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Fair Work Act 2009                                                    






s.160 - Application to vary a modern award to remove ambiguity or uncertainty or correct error


Application by Australian Workers' Union, The - New South Wales Branch


Funeral Industry Award 2020




10.00 AM, FRIDAY, 18 JUNE 2021


THE ASSOCIATE:  Vice President, can I confirm you can hear me?  Vice President, I think you're on mute.




THE ASSOCIATE:  All right.  In the matter AM 2021/61 for directions hearing before Vice President Hatcher.


VICE PRESIDENT HATCHER:  So Mr Crawford, you appear for the Australian Workers Union?


MR CRAWFORD:  Yes, I do, your Honour.


VICE PRESIDENT HATCHER:  It appears you're the only person appearing in the matter today and I note that no other parties filed submissions in accordance with the directions.  Mr Crawford, I've just been looking at your application which relies upon what was said to be a common understanding between the parties reached in relation to the overtime for casuals common issue proceedings and I want to say, Mr Crawford that it appears - I could only identify Australian Business Industrial and New South Wales Business Chambers having reached that agreed position.  Can you assist about that?


MR CRAWFORD:  Yes, I think they did write the correspondence outlining agreed positions for a number of awards to the Commission but there are a series of meetings amongst interested parties that certainly AIG are out although they may not, by the look of it have an interest in this award.  I thought AFEI may also have been involved in those meetings but I'd probably have to go back to confirm that.


VICE PRESIDENT HATCHER:  All right.  Well, I just want to make sure that there's no employer party that's - for whom this has somehow slipped under the radar, as it were.  Well, we'll keep checking that.  The second thing is and you might want to answer this in due course but the specific clauses that are the subject of the application, you've categorised them as being overtime rates but are they in fact overtime rates or simply special penalty rates?


MR CRAWFORD:  Yes, I mean, that issue did cross my mind.  I mean, for example, the provisions in 19.2 and 19.4 fall within the clause 19 overtime which I guess is an indication, I guess not entirely determinative but an indication that they are overtime rates and similarly the provisions in clause 20.6 and 20.7 are in subclauses that the titles identifies overtime rates and on a practical level I don't believe there'd be any dispute that the 25 per cent casual loading would be paid if the relevant rates are penalty rates because clause 11.2 does make clear that the 25 per cent loading is paid for all ordinary hours.


So on a practical level we would say the 25 per cent loading is paid effectively for all hours worked, whether they're ordinary hours or overtime so perhaps that particular technical issue doesn't necessarily have to be resolved here because the rates in our view, would be the same either way.


VICE PRESIDENT HATCHER:  Well, 11.2 only refers to ordinary hours.  The whole point of this is that these aren't ordinary hours.


MR CRAWFORD:  Well, that's correct and I mean, that's the Fair Work Ombudsman identified as giving rise to the problem in that clause 11.2 was amended to insert the word, "Ordinary", so on its face that provision is confined to ordinary hours, yet the agreed position reached between the parties and endorsed by the full bench was that the 25 per cent casual loading would be paid for all overtime hours as well.  So the purpose of our application is just to try and clarify the wording to make it clear - well, I guess to make sure that that effect is actually achieved within the award.


VICE PRESIDENT HATCHER:  All right.  Do you wish to make any further - the opportunity to make any further submissions in support of your application, Mr Crawford?


MR CRAWFORD:  I think I would be comfortable on the content in the application, your Honour.  I mean, to some extent we're not surprised that no other parties have appeared because we don't consider this issue as particularly controversial given the consent position that was reached during the overtime common issue proceedings and that position obviously was endorsed by the Full Bench.


And I mean, for example, AFEI were certainly on notice, you know, throughout those proceedings of the agreed positions, they were - all the agreed positions were put publically, parties were given an opportunity to oppose the issue at that point and obviously no opposition was raised by any party in terms of the outcome that casual employees get the 25 per cent loading on a cumulative basis when they work overtime under this award.


So we say that was clearly an agreed position that was endorsed by the Full Bench and the variation, we say, is somewhat of an administrative nature in that it's just seeking to clarify the wording to make sure the intended effect is reflected in the award.


VICE PRESIDENT HATCHER:  All right.  Well, Mr Crawford, what I propose to do is this, my chambers - I'll have my chambers correspond with, I think, AIG, ABI and the AFEI to confirm that they don't wish to make submissions in relation to the matter.  If they don't I'll simply determine the matter on the papers.  If it turns out that they do wish to make submissions and for some reason this has escaped their attention, well, then I'll relist the matter for further directions.  Is that a suitable course?


MR CRAWFORD:  Yes, it is, your Honour.


VICE PRESIDENT HATCHER:  All right.  All right.  Well, that's the course we'll take.  Thank you for your attendance, Mr Crawford, we'll now adjourn.


MR CRAWFORD:  Thank you.

ADJOURNED INDEFINITELY                                                          [10.14 AM]