V
TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 43337-1
COMMISSIONER SMITH
AM2011/7
s.158 - Application to make a modern award
Application by Batch
(AM2011/7)
Animal Care and Veterinary Services Award 2010
(ODN AM2008/82)
[MA000118 Print PR991085]]
Brisbane
4.32PM, WEDNESDAY, 16 MARCH 2011
Reserved for Decision
PN1
THE COMMISSIONER: I don't think we've got anybody in any of the other states, have we?
PN2
DR P. BATCH: (off mic)
PN3
THE COMMISSIONER: No, and so there are offices of Fair Work Australia sitting in the other states, so we'll be able to dispose of that. Dr Batch, is it? You're a veterinary surgeon. Thank you. You've put in some material. You've written to us twice, the first time and then - on 23 February and on 10 March It'd would be fair to say, wouldn't it, that what your case is about is that previously for part-timers it was a two-hour minimum - - -
PN4
DR BATCH: Part-timers or casuals it's two hours.
PN5
THE COMMISSIONER: Yes. I'm not sure about casuals, but I can look at that.
PN6
DR BATCH: Yes.
PN7
THE COMMISSIONER: But certainly for part-timers it was two hours, and you're saying that because the modern award, which is the Animal Care and Veterinary Services Award, has made it three hours this has made it impractical and difficult for you to retain the staff which you draw from students.
PN8
DR BATCH: We look for students because by and large mostly women want jobs with us - that industry.
PN9
THE COMMISSIONER: Yes.
PN10
DR BATCH: And the last person I employed in this period of three to six, which we try to use, was about six and a half years ago and they lasted two weeks and then they said - what I sort of half expected - "We've found a job that doesn't require after school."
PN11
THE COMMISSIONER: Yes.
PN12
DR BATCH: So we're sort of stuck with students, and it's not ideal.
PN13
THE COMMISSIONER: Yes, and what work do you have them doing?
PN14
DR BATCH: Cleaning work. It depends on their aptitude. The aptitude of some of the better students - we've sourced from a number of schools in the past. When I say a number of schools, we might look at eight schools in our area and get one employee out of it, and we haven't ever been able to get a suitable employee from the high school up the road, who could be there in five minutes, and so all the rest come by bus and in the past we've had them starting at 4 o'clock or 3.30, depending on when they can get there. None of them can get there by 3.00.
PN15
THE COMMISSIONER: Yes.
PN16
DR BATCH: We did look at the possibility of simply making them work longer - stay there and keep cleaning - but the parents weren't happy with that.
PN17
THE COMMISSIONER: No. It's most cleaning duties, is it?
PN18
DR BATCH: No (off mic)
PN19
THE COMMISSIONER: Because you've got your vet nurses, haven't you, doing some of the reception work and the like.
PN20
DR BATCH: Yes. We have a combination of vet surgery and pet shop.
PN21
THE COMMISSIONER: I see.
PN22
DR BATCH: So there's a lot of retail selling, and in fact our junior, who I just had to - she still works with us on Saturday, but I had to sack her for the afternoons. She used to do Tuesday and Thursday afternoons, but we had to take her off that because we were told that until the decision was made - it became illegal to employ her.
PN23
THE COMMISSIONER: Yes, for that period of time.
PN24
DR BATCH: And so unfortunately she lost two afternoons. She is quite capable inasmuch as, when our head nurse went on holidays for a week, she actually was able to fill in and do a lot, so she actually does - the better ones are the ones we encourage to stay - do anything from ordering to marking off stock, entering on a computer. They do the whole gamut of things.
PN25
THE COMMISSIONER: Your retail establishment - that's as a part of the surgery, is it? It's not separate from the surgery?
PN26
DR BATCH: No. It's part of the surgery.
PN27
THE COMMISSIONER: It's part of the surgery? So you come into reception and you're surrounded by the capacity to buy - - -
PN28
DR BATCH: There's a about 100 square metres of retail.
PN29
THE COMMISSIONER: Yes, I follow.
PN30
DR BATCH: We were just finding that too many animals suffer after going to pet shops, so we had to put in a pet shop ourselves, because you can't just say, "They're not doing it right," if you know what I mean.
PN31
THE COMMISSIONER: Yes, all right.
PN32
DR BATCH: And certainly after 3.00 is the time when people with children are coming into the shop and buying - and after school - and so it's much busier. It's like you switch on a tap at about two or three minutes past 3.
PN33
THE COMMISSIONER: Sure. I understand the issue you raise.
PN34
DR BATCH: The thing which I put in the last letter - the reason I wrote the last letter is, we lost one of our very good employees on telling our part-timers that they couldn't stay on under that rule.
PN35
THE COMMISSIONER: Yes.
PN36
DR BATCH: And we just lost a staff member because they said, "It's not worth working here after 3.00 if we haven't got help."
PN37
THE COMMISSIONER: Yes, I follow.
PN38
DR BATCH: "If you can't get us help."
PN39
THE COMMISSIONER: All right. I'll have a look at the issue you raise - I think I understand it clearly. One of the dilemmas that face us is that the legislation requires us to fix a national standard. We can't make interstate differentials in standards. Historically there has been a change in the nature of industrial relations over the last 10 years, which has tended to move away. You're a constitutional corporation, are you, or just a partnership?
PN40
DR BATCH: A no paperwork partnership, my wife and I. We're not a corporation.
PN41
THE COMMISSIONER: You're not a constitutional corporation?
PN42
DR BATCH: No. We trade as P. and K. Batch, and our lawyer has told us that no paperwork is required for a husband and wife trading in a partnership. Am I not supposed to be here unless I was a corporation?
PN43
THE COMMISSIONER: I may have found an opening solution for you. All right.
PN44
DR BATCH: Okay. We have looked at some other submissions that have been made, that I was shown how to look.
PN45
THE COMMISSIONER: Yes.
PN46
DR BATCH: There were other people in the past who have required - not required, but thought they needed the same sort of things - different function of ours. For example, I have two businesses and one of them closes at 6.00 and one closes at 7.00 and the one that closes at 7.00, I have no wish to employ people for under three hours.
PN47
THE COMMISSIONER: Yes.
PN48
DR BATCH: I'm not here to go round the law. I'm here to get - - -
PN49
THE COMMISSIONER: No. I understand. Just remain there, but I'll simply bring the - - -
PN50
DR BATCH: We only became subject to this award recently because we're not a corporation. Those who are incorporated were subject to this in July last year.
PN51
THE COMMISSIONER: I see.
PN52
DR BATCH: And that only came to us in the first pay period of - I've lost it - February.
PN53
THE COMMISSIONER: Yes, I understand, that's right.
PN54
DR BATCH: Because I'm not a corporation.
PN55
THE COMMISSIONER: Yes, I follow.
PN56
DR BATCH: That's why it has only come up now. At the moment we have - yes, anyway - - -
PN57
THE COMMISSIONER: Yes.
PN58
DR BATCH: My wife is trying to work and run the business as well.
PN59
THE COMMISSIONER: All right.
PN60
DR BATCH: So this is a situation where you consider today, later - - -
PN61
THE COMMISSIONER: I'll consider it pretty quickly, but I can't give you an answer straightaway.
PN62
DR BATCH: Okay.
PN63
THE COMMISSIONER: I'm going to have to look at the whole thing and again, as I said, one of the constraints upon us is that the legislation requires that we can't make differentials between states. For example, in a number of states, from materials that I've had prepared for me, it's three hours. It's not two.
PN64
DR BATCH: But it's three hours here.
PN65
THE COMMISSIONER: Now.
PN66
DR BATCH: Yes.
PN67
THE COMMISSIONER: But your complaint is that it shouldn't be. But, I mean, prior to the formation of the modern award, they had three hours.
PN68
DR BATCH: Is there no other submission? Would this not be a reasonable thing to apply in the case of students where they are employed for as long as they can be employed?
PN69
THE COMMISSIONER: I understand.
PN70
DR BATCH: I can't see why that wouldn't be a reasonable thing that would go in the award.
PN71
THE COMMISSIONER: There's always a balance we have to draw, but if the point that you make is, can it apply only to persons who are, firstly, able to work and, secondly, say, secondary students and that those persons are not really working - well, I won't go further, but if it's just for secondary students - - -
PN72
DR BATCH: Yes, I - - -
PN73
THE COMMISSIONER: - - - I understand that argument, and can I indicate to you that it's not the volume of the argument or who says it, it's the merit on each occasion. So what I'll do is, I'll have a look at what you've raised. There are a number of things which I can consider in all of this. I'm not limited to what you've put - I understand all the issues - and I'll see what decision we can come to in this.
PN74
DR BATCH: Thank you.
PN75
THE COMMISSIONER: I should indicate to you as a matter of process that whatever decision I make is appellable, so within the tribunal three of my colleagues - one of my ex-colleagues many years ago said that people could be comforted in the knowledge that when matters came to him at least four members of the tribunal brought their minds to bear on the issue. Thank you for your interest and thank you for your cooperation and thank you very much for your attendance, Dr Batch. I will see what we can do.
PN76
DR BATCH: Thank you.
PN77
THE COMMISSIONER: The matter is adjourned.
<ADJOURNED INDEFINITELY [4.43PM]