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Fair Work Act 2009                                       1057516




AM2019/21 AM2019/22


s.157 - FWC may vary etc. modern awards if necessary to achieve modern awards objective

Application by FWC


Hospitality Industry (General) Award 2010


s.158 - Application to vary or revoke a modern award

Application by Australian Hotels Association


Hospitality Industry (General) Award 2010




10.07 AM, MONDAY, 16 DECEMBER 2019


JUSTICE ROSS:  Can I have the appearances, please?


MR P RYAN:  May it please the Commission, Ryan, initial P, for the appearing for the Australian Hotels Association.


JUSTICE ROSS:  Thank you, Mr Ryan.


MR H HARRINGTON:  If it pleases the Commission, Harrington, initial H, for the Australian Industry Group.


JUSTICE ROSS:  Thank you, Mr Harrington.  We issued a statement on 3 December this year expressing the provisional view that the Hospitality Award should be varied in line with the AHA's proposal.  We also expressed the provisional view that all 113 modern awards with part-day public holiday schedules should be varied and that such a variation was necessary to meet the modern awards objective.  We invited submissions on our provisional views.  We received two submissions from Ai Group and the United Workers' Union.  Both submissions supported our provisional view.  On 11 December we received correspondence from the Queensland Minister for Education and Industrial Relations, requesting that the Commission, on its own motion, exercise powers under section 160 to resolve the ambiguities created by the Queensland legislative amendment.


In the statement we had issued earlier, we had referred to our own motion power under section 157.  Having read the Minister's correspondence, it seems that section 160 may be the more appropriate section.  I also note that that was the section under which the part-time public holiday schedules were originally inserted into the 113 modern awards.  Does anyone object to us proceeding under section 160?


MR RYAN:  If I may go first, your Honours, Commissioner - - -




MR RYAN:  - - - from the AHA's perspective we don't have any objection under section 160.  Indeed, at part 2.2 of the application subparagraph (5) our application also arises under section 160.


JUSTICE ROSS:  All right.


MR RYAN:  Both statutory provisions in our submission would lead to the same result in removing the ambiguity and uncertainty and meet the modern awards objective.  However, in light of what your Honour has said this morning, we have no objection to proceeding under section 160, unless there is anything - - -


JUSTICE ROSS:  Not at the moment - Mr Harrington, anything from you?


MR HARRINGTON:  Thank you, your Honour.  We have no objection to the Commission proceeding under 160 either.


JUSTICE ROSS:  Thank you.  There is one matter that I want to raise with you and that relates to the operative date of the variation determinations.  As you know, the general rule is that a determination varying a modern award comes into operation on the day specified in the determination.  That day must not be earlier than the day on which the determination is made.  Moreover, a determination only takes effect in relation to a particular employee from the start of the employee's first pay period if it starts on or after the day the determination comes into effect.  So the practical import of that is that if we were to make the determinations today or tomorrow, then they would come into effect on the first full pay period for each employee.


The issue that creates is, of course, the part-day public holidays next week.  Employees on fortnightly pay periods or monthly pay periods would be disadvantaged by that outcome.  There is an exception to the general rule whereby if the variation is made under section 160, as these would be, and the Commission is satisfied that there are exceptional circumstances justifying an earlier date, then it can determine an earlier date.  You may recall this is what occurred when the part-time schedules were inserted into the awards in the first place.  There, the determinations were made in December of that year or published in December of that year but the date on which they were to come into effect was in November of that year to avoid the same outcome that we have here.


So I wanted to raise that with you and whether in those circumstances there was any objection to the relevant date being in November, to ensure that it didn't create more problems, whereby you may have people in the same workplace on different pay periods, receiving different entitlements.  Mr Ryan, anything you want to say about that?


MR RYAN:  No objection to that approach, your Honour.


JUSTICE ROSS:  Thank you.  Mr Harrington?


MR HARRINGTON:  No objection from us either, your Honour.


JUSTICE ROSS:  Thank you.  Is there anything else either of you wish to say?


MR RYAN:  Not from the AHA.


JUSTICE ROSS:  Thank you.


MR HARRINGTON:  Not from us either, your Honour.


JUSTICE ROSS:  Thank you both very much for your attendance and submissions.  We will adjourn and reserve our decision.  Given the proximity of the part-day public holiday, we will endeavour to hand down our decision by close of business tomorrow.  Thank you both.  We'll adjourn.

ADJOURNED INDEFINITELY                                                        [10.13 AM]