TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 27705-1

VICE PRESIDENT WATSON

AM2010/124

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

Application by Finance Sector Union of Australia
(AM2010/124)
Banking, Finance and Insurance Award 2010

(ODN AM2008/16)
[MA000019 Print PR986360]]




Melbourne

1.03PM, TUESDAY, 7 SEPTEMBER 2010

Continued from New

PN1

THE VICE PRESIDENT: I will take the appearances please.

PN2

MS M. MALONEY: I appear on behalf of the Finance Sector Union of Australia.

PN3

THE VICE PRESIDENT: Ms Maloney, it appears you're the only appearance. You have the floor, Ms Maloney.

PN4

MS MALONEY: Your Honour, the application that is before you is similar to the matter in the previous proceedings. It is an application by the Finance Sector Union of Australia to vary the Banking Finance Insurance Award 2010 by deleting from clause 21.1 the provision that states, "Provided further that the employees engaged to work at a call centre may be rostered to work ordinary hours from midnight Friday to midnight Saturday." Your Honour, we set out in our application to vary the grounds, and I just briefly - they're similar to the matter concerning the private sector award, but I just briefly state this that when the Banking Finance Insurance Award was made by the Australian Industrial Relations Commission on 3 April 2009 in making the award the Commission decided to include special provisions to do with hours of work and penalties for employees in call centres.

PN5

Paragraph 139 of the Full Bench decision of that date stated, "Special provisions have been included dealing with hours of work and penalties for employees in call centres. These provisions mirror provisions in the Contract Call Centre Award 2010 CCC Modern Award. We accept the need for flexibility in this type of work, whether work is performed under this award or the CCC Modern Award." The Full Bench in making the award then included what was then clause 21.2 overtime and penalty rates and included the provision in clause 21.1 dealing with the working of ordinary hours. Your Honour, those provisions, that's both 21.2 and the sentence in 21.1, were not contained in the exposure draft Banking and Finance Industry Award that was published by the Commission 23 January 2009.

PN6

So we can clearly say that and that exposure draft is a Full Bench decision 2009 50. Your Honour, as you're aware on 26 August 2009 the Ministerial Request was amended to include the following provision, "Where a modern award applies to employees primarily performing the work of receiving calls using call centre technology and entering and retrieving data, the Commission should establish working hours and penalty rates arrangements that are substantially based upon those that presently apply to those employees within the industry in which they work." Your Honour, as you're aware the then Minister for Workplace Relations forwarded a letter to the President of the Commission, Justice Guidice, in respect to a number of industries, but in respect to the call centres and in that letter referred to, "In making of the stage 12 awards, the Commission has imported into the Clerks Private Sector Award 2010 and the Banking Finance Insurance Award 2010 hours or work and penalty rate provisions that are the same as those that apply to employees covered by the Contract Call Centre Award 2010," and then goes on to advise that - it furthers states, "Employees in the clerical and banking or finance industries performing work that involves receiving calls, using call centre technology and entering and retrieving data have always been paid under the same award as other words in the relevant industry," and then goes on to say that she will be amending their request.

PN7

It is clear from the correspondence, it's clear from the amendment to the Ministerial Request that the Minister was concerned about the two aspects, that's the hours of work and the penalty provisions that have been imported from the Contract Call Centre Award. As a result of that in the statement issued by the Commission, the Full Bench on 10 December 2009 the Full Bench stated that, "As a result of the variation to the consolidated request made on 26 August one or more modern awards may require a variation," and indicated that any interested party may file an application to vary and would intend to have them, it says, before the end of 2009. The FSU made an application on 24 December 2009 to vary the modern award by removing clause 21.2 overtime and penalty rates at call centres.

PN8

That application was granted by the Full Bench on 24 December 2009. It was a variation taking effect from 1 January 2010 and that can be found in print PR992144. Your Honour, we say it was due to an oversight on our part in terms of - contributed to, I suppose, the error in that our application only identified the penalty provisions and we acknowledge that - - -

PN9

THE VICE PRESIDENT: How did the FSU and the ASU come to make the same oversight?

PN10

MS MALONEY: Sir, I don't know but when we went back to check it and that's why I checked in terms against the exposure draft because obviously the clerks award was made in the priority rounds and our award - exposure draft was produced in January 2009, that's when it shows that the package, as my colleagues have referred to, the package of provisions that were put in, imported from the Contract Call Centre Award into our award when it was made in April 2009, finance award I should say, was both the penalty provisions and the hours of work, it wasn't just the penalty provisions. Your Honour, we say that the application that we are seeking today to have that provision removed is consistent with the Full Bench decision of 24 December 2009.

PN11

It is consistent with the amendments made to the Ministerial Request on 26 August 2009 and, we believe, it is consistent with section 160 of the Fair Work Act in that it does seek to remedy an error. Now, where the source of the error comes from - but we believe that an error has been made, we acknowledge our application didn't pick up that part but we believe for that provision to continue would create, in our view, inconsistency, ambiguity. So, your Honour, that's the history of the matter and it is clear that that provision regarding the ordinary hours of work was not in the award exposure draft in January 2009 but was brought into the award when it was made in April 2009 as part of the contract call centre provisions that were imported from the Contract Call Centre Award and is clear from the variation to the Ministerial Request and the Minister's correspondence to the President that it's both the hours of work and the penalty provisions that the amendment to the request was seeking to rectify. Your Honour, I do have a draft order and in respect we only seek if the draft order is approved to have it operate from today's date. If the Commission pleases.

PN12

THE VICE PRESIDENT: Yes, thank you Ms Maloney. I'm in a position to indicate my decision in this matter. The application is not opposed. The history of the development of the modern award is of considerable significance. During the award modernisation process provisions relating to call centres were initially reflected in a Contract Call Centre Award and other awards that applied to in-house call centres, including this award the Banking Finance and Insurance Industry Award. The Minister issued an amendment to the Ministerial Request requiring the Commission to reconsider the hours of work and penalty rates arrangements and to provide those arrangements substantially based on those then applying to employees within the industry in which they work.

PN13

The Full Bench dealing with award modernisation considered that matter and granted an application by the FSU to make two variations to this award arising from the variation in the Ministerial Request. I consider that the clause subject to this application is of a similar character to the other provisions deleted from this award in that that provision arises from the contract call centre industry and to fully give effect to the variation in the Ministerial Request this provision should also have then deleted from the award. I therefore consider that the continued existence of this section can be described as an error and that it is appropriate to correct that error by making a determination under section 160 of the Act and by deleting the sentence subject to this application. I will issue a determination in accordance with that decision. These proceedings are now adjourned.

<ADJOURNED INDEFINITELY [1.14PM]