PN47

THE VICE PRESIDENT: I will take the appearances. Mr Hamilton, you appear for Live Performance Australia.

PN48

MR D HAMILTON: That is correct, your Honour.

PN49

THE VICE PRESIDENT: Ms Wilson and Ms Svendsen, you appear for the Media, Entertainment and Arts Alliance. Is that right?

PN50

MS M WILSON: I'm Maria Wilson. I appear for the Media, Entertainment Arts Alliance; and I know there is another appearance, but it's not with the union.

PN51

THE VICE PRESIDENT: I'm sorry. Ms Svendsen, are you there?

PN52

MS L SVENDSEN: Yes, Vice President. I know this is an unusual event, but I appear for Gig Power Pty Ltd.

PN53

THE VICE PRESIDENT: All right. And Gig Power is what, an employer covered by the award, is it?

PN54

MS SVENDSEN: It is, your Honour.

PN55

THE VICE PRESIDENT: Yes, all right. Thank you. I should ask, Ms Svendsen, have you seen the draft determination which the parties sent through earlier today?

PN56

MS SVENDSEN: Yes, your Honour. Your associate brought it to my attention and I've read it now.

PN57

THE VICE PRESIDENT: All right. Thank you. I've only had a chance to quickly look at it. It might be useful, either Mr Hamilton or Ms Wilson, if you can just run me through it and just tell me what it's trying to achieve or what it does.

PN58

MR HAMILTON: Yes, your Honour. The issue that we had is that the Fair Work Ombudsman had, in their pay rates, had different pay rates than what the parties had agreed to when it came to working on Sundays and public holidays. The issue that the Fair Work Ombudsman brought up was that the minimum hourly rate, whilst not defined, included the casual loading, which would in effect increase the rates on Sundays for casual employees by a further 25 per cent; so instead of 225 per cent it would be 250 per cent for working ordinary hours, and working overtime would be 275 per cent.

PN59

The parties have conferred, and prior to the review in the new award, the 2020 award, casual employees working on a Sunday were always paid 225 per cent, and there was no provision on the award for overtime on Sundays, mainly because the award has been a five-day week award, and there were penalties for working on the sixth and seventh day. Sundays were always a penalty day for double time for both full-time, part-time and casuals, and whether they worked more than eight hours a day or not on a Sunday. So that was the history, your Honour.

PN60

And what the parties have agreed is to revert back to what the provisions were prior to 2020 award, that is casual employees receive 225 per cent of the minimum rate for all work performed; and also that would mean that the definitions be amended to include a definition of the minimum hourly rate, being the hourly rate as prescribed in clause 11 of the award.

PN61

So basically that's what the parties believe that this draft variation would do, would revert back to what the provisions were prior to 2020. Hopefully that would also mean that the Fair Work Ombudsman would change their rates to what the parties have agreed on previously. Ms Wilson, do you want to add anything?

PN62

MS WILSON: Thank you, Mr Hamilton. No, I think you've summed it up, unless his Honour would like more information.

PN63

THE VICE PRESIDENT: I understand the problem. I'm just trying to work out what the variations actually do. I'm looking at clause 57.3 That clause says the appropriate rate is the minimum rate plus 25 per cent. I take it that that should be read as meaning for ordinary hours. Is that right?

PN64

MS WILSON: Correct. That is how the parties would interpret it, your Honour.

PN65

THE VICE PRESIDENT: I'm just wondering whether having regard to the variation, there might need to be a further variation to that clause to make that clear. You mentioned public holidays. Where's the public holidays provision?

PN66

MR HAMILTON: Clause 21.5.

PN67

THE VICE PRESIDENT: Where do I find the penalty rate there?

PN68

MR HAMILTON: 21.5 says:

PN69

All employees who work on a public holiday, whether part of ordinary roster or work cycle or not, will be paid 200 per cent of the minimum hourly rate or minimum payment as for four hours.

PN70

That clause applies to full-time, part-time and casual employees.

PN71

THE VICE PRESIDENT: So the 225 doesn't apply to public holidays?

PN72

MR HAMILTON: I'm sorry, your Honour?

PN73

THE VICE PRESIDENT: So the 225 per cent doesn't apply to casuals on public holidays?

PN74

MR HAMILTON: Correct.

PN75

THE VICE PRESIDENT: Why is that? That is, why would you receive a lower rate on a public holiday than a Sunday?

PN76

MS WILSON: No, your Honour, I think that that would have to be amended as well.

PN77

THE VICE PRESIDENT: Because I thought what you were saying earlier, Mr Hamilton, was that Sundays and public holidays were being treated by the Fair Work Ombudsman both as if they were 250 per cent; but isn't the logic that if full-timers get double time, then casuals would get 225 per cent?

PN78

MR HAMILTON: That would be logical.

PN79

THE VICE PRESIDENT: Because I assume the the Fair Work Ombudsman - sorry. I assume the Fair Work Ombudsman will be applying the same logic to 21.5, they would be saying 200 per cent of the minimum hourly rate includes casual rates, so that then it becomes 250.

PN80

MR HAMILTON: Correct, your Honour. Yes I think that's right.

PN81

THE VICE PRESIDENT: So should that say for casuals?

PN82

MS WILSON: Yes, I think that should be a separate ‑ ‑ ‑

PN83

MR HAMILTON: I'm sorry, your Honour ‑ ‑ ‑

PN84

MS WILSON: His Honour is just suggesting that maybe that should say 225 per cent for casuals on a public holiday and I'm agreeing with him, because the casual gets the casual loading. They get the double time on the minimum rate plus the casual loading, so it brings it to 225 rather than 200 per cent on a public holiday.

PN85

MR HAMILTON: Yes.

PN86

MS WILSON: And on a Sunday. So I think you're right, your Honour. I think we would have to amend that clause as well.

PN87

THE VICE PRESIDENT: That would be logical.

PN88

MS SVENDSEN: Would that be better to go back - sorry, this is Leigh Svendsen. Wouldn't it be better to go back to the concept of minimum rates that - well, not minimum rates, but that all payments in relation to penalties are the minimum rates plus, which is what it actually says at 57.3:

PN89

Minimum rates for the relevant classification, plus the 25 per cent loading on such hourly rates.

PN90

If you ensure that that applies to all times worked, then it is whatever - so 200 per cent for a public holiday, plus 25 per cent; 200 per cent for a Sunday, plus 25 per cent.

PN91

Eirinn, have we just lost the Vice President?

PN92

THE ASSOCIATE: Yes. Sorry, Ms Svendsen, it appears we have. Just let me resolve this, and then we can continue. Sorry about that.

PN93

MS SVENDSEN: It's fine. It's not your fault.

VICE PRESIDENT INTERNET DROPS OUT [9.26 AM]

VICE PRESIDENT RETURNS [9.29 AM]

PN94

THE VICE PRESIDENT: I think I'm back. Is everyone there?

PN95

MR HAMILTON: Yes, your Honour.

PN96

MS WILSON: We are.

PN97

MS SVENDSEN: Yes, we're here.

PN98

THE VICE PRESIDENT: The internet dropped out where I was. I think where we left off, Mr Hamilton, I was asking you whether you agreed with what Ms Wilson had just said about the public holidays clause.

PN99

MR HAMILTON: Yes, your Honour. And we've just had a quick chat between the parties, and I think we all agree that public holidays should be expressed as 200 per cent plus 25 per cent for the casual loading, as for Sunday work.

PN100

THE VICE PRESIDENT: Right. I just want to make clear that if we change this definition of the minimum hourly rate, then it doesn't have any effect upon any other provision of this award, noting all the different - there's a whole range of different provisions for different categories of employee. I mean penalty rates for different categories, I think we would need to check, wouldn't we, how that new definition affects all of those provisions.

PN101

MS WILSON: Yes. No, that's correct, your Honour.

PN102

THE VICE PRESIDENT: All right. Can I ask the parties to do that. But then there's the second part about meals when travelling. Can someone take me through those?

PN103

MR HAMILTON: Yes, your Honour. If I can indulge the Commission just for a bit of a history lesson. Prior to 2010 the travelling provisions in all our live performance awards, which include ballet, operate, dance companies, sound and lighting companies, et cetera, had the same travel provisions applied to each award. There was about 15 or 18 awards, and it was from a decision from the Full Bench in 1998, there was a big review of the travel provisions.

PN104

Those travel provisions prevailed until the modern award system came in, and in that process of amalgamating the awards the provisions for meals and accommodation allowances for less than one week were deleted from the 2010 award.

PN105

Those provisions still remained in our collective agreements that we have with the Media, Entertainment and Arts Alliance, and so during the four-year view it was decided that those provisions for meals for travelling for less than a week, and accommodation casual allowance travelling less than one week should be reinserted into the award.

PN106

The provision for the accommodation allowance was included as the partied had instructed at the time, and that was to make a distinction that the accommodation allowance where the travel was less than a week, that is one to four days, the employee, if they wanted to take the cash allowance, that cash allowance was put back into the award. You will note that that cash allowance rate is higher than the cash allowance rate for employees that are engaged on tours for more than a week, and that was the decision of the Full Bench back in 1998 to compensate for those short tours, should the employee want to take the cash allowance.

PN107

So in the award as it stands, the provisions for the accommodation allowance is quite simple to understand. You get the cash allowance from one to four days, which is a higher rate; but if you're on tour, which most productions do do anyway, if you're touring for more than a week, then you get the cash allowance as prescribed in 14.3(d). That daily allowance that is in that clause is derived by taking the weekly rate and dividing it by five. That was the formula that was inserted into the awards back in 1989.

PN108

Unfortunately the same words were not used in clauses (g) and (h), 14.3(g) and 14.3(h) in the new 2020 award, and this has created a confusion and ambiguity because clause (g) says 'meals while travelling, one week, five working days or less' and then (h) says 'meals while travelling, one week, five working days or more'. And so they're using both five working days in both clauses.

PN109

So to fix this anomaly the parties have agreed that 14.3(g) should reflect the same provisions as in (c) for the accommodation allowance of one to four days. So that would mean a variation to the heading of 14.3(g) to 'Meals While Travelling One to Four Days', and then the heading for 14.3(h) would be 'Meals While Travelling One Week, Five Working Days or More', and then that would resolve that ambiguity.

PN110

Also we've put in there the notes that the daily allowance is derived by dividing the weekly allowance by five, as per the Full Bench decision back in '89. Does that explain it, your Honour?

PN111

THE VICE PRESIDENT: Yes, I understand. All right. Ms Svendsen, did you want to say anything about this?

PN112

MS SVENDSEN: No, your Honour. I'm fine, thank you.

PN113

THE VICE PRESIDENT: All right. Mr Hamilton and Ms Wilson, can I ask you to file a further amended draft determination just to take into account the matters we've discussed this morning; and then once you've done that, I will go through it, I will issue a draft determination for all parties to comment upon, and then if no one opposes it, we can make a final variation. Is that an appropriate course?

PN114

MR HAMILTON: That's appropriate for us, your Honour.

PN115

MS WILSON: Yes, thank you, your Honour, that's most appropriate.

PN116

MS SVENDSEN: Thank you, your Honour.

PN117

THE VICE PRESIDENT: Thank you. I thank you for your attendance. We will proceed on that basis. We will now adjourn

ADJOURNED INDEFINITELY [9.38 AM]