‑read my notes, have noted that both of us were going to redraft a clause for consideration, which I haven't done. So the "both" bit certainly hasn't happened. Whether or not the employers have anything further in terms of thinking about that, I don't know.

PN354

MR BROWN: Yes, on the second page, Leigh, of the handout.

PN355

MS SVENDSEN: Yes, that would be right.

PN356

MR BROWN: We were trying to save paper.

PN357

MS SVENDSEN: All of them.

PN358

MR BROWN: Yes, it's the ones we talked about.

PN359

THE COMMISSIONER: Shall we stick with the phone allowance for now?

PN360

MR BROWN: Yes, certainly, Commissioner.

PN361

THE COMMISSIONER: All right.

PN362

MR BROWN: So I think where we were having a disagreement was where the phone allowance, when that would actually kick in. So the idea from the employers' side of things would be only the phone would have to be payable if you were to use your phone for the purposes of being on‑call. It wasn't necessarily there just to access your work roster because we say there's other mediums you can utilise to access your work roster.

PN363

THE COMMISSIONER: Yes, like an email or?

PN364

MR BROWN: Or even just pin them up on the board and you can go write their rosters down when they're in next. So we would say the idea would be if someone was on‑call there would be a duty phone, so to speak. But at the same time as well if someone didn't want to carry around two phones, we would say that this amendment would give scope to enter into an agreement with the employer about how something would be refunded. The hurdle we were trying to overcome there would be some of the plans, Commissioner. If you pay $50, you get $800 worth of calls.

PN365

THE COMMISSIONER: Sure, yes.

PN366

MR BROWN: If someone spends $200 worth of calls so to speak, in the course of their duties, that wouldn't necessarily correspond to a $200 reimbursement.

PN367

MS SVENDSEN: Reimbursement would have to obviously be as it always was on the production of an account.

PN368

MR BROWN: Yes.

PN369

MS SVENDSEN: Not paid. Not just a "I've spent $200 on calls and got $50".

PN370

MR BROWN: Yes.

PN371

MS SVENDSEN: Or anything like that. Clearly the - - -

PN372

HE COMMISSIONER: The difficulty is in the modern era that - I mean just for a family member signed into another agreement recently, there are all this kind of flat rate, you pay a monthly rate, all your calls are included. There is no additional charge unless you go bananas with your data allowance.

PN373

MS CHAN: The bill sometimes itemises a zero depending on - - -

PN374

THE COMMISSIONER: Everything is zero.

PN375

MS CHAN: So as long as you don't go over your cap - - -

PN376

THE COMMISSIONER: But there's sort of no charge per se. Once you're in, you're in and you have that right to use the phone. We've sort of moved away from that notion that you get billed for every phone call.

PN377

MS SVENDSEN: I know you don't get a bill for every phone call, or rarely.

PN378

MR BROWN: Hence subsection (2) on that phone allowance, Commissioner. You just simply arrive at an agreement with the employer.

PN379

THE COMMISSIONER: But on what basis?

PN380

MS SVENDSEN: There would be no necessity for that clause because it doesn't actually provide an entitlement.

PN381

THE COMMISSIONER: There's no issue with Part (i) is there? So you can provide them with a - - -

PN382

MR BROWN: With a phone.

PN383

MS SVENDSEN: Absolutely.

PN384

THE COMMISSIONER: With a phone and they could give you a $50 Nokia because all they want to be able to do is ring the number and you'll answer it.

PN385

MS SVENDSEN: Absolutely no problem with that sort of thing in relation to provision for people being on‑call and phone allowance. I get that. On its face value I don't think there's anything we can agree to on that.

PN386

THE COMMISSIONER: So it's (ii)?

PN387

MS SVENDSEN: Well, in actual fact I don't even think that - I mean in fact this doesn't provide an entitlement to anybody for anything.

PN388

THE COMMISSIONER: Yes it does. You could give them a phone.

PN389

MS SVENDSEN: They could give them a phone or they could reach agreement with them about something else, which is what can happen now. So it's not providing them with an entitlement.

PN390

THE COMMISSIONER: No, I agree that's not an entitlement. It's - well, in terms of the discussion.

PN391

MS SVENDSEN: I mean if it said "For the purposes of being on‑call the employer will provide a phone" that actually provides them with an entitlement.

PN392

THE COMMISSIONER: You've constructed it the other way around. This is really to deal with the situation where as you put it the employee says "Well, I don't want to carry around two phones. I've got a perfectly good phone. I'd rather you rang me on that one". That's their right to say "I don't want to have to watch two phones, have two charged up and all that stuff." It's only in those circumstances - if that all gets too hard and they can't reach an agreement - - -

PN393

MS CHAN: Then we've got to provide a phone.

PN394

THE COMMISSIONER: Then they've got to provide a phone. So there's a right. You still fall back to the right to have the phone, but if you don't want to have the phone - - -

PN395

MR BROWN: You can have an agreement.

PN396

THE COMMISSIONER: You can have an agreement.

PN397

MS SVENDSEN: I'll think about it.

PN398

THE COMMISSIONER: Yes, it's worth - - -

PN399

MS SVENDSEN: And I don't know if anybody else wants to say anything.

PN400

THE COMMISSIONER: Any other - - -

PN401

MR BULL: Usually allowances have an amount.

PN402

MS SVENDSEN: Yes.

PN403

MR BULL: So $20 a month or $30 a month, I don't know. Provide a mobile phone and cover costs of any subsequent charges or pay $30 a month.

PN404

THE COMMISSIONER: Yes, well that's got to be - $30 a month is probably the value of most entire phone plans.

PN405

MR BULL: Yes, I know that. So, you know, it's an entitlement. So if they want to be able to contact the employee, you know, outside work it's not unreasonable that they'd pay for the phone or at least a substantial proportion of the charges.

PN406

MR BROWN: But it's only in the absence of an employee not wanting to accept the provision of a mobile phone.

PN407

MS SVENDSEN: If that's the primary provision, but it isn't actually worded as a primary provision. It's worded as an alternative. I mean if you look at the uniform allowance for instance, it's "provision of uniforms or".

PN408

THE COMMISSIONER: No, I'm with you. What I'm contemplating is this is reframed to "The employer will provide". So instead of "either":

PN409

The employer will provide a mobile phone and cover the costs of any subsequent charges.

PN410

Right? And then instead of two it's if the employee prefers to use their own phone so they waive their right. They've got the right to the mobile phone, right? If they prefer to waive their right then they'll enter into an agreement. They've got the leverage because if it doesn't work out they end up back with the Nokia.

PN411

MR BROWN: The $50 Nokia.

PN412

THE COMMISSIONER: Is that reasonable, Mr McCarthy?

PN413

MR McCARTHY: I have nothing to add.

PN414

THE COMMISSIONER: No.

PN415

MR BROWN: We don't have a problem with that.

PN416

THE COMMISSIONER: That sort of idea?

PN417

MR BROWN: Yes. Yes, that's fine.

PN418

SPEAKER: Yes.

PN419

MS SVENDSEN: Now that's not bad.

PN420

THE COMMISSIONER: Okay.

PN421

MS SVENDSEN: Let me have a think about that.

PN422

THE COMMISSIONER: Have a think about that.

PN423

MS SVENDSEN: But yes.

PN424

THE COMMISSIONER: Okay, so we'll just park that and come back. Which one next, Ms Svendsen?

PN425

SPEAKER: Damaged clothing, was it?

PN426

THE COMMISSIONER: Or First Aid. Let's do First Aid - no, you've got damaged clothing on this one. Let's talk about damaged clothing.

PN427

MR BROWN: Yes.

PN428

THE COMMISSIONER: So these are your proposed amendments, Mr Brown, to the proposed clause by HSU?

PN429

MR BROWN: Yes, Commissioner.

PN430

SPEAKER: Following discussion.

PN431

THE COMMISSIONER: Following discussion.

PN432

MR BROWN: Following discussion, yes.

PN433

THE COMMISSIONER: And if they agree to these amendments, if the unions agree to these amendments, you're good to go?

PN434

MR BROWN: Yes, I think the second line, "Damaged clothing", I might not have actually track changed that because I think we were doing this internally. But essentially it's a bit of a deviation from what the HSU originally put in.

PN435

THE COMMISSIONER: Right.

PN436

MR BROWN: So "damage to or soiling of clothing or other personal effects", so what we're saying is damaged or soiling of personal clothing beyond what would reasonably be expected as part of their routine tasks.

PN437

THE COMMISSIONER: So that's a bit different as well?

PN438

MR BROWN: Yes.

PN439

THE COMMISSIONER: Yes. Yes.

PN440

MR BROWN: My apologies. We just felt that "soiling" was a bit open ended.

PN441

MS SVENDSEN: This is looking - I mean I have no difficulty with the reasonable cost of replacement and I have no difficulty with the premise that you're putting up in terms of protection. I'm just wondering whether "to prevent" should be "which prevents such damage or soiling" but I'm a little bit - I'm talking off the top of my head at the moment.

PN442

THE COMMISSIONER: Sorry, where is that?

PN443

MS SVENDSEN: In the second paragraph:

PN444

...or where the employer has provided protective clothing such equipment to prevent such damage or soiling of the employee's personal clothing.

PN445

THE COMMISSIONER: It could be - - -

PN446

MS SVENDSEN: I mean, I'm actually thinking of some of the gear that's provided. So plastic aprons which would be a fairly commonly used piece of PPE, although I don't know that it's really PPE quite frankly.

PN447

THE COMMISSIONER: Sorry, what was that?

PN448

MS CHAN: I'm not sure about the term PPE.

PN449

MS SVENDSEN: I don't think it - yes, yes. No, it's all right. I just shortened it and then thought what I was saying.

PN450

THE COMMISSIONER: What did you want to put in potentially? "Intended to" or something? Was that where you were going?

PN451

MS SVENDSEN: "Which prevents".

PN452

THE COMMISSIONER: Which.

PN453

MS SVENDSEN: I'm actually just thinking that - I mean that will probably prevent a lot of the damage but it might not prevent all of it, and I'm thinking of things like spills more than anything else, which is in fact the most likely form of damage to clothing that is not easily fixable and it - you know, because you're talking about bodily fluids and you're talking about blood is not that easy to get out.

PN454

THE COMMISSIONER: Yes, yes.

PN455

MS SVENDSEN: At the end of the day, depending on when you're actually able to treat the item of clothing. If you treat it pretty quickly then it's not too bad, but as you're wearing it, treating it pretty quickly can often be hard to do in any form that would actually stop the staining. So it was really - that was the only thing I was looking at. So, yes, but I'm playing with words off the top of my head.

PN456

MR BROWN: We're happy for you when you can get behind a computer, Leigh, and if you want to have a bit more of a go and send something back for us to consider, I can do that.

PN457

MS SVENDSEN: Yes, okay.

PN458

THE COMMISSIONER: Were there any reactions to that though? It's a fairly simple change.

PN459

MR BROWN: Yes.

PN460

MS SVENDSEN: Again we're both talking off the top of our heads, so.

PN461

THE COMMISSIONER: It either - - -

PN462

MR BROWN: Yes.

PN463

MS CHAN: I mean, yes, it sounds like we're certainly much closer. At this point it's just tinkering with the words.

PN464

THE COMMISSIONER: Why don't you just take it from today? Are you happy for that just to be the proposal and subject to any views from any of the other - on the unions' side? That subject to this being further amended to read:

PN465

...or where the employer has provided the protecting of clothing equipment...

PN466

Delete the word "to" and insert "which" and then add the letter "S" to "prevent" such that it's "prevents". And subject to that there would be agreement, is that right?

PN467

MR BROWN: So removing "to", inserting the word "which"?

PN468

THE COMMISSIONER: Yes.

PN469

MS SVENDSEN: "Which prevents".

PN470

THE COMMISSIONER: That's right.

PN471

MR REID: So:

PN472

Where the employee has provided" - "employer has provided protective clothing which prevents such damage or soiling of the...

PN473

Yes, I don't see any problem there.

PN474

THE COMMISSIONER: No quibble with that? If they agree with that, are you agreed?

PN475

MS SVENDSEN: Yes, I think we can agree.

PN476

THE COMMISSIONER: And any other issues.

PN477

Have you got a copy of this now in Melbourne?

PN478

MR McCARTHY: Yes, and I'm happy to go with the HSU's views.

PN479

THE COMMISSIONER: All right.

PN480

Very good, we have agreement on the damaged clothing allowance. First Aid, has anything happened on that one?

PN481

MR BROWN: No, we haven't had the opportunity to properly survey our members on this point, Commissioner. All the other time taken was to go through the remote response and the on‑call. That was probably the more big ticket items.

PN482

THE COMMISSIONER: Sure.

PN483

Ms Svendsen or Mr Bull or Mr McCarthy, anything else on this? It has just been parked a bit for the moment.

PN484

MS SVENDSEN: It's obviously - and it has been parked, yes. We're waiting for a response from the employers because they haven't even said whether they will oppose it yet.

PN485

THE COMMISSIONER: Sure. Okay.

PN486

MS SVENDSEN: So they certainly haven't ruled it out, which from our point of view is positive. But they've also indicated that they need to consult before they could agree it or consider it.

PN487

THE COMMISSIONER: Is that a reasonable summary, Mr Brown, to nut it all out, need to consult?

PN488

MR BROWN: Yes, that's correct, Commissioner.

PN489

THE COMMISSIONER: Will respond by?

PN490

MR BROWN: Three weeks?

PN491

THE COMMISSIONER: All right, then we'll leave that one there. What else? Uniform and laundry allowance?

PN492

MR BROWN: I think the option was to take the damaged clothing in lieu of those two, Leigh?

PN493

MS SVENDSEN: Yes. It was an option that the uniform laundry was an option instead of damaged clothing.

PN494

THE COMMISSIONER: So they fall away?

PN495

MS SVENDSEN: So they fall away.

PN496

THE COMMISSIONER: All right. Thank you. That's it. Ceremonial leave, I'll make sure that that's - just to check with the employers, the ceremonial leave clause as it's drafted in the draft determination by the HSU, that is the agreed ceremonial leave clause?

PN497

MR BROWN: Yes.

PN498

MR REID: That is agreed.

PN499

THE COMMISSIONER: Yes, so I'll make sure that goes into the exposure draft.

PN500

MR BROWN: Yes.

PN501

MR REID: What was the other one we parked?

PN502

MR BROWN: Sorry?

PN503

MR REID: What was the other one we parked momentarily?

PN504

THE COMMISSIONER: We're coming back to the phone allowance.

PN505

MR REID: Yes, the phone allowance.

PN506

MR BROWN: Yes.

PN507

THE COMMISSIONER: So we'll just go back to the phone allowance. So the employers are open to the alteration of that so that there's a right to a phone and the cost of any subsequent charges, but if the employee doesn't want to do that then you can enter into an agreement to do something else?

PN508

Do you want to talk to us about that?

PN509

MS SVENDSEN: Look, yes, I was just thinking about an alternate wording that was the "if not" provision and I just need to look - - -

PN510

THE COMMISSIONER: Do a bit of work on that?

PN511

MS SVENDSEN: Yes, do a little bit of work on it.

PN512

THE COMMISSIONER: Yes.

PN513

MS SVENDSEN: But I can probably put something back later today.

PN514

THE COMMISSIONER: All right, we'll leave that one then for the moment. So Ms Svendsen is just saying she needs to fiddle with the wording, open to that idea about "You'll get the phone or"?

PN515

MS SVENDSEN: Something.

PN516

THE COMMISSIONER: Something.

PN517

MS CHAN: And we can have a look at any concerns.

PN518

THE COMMISSIONER: Yes, we'll see if we can get somewhere on that, even if we have a bit of a break and come back. But other than that, other than the phone allowance we've dealt with all the HSU issues. Correct?

PN519

MS SVENDSEN: Yes.

PN520

MR BULL: Yes.

PN521

THE COMMISSIONER: And so we go to the United Voice which is really it's all sleepover, isn't it Mr Bull?

PN522

MR BULL: That's the main one.

PN523

THE COMMISSIONER: Except for there's another - - -

PN524

MR BULL: There's the sleepover claim, there's the laundry claim and then there's a claim about - - -

PN525

THE COMMISSIONER: Then the Cert III issue, yes.

PN526

MR BULL: The Cert III issue.

PN527

THE COMMISSIONER: Yes.

PN528

MR BULL: Yes.

PN529

THE COMMISSIONER: Okay, so we'll start with sleepover. Has there been any discussions about that?

PN530

MS CHAN: There certainly were.

PN531

THE COMMISSIONER: Yes, have you made any progress?

PN532

MR BROWN: No, I don't think we did.

PN533

MS CHAN: I think we did raise a couple of our concerns about the clause 15.3 and the employers are of the view that we couldn't agree to the wording changing to a continuous span of eight hours. But we did want to see a status quo maintained, being between eight to 10 hours in terms of the span of the sleepover at 15.3(a). I don't believe we - - -

PN534

THE COMMISSIONER: So the reason for that is that sleepovers generally go to more than eight hours, or what is the?

PN535

MR BROWN: If it was just eight hours it would kind of lose its effectiveness as a rostering in terms of providing care. So I mean it could be eight but then again it could be 10, it could be nine, it could be anything in between. So we just - if it went to a space of eight that would we believe affect how it would operate.

PN536

MS CHAN: And we don't believe there's any kind of - no, I'll withdraw that.

PN537

MS SVENDSEN: I would if I were you.

PN538

THE COMMISSIONER: What happens if - - -

PN539

MS SVENDSEN: It's a provision of SCHADS. It's only eight hours, so that's why Margaret just withdrew that comment she was about to make before she made it.

PN540

THE COMMISSIONER: So this is the same as the SCHADS provision?

PN541

MS SVENDSEN: It's similar. Well, no, the two provisions aren't the same but they deal with the same issue. But, yes, they are the same.

PN542

THE COMMISSIONER: What happens if the sleepover goes over eight hours, Mr Bull?

PN543

MR BULL: I'm not quite sure.

PN544

MS SVENDSEN: It just means that it can only be rostered for eight hours.

PN545

MR BULL: It would be rostered for eight hours.

PN546

MS SVENDSEN: So it's a standup shift for beforehand and afterwards.

PN547

THE COMMISSIONER: So presumably it's overtime?

PN548

MR BULL: It's overtime. You get paid for the additional hours.

PN549

THE COMMISSIONER: So that's a no from the employers. Yes?

PN550

MS CHAN: I think we did feel that 15.3(c) was contentious, so the amendment "where staff facilities are unavailable the employee will."

PN551

THE COMMISSIONER: That part is okay?

PN552

MS CHAN: Yes.

PN553

MR BROWN: I think here we had a problem as well with the way that was crafted.

PN554

MS CHAN: Yes.

PN555

THE COMMISSIONER: You do? You don't?

PN556

MR BROWN: Yes we do.

PN557

MS CHAN: I think it's the words "may refuse" really. I don't think either - - -

PN558

THE COMMISSIONER: Sorry, where are we now?

PN559

MS CHAN: Sorry, 15.3(e).

PN560

THE COMMISSIONER: Okay.

PN561

MS CHAN: "An employee may refuse to perform work other than in an emergency".

PN562

THE COMMISSIONER: But what about 15.3(d)? You're okay with 15.3(c)?

PN563

MS CHAN: Yes, (c) was fine. I think (d) was okay.

PN564

MR BROWN: (d), yes.

PN565

MS CHAN: Yes, we thought that went without saying, but.

PN566

MR BROWN: Yes, that - yes, we thought that was for clarifying.

PN567

THE COMMISSIONER: I thought so, yes.

PN568

MR BROWN: So that's pretty much how it works anyway.

PN569

MS CHAN: Yes.

PN570

THE COMMISSIONER: That was my query. I presumed that was always part of the additional. But okay, (e)?

PN571

MS CHAN: So yes, the main concern was with the words "may refuse". I don't think really the employer parties are of the view that there's an expectation that the person would perform other than in an emergency, but it's really the word "refuse" that we took some issue with. So I think United Voice was going to have a bit of a think about how we might reword 10.3(e).

PN572

THE COMMISSIONER: Yes.

PN573

MR BULL: Isn't it clear that an emergency is why they're there? Otherwise they're asleep. They're not doing routine work.

PN574

THE COMMISSIONER: Can I just say that I struggle with how you reconcile (e) and (f). So on the one hand there's a right to refuse and on the other hand there's provision that says the employees can be directed to do exactly the same thing.

PN575

MS SVENDSEN: I think the two things that were - I'm not looking right at the clause at the moment. I'm just looking at the intention, and the two things that have been in contention about sleepovers is the scheduled work versus work that's unexpected or emergency, and there has been a significant escalation on the ground in both aged care and SCHADS of people being scheduled to do work during sleepover shift and that's the discussion that has generated the request for some changes around the sleepover provisions. So that sleepover is there where somebody is required to be available to attend to emergencies, unforeseen circumstances.

PN576

Emergencies is usually categorised as, you know, the fire alarm going off type emergency or something like that, and that's not - the intention is unforeseen circumstances as opposed to scheduled work. And the problem is around the scheduled work and scheduled work being included in people's sleepover, meaning they have to get up in the middle of the night and they know ahead of time that they need to get up, or that the employer requires them to get up to do some work. That's the issue that's being sought to be resolved. But how we resolve that is something that we certainly talked about quite a bit and that's where the wording has its genesis rather than anything else.

PN577

THE COMMISSIONER: All right.

PN578

MR BULL: What about - I'm new to this - an employee may refuse to perform other than scheduled work, work other than, or something like that, putting in the concept of scheduling in that sentence? Leigh, do you - - -

PN579

THE COMMISSIONER: But "schedule", is scheduled work - we all understand it in the general industrial parlance what it means but it doesn't mean anything in terms of the award does it?

PN580

MS CHAN: 15.3(f) already covers off on situations where somebody is doing scheduled work. It says that they would be paid the appropriate hourly rate from the start of the sleepover.

PN581

MR BULL: What about "The employee may refuse to perform work" comma "which other than scheduled work", "which is not scheduled other than in an emergency" or something like that? That's becoming rather unwieldy though.

PN582

MS SVENDSEN: Yes.

PN583

MR BROWN: What kind of situation are anticipated that would come into play? So are we saying toilet breaks would be considered scheduled work?

PN584

MS SVENDSEN: If somebody requires toileting regularly during the night.

PN585

MR BROWN: Yes.

PN586

MS SVENDSEN: That's scheduled work. That is scheduled work and if that's a requirement because otherwise they're incontinent, which is generally what it's used to prevent, then that schedule - that person requires either to be in a facility that is staffed or that facility requires staffing because that scheduled work is available or is required. And that's certainly one of the sorts of things that is definitely scheduled overnight in residential facilities but there should be staff on duty on an active shift, not on a sleepover.

PN587

MR BROWN: Yes, absolutely.

PN588

MS SVENDSEN: So, yes, that's scheduled work and it wouldn't be once either. If it's toileting it's not once, it's multiple times.

PN589

THE COMMISSIONER: It's as needed.

PN590

MS SVENDSEN: Yes, and it's usually about two or three hourly.

PN591

THE COMMISSIONER: So you can't have a general refusal to perform that work.

PN592

MR BROWN: I think, Commissioner, we've discussed this. Let's say for example a carer simply wanted a glass of water. That's not an emergency per se. It might not be scheduled in but the employee would be within their rights under the way the UV have crafted this clause to say "No water for you. I'm not getting it. Go back to bed". Which in itself there has a number of problems, not necessarily from an award point of view but from the rights of the care recipients, the quality of care.

PN593

THE COMMISSIONER: What is the problem again about scheduled work? Just take me through that again. What precipitated the conversation?

PN594

MS SVENDSEN: What precipitates the conversation has kind of been a twofold move in terms of rostering shifts, and that has been towards having more sleepover shifts in residential facilities so that it's a lower cost. I mean it's a significantly lower cost.

PN595

MR BULL: Instead of night shifts.

PN596

MS SVENDSEN: Instead of a night shift, an active shift. And then there has been a subsequent increase after that because of the needs of residents to have work performed regularly overnight, and so there's an increase in the amount of work that's scheduled. Now it might be drugs or PEG feeding or attendance to incontinence.

PN597

THE COMMISSIONER: Yes.

PN598

MS SVENDSEN: All of those sorts of things as requirements. Even you know, requirements to kind of do pressure care on residents who are not very able to move. Well, none of those things are unplanned. None of those things are of an emergency or unexpected nature and they're being scheduled into sleepover shifts and the expectation of the sleepover shift is you go there and you sleep for eight hours and you are there to attend to what is unexpected and unscheduled by being unexpected. Look, I mean, I think the unplanned occurrences in an emergency, the concept around emergency work in this clause is actually fairly well identified. It's given up as - it's actually defined as being:

PN599

An unplanned occurrence or event requiring prompt action.

PN600

I don't know that you need it in the event requiring prompt action in reality because that by its very nature becomes emergency. But unexpected and unplanned is really the premise of what they're there to deal with. And so it's really making that clear that it isn't there to deal with scheduled medications or feeding or pressure care or whatever that happens to be.

PN601

MS CHAN: So a request for a glass of water or a situation where somebody doesn't normally need to be toileted during the night but on this occasion - - -

PN602

MS SVENDSEN: Would be unplanned.

PN603

MS CHAN: It would fall - - -

PN604

MS SVENDSEN: Yes, it would fall - I mean quite clearly if you read the definition of emergency as any unplanned occurrence then an unplanned occurrence is just that. The problem is the imposing of scheduled work. Look, I mean sleepover shift should really be used at places where (a) people are sleeping for the night so the residents are not up wandering - - -

PN605

THE COMMISSIONER: Yes, and don't need - - -

PN606

MS SVENDSEN: - - - around.

PN607

THE COMMISSIONER: And don't need regular toileting and don't need medication.

PN608

MS SVENDSEN: And/or are self-caring.

PN609

THE COMMISSIONER: Yes.

PN610

MS SVENDSEN: If they need to get up and go to the toilet in the middle of the night, they do, but it's without assistance.

PN611

THE COMMISSIONER: Yes.

PN612

MS SVENDSEN: And that's - - -

PN613

THE COMMISSIONER: But you've just got someone onsite if something goes wrong.

PN614

MS SVENDSEN: Yes, and similarly you would very rarely have - I can't imagine an occurrence where a sleepover would be appropriate where someone would actually need to ask for a glass of water in reality because they would be effectively self‑caring. They just need people around to assist if they become confused and that sort of stuff.

PN615

THE COMMISSIONER: Yes, yes. No, that's helpful.

PN616

MS CHAN: Again I don't - yes, I mean I think we're just coming back to the position that employers aren't - we understand the intention of the clause and we appreciate that there shouldn't be an expectation that they're going to perform work. But we really are struggling with that word "refuse" because the Commissioner has pointed out how that kind of sits with (f). I don't know if there's room to move on the word "refuse". Is there a better word that we can potentially use?

PN617

MR BULL: You could say "decline". That's a softer word. I don't know. It doesn't sound quite as bad.

PN618

MR BROWN: "Respectfully decline".

PN619

MR BULL: I don't know. If you want something - - -

PN620

THE COMMISSIONER: "I respectfully decline to do that work".

PN621

MR BULL: I suppose, look, you're talking about refuse. You know, (f) is an employee being directed by the employer. (e) is when just stuff happens.

PN622

THE COMMISSIONER: Yes, but they can't sit together. You can't have (e) with (b).

PN623

MR BULL: Yes, well - - -

PN624

MR BROWN: Yes.

PN625

MR BULL: I mean I'm new to this, so.

PN626

THE COMMISSIONER: It probably needs to be looked at again back through this prism of - - -

PN627

MS CHAN: Yes.

PN628

THE COMMISSIONER: I completely understand the conundrum, if that's what is happening on the ground.

PN629

MS SVENDSEN: Yes.

PN630

MS CHAN: And we appreciate the intention so we're willing to do something.

PN631

THE COMMISSIONER: Yes, yes. Yes, it seems there's a shared interest there. I don't think the direction to - you can't have that refusal there. It's just inoperable. It's how you achieve the aspiration to not have them have sleepovers misused. I mean maybe you go back to that. Is that potentially a way through, Ms Svendsen, that - - -

PN632

MR BULL: We're just looking at point 4A where you get the one hour.

PN633

THE COMMISSIONER: Where?

PN634

MS CHAN: But my understanding of 15.4 was that it applies in emergency circumstances where somebody needs to perform work and that 15.3(f) is actually to cover situations where basically an employee is directed to perform what would otherwise be non - be scheduled work, I guess, because it's not emergency work.

PN635

MS SVENDSEN: Yes it's - I'm just trying to find - - -

PN636

THE COMMISSIONER: Really what you're wanting, if you step away from (e) so get rid of the:

PN637

An employee may refuse to perform work other than in an emergency.

PN638

So take that out, right? Really what you're looking to do is to deal with the circumstances around (f) being when an employee will be directed to perform work other than that of an emergency nature, and the conundrum is not having a situation where it's just done in the ordinary course.

PN639

MR BULL: I'm suggesting that (f) deals with directed work so you get paid what (f) tells you you get paid from the start or whatever is the balance of the shift. 15.4(a), you know, possibly if you deleted (e) then you've got 15.4(a) which says that any of these non-emergencies, which they deal with, undirected non-emergencies, you get paid at least an hour. So if you've got to get up and - - -

PN640

MS SVENDSEN: At overtime rates.

PN641

MR BULL: - - - get someone a cup of water which takes you 10 minutes, you get paid, you know, one hour for that at overtime rates.

PN642

THE COMMISSIONER: Yes, so there's a price signal there to not abuse the provision.

PN643

MR BULL: Yes.

PN644

MS SVENDSEN: Yes, we're just having that conversation effectively and I think that that probably does deal with the reworking of 15.4.

PN645

MR BULL: So we could maybe delete (e) if there's an acknowledgement that - - -

PN646

THE COMMISSIONER: Not all of (e), just the - - -

PN647

MS SVENDSEN: Just that, yes, the first sentence.

PN648

MR BULL: Just the first line.

PN649

THE COMMISSIONER: The bold type. So you can get rid of that if 15.4 as amended was there.

PN650

MS CHAN: Or do you get rid of (e) and then what was in (e), the non bolded component?

PN651

MR BULL: We get rid of - - -

PN652

MS CHAN: Down to (f) - sorry.

PN653

MR BULL: We get rid of the first sentence:

PN654

An employee may refuse to perform work other than in emergency.

PN655

MS SVENDSEN: Which is the change.

PN656

MR BULL: So then we have the definition. (e) is just a definition for the purposes of this clause:

PN657

An emergency is an unplanned occurrence or event.

PN658

MS CHAN: It's just because nowhere in the clause is talking about an emergency before you get to (e).

PN659

THE COMMISSIONER: Yes, you might want to link that to (f), the remaining words. That's what you're saying?

PN660

MS CHAN: Yes.

PN661

THE COMMISSIONER: Yes, okay.

PN662

MS SVENDSEN: I mean we could obviously just reverse them.

PN663

MS CHAN: Yes.

PN664

MS SVENDSEN: So put at - - -

PN665

MS CHAN: That's what I was thinking.

PN666

MS SVENDSEN: Yes, (f) and (e) so that they flow a little bit better.

PN667

MS CHAN: Yes, or tack it on to the end of (f).

PN668

THE COMMISSIONER: Yes, okay. But then - - -

PN669

MS SVENDSEN: The current provision in (e) is:

PN670

No work other than that of an emergency nature will be required to be performed during any sleepover. For the purposes of this clause an emergency is any unplanned occurrence or event requiring prompt action.

PN671

So it actually makes sense in (e) and then (f) is the caveat around direction to perform what amounts to scheduled work, although not called that but I can use that - if I use that term at the moment. If they are directed to perform scheduled work of any kind then either or applies. The works starts from that - sorry, the standup portion of their shift starts from that work or it finishes at that time of work. And then (f) deals with what happens when somebody is woken in the middle of the night and what payment is applied, and that is actually - I mean, that's a difference. It doesn't look much but it's actually different because the current clause provides for a whole range of different provisions depending on whether you're full‑time, part‑time or casual, and the proposal by UV provides for just a flat payment.

PN672

THE COMMISSIONER: Payment.

PN673

MS SVENDSEN: Well, the same terms apply to everybody.

PN674

THE COMMISSIONER: Yes.

PN675

MS SVENDSEN: The same provisions.

PN676

THE COMMISSIONER: Yes. No, 15.4(a) is significant in the sense that as I read it you wipe out all the other provisions. There is no (b), (c), (d) or (e).

PN677

MS SVENDSEN: That's right. That's exactly the intention.

PN678

THE COMMISSIONER: It's just 15.4.

PN679

MS SVENDSEN: Yes.

PN680

THE COMMISSIONER: So it changes the payment regime, particularly for part‑time employees.

PN681

MS SVENDSEN: Yes.

PN682

THE COMMISSIONER: Yes. Anyway, maybe we might have an employer caucus on that.

PN683

MS SVENDSEN: Think about it. Yes.

PN684

THE COMMISSIONER: Unless there's a reaction - I mean, just dealing with 15.4, that's possibly a significant change.

PN685

MS CHAN: And I'm not sure we considered that one.

PN686

THE COMMISSIONER: Yes, so you need to have a think about that. All right, I don't think we can take that any further for the moment.

PN687

MR BULL: So the next one is the uniform one. That should be a little less contentious I imagine.

PN688

MS CHAN: So we have had a bit of a discussion about 18.3(ii) or (iii), I can't quite work out what it is. But whatever point 4 is on the United Voice proposal, draft determination, and I believe that the (indistinct) we have adopted during the (indistinct) was to maybe avoid any argument about how often uniforms are being laundered. It would be sufficient to amend the clause by deleting the words from "without having to launder" to the end of that sentence so "once a week" and otherwise including the word "weekly" before "agreed hours of work in a clean uniform" on the second line there, such that the clause would read or the amendment would read:

PN689

And as to the number of uniforms needed, the number of uniforms that allows an employee to work their weekly agreed hours of work in a clean uniform.

PN690

MR REID: Full stop.

PN691

MS CHAN: And full stop.

PN692

MR BULL: I don't mind that.

PN693

THE COMMISSIONER: It seems all right.

PN694

MS CHAN: But yes, naturally that has just got the implied connotation that - - -

PN695

MR BULL: It's sort of similar.

PN696

MS SVENDSEN: Yes.

PN697

MS CHAN: - - - (indistinct).

PN698

MR BULL: So that's:

PN699

An adequate number of uniforms means the number of uniforms that allow an employee to work their agreed - - -

PN700

MR REID: "Hours of work in a clean uniform".

PN701

MR BULL: "Their agreed hours of work".

PN702

MR REID: "In a clean uniform".

PN703

MR BULL: Right.

PN704

MR REID: Full stop and then just delete the last - - -

PN705

MR BULL: Yes, but do we put the word "weekly" in?

PN706

MS CHAN: Yes, we do and it's either before or after "agreed".

PN707

MR BULL: We'll just put there "weekly".

PN708

MS CHAN: "Agreed hours of work".

PN709

MR BULL: "Agreed hours of work".

PN710

MR BROWN: "In a clean uniform".

PN711

MR BULL: Yes, that's fine.

PN712

MS CHAN: Yes.

PN713

MR BULL: I'm happy with that. Do you have a problem, Leigh, or?

PN714

MS SVENDSEN: No.

PN715

THE COMMISSIONER: So can I just get it from the top? So the first sentence stays as it is as per the draft determination.

PN716

MR BULL: I think there's a typo. It has got a - it might be three, sorry.

PN717

THE COMMISSIONER: That should be (iii)? Yes. So the first sentence:

PN718

Any uniforms provided by the employer to an employee remain the property of the employer.

PN719

That's no change to that. It would then read "An adequate number", do you want to read it out for me?

PN720

MR REID: Of uniforms?

PN721

THE COMMISSIONER: Yes.

PN722

MR REID: So:

PN723

Means the number of uniforms that allows an employee to work their weekly agreed hours of work in a clean uniform.

PN724

THE COMMISSIONER: Full stop.

PN725

MR REID: Full stop.

PN726

THE COMMISSIONER: Delete:

PN727

...without having to launder work uniforms more than once a week.

PN728

MR REID: Yes.

PN729

THE COMMISSIONER: Very good. All agreed on that? No further bidding.

PN730

MS SVENDSEN: Yes.

PN731

THE COMMISSIONER: Sold. Apparently we've got the Cert III issue.

PN732

MS CHAN: I think we agreed to disagree on that one.

PN733

MR BROWN: Yes.

PN734

THE COMMISSIONER: I must admit I can't see that - that's one that will have to be arbitrated one would think.

PN735

MS SVENDSEN: Yes. We definitely looked at that provision, sadly, because you know, the employers just wouldn't agree with us on our reasonable - - -

PN736

MR BULL: Well, that has narrowed it down a bit.

PN737

THE COMMISSIONER: Look, that dispenses with the United Voice other than going back on the - we've got to go back on the sleepover issue and so what have we got to return to? Phone allowance?

PN738

MS SVENDSEN: Yes.

PN739

THE COMMISSIONER: And sleepover.

PN740

MS SVENDSEN: Yes.

PN741

THE COMMISSIONER: Look, we might take a break. How long would you like, sort of 20 minutes, half an hour?

PN742

MR BULL: Enough to get a coffee.

PN743

THE COMMISSIONER: Enough to get a coffee? Well, it's not quite half past 11. Let's say we'll come back at 10 to 12 and during that time you have a think about - the key thing to focus in on is the sleepover. I don't think we're going to resolve the eight to 10 hour issue. I get that. But ideally if we can, good to get to a point where that's the only issue at trial and we've fixed up this issue around - and it might be you need to have a think about the 15.4 proposal which does change the payment regime considerably. So your position on that might be "We can do part of that" or "none of it". Maybe if you can live with - you might be able to live with some change to it to the extent that it becomes a mechanism for providing a price signal to employers who it's alleged are abusing I suppose the sleepover provision - or misusing it is probably a better term. I withdraw abusing - in a way that it's not intended to be used, yes.

PN744

MR BROWN: Certainly.

PN745

THE COMMISSIONER: And in return for that the bolded type in (e) comes out and there won't be any capacity to refuse to perform work other than in an emergency. But it's a way of addressing that purported concern.

PN746

MR BULL: So the deal would be we get rid of refusal in (e) but we keep our 15.4.

PN747

THE COMMISSIONER: Yes, but that's - - -

PN748

MR BULL: As what you call the price signal and that if they want to try it on and there's a level of demand that would necessitate an evening shift, then they can - - -

PN749

THE COMMISSIONER: But 15.4 is a significant change in terms of - - -

PN750

MR BULL: No, I understand that.

PN751

THE COMMISSIONER: - - - the payment regime for part‑timers and casuals, as you know. So the existing provision is kind of convoluted, I must say, but nevertheless it has been there for a while. So yes, you just need to have a think about it. If you can't agree with what the union's proposing in terms of 15.4, I'm presuming that there's some flexibility from them about that but it would be what can you do that will still deal with this price signal issue, and then there might be a way to find an accommodation through that.

PN752

Let's make it easy and let's just come back at noon. I'll see you at 12. Margot?

PN753

THE ASSOCIATE: Yes?

PN754

THE COMMISSIONER: Are you still awake? Are you enjoying all this?

PN755

THE ASSOCIATE: Yes.

PN756

THE COMMISSIONER: All right, if you could just turn off the tape. Thanks.

PN757

THE ASSOCIATE: Yes, I'm just doing that now. Okay then.

PN758

THE COMMISSIONER: Thanks.

SHORT ADJOURNMENT [11.31 AM]

RESUMED [12.02 PM]

PN759

THE COMMISSIONER: Do you want to start on phone allowance?

PN760

MR BULL: We're still on the sleepover one.

PN761

THE COMMISSIONER: We can go back to the sleepover, yes.

PN762

MR BULL: There was some discussion about this is - no one likes the word "refuse to perform work" I gather?

PN763

MS CHAN: No.

PN764

MR BULL: We could substitute - - -

PN765

THE COMMISSIONER: It's not winning fans, Mr Bull.

PN766

MR BULL: No. The current clause has the sentence:

PN767

No work other than that of an emergency nature will be required to be performed during a sleepover.

PN768

It has got the same meaning. It's just a bit - - -

PN769

THE COMMISSIONER: It's a statement of intent, yes.

PN770

MR BULL: It's a bit softer.

PN771

THE COMMISSIONER: Yes. That's what is in the current - - -

PN772

MR BULL: That's what is in the current, so we can put that in. I assume that what we want as 15.4 is not going to be agreed by the employers?

PN773

MS CHAN: I think we'd be hard pressed to agree to that addition.

PN774

MR BROWN: Yes.

PN775

MR BULL: Okay, well I can change the wording in (e) to make it softer because I can see your point that it does seem a little bit incongruous that, you know, you're refusing to do something and then the next clause is talking about being directed to do things. Then we'd have the fight about the price signal.

PN776

THE COMMISSIONER: Yes, okay. So let's just go - these words of which you speak, Mr Bull, are in the exposure draft?

PN777

MR BULL: Apparently.

PN778

MS SVENDSEN: They are.

PN779

MS CHAN: So we're maintaining the status quo?

PN780

MS SVENDSEN: Yes.

PN781

MS CHAN: On 15.3?

PN782

MS SVENDSEN: Yes.

PN783

MR BULL: So it has got the same meaning. It's just a softer way of phrasing it really.

PN784

MS SVENDSEN: Here's the exposure draft.

PN785

THE COMMISSIONER: Yes, I've got it.

PN786

MR BULL: You see:

PN787

No work other than that of an emergency nature will be required to be performed during any sleepover for the purposes - - -

PN788

THE COMMISSIONER: Yes, and you've deleted that and inserted - - -

PN789

MR BULL: "The employee may refuse to perform".

PN790

THE COMMISSIONER: Yes, so we go back to the status quo on - - -

PN791

MR BULL: We can go back to the status quo.

PN792

THE COMMISSIONER: Yes.

PN793

MR BULL: I suppose it gets that in-your-faceness out of the clause.

PN794

THE COMMISSIONER: Right, and so then just to be clear where we've got to is that we don't have agreement on - - -

PN795

MS CHAN: 15.3.

PN796

THE COMMISSIONER: Yes. Now there is this note after the current clause 15.1 and I skipped over that earlier:

PN797

Note the provisions of 14.4 will apply to the sleepover. An employee may refuse a sleepover in the circumstances -

PN798

Comma:

PN799

- by the way of 14.4(d) but only with reasonable cause.

PN800

Is there any issue with the note? That's an insertion isn't it by you?

PN801

MR BULL: Yes.

PN802

THE COMMISSIONER: We'll come back to that. Have a think about that, but in terms of 3(a) that the span for a sleepover be a continuous span of eight hours, that's not agreed.

PN803

MR REID: No.

PN804

THE COMMISSIONER: And the employers' position is that the existing 15.3(a) would remain?

PN805

MR REID: Yes.

PN806

MR BULL: What about the thing with the start, you know, (c)? Is that a problem?

PN807

THE COMMISSIONER: (c) was agreed as amended by United Voice. Yes?

PN808

MS CHAN: Yes.

PN809

MR REID: Yes.

PN810

THE COMMISSIONER: And as was (d) agreed as amended by United Voice.

PN811

MR REID: Yes.

PN812

THE COMMISSIONER: It's agreed that (e) will revert to the existing (e) in the exposure draft. (f) there's no change, and the proposed variation to clause 15.4 by United Voice is opposed and you would seek that the existing 15.4 remain the same. That's correct?

PN813

MR BROWN: Yes, Commissioner.

PN814

MR REID: Yes, that's correct.

PN815

THE COMMISSIONER: Now is there any - which means at the end we've got at this stage to be arbitrated the proposal or the variation of clause 15.4 and 15.3(a), and what about the note?

PN816

MS SVENDSEN: We think it's wrong - - -

PN817

MS CHAN: We're just trying to work out what the circumstances are at 15.4(d) - - -

PN818

MS SVENDSEN: It should be 15.3(b).

PN819

MS CHAN: That actually trigger the (indistinct) - - -

PN820

MR BROWN: Yes.

PN821

MS CHAN: I'm just confused.

PN822

MR BROWN: Yes.

PN823

MS SVENDSEN: That 15.3(d) references 15.3(e) but it should be 15.3(b) I think.

PN824

MR BULL: Sorry I - - -

PN825

MS CHAN: 15.3(b)?

PN826

MS SVENDSEN: Yes. I'll just make that note.

PN827

MR BULL: Yes, I'm sorry about that.

PN828

MS SVENDSEN: It's all right.

PN829

THE COMMISSIONER: Okay.

PN830

MS SVENDSEN: I just saw that.

PN831

THE COMMISSIONER: So it should read:

PN832

Note the provisions of 14.4 - - -

PN833

MS SVENDSEN: No, no.

PN834

MS CHAN: No.

PN835

MS SVENDSEN: At (d):

PN836

This allowance is in addition to any payment for hours worked during the sleepover and the free board and lodging provided by 15.3 -

PN837

Should be (b) not (e).

PN838

THE COMMISSIONER: B for Bob.

PN839

MS SVENDSEN: Yes, B for Bob.

PN840

THE COMMISSIONER: Right. Thank you.

PN841

MS SVENDSEN: And 14 point - - -

PN842

THE COMMISSIONER: So "Note the provisions of 14.4" which is the roster provision "will apply to the sleepover".

PN843

MS SVENDSEN: It said it would be rostered.

PN844

THE COMMISSIONER: What is the situation now? Are sleepovers rostered?

PN845

MS SVENDSEN: Yes. Yes, I think the note in relation to roster provisions is just that I'm making clear, rather than anything else. That's the only - - -

PN846

THE COMMISSIONER: Okay. Any issue with that?

PN847

MS CHAN: No, we're just still note sure of the circumstances contemplated by 15.4(d) either, the (indistinct) to a refusal. But, what, there hasn't been a mutually agreed addition for the allowance or - - -

PN848

MS SVENDSEN: Yes, I think that's it.

PN849

MR BROWN: So programming a sleepover during this, then someone would normally have their two days off?

PN850

MR BULL: They can refuse.

PN851

THE COMMISSIONER: Why do you need that? You've got it anyway. I don't know why you need anything other than the provisions of 14.4 will apply to your sleepover.

PN852

MS CHAN: Yes because, what, even point one would still apply, wouldn't it? And that's where the entitlement to (indistinct) in each week (indistinct) in each fortnight.

PN853

MR BULL: Well, it wasn't my idea in the first place.

PN854

MS CHAN: No.

PN855

MR BULL: I'm happy to get rid of it.

PN856

MS CHAN: I appreciate it.

PN857

MR BULL: So I'm just a mouthpiece.

PN858

THE COMMISSIONER: So you're happy with:

PN859

Note the provisions of 14.4 will apply to the sleepover.

PN860

Full stop?

PN861

MR BULL: Let me just have a look at it again. Yes, that gets it basically. That is a useful note because it's indicating that sleepovers are rostered.

PN862

MS SVENDSEN: Are rostered, yes.

PN863

THE COMMISSIONER: Yes, I get that.

PN864

MR BULL: And they probably are anyway. Otherwise you could have a tedious industrial dispute about it at some stage. But that note just could avoid a tedious industrial dispute.

PN865

THE COMMISSIONER: All for avoiding tedium, tediousness.

PN866

MR BULL: Tedious industrial disputes. But what other sort are there?

PN867

MS SVENDSEN: None now.

PN868

THE COMMISSIONER: Most of them are riveting.

PN869

MS SVENDSEN: Yes.

PN870

MR BULL: So maybe if we just have the first sentence and we can get rid of the refusing sort of circumstances contemplated? Yes, we're all in furious agreement?

PN871

MS CHAN: So are we just keeping the first sentence and - - -

PN872

MR BULL: Yes, we're just clarifying that - - -

PN873

MS CHAN: - - - (indistinct) it?

PN874

MR BULL: - - - sleepover work is rostered work.

PN875

MS CHAN: Yes.

PN876

THE COMMISSIONER: Is that okay?

PN877

MS CHAN: Yes.

PN878

MR BULL: So get rid of all the rest.

PN879

MR REID: Yes, okay.

PN880

MS CHAN: We're just having a (indistinct) but, yes.

PN881

THE COMMISSIONER: Okay then we only have in terms of the proposed draft determination of United Voice it's all agreed except for - - -

PN882

MR BULL: It's really eight hours, the price signal and the Cert III.

PN883

THE COMMISSIONER: - - - 15.3(a) - sorry, I was speaking.

PN884

MR BULL: Sorry, sir.

PN885

THE COMMISSIONER: Except for 15.3(a) and for 15.4 where the proposal of United Voice is to remove the entirety of the 15.4 provision and insert a new (a) which would have the effect of:

PN886

All work performed during the sleepover period prescribed at the overtime rate with a minimum payment for one hour worked.

PN887

And that would apply no matter whether the employee is full‑time. There's no change in that sense for full‑time employees as I understand it.

PN888

MS SVENDSEN: No.

PN889

THE COMMISSIONER: But there is a change for part‑time and casuals.

PN890

MS SVENDSEN: Yes, that's right.

PN891

MR BULL: Yes.

PN892

THE COMMISSIONER: Yes, that's a fair summary, Mr Bull?

PN893

MR BULL: That's a fair summary.

PN894

THE COMMISSIONER: Thank you.

PN895

MR BULL: And you've described it as a price signal and - - -

PN896

THE COMMISSIONER: That's the endeavour.

PN897

MR BULL: Well, that's the mischief.

PN898

THE COMMISSIONER: Yes.

PN899

MR BULL: It's avoiding the slippage of sleepovers becoming a sort of - you know, when there's a choice between a night shift they pick the sleepover.

PN900

THE COMMISSIONER: Yes, yes.

PN901

MR BULL: So there's some price signal.

PN902

THE COMMISSIONER: Yes.

PN903

MR BULL: If the work truly does deserve a night shift.

PN904

THE COMMISSIONER: I mean I would just observe that there's a couple of observations I'll make which cut in different directions for both employer and employee. One is the one that I guess cuts across your bow, Mr Bull, is that - just bear with me for a second. 15.3(e) is now back where it was which includes those words:

PN905

No work other than that of an emergency nature will be required to be performed during any sleepover.

PN906

Now on one view if you're to pursue - and that remains. If there's an issue about the errant use of the sleepover provision, well that's possibly an enforcement issue. That might be a view. I'm just speaking off the top of my head here, and obviously it would be a matter for the Bench ultimately to determine. But that would be one take on it, and in which case some sort of price signal is not required.

PN907

Alternatively there's a sufficient case run that notwithstanding that, that enforcement is difficult or, I don't know, for some reason the Bench is persuaded that there needs to be some sort of price signal, as it were, then I guess in that context you might want to contemplate - or you might not, I'm just raising it - whether there would be some halfway house in terms of what is proposed in terms of 14.4, which is I accept a pretty significant change. That there might be some component of that that you're prepared to wear, understanding that it is meant to be an exceptional thing.

PN908

But you could have a look at that subsequent to today. For the moment I'm going to be recording that we're batting on with that issue. But I wouldn't just - I'm basically asking the parties not to completely pack up on that issue because you might be able to find some - I don't think you can - I'm not suggesting you do this in terms of the eight to 10 hours because I just think that's just a straight it's either going to be eight to 10 or it's going to be eight.

PN909

I don't see how you'd deal around that, but you might be able to deal around this issue. Yes? But for the moment we'll be setting to arbitrate on that as it is. Okay, so we've just got the phone allowance to talk about. How did we go?

PN910

MS SVENDSEN: I haven't put this in writing but I'm more than happy to do so. I have had a quick look at phone allowances and general payments. This award didn't have on‑call allowances and didn't have phone allowances. Neither of those things were actually accounted for like they were in other awards. The main provision in other awards is for the payment, the rental payment and calls for landlines.

PN911

Choice's assessment of mobile - of, sorry, phone plans across the board this year was that you pay $30 a month for a landline phone before you make a call and that that's the standard rate. So I'd kind of be putting back a proposal that was - or a phone allowance rate that reflected the landline rate that was the normal provisions in modern awards for most phone allowances. So that it applied for either the mobile phone use or for the landline, whichever you required them to have and be contactable on. Or provide a phone.

PN912

THE COMMISSIONER: Yes.

PN913

MS SVENDSEN: But I can write that up.

PN914

THE COMMISSIONER: Maybe do that and then we have a look at it, yes.

PN915

MS SVENDSEN: Yes, and send it to you.

PN916

THE COMMISSIONER: Yes.

PN917

MR BROWN: Yes, we're - - -

PN918

THE COMMISSIONER: Okay, and we'll cancel more discussions about that. I think that's one that's resolvable really. All right so on that. All right, have we forgotten anything?

PN919

MS CHAN: I don't think so.

PN920

MS SVENDSEN: I don't think so.

PN921

MR BROWN: No, I think that's everything.

PN922

MR REID: First Aid. What are we doing with that?

PN923

MR BROWN: We need to - - -

PN924

MS SVENDSEN: No, you were going to come back - - -

PN925

MS CHAN: Three weeks.

PN926

MR BROWN: It's two to three weeks, yes.

PN927

MR REID: That's right.

PN928

THE COMMISSIONER: That's right, you needed to - - -

PN929

MR BROWN: Talk about it.

PN930

THE COMMISSIONER: - - - agree about that. That's still flapping in the breeze a little.

PN931

MS SVENDSEN: Yes.

PN932

THE COMMISSIONER: All right.

PN933

MS SVENDSEN: Beautiful.

PN934

THE COMMISSIONER: Productive?

PN935

MS SVENDSEN: Yes.

PN936

THE COMMISSIONER: We've got agreement on a substantial amount of things. We might get a little bit more. That's good.

PN937

MS SVENDSEN: Yes.

PN938

THE COMMISSIONER: Thanks for your participation and thanks for having the discussions that you obviously did before you got here on particularly the on‑call recall.

PN939

Any more from you, Mr McCarthy? You're all good down there?

PN940

MR McCARTHY: Yes, I'm good thanks, Commissioner.

PN941

THE COMMISSIONER: All right. What will happen from here is I will put out - I will draft up some notes recording what I understand to be the outcome of today and then an opportunity to respond to any errors I should errantly make and subsequent to that will be some programming.

PN942

MS SVENDSEN: Next year.

PN943

THE COMMISSIONER: Probably.

PN944

MS SVENDSEN: I'm just going on the basis of the other ones that are already into next year.

PN945

THE COMMISSIONER: I was just putting some dates in my diary for late November yesterday, so it's horrifying isn't it?

PN946

MS SVENDSEN: We've already got - I've got health awards that we sit for November and December already.

PN947

THE COMMISSIONER: Yes, right.

PN948

MS SVENDSEN: And SCHADS awards listed for February next year.

PN949

THE COMMISSIONER: Okay, yes, so that's - - -

PN950

MS SVENDSEN: Sorry, SESA not SCHADS.

PN951

THE COMMISSIONER: - - - probably most likely. All right, thank you all for your attendance.

PN952

MR REID: Thank you, Commissioner.

PN953

THE COMMISSIONER: We will be in touch. Have a nice day. Thanks, Margot.

ADJOURNED INDEFINITELY [12.22 PM]