TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 28477-1
VICE PRESIDENT WATSON
s.160 - Application to vary a modern award to remove ambiguity or uncertainty or correct error
Application by Aged & Community Services Association NSW & ACT Inc & others
Aged Care Award 2010
[MA000018 Print PR986359]]
MONDAY, 11 OCTOBER 2010
Continued from New
THE VICE PRESIDENT: Can I have the appearances please?
MR G. LIGGINS: I appear on behalf of the aged care employers identified in the application.
THE VICE PRESIDENT: Mr Liggins.
MS S. BRYANT: I appear on behalf of the Australian Federation of Employers and Industries.
THE VICE PRESIDENT: Ms Bryant.
MR M. MCLEAY: I appear for the Health Services Union and with me today is Ms Johnston from our HSU East branch.
THE VICE PRESIDENT: Thank you, Mr McLeay. Yes, Mr Liggins.
MR LIGGINS: Thank you, your Honour. What we seek today is a variation to the Aged Care Award pursuant to section 160. We are suggesting the award is at best unclear, perhaps uncertain and possibly made in error. In particular the clause reference we're referring to is clause 15.2(C), it deals with the payment of uniform allowance to employees. The issue or the problem we have identified is that the allowance suggests that it's payable to people whilst on leave and certainly the industry pays as typically across Australia, paid this allowance to employees when they are off on paid leave. The concern for us is that by simply using the word "leave" it leaves open the suggestion that it might be payable to situations such as unpaid leave such as parental leave, such as any other type of unpaid leave situation. We don't believe this was what was intended by the wording of the clause. The clause itself has come from the Victorian (indistinct) Award. We have made investigations about colleagues in Victoria and they inform us that whilst the wording is from that clause, the clause itself hasn't been interpreted to apply the allowance to unpaid leave situations.
THE VICE PRESIDENT: Who is interpreting it to apply to unpaid leave situations now?
MR LIGGINS: No, I don't believe so. I don't believe that the union has made that claim to date. I guess what we're trying to do is to make sure that that is clearly clarified.
THE VICE PRESIDENT: So an actual dispute as to interpretation, to your knowledge, hasn't actually arisen.
MR LIGGINS: I'm unaware of any dispute, certainly we haven't had any situation where the union has indicated the alternative view to ours, so that's our position.
THE VICE PRESIDENT: Yes, very simply you would be seeking the insertion of the word "paid" before the word "leave" on the second line.
MR LIGGINS: That's as simple as it is, your Honour, yes. We think that makes clear the intention. It doesn't remove any entitlement from anyone, any jurisdiction that we have been able to find out from to date even in the practical interpretation in Victoria it doesn't change the way that clause has been interpreted previously.
THE VICE PRESIDENT: What operative date are you seeking for the variation?
MR LIGGINS: From 1 January, your Honour, if that's possible.
THE VICE PRESIDENT: 2010.
MR LIGGINS: Yes.
THE VICE PRESIDENT: Thank you, Mr Liggins. Ms Bryant.
MS BRYANT: AFEI support the application to remove ambiguity and to I suppose clarify the interpretation. We are of the understanding as that of this point as you have elaborated a dispute has not been raised with respect to this clause. We would like it noted that in AFEIs view the legislation does to some degree address the potential or I suppose remedy this in and of itself, in that parental leave is defined as being unpaid. I wouldn’t say that that definition would apply for all purposes, so the uniform allowance would fall within the scope of that definition of being unpaid. Thank you.
THE VICE PRESIDENT: Thank you. Mr McLeay.
MR MCLEAY: Thank you, your Honour. Our union is unaware of any problems. We don't object to the clarification sought but as we have said on previous occasions we don't think it's necessary as we haven't come across anyone who is interpreting in the way that Mr Liggins has put forward that it may be interpreted. Again, your Honour, that being said we don't object to what's being sought.
THE VICE PRESIDENT: Yes, thank you Mr McLeay. Nothing advising from that Mr Liggins?
MR LIGGINS: No, your Honour.
THE VICE PRESIDENT: I consider there is a potential ambiguity or uncertainty associated with the operation of clause 15.2(C) of the Aged Care Award 2010 insofar as it might be contended that the uniform allowance is paid for periods of unpaid leave. Such a consequence in my view would be quite incongruous given that other payments would not be payable during those periods of unpaid leave, but the wording of that clause may be subject to an interpretation to that effect, although in my view the preferable interpretation clearly is that for unpaid leave no payments would be made of any sort, whether they be wages or allowances. I will make a determination varying the award by inserting the word "paid" on the second line before the word "leave" and I will provide that that variation have effect from 1 January 2010. I note the matter at three o'clock concerns the same award. Is it anticipated that there might be some other parties in attendance in relation to that?
MR LIGGINS: I don't think so, your Honour, I think it would be advantageous to deal with it now.
THE VICE PRESIDENT: Yes, especially for those interstate I imagine.
MR LIGGINS: Excuse me, your Honour, the only issue I would say to that is I did try and contact the LHMU about both of these matters and I was unable to communicate with any of their officers. The fact that they're not here for this one might suggest that they didn't have a problem with the next one as well, but I'm just not sure.
THE VICE PRESIDENT: No, they were not in attendance at a matter earlier this morning concerning them as the only union involved so perhaps we will proceed on the basis that we will check whether the LHMU wishes to be heard in relation to the matter but I can hear from the other parties in the mean time. I take it the appearances are the same. Mr Liggins.
MR LIGGINS: Thank you, your Honour. Your Honour, I have an amended schedule or order which we would like to present to the Tribunal. If I can take your Honour immediately to the specific change in the order. The only change we are proposing is in line 3 of the order where it says, "To the number of hours in the original order," we are suggesting it should be "ordinary hours", and when I get to explain why I think it will become clear. I have provided a copy to my colleagues here today. Your Honour, the issue here I guess, similarly to the one before, is at present we have no dispute with any union apropos the changes that we're proposing in the Aged Care Award.
The concern that we have, again it's a clause that comes from the Victorian Award, the concern that we have is despite the fact the Aged Care Award itself in the personal carers leave clause refers specifically to the National Employment Standards which basically say that an employee when on sick leave is entitled to their basic rate for the ordinary hours that they would have worked. The last part of this clause by perhaps trying to be clear as to what they mean has actually in some ways made it unclear and we are suggesting the clause would be clearer and certainly consistent with the National Employment Standards if that clause was stopped at the words which the leave was taken and that "ordinary hours" is inserted.
Under the reading of the award it is possible to be interpreted that number one it's not just ordinary hours, there could be overtime hours; and number two, that it's possible the payment of shift and weekend penalties is also an interpretation or could be interpreted that way because the last part of the clause, the part we're seeking to have removed says, "So as not to reduce the employees' wages below that level which the employee would have received had the employee not been absent." Clearly if an employee was rostered to do some overtime on that day those hours would have been part of the wages the employee would have received that day.
If the employee is working a shift where penalties were payable the same thing. We believe that the clause as its written actually makes for ambiguity because the personal carers leave clause in the modern award is very clear in that it specifically refers to the National Employment Standards which are clear on the issue that it's for sick leave, for personal leave, it's only payable for ordinary hours, basic rate. So no shifts, no penalties, no overtime. Just the use of this last part in this clause opens the gate to alternative interpretations which we believe are incorrect.
THE VICE PRESIDENT: So you say - - -
MR LIGGINS: We believe the removal of the last part of that clause and the inclusion of the word "ordinary" to make clear we're talking about ordinary hours clarifies this. I mean in some regards the whole clause is unnecessary in that it's dealing with an issue that's already dealt with in the personal carers leave section of the modern award. It makes it very clear in that the reference is just simply in accordance with the National Employment Standards. The National Employment Standards themselves are very clear on this issue. This particular clause being placed at clause 10.3(E) in the part time section actually muddies the water if you like. It wouldn’t apply for a full timer, it would only apply for a part timer. It just seems incongruous that that is the intention of that clause, to expand it anything beyond the National Employment Standards and only for a part time employee.
THE VICE PRESIDENT: Yes. Yes, thank you, Mr Liggins. Ms Bryant.
MS BRYANT: Thank you, your Honour. We do support the variation in line with the application because the reading of clause 10.3(E) is somewhat confusing when you compare it to the provisions of the National Employment Standards. So we do support the application in that respect, particularly with respect to the insertion of the word "ordinary" with respect to the number of hours. I think it is important to make the distinction there that payment for personal carers leave is only with respect to your ordinary hours of work as opposed to any rostered or scheduled overtime that may apply to the employee. Thank you.
THE VICE PRESIDENT: Yes, thank you Ms Bryant. Mr McLeay.
MR MCLEAY: Thank you, your Honour. The Health Services Union has been fortunate enough to have some discussion with Mr Liggins' association about this matter and although we don't agree that the clause is ambiguous nor does it need correction, we do not oppose the correction that is sought in this case, nor do we oppose the clarification of it being for ordinary hours, that is in the amended schedule because then it's (indistinct).
THE VICE PRESIDENT: Yes, thank you. In this matter I will reserve my decision to ensure that no other party wishes to make submissions in the matter. But I note the submissions that have been made and I will issue a short decision as soon as practical after hearing from any other party that wishes to be heard at three p.m. I will provide an opportunity for other parties to comment on anything that is put, but there is no need to remain until that time, it's simply to ensure that there is no other submissions that have to be taken into account. I will simply adjourn this matter on that basis and adjourn the proceedings.
<ADJOURNED INDEFINITELY [2.18PM]