TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 28439-1
VICE PRESIDENT WATSON
AM2010/221
s.160 - Application to vary a modern award to remove ambiguity or uncertainty or correct error
Application by Clubs Australia
(AM2010/221)
Registered and Licensed Clubs Award 2010
(ODN AM2008/40)
[MA000058 Print PR988702]
Sydney
9.33AM, MONDAY, 11 OCTOBER 2010
Adjourned indefinitely
PN1
THE VICE PRESIDENT: Can I have the appearances please?
PN2
MS R. MANOHAR-MURRAY: Thank you, your Honour. My name is Manohar-Murray, initial R, from Clubs Australia on behalf of the applicant.
PN3
THE VICE PRESIDENT: Thank you, Ms Manohar-Murray.
PN4
MR S. PATERSON: Thank you, your Honour, the name's Paterson, initial S, also from Clubs Australia.
PN5
THE VICE PRESIDENT: Thank you Mr Paterson. Ms Manohar-Murray, do you have carriage? You've got more paper in front of you.
PN6
MS MANOHAR-MURRAY: I do, your Honour. Firstly I might just mention that both the CMA and LHMU are unable to attend today.
PN7
THE VICE PRESIDENT: Yes.
PN8
MS MANOHAR-MURRAY: I believe you have received a fax from the CMA about their non-attendance.
PN9
THE VICE PRESIDENT: I have, yes. Yes, and it indicates support for the application.
PN10
MS MANOHAR-MURRAY: Yes. I have an email here from the Liquor Hospitality and Miscellaneous Union as well, if I might hand that up.
PN11
THE VICE PRESIDENT: Yes.
PN12
MS MANOHAR-MURRAY: The email just says that they have no objection to this application as well.
PN13
THE VICE PRESIDENT: Yes I think that's suggested in the application and, having seen the application, if that was incorrect no doubt they'd be here. So this is an email from - - -
PN14
MS MANOHAR-MURRAY: The Liquor Hospitality and Miscellaneous Union.
PN15
THE VICE PRESIDENT: It includes one from Mr Swancott to Mr Tate.
PN16
MS MANOHAR-MURRAY: Yes.
PN17
THE VICE PRESIDENT: Yes, if you're providing this to the Tribunal I might mark it exhibit M1 formally in the proceedings.
EXHIBIT #M1 EMAIL FROM LIQUOR HOSPITALITY AND MISCELLANEOUS WORKERS' UNION, INCLUDING EMAIL FROM MR SWANCOTT TO MR TATE
THE VICE PRESIDENT: It appears that your application is out of abundant caution to clarify the situation.
PN19
MS MANOHAR-MURRAY: Yes, your Honour.
PN20
THE VICE PRESIDENT: Yes.
PN21
MS MANOHAR-MURRAY: May I take it that the application has been agreed or would you like me to go through each of the clauses?
PN22
THE VICE PRESIDENT: I would like you to briefly explain the nature of the changes and their purpose.
PN23
MS MANOHAR-MURRAY: Sure.
PN24
THE VICE PRESIDENT: Thank you.
PN25
MS MANOHAR-MURRAY: Thank you, your Honour. The first variation that's being sought is to insert a new subparagraph into clause 17.3(a)(iv) of the Registered and Licensed Clubs Award 2010. This is in relation to exemption rates for club managers in New South Wales and the ACT. I might just read out the variation that we are seeking. It reads:
PN26
Transitional provisions in respect of employers in New South Wales and the Australian Capital Territory. The 20 per cent additional payment referred to in paragraph 17.3(a)(i) is subject to the transitional arrangements for rates of pay set out in clause A3 of schedule A. To avoid doubt the additional payment referred to in paragraph 17.3(a)(i), transitions from the previous 30 per cent referred to under a Club Managers Notional Agreement preserving the state award in New South Wales and the Australian Capital Territory by the following percentages. The first full pay period on or after the 1st of July 2010, 28 per cent. 1 July 2011, 26 per cent. 1 July 2012, 24 per cent. 1 July 2013, 22 per cent and 1 July 2014, 20 per cent.
As your Honour would recall, various applications were made by the main organisations who had an interest in the award for the award variation, for the award modernisation process. During the negotiated outcome our understanding is that the intention of the agreement for the reduction in the exemption rates from 30 per cent to 20 per cent in New South Wales and the Australian Capital Territory was that they would be subject to the transitioning provisions. However there has been advice put out by the Fair Work Ombudsman that these rates would not transition, and therefore Clubs Australia would like to submit, with support from the Club Managers' Association Australia, that we would like to affirm what the industry wants to occur and what was agreed to. That is, for the rates to transition.
PN27
THE VICE PRESIDENT: So the advice that's received is that the 20 per cent level currently applies, not any higher amount.
PN28
MS MANOHAR-MURRAY: Yes.
PN29
THE VICE PRESIDENT: There's no transitioning of that amount. There's not proposed to be any transitioning of the amount in paragraph (ii)?
PN30
MS MANOHAR-MURRAY: I'll just double-check that, your Honour.
PN31
THE VICE PRESIDENT: There's no transitioning relevant I assume. There's no current higher exemption rate.
PN32
MS MANOHAR-MURRAY: This was for paragraph 17.3 specifically because that deals with the club managers' exemption rates.
PN33
THE VICE PRESIDENT: Yes.
PN34
MS MANOHAR-MURRAY: Which is the area that is in dispute at the moment - I probably couldn't call it a dispute, but the area that's in question at the moment about the transitioning provisions.
PN35
THE VICE PRESIDENT: Yes. One of the things I'm just wondering about is that transitional provisions are contained in the schedule, so that they're not in the award as such.
PN36
MS MANOHAR-MURRAY: Yes.
PN37
THE VICE PRESIDENT: That's a drafting approach for all modern awards. It would really be contrary to that approach to put transitional provisions into the award as such. Is there any difficulty putting it into the transitional schedule?
PN38
MS MANOHAR-MURRAY: Into the transitional schedule rather than the modern award?
PN39
THE VICE PRESIDENT: Rather than clause 17.
PN40
MS MANOHAR-MURRAY: We don't have any objection to putting it into the transitional schedule. I think the main objective here that the parties would like to achieve is to ensure that there is some provision which explains the transitioning of the rates of pay. I understand where you're coming from.
PN41
THE VICE PRESIDENT: Yes, firstly that there is a transition. There is a transition from the current 30 per cent level.
PN42
MS MANOHAR-MURRAY: Yes.
PN43
THE VICE PRESIDENT: That's something that explains it in clear terms that you can see in the award somewhere. But in the transitional schedule would be the normal place for it that makes it clear what happens in that five year transitional period.
PN44
MS MANOHAR-MURRAY: I understand, your Honour.
PN45
THE VICE PRESIDENT: Yes thank you. I understand what's sought there and it's really only because that this is an issue in New South Wales and the ACT.
PN46
MS MANOHAR-MURRAY: That's right.
PN47
THE VICE PRESIDENT: That you've drafted it in that way.
PN48
MS MANOHAR-MURRAY: That's right, your Honour.
PN49
THE VICE PRESIDENT: Yes.
PN50
MS MANOHAR-MURRAY: Because Queensland and Victoria already have the 20 per cent rates and the other states don't.
PN51
THE VICE PRESIDENT: Yes.
PN52
MS MANOHAR-MURRAY: Well, haven't had it previously.
PN53
THE VICE PRESIDENT: Yes, thank you.
PN54
MS MANOHAR-MURRAY: I might move on to the second variation that's being sought, your Honour.
PN55
THE VICE PRESIDENT: Yes.
PN56
MS MANOHAR-MURRAY: That's to insert a note at the end of sub-clause 17.6. That's in relation to casual fitness instructors. The note would read:
PN57
The hourly rate specified in this sub-clause is inclusive of the 25 per cent casual loading specified in sub-clause 10.5.
PN58
This is because it has always been the case historically, however Fair Work Australia has advised that the 25 per cent casual loading would be on top of that rate of pay. So we would just like to have that clarified as well.
PN59
THE VICE PRESIDENT: Yes, you say it's clearly the intention that it be an all-up figure.
PN60
MS MANOHAR-MURRAY: That's right, your Honour.
PN61
THE VICE PRESIDENT: Encompassing all allowances, at least encompassing the casual allowance.
PN62
MS MANOHAR-MURRAY: Yes, your Honour.
PN63
THE VICE PRESIDENT: Yes.
PN64
MS MANOHAR-MURRAY: The final variation that's being sought is to insert an additional sentence at the end of sub-clause 18.3 which is in relation to the penalty rate for broken periods of work. That would read:
PN65
To avoid doubt the provisions of this clause are subject to the transitional arrangements for penalties set out in clause A4 and A5 of schedule A.
PN66
As this provision is in the allowances clause of the Registered and Licensed Clubs Award, Fair Work Australia is reading it such that it does not transition. However traditionally it has been treated as a penalty rate and we submit that it should continue as such, as a penalty rate.
PN67
THE VICE PRESIDENT: What's the relevant part of the transitional schedule that applies?
PN68
MS MANOHAR-MURRAY: That is A4 and A5 of schedule A.
PN69
THE VICE PRESIDENT: Yes. So it's in the nature of a shift allowance. It's a broken shift allowance effectively.
PN70
MS MANOHAR-MURRAY: That's right, your Honour.
PN71
THE VICE PRESIDENT: You say that it is covered by A4?
PN72
MS MANOHAR-MURRAY: Yes.
PN73
THE VICE PRESIDENT: Which refers to shift allowance.
PN74
MS MANOHAR-MURRAY: That's right, and the ambiguity is purely because it appears in the allowances clause and for no other reason.
PN75
THE VICE PRESIDENT: Who suggests that it's not subject to the transitional provisions?
PN76
MS MANOHAR-MURRAY: The Fair Work Ombudsman.
PN77
THE VICE PRESIDENT: Yes. Again, there's an issue of whether you put clauses in the award that relate to transition.
PN78
MS MANOHAR-MURRAY: I thought you might say that.
PN79
THE VICE PRESIDENT: Your objective is to make it clear on the face of the award that the broken shift allowance is governed by A4 and A5?
PN80
MS MANOHAR-MURRAY: That's right, your Honour.
PN81
THE VICE PRESIDENT: If a variation is made to the schedule that achieves that, is that going to create a difficulty?
PN82
MS MANOHAR-MURRAY: Yes your Honour.
PN83
THE VICE PRESIDENT: It is going to create a difficulty?
PN84
MS MANOHAR-MURRAY: Sorry?
PN85
THE VICE PRESIDENT: It is going to create a difficulty or it's not?
PN86
MS MANOHAR-MURRAY: I'm sorry, I beg your pardon. I didn't hear what you said.
PN87
THE VICE PRESIDENT: If it's in the transitional schedule is that going to create a difficulty?
PN88
MS MANOHAR-MURRAY: No difficulty, your Honour.
PN89
THE VICE PRESIDENT: Yes, thank you.
PN90
MS MANOHAR-MURRAY: Finally, your Honour, if I might just request that the variations apply in retrospect as I'm advised it has been done previously.
PN91
THE VICE PRESIDENT: Yes, from what date are you seeking?
PN92
MS MANOHAR-MURRAY: 1 July.
PN93
THE VICE PRESIDENT: 1 July?
PN94
MS MANOHAR-MURRAY: Yes, 2010.
PN95
THE VICE PRESIDENT: Because they're in the nature of ambiguities and you say reflect the intention in any event.
PN96
MS MANOHAR-MURRAY: That's right, your Honour.
PN97
THE VICE PRESIDENT: Yes, thank you Ms Manohar-Murray. I might get the pronunciation of your name correct.
PN98
MS MANOHAR-MURRAY: Yes.
PN99
THE VICE PRESIDENT: Yes. Look, I can indicate in the circumstances of these variations being explained in submissions to me today, and having regard to the agreement of Clubs Australia, the LHMU and the Club Managers' Association of Australia that I will make a determination varying the Registered and Licensed Clubs Award in line with the application. The determination I will make will be slightly different in that provisions reflecting proposed variations 1 and 3 will be contained in the relevant transitional schedule because they are transitional provisions. The variation 2 clarifies the application of clause 17.6 and the appropriate place is in sub-clause 17.6 itself. I will issue a determination from my chambers reflecting those changes at the earliest opportunity. These proceedings are now adjourned.
<ADJOURNED INDEFINITELY [9.48AM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #M1 EMAIL FROM LIQUOR HOSPITALITY AND MISCELLANEOUS WORKERS' UNION, INCLUDING EMAIL FROM MR SWANCOTT TO MR TATE PN18