T RANSCRIPT OF PROCEEDINGS · 2011-12-19 · T RANSCRIPT OF PROCEEDINGS. Workplace Relations Act...

T RANSCRIPT OF PROCEEDINGS Workplace Relations Act 1996 19390-1 COMMISSIONER LEWIN AM2008/14 s.576E - Award modernisation Application by (AM2008/14) Melbourne 10.12AM, THURSDAY, 27 NOVEMBER 2008 Hearing continuing

PN1 THE COMMISSIONER: Welcome to the consultation. I just want to make a few arrangements of a procedural nature in relation to the parties appearing. I notice that, obviously, there's not sufficient seating at the bar table and there may be some confusion in the transcript of the proceedings that's caused by that, potentially, so if persons are actually rising in the body of the hearing room, I would ask them to be sure to identify themselves before they speak clearly and the organisation that they are speaking on behalf of on each occasion that they speak. Obviously, there might be a little bit of conversational interaction during the time that the person concerned is addressing the Commission, but if people could be mindful of that.

PN2 We have a list of all of the persons who are representing organisations. I don't think there are any individuals, and I don't propose to have each party enter their appearance for the record now in the interests of time, so that reinforces what I'm saying about the absolute necessity for the person addressing the Commission to identify themselves on the first occasion, otherwise it will cause enormous confusion in relation to the transcription. Normally, obviously, we would have an appearance sheet which the parties to a proceeding would have completed and the transcription service would have that available and the number of parties would enable them to manage the transcript relatively easily.

PN3 I'll ask my associate to periodically check that there are not people who arrive and simply take up a seat and at some point decide to seek to say something who haven't been recorded as a party to the consultation procedure.

PN4 I did set out to those who'd made submissions a suggestion as to the way of proceeding today. I did so because there has been some feedback through the broad award modernisation consultation process that parties had expressed a view that a more interactive process, rather than simply a catalogue of oral submissions made in support of written submissions by the parties seriatim would be a more productive approach and that's what I intend to do today.

PN5 I indicated in that advice that I didn't see any purpose or practical necessity for parties to read any submission or parts of the submission, except by way of emphasis and as some sort of footplate, if you like, for further elaboration on a matter of importance. Everybody concerned can be assured that all of their submissions that have been filed will be read and will be taken into account and carefully considered for the purposes of the consultation process.

PN6 A little less formality, a little more interaction and hopefully a process which allows the time available to be used by focusing on what seem to be from various perspectives and differing points of view the matters that need to be resolved most axiomatically, if you like, in order to arrive at the best possible outcome for the process.

PN7 The other aspect concerns - the final matter is that this is a consultation, of course, it's not an application by any party for an award of the Commission or a variation of an award. It is not a proceeding in relation to a dispute between parties. It is not an inter parties proceeding. The proceeding is being conducted by the Commission under statutory direction. The Commission is fulfilling a statutory responsibility to consult with the parties in order to carry out a statutory function that it is required to perform in legal terms independently of the parties. That is to say, these proceedings are not dependent upon the parties making an application or there being extant, some sort of situation which the parties can attract the Commission's jurisdiction and powers to.

PN8 For that reason people should not be concerned if what might be perceived to be traditional hierarchies of representation or order in the way in which proceedings are conducted in the Commission in a consultation process are somewhat more jumbled than they might otherwise have been in those types of circumstances, who gets to go first, who is considered to be the major party such as in the old style national wage cases is really not applicable in these circumstances. This is a more broadly based consultation process.

PN9 One can see clearly from the scope of the consultation that it encompasses a very, very wide set of interests and nobody's interests really have any great privilege. Everybody's interests, it seems to me, are equally valid, provided that they are bona fide, genuine, relevant and important to the parameters of the process itself. So if I call upon a party that perhaps in an industrial relations sense may not be considered to be a traditional player in the scheme of things, or a dominant player in the scheme of things, then please I think we'll just adjust to that and the reason why I may do so in any particular way. That I might mix the order up a bit and perhaps cut across various points of view at different times during the consultation in order to make it interactive is nothing to do with any perceptions of hierarchy or things of that nature as to who should be heard first or most or anything of that nature. I think we'll just focus on the quality of the process rather than those more traditional concepts.

PN10 I might go about it in a slightly unconventional way in order to try and create a certain amount of discussion, if you like, which is designed to sharpen up certain divergences that have been put, not in the sense that the parties are in dispute or anything of that nature, but different points of view can be contrasted with one another and profitably explored. Because of the contrast the contrast can be useful and dynamic for that purpose.

PN11 I wonder if anybody has anything of any urgency about the procedure or any lack of clarity or concern that they wish to put to the Commission at this stage.

PN12 MR B O'BRIEN: Commissioner, I have a couple of quick issues which may allow me to excuse myself early in the proceedings.

PN13 THE COMMISSIONER: I wonder if you could set a very bold precedent and announce your name and organisation before you start to speak.

PN14 MR O'BRIEN: Sorry, I disobeyed the orders. Barry O'Brien from the Australian Services Union. The two quick matters that I wish to raise are firstly, to ascertain on the record the extent to which any party may wish to have clerical and administrative employees included in the proposed awards in the category of what would be deemed on farm awards, awards which operate on the farm itself, not off the farm covering classifications elsewhere. That's the predominant thing. I believe there's very little - - -

PN15 THE COMMISSIONER: What's your position on that?

PN16 MR O'BRIEN: The position, in our submission, is that the Private Sector Clerical Award should cover clerical and administrative - - -

PN17 THE COMMISSIONER: So there should be no clerical and administrative classification in agricultural and horticultural type awards?

PN18 MR O'BRIEN: With the exception of one off farm award.

PN19 THE COMMISSIONER: I've heard you on that. I don't think I want to ask everybody to either agree or disagree at this stage. Thank you.

PN20 MR H SKENE: If the Commission please, I appear for the Agribusiness Employers Federation and to the extent necessary I apply for leave to do that.

PN21 THE COMMISSIONER: Is Mr Platt going to - - -

PN22 MR SKENE: Yes, I appear together with MR PLATT.

PN23 THE COMMISSIONER: He wanted to come this afternoon.

PN24 MR SKENE: Yes, Commissioner. We've had an opportunity this morning to speak with Ms Maloney from the FSU and also with the NUW. Our interest is confined to the Agribusiness Award - Clerical and Salaried Employees Agribusiness Award, a Wool Testing Award and a Storage Services Award. Our proposed course is for those three awards to be dealt with this afternoon if possible, Commissioner, which would enable us to have direct discussions with the FSU and NUW in the meantime.

PN25 THE COMMISSIONER: You'll come back this afternoon. I'm not going to deal with the awards in any structured order, this one or that one. I'm looking at the

whole picture all day. If you want to come back this afternoon I'll make some time to hear what you have to say.

PN26 MR SKENE: Perhaps if I say not before 3 o'clock, Commissioner, would that be acceptable?

PN27 THE COMMISSIONER: Yes.

PN28 MR B JEFFRIES: Sir, I am from the Australian Tuna Association.

PN29 THE COMMISSIONER: Mr Jeffries, you don't want the tuna ranching operation covered by any award. Is that right?

PN30 MR JEFFRIES: That's right, and a fundamental issue to us is that it's currently not covered by an award.

PN31 THE COMMISSIONER: I've noted that. I've read your submission. I understand what you say. I just caution you that there is an issue that arises as to the nature of the request and the process itself. The question that arises is whether it's appropriate for the Commission to consciously make a decision to leave an industry sector award free as of 1 January 2010 but unless you want to say anything else, I'm right across what you're saying and I will certainly be explaining that to the Full Bench in due course. You are not the only aquaculture party, if you like, or industry representative that takes the view that the sector should be award free.

PN32 MR JEFFRIES: Will we get some direction on that at some stage?

PN33 THE COMMISSIONER: Yes, you will have a response to your submission in I would imagine a statement, just to characterise it, which will be issued by the Full Bench, on my understanding, in due course. The question is a live one, you've made it a live one. The Commission will not ignore it.

PN34 MR J WILLIAMS: Commissioner, I appear for the Pearl Producers Association. You have received our submission?

PN35 THE COMMISSIONER: Yes, I did and I read it and I understand you want the pearl production industry off north-western Australia to be award free?

PN36 MR WILLIAMS: Correct, sir.

PN37 THE COMMISSIONER: You've heard what I said to the tuna industry.

PN38 MR WILLIAMS: Yes.

PN39 MS M MALONEY: Commissioner, I appear for the Finance Sector Union. I just seek clarification. I have no problem with coming back this afternoon to deal the Agribusiness Award but as we indicated in our correspondence of 23 and 24 November, our first position was we thought it was appropriate for the business of wool brokers to be included in the Financial Services Group Award. I just seek clarification if we put that position to you this afternoon, does that affect these proceedings or complicate - - -

PN40 THE COMMISSIONER: Your position is pretty straightforward. This is about awards or awards to be made, if you want to come back this afternoon and make some comments about that at that time because you can't do so this morning, that's fine but you make your own decisions. What you might miss out on is the other points of view on the awards to be made. I'll give you a bit of a refresher this afternoon but you might be playing catch-up with what's gone on this morning because pretty soon we'll be moving towards the question of whether we ought to have one award, two awards, three awards, four awards and who ought to be in what awards.

PN41 MS MALONEY: Yes, sir, I understand.

PN42 THE COMMISSIONER: You're excused if you wish to come back this afternoon and put your submission at that time.

PN43 MR B TERZIC: If the Commission pleases, I appear on behalf of the Australian Manufacturing Workers Union, or AMWU. Commissioner, I'm here really to amplify the written submission which deals with principally an area of overlap between the proposed Agriculture Award and - - -

PN44 THE COMMISSIONER: I just wonder whether or not it's appropriate that I hear you now because my understanding from the other parties is that they wanted to get it over and done with, if you like, and leave or come back this afternoon. The question that I asked before they started addressing me was has anybody got any procedural issues as opposed to substantial issues as to the agenda. Do you want to actually start getting into the substantial issue?

PN45 MR TERZIC: I was planning on doing so principally because the submissions would be short, probably in total three to four minutes, maybe five at the most.

PN46 THE COMMISSIONER: Go ahead, and then you propose to be excused?

PN47 MR TERZIC: Yes, Commissioner.

PN48 THE COMMISSIONER: Good, go ahead.

PN49 MR TERZIC: The proposed Agricultural Industry Award will pick up the Horticultural Industry Award. The Horticultural Industry Award has classifications and coverage over the canning, drying, processing, et cetera of fruit and vegetables and that creates a clear overlap with the Food Preservers Award which will be an award dealt with in stage 2.

PN50 THE COMMISSIONER: I think there is an issue that emerges and the AWU will obviously have to join with this soon, as to the extent to which processing, if you like, falls within the scope of this consultation or whether or not, without being precise about it, just as a very, very general and sort of descriptive way for convenience, the farm gate versus the manufacturing or processing of agricultural or horticultural production.

PN51 MR TERZIC: I hope I don't misrepresent what Mr Decarne from the Australian Workers Union told me this morning. His position was that he thought it might be appropriate to defer final consideration on that issue until stage 3 and the food industry is looked at after this industry has been looked at in more detail.

PN52 THE COMMISSIONER: Is that what you're supporting?

PN53 MR TERZIC: We will continue to press for processing of food to be excluded from agriculture but if the issue can be deferred, and we will address that later, that might be an appropriate course.

PN54 THE COMMISSIONER: Stage 3.

PN55 MR TERZIC: The other area which I'll just simply deal with is the coverage of mechanical engineering and maintenance employees. The AMWU's position throughout has been that there will be an occupational award, the Manufacturing and Associated Industries and Occupations Award that will cover maintenance and engineering classification across a broad range of industries.

PN56 THE COMMISSIONER: Trades qualified and other maintenance and engineering work carried out on farms subject to an occupational award.

PN57 MR TERZIC: Yes, that's the union's position there and that applies to various - - -

PN58 THE COMMISSIONER: Carried ..... in any of the, shall we say industries or activities that are within the scope of this consultation.

PN59 MR TERZIC: Essentially, if those issues are picked up we, in fact deal ourselves out of this award. Just to give some support to those propositions, I would just refer the Commission to paragraph 9 of the Minister's request which states there is a desirability in avoiding overlap and if those propositions are picked up, that would conform with paragraph 9 of the Minister's request.

PN60 THE COMMISSIONER: If anybody wants to be excused or has a brief submission of two or three minutes - no? Good. I think what we'll do now is to move to the agenda as distributed and it seems to me there are various points of view as to the desirability of the number of awards to be made and the configuration of the awards to emanate from the consultation and award modernisation process in this area, the so-called agriculture group.

PN61 In order to try and focus that discussion, it seems to me that it might be useful to hear different points of view in the lead perhaps and I think there are some differences, if you like, between the AWU and the NFF and others as to the extent of the number of awards to be made and the particular sector or industry focus of any award.

PN62 It might be useful if we started with some of the suggestions that have been made, for instance simply by way of example in order to keep the discussion on, that there might be, for example, an agricultural services award. We could also, I think, give some consideration to whether or not it might be desirable to have awards which focus on say, the nursery industry as an industry in its own right. Whether or not any other industry sectors which are not or haven't historically been clearly regulated by an extant federal award and have been dealt with under state industrial instruments and have been parsed out if you like by reference to certain intensive agricultural activities.

PN63 Issues have been considered such as the desirability for a Cotton Industry Award, a Pig Breeding Award, a Poultry Industry Award. Clearly there will have to be I would have thought, and I can't speak for the Full Bench but there's overwhelming interest from the parties and clear logic that some sort of a Wool Industry Award will have to emerge. So if we could start with that. I might actually hear from the National Farmers Federation first on the question of the array if you like of instrumental coverage through the modernised award system that is appropriate. I've read the submission but if you'd like to try and summarise it.

PN64 MS J CORKHILL: Thank you, Commissioner. Sorry, Commissioner, I have a back issue. I can't bend.

PN65 THE COMMISSIONER: I see. Take your time. Just announce your name first please.

PN66 MS CORKHILL: Corkhill J for the National Farmers Federation.

PN67 THE COMMISSIONER: Yes, thanks, Ms Corkhill.

PN68 MS CORKHILL: The National Farmers Federation, sir, undertook extensive consultations with the parties. Initially the National Farmers Federation took a view that one award being an Agricultural Industry Award would be appropriate. As a result of the consultations it became clear that the sugar industry being seriously vertically integrated could sit on its own with a particular award and NFF took no objection to that course of action. As part of the consultations we also agreed that horticultural probably would sit more comfortably in its own award given the different considerations.

PN69 I note that the AWU has drafted a Cotton Industry Award. I've addressed that in my written submission. Less than 20 per cent of cotton farmers actually use the only NAPSA award that deals with the production of cotton. The rest of them fall quite comfortably under the current Pastoral Industry Award and there is a case, the Seerey Cotton case, which I referred to in the submission which .....

PN70 THE COMMISSIONER: Let's just have a look at the cotton then since that's your first port of call along this continuum of you know potential areas of award coverage that are being suggested. What would be the effect on the respondents to the Pastoral Industry Award of being subject to an award that reflected the NAPSAs?

PN71 MS CORKHILL: I'm not sure of the question I'm sorry.

PN72 THE COMMISSIONER: Well you're saying that there are two classes of cotton industry producer.

PN73 MS CORKHILL: There's 20 per cent under the NAPSA and the rest under the Pastoral Industry Award.

PN74 THE COMMISSIONER: That's right there are two classes. 20 per cent covered by .....

PN75 MS CORKHILL: We assume that.


PN77 MS CORKHILL: Those are the best figures that we could get given the respondents .....

PN78 THE COMMISSIONER: You don't have any idea of the head and tail of the actual production profile do you?

PN79 MS CORKHILL: No.

PN80 THE COMMISSIONER: I mean are the 20 per cent the big growers like Auscott or .....

PN81 MS CORKHILL: No, I don't.

PN82 THE COMMISSIONER: You don't know the answer to that question?

PN83 MS CORKHILL: Well no I know that in Queensland they're basically award free altogether so I don’t know if the bigger ones are in Queensland. Certainly every cotton producer in New South Wales I was told by New South Wales farmers has a mixed enterprise with cotton being a smaller part than the other grain growing and other crops and also livestock.

PN84 THE COMMISSIONER: All right.

PN85 MS CORKHILL: So it sits very comfortably in the Pastoral Industry Award.

PN86 THE COMMISSIONER: There are two questions embedded in that. There's the first is it desirable to have a Cotton Industry Award as suggested by the AWU as I understand it. The second is if such an award were to be made to what extent would one define the scope of it? That is to say would it be confined to employers who are exclusively engaged in the production of cotton and exclude the growing of cotton as part of a broad acre mixed farming operation?

PN87 MS CORKHILL: Well yes .....

PN88 THE COMMISSIONER: So I don't want to go to the second one first. I want to go to the first one first. So the first one the question I have to you is I thought you told me that at the outset that it was half and half but you're now saying to me that 80 per cent of all the actual cotton producers, and I understand cotton is produced between two parallels of latitude, and in New South Wales and Queensland. I recall there was some attempt to do it in the Ord River but it seems to have failed.

PN89 MS CORKHILL: Yes.

PN90 THE COMMISSIONER: So we have in New South Wales and Queensland according to what you say a number of cotton producers. Now when you say that you don't mean that they are exclusively cotton producers or do you?

PN91 MS CORKHILL: No, they're not. In Queensland - - -

PN92 THE COMMISSIONER: You mean that there are a number of people that you've identified who grow some cotton?

PN93 MS CORKHILL: Yes. I don't have the figures for Queensland as to whether they are exclusively cotton or not and how big they are but they are actually award free in Queensland except for the harvesting. So that's why I didn't go into detail.

PN94 THE COMMISSIONER: They're not going to - are you suggesting they remain award free?

PN95 MS CORKHILL: No, no, I'm not saying - - -

PN96 THE COMMISSIONER: So they're not going to remain award free in your world?

PN97 MS CORKHILL: Not in my world.

PN98 THE COMMISSIONER: You want them to be covered by the Pastoral Industry Award?

PN99 MS CORKHILL: Yes, which has never covered Queensland you see. Were it to cover Queensland - - -

PN100 THE COMMISSIONER: Yes, I hear what you say. The question I'm trying to elicit an answer from you to is what would be the consequence for a cotton producer of being subject to an award which reflected the existing NAPSAs which are a cotton specific industrial instrument? What would be the consequence?

PN101 MS CORKHILL: You mean the cotton producers who - - -

PN102 THE COMMISSIONER: The cotton producers currently award free - - -

PN103 MS CORKHILL: Yes well they - - -

PN104 THE COMMISSIONER: - - - or those who are respondent to the Pastoral Industry Award?

PN105 MS CORKHILL: Well our argument would be that the Pastoral Industry Award is the principal federal award and so they should come within - - -

PN106 THE COMMISSIONER: I understand that's your position. My question is not about what your position is but what you can tell me about the consequences of the AWU's proposals for the cotton producers that you are referring to?

PN107 MS CORKHILL: Well the response that I received from our people in Queensland was that nobody would grow cotton basically if they complied with the conditions in that award.

PN108 THE COMMISSIONER: Why would that be?

PN109 MS CORKHILL: Because the conditions just would be too harsh and they wouldn't allow for flexibility that they need to be able to produce their cotton in Queensland.

PN110 THE COMMISSIONER: It seems to me that you're talking about people who grow cotton as part of a mixed farming operation.

PN111 MS CORKHILL: As I say I'm not sure about the Queensland situation but I know that the majority in New South Wales grow it as part of a mixed operation so the farmhands need - - -

PN112 THE COMMISSIONER: All right. Let's assume we have a profile of the industry where we have some large intensive cotton production industry activity and it's true as a matter of fact. That's a notorious fact. Some ex-American and other international investors in New South Wales and Queensland operate large cotton farms.

PN113 MS CORKHILL: There are, yes.

PN114 THE COMMISSIONER: And that's all they do more or less. Then we have farmers who from time to time or possibly quite regularly will as part of their crop diversification process grow a cotton crop as well.

PN115 MS CORKHILL: Correct.

PN116 THE COMMISSIONER: Depending if the conditions are favourable, they have the available water allocation, and it fits in with their farm management strategy and market prices and the like. Now is there any reason why the intensive vertically integrated cotton producers could not be subject to an award of their own and that cotton could be crop which falls into the general mix farm broad acre concept?

PN117 MS CORKHILL: They could have an award of their own as well as falling under the AWU?

PN118 THE COMMISSIONER: No, the cotton producers, the exclusive cotton producers.

PN119 MS CORKHILL: Have a section in that award?

PN120 THE COMMISSIONER: No. There could be an award that applies to that operation but that cotton would be a crop which would apply to a mixed farming operation.

PN121 MS CORKHILL: But not as - sorry, I'm not following your line of thought, Commissioner.

PN122 THE COMMISSIONER: All right you continue.

PN123 MS CORKHILL: Well that was all I was going to - - -

PN124 THE COMMISSIONER: It's not about whether or not an award would be made. It's about the extent of any award. Every award is going to have to have some boundaries isn't it?

PN125 MS CORKHILL: Yes, but in our submission cotton has already been defined as a crop and sits quite comfortably in the PIA.

PN126 THE COMMISSIONER: I understand that. There's no question - - -

PN127 MS CORKHILL: So it can move across from any cotton NAPSA into the PIA quite comfortably especially given that it's only a very small percentage if any actually use that award. In fact - - -

PN128 THE COMMISSIONER: What I hear you saying is that if some model of regulation of the large cotton producers is to find its way into the modernised awards it's preferably as a section of the Pastoral Industry Award or its successor.

PN129 MS CORKHILL: Yes, that's correct. I mean I'm not saying, sir, that they are happy about the prospect.

PN130 THE COMMISSIONER: Who?

PN131 MS CORKHILL: The large cotton growers who are award free currently.

PN132 THE COMMISSIONER: Are you representing them?

PN133 MS CORKHILL: No, I'm not but that's the feedback I've received through the industry but the fact - - -

PN134 THE COMMISSIONER: That they're not happy about what?

PN135 MS CORKHILL: About being covered by any award but we've had to explain to them - - -

PN136 THE COMMISSIONER: The ones in Queensland who are not covered by an award?

PN137 MS CORKHILL: Yes, but that - - -

PN138 THE COMMISSIONER: All right. No, well I've noted what they've said.

PN139 MS CORKHILL: A fact of life.

PN140 THE COMMISSIONER: In Queensland they're not your members?

PN141 MS CORKHILL: Cotton Australia are our members yes but I didn't get figures from Queensland.

PN142 THE COMMISSIONER: Who are their members? You don't know who their members are?

PN143 MS CORKHILL: They're members of the National Farmers Federation.

PN144 THE COMMISSIONER: No, no, you don't know who their members are?

PN145 MS CORKHILL: No. The actual - no. The actual growers no and they don't fall under the PIA Award respondency.

PN146 THE COMMISSIONER: So your preferred position is?

PN147 MS CORKHILL: Cotton falls under - - -

PN148 THE COMMISSIONER: Cotton falls under something like the PIA. You call it that.

PN149 MS CORKHILL: Which it does already.

PN150 THE COMMISSIONER: And that those NAPSAs that apply to effectively the large cotton producers I think in New South Wales - - -

PN151 MS CORKHILL: No they are covered by the PIA under their respondency - - -

PN152 THE COMMISSIONER: Who are?

PN153 MS CORKHILL: - - - through the National Farmers Federation. Through the New South Wales Farmers Federation respondency to the PIA.

PN154 THE COMMISSIONER: Well who do the NAPSAs apply to?

PN155 MS CORKHILL: I'm sorry?

PN156 THE COMMISSIONER: Who do the NAPSAs apply to? Cotton growing cotton ..... award New South Wales?

PN157 MS CORKHILL: I don’t know but they don't apply to the big ones in New South Wales.

PN158 THE COMMISSIONER: They don't. So people like Auscott are not covered by them.

PN159 MS CORKHILL: I can't say for sure. We can undertake to find that out.

PN160 THE COMMISSIONER: So Auscott for instance is covered by the Pastoral Industry Award.


PN162 THE COMMISSIONER: All right. It might be just convenient to hear from the AWU at this point about cotton just to see where the legs are if any in the idea that there's some rationale for a discrete Cotton Award as opposed to a section in an award of a broader nature. If you'd just bear with me for a moment.

PN163 MR M DECARNE: If it please the Commission I appear on behalf of the Australian Workers Union. In respect of the cotton industry we don't understand this figure of 80 per cent being underneath the Pastoral Industry Award. The NFF weren't able to provide us with any of these figures before we met today. We do understand the issue with mixed farming and the crossover with crop. The issue for us is the protection of those employees who are currently under those NAPSAs in both Queensland and New South Wales. Protection of those

employees will not disadvantage them by bringing them under an hours of work clause as such that's in the PIA when they currently have Monday to Friday six to eight with the only averaging for an RDO. They've got overtime on weekend work. They've got overtime with provisions for the first two and a half hours and double time thereafter.

PN164 These are things that aren't contained in the PIA. Also the redundancy provisions are much superior. So we see cotton as a discrete industry in this regard. If the NFF were able to provide us with some data on how many employees are and aren't employed underneath these awards then we'd be happy to consider that at that time but our position now - - -

PN165 THE COMMISSIONER: What's your assertion about who's covered by the NAPSAs?

PN166 MR DECARNE: Commissioner, I have to take you on notice because we haven't had time to - - -

PN167 THE COMMISSIONER: Well it's going to be very hard for the Commission to consider and determine your suggestion that there ought to be a discrete Cotton Industry Award without filling in some of this information.

PN168 MR DECARNE: Yes. We'd like to see the information that the NFF have.

PN169 THE COMMISSIONER: Well I think you ought to have a look yourself too because ultimately it's your proposal that it ought to be part of a freestanding award.

PN170 MR DECARNE: There is the opposing proposal that we just bring it into the Pastoral Industry Award. We're not alone in making the proposal, Commissioner.

PN171 THE COMMISSIONER: All right. So that will be your second best.

PN172 MR DECARNE: I beg your pardon?

PN173 THE COMMISSIONER: Second best part of something which is a successor to the Pastoral Industry Award but with a part in the award applicable to cotton production. It just seems to me that's a bit difficult with all due respect.

PN174 MR DECARNE: Well we saw it fitting well with cotton ginning and also in terms of reducing the number of awards applying across the ..... We saw the cotton industry as an integrated industry with conditions applicable both to ginning and also to growing. They're quite consistent the conditions in harvesting

and ginning. They're not consistent in ginning and the crossover with pastoral. We don't see that as being consistent.

PN175 THE COMMISSIONER: Thank you. Yes, Mr Houlihan, I was going to call on you. Go ahead.

PN176 MR P HOULIHAN: Can I just say something about this - - -

PN177 THE COMMISSIONER: If you could announce yourself first.

PN178 MR HOULIHAN: Yes, Houlihan P and I'm appearing essentially for the Pastoral & Graziers Association of Western Australia and a series of cattle companies and Grazcos, but I've done a lot of work for one of the companies that is a very large cotton producer in New South Wales, ..... Pastoral Co. They bought Collie a number of years ago, Commissioner. At that time they joined the New South Wales Farmers Federation in order to become part of the - under the coverage of the Pastoral Industry Award because of the restrictions that my friend Mr Decarne has just mentioned in the Cotton Growing Award.

PN179 They are typical of the big operations with respect in that the people who work on the cotton farms work on grain production, work on cattle production and work on sheep properties in various parts and depending on the time of year and the requirements the workforce is moved around in accordance with nature's demand basically. I take issue with the point just made by Mr Decarne that the nature of this integration with the cotton industry between the growing and the ginning. I think in fact that's wrong in that there's a great deal more commonality in the work performed on cotton farms and other farms than there is between farms and the gins.

PN180 THE COMMISSIONER: Well perhaps the industry has evolved to a larger scale diversified extensive agriculture model because of investment in the land.

PN181 MR HOULIHAN: That's absolutely right and the point you mentioned earlier, sir, the critical point with cotton is the availability of water and there's a lot of these places haven't had a crop for seven years so - - -

PN182 THE COMMISSIONER: My recollection is that in the 70s and 80s there was a fair bit of investment in cotton only operations.

PN183 MR HOULIHAN: Yes.

PN184 THE COMMISSIONER: What I'm hearing you say is that the more recent model of scaling up extensive agriculture and building an economic model which is if you like an investment model of the old fashioned mixed farm which used crops

opportunistically and that that's actually the model now and cotton is really just fitting into that. Is that right?

PN185 MR HOULIHAN: You're completely wrong. You know when cotton really developed in New South Wales it was essentially American investors or American farmers who came out here because it was cheap land to grow cotton and they grew cotton and that's what they did.

PN186 THE COMMISSIONER: With pretty much unlimited water allocations.

PN187 MR HOULIHAN: Yes that's right for better or for worse. The historic development has been away from that single crop model into as you say mixed farming. It's pretty big scale mixed farming but it is mixed farming.

PN188 THE COMMISSIONER: It's more highly capitalised and extensive agricultural model.

PN189 MR HOULIHAN: Absolutely, absolutely.

PN190 MS CORKHILL: Commissioner, could I just respond to a couple of things Mr Decarne said. I did actually provide these figures in my submission on the 24th so they have been there. Cotton ginning is a huge, huge machine basically. It might operate on a couple of the very, very big farms but otherwise it doesn't happen on a farm.

PN191 THE COMMISSIONER: All right. Let's assume for the sake of the discussion that there was to be some reference to cotton production in a successor to the Pastoral Industry Award. What would you do in terms of classifications of work in for instance referring to the ginning operation?

PN192 MS CORKHILL: Well the ginning, sir, does not happen on farms generally and if it does happen on a farm it doesn't happen with the farm labour which actually would be dealing with the - - -

PN193 THE COMMISSIONER: Separation.

PN194 MS CORKHILL: So we say it doesn't fit neatly in a behind the farm gate approach which is our approach to this process. Everything that happens behind the farm gate by the farm employees - - -

PN195 THE COMMISSIONER: Any ideas of what you'd do about that?

PN196 MS CORKHILL: About cotton ginning? I don't see why it can't go under some kind of manufacturing award quite frankly.

PN197 THE COMMISSIONER: All right. So please continue.

PN198 MS CORKHILL: The fishing industry there's also been suggested an Aquacultural Award. NFF doesn't really take a view either way of the fishing industry field. They can fit within - - -

PN199 THE COMMISSIONER: Do you have any members in agriculture?

PN200 MS CORKHILL: The Agricultural Award? Well we do have fishing on farm. We have on farm yabby production, we have on farm trout production and consistent with NFF's approach that an Agricultural Award should deal with all the work done by those employees behind the farm gate. If they're going out and dealing with the fish on the farm or getting the yabbies out of the dam we say they should be covered and we've actually drafted that into our scope clause but we do not take a view either way about the fishing industry. Having said that New South Wales Farmers does have a number of oyster producers. Discussions are ongoing. Apparently the New South Wales component of oysters is only about 30 per cent of the industry so the rest of the industry is still taking a view on that and we're not really taking a position either way at this point.

PN201 THE COMMISSIONER: If there was to be some regulation of aquaculture as a distinct field of activity there's no federal award or anything like an Aquacultural Award in existence so that would be a write up pretty much from a blank page with a few NAPSAs wouldn’t it?

PN202 MS CORKHILL: Yes, it would.

PN203 THE COMMISSIONER: There's the Tasmanian Salmon Farming Award.

PN204 MS CORKHILL: Yes, but there's no federal award. There's an Oyster Award. There's a - - -

PN205 THE COMMISSIONER: Basically you're talking about some oysters and some salmon farming in Tasmania. So if you were looking at aquaculture you might include crocodile. So you know we sort of move into a David Attenborough type sort of scenario where one is searching for - - -

PN206 MR HOULIHAN: Can you lower your voice a bit so you get the - - -

PN207 THE COMMISSIONER: Anyway a catalogue of creatures to somehow or other form the point of reference in some sort of Lenayan model of award modernisation. But I think the issue there is well it's going to be up to the Commission whether it considers it's appropriate to make an Aquaculture Award

and if it goes down that path it's going to have to accept that it will be pretty much a blank page to start with, with just a little bit of information.

PN208 MS CORKHILL: And NFF's concern to repeat is that if the farm employees are dealing with the yabbies and the trout then we need them to be able to continue to do that without another award coming in and we've made that - - -

PN209 THE COMMISSIONER: That's an issue that you would take into account when you were doing that if you decided it was appropriate to do that but there are submissions obviously that the whole thing ought to be left alone and they'll have to be considered as well.

PN210 MS CORKHILL: Well NFF takes quite a strong view on that, that another award shouldn't apply within the farm gate.

PN211 THE COMMISSIONER: Yes, I understand that. The observation I just made a moment ago is that there are parties who've already made submissions this morning and have recorded and who say there just shouldn't be any award covering aquaculture.

PN212 MS CORKHILL: Well we're happy for it to be covered behind the farm gate regardless of - - -

PN213 THE COMMISSIONER: By some sort of instrument, preferably the Pastoral Industry Award or a successor like that.

PN214 MS CORKHILL: By the Pastoral Industry Award. Yes, which is what happens now. The nursery industry again I'll probably leave that to the people who are representing the Horticultural Australia Council. We again don't take a view on that. It can sit in a Horticultural Award possibly. It's not really part of our purview.


PN216 MS CORKHILL: The other ones that you mentioned were pigs. The pig industry can and does comfortably fit under the Pastoral Industry Award. The federal Pig Breeding and Raising Award only has 30 respondents and I dealt with that in my submission on 31 October and clearly delineated the figures. Where pigs are produced as part of a mixed enterprise the Pig Breeding and Raising Award doesn't apply anyway to those. So you're talking about the big ones, specialised ones, that just do pigs only.

PN217 THE COMMISSIONER: So how would you deal with them given that they're a different wage rate.

PN218 MS CORKHILL: I've had discussions with my friend about that because they do have very different hours of work.

PN219 THE COMMISSIONER: They have different hours of work and different wages rates.

PN220 MS CORKHILL: Yes, yes, and different classifications too.


PN222 MS CORKHILL: If I may at this stage point out that the classification structure that we have in our draft Agriculture Award is basically taken from the Pastoral Industry Award and we accept the fact that that's going to have to change and I'm having discussions with Mr Decarne about that. So to head that one off at the pass now.

PN223 THE COMMISSIONER: Well could you see for instance if in your model there being a part of the so called Pastoral Industry Award? I've got a feeling that if your preferences are adhered to then it's probably going to have to have a little bit of a re-jig in terms of name.

PN224 MS CORKHILL: Definitely. Look NFF started off with various other names like the Primary Industry Award and various other things.

PN225 THE COMMISSIONER: Let's not worry about the name.

PN226 MS CORKHILL: We're happy to readdress the name. That's no problem.

PN227 THE COMMISSIONER: All right. So let's assume there is X award that sort of looks like your submission at least so far and there's large intensive pig breeding operations that just focus on that industry as a speciality. They would have a part in terms of classification and hours of work.

PN228 MS CORKHILL: I'm not sure that we couldn't probably build their classifications into the Ag. Award and have general classifications just for simplicity. I don't think that's a problem but the hours - - -

PN229 THE COMMISSIONER: And that would preserve the existing wage rate?

PN230 MS CORKHILL: They have, yes.


PN232 MS CORKHILL: I think that's possible, Commissioner. I haven't put a lot of thought into classifications. The big issue that I've been dealing with limited resources has been getting the scope and the overlap issues dealt with. So I've put classifications to one side.

PN233 THE COMMISSIONER: I understand that and there are some big questions there and I'm quite grateful for all the efforts that people have made to do that. I mean we've got a lot of submissions and they're very thorough in terms of this issue, but when you're making a decision about whether or not you're going to make a standalone award or you're going to make some sort of a general award, you're immediately confronted with the proposition that if you're going to make a general award you have to go down two paths. You either have to integrate all of the existing classifications and hours from the various awards that are going to become part of the general award. You know I've had a little bit of a look at that, had a look at some spreadsheets and some tables and it's a complex problem.


PN235 THE COMMISSIONER: The alternative that you're immediately confronted with okay we'll table all these people and identify their activities within this general award. Now you may be able to integrate if that's what you're alluding to.

PN236 MS CORKHILL: We've certainly agreed between Mr Decarne and myself to have a go at that.

PN237 THE COMMISSIONER: All right. But on the other hand it may be easier to tabulate. That is definitely the easiest path. So you'd have pig breeding and raising and you'd have definition. This part applies to people who just do pig breeding and raising essentially and where the pig breeding and raising are carried on as part of general farming operations that doesn't apply and these are the hours. You know piggeries section or whatever you like to call it.

PN238 MS CORKHILL: Well I'd certainly find that more palatable, sir, than having to try and put them all together mainly because in the farming industry simplicity really is the key. They need to know you know easily and quickly what they have to do.

PN239 THE COMMISSIONER: Look I must say just at a personal level because you know I'm not a member of the Bench and I won't actually be effectively for statutory purposes a decision maker in this matter. So I'm just making my own observations. I mean I would have thought from my experience that people in the industry want to be able to see something in black and white that's unambiguous that this is what applies to them.

PN240 MS CORKHILL: Yes, correct.

PN241 THE COMMISSIONER: Now the difficulty that I see and I'll invite some further comments on this in due course is once you go integrating classifications you effectively have to rewrite them which means that you reopen the question of what people have actually been doing. They've been running their businesses on the basis that they've got these classifications and they know what they mean or at least they've given them a meaning. That means accepted by the employees. Everybody is working along fine. Why require them to read a new classification of work and make a decision about where everybody fits?

PN242 MS CORKHILL: I agree and that's I guess one of the reasons I've hesitated and concentrated on what were the more serious issues but it is something that has vexed me when I thought about it.

PN243 THE COMMISSIONER: Yes, all right. The point that I'm making is that you wouldn't be put out if in fact you achieved your objective of having this broadly based award whatever it's called, that it had some partitioning in it between the mixed farming type operation and the more intensive agricultural activities say focused on pigs or chickens where those had their discrete classifications and wage rates exactly as is without any rounding up or down or problems like that and that they had their existing hours of work.

PN244 MS CORKHILL: I think the industry would be thrilled to receive that.

PN245 THE COMMISSIONER: All right, good. That's very helpful thank you.

PN246 MS CORKHILL: The only other award that you mentioned was a Wool Industry Award. The shearing has been a part of the Pastoral Industry Award since the beginning. It sits comfortably in there because it deals or allows for both what we call cockie shearers which is the farmer shearing and it also allows for shearing contractors to come in except in Western Australia where they have their own federal shearing contractors award which has different conditions. The AWU draft I've given serious consideration to that. I feel that putting scouring and carbonising in there is going to be confusing and the way that award is drafted - I've had discussions with my friend about that too and the way it's drafted is a little bit confusing and that's agreed. If we could sort out some of the confusions. There's no real objection to a Wool Harvesting Award but our preference most certainly is that it stay within the PIA where it's always been.

PN247 THE COMMISSIONER: Just out of interest why is that? I mean there is going to be a Wool Industry Award which is basically about the taking off - potentially it's about the taking off of wool through to the point where it leaves the store for export.

PN248 MS CORKHILL: Correct and yes that - - -

PN249 THE COMMISSIONER: Now the logic of that is if you're going to have such an intensely integrated vertically integrated award and most shearing allegedly is done by contractors then why wouldn't you simply translate the shearing operation into a vertically integrated Wool Industry Award which would take the wool off the sheep's back on to a classing table into a bale, to a wool processing facility, to a wool storage facility and then to export?

PN250 MS CORKHILL: The issue is that the NFF position is very strong that what happens behind the farm gates should be covered by a specific farming award for simplicity. Classing can happen in the shed and does happen in the shed and the Wool Classing Award - - -

PN251 THE COMMISSIONER: Yes, that's what I mean.

PN252 MS CORKHILL: The Wool Classing Award can come into - it's not currently under the Pastoral Industry Award but that can easily come in there. The issue is that farmers do sometimes store wool on their premises until it's taken away. They wouldn't want to then when they've got storage facilities on their properties be covered by this award which deals with storage.

PN253 THE COMMISSIONER: But they wouldn't be in the industry of wool storage.

PN254 MS CORKHILL: Well the issue is that it's more simple for shearing the sheep - - -

PN255 THE COMMISSIONER: Just because you do something doesn't make - I mean just to perhaps inform the discussion there's a little bit of a background here that perhaps needs to be spoken about the way in which the coverage if you like or scope or application provisions of any modernised award are likely to be expressed. For a long time there's always been a difference of view between what you call an industry of the employer and that concept has a very strong meaning in Australian law. So if you design your application coverage or whatever clause you like to call it in a way where you describe the industry of the employer there's no way that a person in a mixed farming operation even if they've got a shed on the farm full of bales of wool is going to be in the industry of wool storage. You understand that - - -

PN256 MS CORKHILL: I do understand that but there is still concern that that might not be understood by others.

PN257 THE COMMISSIONER: Yes, but we have a higher order consideration. I mean we have to operate according to the way in which we understand the law will apply if these instruments and their coverage comes into dispute.

PN258 MS CORKHILL: Yes, but I guess coming back to the basic principles of this process not to increase the number of awards applying in the workplace - - -

PN259 THE COMMISSIONER: Well it wouldn't. That's the point that I'm making. If you understand the concept of the industry of the employer as a legal concept well established in Australian law with plenty of High Court cases to back it up there's no way in the world you can say that a person out in western New South Wales who's you know running sheep, growing wheat, canola, cotton, anything else, hay, maybe even with some yabbies in a dam is in the industry of wool storage. It is impossible to - - -

PN260 MS CORKHILL: No, no, that's not what I'm saying.

PN261 THE COMMISSIONER: It's a legal nonsense.

PN262 MS CORKHILL: My final point was actually to say that if the farmer who rears the sheep, drenches the sheep and looks after the sheep then has a wool harvesting - a Wool Industry Award that he then has to apply for his shearing that's increasing the number of awards applying in the - - -

PN263 THE COMMISSIONER: If he employs the shearers that's right.

PN264 MS CORKHILL: If it falls in there and of course that's something that - - -

PN265 THE COMMISSIONER: Some of them will employ the shearers and that's a point - I mean the point is well taken that that's the issue.

PN266 MS CORKHILL: That's our issue.

PN267 THE COMMISSIONER: But for the contractors it would be meaningless wouldn't it?

PN268 MR HOULIHAN: Could I make a submission there Commissioner? Paul Houlihan again. Commissioner, the industry of the employer and I agree that this is a critical point - now the industry of the employer as far as the shearing of sheep is concerned are contractors. You know either the farmer organised it himself but as you say largely it's done by contractors. Now they aren't the Elders and the Wesfarmers of this world.

PN269 THE COMMISSIONER: Yes, I know.

PN270 MR HOULIHAN: They're quite distinct from that part of the industry and their industry is a part of the wool industry if you like. It's the bridge between the farm

and the Elders and the Wesfarmers and so on. The nature of that industry - I mean you know the Pastoral Award actually was formed when his Honour Justice Higgins formed it and it was for shearing only and it wasn't until 1916 that station hands came into it. The industry of the employer who is engaged to do that work is in contract shearing. He's not in the wool industry as understood by the Elders and the Wesfarmers of this world.

PN271 THE COMMISSIONER: I think it's arguable if you put the shearing terms and conditions of employment of shearers into a Wool Industry Award and you identified it by the instrument as a part of the industry it would for the purposes of Australian law be a part of that industry.

PN272 MR HOULIHAN: I wouldn't argue the - - -

PN273 THE COMMISSIONER: The real question is, I think you're proposing a Shearing Contractors Award?

PN274 MR HOULIHAN: We're proposing a Services to Agriculture Award, Commissioner, that the shearing would be a part of.

PN275 THE COMMISSIONER: So effectively it wouldn’t be part of the Pastoral Industry Award or its successor?


PN277 MR A LONGLAND: Could I briefly put a statement, Commissioner, on a single matter. I appear for Horticultural Australia ..... who are employer associations. Some effort has been put by my client into corralling as it were the interests of its various members and endeavouring to meet the requirement that there's a reduction in the number of awards in the system. That's been an approach which has frustrated some and a bit difficult for some to accept and perhaps the group of employers that are most ..... to be the subject of their own award are the nursery employers and I've referred to some - - -

PN278 THE COMMISSIONER: Just out of interest why are you getting a go now?

PN279 MR LONGLAND: Because you broached the topic of having a separate award for nurseries.

PN280 THE COMMISSIONER: Yes, but I was hearing the NFF on this with some interjections and - - -

PN281 MR LONGLAND: Sorry, Commissioner, I thought my friend had finished.

PN282 THE COMMISSIONER: It's all right. You'll get a go soon. And I've read your submission and I understand the point that you want to make about that but it's a little bit of a distraction while we're struggling with what in Australian history is a rather colourful subject which is the terms and conditions of employment of shearers.

PN283 MS CORKHILL: Indeed it is. To continue on the wool industry there are other issues that have been raised by the Western Australian shearing contractors.

PN284 THE COMMISSIONER: Yes, that's about terms and conditions of employment rather than where they should be in the award.

PN285 MS CORKHILL: Yes, so we're just sticking to coverage.

PN286 THE COMMISSIONER: But they say it should be in the Pastoral Industry Award but with their hours of work and weekend work arrangements preserved, isn't that right?

PN287 MS CORKHILL: Yes. Just to finish with that look with the award flexibility clause and the flexibility that's already in the Pastoral Industry Award, the federal Pastoral Industry Award for shearing - - -

PN288 THE COMMISSIONER: You think it's a just a bit alarmed do you?

PN289 MS CORKHILL: I think and again I've been in discussions with my friend about that and I've agreed - we had a meeting with all of the shearing interests a week or so ago in Dubbo and from that came the idea that we'd perhaps try and redraft these flexibility provisions which we already have along with the Commission's draft clause to try and accommodate all parties and I think that's possible.


PN291 MS CORKHILL: But to continue - - -

PN292 THE COMMISSIONER: Yes, just before you do - I don't want to ask you any more about this question of whether the shearers rates et cetera ought to be here there or anywhere. You said a couple of things that are alluding to the idea that you've got some work in progress.

PN293 MS CORKHILL: Yes. Yes, we certainly have.

PN294 THE COMMISSIONER: For that to be useful to the Commission because obviously we have an internal timetable we're working to as well. There is a very

large bench whose time has to be coordinated in order to deal with all of this and there's the whole stage 2 consultation process feeding into that. So you know we've got some logistical problems and if you're running to a timeline that's parallel to what we're doing it may not get to the point of consideration. So what have you got in mind?

PN295 MS CORKHILL: Mr De Carne and I discussed this yesterday and we thought probably we could sort our differences out within the next fortnight but if that doesn't suit the Commission's timetable we'll have to do it sooner.

PN296 THE COMMISSIONER: Well I can’t be certain of this because we are constantly coping with changes that affect our timing, but I think that if you want to be certain of having whatever this work that you’re doing up and about and in front of the eyes of the Commission when it starts the deliberative process in relation to the stage 2 consultations, you’re probably on a shorter timeline than you think. You will probably need to get these things sorted out within that time. It’s shorter than two weeks from today, but towards the end of the period you’ll probably squeak in.

PN297 MS CORKHILL: So if we had something to the Commission say by the 10th.

PN298 THE COMMISSIONER: Yes, you’ll give yourself a much better chance of the specifics of your proposals being under active consideration from the commencement of the deliberation period.

PN299 MS CORKHILL: Thank you. I’m very grateful for that.

PN300 THE COMMISSIONER: The problem is if we have Bench conferences, decisions will start to be taken and I’ve got a feeling the Bench is not going to want to go around twice on any particular decision.

PN301 MS CORKHILL: No, fair enough.

PN302 THE COMMISSIONER: Because of the volume of decisions to be made. You start biting into that and the whole process will fall apart.

PN303 MS CORKHILL: I’m very grateful for that indication.

PN304 THE COMMISSIONER: Very well.

PN305 Mr Houlihan.

PN306 MR HOULIHAN: Commissioner, just excuse me. To get an indication of your thinking, sir, in relation to what is an important issue that we have advocated

about, the service to agriculture. As you said earlier we’re advocating essentially a separate award that covers that area. The NFF is advocating a position that it has a scope clause that essentially addresses the problem. We’ve been a bit of a nigger in the woodpile in terms of the shearing part of this consideration, because of this issue and how that affects. Is there any capacity to get some sort of indication from the Commission about the appropriateness of that part of the NFF scope clause prior to that time, in order that that would then clarify - - -

PN307 THE COMMISSIONER: No. No, that’s not possible because I can’t speak on behalf of the Bench.

PN308 MR HOULIHAN: All right.

PN309 THE COMMISSIONER: If I was deciding this matter on my own, these proceedings, I would give you an indication of my thinking but I just have to report to the Bench and I haven’t done so as yet. I have no idea what their views might be. They might have a totally original view which fits with some other considerations they’ve got in mind. I don’t know.

PN310 MR HOULIHAN: Thank you for your frank - - -

PN311 THE COMMISSIONER: But what I can do is suggest that what I think is fairly evident through most of the submissions, in some cases very clearly, in others by implication, is that people have a hierarchy of preferred positions. If you would wish to do that, could you provide it by the 10th as well?


PN313 THE COMMISSIONER: So if you’re preferred position is A, but your fallback is B, it would be useful to know that as well.

PN314 MR HOULIHAN: Thank you, sir.

PN315 THE COMMISSIONER: Yes, please continue, Ms Corkhill.

PN316 MS CORKHILL: One of the industries that was not mentioned was the wine industry.


PN318 MS CORKHILL: The NFF has difficulties with the concept of a Wine Industry Award that covers all grape growing for vine, and I explained that in both of my written submissions.

PN319 THE COMMISSIONER: Is this a matter of the way in which the coverage of any wine industry in so far as it extends into viticulture is expressed in its scope?

PN320 MS CORKHILL: Yes, it is. Yes.

PN321 THE COMMISSIONER: So if a delimitation of grape growing was able to be determined, which made it absolutely clear that this did not apply to vineyards other than those that were exclusively or predominantly maintained for the purpose of providing grapes to the wine industry, that would relieve your concern?

PN322 MS CORKHILL: Well there is that concern and that covers the people who are in Schedule A to the current Horticultural Industry Award, and that would address the issue for them certainly. But the Horticultural Industry Award Part B - Schedule B and C respondents have always been able to cover grape growing for wine in any case under that award. So you’ve got the people who grow grapes just for wine and then you’ve got the people who grow grapes that can go to wine, but can go to table or dried. So we do still have demarcation issues, if you will.

PN323 THE COMMISSIONER: Well if that was demarked, the idea of appending wine based viticulture to a Wine Industry Award.

PN324 MS CORKHILL: Look, that’s something that’s still being discussed and certainly VFF and Tasmania Farmers and Graziers Association, who have a large number of Schedule B and C respondents, who do indeed both grow grapes for wine under the Horticultural Industry Award and also process them into wine as part of that award. So there are issues there. We are attempting to have discussions about that but that’s one of our serious difficulties in this process, is what we do with those people.

PN325 THE COMMISSIONER: All right, well I suspect there’s a lot of clamour for a Wine Industry Award with integrated viticulture in the submissions, and you will probably have a look at them and you’ll see that.

PN326 MS CORKHILL: Yes, so certainly what you said about Schedule A respondents, those who grow for table, dried or wine, it would suit those respondents, those people; but not necessarily those others in Schedule B and C.

PN327 THE COMMISSIONER: Sorry, and who are the others?

PN328 MS CORKHILL: The Wine Industry Award was a number of awards that put together in about 2000. The Dried Fruits Award covers about 4500 named respondents up through the Murray in three states basically. Now they, depending on the season, will send their grapes, apart from their specific wine grapes which is like Chardonnay and Shiraz and so on, other grapes like sultanas and a number

of other varieties can either go into dried fruits, into table grapes or into wine, depending on the price. So when they’re doing their training and pruning and so on, they don’t know where their grapes are going to go, so the award we need to have is able to cover both - - -

PN329 THE COMMISSIONER: But I mean haven’t given careful consideration as a draftsperson to what I said a moment ago, but I would have thought that that covers the demarcation for everybody.

PN330 MS CORKHILL: It does.

PN331 THE COMMISSIONER: That is to say that if the viticulture which was integrated into a Wine Industry Award was viticulture carried on exclusively for the purposes of the wine industry, or predominantly for those purposes, then that would leave everybody who is growing sultanas and Chardonnay and the wines that are used for table grapes, you know those different - there are many different varieties obviously.


PN333 THE COMMISSIONER: Some are suitable for eating, some are suitable for wine, but if you’ve got a vineyard in which you’re growing lots of different varieties, you’re not growing them predominantly for the wine industry.

PN334 MS CORKHILL: That’s right. That’s fine, we can deal with that issue.

PN335 THE COMMISSIONER: You will be happy with that.

PN336 MS CORKHILL: I’m happy with that. It’s just that there are a large number - - -

PN337 THE COMMISSIONER: I don’t think the parties that are keen on a Wine Industry Award want to go any further than that, but we’ll hear from them about that.

PN338 Is there anybody here who is putting a proposition for a Wine Industry Award?

PN339 MR DECARNE: Yes, Commissioner. We support a Wine Industry Award.

PN340 THE COMMISSIONER: The only question I have for you, to save time, because I’ll pick the level of support up during the course of the reading, but you heard the outline, if you like, of a demarcation.

PN341 MR DECARNE: Yes.

PN342 THE COMMISSIONER: Between vineyards which are essentially broadly based and those which are exclusively maintained for the wine industry or predominantly for that purpose.

PN343 MR DECARNE: I did hear the outline, yes.

PN344 THE COMMISSIONER: Is that satisfactory?

PN345 MR DECARNE: Well in our opinion no, it wouldn’t be, Commissioner.

PN346 THE COMMISSIONER: How far do you want to go?

PN347 MR DECARNE: We would see all wine growing within a Wine Industry Award, wine grape growing.

PN348 THE COMMISSIONER: Well what about up on the river, the point just made by Ms Corkhill, that you have got this vineyard that has got 20 or 30 different varieties in it, and you grow grapes that you send to a juicing factory; you’ve got grapes that you pick and send to a fruit market; you’ve got some grapes like Crouchon that if they’re good enough might be accepted by a winery, but if they’re not good enough would not be accepted by a winery, and you will know whether or not they’re suitable for that purpose; and you might have grapes that you know are more suitable for drying, for dried fruit purposes, and you diversify your crop in this way? You’re not really producing for the wine industry, are you?

PN349 MR DECARNE: No, Commissioner, we understand that a lot of work has been done on this by our friend from SA Wines and they’ve consulted broadly.

PN350 THE COMMISSIONER: All right, well maybe I’ll hear from them.


PN352 THE COMMISSIONER: Is there someone here from SA Wines?

PN353 MS HILLS: Sarah Hills from the South Australian Wine Industry Association.

PN354 THE COMMISSIONER: Ms Hills, Sarah Hills?

PN355 MS HILLS: Correct. I guess I won’t reiterate our submission that we have lodged with you. In relation to the aspect that we’re talking about, I guess the issue for us is that our position A is that we would like a Wine Industry Award

that is clear in that if you grow grapes then yes, you are covered by a Wine Industry Award. However, I guess there’s a recognition that there are, as you have identified, farmers who grow a number of varieties of grapes, and I’ve got some statistics in relation to the fact that about 10 per cent of the wine grapes produced in Australia actually are multipurpose grapes for that purpose. The balance of it is all wine grapes, which I’ve got a submission that I can hand up the Commission.

PN356 THE COMMISSIONER: Is this in a supplementary submission, is it?

PN357 MS HILLS: Correct.

PN358 THE COMMISSIONER: Yes, you can do that now. We’ll post it on the website. Other parties can read it if they wish.

PN359 MS HILLS: Apologies for the lateness of it.

PN360 THE COMMISSIONER: That’s all right.

PN361 MS HILLS: I’ve got limited copies Ill give to NFF as well.

PN362 THE COMMISSIONER: Yes, well give copies to whoever you can.

PN363 MS HILLS: Yes.

PN364 THE COMMISSIONER: If you’ve got them here you might as well use them, but they will be up on the website tomorrow.

PN365 MS HILLS: Essentially, your Honour, this - - -

PN366 THE COMMISSIONER: Yes, we don’t want to go through this now.

PN367 MS HILLS: All right.

PN368 THE COMMISSIONER: I’ll read it.

PN369 MS HILLS: It only goes to that aspect of it which is raised by the NFF in both their submissions, about many grape growers.

PN370 THE COMMISSIONER: Yes. I think the question, the $64 question for you is let us assume that some integration of viticulture which is carried on for the

purposes of producing grapes for the wine industry is appropriate within the Wine Industry Award.

PN371 MS HILLS: Yes.

PN372 THE COMMISSIONER: The question for you is did you see any difficulty with the demarcation which the NFF would like to see in that event?

PN373 MS HILLS: Your Honour, I guess the issue for us has been the clarity of that definition and there has been no definition provided in any draft awards, other than the preparation of vineyard products.

PN374 THE COMMISSIONER: But you heard what I said?

PN375 MS HILLS: Which was just for grape growing.

PN376 THE COMMISSIONER: What I said was that if the Wine Industry Award expressed itself so that it included viticulture carried on exclusively for the purposes of supplying grapes to the wine industry, or predominantly for that purpose, then anybody who had an orchard or agricultural holding, say in an irrigation area where they’re growing oranges, other fruit, various grapes, they’re not doing that. They wouldn’t be covered by that award.

PN377 MS HILLS: No.

PN378 THE COMMISSIONER: Even if they had a bit of a block down there that had some Chardonnay on it.

PN379 MS HILLS: We would agree with your Honour. I guess the issue is the crossover is where they start producing wine.

PN380 THE COMMISSIONER: Well if they produce the grapes exclusively for the wine industry or predominantly for it.

PN381 MS HILLS: Yes, if I understand your Honour correctly then - - -

PN382 THE COMMISSIONER: Because if you can accept that line of demarcation, that eliminates a lot of friction between you and the NFF.

PN383 MS HILLS: Well our submission does say that if you are minded to do that, then the clarity of that would be certainly welcomed.

PN384 THE COMMISSIONER: All right. Good, thank you very much. You don’t want to add anything more to what you have written and put in so far?

PN385 MS HILLS: No. It’s all said by my submission.

PN386 THE COMMISSIONER: Very good. Thank you very much, Ms Hills.

PN387 Mr Ferrari, you’re in this too.

PN388 MR T FERRARI: I appear for the LHMU, Commissioner.


PN390 MR FERRARI: Just in respect of the wine industry matter we have made submissions in this matter and I’ve heard what you had to say about trying to demark the issue of wine producing grape growers and non wine producing grape growers, and possibly how those growers actually change their designation from year to year, which I think is the issue that depending on the price - - -

PN391 THE COMMISSIONER: Well some of them might, yes.

PN392 MR FERRARI: As NFF have said, depending on the price, one year they might throw it all towards dried fruit.

PN393 THE COMMISSIONER: Depending on the quality of the crop. Some of it will be accepted by a winery, some of it won’t.

PN394 MR FERRARI: That’s right. Commissioner, I won’t go too much further on about this but the words you did mention about predominantly, I think we would find favour with. We would have some difficulty with exclusively.

PN395 THE COMMISSIONER: There are plenty of vineyards that are carried on exclusively for - all the big brands have vineyards that do that, and then you go into valleys like the Barossa and the Clare, and you’ll find vineyards that do not. They might sell, you know, a little bit of product for something else but overwhelmingly year on year they’re growing Riesling or whatever it is in the Clare valley for the wineries. If you looked at the industry of the employer, that would be their industry.

PN396 MR FERRARI: I appreciate your comments, Commissioner, but the word exclusively sometimes - - -

PN397 THE COMMISSIONER: Well I have said predominantly.

PN398 MR FERRARI: Yes, and we would adopt predominantly and support that sort of designation going forward.

PN399 THE COMMISSIONER: Very good.

PN400 MR C TAYLOR: Commissioner, Taylor initial C from the Australian Industry Group.

PN401 THE COMMISSIONER: You want to talk about the wine industry?

PN402 MR TAYLOR: Yes, Commissioner.


PN404 MR TAYLOR: Just picking up your point there.

PN405 THE COMMISSIONER: You like the idea of a Wine Industry Award, as I read your submission.

PN406 MR TAYLOR: That’s right, and we have put some work into drafting a scope clause for the horticultural award which deals with the overlap in the wine industry.

PN407 THE COMMISSIONER: You. Sorry, forgive me if it was in your submission. I don’t recall that particular aspect.

PN408 MR TAYLOR: It’s in the draft award that we have put forward.

PN409 THE COMMISSIONER: It’s in the draft award.

PN410 MR TAYLOR: That’s right, and the word that we adopted was where the grapes are principally grown for the manufacture of wine, which again picks up the predominantly - - -

PN411 THE COMMISSIONER: It’s a matter of the form of words, isn’t it?

PN412 MR TAYLOR: Correct Commissioner.

PN413 THE COMMISSIONER: If this eventuates then that being an exposure draft of some sort at some time, and the parties would have still have the opportunity to feedback to that.

PN414 MR TAYLOR: Yes. The only additional point I would make to that was in discussions since we submitted that draft award was that perhaps the manufacture of wine does not cover where the grapes are processed to a certain degree down the path of the manufacture of wine, and how that issue might be picked up.

PN415 THE COMMISSIONER: Explain this to me a little bit further, please.

PN416 MR TAYLOR: So the grapes are processed in some way that does not actually lead to the manufacture of wine at that point for that employer, whether the word manufacture which is picked up from the current Wine Industry Award should perhaps be expanded to processing.

PN417 THE COMMISSIONER: Production.

PN418 UNIDENTIFIED SPEAKER: Processing.

PN419 THE COMMISSIONER: Production.

PN420 MR TAYLOR: Correct.

PN421 THE COMMISSIONER: In the process of production.

PN422 MR TAYLOR: That’s right.

PN423 THE COMMISSIONER: Of wine and wine products.

PN424 MR TAYLOR: Yes Commissioner.

PN425 THE COMMISSIONER: Right. Just before we - sorry.

PN426 MR MCMAHON: I was about to see if it suited the Commission to move to aquaculture, so obviously - - -

PN427 THE COMMISSIONER: Not just yet. It will be coming up soon. If the Bench was minded to take on the proposition for a vertically integrated Wine Industry Award it seems to me that there is something to be said that that’s not this stage. The parties views on that? It’s a stage 3.

PN428 MR DECARNE: Commissioner, we would see that as being properly deferred to stage 3 because of the crossover with food and beverage manufacturing.

PN429 THE COMMISSIONER: Yes, but there are a whole lot of other things that have to be taken into account apart from viticulture, and everything has to be locked together.

PN430 MR DECARNE: Just the grape growing aspect at the moment. Besides that there - - -

PN431 THE COMMISSIONER: So if this view found favour then there would be some sort of expression in the statement that it’s desirable that there be a level of integration of viticulture and that should be dealt with, with the rest of the wine industry, in stage 3 provided that the demarcation that has been identified is preserved.

PN432 MR DECARNE: Similar to the provisional stage 3 Sugar Industry Award.


PN434 Mr Ferrari, your view?

PN435 MR FERRARI: We would support that, Commissioner. We’re only here actually because the Horticultural Industry Award 2005 has the words “The preparation of vineyard products”. That’s the only set of words, as I understand it, that has drawn us here, rather than interstate .....


PN437 MR FERRARI: So that will need to be dealt with, and I think people have made submissions on the lack of clarity of those words.


PN439 MR FERRARI: In horticultural.

PN440 MR TAYLOR: Commissioner, the Australian Industry Group supports the stage 3 process for the Wine Industry Award.

PN441 THE COMMISSIONER: NFF?

PN442 MS CORKHILL: The preparation of vineyard products is used extensively in Tasmania and Victoria for the production of wine in the boutique - - -

PN443 THE COMMISSIONER: All right, we’ll come back to that at the stage 3 concept.

PN444 MS CORKHILL: The stage 3 concept, provided we can sort out the demark issues..

PN445 THE COMMISSIONER: Do you agree?


PN447 THE COMMISSIONER: Ms Hills?

PN448 MS HILLS: Yes, we would agree.

PN449 THE COMMISSIONER: Very well. All right, let’s go the preparation of vineyard products. What is the issue there?

PN450 MS CORKHILL: It is used extensively - - -

PN451 THE COMMISSIONER: Other than the production of wine.

PN452 MS CORKHILL: - - - for the production of wine.

PN453 THE COMMISSIONER: Vineyard products for the production of wine; what are they, apart from grapes?

PN454 MS CORKHILL: It’s a separate clause in the scope clause which says “and the preparation of vineyard products”. That clause has been interpreted by the people who use it to cover the production of wine generally in boutique wineries, where the labour from the vineyard, the year-round labour from the vineyard, moves across into the - - -

PN455 THE COMMISSIONER: That’s an issue that would have to be considered in the stage 3, if what we’re contemplating comes to pass, isn’t it?

PN456 MS CORKHILL: I’m happy with that.

PN457 THE COMMISSIONER: So you have to leave it. You would have to, sort of, put a question mark over it at least, if not leave it out of the horticultural exposure draft and say that it will be finalised in stage 3.

PN458 MS CORKHILL: I’m happy with that.

PN459 THE COMMISSIONER: Good, thank you.

PN460 MR FERRARI: Happy with that, Commissioner.

PN461 THE COMMISSIONER: All right. Well everybody seems to be of a like mind about that. Please continue, Ms Corkhill.

PN462 MS CORKHILL: I think I’ve covered all of the awards that I wrote down. The only other one is the Poultry Industry Award. That’s covered by the Pastoral Industry Award Common Rule in Victoria. There are some various poultry awards in New South Wales and I think one in Queensland, NAPSAs basically. The same as the - - -

PN463 THE COMMISSIONER: So the alternative is a Poultry Industry Award or a partive.

PN464 MS CORKHILL: Well it should be able to sit very comfortably under the PIA because it does in Victoria, and that was a consent decision to - - -

PN465 THE COMMISSIONER: Yes, but you would have a partive.

PN466 MS CORKHILL: Again, we could easily hive off a classification that suited that, but it’s not a problem.

PN467 THE COMMISSIONER: So the model is from your perspective don’t have these various awards. Have parts of a more general award.

PN468 MS CORKHILL: Absolutely happy to do that.

PN469 THE COMMISSIONER: Those parts would preserve the existing wage rates and hours of work.


PN471 THE COMMISSIONER: For their particular industry sector applications.

PN472 MS CORKHILL Yes. I don't think I had any other awards on my list. Thank you, Commissioner.

PN473 THE COMMISSIONER: The gentleman from the aquaculture industry.

PN474 MR F MCMAHON: F McMahon, if it please the Commission. I represent the Tassal Operations Pty Ltd.

PN475 THE COMMISSIONER: You farm salmon down in Tasmania.

PN476 MR MCMAHON: We're the salmon, that's it, and also the actual Salmon Growers Association of Tasmania and the Australian Prawn Farms Association. In terms of the structure, we don't have any problem with being part of the General Agricultural Award and would support where I think this discussion is going, and that is the classifications and rates in an appendix of some sort or compartmentalised. The only issue probably is the hours of work which we would argue fell out of a NAPSA that was put together as a processing award to begin with, is now a combined Processing and Agricultural Award and is quite unsuitable for the purposes of, in this sector - - -

PN477 THE COMMISSIONER: I've read your submission about hours and you explain how much flexibility you need for the reasons which were set out there. Obviously they're quite cogent when you're looking after fish 24 hours a day, seven days a week, you know, when you actually need to do things can be any time really, I suppose is what you're saying, isn't it?

PN478 MR MCMAHON: Yes.

PN479 THE COMMISSIONER: So what do you want?

PN480 MR MCMAHON: Really, the main point which has come up in a couple of places is this demarcation. We do not want any of the processing that is contained in the NAPSA that's been put up now as the model award, we do not want that in there at all.

PN481 THE COMMISSIONER: What hours of work do you want? I can't recall that you specified the details of the hours of work arrangements in your submission. Did you? Have I overlooked that?

PN482 MR MCMAHON: Yes.

PN483 THE COMMISSIONER: You do?

PN484 MR MCMAHON: Yes, we did, but the main purpose for this submission, rather than go through the whole document at this time, or even summarise it, is that the processing sections we believe should be dealt with in processing and the aquaculture can fit under agriculture. With the hours of work we said it could either be a modified hours of work clause as used in pastoral, which is very similar to the work nature that operates on salmon farms - - -

PN485 THE COMMISSIONER: You want 152 over a month. Is that right?

PN486 MR MCMAHON: 152, yes.

PN487 THE COMMISSIONER: Rostered over a month. Saturday and Sunday work, what rate of pay?

PN488 MR MCMAHON: Time and a half, except on a Sunday when they're doing work other than feeding or husbandry work.

PN489 THE COMMISSIONER: That's a new submission, isn't it? Is that a new submission? Do you have your original submission?

PN490 MR MCMAHON: I do. What it was in reference to was, as the Pastoral Award hours of work clause currently stands, it refers particularly to what I call pastoral/agricultural activities. Our proposal was some modified form of that to deal with the aquacultural, and what it says is:

PN491 Currently in the Pastoral Award is words to the effect that overtime shall be adjusted as follows: time off, or if paid, effectively paid at time and a half except for work performed on a Sunday which isn't associated with the feeding or husbandry of animals.

PN492 THE COMMISSIONER: What were the two classes of work on Sunday be paid for at?

PN493 MR MCMAHON: Sorry?

PN494 THE COMMISSIONER: You've identified two classes of work on Sunday.

PN495 MR MCMAHON: Yes, that's consistent with the Pastoral Award clause as I understand it.

PN496 THE COMMISSIONER: What would they be paid at? Class number 1 is?

PN497 MR MCMAHON: Class number 1 is people who are engaged in husbandry activities or feeding of animals and they would be paid time and a half, or if they're brought in to fix fences and carry out other type activities which aren't associated with the husbandry of animals, then they'd be paid double-time. I imagine it was there to stop - - -

PN498 THE COMMISSIONER: Is this proposal contained in writing in your submission?

PN499 MR MCMAHON: It was sent from Tassal. I'm on page 15.

PN500 THE COMMISSIONER: You see, I'm not quite clear on something to do with page 15 and since you're talking here now and I've got a feeling you don't want to stay all day and listen to every - - -

PN501 MR MCMAHON: Sorry?

PN502 THE COMMISSIONER: I have a feeling that you don't want to stay here all day and listen to a thousand pigs and chickens and things.

PN503 MR MCMAHON: No, that's okay. I'm happy to do that. I just wanted to get - - -

PN504 THE COMMISSIONER: If you do, that's fine.

PN505 MR MCMAHON: When we're talking structural, there's two issues, one is processing out and the other that we would be happy to fit into an agricultural award with an appendix to deal with any special situations.

PN506 THE COMMISSIONER: Since we've dived into this now, I'm not quite sure from your submission, and I'd like you to have a look at it, where I find what the rate of pay for the ordinary time hours on Saturday and Sunday would be.

PN507 MR MCMAHON: It's intended to be a modified version of the Pastoral - - -

PN508 THE COMMISSIONER: Are you proposing 152 over seven by four?

PN509 MR MCMAHON: Over a four week period, yes.

PN510 THE COMMISSIONER: Over seven days, the ordinary hours can be worked on any day of the week up to 152 and on Saturday the ordinary hours will be paid for at time and a half. Is that what you're saying?

PN511 MR MCMAHON: No.

PN512 THE COMMISSIONER: That's what I'm trying to get clear. Perhaps we'll come back to it later.

PN513 MR MCMAHON: Yes, I think so. Unless I'm misinterpreting what the Pastoral Industry Award is providing, we are seeing it as a 152 hour worksite. When there's over 152 - - -

PN514 THE COMMISSIONER: You can work your ordinary hours on Saturday and Sunday without penalty.

PN515 MR MCMAHON: Saturday; Monday to Saturday. On a Sunday you'll either get time a half or if you go past 152 you'll get time and a half anyway, but if you're engaged in work other than husbandry or feeding work, you'll be paid double-time on Sunday.

PN516 MS CORKHILL: Could I clarify the Pastoral Industry Award hours clause. The Pastoral Industry Award hours clause is 152 hours over four weeks, then overtime kicks in and Saturday pay and Sunday pay only kick in after that 152 hours has been worked. Then it's time and a half - - -

PN517 THE COMMISSIONER: I just wanted to be clear what was being requested in aquaculture.

PN518 MR MCMAHON: Yes, and it seemed to us we're in the business of farming as well and therefore - - -

PN519 THE COMMISSIONER: Anyway, we're onto a different subject. I thought that you might have wanted to get going. I guess the question to you is, in light of the fact that it appears that there's various aquacultural activities going on, and probably you'd know better than most, that this in Australian economic history is a relatively recent development and it appears to be a growing industry that is likely to employ more and more people as the intensification of aquaculture increases. One of the questions which the Bench will have to ask itself is whether or not it is appropriate to create an Aquaculture Award.

PN520 MR MCMAHON: We do not have an objection to that. We'd be happy to do that but at this point, if the intent was to try and bring agriculture together we see the farming activities we engage in as very similar to any other farmers and the processing activity is very similar to any other fresh food, live meat, if you like, processing.

PN521 THE COMMISSIONER: Let's assume that processing isn't part of the picture. Let's say that's food and beverages and manufacturing. We're talking about the actual growing of the aquatic creatures. You concern would be if there was an award with a broad scope, the issue is the matter of hours really and the rates of pay currently provided for.

PN522 MR MCMAHON: Yes, that's the issue.

PN523 THE COMMISSIONER: Let's come back to hours, rates of pay and overtime and things like that later according to the agenda.

PN524 MR MCMAHON: Thank you. Ms Corkhill, are you finished for the time being on this subject of the scope?

PN525 MS CORKHILL: There's just one other award that is on the list, the Clerical and Salaried Officers Award. I don't know if this is the appropriate time just to deal with our views on that one as well.

PN526 THE COMMISSIONER: You don't want that on farms, do you?

PN527 MS CORKHILL: No, we don't. That was going to be my submission. We have no interest.

PN528 THE COMMISSIONER: You don't want clerk, class 1?

PN529 MS CORKHILL: It just doesn't happen behind the farm gate and consistent with our approaches - - -

PN530 THE COMMISSIONER: It would be interesting trying to work out at the kitchen table what classification a clerk fell into if there was a clerk, a very exciting creature in the circumstances.

PN531 MS CORKHILL: Correct, no interest at all.

PN532 THE COMMISSIONER: I think we might take a short break. Sorry, somebody is standing up behind you. You're going to be here all day Mr - yes, please approach.

PN533 MR S BENNISON: Commissioner, my name is Simon Bennison, the CEO of the National Aquaculture Council. Have we finished with aquaculture or have we got more opportunities?

PN534 THE COMMISSIONER: No, it's a good opportunity for you to step forward if you want to stalk about structure and coverage.

PN535 MR BENNISON: If I could, please.

PN536 THE COMMISSIONER: Yes, go ahead.

PN537 MR BENNISON: Thanks for the opportunity. I must firstly start by saying that our organisation covers about - close to 100 per cent of the various methods of production that are out there with aquaculture and it is a fairly structured industry. As far as the shellfish growers, we've heard about the oyster growers, there is a national body which looks after the shellfish industry called the Shellfish Industry Council of Australia and that, too, is a member of our organisation. Most of these species groups have state councils, some of which have already been mentioned. The one in New South Wales in particular is part of the National Farmers Federation as well as ourselves.

PN538 One thing I would really like to emphasise is that the production systems in aquaculture in the industries themselves are very distinct and when you look at, for example, farming abalone versus farming salmon, which you've heard - - -

PN539 THE COMMISSIONER: Yes, it's a bit different to herding cattle in the central desert, isn't it?

PN540 MR BENNISON: Very different, extremely different, given the fact that some of these are terrestrially based, are on that base facilities extracting serious volumes of water in a recycled format. Other are very much at sea, offshore and some are very much closely integrated with capture fishing operations as well, including pearling and tuna and my colleague is going to brief you on the tuna again shortly.

PN541 That aspect really has to be considered when trying to cover off on these various industries and most of those have operated very independently and, as you've mentioned earlier, are seen under the structure of no awards basically. Those that do have, either under natural arrangements or whatever, are complicated by the fact they have very strong family partnership structures and also are covered under very strong contractual service agreements too by outside service providers. Like shearing, a lot of people come in, they'll see, they'll harvest and do the various operations within a farm.

PN542 THE COMMISSIONER: There is a vertical integration which is obvious in the industry, is there?

PN543 MR BENNISON: Correct.

PN544 THE COMMISSIONER: You get scientific services, no doubt, too, which are - - -

PN545 MR BENNISON: This is true, particularly from the R and D sector but the fact is that vertical integration isn't a set model across every industry group and that's the complexity about it.

PN546 THE COMMISSIONER: Looked at as a whole it is an integrated industry. Is that right?

PN547 MR BENNISON: Correct.

PN548 THE COMMISSIONER: For instance, some people will both grow and process product or catch and process?

PN549 Mr BENNISON: Some will but the most - like farming, we're still looking at it as being - taking the approach of looking at it from a farm gate operation through production. The process inside of it, agreeing with our colleague here, in the context of trying to keep very separated from the processing component.

PN550 THE COMMISSIONER: Let's assume that happens, the actual growing of the creatures is the scope of our discussion and the processing of a fish or a shellfish or whatever, is a different area for the purposes of the Commission's process, let's assume that.

PN551 MR BENNISON: I think one of the key aspects for us to consider when the Full Bench will be able to make its decision on the award process as it applies to aquaculture because for us we are still trying to get out head around a number of the issues and its implications. Should some of these separate industries actually come under an award process, they are still in the process of reviewing the current submissions that have been made before you so that they understand what the implications are to their day-to-day operations and we are very keen to make sure we just get a little bit more lead time in being able to finalise just where this industry sits.

PN552 THE COMMISSIONER: What I'm hearing you say is in the circumstances this will probably require - if there is going to be an Aquaculture Award or if there is any sort of extension of regulatory arrangements, then that requires more consideration, work and input and interaction from the industry toward the Commission. Is that right?

PN553 MR BENNISON: Correct, yes.

PN554 THE COMMISSIONER: That's what you're seeking, is it? That will be noted. I mean, one option, of course, that arises from that is,, given the particular circumstances and the relatively sparse regulatory landscape and the development of the industry and its diversity, that it may be necessary to consider the matter further than within the scope of stage 2. I'll report that to the Bench for their consideration. Is that what you want me to do?

PN555 MR BENNISON: Yes, if you could, Commissioner. At the moment we still have a lot more aspects of this to be considered and which awards are most appropriate, whether some industry sectors actually consider themselves to fit in with an award and again, obviously, given the complexity of the structure within those industries with partnerships and contractors and so forth, just how that's going to be accommodated in the future, in particular, some of our industry sectors that are, again, as we mentioned, without awards at this present time.

PN556 THE COMMISSIONER: Thank you for that submission, Mr Bennison.

PN557 MR D MENDELSSOHN: Commissioner, Mendelssohn, initial D, for the CPSU. I may not need to come back after the break because if I correctly understand what the various parties, both from the employers' end of the table and from the union end of the table, are proposing that regulatory or marketing bodies that are in some way an emanation of a state government are not seen as coming within the purview of any of the awards that might be made as part of the Agriculture Award.

PN558 THE COMMISSIONER: Maybe you'd like to, if you haven't already, send us a set of exclusions.

PN559 MR MENDELSSOHN: I think our written submissions draws attention to the essential - - -

PN560 THE COMMISSIONER: Have you got the actual table of exclusions? It would be useful to have that, if you're seeking exclusions along those lines.

PN561 MR MENDELSSOHN: Yes, I can put those in the submission.

PN562 THE COMMISSIONER: Probably the NFF is in a better position to know the answer to this. There are agricultural colleges and various other activities like the Renmark Irrigation Trust. You don't want catch them, do you?

PN563 MS CORKHILL: I marked all those off on an annexure to our submission.

PN564 THE COMMISSIONER: You don't want to catch those and - - -

PN565 MS CORKHILL: Certainly not.

PN566 THE COMMISSIONER: - - - what you've heard from Mr Mendelssohn is consistent with that, isn't it?

PN567 MS CORKHILL: Totally.

PN568 THE COMMISSIONER: Thank you, Mr Mendelssohn, I'll look forward to that. Try and get it in my the 10th, will you?

PN569 MR MENDELSSOHN: Yes.

PN570 THE COMMISSIONER: We might just take a short break for 15 minutes.

PN571 MR FERRARI: I may not come back, Commissioner.

PN572 THE COMMISSIONER: Yes, you're excused. I understand you came for the wine industry aspect, didn't you. Right. We'll take a short break for 15 minutes.

<SHORT ADJOURNMENT [11.50AM]

<RESUMED [12.19PM]

PN573 THE COMMISSIONER: What I propose to do is to continue until 1.15. We’ll take 45 minutes for lunch because I think we’ll be a bit short of time when the day comes to an end. I think in essence, apart from the little bit of parsing out of what we might call big issues such as what to do about a proposed Wine Industry Award, and where aquaculture stands in the context of the whole process, and looking at the scope of an agricultural successor type award to the Poultry Industry Award and its contents, that’s about where we have got to; with a little bit of discussion about how distinctions or demarcations can be made in those areas. I wonder whether or not it’s appropriate now to turn to the question of a horticulture award. Unless there’s anything anybody wants to add in relation to the scope and reach, if you like, of that sort of so-called agricultural award.

PN574 MR DECARNE: Might I add a few points, Commissioner?

PN575 THE COMMISSIONER: Certainly, go ahead.

PN576 MR DECARNE: I took your point on the parts of award within an agricultural award.


PN578 MR DECARNE: Now in our drafting - the AWU - we were guided by what has happened in manufacturing. In that industry we put parts up as agreed parts between us and the employers, and they were not accepted by the Commission. So there was a blanket approach to that award. So in considering that we have - - -

PN579 THE COMMISSIONER: You would have lived with parts that preserved wages and hours and penalties.

PN580 MR DECARNE: We would be very happy with that, when we could conserve the pigs and poultries.

PN581 THE COMMISSIONER: Yes, all right.

PN582 MR DECARNE: And also retain EIA conditions for those employees.

PN583 THE COMMISSIONER: Fine, well that’s noted. Thank you.

PN584 MR DECARNE: Also, with the theme of the discussions so far I’ve noticed that there’s this crossover between mixed farm and large operations. Now if we could deal with that in parts or deal with that in an exclusion - - -

PN585 THE COMMISSIONER: I don’t know what you mean by that.

PN586 MR DECARNE: Well Commissioner in terms of our discussions with cotton and pig breeding, my friend from the NFF here discussed the fact that often this is part of the mixed farming enterprise and it’s not part of - - -

PN587 THE COMMISSIONER: I think it’s just a question of drafting the application or the part, isn’t it?

PN588 MR DECARNE: Would be seeing a part for a mixed farming enterprise, as opposed to - - -

PN589 THE COMMISSIONER: No, no. The way you would approach it is that the part would be self-defining according to a term that defined the application of the part. That’s what you and ideally the NFF should be doing between now and the 10th.

PN590 MR DECARNE: We’re happy to enter into those discussions.


PN592 MR DECARNE: Can I just make a few points about - - -

PN593 THE COMMISSIONER: If I was sitting otherwise in the “jurisdiction”, in inverted commas, that I am sitting under which has at the direction of the President in accordance with the statutory force of the Request, I would direct you to. But that’s what I think you ought to be doing in your own interests. I think you ought to be trying to define these parts. I think you should gather up the wages classifications hours of work and what you need is a set of words that define the application of the parts.

PN594 MR DECARNE: We are definitely happy to enter - - -


PN596 MR DECARNE: If I could make a few quick points about fish and aquaculture before we move on as well. There was one award - there were four awards that we have used in our drafting and some of those weren’t mentioned, so I’ll just put those on the record. We used the Shellfish Industry Award in Tasmania, the Fish Aquaculture and Marine Products Award in Tasmania, the Pearl Culture North Queensland Award - so that was the aquaculture award that we were looking for - and the Oyster Farm State New South Wales Award. We found that this was an integrated industry, but if we can see any data otherwise, then we’re happy to have a look at that.

PN597 THE COMMISSIONER: Let’s not worry about that for the time being. You might be basically using up energy in advance of when it’s required.

PN598 MR DECARNE: All right.

PN599 THE COMMISSIONER: Let’s just wait and see what the view the Bench takes about that.

PN600 MR DECARNE: All right. I’ll also make the point though that in our submission, the most recent submission at paragraph 10, we see that there are state awards applying and that these awards could cover the industry. That’s in consistency with - - -

PN601 THE COMMISSIONER: This is aquaculture?

PN602 MR DECARNE: This is aquaculture.


PN604 MR DECARNE: In consistency with the Ministerial Request at clause 2, applying state awards to those people otherwise covered. Other than that, though, I’m happy to move on to horticulture.

PN605 THE COMMISSIONER: All right. But I just think I might have changed my mind. I think I want to go back to Mr Houlihan. I think we’ve got a little bit of unfinished business about the question of the shearers.

PN606 MR HOULIHAN: I’m sorry, sir, I missed the point that you just made there.

PN607 THE COMMISSIONER: I’m not quite sure whether you’re content that you have said what you want to say about shearing contractors.

PN608 MR HOULIHAN: Well, sir, I think shearing contractors are in the same league as a lot of other contractors who provide services to agriculture, to coin a phrase. We have a position basically reserved on that point. We’ve been in these discussions. We’ve had discussions with the NFF, with the AWU and a lot of other parties, the Western Australia shearing contractors and so on, and we are continuing to have those. That was the source of the - - -

PN609 THE COMMISSIONER: What is the scope of your Services to Agriculture Award again? Just prompt me.

PN610 MR HOULIHAN: The scope simply says that it covers employers and their employees who provide services to agriculture. The classic in most - the only one that’s really regulated is shearing.

PN611 THE COMMISSIONER: But wouldn’t the scope of such an award extend very broadly into services to agriculture? There would be a lot of services being provided, wouldn’t there?

PN612 MR HOULIHAN: Well that’s exactly the point, Commissioner, and we go on to delimit - we don’t want to talk about the AMWU’s mechanic who comes out from town to fix a truck or something like that.

PN613 THE COMMISSIONER: What about the horticultural services company that comes out and has a look at a crop or does some testing?

PN614 MR HOULIHAN: That’s exactly right and essentially, Commissioner, with a couple of quite minor exceptions that we can locate, essentially the whole field is award free.

PN615 THE COMMISSIONER: But doesn’t that put it - well let’s leave the shearers out of it. Let’s look at it as a generic concept, that there may be this large, extensive,

horizontally disbursed industry of services to agriculture; everything from crop dusting through to fencing contractors.

PN616 MR HOULIHAN: That’s right.

PN617 THE COMMISSIONER: To whatever.


PN619 THE COMMISSIONER: So the scope of this award is potentially quite significant, isn’t it?


PN621 THE COMMISSIONER: At the present time there is very little regulatory indicator.


PN623 THE COMMISSIONER: So that would be more or less creating a new award.

PN624 MR HOULIHAN: It would be creating a new award.

PN625 THE COMMISSIONER: Then the question would become - you would have to decide whether you wanted to create such an award, and then you would have to decide whether you thought it was a good idea to put the shearers in there, because they were contracting for services to agriculture.



PN628 MR HOULIHAN: So we make this point that there has been a strong indication from the Commonwealth that at the end of this process there’s not going to be award free work as we have understood it.

PN629 THE COMMISSIONER: Yes, I’ve noted that.


PN631 THE COMMISSIONER: So that the idea is that in some senses a search for regulatory fields or fields to be regulated, to use an agricultural metaphor, cultivated or regulated or whatever you - - -

PN632 MR HOULIHAN: Yes, that’s got good resonance in the circumstances, sir. But our concern is this, that increasingly agriculture and horticulture are dependant on the provision of services from outside contractors.

PN633 THE COMMISSIONER: That would seem to be unarguable. It’s a notorious fact that all sorts of agricultural producers engage people to provide services to their activities.

PN634 MR HOULIHAN: Yes, and we seek to have an award - - -

PN635 THE COMMISSIONER: To cover that field

PN636 MR HOULIHAN: To cover that field which is sympathetic to agriculture or horticulture.

PN637 THE COMMISSIONER: All right, thank you.

PN638 MR HOULIHAN: Thank you sir.

PN639 THE COMMISSIONER: What about the shearers? They should be in there if the decision is made that that award should be made, or some process for the making of such an award should be established.


PN641 THE COMMISSIONER: But what if the decision were taken by the Bench that it doesn’t want to venture into that field? What happens to the shearers and the shearing contractors then?

PN642 MR HOULIHAN: Well then, sir, if the Bench decides “No, we don’t want to go to services to agriculture”, we would support the NFF’s scope clause and go down that path.


PN644 MR HOULIHAN: In fact, sir, it’s the reverse of that. We would support the NFF scope clause as the preferred position. That’s our preferred position. It’s just that we think it’s less likely that the Commission is going to go that way, that

they might view the making of a separate award for services to agriculture. Our major concern is that this terribly important area is regulated in a way that’s sympathetic to agriculture and horticulture.

PN645 THE COMMISSIONER: Rather than being caught up willy nilly in another brace of awards.

PN646 MR HOULIHAN: Exactly. Exactly that.

PN647 THE COMMISSIONER: A diverse brace of awards which may not have regard to the connection between the services to agriculture and the agricultural industry, when they were originally modernised.

PN648 MR HOULIHAN: That’s precisely our concern.

PN649 THE COMMISSIONER: All right. Good, thank you.

PN650 MS CORKHILL: Commissioner, can I just make one comment about that? The reason the NFF has moved towards putting services to agriculture in the agricultural award is because if you take the example of a mustering contractor in Western Australia, the mustering contractor will have their employees and the farmer’s employees will also be all out mustering. Why should there be different conditions of work for the mustering contractor’s employees as the farmer’s employees? Secondly, some farmers also contract so when they’re contracting on someone else’s property are they going to have a different award? We say there’s absolutely no need for that. It can be easily encompassed in our very carefully drafted scope clause. So there really is no need - and keeping shearing in the Pastoral Industry Award is an integral part of that, albeit in a separate section because there are certain issues - - -

PN651 THE COMMISSIONER: Yes. It’s a different regulatory model.

PN652 MS CORKHILL: Particular to the shearing industry.


PN654 MS CORKHILL: There are OH&S issues and there are animal issues that need to be dealt with.


PN656 MS CORKHILL: That’s all I have to say.

PN657 THE COMMISSIONER: Mr Decarne.

PN658 MR DECARNE: Commissioner, I might just ask the NFF if they can tell us where they would put scourers and carbonisers, if we’re to put shearing back into an agricultural award?

PN659 THE COMMISSIONER: They would go into the Wool Industry Award, wouldn’t they?


PN661 MR DECARNE: A Wool Industry Award. So there would be the creation of a Wool Industry Award with shearing - - -

PN662 THE COMMISSIONER: Yes, with a processing and storage function.

PN663 MR DECARNE: But shearing would not be part of that?

PN664 THE COMMISSIONER: No, not according to the NFF.

PN665 MR DECARNE: Thanks.

PN666 THE COMMISSIONER: That’s why I raised with them before, would you put shearing in with all the other wool production and processing activities and storage.

PN667 MR HOULIHAN: Commissioner, can I just say this. You’re getting away from what has traditionally been part of the work of shearers, whether employed by contractors or whatever, and the ancillary people who work around them. Once you go into that sort of industrial or manufacturing type of issues, of carbonising and so on, they are conceptually different than what has traditionally been here. Can I just say this. I’m concerned at a comment you made earlier on about whether it’s called the Pastoral Award or not. This is now the longest surviving award of the Federal Commission. It would be a terrible shame if it got cast aside, and historically I would just make a plea that you can pass to the Full Bench, if you would sir, that you keep the name.

PN668 THE COMMISSIONER: Keep calling it the Pastoral Industry Award.



PN671 MR HOULIHAN: I feel strongly a bout it.

PN672 THE COMMISSIONER: Yes, I suppose though Mr Houlihan, in a way, given the title of the process, this is a conflict between tradition and modernity, isn’t it?

PN673 MR HOULIHAN: But surely tradition can hang on, even in only one?

PN674 THE COMMISSIONER: All right, it’s a plea for tradition.

PN675 MR HOULIHAN: Good on you. Thank you sir.

PN676 THE COMMISSIONER: Against the gruesome forces of modernity.

PN677 MR HOULIHAN: That’s right..

PN678 THE COMMISSIONER: All right, so can we move on to horticulture now? I think it might be best if we hear from the Horticulture Association first up.

PN679 MR LONGLAND: Thanks Commissioner. You will have noted from our submission - and I don’t intend to repeat matters that have been subject to the written submission that we do propose to make as a Horticulture Industry Award; and it would cover the territory that’s currently covered by the 16 instruments that are listed in that submission. Two of them are federal award and the rest are state instruments.

PN680 THE COMMISSIONER: Are the federal awards horticulture awards?

PN681 MR LONGLAND: Well, the name of one of them suggests that it is.

PN682 THE COMMISSIONER: The name is yes, that’s right. But you know, on TV they can put anything on a door and there’s nothing behind it.

PN683 MR LONGLAND: Yes, of course.

PN684 THE COMMISSIONER: That’s the point that I’m making. What is the substance of the federal awards; are they really horticulture awards?

PN685 MR LONGLAND: My clients would say that at least the Horticulture Industry Award applies to a part of horticulture, or a part of the horticulture industry.

PN686 THE COMMISSIONER: Yes. Well there’s no doubt about that, but what about the part where it covers all of this canning and dehydration and all of those things?

PN687 MR LONGLAND: Yes.

PN688 THE COMMISSIONER: That’s not part of your industry, is it?

PN689 MR LONGLAND: We say that it is.

PN690 THE COMMISSIONER: It is?


PN692 THE COMMISSIONER: Right.

PN693 MR LONGLAND: In the industrial sense - - -

PN694 THE COMMISSIONER: Is that horticulture? Canning fruit and vegetables?

PN695 MR LONGLAND: Well yes it’s part of the - - -

PN696 THE COMMISSIONER: Is it in the dictionary as part of that?

PN697 MR LONGLAND: It’s probably not in the dictionary, Commissioner. I take your point and we have suggested two alternatives for the existing coverage of those instruments, which extends beyond what the Commission has - - -

PN698 THE COMMISSIONER: So there’s a suggestion, isn’t there, that that’s really food processing.


PN700 THE COMMISSIONER: The whole food processing and manufacturing industry needs to be looked at as a whole, and not bring the canning and dehydration and all the other factory type activities into some discrete quasi-horticultural instrument of regulation.

PN701 MR LONGLAND: That’s the AMWU suggestion, and certainly I think the word factory that you have just used in that description is an important one. My clients currently, and have historically engaged in what I could broadly call value add activities.


PN703 MR LONGLAND: That’s the reason that those activities have found their way into the application of clauses of various of these instruments. There is a desire from my clients that the regulation of those value add activities, where they’re conducted by my clients, remain within the same industrial instrument. We have suggested a fallback position in our submission where, if there is to be a clear delineation, that would be at the farm gate. I’m instructed that a number of - - -

PN704 THE COMMISSIONER: All right. Well let’s just, for the sake of discussion, explore that. Who are your clients that actually grow and pack and process? Leaving aside packing where you’re picking oranges and you’re putting them in the crate.


PN706 THE COMMISSIONER: Or you might even be packing them on farm into cardboard boxes, but let’s assume that all stays part of some general horticultural activity.


PN708 THE COMMISSIONER: Because it’s at the farm gate but Berri fruit juices and all those sorts of people, they’re not in the horticulture business, are they? Or are they?

PN709 MR LONGLAND: Well firstly I can’t answer that question specifically, Commissioner. I’ve been in this - - -

PN710 THE COMMISSIONER: I’ve seen a lot of this along the river country.


PN712 THE COMMISSIONER: Seen the operations. I mean, they are people working inside factory environments. They’re wearing certain clothing which is designated by food regulation authorities.


PN714 THE COMMISSIONER: They are canning product from crops and they are steaming it and they are running labelling machines and all this sort of thing. I think what we need to recognise is that those federal horticulture awards are a bit of a mixed bag, aren’t they?

PN715 MR LONGLAND: They are.

PN716 THE COMMISSIONER: There’s even landscaping in them, isn’t there?

PN717 MR LONGLAND: Well there is some landscaping of a domestic nature in the nurseries awards, and that’s something I want to turn to separately. But if I could just return to - - -

PN718 THE COMMISSIONER: But isn’t there a Horticulture (Landscaping) Award?

PN719 MR LONGLAND: Yes, I’m told that there is.

PN720 THE COMMISSIONER: There is, you can take my word for it.

PN721 MR LONGLAND: I’m not sure that it’s in the list of 60 - - -

PN722 THE COMMISSIONER: So you’ve got this - that’s slightly - - -

PN723 MR LONGLAND: There is in South Australia. I’m sorry.


PN725 MR LONGLAND: So landscaping shouldn’t be in any of this, should it?

PN726 MR LONGLAND: Well that comes to my submissions about a nursery industry award. If there is to be a nursery industry award - - -

PN727 THE COMMISSIONER: I’m talking about a horticulture award. Landscaping is not part of horticulture.

PN728 MR LONGLAND: If nurseries are in the horticulture award we would say that domestic landscaping - - -

PN729 THE COMMISSIONER: Yes, fair enough.

PN730 MR LONGLAND: That domestic landscaping should be - - -

PN731 THE COMMISSIONER: That’s a bit of a late motive, isn’t it? If you’re going to keep landscaping in anywhere, landscaping is not horticulture.

PN732 MR LONGLAND: It’s a value add, in a sense. Commercial landscaping I can see would have more in common with building or with that general territory, but where the Ministry - - -

PN733 THE COMMISSIONER: But there are plenty of people out there roaring around in vans and Hi-Luxes with landscaping things written on the side.

PN734 MR LONGLAND: And some of those people, Commission, have tissue cultures at nurseries and they grow the product and they deliver it to the customer.


PN736 MR LONGLAND: So that kind of work might be described as landscaping.

PN737 THE COMMISSIONER: Okay, let’s proceed down the path a little bit, in the discussion to wards the possible distinction of a nursery industry.

PN738 MS CORKHILL: Could I just interrupt there?


PN740 MS CORKHILL: Just ..... the NFF’s view on this business of processing. Things like canning and juicing - the Horticulture Industry Award talks about the cultivation, picking, dehydration, crystallisation, washing, juicing, canning or any other processing.


PN742 MS CORKHILL: Consistent with our approach, whatever happens behind the farm gate we say should be as you said, Commissioner, the packing, yes. Dehydration is done on farm. It’s done on vine and then it’s sometimes finished off on the farm behind the farm gate, out in the sun.

PN743 THE COMMISSIONER: What are you talking about there?

PN744 MS CORKHILL: Dried fruits, dried apricots, dried grapes and so on.

PN745 THE COMMISSIONER: Well you could say the drying of fruits.

PN746 MS CORKHILL: Dried fruits.


PN748 MS CORKHILL: Yes, dried fruits. We don’t have a problem with juicing and canning and those sorts of things.

PN749 THE COMMISSIONER: But drying of fruits is part of a farming - - -

PN750 MS CORKHILL: Yes, on the farm.

PN751 THE COMMISSIONER: A farming and horticultural operation.

PN752 MS CORKHILL: Some may wash. They may wash the potatoes.

PN753 THE COMMISSIONER: Yes, and they may spray. In fact they might put wax on apples or something of that nature.

PN754 MS CORKHILL: Yes, but apart from that we have no - - -

PN755 THE COMMISSIONER: You're not interested in anything that's genuinely - - -

PN756 MS CORKHILL: Genuine food processing, we do not want it.

PN757 THE COMMISSIONER: And so the Horticultural Award should be confined accordingly according to you.


PN759 MR LONGLAND: Sorry your Honour.

PN760 THE COMMISSIONER: That's their position.

PN761 MR LONGLAND: If I could perhaps address that quickly before we go to nurseries. We would say that there are some treating, packing, processing activities currently covered by the NAPSAs. The Tea Industry Award in Queensland is one of them and my clients are keen for those activities to remain in a Horticulture Award. I'm instructed and I can do no more than tell you my instructions on that account that those things have a necessary and direct connection with the actual growing of the product.

PN762 THE COMMISSIONER: I'm sure you know if you picked all the tea and you packed it in a box and put it out the front of the tea plantation for somebody to pick up and take away and process I don't think there's an issue is there Mr - - -

PN763 MR LONGLAND: That's referred to though in the Tea Award as processing.


PN765 MR LONGLAND: And that's what my clients are keen to maintain.

PN766 THE COMMISSIONER: Yes, but if it's going off to a plant down the road - - -

PN767 MR LONGLAND: Yes, and our submissions say that where if the line is drawn at the farm gate we're comfortable.

PN768 THE COMMISSIONER: I'd just like to hear from Mr Decarne at this point if you could just bear with me for a moment.

PN769 MR DECARNE: Commissioner, we retain the clause that we had in the original award the AW Award and we see this is as similar to the wine industry as correctly being deferred the overlap into a stage 3 for food and beverage manufacturing. There are preferential conditions under the Food and Beverage Manufacturing Award and we wouldn't want to see people brought in underneath the modern Horticultural Award and have their conditions lessened. So we think that perhaps the - tea is a good example of processing that might take place but however we think that the terms might need refining in stage 3.

PN770 THE COMMISSIONER: I'm just trying to get my head around this. All right give me an example.

PN771 MR DECARNE: Well juicing would be a perfect example because some juicing is conducted perhaps by Berri and I'm sure my friend from AI Group can inform you more adequately than I can on this.

PN772 THE COMMISSIONER: We know there are large fruit packing and processing plants in the irrigation areas.

PN773 MR DECARNE: As I understand - - -

PN774 THE COMMISSIONER: You accept that they're more appropriately dealt with as part of the manufacturing scenario and - - -

PN775 MR DECARNE: We do.

PN776 THE COMMISSIONER: You accept that there may be some packing and processing on farm activities.


PN778 THE COMMISSIONER: Like it might be the case that you know the oranges will come in a great big wooden box and then they're broken down into smaller wooden boxes or cardboard boxes or something or they might be packed in big plastic bags or something of that nature on the farms and you're happy that that's part of the horticultural business.

PN779 MR DECARNE: That's right and it's very difficult to delineate you know in terms of processing and packaging.

PN780 THE COMMISSIONER: Yes, all right. Well if the parties can somehow or other put their heads together and by the 10th produce something which separately addresses this question I would be grateful.

PN781 MR DECARNE: We'll endeavour to do so, Commissioner.

PN782 THE COMMISSIONER: All right. I'm sorry so we'll return to the horticultural industry.

PN783 MR LONGLAND: Yes. We're happy with that approach and I can put on record and assure my friend that we don't see this exercise as extending coverage of the horticulture industry into something which is currently in the food processing preserve as it were. If I can leave it there and move on briefly to nurseries. My instructions are that as I indicated earlier my enthusiasm probably reflects or reflected the enthusiasm of the employers in the sector to have their own instrument. They will describe themselves as being vertically integrated.

PN784 THE COMMISSIONER: The nursery industry?


PN786 THE COMMISSIONER: I think they said they're worth $5b dollars a year or something, is that right?

PN787 MR LONGLAND: There is a representative here from one of the employer bodies.

PN788 THE COMMISSIONER: I didn't think there was.

PN789 MR LONGLAND: He did announce an appearance earlier. His name is Mr Clive Larkman. I intended to make some broad introductory comments and then hear from Mr Larkman.

PN790 THE COMMISSIONER: All right and then we'll hear from Mr Larkman.

PN791 MR LONGLAND: Those broad comments really are - in my submission we refer to the fact that there's some retailing activities, there's some distribution activities. The vertical integration point from the tissue culture to the customer including to delivery and the landscaping point I just wanted to indicate that things like - - -

PN792 THE COMMISSIONER: You want to keep that as an incidental aspect of the work of the employees covered by the award.

PN793 MR LONGLAND: Yes, but that - - -

PN794 THE COMMISSIONER: My understanding because you know I've been a sort of labourer you know weekend nursery expeditions on the odd occasion, so my understanding is that the people who tend to work there you know with the rubber boots and things like that they know all about the propagation but they actually explain why you use particular plants and why it's best to buy this one and not that one.


PN796 THE COMMISSIONER: You want that sales function integrated with their horticultural and in particular plant propagation skills, is that right?

PN797 MR LONGLAND: Yes. For the very reason you've indicated we say that the two are indelibly intertwined.

PN798 THE COMMISSIONER: They're one and the same thing. That's your submission too isn't it?

PN799 MR LONGLAND: Exactly. Perhaps if I can now ask Mr Larkman to address you briefly on his industry.


PN801 MR LARKMAN: My name's Clive Larkman. I'm actually an employer of a nursery out in the Yarra Valley. For about 12 years I've been working with the AWU on our industrial relations on behalf of our industry. It is about 5.8 billion nationwide, but that picks up the landscaping. We see the soft landscaping as part of our industry, not the hard landscaping. That's - - -

PN802 THE COMMISSIONER: I see that's an important distinction.

PN803 MR LARKMAN: I've been also on the industry training board for rural industries which covers agriculture, horticulture, fishing, seafood, for about 20 years so I've got a good training area. We look at our - it's a vertically integrated industry. My business goes from packing tissue culture in a scientific laboratory right through direct sales to the public. Many of my customers in country Victoria, Australia, country New South Wales, they will do all stages. Maybe not the tissue culture but they buy baby plants, grow them on and sell them. There are of course garden centres that just sell, but the skill set of the person working in a garden centre is not greatly different than the skill set of someone working in my production nursery. So we feel that they are the same industry.

PN804 The other thing that differentiates us from production horticulture is we don't - at no stage is our product processed. The thing I propagate here to the thing that actually goes in the ground it's the one unit. We're not interested in what comes off it. We don't produce it, we don't process it. Whereas to us a horticulturalist or a production horticulturalist is more concerned with the product of the plant than the plant itself. Yes if the plant doesn't grow well the product doesn't produce but they measure their success on the product not the plant. We measure our success on the plant itself. To us it's very important.

PN805 THE COMMISSIONER: Thank you very much for that.

PN806 MR LONGLAND: On the issue of scope there's only one additional - I should say before we finish that debate that there is a draft award that's been prepared for the nurseries and I'd be happy to confer with my friend and - - -

PN807 THE COMMISSIONER: Have you filed it?

PN808 MR LONGLAND: No we haven't.

PN809 THE COMMISSIONER: Yes, I didn't think so.

PN810 MR LONGLAND: Yes, the Horticultural Council took the decision that we wouldn't at this stage given the - - -

PN811 THE COMMISSIONER: No, I think you should file it as soon as practicable.

PN812 MR LONGLAND: Yes, thank you. Just finally on the application or on two issues on scope. The first is the growing of grapes and I just note our submission that my client's view is that there's nothing about the nature of that work in all of the circumstances in which it's performed which differentiates it from other horticultural activities and its submission is that there should be no separate Wine Industry Award and to the extent that there is one the growing of grapes ought to be in the Horticultural Award. The other matter again and it's just an issue that I raised in the submissions but I've been asked to raise for the mushroom growers. There is a particular application clause that will give them certainty. They say that that should be in the Horticultural Award and I'm not sure if my friend will have a problem with that. They're the only scope issues I see.

PN813 THE COMMISSIONER: I'll come back to you in a moment. Mr Decarne?

PN814 MR DECARNE: Regarding ..... submissions on the scope, Commissioner, they were filed earlier in the week so we haven't actually had time to digest the new clause of that draft.

PN815 THE COMMISSIONER: The Nursery Award?

PN816 MR DECARNE: The Nursery Award we'd be happy to enter into discussions about creation of a Nursery Award. We understand there's also a retail aspect.

PN817 THE COMMISSIONER: Do you think it's appropriate?

PN818 MR DECARNE: I wouldn't be minded to make a call right now, Commissioner.


PN820 MR DECARNE: We'd be happy to enter into discussions.

PN821 THE COMMISSIONER: Anybody else got anything to say about a Nursery Award?

PN822 MR R WARREN: Horticulture, Commissioner.

PN823 THE COMMISSIONER: Sorry?

PN824 MR WARREN: I have something to say about horticulture Commissioner but - - -

PN825 THE COMMISSIONER: Yes, all right. No further comments on the desirability of a Nursery Award, no? Yes, go ahead.

PN826 MR WARREN: Yes, Ralph Warren is my name. I'm appearing for the Australian Federation of Employers and Industries. Can I simply say with respect to horticulture - and I note the Commission's comments earlier made as an aside to my learned friend with respect to whether the Horticultural Industry Federal Award is really a Horticultural Award. We say it isn't. We say it covers areas and for reasons indeed set out in the submissions which goes to the real coverage of that federal award it's very limited to Victoria. We note more the horticultural industry which is in New South Wales which is a NAPSA. There is a reasonably clear area incidents and duration clause which I might hand up to the Commission with respect to horticulture which wraps up potato growing, fruit growing et cetera.

PN827 THE COMMISSIONER: Yes, could you do that?

PN828 MR WARREN: It deals we say rather comprehensively with the scope of the industry that should be covered and we - could I hand that up now your Honour?

PN829 THE COMMISSIONER: Certainly. Please. We'll post it on the website.

PN830 MR WARREN: Thank you.

PN831 THE COMMISSIONER: It will be up tomorrow.

PN832 MR WARREN: Thank you, Commissioner.

PN833 THE COMMISSIONER: All right. Thank you, Mr Warren. Nothing further to be said about the scope of the - sorry, you want to say something?

PN834 MS CORKHILL: I do have a real issue about scope. It's covered - - -

PN835 THE COMMISSIONER: This is Ms Corkhill.

PN836 MS CORKHILL: Sorry. It's covered in both of my written submissions and that is the growing of vegetables and I'll give you an example, Commissioner. In Tasmania, north-west of Tasmania, you'll have a farmer who will grow poppies, pyrethrum, spuds - - -

PN837 THE COMMISSIONER: Yes. Is there any suggestion from any party that vegetables shouldn't be covered?

PN838 MS CORKHILL: Shouldn't be covered in the Ag. Award?

PN839 THE COMMISSIONER: Shouldn't be?

PN840 MR LONGLAND: We say they should be in the Horticultural Award.

PN841 MR DECARNE: We also say that they should be in the Horticultural Award.

PN842 MS CORKHILL: Can I - - -

PN843 THE COMMISSIONER: Sorry. So what you're coming to is that - - -

PN844 MS CORKHILL: I'm coming to say that you've got an enterprise that grows sheep, grain, pasture, poppies - - -

PN845 THE COMMISSIONER: And vegetables.

PN846 MS CORKHILL: - - - broccoli, spuds, onions. Now you know when the farmhand is doing the fencing do they have to make a thought about which award is going to be covering them. Now in my second submission on the 24th I actually detailed - 24 November I detailed the overlap issue which has always been recognised in the Horticulture and Pastoral Industry Awards. There's a clause in that award which basically recognises the possibility of overlap and then discussion can occur as to which award applies and my submission is that in that sort of submission where you've got vegetables growing as part of a mixed farming enterprise you should not have to have two awards in your pocket to know what to pay your employee today - - -

PN847 THE COMMISSIONER: Ideally that's right.

PN848 MS CORKHILL: - - - or have to make a decision when you're fencing as to what's going to be grown in that paddock next year. So I definitely want to put that on the record.

PN849 THE COMMISSIONER: Yes, I hear you on that.

PN850 MS CORKHILL: Thank you.

PN851 THE COMMISSIONER: I'll just hear Mr Longland in response.

PN852 MR LONGLAND: Very briefly. When you look at the draft awards that the NFF have put and my clients have put there's not a huge difference on this. It

concerns one of the exemptions. What we say is that our - what my friend has just said perhaps goes a bit further than the words on the page of her draft or the NFF draft. What we say is that if you are growing a fruit or vegetable for the purpose of commercial sale of that fruit or vegetable you are covered by the Horticultural Award. We acknowledge that there are situations though where for management of land purposes, nitrogen in soil purposes - - -

PN853 THE COMMISSIONER: Yes, but I think the NFF would say that both purposes are usually pursued at different times or simultaneously.

PN854 MR LONGLAND: Well this issue of crop rotation - - -

PN855 THE COMMISSIONER: Well there's that but it's not as if somebody up in you know central Victoria won't grow a crop of potatoes and run cattle and sheep all at the same time.

PN856 MR LONGLAND: Yes. Now if the delineation is going to be - - -

PN857 THE COMMISSIONER: And they'll sell those potatoes to the vegetable market.

PN858 MR LONGLAND: There are situations though in my instructions where the growing of those vegetables is done to prepare or maintain the land.

PN859 THE COMMISSIONER: Well they're both. I mean sometimes you use - it's unusual to use vegetables. Usually it's more perennials or some sort of you know above ground cereal crop that will be used for land maintenance purposes, fertility purposes. But yes you might be right occasionally some sort of root based crop might be ploughed in but that's a bit unusual I think.

PN860 MR LONGLAND: Well my client's position is that they are the only circumstances where the growing of what I might loosely call crops should be outside of the Horticultural Award. So just because the horticulturalist who's growing the vegetables has some sheep on the farm or has some cows on the farm that doesn't take him - in our submission it shouldn’t take him outside of the - - -

PN861 THE COMMISSIONER: I hear what you say. That's obviously going to be a vexed question. It needs to be noted and will have to be addressed.


PN863 MR DECARNE: Commissioner, might I say a few comments on this point? We strongly oppose clause 4.3 of the NFF Horticultural Award because we think it's much too broad in its terms and it doesn't accurately reflect what the coverage differentials are between the PIA and the HIA currently. The term rotation is not

defined and will lead to unnecessary overlap. Where an employer is engaged in more than one industry the classification then becomes relevant and we can see that from the Commission's model clause. So the approach taken by the Commission in the exposure drafts indicates that this overlap is going to be a big concern in this industry. A mixed farming enterprise could end up with someone picking up a bag of grain and then falling under an Agriculture Award where the predominant purpose of their work would be - - -

PN864 THE COMMISSIONER: No, that's not possible.

PN865 MR DECARNE: It's not possible although the classification - no?

PN866 THE COMMISSIONER: The extreme examples are not very useful because once again we're here dealing with a context and the context will be here is the industry of the employer mixed farming or is it horticulture?

PN867 MR DECARNE: Well okay if you're not with me on the example, your Honour, to avoid overlap here we see it as imperative that in one award there's a list of produce to which that award relates.

PN868 THE COMMISSIONER: ..... area of these sort of exhaustive lists. The next thing you know you've got cases being heard in courts about turnips and strawberries you know.

PN869 MR DECARNE: Well there are a lot of cases about these overlaps, Commissioner, but - - -

PN870 THE COMMISSIONER: Well there are but you know I mean how can you cater for everything. The list would be - you know you'd have to study - - -

PN871 MR DECARNE: In this process of modernisation though aren't we attempting to avoid this overlap rather than maintaining - - -

PN872 THE COMMISSIONER: Well that's a question - because I'm not in the habit of answering them so that's the privilege having the emu and the kangaroo on your side. So if you want to make a submission that's fine. I've got my long ears on but - - -

PN873 MR DECARNE: Well we will make the submission that paragraph 9 of the Minister's Request does state that we'll avoid overlap and include clear - - -

PN874 THE COMMISSIONER: Yes. What I'm talking about is the methodology as to whether or not what you try and do is think of every conceivable growth that could come out of the land of the commonwealth - - -

PN875 MR DECARNE: Well we think that's possible in terms of the pastoral industry application Commissioner. We think it's possible. We don't think it's possible in terms of horticulture. So where would - - -

PN876 THE COMMISSIONER: I guess that's what I'm saying.

PN877 MR DECARNE: Yes. Well we don't think it's possible in terms of horticulture but we do in terms of the mixed farming enterprises which would fall under the PIA currently and if you - - -

PN878 THE COMMISSIONER: It might actually having a catalogue of crops.

PN879 MR DECARNE: I beg your pardon?

PN880 THE COMMISSIONER: Having a catalogue of crops. I mean everything else would fall under horticulture is that it?

PN881 MR DECARNE: No. We would define which broad acre crops would fall under agriculture.

PN882 THE COMMISSIONER: That's right. So that by definition any other crop would fall under horticulture.

PN883 MR DECARNE: Would fall under horticulture yes and if you - - -

PN884 THE COMMISSIONER: So you might be out there on your big farm with all of these crops popping up in different years according to your lights and the market and you might find yourself covered by the broad acre award or you might suddenly find that that paddock down there is actually covered by the Horticultural Award.

PN885 MR DECARNE: Well would a principally engaged in argument then sustain there, Commissioner?

PN886 THE COMMISSIONER: Yes, well if that's the case then you don't need to list them.

PN887 MR DECARNE: We see that do we need a list of broad acre crops to avoid the - - -

PN888 THE COMMISSIONER: I hear what you say but I don’t know whether it's practical to create a situation where someone could grow a crop of some say root

vegetable which is not named as part of a mixed farming operation and when that's being harvested it's the subject of the Horticultural Award but the ..... them is subject to the Agricultural Award. It might be the same person harvesting both crops. Wouldn’t it?

PN889 MR DECARNE: I think that - - -

PN890 THE COMMISSIONER: Most likely I would have thought.

PN891 MR DECARNE: Our concern is more to do with a diversion from the Horticultural Award. So if there is - if you think that it would be clear that the application of the agricultural Award won't go further than it has already because of this mixed farming - - -

PN892 THE COMMISSIONER: Well the solution is the industry of the employer isn't it?

PN893 MR DECARNE: It is the solution.

PN894 THE COMMISSIONER: Not the designation of the crops.

PN895 MR DECARNE: Yes, and where there's overlap, we have the operation of the commission's overlapping award clause which then goes to the consultation - - -

PN896 THE COMMISSIONER: Which says that it's the industry of the employer that - - -

PN897 MR DECARNE: No, then it goes to the classification of the employee, Commissioner, and that's where my point - - -

PN898 THE COMMISSIONER: All right I hear what you say.

PN899 MR DECARNE: Yes. The classification of the employee is then the relevant point where there is overlap.

PN900 MR HOULIHAN: Commissioner, can I just say a couple of points about this. The clause that my friend referred to in the Horticultural Award, which recognises the potential of overlap, has worked very well. That's the first thing. The second thing is, we don't know the crops that are going to be grown on broad acre farms next year. We just don't know.

PN901 MR LONGLAND: The only contribution I might make to the debate, and I'[m passing on the outcome of a discussion we had on this issue, is that it might be

difficult to categorise mixed farming as an employer industry and I wouldn't want to be not seen to be putting that on the record, given the discussion. I understand that farmers, and I don't know this, that farm one crop every year and it's all they farm are few a far between.

PN902 THE COMMISSIONER: The Horticultural Award would cover that, wouldn't it, in the scenario that you're discussing?

PN903 MR LONGLAND: Yes. We think the delineation with the Pastoral Industry Award needs to be clearer than just people have discussions and say which one they want.

PN904 MR DECARNE : Commissioner, that's currently the clause, clause 6.3.

PN905 THE COMMISSIONER: I know, I've read it. You've got an alternative, haven't you?

PN906 MR DECARNE: We do have an alternative clause.

PN907 THE COMMISSIONER: Have you discussed this with the other parties, Ms Corkhill?

PN908 MR DECARNE: This has been an area of large discussions with all the parties.

PN909 THE COMMISSIONER: Ms Corkhill, is it possible to sort of get some sort of delineation that doesn't involve - - -

PN910 MS CORKHILL: I'm sorry, I missed that.

PN911 THE COMMISSIONER: Is it possible to get some delineation identified from the respective points of view, a set of words, which doesn't involve people having a disagreement about it?

PN912 MS CORKHILL: That's something that I tried very hard to address in my scope clause and I spent a lot of time and I talked to a lot of people about it, but in the end it seemed to me that were brick walls in this regard.

PN913 THE COMMISSIONER: Obviously, the Commission will have to iron them out and it will be assisted if you could give us, maybe if not your ideal position, some sort of compromise position that would preserve the concept that you will have people who will be growing various things not every year, year in, year out, they'll be doing crop rotation and they will probably be producing vegetables in favourable years for market, but they won't exclusively be in the horticulture industry, they might be running cattle and sheep at the same time, emus, alpacas,

whatever they're doing, something that sort of sets up that delineation a little bit more clearly than just, look, if you've got a problem with potential overlap here you sit down and talk about it. Can you do that?

PN914 MS CORKHILL: Yes. Thank you.

PN915 MR LONGLAND: I think the comments that have been put on transcript are particularly helpful and by the 10th we certainly should be able to - - -

PN916 THE COMMISSIONER: Good. I'll look forward to that. I think we're just about - well, we've done a fair bit in relation to the agenda on the question of awards or awards to be made. Is there anything else to be said by parties who are here who want to say something about the structure of any awards to emanate from the modernisation process covering this sector or identified by the Full Bench?

PN917 MR DECARNE: One award that hasn't been mentioned is the Silviculture and Afforestation Award which we filed earlier in the week. I bring that to the attention of the Commission.

PN918 THE COMMISSIONER: This is for the planting of forests, is it?

PN919 MR DECARNE: It is.

PN920 THE COMMISSIONER: Presumably there is regulation of forestry activities and silviculture activities presently.

PN921 MR DECARNE: There is. One of the awards in the Commission's list was the Tasmanian Silviculture and Afforestation Award.

PN922 THE COMMISSIONER: Yes, but there's no federal award?

PN923 MR DECARNE: No.

PN924 MS CORKHILL: Commissioner, the only thing I'd say about silviculture is that we, as farmers want to reserve the right to be able to grow trees for carbon sequestration and we've had discussions with the union about that and I think we're in agreement that that can be a part of the Ag Award.

PN925 THE COMMISSIONER: The thing is, what the union wants to do is to exclude an industry of that kind.

PN926 MS CORKHILL: The industry, as opposed to - - -

PN927 MR DECARNE: That's correct, Commissioner, yes.

PN928 THE COMMISSIONER: You want to make an industry award and we haven't got anything, I don't think, from any employers or industry organisations which represent a silviculture industry, do we?

PN929 MR DECARNE: Not at this stage.

PN930 MR HOULIHAN: Commissioner, we would support the NFF position in that regard and it's symptomatic of a lot of these issues that what we want to protect is the capacity of farmers to innovate and change and diversify. I haven't got any instructions from the West Australians to say, "Look after silviculture." I've got instructions that say, "We don't want any impediments to what we may do down the track" and I see that that way. It's exactly as my friend has just said that someone who is trying to diversify from one particular source of activity into another may choose to grow some trees or may choose to do something else. We see that as part of agriculture in that context, again coming back to the principal activity, as you've said, sir.

PN931 THE COMMISSIONER: Some of the issues - they come under a different heading, but when I listen to this proposition of the necessity to have breadth of operation in an Agricultural Award for diversified and in some cases an industry development of increasing scale in agriculture and increasing diversity, is that there seems to be a big difference between the range of tasks and functions that are likely to be performed by people in these industries if they're working across all of them simultaneously.

PN932 I mean, if you are working on a large scale agricultural holding that may well be owned by a superannuation fund or could even be owned by a large company or could be owned by a large proprietor who has consolidated a large number of different land holdings and in fact developed a much more diversified economic base for the land investment and you are expected to carry out functions to do with silviculture, horticulture, aquaculture, et cetera, et cetera, the scope of the award tends to indicate that maybe the classification structure and the rates of pay were fixed in an earlier and more traditional time where the role of the station hand or the stars of the recently released film were living in a different time and place and that these developments in agriculture with much greater focus on scientific management, technology and development of genetically modified crops and different agricultural practices and land management practices that it does seem to raise an interesting question as to whether or not you're going to capture all of these functions in the Pastoral Industry Award that has a rate for a person who has less then 12 months experience out there and a person who has more than 12 months, or is it two years - two years.

PN933 We'll come to that, though. I just want to make the note in passing that the tenor of the submissions as to the scope of activities of the employees working in the

industry does tend to call into question the simplicity of the classification structure and potentially the appropriate minimum rates of pay.

PN934 MR HOULIHAN: Sir, there's only one El Questro homestead though.

PN935 THE COMMISSIONER: Is that where they filmed it?

PN936 MR HOULIHAN: There's only one El Questro homestead. I wouldn't want you to think everyone is living like that.

PN937 THE COMMISSIONER: Obviously some of the indigenous people are not living in that way either.

PN938 MS CORKHILL: Commissioner, could I just say in regard to that, 80 per cent of farmers are actually unincorporated so they are not the big guys. There's only a small proportion that are the big guys that you're talking about there. Most of them are the mum and dad farmer with a couple of employees but I can see where you're coming from.

PN939 THE COMMISSIONER: Do you know what the composition of the employment is as opposed to the composition of the number of employers?

PN940 MS CORKHILL: I don't have those figures on hand but I do take your point on the classification structure. That's something that NFF has been considering over many years and it's something that we can address in this process, I'm sure.

PN941 THE COMMISSIONER: Mr Decarne, do you want to say something?

PN942 MR DECARNE: Commissioner, we definitely agree with the points made on the classification structure. We put some work into that at this point but if we're going to be pulling apart parts of the Agricultural Award there might be more work required. We see agriculture as being largely changed in the last 10 years and there's Productivity Commission reports that resemble our opinion on this. We've noted those in our submissions and we do see the classification structure as needing some updating.

PN943 THE COMMISSIONER: Let's focus on that in a more detailed way in the time available in due course. I just wanted to make the point while we were looking at the scope because it seems to me the rationale that is being advanced is that one should capture as many agricultural activities as possible under an Agricultural Award, ranging from silviculture through to the cultivation of yabbies in a large number. I think in Western Australia quite a lot of farmers have got big yabby farms and obviously there are particular demands about what an employee will do, depending upon the scope of the activities of the proprietor. If the proprietor is simply growing wheat and raising sheep simultaneously, the classic mixed

farming, broad acre model, Australian history, what they're doing is going to be pretty settled and it's pretty much going to be about planting, harvesting, maintenance and drenching sheep, et cetera, et cetera and herding sheep. If that person suddenly raising yabbies, growing vegetables, grapes, cotton, everything else all at the same time, they're going to be across a different skill set and if they're going to combine all of those skills into one person, I suspect that is a different class of work so the rationale of how you set the scope of the award, particularly when you're gathering up industries previously with discrete regulations, it seems to me to raise pretty seriously the question of whether or not this one classification scenario really is adequate.

PN944 MR DECARNE: We're definitely with you on that, Commissioner.

PN945 THE COMMISSIONER: I'm sure you would be.

PN946 MR DECARNE: The problem with that is the concern that the Pastoral Industry Award will be applied to this new broader scope unilaterally.

PN947 MR LONGLAND: I might have a submission in relation to that comment or I can consult you on in relation to that comment. Without wanting to disagree with anything that you've put, perhaps can I feed into your thinking that, whilst this is called a modernisation process, it's an administrative process. It's not a process about changing the substance of current terms and conditions, it's about rationalising those terms and conditions and if questions of work value arise, they are outside the scope of the Commission's powers in the modernisation process.

PN948 THE COMMISSIONER: The question operates in reverse and that is the extent to which you collapse existing regulation or you extend existing regulation, rather than what you do about the rate of pay.

PN949 MR LONGLAND: Yes, and the point I wanted to simply make is that there's a certain seductiveness about the presentation of statistics and the confidence that flows from drawing conclusions based on those statistics, but if the issues of work value are to be properly dealt with in a way which I would submit would need to be - - -

PN950 THE COMMISSIONER: They're not going to be dealt with as a part of this process.

PN951 MR LONGLAND: No, and they'll be dealt with as a process where there's someone in the witness box and we've all got access to proper - and we can test those statistics.

PN952 THE COMMISSIONER: I accept all of that.

PN953 MR LONGLAND: Yes, thank you, I just wanted to put that on the record, Commissioner.

PN954 THE COMMISSIONER: What it raises is the merit of the regulatory model that you adopt. If you have a hypothetical example 50 different activities that have 50 different regulatory instruments with various terms and conditions of employment and each of them had a range of classifications and the proposition was put that you should collapse them all down into one classification, then you would have to ask yourself whether that's appropriate or not.

PN955 MR LONGLAND: Indeed, and this process allows the scope to have a classification structure which really draws from all of those previous ones. What it doesn't do is allow us to revalue the work of a mythical sort of employee.

PN956 THE COMMISSIONER: Is there anybody else who wants to add anything more about awards for today? We seem to be finished with that. I might be a convenient time to adjourn for the luncheon break and we'll return at 2 o'clock.

<LUNCHEON ADJOURNMENT [1.13PM]

<RESUMED [2.03 PM]

PN957 THE COMMISSIONER: Good afternoon. Please be seated. Thank you. I think we're still looking at this question of the scope of the Horticulture Award. If I can just sum up in case there's - I might be able to cover any loose ends. My understanding is that it's generally agreed there should be a Horticulture Award. That the making of a Nurseries Award is probably well indicated. That to the extent that issues of overlap exist or need to be considered as between an Agricultural and a Horticultural Award it's necessary to draft words which as far as practicable keep that overlap to an absolute minimum and that the principal which should be adopted is that agricultural producers working in mixing farming operations should not find themselves covered by the Agricultural and the Horticulture Award.

PN958 That the best way to achieve that is for the parties to somehow or other and in particular perhaps Horticultural Australia, the NFF and the AWU, to attempt to come up with an agreed set of words that creates the necessary partitions and leaves mixed farming operations capable of for instance growing vegetables, fruit, and trees. Does that capture the discussion effectively?

PN959 MR DECARNE: Your Honour I don't think that there's intention of the NFF to have mixed farming operations grow fruit as I understand it. I didn't think they wanted fruit included. It was only vegetables.

PN960 THE COMMISSIONER: I see. I'll leave that to the parties. If it is just vegetables that's fine. It will probably make it easier. But with those sorts of

matters dealt with and hopefully addressed in writing by the 10th it seems to me we have the broad outline of the partitioning of the scope of those three awards and their interrelationships if they are to be made by the Full Bench as suggested and that could form the body of the relevant parts of the exposure drafts of each and then if there was any further need for discussion or fine tuning of those aspects of those awards if they were three of that kind then that could be dealt with in the feedback process after the exposure draft. I gather that that's satisfactory to all the parties.

PN961 MR TAYLOR: Yes.

PN962 THE COMMISSIONER: All right. Also just finally that that would involve separating out the processing and packing beyond the farm gate operations, the factory type operations, factory processing operations, for a stage 3 consideration. All right well that's all been noted. Now I think that we can conveniently without necessarily closing it off completely for any further discussion say that that really covers the scope of that part of the agenda that I identified which deals with the question of the award or awards to be made. I've taken on board what Mr Houlihan said about the desirability of developing an Agricultural Services or Services to Agriculture Award and I'll report that to the Full Bench. As for the wine industry I think we've already made the comments about that, that that's likewise probably appropriate for Horticulture Australia, NFF and the AWU to agree upon that form of words which we discussed exclusively or predominantly for the wine industry. Now that may not have covered all the bases but I think it's covered most of them and if there are any left over we'll have to revisit them after any exposure drafts come out.

PN963 So looking at the agenda if I could bring you back to it now. I propose to deal with a number of things which - some have connection with what we've just been talking about and things like definitions and interpretation. There will be subsets of the application clauses which may require definition for clarity of purpose and exclusion and the like. I don't want to go into all of those now because I think they will flow logically from the structure of the application clauses that you draft in the process contemplated. So I don't think there's anything to be said about access to awards. That's going to be a standard provision isn't it? Nobody wants to - - -

PN964 MR DECARNE: We have a provision that it seems HAC supported in their draft for access to the awards. We'd also like to include the pay rates but that's a position of - I think predominantly a union position and the ACTU.

PN965 THE COMMISSIONER: All right well that's been noted. If the pay rates - I suppose it's a question what the award will be comprised of. But I'm assuming - I'm sorry I may have a little bit of a gap in the certainty of my knowledge but these rates are going to be part of the award. They're no longer going to be suspended in this unique space that they've been living in recently. Isn't that right?

PN966 MR DECARNE: Commissioner, it is right and the pay rates we've used in our awards are the current rates. They will need to be updated once - - -

PN967 THE COMMISSIONER: Yes, I understand about that and about the pay rates as such, the rates, the actual amounts of money. What I'm really referring to is if the employer is required to provide access to the award and the pay rate is a part of the award it seems to me that the employer cannot comply unless they provide access to all of the award including the rate of pay.


PN969 THE COMMISSIONER: Whereas under the current regime arguably the employer could post the award with "Please ring Professor Harper" in one part.

PN970 MR DECARNE: Yes. Our clause goes a little further than that but I'll leave that to the Commission.

PN971 THE COMMISSIONER: Well what do you say?

PN972 MR DECARNE: Well we like a scheduling of the rates so that you don't - with the current exposure drafts they're going to be expressed as a percentage, the allowances. So once that allowance each year has been devised to a figure with the automatic update - - -

PN973 THE COMMISSIONER: Yes, all right, I hear what you say. But you don't quarrel with my proposition that the scheme of the legislation that's intended is that the rates of pay will actually be a term of the award?

PN974 MR DECARNE: Not at all.

PN975 THE COMMISSIONER: They won't be in this space created by the statutory innovation that has been operating since the AFPC came into operation. All right. is there anything to be said about awards flexibility?

PN976 MR DECARNE: Commissioner, only in the wool industry. If it's made on an individual basis in the wool industry - we have submitted on this earlier but I'll just highlight this point. These employees work as part of a team so it will need to be made with the team timed to the work part of the flexibility clause. So there might need to be some adaption there.

PN977 THE COMMISSIONER: That's noted.

PN978 MS CORKHILL: We don't have a problem with that.

PN979 THE COMMISSIONER: No.

PN980 MR HOULIHAN: Neither do we, Commissioner.

PN981 THE COMMISSIONER: You'd be punting for the standard clause wouldn't you?

PN982 MR HOULIHAN: I'm sorry.

PN983 THE COMMISSIONER: You'd be all sporting the standard clause.

PN984 MR HOULIHAN: Yes, and - no because of the team nature of shearing the problem - - -

PN985 THE COMMISSIONER: Shearing?



PN988 MR HOULIHAN: We can't have a four stance team and have an agreement with two of them - - -

PN989 THE COMMISSIONER: Mr Decarne referred to the Wool Industry Award.

PN990 MR HOULIHAN: But you were talking about shearing?

PN991 MR DECARNE: I was talking particularly about shearing but we've contained our wool industry - it's within our wool industry - - -

PN992 THE COMMISSIONER: Yes, that's right but that's not what you said.


PN994 THE COMMISSIONER: If I listen to what you say - - -

PN995 MR DECARNE: So the shearing industry in particular.

PN996 THE COMMISSIONER: So for the shearers it should be agreed. Any variation should be agreed.

PN997 MR DECARNE: And shed hands are part of that.

PN998 THE COMMISSIONER: Including the shed hands, all right. We'll take particular note of that. I understand the logic of that. I was thinking about the Wool Industry Award either with or without shearers as including the production processing operations and storage service.

PN999 MR DECARNE: No there's no - - -

PN1000 THE COMMISSIONER: That's what I think about when you say the Wool Industry Award.

PN1001 MS CORKHILL: There's just one matter I'd like to raise the Commission's attention. In the AWU draft Wool Industry Award the first point in the flexibility clause which is arrangements of how work will be performed has actually been taken out, clause (a) in the draft.

PN1002 MR DECARNE: This is to which I was referring that the - when work will be performed it will be performed in a team, so it's individually determined and it's difficult to determine when the team will be working. So that's the reason for the exclusion of that.

PN1003 THE COMMISSIONER: Is anybody representing you know the wool scourers and carbonisers and the producers?

PN1004 MS CORKHILL: Not the NFF, sir.

PN1005 THE COMMISSIONER: No, I didn't think so. Because there are some large operations that may have a specific interest in this question, but anyway we'll move on.

PN1006 MS CORKHILL: I just wanted to clarify that the removal of point (a), arrangements for when work is performed. If that's the reason why that's been removed I'd like that clarified because in the meeting we had with the shearing industry they said they had removed that because they wanted hours of work not to be able to be changed so - - -

PN1007 THE COMMISSIONER: Individually?

PN1008 MS CORKHILL: No at all, at all, by the use of that flexibility clause and so we objected to that in the meeting which we had. My friend wasn't there.

PN1009 THE COMMISSIONER: You objected to the withdrawal?

PN1010 MR HOULIHAN: Commissioner, the union's - what Mr Decarne has said for the union here is acceptable to the people I represent and I understand it's acceptable to the NFF, but that wasn't what was put to us at the meeting in Dubbo last week. What was put to us was that the reason that clause has been withdrawn or taken out or not put in to the AWU's draft is because they don't want any capacity to change working hours. Now one of those is right and one of them is wrong.

PN1011 THE COMMISSIONER: The AWU now accepts that if the shared votes to reorganise their working hours that will be fine.


PN1013 THE COMMISSIONER: Is that the position?

PN1014 MR DECARNE: Well I don't think it's our fixed position no, Commissioner. We have outlined our position within our written submissions but the - - -

PN1015 THE COMMISSIONER: I'm lost. I'm not sure where we are.

PN1016 MR DECARNE: The reason for the removal as I understand it, I wasn't - - -

PN1017 THE COMMISSIONER: No, don't worry about the removal. I want to know what your view about what the award should reflect is in relation to the flexibility?

PN1018 MR DECARNE: We think that there has been a longstanding history of how work will be performed in the shearing industry and we - - -

PN1019 THE COMMISSIONER: And you don't want it changed?


PN1021 THE COMMISSIONER: You want the runs and hours to be the same?

PN1022 MR DECARNE: We do and I think that the runs and hours - besides the hours the runs I think my friend here will agree with me that they want to keep those.

PN1023 THE COMMISSIONER: Let's come to that in due course. All right. We'll deal with that under hours of work. Consultation? Nothing. Dispute resolution

PN1024 MR DECARNE: Commissioner, we support the ACTU's model clause for dispute resolution. We note that HAC has also included that in their draft so I think we - we support that.

PN1025 COMMISSIONER: National Employment Standards following the priority exposure draft?

PN1026 MR LONGLAND: There are when we get to piece rates some issues that assist in the application of the NES but in as much as - - -

PN1027 THE COMMISSIONER: They're set out.

PN1028 MR LONGLAND: Yes, yes.

PN1029 THE COMMISSIONER: Personal carers leave and compassionate leave, any comments? No, standard. Redundancy?

PN1030 MR DECARNE: Redundancy, we note the Commonwealth's statement for small businesses. We didn't actually include that in the Horticulture Award but that was as a result of oversight rather than any intention to not include it and we'd just like to draw attention to that.


PN1032 MR LONGLAND: We'll have a ..... problem with that and I think - - -

PN1033 THE COMMISSIONER: You want small business exemption in accordance with the Commonwealth's submission don't you?


PN1035 MS CORKHILL: And I've covered that in the first submission.

PN1036 THE COMMISSIONER: Yes, that's taken as read. Superannuation?

PN1037 MR LONGLAND: There is an issue that is raised in our submissions concerning payments of contributions whilst absences - whilst employees are absent.

PN1038 THE COMMISSIONER: I don’t know anything about this. What's the story Mr Decarne? This is your idea isn't it or it's allegedly your idea according to the Horticultural Association?

PN1039 MR DECARNE: Sorry I don't understand the question. Sorry could you - - -

PN1040 THE COMMISSIONER: The point that has been raised by Mr Longland is that your draft in horticultural insofar as it describes an obligation upon employers to make superannuation contributions sustains that obligation through a period of sick leave or a period of workers compensation. Now I don’t know anything about this as a subject matter so Mr Longland's clients don't want that and why do you think it should be there? Is that because that's the standard situation or is it - - -

PN1041 MR DECARNE: That is. Yes, that's the position.

PN1042 THE COMMISSIONER: That's the usual position - - -

PN1043 MR LONGLAND: We just looked as you will see from our submission at the identity of the awards that we're collapsing - - -

PN1044 THE COMMISSIONER: Which are mostly NAPSAs.

PN1045 MR LONGLAND: Yes. Including the HIA and the Hop Industry Award and the two federal awards in that list.

PN1046 THE COMMISSIONER: They're just not there at the moment.

PN1047 MR LONGLAND: Yes, neither the - - -

PN1048 THE COMMISSIONER: I think what Mr Decarne is saying is that in the great big world of superannuation particularly within the award system the usual situation is that the contributions have to be continued.

PN1049 MR LONGLAND: Yes. That might be the case but the point is that's not the case in these awards.


PN1051 MR LONGLAND: So we say it's outside of this process to introduce that new matter.

PN1052 THE COMMISSIONER: All right. Look I'll raise that with the Bench and I'll - - -

PN1053 MS CORKHILL: I've submitted along those lines too, sir.


PN1055 MS CORKHILL: There is one particular issue with superannuation in the wool harvesting industry whereby when shearers are working on piece rates the piece rate actually builds in a number of allowances. Now allowances normally do not attract super but - - -

PN1056 THE COMMISSIONER: How can you deconstruct a piece rate because the only exclusion - - -

PN1057 MS CORKHILL: That's the point.

PN1058 THE COMMISSIONER: In the legislation is for anything that isn't ordinary - - -

PN1059 MS CORKHILL: The point is that there is - - -

PN1060 THE COMMISSIONER: There's not even ordinary time in this is there?

PN1061 MS CORKHILL: I'm not saying that it shouldn't happen. I'm saying it should happen and we are saying that we are at one with the union on the submission that all of the shearers - - -

PN1062 THE COMMISSIONER: So it's 9 per cent on the per 100 rate.

PN1063 MS CORKHILL: Yes, but that will need to be inserted.

PN1064 THE COMMISSIONER: The loaded shedhands rate and the per 100 rate.

PN1065 MS CORKHILL: Particularly into the award, yes.

PN1066 THE COMMISSIONER: All right. Termination of employment? Nothing. Let's forget about the titles. Schedule for school based apprentices? Nothing to be said. Supported wage you'll take the standard and national training wage the same. All right well we've got a bracket. I don't think we'll be dealing with transitional arrangements right now. I suspect that's a post exposure draft discussion. Are the parties happy with that if necessary at all? So let's think about hours, penalties, first up. It seems to me that hours is probably you know a fairly significant issue. There's diversity both in the regulation models and within the views of the parties so let's start with the Agricultural Award or the Pastoral Industry Award depending upon the Bench's decision as to the title.

PN1067 MS CORKHILL: Yes. Well the NFF position is that the Pastoral Industry Award of 152 hours over four weeks before overtime cuts in should remain.

PN1068 THE COMMISSIONER: You just keep that, yes.

PN1069 MS CORKHILL: I've submitted detailed submissions about the coverage of that award and where it's not got coverage the industries that are relevant in that area are usually award free. So it's our strong submission that that flexibility of that clause should remain.

PN1070 THE COMMISSIONER: All right. So the logic of your position would go something like this would it if I can anticipate it and that is that is if you're bringing in things like pig breeding, cotton and poultry with their own classification tables and their own hours of work and penalty provisions that are focused on intensive agricultural activity of those specific kinds then really there's no cause to consider changing the hours because you're not bringing anybody else in that isn't already catered for. Is that right?


PN1072 THE COMMISSIONER: What do you say about that Mr Decarne?

PN1073 MR DECARNE: Well besides pigs and poultry there is a few other awards or NAPSAs rather and state awards so - - -

PN1074 THE COMMISSIONER: Which ones are we talking about?

PN1075 MR DECARNE: We've got the Station Hands Award which has five and a half consecutive days Monday to Sunday. We've got Farm Employees Award which is one full day off each week. Then depending on whether the tea industry and hop industry fall we've got five consecutive days per week and Monday to Friday in those. So if we are to - - -

PN1076 THE COMMISSIONER: What do tea and hop go into, horticulture?

PN1077 MR DECARNE: All right well if we've got tea and hop then besides the relevant - - -

PN1078 THE COMMISSIONER: Let's imagine tea, hops and mushrooms are in horticulture.

PN1079 MR DECARNE: All right so if we've also got the Northern Territory Cattle Award - - -

PN1080 THE COMMISSIONER: Yes, what does that say?

PN1081 MR DECARNE: That's five and a half days Monday to Saturday where essential for good husbandry of stock and we understand that's an LHMU award but they informed me before they left that they support you know anything to retain that.

PN1082 THE COMMISSIONER: I'm sure - - -

PN1083 MR HOULIHAN: Commissioner, the LHMU have put to them that they're quite accepting of the Northern Territory Cattle Industry Award moving across onto the pastoral industry terms.

PN1084 MR DECARNE: I think they have revised their position since it has been pointed out to them that their available to work clause in that award is such - - -

PN1085 THE COMMISSIONER: They hadn't read it.

PN1086 MR HOULIHAN: You been helping them?

PN1087 THE COMMISSIONER: Mr Houlihan probably got to them first. I think that's the explanation. There are two issues imbedded in this, aren't there? There's the days of the week on which - well, there's three - days of the week on which the work can be performed. There's the question of how the issue of any penalties that might arise in any configuration of ordinary hours worked in relation to Saturdays and Sundays and public holidays and there is the question of the maximum number of working hours each day. I think we need to spend a little bit of time working our way around these questions.

PN1088 My understanding, Ms Corkhill, is this, that you can work 152 hours continuously under the Pastoral Industry Award.

PN1089 MS CORKHILL: That is underpinned by the Australian Fair Pay and Conditions Standard which there's 38 plus - - -

PN1090 THE COMMISSIONER: I was referring to the award.

PN1091 MS CORKHILL: In the award yes, technically, but nobody would do that.

PN1092 THE COMMISSIONER: That's what we're looking at, isn't it? We're actually looking at what the regulatory prescription actually is as opposed to whether people are mad enough to, you know, try and exploit its boundaries. Potentially, you can just work 152 hours, let's assume you have a break - - -

PN1093 MS CORKHILL: You could do three weeks of 50 hours, say, if one worked 52 and then everything you do after that - - -

PN1094 THE COMMISSIONER: You could work consecutively day after day after day for a certain numbers of each day until you got to 152.

PN1095 MS CORKHILL: It doesn't happen, but yes, technically that's possible.

PN1096 THE COMMISSIONER: I want to start at the outer edge because it's easier to work your way back from there to find what makes sense because it's likely what's reasonable and what people are doing, there's a certain amount of proximity between the two. It's not until you have actually done the 152 hours that you get any penalty rate on a Saturday or a Sunday?


PN1098 THE COMMISSIONER: What's the maximum number of hours per day?

PN1099 MS CORKHILL: There's no maximum number of hours.

PN1100 THE COMMISSIONER: That's what I thought.

PN1101 MS CORKHILL: Can I just sort of break this down a little. There's two issues. There's your spread of hours during the day, 6 am to 6 pm, might be 8 pm or something like that, and then there's days of the week.

PN1102 THE COMMISSIONER: What's the spread of hours again?

PN1103 MS CORKHILL: It varies over the various awards except for the PIA, so spread of hours was dealt by the Commission in regard to the Pastoral Industry Award in 1970 and the reason that a spread of hours, a daily spread of hours was not imposed was because this award covers the country basically and you have the situation, for instance, in the Kimberly, where it's very hot a lot of the time and people do get up and start work and get the bulk of their work done from five in the morning till 10, then they take the middle of the day off.

PN1104 THE COMMISSIONER: Let me just stop there. Is there any real issue with the proposition that work might start in this industry at 5 am?

PN1105 MR DECARNE: The problem that we have is that when work starts, it's more when work ends, Commissioner.

PN1106 THE COMMISSIONER: That's a way of answering the question but my question to you is, given the nature of this industry, the idea that everybody kicks off at 5 am - is there anything sort of particularly spooky about that?

PN1107 MR DECARNE: Not at all, Commissioner. Most of the awards that are brought to the Commission's attention actually start at 5 am.

PN1108 THE COMMISSIONER: How long should it go for and at what time should it not go beyond?

PN1109 MR DECARNE: A maximum of 12 hours - sorry, 10 hours, considering the health and safety, if there's adequate break time.

PN1110 MS CORKHILL: Commissioner, we're not talking about starting at five and working all day. We're talking about a span of hours where overtime isn't paid so if you look at the Kimberly workers, they will start from five and work till 10. they would then have a siesta in the middle of the day and they'll come out later in the day.

PN1111 THE COMMISSIONER: I'm focusing on the pure regulatory provisions.

PN1112 MS CORKHILL: Number of hours.

PN1113 THE COMMISSIONER: Yes. I'm sure that people working in the Kimberly aren't going to be out there at 2 or 3 o'clock in the afternoon voluntarily, and generally speaking, they're simply not going to be there at certain times of the year for sure. They will be out there at 4 o'clock in the morning, if necessary, rather than be out there at 2 or 3 o'clock in the afternoon.

PN1114 MS CORKHILL: Yes, and that was why the Commissioner who heard the case in the seventies, which I'll drag out of the pile if you need it - - -

PN1115 THE COMMISSIONER: I think most of us have some familiarity with the country and work in the country so we readily appreciate that early morning starts are, if anything, preferred by everybody and that there's no real - if you're out there working in the Kimberly or Central Australia or the Northern Territory, the idea of starting work at 9 o'clock in the morning is extremely unappetising.

PN1116 MS CORKHILL: And northern South Australia as well, far west of New South Wales as well.

PN1117 THE COMMISSIONER: It's really a question of how long the day goes for, I think, isn't it, Mr Decarne?

PN1118 MR DECARNE: For us it is, yes.

PN1119 THE COMMISSIONER: And for you? You don't have a problem so much with

PN1120 MS CORKHILL: Philosophically, no, but the Pastoral Industry Award has operated very well with its 152 hours over four weeks and when that's underpinned by the NES and the current standard that we have - - -

PN1121 THE COMMISSIONER: How do you see the two interacting?

PN1122 MS CORKHILL: Well, 38 hours per week plus reasonable additional hours. If it's more than 38 in a week, then it has to be reasonable and so all of the safeguards that are built into reasonable additional hours apply absolutely and we have taken great pains to educate our farmers throughout the last two years on that particular issue. Our view would be no span of hours at all. We haven't had it, we haven't needed it. We don't have a history of large claims for excessive hours. There are times in harvest when yes, they may work a 12 hour day - - -

PN1123 THE COMMISSIONER: Might work 12.

PN1124 MS CORKHILL: - - - and then swap over and the farmer drives all night.

PN1125 THE COMMISSIONER: Or even more in some cases.

PN1126 MS CORKHILL: That is where this clause has come from, to be able to deal with those issues and then they will take off two weeks, time off in lieu or whatever and have a break and in the Kimberly in the same way. They will even pay them for their time off in the wet season. I guess it's the spread of hours - we certainly would object to a spread of hours. We haven't had it and we don't need it, and I note, too, the awards that just have a spread of hours and with no days all have quite a long spread of hours anyway. As the Commission said in that case, putting a sunset to sundown - - -.

PN1127 THE COMMISSIONER: What's the longest spread?

PN1128 MS CORKHILL: The longest spread here I've got here is the Queensland Feedlot and the Queensland Pigs Award. They have a spread of hours with no days, 5 am to 8 pm but even so that may not work in places like the Kimberly. They may well work on. I don't know. We feel it's not necessary. We haven't had it and we don't need it. It's our very strong position that we don't want any restriction on hours during the day.

PN1129 MR HOULIHAN: Commissioner, I was involved in the making of a number of agreements through the Federal Commission and the first one was before, I think,

Leary SDP regarding the cattle industry in northern Australia, in Queensland and the Territory, and what her Honour accepted there was a circumstance where people were employed by the day rather than by the hour because we argued we don't know how many hours they're working, but secondly, a day was the available light and that's not what my friend is putting here but that's another very practical approach to it, but most importantly, the number of days and for argument's sake, Hainsbury, they can work 14 days straight, the AA Company, Australian Agriculture, can work up to 16 days, Consolidated Pastoral could work up to 25 days, but then there is a whole host of offsetting benefits and obligations of OH and S and everything that was spelled out.

PN1130 What was significant was that a senior person in the Commission could see the requirements of the industry to enable that sort of thing to happen. That had to be paid for, it had to be properly supervised, all the appropriate safeguards, but the Commission could see that in all of the circumstances this was a good deal for the employer and it was the best use of leisure and everything available for the employee.

PN1131 THE COMMISSIONER: What does mean for what I should report to the Bench in terms of the questions of hours, spread of hours, specifically?

PN1132 MR HOULIHAN: I think Commissioner, what's happened in the Pastoral Award with the 152 over four limitation, I don't know of any prosecutions about breaches.

PN1133 THE COMMISSIONER: There wouldn't have been any prosecutions because the proposition is that there ought to be a 10 hour day and there hasn't been one.

PN1134 MR HOULIHAN: Commissioner, there could be plenty of prosecutions if people were working beyond that. I don't know of prosecutions under OH and S - - -

PN1135 THE COMMISSIONER: Working beyond 152 in a month?

PN1136 MR HOULIHAN: Yes, over four weeks.

PN1137 THE COMMISSIONER: Yes, but they would have been paid overtime, wouldn't they? The question is whether or not the amount of money paid was the correct amount under the award.

PN1138 MR HOULIHAN: There hasn't been occupational health and safety issues coming out of that. There's absolutely no reason - - -

PN1139 THE COMMISSIONER: What you say is this, that there's no evidence that it has worked to the disadvantage of employees.

PN1140 MR HOULIHAN: Absolutely.

PN1141 THE COMMISSIONER: That's what you're saying.

PN1142 MR HOULIHAN: Absolutely.

PN1143 THE COMMISSIONER: What do you say about that, Mr Decarne.

PN1144 MR DECARNE: My friends here are talking quite anecdotally I think, and - - -

PN1145 THE COMMISSIONER: Feel free to do so.

PN1146 MR DECARNE: To do so as well. I think, within the framing of this modernisation is the health and safety and welfare of employees, the work-life balance. These things have been given to the Commission and considering that we're going to be consolidating so many awards that have a span, we have to consider a span.

PN1147 THE COMMISSIONER: Which awards are going to be consolidated that have a different span?

PN1148 MR DECARNE: Are we taking pigs and poultry out, Commissioner?

PN1149 THE COMMISSIONER: And cotton. MR DECARNE: And cotton out. We have those awards that I mentioned previously as well as - - -

PN1150 THE COMMISSIONER: They are?

PN1151 MR DECARNE: I've tabled these in a list to the Commission.

PN1152 THE COMMISSIONER: How many of them are there?

PN1153 MR DECARNE: I think there's six awards.

PN1154 THE COMMISSIONER: These are sort of, if you like, NAPSA equivalents of the LA Pastoral Industry Award, plus the Northern Territory Cattle Award.


PN1156 THE COMMISSIONER: They have spans and what's the widest span?

PN1157 MR DECARNE: Amongst those awards?


PN1159 MR DECARNE: 12 hours.

PN1160 THE COMMISSIONER: That's the maximum number of hours. Does it have a span of hours?

PN1161 MS CORKHILL: Excuse me, sir, the maximum is 5 am till 8 pm in the Queensland Feedlot- - -

PN1162 THE COMMISSIONER: That's the span of hours.

PN1163 MR DECARNE: Which award is that?

PN1164 MS CORKHILL: An actual maximum per day? I didn't take that figure.

PN1165 THE COMMISSIONER: No, I'm still asking about the span. Let's not confuse the two things.

PN1166 MR DECARNE: Which award were you - - -

PN1167 THE COMMISSIONER: The span of hours is the hours - - -

PN1168 MS CORKHILL: The Queensland Feedlot has any day of the week, 5 am to 8 pm. Queensland Pigs has 5 am to 8 pm any day. New South Wales Poultry Livestock 5 am to 7.30 pm.

PN1169 THE COMMISSIONER: That's the span of hours. Do those awards have maximum numbers of daily hours in them?

PN1170 MS CORKHILL: Those three don't - no, most of them don't, although I can't say - - -

PN1171 MR DECARNE: There are in some of the awards.

PN1172 THE COMMISSIONER: You need to identify them for me, please.

PN1173 MR DECARNE: I'd be happy to do so.

PN1174 THE COMMISSIONER: Can you have a look now?

PN1175 MR DECARNE: Commissioner, it's quite difficult to analyse all the awards, given that I'm on my feet at the moment. I'd have to sit at a table - - -

PN1176 THE COMMISSIONER: All right, you can follow up.

PN1177 MR DECARNE: We did file - - -

PN1178 THE COMMISSIONER: It sounds to me like that in all of the instruments regulating this area, you have a very extensive span of hours, 5 am to whenever, could be 8 o'clock at night. That's just when the hours can be performed so employees might happily say, "Well, we'll work in the morning and when the sun goes down for a while, at evening time." There might be something to be done from four through to 8 o'clock that can be comfortably done at that time. Or people might want to work the ordinary hours in the afternoon and into the night.

PN1179 MR DECARNE: The problem we have is they might be made to do both without penalties and there is no limit.

PN1180 THE COMMISSIONER: Yes, but it seems that that is permitted currently.

PN1181 MR DECARNE: In some of the awards, yes, it is permitted.

PN1182 THE COMMISSIONER: I think you're saying - - -

PN1183 MR DECARNE: In the PIA it is.

PN1184 THE COMMISSIONER: No, no. From what Ms Corkhill has told me there are only a few instruments where it's not permitted along the lines that I've just described. Is that correct?

PN1185 MS CORKHILL: That's correct. the only award I've noted it on here, an actual spread, is the Dairying Industry Award New South Wales which has no more than 12 hours a day ever, but the rest of them - and in fact the Farm Employees Award in Western Australia has no hours at all and no overtime. Although that is subject to the conditions of employment over there which is like the Work Choices legislation, 38 plus reasonable. I haven't identified any where there's no more than a particular - - -

PN1186 THE COMMISSIONER: I'd like you to identify then for me a table of what you say the various relevant awards provide by way of span of hours and maximum number of ordinary hours in a day.

PN1187 MR DECARNE: I'm happy to do so, Commissioner.

PN1188 THE COMMISSIONER: I want you to point out to me why it is that when you look at that regime of regulation there is merit in establishing either a span of hours that is specified according to your point of view, and a maximum number of hours in a day.

PN1189 MR DECARNE: I'm happy to do so, Commissioner. Just regarding the point made by my friend here about time in lieu, there's no entitlement to time in lieu so if that has been given that would be at the good grace of the employer. That would be maybe something - - -

PN1190 THE COMMISSIONER: Sorry, I don't understand what you're saying.

PN1191 MS CORKHILL: It's at the employee's choice.

PN1192 MR DECARNE: There was discussion around time in lieu and I was saying that there was no - - -

PN1193 THE COMMISSIONER: Yes, but time in lieu for what?

PN1194 MR DECARNE: For work performed over 12 hours at times during seasonal harvest. I'll provide the Commission with a further table. There was an annexure to our second submission.

PN1195 THE COMMISSIONER: You're losing me, we're going into another subject which is time in lieu as opposed to the spread of hours and the proposition of a maximum number of ordinary hours to be worked in a day. that's just what we're talking about at the moment, right, not time off in lieu. Is there anything further to be said about this in relation to the Agricultural Award?

PN1196 MS CORKHILL: Yes, and when I'm talking about no more than a certain number of hours a day only being in the Dairying Award, I'm not referring to the Fruit Awards. I've put them aside in the Horticultural Awards.

PN1197 The only other thing I wanted to raise that some of the awards also have a spread of days, Monday to Friday, half a day on Saturday. Lots of them have that.

PN1198 THE COMMISSIONER: We'll move onto that now, days of the week.

PN1199 MS CORKHILL: Yes, and I wanted to point out that the Pastoral Industry Award clause actually had 5½ days out of seven, the half day generally tending - good husbandry stock and good husbandry practices up until 2000. There was a decision of Commissioner Merriman in 1998 and it flowed on in 2000 as part of the 38 hour week and by consent with both the union and the NFF, the set-off for the 38 hour week was the 152 hours over four weeks without the Saturday afternoon and the Sunday.

PN1200 THE COMMISSIONER: Without the?

PN1201 MS CORKHILL: Without the Saturday afternoon and the Sunday.

PN1202 THE COMMISSIONER: What do you mean without the Saturday afternoon and Sunday?

PN1203 MS CORKHILL: It was 5½ days, Monday to Friday and Saturday morning, 40 hours a week.

PN1204 THE COMMISSIONER: Prior to the 38?

PN1205 MS CORKHILL: The 38 hour week came in and as part of the offset for the 38 hour week was that there not be a restriction of the days of the week that were worked.

PN1206 THE COMMISSIONER: So work could be performed on Sunday.

PN1207 MS CORKHILL: Which it is.

PN1208 THE COMMISSIONER: At ordinary time, without penalty until the 152 was - - -

PN1209 MS CORKHILL: Correct, so that's where that originated from. It was a consent decision with the AWU at the time.

PN1210 THE COMMISSIONER: How does the legislation in relation to ordinary hours operate, do you think? I think we're going back to this now. Let's take a scenario where in a week 70 hours is worked. How does that square with the legislation?

PN1211 MS CORKHILL: As I stated before, and NFF have taken pains to educate our people - - -

PN1212 THE COMMISSIONER: It doesn't, does it, or does it?

PN1213 MS CORKHILL: It does. It says that you can only do 38 hours plus reasonable additional hours and therefore those hours have to be reasonable and there is a scale of considerations that employers must take into account, importantly family responsibilities.

PN1214 THE COMMISSIONER: It becomes a sort of circumstantial test.

PN1215 MS CORKHILL: It's a weighing up that the employers' interests, plus the employees' interests has to be done on a weekly basis.

PN1216 THE COMMISSIONER: You see, I'm anticipating some discussion about this at Bench level because I would have thought that the first port of call for a Bench sitting on this subject will be look at the legislation and ask themselves the question of well, how sort of fitting, if you like, are these hours provisions with the legislative prescription, and I guess what I'm going to say to them is your view is that each employer is going to have to make their own decision about what's a reasonable number of additional hours and that could be any number, according to the employer's view of the circumstances.

PN1217 MS CORKHILL: Yes, except that they don't and that there's a skill shortage in the industry.

PN1218 THE COMMISSIONER: With all due respect, I do understand that but what we are focused on is the pure reality dimension of what we're asked to, in the case of the Full Bench, sign. We’ll look at that and the question for analysis becomes that under this award you could work 70 hours in a week; you could work 10 hours a day for seven days a week, and that’s not entirely implausible in harvest time or whatever.


PN1220 THE COMMISSIONER: That could be quite common.

PN1221 MS CORKHILL: Accepted.

PN1222 THE COMMISSIONER: So the question becomes do you think that that is a reasonable number of additional hours, given that you’re making a regulation that will permit it? Is it consistent with the statutory standard which has been legislated?

PN1223 MR LONGLAND: Can I just - - -

PN1224 THE COMMISSIONER: No, I would like to hear Ms Corkhill on this. What do you say to that? You’re part of a discussion, for example, and you try to come to some sort of answer.

PN1225 MS CORKHILL: Well the situation is that that is what we have in the principal federal award, which is the starting point for this discussion.

PN1226 THE COMMISSIONER: Yes, but you didn’t have the statutory provision before that. Commissioner Merriman was not confronted with this problem, was he?

PN1227 MS CORKHILL: No, but I would submit that occupational health and safety questions have always arisen in the industry anyway.


PN1229 MS CORKHILL: The point is that that is what we have to start to work with in this award, and my submission is that - - -

PN1230 THE COMMISSIONER: Yes, but the modernised award has to be consistent with the statutory framework, doesn’t it? That’s a legal requirement.

PN1231 MS CORKHILL: Well yes, my submission is that it is consistent.

PN1232 THE COMMISSIONER: Yes, because?

PN1233 MS CORKHILL: Because once those hours have been worked, overtime or time in lieu, paid time off in lieu, is payable. There are protections.

PN1234 THE COMMISSIONER: But is that relevant? I mean, the purpose of the 38 hours is not exclusively to trigger an overtime rate of pay and in fact it doesn’t, does it?


PN1236 THE COMMISSIONER: Only the award creates the overtime entitlement. So a proper appreciation of the hours standard in the legislation is legislative policy, is that it’s about the amount of hours to be worked. It’s not about the amount of overtime to be paid.

PN1237 MR LONGLAND: I may be able to assist, if I may.

PN1238 THE COMMISSIONER: Well no, I would like to hear Ms Corkhill out.

PN1239 MS CORKHILL: I don’t have any more to say on that, sir.

PN1240 THE COMMISSIONER: All right. Because it seems to me that it’s difficult - and I’m not suggesting that it’s any fault of yours - but it’s difficult to actually make a forcible submission, for instance that if you have a statutory prescription of 38 hours plus a reasonable number in addition, that you might work something like double that in a week, and that could be a reasonable number of additional hours.

PN1241 MS CORKHILL: Well the purpose of it is - I mean, the traditional purpose of it was to be able to cover harvest periods which are busy times anywhere.

PN1242 THE COMMISSIONER: The purpose of?

PN1243 MS CORKHILL: The purpose of the 152 hours over four weeks; the rolling hours, is to cover those busy times and then allow time off. That hasn’t changed. It’s still the same time. Harvest times in the grain industry are still busy.

PN1244 THE COMMISSIONER: Well this industry probably presents some of the more complicated challenges that are associated with the statutory provision.

PN1245 THE COMMISSIONER: Yes, exactly, and our submission is that any interference with that clause would be just contrary to the request and contrary to the award modernisation process, because that’s what is working now in the industry. That’s what we’ve had, that’s what is in the principal award and that should be maintained. Now having said that, this award modernisation process is bringing in other awards that haven’t necessarily been covered by the Pastoral Industry Award, and we will need to take account of those; and my friend and I have been discussing how we can manage to do that for the intensive piggeries who have got very highly specialised - - -

PN1246 THE COMMISSIONER: Yes, this is a different issue. It’s about the idea of how you, as a regulatory body charged with a particular responsibility, reconcile the statutory direction you’re getting with the factual circumstances.

PN1247 MS CORKHILL: I can see your point but I say that the 38 hours plus reasonable additional hours sits underneath that, and it’s always there.


PN1249 Mr Longland, you were - - -

PN1250 MR LONGLAND: Yes, I just want to make one point and that is this.

PN1251 THE COMMISSIONER: Longland, I beg your pardon.

PN1252 MR LONGLAND: That there is no inconsistency because the Workplace Relations Act does not limit the working of hours. The Workplace Relations Act permits the working of 70 hours, 100 hours, 150 hours.

PN1253 THE COMMISSIONER: Arguably.

PN1254 MR LONGLAND: The Workplace Relations Act is directed to a request or a requirement of an employer. So it says the employer can’t require the working of more than 38 hours plus reasonable additional hours. It does not say that an employer and an employee can’t agree to work 200 hours, and they can agree to do that with no breach of the Act, hence there’s no inconsistency with the PIA provision.

PN1255 THE COMMISSIONER: All right. I’ll convey that to the Bench.

PN1256 You wanted to say something about this? Sorry?

PN1257 MR WILLIAMS: Can I just make a - I know it has been previously - - -

PN1258 THE COMMISSIONER: Yes, perhaps you might announce your name again?

PN1259 MR WILLIAMS: Jamie Williams from the Pearl Producers Association. I know our submission says that the award doesn’t apply to us, but if I could just put this just in case it’s found that it does. In our industry it’s critical that we get flexible working hours. The two main issues that are really critical is that we remain sustainable - the industry - and also that we remain viable. Now we come from - our industry works across the north west of Australia there. We’ve got a lot of variable situations that affect our working days and hours. Things like the remoteness; we’re very remote out there. All the farms are on the water and we’re subject to very diverse seasonal conditions; cyclones, rain; tidal influences, all those sorts of things. We’ve got strict government regulation and controls on certain things that we do. We’ve got traditional land owners that own a lot of our leases, that we’ve got to be very careful where we go on, and those sorts of things. We’ve got environmental issues all the time, safety issues. The majority of our industry works on a fly-in fly-out basis, if you like, or a boat-in boat-out situation, because you can only get out to our sites via aeroplane or by boat. That’s the most viable way we have found to continue working in this industry. So in that case you could be working a 14 days seven days off roster, or you could be working a four week roster with a two weeks off break.

PN1260 THE COMMISSIONER: Would you be able to - I don’t think there’s any great urgency attached to it, but would you be able to suggest a pattern of working hours for your industry?

PN1261 MR WILLIAMS: Well, when you say - yes, we could probably do that, sir.

PN1262 THE COMMISSIONER: With appropriate limitations and any penalty rates that you think are appropriate.

PN1263 MR WILLIAMS: We pay an overall salary at the moment, sir, which is substantial.

PN1264 THE COMMISSIONER: I mean, one way of doing it would be that you might actually advance an annualised salary for a certain number of hours per year.

PN1265 MR WILLIAMS: That’s the way we do it at this stage.

PN1266 THE COMMISSIONER: All right. Well you might be able to set that out.

PN1267 MR WILLIAMS: All right.

PN1268 THE COMMISSIONER: I think it would be beneficial for the Commission to know what you’re doing now.

PN1269 MR WILLIAMS: Yes.

PN1270 THE COMMISSIONER: That way we can take into account what the consequences of any decision would be on what you’re currently doing.

PN1271 MR WILLIAMS: Thank you.

PN1272 MS CORKHILL: Commissioner, I’ve just looked at something while my friend was speaking. I think I might have misled the Commission. There is a Queensland Pig Award which has 10 hours a day and a Poultry Award in New South Wales which has 10 hours a day.

PN1273 THE COMMISSIONER: That’s all right. They’re all going to be in their tables, aren’t they?

PN1274 MS CORKHILL: I just didn’t want to have misled you, Commissioner.

PN1275 THE COMMISSIONER: Yes, fair enough.

PN1276 Mr Decarne, do you want to say anything more on this?

PN1277 MR DECARNE: No Commissioner.

PN1278 THE COMMISSIONER: Are there any other submissions on the subject of the number of hours per day and the spread within which they might be performed?

PN1279 MR B JEFFRIES: Commissioner, I just want to say, for example, and this is not an extreme - - -

PN1280 THE COMMISSIONER: If you just announce yourself again, would you?

PN1281 MR JEFFRIES: Sorry, Brian Jeffries from the Australian Tuna Industry. I just want to say that the Kimberleys, for example, is not an extreme case. We in the tuna industry often on a lot of days travel at least two hours to the farm itself and then two hours back.


PN1283 MR JEFFRIES: So for example for a 6 am harvest we leave at 4 am.


PN1285 MR JEFFRIES: It just would not be practical and not viable to have even a limit on the hours per day, even though they might be sometimes demanded by OH&S.


PN1287 Yes.

PN1288 MR F MCMAHON: Thanks, Commissioner. McMahon, F, Tassal Operations Tasmanian Salmon Growers Association. Just in respect of this question of the 38 and the additional hours, the Request under section 576 goes to the NES and says some things about what the Commission might or might not do. One of those is that even though they might otherwise be inconsistent with the NES averaging of hours of work. It seems to me that that puts some of this discussion around what the Commission decides it can deal with, which is still inconsistent in inverted commas with the NES, to deal with averaging where it’s necessary. That’s all, Commissioner.

PN1289 THE COMMISSIONER: All right. Saturdays and Sunday work; anything further on that?

PN1290 MR LONGLAND: Are you seeking to - - -

PN1291 THE COMMISSIONER: Still to agriculture, yes.

PN1292 MR DECARNE: We would support penalty rates on Saturday and Sunday, Commissioner.

PN1293 THE COMMISSIONER: Yes, all right, well tell me a bit more about it.

PN1294 MR DECARNE: Well again - - -

PN1295 THE COMMISSIONER: On each Saturday or Sunday.

PN1296 MR DECARNE: On Saturday time and a half and on Sunday double time. That’s - - -

PN1297 THE COMMISSIONER: That’s for each Saturday or Sunday?


PN1299 THE COMMISSIONER: What is the situation with public holidays under the Pastoral Industry Award?

PN1300 MS CORKHILL: All paid at double time, sir.

PN1301 THE COMMISSIONER: Yes, regardless of whether or not it’s within the 152 or not?


PN1303 THE COMMISSIONER: So we only need to concern ourselves with Saturday and Sunday, if at all. Is that right, from your point of view?

PN1304 MR DECARNE: That’s right.

PN1305 THE COMMISSIONER: So this is ordinary time worked on Saturdays and Sundays.

PN1306 MR DECARNE: We would see ordinary time as stopping on the Friday night.

PN1307 THE COMMISSIONER: Let’s assume the ordinary time was permitted to be worked on Saturday and Sunday, because there’s nothing at all unusual about the working of ordinary time on Saturday or Sunday in Australian industry, is there?

PN1308 MR DECARNE: There isn’t.

PN1309 THE COMMISSIONER: Right, and as I understand it - correct me if I’m wrong - there are no regulatory provisions of any weight in the field that we’re looking at that would prohibit the working of ordinary time on Saturdays or Sundays.

PN1310 MR DECARNE: With pig, poultry and cotton aside, and the awards I’ve mentioned.


PN1312 MR DECARNE: But there are those awards I have mentioned.

PN1313 THE COMMISSIONER: All right, so you haven’t got much to rely on the proposition that somehow or other the Commission ought to suddenly prohibit the working of ordinary hours on Saturdays and Sundays in the agricultural area, have you?

PN1314 MR DECARNE: I will be tabling a document, but besides that - - -

PN1315 THE COMMISSIONER: What is that?

PN1316 MR DECARNE: That document is the list that I undertook to table for you earlier on.

PN1317 THE COMMISSIONER: Which list?

PN1318 MR DECARNE: A list of the awards that do have a span and ordinary hours ending before - that don’t average over 152, might average over 72. A list of awards - - -

PN1319 THE COMMISSIONER: No, no, focus on one thing now.


PN1321 THE COMMISSIONER: Hours of work can be performed on Saturdays, Sundays and public holidays, we know that.


PN1323 THE COMMISSIONER: They can be the ordinary hours of work or they can be overtime hours or they can be shift hours. Now that’s common, isn’t it?

PN1324 MR DECARNE: It is.

PN1325 THE COMMISSIONER: The question I’m asking you is, in the weight of those instruments that we’re looking at in this field, is there anything which prevents the working of ordinary hours on Saturdays and Sundays?

PN1326 MR DECARNE: In the weight of the awards?

PN1327 THE COMMISSIONER: In the weight of them.


PN1329 THE COMMISSIONER: No, and particularly if what you have got is a set of discrete wages and hours of work for pig breeding and raising poultry and cotton, there would seem to be none.

PN1330 MR DECARNE: Not none Commissioner(sic).

PN1331 THE COMMISSIONER: So there are some awards outside that scope that do not permit the working of ordinary hours. I’m not talking about without penalty. I’m talking about the working of ordinary hours on Saturday and Sunday.

PN1332 MR DECARNE: Not preventing without penalty, no. Sorry, Commissioner.

PN1333 THE COMMISSIONER: No, okay. So we need to be conceptually rigorous. We’re just talking about the permission by the regulatory instrument that the ordinary hours of work can be worked on Saturday and Sunday.

PN1334 MR DECARNE: Not that I’m aware of, no.

PN1335 THE COMMISSIONER: They may impose a particular regime at payment, but they do not prevent it from happening.

PN1336 MR DECARNE: That’s correct.

PN1337 THE COMMISSIONER: All right. So the next step is, if the ordinary hours of work are permitted to be worked on Saturdays and Sundays and let’s leave aside public holidays, then what is the position as to instruments other than those regulating the pig breeding and raising the poultry and the cotton?

PN1338 MR DECARNE: I’m happy to undertake to provide the Commission with a table on that.

PN1339 THE COMMISSIONER: There are ordinary hours worked on the weekends?

PN1340 MR DECARNE: That’s my understanding.

PN1341 THE COMMISSIONER: Under those other instruments and they have penalties applied to them.

PN1342 MR DECARNE: That’s my understanding, Commissioner.

PN1343 THE COMMISSIONER: Right, and you are going to provide a table of those.

PN1344 MR DECARNE: I am.

PN1345 THE COMMISSIONER: Right. Can you just tell me, for example, which one you’re referring to? What is the most prominent one in your mind?

PN1346 MR DECARNE: Commissioner, there is actually already an appendix to our second submission which lists many awards and highlights the spans and overtime provisions.

PN1347 THE COMMISSIONER: Sorry, just bear with me for a moment.

PN1348 MR DECARNE: We have extracted the overtime provisions and the spans of hours, so this has already been provided to the Commission. Not in table form, but I’m happy to do that.

PN1349 THE COMMISSIONER: Yes, you’ve set them out in clause form.


PN1351 THE COMMISSIONER: Yes, can you do it in table form?

PN1352 MR DECARNE: I’m happy to do that, Commissioner.

PN1353 THE COMMISSIONER: Very well. So in essence you are saying that the situation in the pastoral or agricultural industry, however we define it, with the exception of pig breeding, raising poultry farming and cotton growing ....., ought to change from a 152-hour model that it currently is, to a Monday to Friday model

with ordinary hours able to be performed on the weekend. So it’s a Monday to Sunday model, is it?

PN1354 MR DECARNE: It’s going to take me time to analyse the awards. My considerations and earlier submissions were based on poultry and pigs being included within an agricultural award and not scheduled. As I mentioned earlier, we were sort of guided by the Commission’s exposure to - - -

PN1355 THE COMMISSIONER: No, I understand that. All right, so you can’t really answer the question.

PN1356 MR DECARNE: Well not - - -

PN1357 THE COMMISSIONER: But it sounds to me like if you were going to propose - if you take those three sectors and you preserve their existing core effort bargain features, which are the rate of pay and classification, the ordinary hours of work, the penalties and overtime provisions, which gives you the number of paid hours everybody gets for the work that they perform, and look elsewhere, that you will need to focus very sharply on what it is that could warrant a broad or general concept of a Monday to Friday industry. Do you accept that?

PN1358 MR DECARNE: I accept that, Commissioner.

PN1359 THE COMMISSIONER: Because that becomes quite challenging, doesn’t it?

PN1360 MR DECARNE: It does. If it’s to preserve the status quo it does become quite challenging but as I mentioned there were some - - -

PN1361 THE COMMISSIONER: No, no, the change to the status quo is what I’m thinking. Because when I read your submissions as they have originally been put - and obviously they’re going to be modified as a result of today - you were essentially advocating a Monday to Friday model.

PN1362 MR DECARNE: We were.

PN1363 THE COMMISSIONER: You were advocating a situation that where there was no spread of hours, there would be a spread of hours within the Monday to Friday model.

PN1364 MR DECARNE: Yes Commissioner, might I note though that when we were making these submissions the NFF at that point had proposed one agricultural industry - - -

PN1365 THE COMMISSIONER: I’m not being critical of you.


PN1367 THE COMMISSIONER: I’m just trying to make sure that we lay out where you were so that we can figure out where it’s likely to go to, as a result of today’s discussions; what progress has been made can be mapped. So you had a Monday to Friday model, a maximum spread of hours where there was none before. You had a maximum number of hours each day where there was none before. You were proposing that overtime be paid on the weekends.

PN1368 MR DECARNE: Respectfully, may I submit that that’s not what we were proposing, no.


PN1370 MR DECARNE: We were proposing the spread of hours but it wasn’t where that didn’t exist before. That was considering the possible inclusion of horticulture, pig breeding, poultry; these were thing that we were anticipating that the other side were going to put into an award.


PN1372 MR DECARNE: So they had two discussion papers with these agricultural industries included. So it wasn’t where there wasn’t before; it was just considering other award scope issues.

PN1373 THE COMMISSIONER: Understood, yes. So if that’s the case, we’re dividing up into horticulture and agriculture and we’re now talking about agriculture. You’ve got pigs, chickens, cotton over here. You’ve got what we could call broad acre agriculture, not necessarily confined to your draft definition but something like that; a bit broader than that. In that area the question I think you have to address is does the 152-hour model still present you with a problem?

PN1374 MR DECARNE: I’ll address that in that. With the table I’ll attach some submissions.

PN1375 THE COMMISSIONER: Yes. Good thanks.

PN1376 Anything else to be said about hours of work and penalties and by implication overtime, in relation to the agricultural award?

PN1377 MS CORKHILL: Not from me, Commissioner.

PN1378 THE COMMISSIONER: I presume that it is accepted by all concerned that if the number of ordinary hours is set and if there is a limit to the number in the day or a spread of hours within which the work can be performed, and there is any excess over and above that performed, that that would be paid for at overtime rates?

PN1379 MS CORKHILL: We have given any consideration to there ever being a span of hours or ordinary time on Saturday.

PN1380 THE COMMISSIONER: No, but if for instance it was 10 hours a day or 12 hours a day, or if it was 5 am to 8 pm and the work was performed outside the span of hours, I’m raising the question are there any submissions about overtime?

PN1381 MS CORKHILL: Well we wouldn’t be agreeing that overtime be paid in that regard, no. We would say you - were a span of hours to be put in, the 152 over four weeks would still stand.

PN1382 THE COMMISSIONER: Yes, that’s your preferred position.


PN1384 THE COMMISSIONER: You want the 152. You’ve got an overtime regime now.


PN1386 THE COMMISSIONER: But if the regime were to change, I’m just giving you the opportunity to address it now. What if it was a 12-hour day? The maximum number of ordinary hours to be worked in a day was 12 or the spread of hours was 5 am to 8 pm; what about an hour that’s worked after 8 pm?

PN1387 MS CORKHILL: We certainly wouldn’t be agreeing to that.

PN1388 THE COMMISSIONER: Well I’m not asking you to agree to that. I’m asking you what do you - - -

PN1389 MS CORKHILL: Our view is that we would object to that.

PN1390 THE COMMISSIONER: I think you’re probably addressing - you’re not addressing the question.

PN1391 MS CORKHILL: I’m sorry.

PN1392 THE COMMISSIONER: We are assuming that those things happen. I’m not asking for anybody to agree to anything. I’m simply giving you an opportunity to make a submission. What if the spread of hours was five to eight and employees worked all the way from 5 am to 8 pm and there wasn’t a 152 limitation? Is there any other issue that should be considered in relation to what the rate of pay should be post-8 pm, for example? You haven’t thought about that?


PN1394 THE COMMISSIONER: All right. Well perhaps that’s the answer. You had not thought about it.


PN1396 THE COMMISSIONER: I just flag it in case you wanted to say something about that. Time off in lieu, that sort of thing. What rate of pay should it be? Time and a half, time and a quarter, anything of that nature. It’s an opportunity. It’s not a negotiation. It’s an opportunity to address that possibility because it’s clearly been put that there ought to be some maximum number of hours in a day. There ought to be a spread of hours. If the Bench were to say “Yes, it’s appropriate to have a spread of hours. Yes, it’s appropriate to make it 5 am to 8 pm”. The logical consequence for any exposure draft is you’ve got to say what happens after 8 pm.

PN1397 MS CORKHILL: I suppose following on from what you said previously about looking at the other statutory inputs, I would say that that’s not relevant. If we’re just talking about protecting workers from hours - - -

PN1398 THE COMMISSIONER: Yes, you’re saying why you wouldn’t do it. Why you wouldn’t fix a spread of hours between 5 am and 8 pm; that’s what you’re addressing, isn’t it?

PN1399 MS CORKHILL: I’m saying that if hours like that were to be fixed then that is addressing the issue of extra hours rather than overtime payments, is it not?

PN1400 THE COMMISSIONER: I guess that’s what I’m raising.

PN1401 MS CORKHILL: I don’t have instructions on that. I’m sorry, I would have to consult - - -

PN1402 THE COMMISSIONER: You might give some consideration to that. What should be the consequences if there was to be a maximum number of ordinary hours per day, or a spread of hours.

PN1403 MS CORKHILL: Yes, well I absolutely don’t have instructions on that.

PN1404 THE COMMISSIONER: No, well I’m just putting you on notice.

PN1405 MS CORKHILL: I will take instructions. Thank you.

PN1406 THE COMMISSIONER: If the AWU’s point of view found favour then it raises some questions for the Bench.

PN1407 What do you say about the overtime rates that should apply if your submission is accepted that there ought to be some sort of maximum number of hours in a day or a spread of hours?

PN1408 MR DECARNE: We say time and a half.

PN1409 THE COMMISSIONER: For?

PN1410 MR DECARNE: For the first two hours and then after that double time.

PN1411 THE COMMISSIONER: All right. How do you come to the two?

PN1412 MR DECARNE: Well without some consideration of the awards it’s - - -

PN1413 THE COMMISSIONER: Have you considered them?

PN1414 MR DECARNE: I think there was two in a few of them but I would say on balance there would be three. But that would be our preferred position.

PN1415 THE COMMISSIONER: Yes, but that’s a bit like a log of claims really, isn’t it? Pick the most favourable number. What we’re more interested in here is what overtime penalty, if any, best fits the requirements of the Request?

PN1416 MR DECARNE: I would have to have a look at - - -

PN1417 THE COMMISSIONER: All right. If you address this from the point of view of “Look, there are some instruments that have time and a half for the first two hours, and some have three, and we prefer two”, we understand what your preference is. But what we do not understand is why it is that you say that this best fits the Request?

PN1418 MR DECARNE: Again, I’m happy to table what I’ve already included at the back of that.

PN1419 THE COMMISSIONER: In the form of a table.

PN1420 MR DECARNE: Yes, in the form of a table and then probably give the Commission a better informed position.

PN1421 THE COMMISSIONER: Yes, and make a statement about how you think the Bench should go about choosing, if it does, any overtime penalty.

PN1422 Ms Corkhill, that has some implications for you, doesn’t it? Because even after the 152 there’s overtime, isn’t there?

PN1423 MS CORKHILL: There is indeed, sir.

PN1424 THE COMMISSIONER: What is your view on that? MS CORKHILL: Can I just say that such a proposition is just anathema to us. It just will not work in the industry. It would devastate the farming industry.

PN1425 THE COMMISSIONER: What proposition?

PN1426 MS CORKHILL: The proposition that we have overtime or weekend hours outside the 152 over four weeks.

PN1427 THE COMMISSIONER: I’m talking about the 152 now. After the 152 you pay overtime.


PN1429 THE COMMISSIONER: That is?

PN1430 MS CORKHILL: Time and a half and double time on Sunday unless it’s tending stock, which is time and a half.

PN1431 THE COMMISSIONER: Yes, it’s time and a half for all overtime, is it?

PN1432 MS CORKHILL: Time and a half for all overtime except for Sunday work which is double time, unless that is tending - - -

PN1433 THE COMMISSIONER: Is that the case under all of the NAPSAs and other instruments that are going to be gathered up under this agricultural award?

PN1434 MS CORKHILL: Leaving poultry and pigs aside, it is in the South Australian Pastoral Industry Award. Some of them I haven’t noted, I’m sorry, actually how the overtime is paid.

PN1435 THE COMMISSIONER: Well this is really an opportunity for you to address this.


PN1437 THE COMMISSIONER: Because if for instance there was a set of NAPSAs which had significantly different overtime provisions than the Federal Pastoral Award - let’s assume that there were X at NAPSAs and they were all time and a half for the first three hours.


PN1439 THE COMMISSIONER: And you’re time and a half for everything, the question is going to arise at the Bench level as to which way we’re going.

PN1440 MS CORKHILL: Yes, I can understand that.


PN1442 MS CORKHILL: That’s an exercise that I can easily do.

PN1443 THE COMMISSIONER: Now that might not be the case. There might be one NAPSA with time and a half for the first three hours.

PN1444 MS CORKHILL: If we hive off pigs and poultry, basically you’ve got the Dairy Award of New South Wales, bearing in mind that that’s only a tiny proportion of the dairy industry. The majority is Common Law Pastoral Industry Award in Victoria, like 6000.

PN1445 THE COMMISSIONER: It seems inescapable that there will have to be a decision about the overtime rate, won’t there?

PN1446 MS CORKHILL: What I’m submitting is that there are very few awards and very few employees if we hive off poultry and pigs.


PN1448 MS CORKHILL: There’s the Western Australia Farm Employees Award which has no overtime, the New South Wales Dairy Award, and the South Australian PIA which has the same time and a half and double time.


PN1450 MS CORKHILL: Cotton, poultry, poultry. So there are not very many really, once we hive those off.

PN1451 THE COMMISSIONER: All right, unless anybody else wants to make a submission at the moment about hours, overtime, days of the week, spread of hours in the mooted agricultural award, the pastoral award. Can we move to the horticulture award in the same respect. What do you say about that, Mr Decarne?

PN1452 MR DECARNE: Well we’ve got quite a few submissions to make on the hours of work in horticulture because there has been quite a few drafts floating around. Firstly, we oppose the AI Group’s expansion from Monday to Sunday at clause 22.4. In earlier submissions and drafts the NFF went to a pastoral industry type span of hours which is 152 over four, but I know that they’ve now rectified that and they’ve relied on the HIA. They also brought that to the Commission’s attention at paragraph 71 of their most recent submissions. Our approach has been based on the HIA and that’s at clause 26.2. There has been in discussions some suggestion by HAC and other parties that the Fruit and Vegetable Growing Industry Award State ordinary hour provisions should be applied in the horticulture industry. We say that that’s at odds with the President’s statement of 29 April where he says that we should start with the principal federal award, and we say there’s no requirement to take the span of hours provisions in the Fruit and Vegetable Growing Industry Award State into account at all. We say that HAC’s approach is also inconsistent with their analysis of the Commission’s task at paragraph 2.3.

PN1453 THE COMMISSIONER: What do you say?

PN1454 MR DECARNE: I say six to six Monday to Friday as it is already in the Horticulture Industry Award. I think that we’ve got an award, we’ve got - - -

PN1455 THE COMMISSIONER: What are the countervailing instrumental provisions?

PN1456 MR DECARNE: Countervailing?

PN1457 THE COMMISSIONER: Yes, well you say it’s six to six in the federal Award, Monday to Friday. What are the other instruments?

PN1458 MR DECARNE: Well as I said, there’s the Fruit and Vegetable Growing Industry Award State.

PN1459 THE COMMISSIONER: Yes, what do they provide?

PN1460 MR DECARNE: Sorry?

PN1461 THE COMMISSIONER: Broadly speaking, what do they provide?

PN1462 MR DECARNE: They don’t - they allow for weekend work. HAC has sort of attempted to - - -

PN1463 THE COMMISSIONER: Weekend work is what?

PN1464 MR DECARNE: Weekend work meaning that there is no overtime kicking in on Monday - sorry, Sunday and Saturday.

PN1465 THE COMMISSIONER: When the ordinary hours of work are?

PN1466 MR DECARNE: The ordinary hours of work could be included.

PN1467 THE COMMISSIONER: Can be worked over seven days a week?


PN1469 THE COMMISSIONER: All right. So you’re relying on the federal Award provision?

PN1470 MR DECARNE: We are. We say that applies to the vast majority - - -

PN1471 THE COMMISSIONER: My recollection of my reading of Horticulture Australia’s submission is they say the dominant scenario, if you look at the NAPSAs, is not Monday to Friday.

PN1472 MR DECARNE: We would disagree with that.

PN1473 THE COMMISSIONER: You disagree with that?

PN1474 MR DECARNE: We do, and we also think that the NFF and their approach they are taking, disagree with that. I would say that the approach of the other parties to the process appears to disagree with that.

PN1475 THE COMMISSIONER: All right. I’ll just hear from Mr Longland. Have I misrepresented you?

PN1476 MR LONGLAND: No you haven’t, Commissioner.


PN1478 MR LONGLAND: If you have a copy of the submission.

PN1479 THE COMMISSIONER: I do. Just bear with me for a moment.

PN1480 MR LONGLAND: If I can take the Commission to - - -

PN1481 THE COMMISSIONER: Yes, go ahead.

PN1482 MR LONGLAND: As my friend has pointed out, the key starting point for my clients in relation to this issue is whether you categorise the Horticultural Industry Award AWU 2000 as in “principal Federal Court” as the term is used in the President’s 29 April statement. In our submission of course there are a number of pages devoted to why you wouldn’t do that. I suppose to hit the nail - - -

PN1483 THE COMMISSIONER: Well my understanding in terms of the relevant issue here is that you’re saying that the hours of work in the NAPSAs really ought to be the touchstone.

PN1484 MR LONGLAND: Not exactly. What we’re saying is if you look down through the 16 awards you get five different formulations. What we’re saying is you shouldn’t just pick the one which is least flexible of those five.

PN1485 THE COMMISSIONER: Yes, well that’s I meant, but you should look at them principally.

PN1486 MR LONGLAND: Correct. You should look at those five categories and make a decision about when you collapse them down to one.

PN1487 THE COMMISSIONER: What page are we on, again?

PN1488 MR LONGLAND: 22 to 23 of my submission is where the five bullet points appear. You’ll see two-thirds of the way down on page 22, of the 16 instruments that have been collapsed into this new modern award, seven of them specify that ordinary hours can be worked on any day of the week. The second prescription is that ordinary hours can be worked on any five consecutive days out of seven and

that’s found in two NAPSAs. The third prescription is that there is a splitting in tasks. There are two NAPSAs where packing and sorting work has a spread from Monday to Friday but picking and growing work has no spread. So, if you like, for picking and growing there are now nine NAPSAs that have got no limitation. The fourth formulation is that ordinary hours can be worked Monday to Friday only, but with the agreement of a majority of affected employees they can be working the weekends. That’s a Tasmanian NAPSA. There’s just one of those. The final prescription is the HIA Hop Industry Award, the two federal instruments at 16, and the Tasmanian Plant Nurseries Award and the WA Dried Vine Fruits Award 1951, which all specify that the spread is Monday to Friday.

PN1489 So what we say when you look at those is we make two submissions, two alternatives. The first is what we’ve got in our draft; 152 over 28 days.


PN1491 MR LONGLAND: So it’s an average - - -

PN1492 THE COMMISSIONER: This is not paginated numbered so can you give me the clause number in your draft award.

PN1493 MR LONGLAND: 24.

PN1494 THE COMMISSIONER: 24, right. So what is the alternative?

PN1495 MR LONGLAND: Alternative number 1 is the first one that appears.


PN1497 MR LONGLAND: 152 over 28 days. The ordinary hours cannot exceed 10 hours in any one day so that’s a limitation that we have - - -

PN1498 THE COMMISSIONER: And five out of seven.

PN1499 MR LONGLAND: No, because five out of seven is the second alternative.

PN1500 THE COMMISSIONER: Yes, that’s what I meant.


PN1502 THE COMMISSIONER: I thought you were talking about the second one.

PN1503 MR LONGLAND: Sorry, you’re right. But what I wanted to point is that as you look at - - -

PN1504 THE COMMISSIONER: Sorry, what is the first one? 10 hours a day?

PN1505 MR LONGLAND: Yes. 10 hours a day is the maximum number of ordinary hours that can be worked on a day.


PN1507 MR LONGLAND: You’ll see that there are two alternative subparagraphs that come from the existing instruments, that say there is a way around that if you get agreement.


PN1509 MR LONGLAND: Then it says “any work performed outside the ordinary hours must be paid at overtime rates”. Overtime rates are similar to my friend’s at time and a half. On Sundays they’re double time but there’s a provision, as there is in most of these awards, for time in lieu to be given at the election of the employee.

PN1510 THE COMMISSIONER: At the overtime rate?

PN1511 MR LONGLAND: No, one to one.

PN1512 THE COMMISSIONER: One to one.

PN1513 MR LONGLAND: Yes, but the employee can make the election.


PN1515 MR LONGLAND: Now what we say to our alternative to clause 24 - and I’m anxious not to be criticised here for trying to bring in something new, or to use some sort of merit point.

PN1516 THE COMMISSIONER: Don’t worry, you’re not in a legal proceeding.

PN1517 MR LONGLAND: What we’re saying is that when you look at those five different prescriptions you’ve got a fairly varied rate. A way around it is to choose something in the middle, which is any five out of seven. But in order to make sure that employers don’t have increased costs in the manner directed, you create this concept of a time critical period. A concept which is not new. These

awards refer to harvest periods in relation to a whole range of hours arrangements. So we say to the employer “You can only work five ordinary hours on five consecutive days out of seven. But if you can show that there is some time critical period work - you’ve got to harvest the zucchini before it gets to nine inches because it will be worth nothing, and after it’s at seven inches when it’s worth nothing, or some such example - in those circumstances you can work your ordinary hours on any seven days of the week. So it’s an effort really to give the Commission an alternative which tries to fit within the Request’s framework.

PN1518 THE COMMISSIONER: I have to assume Mr Decarne in response. What is wrong with these two? Have you had a look at these?

PN1519 MR DECARNE: I have had a look at those.

PN1520 THE COMMISSIONER: Part 5.

PN1521 MR DECARNE: I think number 2 is quite inventive but - - -

PN1522 THE COMMISSIONER: That’s amenable to you?

PN1523 MR DECARNE: Sorry?

PN1524 THE COMMISSIONER: That’s amenable to you?

PN1525 MR DECARNE: Not at all.


PN1527 MR DECARNE: No, not at all. We think the HIA takes predominance here. It’s the principal federal award. To look at these, the Commission might, but they’re not required to. We think that there are other considerations besides the costs to employers, as my friend her has pointed out. There are also the needs of the low paid, the safety, health and welfare of employees, the need to balance family and work responsibilities of employees. So these haven’t been regarded at all in my friend’s submission. We think that we’ve got a clause, we’ve got a HIA clause that has worked, and is working.

PN1528 THE COMMISSIONER: All right, tell me about that one again.

PN1529 MR DECARNE: The clause is six to six, Monday to Friday, overtime will kick in after that. We’ve stayed pretty true to the - - -

PN1530 THE COMMISSIONER: What are the NAPSAs providing at the present time?

PN1531 MR DECARNE: Well besides the fruit growing, they’re pretty well spelt out in - - -

PN1532 THE COMMISSIONER: Yes, but what are they providing?

PN1533 MR DECARNE: As my friend said, there’s a difference amongst the NAPSAs.

PN1534 THE COMMISSIONER: What do you think the situation is?

PN1535 MR DECARNE: There is definitely more flexibility within the NAPSAs.

PN1536 THE COMMISSIONER: I think we need to cut to the chase here. What is the quantum of penalty that is being applied? What days of the week are the ordinary hours able to be worked on?

PN1537 MR DECARNE: Under which instrument?

PN1538 THE COMMISSIONER: Under the NAPSAs.

PN1539 MR DECARNE: Under the NAPSAs it varies. Sundays vary, Saturdays vary. It varies across the NAPSAs.

PN1540 THE COMMISSIONER: I think Mr Longland is saying the variation is not that great.

PN1541 Is that what you’re saying?

PN1542 MR LONGLAND: No, I’m saying that there are a range of variations, but we shouldn’t shoot for the bottom. We should find somewhere in the middle. Can I just make two comments. This is not about the number of hours that are worked. This is about payment. This is about when you pay single time and when you pay double time. So it’s not an OH&S issue in that sense.

PN1543 THE COMMISSIONER: It’s about both, isn’t it?

PN1544 MR LONGLAND: The second thing is - and it’s best to - whether this is the principal federal award, the point I’ve tried to make here is that there are 25,000 permanent employees in Queensland alone that have never had restrictions about - - -

PN1545 THE COMMISSIONER: All right, you proceed on the assumption that maybe what the President said needs to be reconsidered in this particular context; all right?


PN1547 THE COMMISSIONER: If that were the case, what I’m trying to get at is what is the weight of regulation?

PN1548 MR LONGLAND: The weight of regulation is not to impose Monday to Friday only. The weight of regulation is that you can work ordinary hours at the weekends, either carte blanche in the case of seven, without limitation.

PN1549 THE COMMISSIONER: Then a five out of seven.

PN1550 MR LONGLAND: Or any five out of seven, that’s right.

PN1551 THE COMMISSIONER: But with a maximum number of hours per day.

PN1552 MR LONGLAND: Ten per day, correct.

PN1553 THE COMMISSIONER: Sorry, Mr Decarne you want ten per day Monday to Friday?

PN1554 MR DECARNE: We want to maintain the provisions within - - -

PN1555 THE COMMISSIONER: No, no, do you want ten per day Monday to Friday?


PN1557 THE COMMISSIONER: So the real issue becomes whether or not ten per day five out of seven is permissible?

PN1558 MR DECARNE: Well we would still see the span of hours in HIA being the principal federal award as - - -

PN1559 THE COMMISSIONER: I know that Mr Decarne.

PN1560 MR DECARNE: Yes, well that's - - -

PN1561 THE COMMISSIONER: That's understandable. We don't need - - -

PN1562 MR DECARNE: - - - summarily our position.

PN1563 MR TAYLOR: Commissioner, Taylor from the Australian Industry Group. The one issue that hasn't been mentioned for this particular sector horticulture we're talking about perishable goods here as well. So that it is important to keep in mind that for example those growers providing fresh fruit and vegetables to the supermarkets are being required to do the picking and packing on the weekend during the span of hours in order to meet their client's demands and that should be taken into account in a - - -

PN1564 THE COMMISSIONER: I don't think Mr Decarne is opposed to the work being performed on the weekends.

PN1565 MR TAYLOR: In relation to the cost of - - -

PN1566 THE COMMISSIONER: I think the issue Mr Longland has pointed out is the actual rate of pay that should apply.

PN1567 MR WARREN: Commissioner, might I be heard? Warren for API. Might I hand up a document that might assist the Commission? The document is a précis of position or sections of the provisions of the Horticultural Industry State Award New South Wales, a NAPSA. If one looks at the hours clause it is ten hours a day except bunchy top detectors.

PN1568 THE COMMISSIONER: Monday to Sunday.

PN1569 MR WARREN: Monday to Sunday 5 am to 8 pm.

PN1570 THE COMMISSIONER: What's a bunchy top detector?

PN1571 MR WARREN: It's in the banana industry. It's a terrible disease of bananas, Commissioner. I thought you might be aware of that.

PN1572 THE COMMISSIONER: It's found its way into the award.

PN1573 MR WARREN: Yes, well you've got to protect the bananas as well, sir, and the detectors. You don't want them working too long now and they obviously can't work in the dark. Saturdays and Sunday ordinary time on - - -

PN1574 THE COMMISSIONER: I thought it might be something they used at the airport.

PN1575 MR WARREN: They're sniffer dogs but that's not an issue. One will see the ordinary time there is Saturday time and a quarter, Sunday time and a half.

PN1576 THE COMMISSIONER: All right. On to the next question then. Thank you Mr Warren. If ordinary hours were able to be worked on Saturdays and Sundays at what rate of pay Mr Longland?

PN1577 MR LONGLAND: At the ordinary rate.

PN1578 THE COMMISSIONER: So no penalty for Saturday or Sunday work?

PN1579 MR LONGLAND: No, because it - - -

PN1580 THE COMMISSIONER: Is that the current situation?


PN1582 THE COMMISSIONER: So that when you say the current situation the weight of the regulation is that work can be performed either five out of seven - - -


PN1584 THE COMMISSIONER: - - - or alternatively over all of the seven days of the week?

PN1585 MR LONGLAND: Yes, well the ordinary hours can be performed.

PN1586 THE COMMISSIONER: The ordinary hours can be performed. They are also performed at the ordinary rate of pay during that period of time without penalty?

PN1587 MR LONGLAND: Yes. Now the exception is if it's more than ten a day penalty rates kick in or if it's over 152 over four weeks penalty rates kick in.

PN1588 THE COMMISSIONER: All right, good. Mr Decarne, if ordinary hours were to be worked on the weekend?

PN1589 MR DECARNE: Well we wouldn't see them as ordinary hours on the weekend. We'd see them as penalty rate hours.

PN1590 THE COMMISSIONER: I know you do.

PN1591 MR DECARNE: Well then there's - - -

PN1592 THE COMMISSIONER: You've told me that.

PN1593 MR DECARNE: Well they're similar to the overtime provisions contained in the HIA. We'd see the rates - - -

PN1594 THE COMMISSIONER: Why would you pay overtime for ordinary hours?

PN1595 MR DECARNE: Well I guess this is a moot point isn't it? If they are ordinary hours then there wouldn't be overtime paid but we wouldn't see - - -

PN1596 THE COMMISSIONER: But you see it's common in Australia for ordinary hours of work to be performed on Saturdays and Sundays and a payment of a penalty is paid in addition to the ordinary time rate of pay when the ordinary hours are worked on Saturdays and Sundays, but it is not the overtime penalty. That's the distinction and I think Mr Warren has pointed this out because - perhaps I'm confusing what he said.

PN1597 MR WARREN: In clause 9, Commissioner.

PN1598 THE COMMISSIONER: Yes. You see in the document Mr Warren has just tabled you see this NAPSA which is the New South Wales Horticultural Industry Award, allows ordinary hours of work to be worked on any of the seven days of the week but it applies an ordinary time penalty on Saturdays and Sundays. This is very common. It has existed in the past and I'm sure it still does in the retail industry.

PN1599 MR DECARNE: Commissioner our - - -

PN1600 THE COMMISSIONER: The question I'm asking you is not about overtime work on Saturday, it's about if - - -

PN1601 MR DECARNE: The time and a half - - -

PN1602 THE COMMISSIONER: If say this applied - - -

PN1603 MR DECARNE: Time and a half for the first three hours of Saturday and then double time thereafter Saturday afternoon and Sunday.

PN1604 THE COMMISSIONER: What the ordinary time rates?

PN1605 MR DECARNE: The same.

PN1606 THE COMMISSIONER: Why?

PN1607 MR DECARNE: Because the principal federal award pays those rates so if you wanted to change the terms - - -

PN1608 THE COMMISSIONER: As overtime rates though doesn't it?

PN1609 MR DECARNE: I know but we would see these as ordinary - - -

PN1610 THE COMMISSIONER: You think overtime rates and ordinary hour penalty rates on the weekend are exactly the same thing?

PN1611 MR DECARNE: I don't but I think that they should be paid at that rate.

PN1612 THE COMMISSIONER: They could be or they possibly could be, but what the reason for doing so would be in light of this NAPSA escapes me. That's what I'm asking.

PN1613 MR DECARNE: This NAPSA stands alone yes but when we have a principal federal award that covers three states and names respondents - - -

PN1614 THE COMMISSIONER: You keep on telling me you want that to be the award, you want to follow the President's statement.

PN1615 MR DECARNE: That's our position.

PN1616 THE COMMISSIONER: I know that. We've got that part. We're beyond that now. We're looking at the alternative. What if the view were to be taken by the Bench that in this case as is urged by Horticultural Australia that statement is difficult to apply because the weight of regulation is in the NAPSAs and when you look at the NAPSAs if the Bench says all right let's look at the NAPSAs you're saying what should happen if you looked at the New South Wales award is that instead of getting five and a quarter - - -

PN1617 MR DECARNE: We're speaking about the - - -

PN1618 THE COMMISSIONER: Instead of getting time a quarter you already get time and a half and then double time.

PN1619 MR DECARNE: Weight of regulation or weight of application I think is the difference here. There could be quite a few NAPSAs that might have that but then it's not the application of that award that's relevant here. I mean it is the application of that award that's relevant here and I guess if we were to speak hypothetically on ordinary time being over the weekend we will want the highest possible rate that the Full Bench would allow.

PN1620 THE COMMISSIONER: All right. I hear what you say but I don't think they're going to be particularly thrilled with that idea. I think what they'd be wanting to hear from you is if the employers say look at the NAPSAs because there are particular circumstances here for the ordinary time rates of pay, don't impose the federal award ordinary hours regime on everybody who's currently not covered by it because it's the tail wagging the dog. Look at the NAPSAs. They're going to be thinking well what's the union got to say if we go down that path and what I'm hearing you say is well if you look at the state NAPSA and it says you can work the ordinary time on Saturday and Sunday you don't want the time and a quarter, you want time and a half for the first two hours, double time thereafter on Saturday and double time on Sunday as if it was overtime.

PN1621 MR DECARNE: Commissioner, if we're to look at the NAPSAs, if we are to look at the NAPSAs, we've got to look at the NAPSAs holistically. There are other provisions within the NAPSAs that are more preferential. We've stuck to the HIA in our drafting. If we're going to look at these NAPSAs with more light then we've got to look at them 20 per cent piece rate time in the Queensland NAPSA, we've got to look at some of these other provisions as well. This is definitely a cherry picking exercise on hours. Hours aren't the only thing that a preferential - sorry hours aren't the only preferential thing in the HIA. So we've stuck true to the HIA in accordance with the President's statement.

PN1622 THE COMMISSIONER: I know that. You keep reiterating that.

PN1623 MR DECARNE: I'm just not understanding where we're going with this hypothetical.

PN1624 THE COMMISSIONER: I can't rule in your favour right now so there's no point in trying to stick the nail through my head. I've got the message that you prefer to use the federal award.

PN1625 MR DECARNE: Correct.

PN1626 THE COMMISSIONER: However the process is I've got to report back and I've got to say what the other parties have to say as well and then I'm going to get some questions and the question that I would have thought is very logical what did the union say if you were looking at the NAPSAs and you spread the ordinary hours over the seven days?

PN1627 MR DECARNE: Well I would have to say that considering the President's statement we haven't put consideration to that hypothetical.



PN1630 THE COMMISSIONER: I'll tell him that.

PN1631 MR LONGLAND: I should say I wasn't aware of this, Commissioner, and I'm sure - well at least I think I'm sure that it doesn't exist in the Queensland one because I've looked at that one more closely. I can certainly prepare a short table - - - THE COMMISSIONER: Yes, please do.

PN1632 MR LONGLAND: Because I'm happy to - I don't think I'm going out on a limb by saying what we're after is and it reflects what is the predominant current practice and if it is point 2.5 then - - -

PN1633 THE COMMISSIONER: Well you've said there's some variation.

PN1634 MR LONGLAND: There is.

PN1635 THE COMMISSIONER: And you're unable to say who's employing - well you said there were 26,000 people in Queensland employed is that right?

PN1636 MR LONGLAND: Permanent employees.

PN1637 THE COMMISSIONER: Permanent employees 26,000 in horticulture that - - -


PN1639 THE COMMISSIONER: And what you're saying is those people can work over the seven days and when they work over the seven days they perform the ordinary hours up to a maximum of ten per day - - -


PN1641 THE COMMISSIONER: How many in a week?

PN1642 MR LONGLAND: It's 152 over four.

PN1643 THE COMMISSIONER: Right. Ten per day and they don't get paid overtime until they've worked 152.


PN1645 THE COMMISSIONER: They don't get any penalties for the weekend.

PN1646 MR LONGLAND: No. Now I wasn't aware of this ordinary time penalties but I'll - - -

PN1647 THE COMMISSIONER: This looks like a common rule state award of New South Wales, is that right?

PN1648 MR WARREN: It is indeed Commissioner. It's a conglomeration of awards. You'll see in the - - -

PN1649 THE COMMISSIONER: I beg your pardon.

PN1650 MR WARREN: You'll see in the old duration clause. The potato growers, the horticultural garden employees, the fruit growing, were all wrapped up into the horticultural award.

PN1651 THE COMMISSIONER: So they're all in there. They're all getting ordinary time. Penalties on Saturdays and Sundays in New South Wales.

PN1652 MR WARREN: Precisely.

PN1653 THE COMMISSIONER: So we could have thousands of people in New South Wales.

PN1654 MR WARREN: Sorry, Commissioner, and the federal award that my friend is saying should be the principal award - - -

PN1655 THE COMMISSIONER: Applies in New South Wales.

PN1656 MR WARREN: Does not apply - - -

PN1657 THE COMMISSIONER: Does not apply in New South Wales.

PN1658 MR WARREN: If one looks at the schedule B respondents there isn't a New South Wales respondent.


PN1660 MS CORKHILL: If I could just correct that. Schedule A does apply in New South Wales and that's the other part of the horticulture industry - - -

PN1661 THE COMMISSIONER: You mean the schedule.

PN1662 MR WARREN: You mean the other part not this part.

PN1663 MR LONGLAND: I will do that analysis.

PN1664 THE COMMISSIONER: Yes. But you'd accept wouldn't you Mr Longland that this throws up quite a difficulty does it not for the Commission?

PN1665 MR LONGLAND: Yes, absolutely.

PN1666 THE COMMISSIONER: Not for you obviously. You've got a situation in Queensland where it's seven days a week ten hours a day any number of hours up to 152 before you get anything in addition to the ordinary time rate and in New South Wales whenever you work on a Saturday or a Sunday if it's ordinary time you get an ordinary time penalty.

PN1667 MR LONGLAND: And this is why in my written submission I draw attention to a submission that Australian Business Industrial put in because from a very high level and a perspective of principle they examined what happens when you have a range of NAPSAs and I think made some pretty decisive comment about what we're doing here is making a flexibility available. Whereas if we choose the least flexible we're imposing something. At a point of principle I think there's something in that. On the one hand you're imposing on employers extra time for the weekends. If you go the other way all you're doing is making - - -

PN1668 THE COMMISSIONER: What happens to the employees in New South Wales?

PN1669 MR LONGLAND: If the employers don't take that flexibility and use it - - -

PN1670 THE COMMISSIONER: Aren't you imposing it on the - - -

PN1671 MR LONGLAND: Well nothing happens to them because the employer has got to decide to use that flexibility. It's not an easy question, Commissioner.

PN1672 THE COMMISSIONER: The employer says, "Hey you guys you're all working seven days a week for three weeks straight and forget about your" - - -

PN1673 MR LONGLAND: What Australian Business Industrial point out is that the Commission is not doing that.

PN1674 THE COMMISSIONER: No, you sort of cut across that. Doesn't that impose something on the employees in New South Wales if we take away their Saturday and Sunday ordinary time penalty?

PN1675 MR LONGLAND: Provided they perform work on Saturdays and Sundays.

PN1676 THE COMMISSIONER: Yes, that's right. Well by the nature of the industry you've made an argument and others have that it's quite useful to be able to work on Saturdays and Sundays and in fact it's almost unavoidable.


PN1678 THE COMMISSIONER: We're told that everything has to be ready to go to market on Monday morning. So we can take it for granted that in New South Wales they're not going to stop working on Saturdays and Sundays any time soon particularly if they don't have to pay penalties for the ordinary hours are they?

PN1679 MR LONGLAND: Correct. The other issue - - -

PN1680 THE COMMISSIONER: So that's going to impose something on the employee.

PN1681 MR LONGLAND: It will, it will. The other issue though is that the request does talk about these awards being - modern awards being safety net awards that are required to make provision for efficient performance of work and that's not something which can be lost when you've got - - -

PN1682 THE COMMISSIONER: What do you mean by efficient performance of work? Do you mean work at a lower cost?

PN1683 MR LONGLAND: Well to enable work to be performed on Saturdays and Sundays.

PN1684 THE COMMISSIONER: But work is already able to be performed on Saturdays and Sundays.


PN1686 THE COMMISSIONER: Mr Warren has just showed us how it's organised.


PN1688 THE COMMISSIONER: Well we've got a bit of a problem here haven't we?

PN1689 MR LONGLAND: We have.

PN1690 THE COMMISSIONER: In fact it's not the only problem we've got in the horticultural business. It's like classifications of work is another problem of some significance is it not? But we'll come to that in a moment.


PN1692 THE COMMISSIONER: Yes, well we'll take some note of that. Life is not going to be easy when it comes to ordinary time on the weekends and in particular ordinary time penalties on the weekends in the horticultural section. So let's just go back to the - - -

PN1693 MR TAYLOR: Commissioner?

PN1694 THE COMMISSIONER: Yes, sorry. Go on.

PN1695 MR TAYLOR: Taylor from Australian Industry Group. If the Commission is minded to increase the costs on some employers which we oppose, for example taking the Queensland example of penalty rates now being imposed, we have included in our draft Horticultural Award schedule B transitional provisions, something which the Commission is considering in stage 1 of the award modernisation process.

PN1696 THE COMMISSIONER: I'm going to proceed on the assumption for the purpose of all of these discussions that from a structural perspective if there are any transitional costs which fall out of the exposure draft or the modern awards or if there's any reduction in terms and conditions of employment of employees that they will be addressed when considering any relevant transitional provisions. That's the assumption I'm going to make otherwise we're just hypothesising and then creating hypothetical transitional provisions so we'll have this exponential infinite speculative process. I think we've probably had a pretty good discussion about hours of work, days upon which work may be - ordinary hours may be performed and the circumstances under which they might be performed and the maximum number of daily hours. What about spread of hours? Is there any issue about spread of hours in horticulture?

PN1697 MR LONGLAND: Well there's no spread in terms of times of day, five to eight or six to six.

PN1698 THE COMMISSIONER: Currently in existence.

PN1699 MR LONGLAND: And that's - well there is some currently in existence but we say the preponderance is that there's not.

PN1700 THE COMMISSIONER: It's unregulated.

PN1701 MR LONGLAND: Yes, well the reason is there's a maximum of ten a day in most of the awards, so rather than saying a start time and finish time they just say no more than ten.


PN1703 MS CORKHILL: I'm sorry but that isn't the case.

PN1704 MR LONGLAND: I'll be corrected.

PN1705 MS CORKHILL: Mushrooms have 5 am to 8 pm. Tas fruit and veg six to six. Western Australian dried fruit seven to six. WA fruit doesn't.

PN1706 MR LONGLAND: There's 16 awards - - -

PN1707 MS CORKHILL: New South Wales ..... has 5 am to 8 pm. Queensland fruit and veg doesn't and the HIA does.

PN1708 THE COMMISSIONER: Ms Corkhill thanks for that. I gather that as far as horticulture is concerned you're more or less in an observant role is that - - -

PN1709 MS CORKHILL: No, we have a significant role. We have the Tasmanian Farmers and Graziers Association - - -

PN1710 THE COMMISSIONER: Yes, but insofar as the discussion is concerned you're really sort of observing it and - I've a reason for that question. As I was about to suggest Mr Decarne and Mr Longman that this question of this spread of hours could you produce a table as well?

PN1711 MR LONGLAND: Yes, I intend - - -

PN1712 THE COMMISSIONER: A spreadsheet type scenario.

PN1713 MR LONGLAND: Yes, with the instruments down here and the - - -

PN1714 THE COMMISSIONER: I was going to relieve you of any need to participate. That was the idea, but if you wanted to be involved obviously you’d get - - -

PN1715 MS CORKHILL: I would like to be involved thank you.

PN1716 THE COMMISSIONER: But if they were prepared to do the work and I'm assuming that if they both check one another off then you'd probably rely on it and they've provide it to you.

PN1717 MS CORKHILL: Yes, well consistent with our approach that the PIA should be the principal federal award and not be interfered with our approach is also that the HIA is the principal - - -

PN1718 THE COMMISSIONER: All right. Mr Warren, do you want to be involved in those - - -

PN1719 MR WARREN: Yes. Well not me but certainly my client API would certainly like to be involved.

PN1720 THE COMMISSIONER: Yes, all right. Well can the parties make sure you distribute that for verification purposes.

PN1721 MR LONGLAND: Of course yes.

PN1722 THE COMMISSIONER: Send it in to us and - - -

PN1723 MR DECARNE: Commissioner, for the benefit of time we've already scheduled those provisions in the attachment but we'll tabulate that - - -

PN1724 THE COMMISSIONER: They're set out in their original text form aren't they?

PN1725 MR DECARNE: Yes, so we'll tabulate that.

PN1726 THE COMMISSIONER: No, what I'm talking about is - yes a spreadsheet type scenario.

PN1727 MR LONGLAND: It doesn't just merely dump every clause in. It says what the span is. In the case of each award it says - - -

PN1728 THE COMMISSIONER: So it will be a sort of Excel type presentation where you have your various columns and you have the NAPSA and then spread of hours.

PN1729 MR LONGLAND: Yes, weekends - - -

PN1730 THE COMMISSIONER: You know maximum number of daily hours, zero, ten, 12, whatever it is.

PN1731 MR LONGLAND: Yes, yes.

PN1732 THE COMMISSIONER: Ordinary hours days of the week Monday to Friday, that will be the federal award, any seven days.


PN1734 THE COMMISSIONER: And then the 152 where it applies and then overtime when it applies et cetera. So if you can provide a spreadsheet I think the Full Bench would find that much more convenient than having to - I mean I just can't see them having the time to read each and every clause if you follow what I mean. It's just not going to be possible to read 16 different convoluted hours of work, days of the week, maximum days, ordinary time on the Saturday and Sunday provisions and reach some sort of coherent conclusion after that much reading.

PN1735 MR DECARNE: Should we give some weight to the relevance of each of these NAPSAs - - -

PN1736 THE COMMISSIONER: You can make a submission in addition to the table, yes.


PN1738 THE COMMISSIONER: All right. If we come back to classifications of work now and then the only thing that we'll have left over is other matters not dealt with.

PN1739 MR HOULIHAN: Commissioner, there is a matter that I let slide past before. I wasn't attuned to it. There are actually two issues. One was public holidays; this is in the agricultural area or the pastoral. My friend Mr Ferrari has left but in their draft award that they talk about going across into this from the Northern Territory cattle industry they've taken the liberty of changing the provisions of public holidays for the payment in the Northern Territory Cattle Industry Award and in the Pastoral Award is at double time. The LHMU have sought two and a half times and have also sought a minimum of four hours pay.

PN1740 THE COMMISSIONER: These currently don't appear in the Pastoral Industry Award I take?

PN1741 MR HOULIHAN: No. Neither of those provisions appear in either the Pastoral Award - - -

PN1742 THE COMMISSIONER: Well, they're just claims, aren't they?

PN1743 MR HOULIHAN: Yes, fine.

PN1744 THE COMMISSIONER: Because if they're not in the Northern Territory award and they're not in the Pastoral Industry Award it's hard to imagine what the reason for putting them in would be.

PN1745 MR HOULIHAN: That's right. The other issue is the issue of district allowance in the Northern Territory.

PN1746 THE COMMISSIONER: That's a general question, isn't it?

PN1747 MR HOULIHAN: And whether this place is actually the place deal with that.

PN1748 THE COMMISSIONER: The Bench is dealing with matters of general - - -

PN1749 MR HOULIHAN: Right.

PN1750 THE COMMISSIONER: They have already made specific observations and that's a matter that's still effectively under consideration as to whether district allowances should form as part of an award. All right. Now, I just want to make some - I think we'll stick with horticulture because I think your classification story is pretty straight forward, isn't it?

PN1751 MS CORKHILL: It is.

PN1752 THE COMMISSIONER: That is to say the agricultural sectoral classification scenario is pretty straight forward.

PN1753 MR DECARNE: We wouldn't have thought so, Commissioner.

PN1754 THE COMMISSIONER: Beg your pardon?

PN1755 MR DECARNE: We wouldn't have thought that the agricultural classification story is straight forward.

PN1756 THE COMMISSIONER: All right, go ahead.

PN1757 MR DECARNE: Well, we created a classification structure upon melding the pigs and poultry within and dairy as well.

PN1758 THE COMMISSIONER: Well, let's assume we've disaggregated those but dairy is in.

PN1759 MR DECARNE: Well, to disaggregate it then we're going to have to consider it all again, Commissioner.


PN1761 MR DECARNE: Our classification structure - - -

PN1762 THE COMMISSIONER: But your motive in that merge - well, with all due respect, I think you had a difficult problem because I had a look at it myself. There was a very large number of classifications. There were what we might call a lot of very imperfect descriptors. A lot them were pretty vacuous and you were trying to create a stepped structure which, you know, is of a much more modern kind and with all due respect, the difficulty of the problem I think, you know, came out when you read your classification structure and you're trying to imagine how people working in the industry would actually be classified by the employers.

PN1763 Could I say also I thought from a regulatory point of view there were some issues about the certainty that could be generated by the classification descriptors that you drafted. Do you follow what I mean by that?

PN1764 MR DECARNE: I do, Commissioner, but we did stage through to what we had in front of us. We've tabulated all the classification structures. We've put a lot of work into that so I'm happy to provide what we've got to - - -

PN1765 THE COMMISSIONER: Well, just go back to your submission for a moment. This is your original submission for a moment; this is your original submission.

PN1766 MR DECARNE: The original submission, yes.

PN1767 THE COMMISSIONER: It's in your draft award, isn't it? This is the Agriculture Award you drafted we're talking about, is that right?

PN1768 MR DECARNE: Yes. May I explain what we did here, Commissioner?


PN1770 MR DECARNE: We based our classification structure broadly on the Pig Breeding Raising Award because of its level structure. We tried to accommodate the three PIA classifications, the various poultry classifications, the five level structure in the Feedlot Industry Award, the seven level structure in the Breeding and Raising of Pigs Award and the four level structure in the Northern Territory Cattle Industry Award. Now, we also added an extra classification of specialist dairy operator because that was the top of the pig breeding classification because that was in the Dairy Employees State Award.

PN1771 So if we're to unmeld the pigs and poultry now then there will be more work to do but we still will probably need this dairy classification level if dairy is to be included within the Agricultural Award. But the bottom three wage rates relate well to the pastoral industry classifications and the others are just the other awards and all of those are based on, you know, the current updates. So I'm happy to provide the Commission with a table and Excel spreadsheet on what we've done and the comparison of these classifications but if we're unmelding the pigs and poultry it's the relevance of the actual classifications in terms of their inclusion in our award which is probably diminished a little bit by it.

PN1772 THE COMMISSIONER: All right. Well, you've drafted this and I assume you've had a look at this, Ms Corkhill?

PN1773 MS CORKHILL: Yes, I have.

PN1774 THE COMMISSIONER: What's your general response?

PN1775 MS CORKHILL: To be quite frank, Commissioner, I spent much more of my time trying to get scope and overlap sorted out and have left classifications. We did draft a generic classification clause when we had the proposal for a single Agricultural Industry Award and everybody on certainly the employers' side thought that that was appropriate. But that hasn't been submitted because just before 31 October the decision was made to split into two. So I haven't given it a significant amount of consideration.


PN1777 MR HOULIHAN: Commissioner, we did a lot of work with the cattle companies. Most of them I think are five grades and they've got quite detailed descriptors and in my opinion I thought they were very good and I'd be happy to make them available to Mr Decarne and to the Commission and to the other parties because I think they give a lot of detail of sort of pretty modern application.

PN1778 THE COMMISSIONER: I'm just looking at the clock. It seems to me that there are two ways to go here and which you choice you might make could depend

upon the time available within the process and - no, there's an expeditious approach which is taking the pigs, poultry, et cetera, having tables, preserving all their terms and conditions of employment and their - well, the core terms and conditions of employment. Not all of their terms and conditions of employment, obviously, because they're going to be affected by various other considerations such as the NES and the like.

PN1779 The other approach is an approach which is sort of represented by what you've drafted and probably is what Ms Corkhill was working on but did not file and is probably not unlike the considerations that Mr Houlihan has just referred to and that is the idea of a new classification structure for the award with appropriate wage rates and descriptors. I suppose there's a question of what the relative merits of the two approaches are which we ought to discuss and I touched on this earlier when I said, well, if you're going to collapse a lot of things together you're going to have a look at the classification that, you know, captures all of the work and the tasks and the various levels of the task performance of the employees and that's probably what you were working on when you were looking at one award, Ms Corkhill.


PN1781 THE COMMISSIONER: Now, that's sort of what the AWU has done and it's obviously what was done in the Cattle Industry Award specifically for that award in the context of that industry in that locality. I mean, if you were to adopt a fairly rigorous sort of regulatory approach, there's a lot to be said for the idea that you would work up a new classification structure that had the right fit with the work to be performed under the instrument.

PN1782 The other approach is, well, that could take some time and there may be differences of opinion that would have to be sorted out and whether you could ever get to a consensus or whether you could ever narrow the issues down sufficiently to come to a relatively sound and comfortable conclusion in the context of the request. It might be problematic.

PN1783 The other side is the more expeditious approach will bring you to a landing fairly quickly. My thinking is and I think you've probably been there, Mr Decarne, from what you've said already is that if you take the tabular approach to those industries that we've mentioned, you're probably going to get to a relatively quick landing, but you'll probably leave the PIA classification pretty much untouched. Is that right?

PN1784 MR DECARNE: If it's cordoned off, yes, within the award.

PN1785 THE COMMISSIONER: Sorry?

PN1786 MR DECARNE: If it's cordoned off into parts in the award, yes.

PN1787 THE COMMISSIONER: All right, yes, cordoned off, yes, but I don't want to create a situation where what might actually be an opportunity for the parties to get a high quality outcome with a single classification structure to pass unnecessarily.

PN1788 MR HOULIHAN: Commissioner, I don't think that's a real issue because, look, I mean, the position that we started off with when we were first retained to start work on this whole process was that there would probably need to be an extensive Agriculture Award, an intensive Agriculture Award and extensive Animal Husbandry Award, an intensive Animal Husbandry Award and so on and I think we envisaged about six or seven awards because of the - largely because of the complexity of classifications and the differences of works.

PN1789 Now, I think if what we're talking about now is having within an Agriculture or a Pastoral Award a pig section, a poultry section and so on, well, then it would seem to me that the place you start is you put those existing classifications in. My concern, my original concern I believe still holds true, that the complexities between them are really too great certainly in the sort of time frame that we're operating under, maybe in a review of the award there's the capacity to do that, but I think if we're going to simply adopt those things and I don't think that's a bad idea, I think it's a good idea, you know, in terms of practicalities, that's a good way to go, but I just don't think, you know, if we had another 12 months, maybe we could do something about the classifications that could go right across, but not short of it.

PN1790 THE COMMISSIONER: Ms Corkhill.

PN1791 MS CORKHILL: Yes, I agree, but I don't think we've got such a problem if we are leaving pork as it is because it is a very particular industry, the poultry industry as well.

PN1792 THE COMMISSIONER: Yes, I think that's saying the same thing as Mr Houlihan.

PN1793 MS CORKHILL: I don't have a problem with that.

PN1794 THE COMMISSIONER: Yes, that removes the complexity of the integration required.

PN1795 MS CORKHILL: It takes it away. The PIA classification works well. It works well for dairy, grain, livestock, all forms of cropping, all the way across the country. It even works more or less for poultry. In Victoria there's a little bit of difference there in the classification structure, in the common rule award, but basically, yes, it works.

PN1796 THE COMMISSIONER: All right. Where are you up to with this, though, Mr Decarne? Would you prefer to try and press on with your classification structure as well or as the preferred position to the tabular position?

PN1797 MR DECARNE: Commissioner, considering that we might be separating pigs and poultry, then we would have to review our classification structure. I would have to go back and have a good look at it without - - -

PN1798 THE COMMISSIONER: I am talking conceptually about whether you would prefer to press on to try and achieve the integrated structure that is represented at clause 17.1 of your draft award rather than go down the tabular path of putting the rates of pay for the three subsectors and their hours of work and penalties and the like into the award or do you tend to agree with Mr Houlihan that that might be too much to ask in the time available and it's probably better left for further work by the parties and at a later time to be dealt with, ideally in an atmosphere of consensus where you have a more structured classification structure that could basically of a general application within the Agricultural Award?

PN1799 MR DECARNE: I think if we could consult after today's consultation.

PN1800 THE COMMISSIONER: All right. You might confer with the other parties to see whether you can develop a view about that. I've got a feeling, correct me if I'm wrong, that if you have the time available, it would probably be a desirable goal to set yourself.

PN1801 MR DECARNE: It would.

PN1802 THE COMMISSIONER: As long as you had the time to make sure you got it right and you appreciate it probably would take a bit of time because of the complexity of the challenge, but that if we work to the current timetable, the tabular approach is the more pragmatic approach and defer the other. I mean, the parties might be minded, for instance, to come to a joint statement on that. If I could take that to the Bench, that would be very useful.

PN1803 MR M O'BRIEN: Commissioner, Maurie O'Brien from the Australian Services Union. With regard to classification structures, I think it's perhaps appropriate that I say something about one of the occupational groups which is the clerical and administrative. In all the awards which are listed in this stage 2 process - - -

PN1804 THE COMMISSIONER: You don't want any clerical and administrative in here, do you?

PN1805 MR O'BRIEN: Sorry?

PN1806 THE COMMISSIONER: You don't want any - - -

PN1807 MR O'BRIEN: We do not, no.

PN1808 THE COMMISSIONER: I don't think you need to get anxious, no.

PN1809 MR O'BRIEN: No, well, I just thought I would get that on the record because they have not been covered in those NAPSAs.

PN1810 THE COMMISSIONER: You're saying it should be covered by an occupational award?

PN1811 MR O'BRIEN: We are saying that, sir.

PN1812 THE COMMISSIONER: I think everybody else is happy with that.

PN1813 MR O'BRIEN: Well, could I just get them to confirm that, sir.

PN1814 THE COMMISSIONER: No, no, it's all right. The way I am going to do it is if they're not happy, they will jump up and say so. There's no point in everybody taking turns and saying I'm happy, I'm happy.

PN1815 MR O'BRIEN: All right, I will take it from that, then, that the Horticultural Award and the - - -

PN1816 THE COMMISSIONER: No, no, don't take it as anything. I can't speak for the Bench. The President heads up the Bench.

PN1817 MR O'BRIEN: Well, I will take it that there's no objection from any party here today.

PN1818 THE COMMISSIONER: Yes, you can. You can assume that there are no objections and if you find any in an exposure draft that there's a clerical and administrative classification in there, you should write a stern letter.

PN1819 MR O'BRIEN: Commissioner, there's a classification bookkeeper in the NT Cattle Industry Award. I wouldn't hazard a guess how many there are. In fact, once you get outside of five companies, probably four companies - - -

PN1820 THE COMMISSIONER: Does this person appear in the film?

PN1821 MR O'BRIEN: I'm sorry?

PN1822 THE COMMISSIONER: Does this person appear in the film, some big leather bound journal?

PN1823 MR O'BRIEN: Well, there's plenty of those. You would have seen some in your time, too.

PN1824 THE COMMISSIONER: I have.

PN1825 MR O'BRIEN: And I don't know in the generality of the cattle industry in the Northern Territory of any stations as I say outside of the big ones that would employ a bookkeeper, but there is a classification of bookkeeper in the Northern Territory Cattle Industry Award.

PN1826 THE COMMISSIONER: All right, but I think, Mr O'Brien, you have on your side the weight of the argument.

PN1827 MR O'BRIEN: Thank you, Commissioner, I will not worry about the one bookkeeper in the Northern Territory cattle industry - - -

PN1828 THE COMMISSIONER: You will have to keep an eye on it. I can't give you any guarantees, but you keep a close eye on that.

PN1829 MR O'BRIEN: Thank you, Commissioner.

PN1830 MR LONGLAND: I should just say for the purposes of the record as well that I haven't done any work on all the classification structures given the time available and the other issues, but there is a reference to recording functions in some of the work descriptions, so I wouldn't want my friend to walk away thinking that - - -

PN1831 THE COMMISSIONER: Yes, but that's not - I mean, if you're writing down on the side of a crate of oranges that there's two tonnes in here, that's not a bookkeeper or a clerical or administrative person.

PN1832 MR LONGLAND: I don't know. The tally clerk has still got a role, sir.

PN1833 MR O'BRIEN: There's one other point, Commissioner, that is that we have had discussions with all the other unions and there's no submission from the unions in support of clerical and administrative positions in any of these awards.


PN1835 MS CORKHILL: And bookkeepers have been excluded from the PIA since a long time, Commissioner.

PN1836 THE COMMISSIONER: Thank you. Mr O'Brien, if you want to be excused - - -

PN1837 MR O'BRIEN: Just for completeness, there is one award which does cover clerical and administrative people and that's the Agribusiness - - -

PN1838 THE COMMISSIONER: You had better hang around because we're going to be hearing about that.

PN1839 MR O'BRIEN: Well, I think I can put that to bed quickly. We have no objections to clerical and administrative positions in that award. It has a long history. That is the status quo, we don't object to that. Provided that award doesn't suddenly become consumed into some other awards which suddenly spread the scope into areas which would not be normally covered, which would not normally provide coverage for clerical and administrative employees.

PN1840 THE COMMISSIONER: I am not sure I follow that. You had better wait around until Mr Platt has a chance - - -

PN1841 MR O'BRIEN: I will try and clarify what I mean. I perhaps didn't explain that very well. This particular award that we're dealing with has got a limited group of respondents to it.

PN1842 THE COMMISSIONER: This is the - - -

PN1843 MR O'BRIEN: The Agribusiness Clerical and Salaried Staff Award - - -

PN1844 THE COMMISSIONER: I just need to have it on the record because the Bench would, if they need to, will read the front of the transcript.

PN1845 MR O'BRIEN: That's right.

PN1846 THE COMMISSIONER: This award, they don't know which award it is.

PN1847 MR O'BRIEN: It's code AP772066.

PN1848 THE COMMISSIONER: All right. That award, yes.

PN1849 MR O'BRIEN: It has a limited list of respondents. Suddenly that award was incorporated into with another group of awards which greatly widened the scope of that award.

PN1850 THE COMMISSIONER: Like what?

PN1851 MR O'BRIEN: Well, they would have to be awards within the wool breaking industry if such awards exist. I don't think they do, I'm just really putting a - - -

PN1852 THE COMMISSIONER: You're just being extremely cautious.

PN1853 MR O'BRIEN: Yes. But if I could get some indication.

PN1854 THE COMMISSIONER: I can't give you any guarantees.

PN1855 MR O'BRIEN: No, I'm not after guarantees. But there would be no intention, I don't think.

PN1856 THE COMMISSIONER: I don't know. Because I just don't know. To be honest with you I don't know. That's an area you are describing.

PN1857 MR O'BRIEN: It could be clarified by the parties here who have an interest in that area.

PN1858 THE COMMISSIONER: No, I can't give you any assurances because - - -

PN1859 MR O'BRIEN: No, I'm not asking for you to do so.

PN1860 THE COMMISSIONER: Well, I can't say anything at the moment.

PN1861 MR O'BRIEN: But the parties here could.

PN1862 THE COMMISSIONER: No they can't. They can't because they haven't got no ..... they've got no standing in that respect. They can't give you any guarantee or assurance that something will or won't happen from the Bench. This is an autonomous decision that will be made by the Bench. It's not bound by the views of the parties.

PN1863 MR O'BRIEN: I do see your point there, but they could give an indication as to whether it was their intentions to make submissions along those lines.

PN1864 THE COMMISSIONER: Along what lines? See, I'm not sure what these lines are.

PN1865 MR O'BRIEN: And neither am I. That's what I'm trying to clarify.

PN1866 THE COMMISSIONER: Well, then they don't need to make any submissions if you're not sure.

PN1867 MR O'BRIEN: I think I'll leave it there, Commissioner.

PN1868 THE COMMISSIONER: Good idea. All right, I'm not quite sure where that leaves us. I think you'll just have to keep an eye on the website, Mr O'Brien.

PN1869 MR O'BRIEN: Yes.

PN1870 THE COMMISSIONER: Yes, I've been a little distracted by trying to grapple with that scenario. Does anybody wish to say anything further about the classification in the Horticulture Award?

PN1871 MR LONGLAND: Only this, Commissioner. As I've indicated before I haven't had an opportunity to give any attention to this. I've only been - - -

PN1872 THE COMMISSIONER: All right. One of the things I've noticed is - have I got this wrong? It's been a long day, I'm trying to remember all the materials that I've read, and there's a fair bit of it and it's quite diverse.

PN1873 MR LONGLAND: Yes, I know what it's like.

PN1874 THE COMMISSIONER: Well, I am dealing with the salmon as well as the ..... the mushrooms. But the recollection I have is that you - did you put in a submission with the same total of wage rates as basically the AWU did, or did I read it double or something?

PN1875 MR LONGLAND: I think that's correct.

PN1876 THE COMMISSIONER: Yes. So what you're saying, as I understand from that is, that your draft classification is to fit within that tabular range of wage rates? MR LONGLAND: Yes. And I wanted to make the point as I did before lunch, that I say it's outside the scope of this process at all to go redrafting or inventing from the ground up inventing a classification structure. And indeed it wouldn't serve the parties to try and use this process for that purpose because - - -

PN1877 THE COMMISSIONER: Did that happen in any of the - - -

PN1878 MR DECARNE: Commissioner, I think my friends here might be able to inform you a little bit better, but they appeared for AMHA - Australian Mining History Association. They built a classification structure from the ground up.

PN1879 THE COMMISSIONER: Thanks, but I'm already there. I'm just ponderous that we're heading in that direction.

PN1880 MR DECARNE: Sorry, Commissioner.

PN1881 MR LONGLAND: I was going to say that I've got great confidence in my friends that appeared - - -

PN1882 THE COMMISSIONER: Yes. I think you will find in the exposure draft that there's a bit of - - -

PN1883 MR LONGLAND: I note that those awards have not been made. Those exposure drafts are nothing more than drafts. So to the extent that there's any suggestion that - - -

PN1884 THE COMMISSIONER: It might be hard to meet the ministerial timetable if they do instruct all those classifications and start again.

PN1885 MR LONGLAND: Yes. But the position that we would certainly put are the two options that she gave. The option described as the tabular option is the one that we would urge and I think the one we - - -

PN1886 THE COMMISSIONER: Right. So did you want to say something for AIG about that whole idea about - - -

PN1887 MR TAYLOR: Commissioner, Taylor from the Australian Industry Group. I just merely note that it seemed to cross all the parties on the draft Horticulture Award all have picked up the five - - -

PN1888 THE COMMISSIONER: The five levels. The five level structure including wage rates.

PN1889 MR TAYLOR: I think there was a difference in the wage rates.

PN1890 THE COMMISSIONER: How much?

PN1891 MR TAYLOR: Maybe just mathematical calculations.

PN1892 THE COMMISSIONER: Well, they usually are. But it's the amount of them that counts in finding out on Wall Street - - -

PN1893 MR TAYLOR: It wasn't much of a difference, Commissioner. But I think more importantly in the classification descriptions there seems to be consensus that that could just be adopted from the common rule award, federal award.


PN1895 MR TAYLOR: The AWU Horticulture Industry Award schedule - - -

PN1896 MR LONGLAND: Honestly, on the position to - - -

PN1897 THE COMMISSIONER: All right. Well, you'd better get cracking if you've got a different view.

PN1898 MR LONGLAND: Yes. I just haven't looked at that.

PN1899 THE COMMISSIONER: I've can hear two parties over here saying just cut and paste out of the HIA award to those wage rates which you're all happy to go with.


PN1901 THE COMMISSIONER: So what's on the line is what work calls into which wage rate?


PN1903 THE COMMISSIONER: So we need to get busy.

PN1904 MR WARREN: Commissioner, might I just add with respect to horticulture, in the New South Wales NAPSA has a six level structure and the federal award has a five level structure.

PN1905 THE COMMISSIONER: What's the difference? Is it in between the top and the bottom that the additional level are treated - - -

PN1906 MR WARREN: The level - actually it's an additional one on top.


PN1908 MR WARREN: It appears certainly by way of the wages - - -

PN1909 THE COMMISSIONER: Who is remunerated at that level? The top rate currently in the proposal of the parties is the trades at the C10 rate? That's my recollection.

PN1910 MR WARREN: Yes.

PN1911 THE COMMISSIONER: So is this some sort of supervisory rate, is it?

PN1912 MR WARREN: Your Honour, I'm sorry. Commissioner, I'm sorry. I don't have the actual classification.

PN1913 THE COMMISSIONER: Can you write in on that?

PN1914 MR WARREN: Certainly, certainly.

PN1915 THE COMMISSIONER: Sorry. Don't be alarmed, nothing is going to happen, but I have accidentally tripped the duress button. It's probably some sort of Freudian slip on my part.

PN1916 MR HOULIHAN: You want out.

PN1917 THE COMMISSIONER: So look, if that's that for the time being I am now going to, because there is some issue about Agribusiness Award, do we want it? People happy to move onto that now?

PN1918 MR TAYLOR: Commissioner, there was one other item, peace rates, which had not been discussed yet.

PN1919 THE COMMISSIONER: True.

PN1920 MR TAYLOR: There is a different version that is being proposed by certain parties that are stepping away from the current award descriptive.


PN1922 MR LONGLAND: I can address the issue very quickly. I was initially retained by the AMGA - the Mushroom Growers Association - and they formed a view

about that issue which is reflected in their initial submission of 31 October I think it was. Whilst that clause looks different in form it's intended in substance that it would reflect an existing position. The only absolutely critical issue from their perspective is that a peace rate mechanism be available which doesn't have a guaranteed minimum rate so that there can be a true nexus created - - -

PN1923 THE COMMISSIONER: Isn't that going to be hard though in the context of this?

PN1924 MR LONGLAND: It's existed in - - -

PN1925 THE COMMISSIONER: I mean, I don't know what the Full Bench is going to say to the idea well you can have a peace work rate and you can end up earning 25 per cent of the daily rate.

PN1926 MR LONGLAND: Well, that's been the position in many awards for decades.

PN1927 THE COMMISSIONER: Yes, I know. And things change, as somebody said in a film once.

PN1928 MR LONGLAND: This process has ministerial direction which specifically says things can't change in that effect.

PN1929 THE COMMISSIONER: Yes, I know. We've read that. With interest.

PN1930 MR LONGLAND: I'm here to make that - - -

PN1931 THE COMMISSIONER: I think they changed in the exposure drafts, didn't they?

PN1932 MR LONGLAND: I should say that the Horticulture Australia Council has adopted that view wholly and that's why we put that.

PN1933 THE COMMISSIONER: So that you might end up earning half of the daily rate if you're working peace work.

PN1934 MR LONGLAND: A minimum?

PN1935 THE COMMISSIONER: Well, the peace work rate might be able to be fixed at a rate where you end up earning half of the daily rate.

PN1936 MR LONGLAND: No. The way in which the peace work rate is fixed requires an ordinary employee working the average hours to be able to earn the top rate, the full rate.

PN1937 THE COMMISSIONER: I thought more than that.

PN1938 MR LONGLAND: Well, plus a 12 and a half per cent loading in the case - - -

PN1939 THE COMMISSIONER: Or some other loadings, because there are various loadings aren't there?

PN1940 MR LONGLAND: Correct, correct. I only want to make the point - - -

PN1941 THE COMMISSIONER: What are you driving at there? I'm obviously barking up the wrong tree.

PN1942 MR LONGLAND: No. The only point that I'm making is that the concept of peace rates has allowed there to be a direct connection between labour output and the cost to the farmer, the price that the farmer gets. And that's been the case for decades and that's why peace rates were introduced. A failure to continue that through this process means that that nexus will be cut.

PN1943 THE COMMISSIONER: Yes, but what's the implication of that or what should be in the award?

PN1944 MR LONGLAND: What should be in the award is a formulation that has no minimum where the peace is the only determinant of the pay rate.

PN1945 MR HOULIHAN: Commissioner, sorry. I think you guys have got yourself at cross purposes. The establishment of the rate is what the ordinary employee would perform in a day plus 12 and a half per cent. What my friend is saying having said therefore to pick a case of tomatoes is worth $5 because the ordinary picker will pick 20 cases of tomatoes a day and the daily rate is $100 a day so it's $20 a pick. Now, what my friend is saying is that's fine so long as there is no minimum that the guys' got to get the $100 a day.

PN1946 MR LONGLAND: And that's what our friends have .....


PN1948 MR LONGLAND: I'm indebted to Mr Houlihan.

PN1949 MS CORKHILL: Could I just inform the Commission of industry practice. In Tasmania the Horticulture Industry Award applies in this manner. The AWU and the primary employees of Tasmania, which is the TFGA Industrial Association, sit down and they look and they sit down with their industry knowledge each year

and they look at the various ways fruit, for instance apricots is picked. So when you first pick an apricot orchid you pick the colour and size and - - -

PN1950 THE COMMISSIONER: I know. Look, I'm across it now. We were talking at cross purposes.

PN1951 MS CORKHILL: Right.

PN1952 THE COMMISSIONER: I thought what Mr Longland was saying is that there need be no target rate. You're telling me how the target rate is actually - - -

PN1953 MS CORKHILL: The target rate is actually - well, we're saying that the peace rate sets in lieu of the hourly rate.

PN1954 THE COMMISSIONER: No, I understand it now.

PN1955 MS CORKHILL: And shouldn't fall back to that.

PN1956 THE COMMISSIONER: I thought he was putting to me that there need be no rate which says your average tomatoes picker will earn the daily rate plus 12 and a half per cent. I thought that's what he was putting to me. He's not. He's saying yes that should be the case, there should be a rate that will give the average tomatoes or mushroom picker the daily hourly rate.


PN1958 THE COMMISSIONER: Plus 12 and a half per cent or whatever the appropriate peace rate loading is - - -

PN1959 MS CORKHILL: And the peace rate is worked out on the particular way that fruit is picked at the particular - - -

PN1960 THE COMMISSIONER: Well, how they're worked out is okay. You comply with the award if you enter into a peace work agreement with the employee that can stand the test that an average employee would have made the daily rate plus 10 per cent. So if there was any contest about whether or not the rate had been fixed too low, then it's capable of being assessed.

PN1961 MR LONGLAND: And my point was, but very clumsily put, that in one particular day the picker for whatever reason doesn't pick his - - -

PN1962 THE COMMISSIONER: That's right. They might knock off after a while.

PN1963 MR LONGLAND: Correct. Now, this is nearing where the union says whatever they pick they should get - - -

PN1964 THE COMMISSIONER: They get the daily rate. So you pick one tomato and you get paid for - - -

PN1965 MR LONGLAND: Correct. And the nail through the forehead, I think as we described it before, but the HIA pays HIA, this is a case where HIA says is that what we want, but the union has picked something else.

PN1966 THE COMMISSIONER: Well, I think Mr Decarne said it is a cherry picking exercise.

PN1967 MR DECARNE: ..... , sir.

PN1968 THE COMMISSIONER: To use another metaphor there is a cherry picking exercise.

PN1969 MR DECARNE: Well, we would say there was in terms of - - -

PN1970 THE COMMISSIONER: There was - there wasn't.

PN1971 MR DECARNE: There wasn't in terms of our peace work clause.

PN1972 THE COMMISSIONER: Well, not in that case.

PN1973 MR DECARNE: Not in that case. The first thing of our peace work clause is the most word perfect copy from the HIA and we even kept it 12.5 per cent where these NAPSAs my friends have talked about have more preferential rates like in Queensland 20 per cent - - -

PN1974 THE COMMISSIONER: But how can you have a peace work rate that says look this is the peace work rate and, you know, there's been a big ..... around the camp fire the night before and everybody is feeling a bit furry the next day and they only pick a few boxes or crates or something and then they get the daily rate. Just cruise along.

PN1975 MR DECARNE: Well, they do that for one day. We do that for one day that's fine underneath our clause. We say that consecutively for three days they receive less. Then they can unilaterally terminate. Now, there's a similar - - -

PN1976 THE COMMISSIONER: Termination is a different thing. It's about the rate and whether or not you get paid or not. Termination is a different thing. If you don't want - - -

PN1977 MR DECARNE: Well, that's all our clause operates - - -

PN1978 THE COMMISSIONER: What, you're only interested in termination?

PN1979 MR DECARNE: Well, that's all that the second limb of our clause does. The others just borrowed from the HIA - - -

PN1980 THE COMMISSIONER: I hear what you say. I hear what you say.

PN1981 MR DECARNE: Yes. The others just borrowed straight from the HIA which has been operating quite substantially and sustainably for the period of the award. So I don't see there's any need to change that.

PN1982 THE COMMISSIONER: What part are you talking about now?

PN1983 MR DECARNE: Sorry, the HIA peace work rates. That's what we have relied upon. There are more preferential clauses if we were to cherry pick. The Queensland clause is better.

PN1984 MR LONGLAND: I just - that's not how I read your award. I must be looking at a different award.

PN1985 THE COMMISSIONER: Let's try and shortcut here so we just don't run out of time. You don't have any problem with the idea that you have a peace work rate with a premium and you pick to that rate and if you don't make the rate your choice is either I took it too slowly or alternatively the rate is wrong, I'm going to quarrel with that through the dispute resolution process and if necessary I'm going to enforce the award because I need to get paid the daily rate because that rate that they fixed was not what your average picker would get if they did a normal day plus the premium. You don't have any problem with that? You're just after three days, if it's not going very well you wouldn't be able to terminate. That's all.

PN1986 MR DECARNE: That's pretty much our clause, yes.

PN1987 THE COMMISSIONER: Right. So what we're really talking about is not the peace work rate, but determination of the peace work agreement and what happens as a consequence.


PN1989 THE COMMISSIONER: All right. Well, what do you want to happen as a consequence?

PN1990 MR DECARNE: We just want there to be an ability after three days to unilaterally terminate as there is in the Queensland - - -

PN1991 THE COMMISSIONER: Yes, but what's the consequence of that? Does that mean the employment is terminated or the employer has to keep you employed and pay you the daily rate whatever you pick?

PN1992 MR DECARNE: Most peace workers are employed as a casual. So that would be an easy question to answer.

PN1993 THE COMMISSIONER: Yes, but you know the other side of the argument. Let's get, you know, let's keep cutting to the chase. The other side of the argument is yes well that's all right, but that terminates the employment. If you want another engagement you can negotiate one if you can, but if you don't well you don't. The employer is not obliged to keep on employing you as a day worker rather than a peace worker.

PN1994 MR DECARNE: Aren't you just engaged - I mean correct me if I'm wrong - - -

PN1995 THE COMMISSIONER: No, it's about the obligation.

PN1996 MR DECARNE: Aren't you engaged as an employee and then you have a peace work agreement that sits above that?

PN1997 THE COMMISSIONER: What the employer wants to say is that you're engaged as an employee on terms that you will perform the employment on peace work rates. You're engaged as a peace worker in the same ways you're engaged as a casual worker. You're not engaged as an employee and then become a casual employee. You're not engaged as a continuing employee and become a casual employee. It's the nature of the engagement, is casual employment.

PN1998 MR DECARNE: Sorry, I don't understand then what the problem with the unilateral termination of the peace work agreement - - -

PN1999 THE COMMISSIONER: There is no problem with the termination as I understand it. It's the consequences of the termination that is at issue.

PN2000 MS CORKHILL: It's also how it's written.

PN2001 THE COMMISSIONER: Yes, but let's forget about the text and let's think about the context. What the employers are saying is yes you can terminate your peace work agreement, that's fine, but it doesn't mean that you necessarily continue to be employed as a day worker.

PN2002 MR DECARNE: Well, I don't understand that, Commissioner, in the context of their submissions on creating a peace worker would be permanent because if you then terminate the peace work agreement how would they then be a permanent employee?

PN2003 THE COMMISSIONER: Well, maybe I'll hear from them - - -

PN2004 MR DECARNE: Yes. I think that there's a little bit of confusion here on this issue. Particularly from ..... submission.

PN2005 MR LONGLAND: At a conceptual level we are at one with everything you just put to the union. The employer, the peace rate came into being to create this nexus between what the employer pays the grower and what the employee gets out the door. Now, if you allow a termination but there's an obligation to keep the person on, that nexus is broken. So you defeat the very purpose of what the peace rate was introduced.

PN2006 THE COMMISSIONER: What do you think the union is trying to achieve? My reading of your submission is that they have written a provision which means that the employee must continue in employment for however long.


PN2008 THE COMMISSIONER: And must be paid as a day work.

PN2009 MR LONGLAND: That's what I think it means.

PN2010 THE COMMISSIONER: No matter how many tomatoes they pick.

PN2011 MR LONGLAND: And they've got this must not be - - -

PN2012 THE COMMISSIONER: Sorry, just a moment. Is that what you're trying to achieve?

PN2013 MR DECARNE: Commissioner, if you have a good look at the provisional rate, it's not the case, no. What we're trying to achieve is just an amalgam of the Queensland protection for unilateral termination - - -

PN2014 THE COMMISSIONER: Let's come at it directly. Are you trying to achieve or not achieve an obligation on the part of the employer to continue the employment of the employee as a day worker?

PN2015 MR DECARNE: It depends on whether they're engaged as a permanent, as a casual or otherwise. I don't know if I'm really understanding the concept.

PN2016 THE COMMISSIONER: I'm not sure I'm understanding yours. That's what I'm raising the question for, because if somebody said to me, "Well, you've got a whole bunch of people picking fruit and they're all picking oranges according to a piece rate," and then they say, "We don't like the piece rate." They've got two choices. They can say, "The rate is wrong and has to be fixed, it's set too high, these oranges can't be picked in this time. We can see all these people have been picking these oranges, nobody can make the margin, so you've got to pay us the daily rate for those days that we didn't make the margin because the rates was too high." The employer says, "No, the rate is not too high." Then you settle the dispute or alternatively you enforce the award. That's the usual situation, isn't it?

PN2017 MR DECARNE: I'm not sure that can happen.

PN2018 THE COMMISSIONER: What do you think happens under the HIA Award?

PN2019 MR DECARNE: As I understand it, and I didn't draft the clause, but as I understand the HIA are engaged and then there's a piecework agreement that sits above that, that engagement of employment, so whether you're engaged as a casual or permanent or otherwise, there's a piecework agreement.

PN2020 THE COMMISSIONER: No. I think what you're doing is characterising it as a bonus payment. You're assuming that pieceworkers are engaged as daily hire employees and then if they choose to they can pick at the piece rate and make more. I don't know that that is the situation as a matter of fact, to tell you the truth. I'm not aware of that. Are you?

PN2021 MR DECARNE: No. Commissioner, my understanding is - - -

PN2022 THE COMMISSIONER: You seem to be applying an interpretation to the award provisions. My experience in the industry is that that's not the way it works.

PN2023 MR DECARNE: How does the HIA clause - - -

PN2024 THE COMMISSIONER: An employer could say to you "I want to engage you as a day worker," and you just go out there and you pick them as fast as you can or, you know, just keep working steadily and that's fine and we'll take what we get.

PN2025 MR HOULIHAN: Commissioner, it's more consultative than that in what happens. As my friend says it's 4 per cent. Where this double scale - certainly in Tasmania, I don't know about Queensland, but certainly in Tasmania these rates are set almost on a property by property basis because of the differentials - you know, they might be higher trees or worse trees or whatever and they're set by people who have been doing it year and after year after year, both from the union and from employer's side and the rate on my place can be quite different from the rate on Mr Longland's place, the margin is different anyway because of the different factors. It's not just a bonus payment and it's not supposed to be a bonus payment. It's supposed to be a payment by result.

PN2026 MR DECARNE: If we're discussing setting the rate, then I might have mischaracterised our position. I was talking merely about the termination because that's the clause that I think they have issue with.

PN2027 THE COMMISSIONER: I understand that. We're talking about - the concept of the termination seems to be that you said, "No, I don't want these piece rates, thank you. See you later."

PN2028 MR DECARNE: Then it goes to sort of the level of engagement.

PN2029 THE COMMISSIONER: No, it goes to the level of termination. We're talking about termination. We're talking about circumstances where someone calls it quits. I don't think they say, "I don't want to be a pieceworker any more but you've got to keep on paying me as a day worker and I'll pick whatever I like." That's not really realistic, I don't think.

PN2030 MR LONGLAND: I don't think .....

PN2031 THE COMMISSIONER: I'm not aware of any circumstances where it applies like that.

PN2032 MS CORKHILL: Are we clear that that termination clause isn't in the HIA? MR DECARNE: The termination clause is in the Queensland - - -

PN2033 MS CORKHILL: Yes. It never has been.

PN2034 MR DECARNE: There is one thing we should look at, though, is that the 12 per cent is - - -

PN2035 THE COMMISSIONER: There are various - - -

PN2036 MR DECARNE: Yes, there are various percentages and that be something else we can tabulate.

PN2037 MS CORKHILL: In that regard the HIA has always been interpreted that there is a casual loading paid as well as the 12½ per cent so that makes one the differential between the states.

PN2038 THE COMMISSIONER: If you could produce the spreadsheet on the piecework rates that would be helpful.

PN2039 MS CORKHILL: I've got actually a calculation of how they did it for the last season so it shows you exactly how that rate is worked out.

PN2040 THE COMMISSIONER: That would be useful, too, but if you could give us a spreadsheet with all the different piecework rates that are to be covered by the Horticultural Award, then that would - - -

PN2041 MR LONGLAND: And all the NAPSAs.

PN2042 THE COMMISSIONER: And all the NAPSAs, yes. Mr Richardson, just before we go, are you here for the agribusiness proposal? I wonder if you might be kind enough to just come up to the bar table and announce yourself because I wanted to ask you some questions about the Wool Industry Award. You've got an interest in that, haven't you?

PN2043 MR RICHARDSON: I beg your pardon, Commissioner?

PN2044 THE COMMISSIONER: You've got an interest in storage services in the wool industry?

PN2045 MR RICHARDSON: That's correct, as does Mr Platt.

PN2046 THE COMMISSIONER: Just announce yourself, please, Mr Platt.

PN2047 MR LONGLAND: Commissioner, can I be terribly rude. Have you completed your consultations in relation to horticulture?

PN2048 THE COMMISSIONER: No. I'll come back to you in a minute.

PN2049 MR C PLATT: If your Honour pleases, Platt C. I appear on behalf of the Agribusiness Employers Federation in respect of the wool industry matter.

PN2050 THE COMMISSIONER: That's all right, you can just launch straight into it.

PN2051 MR PLATT: Your Honour, I've had the benefit of having some discussions with the National Union of Workers in relation to this matter. The scope of the award as put forward in the draft is agreed between the parties. Essentially, what we do is we deal with the wool when it's received from the farm, we handle and sample the wool. We've included the testing regime which is presently done under an enterprise award by the Australian Wool Testing Authority. We're also proposing to include the wool, skin and hide industry because - - -

PN2052 THE COMMISSIONER: And the processing, carbonising and scouring. Is this going to all be in one?

PN2053 MR PLATT: We have not proposed to include carbonising and scouring on the basis that that is a manufacturing process rather than a process of storage and despatch. As your Honour would no doubt be aware, the majority of wool is exported in its natural state and only a small portion is processed in Australia and we have not proposed to deal with the processing and accordingly, neither the scope nor the classification structure includes that, and we haven't attempted to - or we haven't reviewed the awards with the view of covering that area at all.

PN2054 THE COMMISSIONER: Are you interested in local processing industry?

PN2055 MR P RICHARDSON: Richardson, initial, from the National Union of Workers. No, Commissioner.

PN2056 THE COMMISSIONER: You're not interested in the local processing industry.

PN2057 MR RICHARDSON: That aspect of the industry to which Mr Platt refers is an industry governed by awards that the NUW is not respondent to. As I understand it, in respect of the Wool Scourers Award, that is an award that the Textile Clothing and Footwear Union has the interest in.

PN2058 THE COMMISSIONER: I might need a bit of help here because I think I might have been heading down something of a questionable path. Scouring, carbonising and processing are separate from storage.

PN2059 MR PLATT: Yes.

PN2060 THE COMMISSIONER: That's the problem.

PN2061 MR PLATT: Basically, what happens is, the wool, for example, it gets sold either through the auction system or outside of the auction system. Then if it's

going to get exported overseas, it gets dumped and pressed, chucked into a container and then off it goes.

PN2062 THE COMMISSIONER: So scouring, carbonising, et cetera, that should go to stage 3. If it's there it's a manufacturing activity.

PN2063 MR PLATT: Yes. Some of the wool is scoured. It's not scoured by anybody from our organisation. Geelong Wool Combing used to do it but they're not here any more so we would say that that's part of the manufacturing process. Essentially, the wool goes into a big washing machine, gets cleaned, carded - - -

PN2064 THE COMMISSIONER: Yes. This is like G H Michelle.

PN2065 MR PLATT: Yes, and they have never traditionally been part of - - -

PN2066 THE COMMISSIONER: Of the storage services area.

PN2067 MR PLATT: No, never.

PN2068 THE COMMISSIONER: That's right, but I've got a feeling that we've gathered them up in this stage 2 process.

PN2069 MR RICHARDSON: Certainly, Commissioner, as I recall the table of awards that was published on the Commission's website, the Wool Scourers Award does appear there.

PN2070 THE COMMISSIONER: Yes, but you want a Storage Services Award which has nothing to do with the manufacturing process.

PN2071 MR RICHARDSON: That is correct.

PN2072 MR HOULIHAN: Commissioner, we want them to be separate from the agriculture end of it.

PN2073 THE COMMISSIONER: Mr Platt and his clients?


PN2075 THE COMMISSIONER: From the Storage Services sector and they have their own award and we don't put the carbonising, et cetera, in there.

PN2076 MR HOULIHAN: That's right.

PN2077 THE COMMISSIONER: That makes life a lot simpler for us because we were staring at the integration, because if you capture them all in the stage 2 scenario, then you have the task of integrating scouring, carbonising, et cetera, et cetera, into the storage services area.

PN2078 MR PLATT: Then, if you're going to do that, you'd probably going further on in the textile industry, so really, scouring and carbonising is the first part of the textile - - -

PN2079 THE COMMISSIONER: Yes, that's got to go to wherever that textile manufacturing part of the process concerns. It seems that what's happened is that the Bench has captured these in the net, if you like, and probably they need to be reallocated.

PN2080 MR PLATT: We had a similar problem in mining and anything with the word "mining" in it got in and we had some power stations and - - -

PN2081 THE COMMISSIONER: Did I hear you say you've got an agreed award?

PN2082 MR PLATT: Almost. The award is substantially agreed. My friend has had the benefit of reviewing the award for sometime and we had some discussions about it today. What I propose is that we will submit an award to you by the end of next week of which the type of the award in its entirety will be agreed. I'm just saying that what we're going to be up to in the meantime is we'll be looking at putting in a definition of seasonal employee and a couple of additional definitions that have been missed out. There needs to be a review of the relativities and obviously when you put together three classification structures there's been some changes and my friend and I have agreed a set of relativities My friend would like a reference to parental leave provisions of the NES, which I'm happy to do. We need to come to some resolution on a casual loading rate, there's three differential rates within the industry, and some minor changes, and having done that we will be able to produce to you an agreed award with an agreed classification structure.

PN2083 THE COMMISSIONER: Thank you very much for that. You're excused if you want to go now. Just keep in touch about your progress and if you have any problems, we'll have a separate consultation focused on that award, all right, and if you can make sure that we're - you know, that if there are any glitches, that we don't go past 10 December without trying to sort them out. Thank you for your attendance, you're excused.

PN2084 Anybody want to have a go while the going's good? Ms Maloney.

PN2085 MS MALONEY: Commissioner, there's another award that's before you in respect to - one of the awards included on the list is the Agribusiness Award.

PN2086 THE COMMISSIONER: The Agribusiness Award?

PN2087 MS MALONEY: Yes, sir, in particular the Clerical and Salaried Staff Agribusiness Award 1999 AT772066.

PN2088 THE COMMISSIONER: Mr Platt, are you in on this too?

PN2089 MR PLATT: Yes, your Honour.

PN2090 MR SKENE: I appear together with Mr Platt.

PN2091 THE COMMISSIONER: You're going to do this, are you, Mr Skene?

PN2092 MR SKENE: Mr Platt is going to address one aspect of it and I'm going to address the rest.

PN2093 THE COMMISSIONER: Should I hear the employers first?

PN2094 MS MALONEY: You may.

PN2095 MR SKENE: In fact, Commissioner, we think it might be convenient for the union to go first. We've had some discussions and in large part my submission concerns a response to the position that's going to be put by the FSU.

PN2096 MS MALONEY: We forwarded you correspondence on 24 November. The Agribusiness Employers Federation have composed a draft Agribusiness Industry of Agricultural Services Award. That award they're proposing to be made fixed to replace the Clerical and Salaried Staff Agribusiness Award 1999. If I can call it the Agribusiness Award applies to clerical and salary employees.

PN2097 The FSU is the sole union respondent and just as background, the FSU was formed in 1991 and one of the associations that became part of ..... was the Wool Brokers Staff Association. The Agribusiness Award basically covers wool broking businesses.

PN2098 THE COMMISSIONER: What are they these days?

PN2099 MS MALONEY: Well, sir, that's probably an issue that Mr Platt can explain but I suppose the issue is that, as I understand it, they provide various services to the agricultural industry. I think what they're seeking to do as part of their proposal is to make the description of that industry a bit more clear. The first point we raise,

though, sir, is this. A part of their role is to provide banking, insurance and finance services to people in the agricultural industry.

PN2100 Our first position, as we advised the Commission is, it is our view that those sorts of business activities come within the scope of the financial services group. For the information of the Commission on Tuesday and Wednesday of this week we appeared before his Honour Vice President Watson in respect to the financial services group. We advised his Honour that there was this proposal here in the draft Finance Industry Award that we have tendered as part of those consultations and we have included the businesses of wool broking in our draft.

PN2101 We say that's consistent with the creation of modern awards along industry lines in accordance with the request. We also say it's consistent with the Full Bench decision of 20 June which didn't specifically address the issue of financial services because we had initially felt one of our initial drafts should be included in the priority listing. We set that out in our letter to you of 24 November.

PN2102 We also note that obviously in putting groupings of awards together, the Full Bench made it clear in the statement of 3 September that while particular industries and occupations have been grouped together, that grouping doesn't obviously predetermine the outcome of the award modernisation process. So when the Agribusiness Award was included in the listing of indicatives I suppose for this industry, it was our view that the functions, particularly in terms of providing business, certainly insurance, finance and banking services should be part of the bigger financial services group.

PN2103 Sir, we appreciate that we hadn't put in previous submissions. We were tied up in another award modernisation process. However, we have put in our submission to the Commission that if the Commission - or I should say the Full Bench - the Commission determined that our view as to where those activities should be grouped is not accepted, that is if the Full Bench comes to the view that the activities covered by wool broking businesses should not be contained in the financial services group and therefore adopts the view that there should be a modern award applying to those wool brokers, we do have a position to put in terms of what has been put so far by the employers.

PN2104 I suppose I'm a little bit disadvantaged. The first thing obviously we say is that because we are the sole union who's bound by the existing award, we would seek to be covered by any new modern award, if the Commission decides that that's the appropriate way to go. We believe that the issue of us being bound is consistent with the submission that's been put by the Australian government to the award modernisation process in terms of organisations being able to be covered - sorry, not bound - covered by the new award.

PN2105 The second thing, I suppose, is that we are very concerned that the draft award that's been put forward by the Agribusiness Employers Federation contains a number of provisions that are less than the current award and we say - - -

PN2106 THE COMMISSIONER: In relation to financial services or generally?

PN2107 MS MALONEY: No, in relation to the existing award. So what I'm just referring to now is that if the Full Bench determines that the businesses of wool broking should not be part of the financial services group, in other words they don't accept our first proposition that they should be, if they accept that there should be a separate modern award covering the businesses of wool broking activities, then there has been a draft award put up by Mr Platt called the Agribusiness Industry Off Farm Agricultural Services Award 2010, which has been forwarded to the Commission in terms of the timetable.

PN2108 I have to emphasise we've had a brief look at that. We've just been tied up this week on the other Financial Services Award, Award modernisation process. We've had a brief look at that and based on our examination so far, the draft award that they're proposing should be the basis of a new modern award and which would replace the existing Agribusiness Award. It contains a number of provisions that are less than the existing Agribusiness Award and therefore - - -

PN2109 THE COMMISSIONER: Can I just interrupt you there. Does this award cover more than just financial services type classifications?

PN2110 MS MALONEY: Yes, it does.

PN2111 THE COMMISSIONER: I need a little bit of distinction here.

PN2112 MR PLATT: Would you like me to give you a picture?

PN2113 THE COMMISSIONER: I just want to ask a question in a way to try to understand her position a bit better. My understanding is it sort of covers, if you like, a range of clerical and administrative activities which it's said include financial services as part of a holistic services to agriculturalists type of industry and my understanding is that this is sort of - if you like it dates back to the old days of Elders and Goldsborough Mort.

PN2114 MS MALONEY: It does.

PN2115 THE COMMISSIONER: Things have changed over time and the range of services is different qualitatively and probably broader and perhaps more global in scope, whatever, and within that there's probably been some growth of, you know, an all farm service including financing, financial advisory, whatever, type of role and function. You're saying that that part ought to be hived out and covered by whatever award is made to cover the financial services industry and there would still be a residue of clerical and administrative functions.

PN2116 MS MALONEY: No.

PN2117 THE COMMISSIONER: There won't?

PN2118 MS MALONEY: No, that's what I'm saying.

PN2119 THE COMMISSIONER: You think the whole business ought to go over.

PN2120 MS MALONEY: Yes. Our first position, sir, is that when we saw the list of awards included in the agricultural grouping and we saw the Agribusiness Award, it was our view that that award should have been part of the list of awards for the financial services grouping.

PN2121 THE COMMISSIONER: In financial services.

PN2122 MS MALONEY: Yes, that was our initial view because of the sort of work covered by it.

PN2123 THE COMMISSIONER: Are financial services currently subject to consultation?

PN2124 MS MALONEY: Yes. We just went through two days this week and we've included - in our draft application clause for the financial services group, we've included the business of wool broking.

PN2125 THE COMMISSIONER: Just bear with me. I've got a process issue in my mind that's internal to the Commission.

PN2126 MS MALONEY: That's what I - - -

PN2127 THE COMMISSIONER: Just bear with me. In fact there are two members of the Commission in stage 2 looking at this question.

PN2128 MS MALONEY: Sir, can I indicate that in the proceedings before Watson VP, I advised the Vice President of the fact that we had written to you as part of this process, that the federation had put up a draft award and that I advised - I'll check the transcript, I'm sure I advised him of what we were going to indicate to you in terms of our first position so he had an understanding that our draft application clause in the financial services group had included the wool broking because the federation had made no submissions to the financial services group, as we had not made any submissions to the agricultural group, and so his Honour is quite aware of that issue. I made him quite aware of that when we first appeared before him on Tuesday of this week.

PN2129 I'm here today as part of these consultations because of the Agribusiness Award so I was just trying to make that clear. What I want to make clear to the Commission is this, as I say, our first position is that and I've indicated in our correspondence to you of the 24th that if the Full Bench is of the mind that, well, no it shouldn't be part of the financial services group, it should remain in the agricultural grouping and should have a modern award to replace the existing one, well then, there's a few issues that we think need to be addressed to ensure (1) it doesn't undermine the new safety net that's been introduced via the new workplace relations system and secondly, we would seek to be covered by any such new award as we have the constitutional and industrial coverage for the award that it seeks to replace.

PN2130 Can I indicate, sir, and I'm conscious of the time, that we've had some preliminary discussions with the federation today. We did attach to our correspondence to the Commission some of the issues that we picked up and where their proposed modern award contains provisions that are less than the existing award. I wish to emphasise it's not a conclusive list. We've been taken up with the financial services group work this week, but we've had some discussions with the federation today. We came to a point, and I appreciate the tight timetable the Commission is operating under but we came to a point, and it's obviously to the Commission's agreement, that the draft award that the federation has put forward doesn't contain a classification structure so therefore we can't see the total scope of the award they're proposing. They're still drafting that.

PN2131 THE COMMISSIONER: I think I might shortcut this. I'm going to hear from Mr Platt in a moment, but from your perspective there's a lot hanging on what comes of the consultation in relation to financial services. That's your primary position?

PN2132 MS MALONEY: Sir, it's not just that, it's just that we wouldn't want to see - if a modern award is made to replace the Agribusiness Award, we want to ensure that it doesn't undermine - - -

PN2133 THE COMMISSIONER: Yes, I heard what you said. There's a lot hanging on that and if the Bench makes the decision that it's not going to include agribusiness, the traditional wool selling brokers in the Financial Services Award, then there would need to be an award to cover the agribusiness sector and that, from your perspective, should preserve existing terms and conditions of employment and you are not currently advanced in being able to sight such an instrument or a draft or something of that nature. Is that right?

PN2134 MS MALONEY: No, we have sighted a draft of the award that's proposed by the federation.

PN2135 THE COMMISSIONER: But you're not very advanced on that.

PN2136 MS MALONEY: In terms of our examination of it?


PN2138 MS MALONEY: We have identified a number of provisions (a) that are less than the current award but (2), just let me explain this, the current Agribusiness Award has a provision for remuneration agreements and basically, it allows the employer and the employee to come to an agreement on all the terms and conditions of employment. We say the retention of that clause is inconsistent with the new safety net. It's basically contravening the Act.

PN2139 THE COMMISSIONER: I don't want to get into all of the details of this. I'm trying to work out how to manage this process.

PN2140 MS MALONEY: Sir, that's what I was going to put. We had a proposal - in terms of it might assist in managing it, the federation undertook to provide us with their view of the classification structure by early next week. That's the proposal we were going to put. We undertook, subject to the Commission agreeing to this approach, and obviously we reserve our rights in terms of the financial services, but we would give them some more detailed information as to our concerns about their draft. We would agree to have some discussions with them to see whether there was any scope to, I suppose - - -

PN2141 THE COMMISSIONER: What does this all mean for me?

PN2142 MS MALONEY: - - - narrow the differences and we would advise the Commission by 10 December but we would want to emphasise, sir, that whilst we're prepared to have discussions with the federation to see if there was any scope to narrow the differences, we reserve our right, as they reserve their right, to put any further submissions in respect to the draft award by 10 December.

PN2143 THE COMMISSIONER: I'll hear from Mr Platt now, or Mr Skene.

PN2144 MR SKENE: Sorry, Commissioner, in general terms the FSU submissions raise two issues. The first is the scope question and whether this work is properly part of the financial services industry or properly part of the agribusiness industry. Mr Platt is in a position to address you in detail about that today, it won't take very long, it's a very simple point. The FSU's position was raised for the first in its correspondence of 24 November. Plainly, we say, this award covers work that is not properly characterised as financial services work and that's manifest from the classification structure in the award, the existing scope of the award and the work that's performed by the employers that are currently respondent to it. Mr Platt can address that in a moment.

PN2145 The second issue is the question of content and whether what's proposed in the draft is an appropriate safety net for the work that's to be covered by the award. Regardless of which approach is taken by the Commission the work is going to be the same and the FSU suggests either that work should be built into the financial services industry or alternatively it should remain where it is under a separate industry award. We favour the second approach.

PN2146 Whilst there is some disagreement with the FSU about what an appropriate safety net should be, there is a short submission we would seek to make to you today about the eight key aspects of that award and why AEF has formed the view - - -

PN2147 THE COMMISSIONER: Can't you just file that? It's 10 to five now.

PN2148 MR SKENE: I appreciate that, Commissioner.

PN2149 THE COMMISSIONER: I've still got other things on the boil here.

PN2150 MR SKENE: It may be possible to file a written submission but I suspect what that will lead to, Commissioner, is - - -

PN2151 THE COMMISSIONER: A response from the AEF.

PN2152 MR SKENE: And then a response and then a response.

PN2153 THE COMMISSIONER: Well, no, you won't get that many responses.

PN2154 MR SKENE: I appreciate the deadline of the 10th, Commissioner, as well, and everything that we propose to do is within that deadline but an alternative might be, given that the only parties that really have an active interest in this award are the FSU and the AEF. An alternative might be for us to address you on scope today and then to seek to have a specific consultation with you in relation to this award and we can decide whether or not we - - -

PN2155 THE COMMISSIONER: You don't even need to address me on the scope because I think I'm going to defer to the member of the Bench.

PN2156 MR SKENE: To Vice President Watson, Commissioner, yes. Well, it would be our intention, I mean - - -

PN2157 THE COMMISSIONER: He'll make the call because he's got status to.

PN2158 MR SKENE: Yes. Well, we would want to address somebody about that before that call is made, Commissioner.

PN2159 THE COMMISSIONER: Well, haven't you had the opportunity to address me?

PN2160 MR SKENE: Well, no. I mean this letter was sent to us on the 24th.

PN2161 THE COMMISSIONER: I didn't know that. I didn't know that.

PN2162 MR SKENE: So perhaps if we can put those issues on the record, it won't take very long. Mr Platt can deal with it now and then really the position in relation to scope is clear. The FSU has put theirs in writing. I mean we could put something in writing in the short term but it doesn't - - -

PN2163 THE COMMISSIONER: But how did it come to pass that this was put to Vice President Watson but you didn't know about it?

PN2164 MS MALONEY: If I can just clarify because I remember this too, I advised Vice President Watson and I haven't got the transcript of what we communicated to the Commission in respect to this consultation because our draft scope clause for the financial services - - -

PN2165 THE COMMISSIONER: But I thought you said that you were up before - - -

PN2166 MS MALONEY: Yes, Tuesday and Wednesday of this week.

PN2167 THE COMMISSIONER: And did you put it there?

PN2168 MS MALONEY: That we had included wool broking in our draft application.


PN2170 MS MALONEY: Full stop, and that I inquired - - -

PN2171 THE COMMISSIONER: But Mr Platt and his clients didn't know about this?

PN2172 MR SKENE: All we were aware of, Commissioner, is the correspondence to you on the question.

PN2173 THE COMMISSIONER: I see.

PN2174 MR SKENE: And it seemed to us that given it's listed amongst the Agricultural Award it's here.

PN2175 THE COMMISSIONER: You're right, you're right, I understand perfectly, but we should have really had a situation ideally where you had the opportunity to address Vice President Watson.

PN2176 MR SKENE: And one of the things I was going to suggest is we propose to make this short submission today and it could be done in writing given the time I suppose. But we propose to make this submission today and then to alert Vice President Watson to the submission that had been. As I say, the short - - -

PN2177 THE COMMISSIONER: Well, I think you've got to make a written submission and it's got to be copied to me and to him.

PN2178 MS MALONEY: Sir, can I just make a point, we just followed the process that was set by the Commission and that we filed our draft award for the financial services group in terms of the process that was set by the Commission and they were put on the site like everyone has - - -

PN2179 THE COMMISSIONER: Yes, I can see that. I mean some of it is a bit of overlap going on and - - -

PN2180 MS MALONEY: Yes, so that's - - -

PN2181 MR PLATT: The Clerical Award is quite clearly within this Panel and that's why - sorry, the Clerical Agribusiness Award is quite clearly within this panel and that's why we made the submission to this Panel as opposed to the financial services and, you know, when I talked to you about - - -

PN2182 THE COMMISSIONER: I'm not being critical. I'm just suggesting that I think the Vice President has got to read your submission and ideally I think you should file it in writing. I mean if you want him to decide that it shouldn't be included in financial services, because that will be his call, he will set the boundaries, or at least he will recommend to the Bench what should be the case.

PN2183 MR PLATT: Well, the reality is, sir, is that we didn't envisage and in our view couldn't be reasonably expected to be that anyone could contend that a company like Elders which typifies what is a wool selling broker or I mean it could also be known as a stock and station agent, you know, would be regarded as being in the finance industry. The reality is that a company such as - - -

PN2184 THE COMMISSIONER: Well, you might very well be right. My concern is I would like to see something from you in writing on the record directed to him.

PN2185 MR PLATT: We're happy to do that, happy to do that.

PN2186 THE COMMISSIONER: Yes, right. Clearly your plea will be to reject the FSUs submission to maintain the Agribusiness Award as an award within the agricultural sector and that an award be made accordingly. But I do think he needs to see that.

PN2187 MR PLATT: And we'll ensure that he does.

PN2188 THE COMMISSIONER: And I think he would suspect that I would secure that.

PN2189 MR PLATT: I suppose the issue arises as a result of the understanding of what is a wool selling broking industry.

PN2190 THE COMMISSIONER: Yes. Well, as I say, you might be quite right. This might be an adventure in terms of financial services. Historically it's not been regulated by financial services instruments in the past, has it?

PN2191 MR PLATT: No, no.

PN2192 THE COMMISSIONER: This is a new idea, isn't it?

PN2193 MR SKENE: Absolutely.

PN2194 MS MALONEY: Sir, just to be clear, their draft award has provision of financial banking services and the provision of insurance services so when we saw their - - -

PN2195 THE COMMISSIONER: And that's not in the current Agribusiness Award, is that right?

PN2196 MS MALONEY: Well, it's not as clear. There's no description. That's what I'm saying, that's all.

PN2197 MR PLATT: With respect, your Honour, it is. If you look at what a wool selling broker is, the place to look is in the rules of the Agribusiness Employers Federation. The Commission's rules provides that the services that we provide including those concerning livestock and sheep, buying and selling livestock and sheep on behalf of graziers and the provisions of wool, textile handling, storage and processing services, which we talked about earlier, the provision of financial and banking services. You know, the reality is we will sell the prospective farmer his farm. We will lend him the money to purchase the farm. We will give him

agronomic advice as to what he should plant and how many sheep per acre that he can do. We will provide the merchandise - - -

PN2198 THE COMMISSIONER: Elders have always financed farms.

PN2199 MR PLATT: That's right. We provide the merchandise for him to make sure his stock doesn't run away. We'll sell him his drenches and his dips.

PN2200 THE COMMISSIONER: Financial services to agriculture.

PN2201 MR PLATT: That's right. And when he's purchased - - -

PN2202 THE COMMISSIONER: It's not general finance.

PN2203 MR PLATT: That's right. But we've purchased his property and he's got things of value - - -

PN2204 THE COMMISSIONER: He want to insure it. You do the insurance broking.

PN2205 MR PLATT: We'll insure it and then sooner or later he will want to sell it and then he will make some money out of it.

PN2206 THE COMMISSIONER: He will insure the property.

PN2207 MR PLATT: And we'll invest that for him. He will purchase another farm and we provide - - -

PN2208 THE COMMISSIONER: Well, you might advance money against the property.

PN2209 MR PLATT: That's right. So we are the one stop shop outside of the farm gate in relation to the services and to suggest, you know, to say you know - could you imagine that if Elders had to close it doors at 4 o'clock like a bank or wasn't open at all on weekends and the sort of people that we employ that are listed in the current classification structure, and we're not looking at moving away from those sorts of people, you know, wool specialists, wool technical officers, merchandise sales representatives, insurance sales representatives, real estate sales representatives, accountants, managers and we go all the way up to HR managers, regional managers, wool managers, livestock managers, insurance managers and a person may not be just selling insurance.

PN2210 When you drive through country Victoria or country Australia we don't have an insurance manager or a banking manager in every store. There will be people who have got multiple skills which will provide whatever services they need.

PN2211 THE COMMISSIONER: Do you offer any investment opportunities?

PN2212 MR PLATT: Yes, we do and - - -

PN2213 THE COMMISSIONER: Funds management?

PN2214 MR PLATT: Well, we take funds on deposit, depending on the prevailing interest rate. But the services - - -

PN2215 THE COMMISSIONER: So if somebody gets a wheat crop off then they get a cheque from the Wheat Board you'll take it on deposit?

PN2216 MR PLATT: We'll take it on deposit and we'll give them an interest rate for it. We'll lend them money so they can buy the farm next door and the farm next door for that and that the timing of our services isn't like a bank. You know, the farmer might make a few phone calls and say, well, it's going to run tomorrow, I'm going to do this so I need to get this grain or this stock or this merchandise and that phone call will happen before he sits on his tractor and we'll take the phone call and do that. Then he's off on the farm all day, he'll have a break at lunch time and he might need some more services or he might want to meet an agronomist and wander around the farm.

PN2217 Then he'll do some more work and at the end of the day he'll contact us again and that's why our hours of work provisions are so flexible compared to the Banking and Finance Industry Award and it seems to be if you want to cure the agribusiness industry just treat us like a bank that's why we say that we have always been a discrete part of the agribusiness industry. Yes, we do provide financial services and banking services and they obviously become more - - -

PN2218 THE COMMISSIONER: Well, you don't actually provide banking services, do you, not banking services? You provide financial services.

PN2219 MR PLATT: Yes. But with the greatest respect, the Finance Sector Union, you know, there was a gentleman by the name of Daryl Foster who had - - -

PN2220 THE COMMISSIONER: And you're not a bank.

PN2221 MR PLATT: Yes, that's right, who had a great - - -

PN2222 THE COMMISSIONER: You're not APRA regulated.

PN2223 MR PLATT: Yes. I don't know the APRA legislation well enough to say - - -

PN2224 THE COMMISSIONER: No, you wouldn't have any capital adequacy requirements or anything of that nature. You're not getting a guarantee I don't think.

PN2225 MR PLATT: I don't know. I suspect that we're not getting - no, I suspect that we wouldn't be getting a guarantee. No, I think I agree with you there. So we are just not the same and I think it would be useful for me to tender a copy of our rules so that your Honour can read the definition - - -

PN2226 THE COMMISSIONER: The point that where there may be a bit attraction here is the idea that you ought to be able to keep on doing what you've been doing but there oughtn't be any scope in the award that travels you beyond that so that you become a bank.

PN2227 MR PLATT: We are not trying to expand the award coverage. No, no.

PN2228 THE COMMISSIONER: And you're taking deposits on Sunday morning.

PN2229 MR PLATT: No. And the scope clause does that. The scope clause reflects the definition of the industry that's contained in the agribusiness - - -

PN2230 THE COMMISSIONER: Can we just now turn given the hour to the question of the conditions of employment, how do you propose to deal with that?

PN2231 MR SKENE: We were proposing to initially respond to this general contention by the FSU that the Commission is constrained in setting the safety net by the terms of the current award and there was just two very brief points I wanted to make about that by way of general introduction. We say that that submission is flawed for essentially three reasons. The first is that this award of its nature is quite unique. It regulates an industry that provides services to another industry. It regulates people that commonly we would see- senior managers who are not award regulated. It does that in a way that involves a large amount of flexibility but its current scope in most states is confined to a limited number of respondents. That is not going to be the case once it’s made as an industry award. It’s in fact going to regulate every stock and station agent that provides the sorts of agribusiness services that are covered. In doing that, we say that whilst the current award is a starting point, one needs to have regard to the existing industry arrangements in assessing whether or not in fact that starting point is an appropriate safety net for that broader industry group.

PN2232 THE COMMISSIONER: Yes, I don’t want to go into all of this now because I think you can file all this sort of thing.

PN2233 MR SKENE: Yes.

PN2234 THE COMMISSIONER: We’ll just put it up on the web for everybody to have a look at. I suspect nobody is going to be interested other than your organisation and the FSU. Nobody else here has got an interest, have they? No.

PN2235 MR SKENE: No, nobody else does. It’s really an issue between us and the FSU.


PN2237 MR SKENE: I’ll just tell you what the other issues and you can tell me whether you wish to hear me on any of them now.


PN2239 MR SKENE: What we were proposing to do is to review the contents of the award on which we know that there is a dispute with the FSU.


PN2241 MR SKENE: Those other provisions can be organised as follows. The first is in relation to scope, and you’ve heard some of that.


PN2243 MR SKENE: I was going to review how the award clause worked. The second was in relation to award flexibility. The FSU’s position is that award flexibility should be limited to the model clause. Of course the Full Bench has already recognised that where there are other facilitative arrangements under the award, they should be regarded as supplementary. There are a whole lot of them in our award, and one of them in particular is really important and I’ll come to that in a second. The third issue is hours of work and how they should be averaged in this industry for both shift workers and day workers, and I note the discussion that you’ve had with some other members, other stakeholders today. One of the things that we propose in relation to hours of work is to adopt the type of model that you were putting to Mr Decarne, and that is that ordinary hours can be worked Monday to Sunday. That reflects a modern reality of the pastoral industry and the agricultural industry, and the types of businesses that our members provide services to. So we actually need more flexibility than them because - - -

PN2244 THE COMMISSIONER: But these all go to the content of your award. You’ve got a draft award, haven’t you?

PN2245 MR PLATT: Yes.

PN2246 MR SKENE: Yes, we do and - - -

PN2247 THE COMMISSIONER: They’re all in there, are they, presumably?

PN2248 MR SKENE: These are - - -

PN2249 THE COMMISSIONER: You have got a submission that goes with it?

PN2250 MR SKENE: There is a submission, yes, although these things aren’t deal with in the submission. These are matters that - - -

PN2251 THE COMMISSIONER: Well you should file that. You should file that. I said at the outset today I wasn’t actually going to listen to submissions as such, that they should be filed. The questions I was going to ask was to point out where the differences were between the parties and just get a sense of process.


PN2253 THE COMMISSIONER: But it just seems to me, given that - I’ve got a feeling the FSU is not really up to speed here. You’re probably a bit ahead of them in terms of what you want.

PN2254 MS MALONEY: No, we’re up to speed on some points, your Honour.

PN2255 THE COMMISSIONER: That’s right.

PN2256 MS MALONEY: Yes.

PN2257 THE COMMISSIONER: They’re up to speed on some points but not all points.

PN2258 MS MALONEY: Well probably the most important ones though.


PN2260 MR SKENE: The eight points I’m addressing, Commissioner, are the eight points that they’ve raised to date.


PN2262 MR SKENE: We have met with them about that and we know we’re in disputation. But without going into the detail, the others are classifications. We

propose a classification structure that covers exactly the same work. It’s a question about drafting appropriate descriptors. The next thing is this remuneration agreements clause. There is a general operation in this industry where people, by agreement -a general facilitative provision where people by agreement can make an arrangement such that the provisions of the award don’t operate. That’s a very broadly used provision. Most people work under it, and we seek that it be retained and they seek that it be removed, and that’s going to be a key area of disputation. The capacity for annualised salaries to be included. Allowances - - -

PN2263 THE COMMISSIONER: Currently there?

PN2264 MR SKENE: Well they are. They’re there through this remuneration agreement.

PN2265 THE COMMISSIONER: Yes, all right. Otherwise not.

PN2266 MR SKENE: But the award contains annual salaries. It doesn’t contain for annualisation of overtime et cetera and we’re proposing to include that because that’s a modern reality of this industry. You’re dealing with a senior marketing manager - - -

PN2267 THE COMMISSIONER: You see, there’s no point in trying to persuade me.

PN2268 MR SKENE: Yes, I understand.

PN2269 THE COMMISSIONER: I’m the errand boy. I’m just taking it back.

PN2270 MR SKENE: Well just to tell you what else to take back. The other issue really is one of detail about how the shift work and overtime provisions work. In the current award they are, we say, in need of modernisation. They’re complex and in some areas they’re prescriptive and certainly they don’t reflect an appropriate safety net. So what is being proposed is a modification. It does not disadvantage anyone and transitional provisions have been put forward to make sure that that’s the case. But in general terms they’re the points at which we’re apart. Now obviously the award regulates a whole lot of other things. We’re not necessarily in dispute. In large part the existing award is the base, but as the point of principle is that it’s not the be-all and end-all given the - - -

PN2271 THE COMMISSIONER: All right. Now is it possible - - -

PN2272 MS MALONEY: Well sir can I just clarify, because - - -

PN2273 THE COMMISSIONER: No, not just at the moment.

PN2274 MS MALONEY: I just don’t want it to be taken that just the points that have been put now are the points that we are apart. They’re our initial - - -

PN2275 THE COMMISSIONER: Yes, well I’m not taking that - that’s what Mr Skene is saying.

PN2276 MS MALONEY: Fine.

PN2277 THE COMMISSIONER: You will have a chance at the moment but we need to marshal the process a little bit better.


PN2279 THE COMMISSIONER: To get focussed on the things that the Bench is going to have to decide.


PN2281 THE COMMISSIONER: What would be highly desirable is if it’s possible that you produce a document which is a merger of your proposals as for an award, and in those clauses where there is difference you have an Agribusiness clause and you have an FSU clause, above one another.

PN2282 MS MALONEY: Can I just say because I’ve just got to get more - the difference between what is before you now and what you have dealt with during the course of the day is that there’s a - in the other matters of the industries there are a number of awards. So there was obviously an issue about trying to come to certain conditions if you’re trying to bring an amalgam of awards together. Here we are talking about one award, one award, and that’s the starting base. So our comments go to if the Bench decide to produce a modern award, we say that in terms of what they’ve put up it can’t undermine the safety net. That’s what we were going to say in terms of what they have put up.

PN2283 THE COMMISSIONER: I heard that. Did you hear what I just suggested?

PN2284 MR SKENE: Commissioner - - -

PN2285 THE COMMISSIONER: Sorry, no, just a moment, Mr Skene.


PN2287 THE COMMISSIONER: Did you?

PN2288 MS MALONEY: Well sir, we’re not proposing to draft an award. We don’t have any problems making comments in respect of the draft that they have put up, but we just want to make sure that any draft award, if it’s made, doesn’t undermine the safety net.

PN2289 THE COMMISSIONER: What I was going to do was to offer you the opportunity, if you wished, to present a document, given that there are really only the two of you involved in this.



PN2292 THE COMMISSIONER: It seems quite a manageable process to me that if you present the document that says “This is an award and it has five clauses in it. Everything is agreed except clause number 5” and there is a clause there which is Agribusiness’s text and there’s a clause there which is FSU text, and you each have a brief submission about why one or the other should be preferred.

PN2293 MR SKENE: Yes Commissioner.

PN2294 THE COMMISSIONER: Isn’t that a better process?

PN2295 MS MALONEY: Well of course - - -

PN2296 THE COMMISSIONER: If you don’t want to avail yourself of that, that’s fine.

PN2297 MS MALONEY: That’s fine. We agree we might do that, sir, but I just want to indicate that, I suppose, some of the concerns we have I can’t see that we’re going to reach agreement on. That’s all.

PN2298 THE COMMISSIONER: But that’s the whole idea.


PN2300 THE COMMISSIONER: So that if you can do it by 10 December.

PN2301 MS MALONEY: Yes sir.

PN2302 THE COMMISSIONER: What I will be able to say is this is the agribusiness sector. “Vice President Watson, you make the call on whether it goes into finance, financial service as suggested by the FSU. If you decide that it does then

you’ll have to take it from there. If you decide that it does not, here is a draft for consideration for the purpose of creating an exposure draft and here are the points of difference between the parties. Make the calls; which ones do you prefer?”


PN2304 THE COMMISSIONER: That’s what I want to be in a position to do. Now I just think that’s in your interest as an organisation to have it so neatly brought up for decision, rather than there be any misunderstanding on the part of the seven people who are ultimately going to be the decision makers, but are not sitting at this bench today; and are going to have a hell of a lot in front of them on the day in which they’re making a decision. It gives clarity to your position, and you making a submission that, as I understand it, what you will be putting in this draft is what is in current award.

PN2305 MS MALONEY: With some exceptions.

PN2306 THE COMMISSIONER: With some exceptions, and you’ll put that there. “These provisions are currently provided for” and you put the award code, and you’ll say that they should be retained for that reason. Mr Skene will put a different proposition. He has already got a submission, or the business has got a submission.

PN2307 MR SKENE: Commissioner, we’re content with that course. Just two things about it.


PN2309 MR SKENE: First, we would propose on the scope question to provide a letter to both you and Vice President Watson by the end of this week.

PN2310 THE COMMISSIONER: That’s fine.

PN2311 MR SKENE: In terms of the commitments of the AEF and its capacity to finalise a position by 10 December, I just foreshadow that we’ll need to have concluded that process by the end of next week.


PN2313 MR SKENE: So effectively have a week to do that. At the end of that week we’ll obviously consult in the meantime. We will put in - - -

PN2314 THE COMMISSIONER: If there are gaps there, you can just add “To be advised”.

PN2315 MR SKENE: - - - where we are at, yes.

PN2316 THE COMMISSIONER: At least we will know when we’re conferring that there are gaps there that will have to be filled in if necessary.

PN2317 MR SKENE: Thank you Commissioner.

PN2318 THE COMMISSIONER: All right, very well.

PN2319 Thank you, Ms Moloney.

PN2320 Mr Platt, do you have a document that you were going to table?

PN2321 MR PLATT: Yes, I did. I seek to tender a copy of the organisation’s rules. The Commission will note at rule number 1 there is a description of the definition of wool selling grade.

PN2322 THE COMMISSIONER: Good, thank you. Now I think we’re not going to go on doing any more business for today, apart from tidying up and finishing up, trying to bring this matter to a conclusion, even though it might be a bit raggedy at the end, which I think is inescapable. But I think there is something to be said that maybe another get together might be desirable, to look at what some of these things that the parties have been - the headline issues the parties have been working with. Is that desirable? Do the parties want to have that opportunity?

PN2323 MS CORKHILL: Is this after the 10th?


PN2325 MR LONGLAND: I have no objection to that course at all.

PN2326 MS CORKHILL: I don’t have an objection after the 10th. We would be pushing it before then.

PN2327 MR LONGLAND: Yes, I think that’s a good proposal, Commissioner.

PN2328 MR HOULIHAN: But Commissioner, just hearing what my friend is saying, is there much purpose to be served if that meeting is held after the 10th?

PN2329 THE COMMISSIONER: There is because what I’m anticipating is that we’ll have a lot of documents to work with at that time.

PN2330 MS CORKHILL: And know what our positions are.

PN2331 THE COMMISSIONER: I might be able to elucidate people’s understandings and the strengths of their views on particular matters that remain problematic at that point.

PN2332 MR HOULIHAN: All right.

PN2333 THE COMMISSIONER: Hopefully this will be a process of distillation. Would the 12th be suitable?

PN2334 MS CORKHILL: Tricky.

PN2335 THE COMMISSIONER: The 11th or the 12th.

PN2336 MR HOULIHAN: The 11th would be better.


PN2338 MS CORKHILL: The 12th would be better for me.

PN2339 THE COMMISSIONER: Everybody might not necessarily want to participate.

PN2340 Mr Warren, do you anticipate that it would be crucial for you to - - -

PN2341 MR WARREN: I anticipate not.


PN2343 MR WARREN: I think the Commission and the parties are well aware of where our concerns are.


PN2345 MR WARREN: That’s certainly - - -

PN2346 THE COMMISSIONER: In the meantime what might help is if you could basically recap your position as of today.

PN2347 MR WARREN: Yes, certainly.

PN2348 THE COMMISSIONER: On one or two AF4 pages.

PN2349 MR WARREN: Certainly, Commissioner, we’ll do that and if what comes out of any of the documents that are exchanged and we want to make particular comment, we’ll make particular comment.

PN2350 THE COMMISSIONER: Yes, well I just indicate to the others that they should copy you in.

PN2351 MR WARREN: Thank you.

PN2352 THE COMMISSIONER: So this loop - I’ll obviously put this up on the site as a general consultation so we might get some more people come back. But I notice all the aquaculture people have decided that it’s time to go.

PN2353 MR TAYLOR: Commissioner, the only thing on timing there though is if the written submissions by various parties are not filed until the 10th, that would only enable a day to then digest it, to then appear before you on the 12th.

PN2354 THE COMMISSIONER: Yes, but they’re not going to be - they’re only going to address the headline issues.

PN2355 MR TAYLOR: Okay.

PN2356 THE COMMISSIONER: I think you’re probably going to be able to read them on the morning and you’re all across it now. You’re across the brief. We’re just working the ground, to use another metaphor.

PN2357 UNIDENTIFIED SPEAKER: The 12th - - -

PN2358 MS CORKHILL: The 12th.

PN2359 MR HOULIHAN: The 12th

PN2360 THE COMMISSIONER: The 12th it will be.

PN2361 MS CORKHILL: Would that be at 10 am?

PN2362 MR HOULIHAN: Here or Sydney, sir?

PN2363 THE COMMISSIONER: Here.

PN2364 UNIDENTIFIED SPEAKER: It’s nice this time of year in Sydney.

PN2365 THE COMMISSIONER: Well I can understand that.

PN2366 MS CORKHILL: No, no, no.

PN2367 THE COMMISSIONER: I just don’t think I can do it because of other commitments that I have in Melbourne around that time.

PN2368 MS CORKHILL: Would it be 10 am?

PN2369 THE COMMISSIONER: 10 am. All right, well I’ll reconvene the consultation at 10 am and hopefully you will have done the work and tick tacked with one another. Maybe you can make a little email message address book for one another in the meantime, and I’m happy for you to copy me in and we’ll put up on the website anything that’s relevant. Or you can just keep me posted on your procedure, your process. That won’t need to be posted, only a formal submission will need to go up.

PN2370 MS CORKHILL: All right.

PN2371 THE COMMISSIONER: Very well. It sounds like I’ll see most of you again on the 12th.

<ADJOURNED UNTIL FRIDAY 12 DECEMBER 2008 [10AM]

T RANSCRIPT OF PROCEEDINGS · 2011-12-19 · T RANSCRIPT OF PROCEEDINGS. Workplace Relations Act...

Documents

Transcript of T RANSCRIPT OF PROCEEDINGS · 2011-12-19 · T RANSCRIPT OF PROCEEDINGS. Workplace Relations Act...