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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 40577-1
VICE PRESIDENT WATSON
AM2010/265 AM2010/266 AM2010/267 AM2010/268
Sch. 3A, Items 29 & 30 - FWA to consider varying modern awards etc.
Applications by Australian Nursing Federation
(AM2010/265, AM2010/266, AM2010/267, AM2010/268)
Sydney
2.33PM, THURSDAY, 17 FEBRUARY 2011
THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA
VIDEO CONFERENCE AND RECORDED IN SYDNEY
Reserved for Decision
PN1
THE VICE PRESIDENT: Can I have the appearances, please, commencing in Melbourne.
PN2
MR N. BLAKE: If the tribunal pleases, Blake, initial N., the Australian Nursing Federation, appearing in all matters.
PN3
THE VICE PRESIDENT: Thank you, Mr Blake.
PN4
MR G. BOYCE: If it please the tribunal, Boyce, initial G., seeking leave to appear in matter AM2010/266 concerning the Nursing Homes Award.
PN5
THE VICE PRESIDENT: Mr Boyce.
PN6
MR B. BRIGGS: If it please the tribunal, Briggs, initial B., appearing on behalf of Australian Business Industrial in relation to matters AM2010/266, 267 and 268.
PN7
THE VICE PRESIDENT: Yes, Mr Briggs. Any objection to Mr Boyce's application?
PN8
MR BLAKE: No objection.
PN9
THE VICE PRESIDENT: Yes. Permission is granted, Mr Boyce. Yes, Mr Briggs. Sorry, yes, Mr Blake - too many Bs.
PN10
MR BLAKE: Are you content if I remain seated?
PN11
THE VICE PRESIDENT: Remain seated by all means, yes.
PN12
MR BLAKE: Thank you, your Honour. Can I start by noting that in relation to directions of the tribunal that the Australian Nursing Federation provide a copy of the applications, draft orders, and a copy of today's notice of listing to the Aged Care Community Services Association, Australian Business Industrial, Catholic Commission for Employment Relations, New South Wales Nurses Association, Private Hospitals Association of Queensland and the Queensland Nurses Union, and your Honour, we did that by email on 10 January 2011. We've also provided the tribunal and the two parties appearing today with a copy of our outline of submissions and our amended draft orders. If your Honour pleases, could I have the outline of submissions marked for these proceedings?
PN13
THE VICE PRESIDENT: Yes. I'll mark the outline of submissions of the Australian Nursing Federation exhibit ANF1.
EXHIBIT #ANF1 OUTLINE OF SUBMISSIONS OF THE AUSTRALIAN NURSING FEDERATION
MR BLAKE: Thank you. If I could now turn to the submissions, and I'll briefly go through the outline that we've provided and pick up the main points as we see them. Your Honour, the applications are made pursuant to item 30(1)(a) of schedule 3A of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 in relation to four awards; three of those awards to be applied in New South Wales, and one of those awards, the Private Hospitals Nurses Award - State 2003, is a Queensland award.
PN15
The applications were made - sorry, I'm getting a bit of feedback here - following a decision of the full bench of 5 November 2010 in decision FWA FE 8558 concerning transitional arrangements in relation to division 2B state awards. Your Honour, the outline of submissions makes a note of paragraph 55 of that decision, where the full bench deals with the issue of long service leave and division 2B awards, and rather than make a general order, they indicated that they would seek applications in relation to the awards, and also an order in accordance with appendix C of that decision.
PN16
In relation to the awards before you today, the employers and employees are covered by four state awards, as I have mentioned. Most employees under those awards, previous state awards, were constitutional corporations, but there were a number who are not national system employers, and were brought into the national system by virtue of a referral of industrial powers by the states effective from 1 January 2010. Those employers and employees are now covered by instruments referred to as division 2B state awards.
PN17
It is our submission that it was the clear intent of the full bench in this decision of 5 November 2010 to provide for the continuation of relevant long service leave provisions in division 2B awards, and as I say, it was determined that it would be preferable to make an order in relation to each relevant 2B award and application. Each of the awards before you today, your Honour, has specific provisions dealing with long service leave, and each of those clauses in those awards provides in part for benefits that are better than the relevant state legislation.
PN18
In these applications, we seek the preservation of the employees' long service leave entitlements, following the transition to the modern award on 1 January 2011, to ensure continuation of more beneficial entitlements than would be applied to employees otherwise, who are seeking the maintenance and continuation of those provisions. Your Honour, in paragraphs 12, 13, 14 and 15 of our outline of submissions, we set out there in detail the particular provisions that we submit are more beneficial than a state act, and we make reference to each award in question.
PN19
The Australian Nursing Federation seeks that Fair Work Australia make an order preserving the long service leave entitlements in the awards listed in the application, in accordance with the determination of the full bench on 5 November last year. We say that the orders are necessary to ensure that employees previously covered by the prospective 2B state awards continue to have access to long service leave entitlements contained in the relevant award for the duration of the transitional period.
PN20
We conclude by making some reference, your Honour, to the broad submissions of the employers in relation to whether or not the tribunal should make an order. As we understand it, the employers are essentially arguing that in terms of the provisions of the NAPSAs that were brought into the modern award, arising from the award modernisation exercise, long service leave provisions that were in excess of the state act had disappeared, and the tribunal should not make special provisions for division 2B employees and employers, because that would establish two sets of long service leave provisions for the duration of the transitional period.
PN21
We note that to the best of our knowledge, your Honour, this issue was never raised in the modernisation exercise relating to division 2B awards. We say, in relation to the NAPSAs themselves, it's not relevant in relation to this application, and what we're seeking to do is to preserve the benefits of the long service leave entitlements that apply to division 2B employees.
PN22
THE VICE PRESIDENT: Mr Blake, you say that it's not relevant, but the full bench seemed to be proceeding on the assumption that the long service leave entitlements did apply to employees covered by the NAPSA, and that being mentioned in the paragraph that you quote. How do you say that it's - - -
PN23
MR BLAKE: 55?
PN24
THE VICE PRESIDENT: Yes, in paragraph 55. It maybe by way of setting out the argument, but it was said that the order will ensure that employees covered by division 2B awards are subject to the same arrangements as employees covered by a section 113, being the employees previously covered by the NAPSA. I note that there was no argument, no opposition. You correctly stated that, but I'm just interested in how you say that it's not relevant.
PN25
MR BLAKE: In terms of the consideration of whether or not long service leave entitlements should continue for division 2B employees, our view is that it clearly was the intention of the parliament, and I think confirmed by the full bench, that long service leave provisions were a specific and separate provision that should be considered as part of the award modernisation exercise, and section 113(3) of the act dealt with people - award-derived long service leave terms. As we understand it, your Honour, if that's not the case, one has to ask the question, what is the purpose of 113(3) in relation to long service leave terms, particularly having regard to - as I understand the employers' argument; they can speak for themselves - that in relation to the NAPSA, long service leave benefits, insofar as they were over and above the relevant acts in Queensland and New South Wales in this case, have disappeared. There were no transitional arrangements.
PN26
As we understand it, it was not the intention that division 2B employees be disadvantaged by losing their long service leave entitlements during the transitional period and, as we comprehend the correct application of section 113, there is provision for that to continue for the transitional period.
PN27
THE VICE PRESIDENT: I note that you do take issue with the correctness of the submission, and you say that section 113(3) read in conjunction with the other subsections including subsection (7) does mean that employees covered by the NAPSA continue to receive the more favourable long service leave entitlements. Is that what you say?
PN28
MR BLAKE: That is our view, yes.
PN29
THE VICE PRESIDENT: And I can understand - - -
PN30
MR BLAKE: We don't seek - - -
PN31
THE VICE PRESIDENT: Yes, and that's - - -
PN32
MR BLAKE: Sorry.
PN33
THE VICE PRESIDENT: In other words, you say that it will be about bringing about the same entitlements for all employees previously covered by the NAPSA, those that came into the federal system in 2006 and those that came in by virtue of the more recent state reference. They will all be entitled to the same long service leave entitlements by virtue of section 113 and the order you seek in these proceedings, and you say that that's consistent with the way the full bench approached the matter.
PN34
MR BLAKE: Yes. This is the first occasion that we have become aware of a view expressed by at least some employers that, arising from the award modernisation exercise in respect of the NAPSAs, the long service leave provisions that were contained in those awards that were better than relevant state acts have gone. We haven't looked at that issue closely, but what we do say is, in respect of the division 2B awards, there appears to us to be an intention of the parliament, and reaffirmed we say by the award modernisation full bench dealing with the division 2B exercise, that at least for the transitional period long service leave conditions that may be better than that currently applying in the modern awards, at least for the transitional period, should continue to apply.
PN35
I'm reluctant at this stage to get into any deep analysis about what does the effect of the NAPSA modernisation process mean in terms of long service leave, because we've not looked at that in detail, but our initial position has been that those conditions continue.
PN36
THE VICE PRESIDENT: Yes.
PN37
MR BLAKE: Now, we don't want to be seen to be agreeing at this stage that, well, if the NAPSAs have lost their entitlements, then division 2B ought to as well, because that's not our view. We deem that they are separate exercises, but we do say that, at least for the division 2B areas, it was the intention that those conditions continue for the transitional period.
PN38
THE VICE PRESIDENT: Yes.
PN39
MR BLAKE: Otherwise - - -
PN40
THE VICE PRESIDENT: I can assure you I'm reluctant to get into the interpretation of these provisions as well unless it's necessary, but it appears that there was an assumption on which the full bench operated, and there was no argument to the contrary there, so the contrary argument was not considered at that time. There was no opposition to the recent application by the SDA in relation to various retail awards, so the matter wasn't considered there.
PN41
MR BLAKE: No, I accept that.
PN42
THE VICE PRESIDENT: It appears that it might be raised for the first time and, in the absence of it being raised in a contested sense, perhaps with all of our reluctance, I might need to consider the argument in some detail, especially as it appears to deal with the rationale mentioned by the full bench.
PN43
MR BLAKE: Your Honour, I agree that paragraph 55 does make reference to the full bench's view that there should be some consistency as to the application of the provisions, but I might have to ask the question then, what work does 113 subparagraph 3 have to do if it is not to deal with in some respects the continuation of entitlements to long service leave that arise from an award or a state reference transitional award, where the employees had enjoyed in some respects benefits over and above that that they may attract in the national system. It does seem to me - - -
PN44
THE VICE PRESIDENT: Couldn't that clause have application if the normal meaning of award, being federal award, and state reference transitional award as well, were the relevant instruments. It would still have work to do. It might lead to inconsistencies, the very inconsistency that is sought to be remedied by this application, but it would still have work to do, would it not?
PN45
MR BLAKE: It may well do. It may well do.
PN46
THE VICE PRESIDENT: Yes.
PN47
MR BLAKE: Our view is that the plain reading of that section suggests that it was an intention of the parliament that long service leave provisions in the state reference transitional award, or an award however defined, 113 would mean that save for the instruments set out in 113 subsection (2), those conditions would continue at least for the period of the transitional arrangements.
PN48
THE VICE PRESIDENT: Yes, and you also make reference to subsection (7) - - -
PN49
MR BLAKE: Yes.
PN50
THE VICE PRESIDENT: - - - which you submit is an expansive definition of instruments that are referred to in the section.
PN51
MR BLAKE: Yes, your Honour.
PN52
THE VICE PRESIDENT: So it refers to transitional instruments of that same kind.
PN53
MR BLAKE: Yes, and we don't say that 113(7) is intended to restrict the application, which we understand the employers guessed it might be, but I'm sort of verballing the employers a bit in my submission, because we haven't heard from them.
PN54
THE VICE PRESIDENT: Yes.
PN55
MR BLAKE: But all we do say is that the scope of 113 is intended, as I have said, to preserve long service leave provisions entitlements for the purpose of employees, and the question is, well, who falls within those terms and who falls without.
PN56
THE VICE PRESIDENT: Yes. Thank you, Mr Blake. I thought it was important to clarify your submissions on that in advance of the employers putting their case.
PN57
MR BLAKE: Thank you.
PN58
THE VICE PRESIDENT: But you'll have an opportunity to reply to them further.
PN59
MR BLAKE: Thank you.
PN60
THE VICE PRESIDENT: Nothing further?
PN61
MR BLAKE: No, thank you.
PN62
THE VICE PRESIDENT: Mr Boyce or Mr Briggs?
PN63
MR BOYCE: Thank you, your Honour.
PN64
THE VICE PRESIDENT: Mr Boyce.
PN65
MR BOYCE: Just to clarify that I appeared for the Aged and Community Services Association of New South Wales and ACT Inc, and also the Aged Care Association Australia - New South Wales. The application, as your Honour will see in our submissions, is opposed. There is no issue taken with the analysis undertaken by the ANF in terms of the more beneficial entitlement of the 2B award and there's no issue taken with the terms of the order sought, if your Honour ultimately determines - - -
PN66
MR BLAKE: Sorry, excuse me. I'm having difficulty hearing you, Gerard.
PN67
MR BOYCE: I'll speak up.
PN68
THE VICE PRESIDENT: Yes.
PN69
MR BOYCE: There's no issue taken with the analysis by the ANF as to the more beneficial terms of the 2B state award and there's no issue taken with the proposed order sought, if that order is ultimately in the exercise of the tribunal's discretion to be made. Item 30 of schedule 3A of the transitional act requires Fair Work Australia to consider whether an order should be made, but it leaves the discretion open as to whether that order is ultimately made by the tribunal.
PN70
The employers take issue with the ANF submission that the full bench decision of 5 November 2010 had an intent to provide for the continuation of long service leave terms, as has already fallen between your Honour and Mr Blake. Paragraph 55, in my submission, doesn't extol that intent. In my submission, the intent of the full bench is set out in paragraphs 12 to 14 of that decision, in particular paragraph 14, about halfway down, where the full bench says that they would be reluctant to adopt a different approach for employers and employees presently covered by division 2B state awards in relation to transitional instruments, and they identify strong reasons of equity for not doing so.
PN71
The other issue that I draw your Honour's attention to is paragraph 16, where the full bench talks about differences between division 2B state awards and NAPSAs, and the changes that may have been made by state tribunals between March 2006 and January 2010 before those employers, the 2B employers, and employees came into the federal legislation. I simply note that there's no submission or evidence put before the tribunal that there were any changes in that time in relation to the long service leave terms, so that if the tribunal accepts that those terms were consistent for employees employed under the NAPSA up until 1 January 2010, they were also consistent for 2B employers, and that notwithstanding that the terms of the NAPSA were frozen from 1 March 2006, there was no change to the long service leave terms under the 2B awards up until the time of commencement of the modern award.
PN72
At 55 of the decision, as your Honour has already pointed out, the issue that's raised now in the employers' submissions was not raised before the full bench. It was not considered or argued. It appears on the face of the decision as though the submissions by the ACTU and the New South Wales government were accepted, but the decision doesn't go so far as saying that. In relation to the analysis of section 113 of the Fair Work Act, I rely upon the written submissions filed by the Aged and Community Services Association and the Aged Care Association Australia dated 15 February, and I would seek those to be marked.
PN73
THE VICE PRESIDENT: Yes. I'll mark those submissions, Aged and Community Services Association 1.
EXHIBIT #AGED AND COMMUNITY SERVICES ASSOCIATION1 SUBMISSIONS OF AGED AND COMMUNITY SERVICES ASSOCIATION
MR BOYCE: Thank you, your Honour. Just looking at some analysis of section 113, in my submission section 113 talks about applicable award-derived long service leave terms. It refers to subsection (3). Subsection (3) is quite specific about relating to the terms in an award, or a state reference transitional award. Subsection (7), in my submission, doesn't expand the term "award", as that would have ordinarily been known under the former Workplace Relations Act, to anything other than a federal award. Schedule 3 item 2 subitem (5)(a) also doesn't support the proposition that an award is to include a NAPSA. Indeed, an award based transitional instrument refers to awards and notional agreements preserving state awards, so - - -
PN75
THE VICE PRESIDENT: How does one read subsection (7) then? Is the reference to an award in subsection (3) a reference to a kind of instrument?
PN76
MR BOYCE: Well, a kind of instrument howsoever that might be described in the transitional act, not extending it just to an award based transitional instrument at large.
PN77
THE VICE PRESIDENT: Is there any reference elsewhere to the actual term, the kind of instrument, or is it a reference to instruments that fall within the description?
PN78
MR BRIGGS: If I may, your Honour.
PN79
THE VICE PRESIDENT: Mr Briggs.
PN80
MR BRIGGS: To answer that question, section 113 subsection (3) also refers to "the effect of any instrument of a kind referenced in above subsection (2)" and there there's a very specific list of instruments, and I don't think it could be read into that situation that each of these types of instruments could have its meaning expanded.
PN81
THE VICE PRESIDENT: So you say that, insofar as subsection (7) expands anything, it's an expansion of the term "kind of instrument" or an explanation of the meaning of the term "kind of instrument" rather than something that expands the meaning of instruments referred to elsewhere in the section, such as, relevantly in this case, a reference to "award" in subsection (3).
PN82
MR BOYCE: Yes. It really just provides assistance to some of those instruments that may not be defined in the Fair Work Act, to refer back to them by their definition to the transitional act, but it doesn't seek to do anything beyond that. It certainly doesn't seek to expand any of the definitions of the kinds of instruments that are specified within section 113.
PN83
THE VICE PRESIDENT: If that's the case, why would it say "other than an enterprise agreement"?
PN84
MR BOYCE: Because an enterprise agreement is an instrument that does have a definition with the Fair Work Act.
PN85
THE VICE PRESIDENT: Yes. These provisions are not without their difficulty, but one way of reading it, and reading against you, is that the reference to a "kind of instrument" is a reference to an instrument elsewhere in the section, including awards, and then the section provides that it includes references to a transitional instrument of that kind. The argument goes that a NAPSA is a transitional instrument of the nature or of the kind of an award.
PN86
MR BOYCE: Yes. That's the argument, your Honour. I don't submit that that could be a correct analysis based upon the very specific nature of the agreements that are exhibited in section 113, and also the very specific nature by which schedule 3 seeks to define, and in certain cases, conglomerate awards, but in conglomerating them, it refers to them under the one heading as award based transitional instruments. So in my submission, the legislation - if it was going to be that expansive - would have used more specific words. I acknowledge that it is an unusual outcome for NAPSA terms and conditions as to long service leave to have been lost by virtue of the National Employment Standards, and perhaps the assumption on the part of many that division 9 of part 2(2) of the act did actually preserve long service leave entitlements.
PN87
THE VICE PRESIDENT: Let me ask a more fundamental question. Is this the relevant provision we should be looking at, because is it more relevant to be looking at the provisions of the Workplace Relations Act when NAPSAs were created, if we're looking at whether the long service leave provisions of NAPSAs continued to have effect?
PN88
MR BOYCE: Yes. It's certainly something the tribunal would look at. I haven't looked at it for the purpose of today, but I have looked at it previously, and it is - - -
PN89
THE VICE PRESIDENT: Mr Blake says that this is the first he's heard of any employer saying that long service leave provisions of a NAPSA of a previous state award did not constitute terms of the NAPSA. Now, I don't think anyone's submissions go back in time to the previous provisions that applied at the relevant time, but - - -
PN90
MR BOYCE: Certainly long service leave terms did constitute provisions of a NAPSA. It's merely that they weren't preserved upon the making of modern awards, so once the NAPSA ceased to apply, the modern award wasn't able to deal with long service leave terms, and the transitional provisions didn't preserve them, and therefore they were lost. I think the assumption was they were preserved by the National Employment Standards, or may have been, but sorry the point hasn't been raised.
PN91
I have for your Honour, for what it's worth, an extract from a publication by Andrew Stewart. It's titled Stewart's Guide to Employment Law, the second edition. The view that he's published in this work is also something he's published, which I've been unable to locate, prior to today, but in one of the labour law journals as to the operation of the NES. If I just take your Honour to page 210, paragraph 11.36, Mr Stewart there sets out his analysis of the NES provision, and he identifies there that the NES provision only has a limited effect. About halfway down the first paragraph, he says:
PN92
It should be stressed, however, that this entitlement can only generally apply where an employer was bound by a federal award with long service leave provisions as at March 2006, and then only for employees doing work covered by that award.
PN93
He points out that modern awards can't regulate long service leave, and then in the second paragraph identifies that the more common situation is that state and territory laws apply pursuant to section 27 subsection 2(g) of the act. So the position that I advance in these submissions is certainly consistent with Mr Stewart's analysis.
PN94
THE VICE PRESIDENT: It appears that that analysis doesn't construe subsection (7) as expanding the definition of award to NAPSAs.
PN95
MR BOYCE: Yes. So - - -
PN96
THE VICE PRESIDENT: It's not clear whether the point was considered as such, but it looks like it might have been - or for one reason or another whether it was overlooked or considered and interpreted in the way that you say it should be interpreted, subsection (7) didn't expand a definition, so the reference to "award" in subsection (3) was only federal awards.
PN97
MR BOYCE: Yes. I haven't provided your Honour with the explanatory memorandum, but I have looked at it, and I can say that it doesn't assist any more - - -
PN98
THE VICE PRESIDENT: Doesn't help.
PN99
MR BOYCE: - - - than the words of the legislation as they currently are.
PN100
THE VICE PRESIDENT: You made the submission if something was intended, it might have been expressed more clearly, but this could be a serious matter if long service leave entitlements carried over into NAPSAs from state awards, but then by virtue of section 113, those more generous entitlements lapsed and the terms of modern awards then applied. It's potentially a significant matter, which appears to be at odds with the understanding of the full bench reflected in their decision - - -
PN101
MR BOYCE: Yes.
PN102
THE VICE PRESIDENT: - - - bearing in mind it didn't seem to be argued to the contrary, but it was certainly an assumption the parties made, and an assumption the full bench adopted. Wouldn't one expect to see something more clear, to achieve such a change if that occurred? That's one question. The second question is, if that was the intention, then why would the legislature provide for the continuation of long service leave entitlements for those covered by schedule 2B state awards?
PN103
MR BOYCE: Yes. Well, either the new schedule has an acknowledgment of the losses under section 113 being inserted, to attempt on application to in some cases preserve those for some employers - - -
PN104
MR BLAKE: I'm sorry, your Honour. I'm sorry, I can't - - -
PN105
MR BOYCE: So, in my submission, item 30 of schedule 3A has either been inserted because of the absence of those continuation provisions under section 113, and allows Fair Work Australia to at its discretion make orders to preserve those long service leave terms, or it's been inserted as a provision that seeks to provide for consistency between what's already understood as NAPSA terms being preserved, but in my submission it's more than likely that such a significant term such as item 30, in terms of its express wording, really does something more than section 113 does, in that it does allow for these provisions to be preserved upon Fair Work Australia's discretion and application by a party to the award, and which is - - -
PN106
THE VICE PRESIDENT: But only in respect to some employees previously covered by the state award. Your argument is - - -
PN107
MR BOYCE: Yes. 2B employees, yes.
PN108
THE VICE PRESIDENT: Yes. Why would there be no discretion to bring about the same result in relation to others, if that wasn't the case already?
PN109
MR BOYCE: Sorry, your Honour, you might have lost me a bit there, but - - -
PN110
THE VICE PRESIDENT: If your interpretation of section 113 is correct, and employees covered by the NAPSA have lost their more generous entitlement to long service leave under the NAPSA, then why would there not be a discretion vested in the tribunal to provide for that in the same way as it's provided for division 2B employees?
PN111
MR BOYCE: Yes, or I suppose - - -
PN112
THE VICE PRESIDENT: It's a construction argument about trying to get to the intention of the legislature.
PN113
MR BOYCE: Yes. Again, I'm not aware that in terms of the insertion of these provisions in schedule 3A, there was any analysis of the point either. Equally it might be said if there was an intention to preserve them for NAPSAs, then similar provisions to item 30 of 3A would have needed to be inserted in the legislation. I mean, notwithstanding what the intent may well have been, in my submission on the reading of the words, without stretching out the meaning of an instrument of a kind, or of that kind, the position is that section 113 doesn't preserve them, and the result really occurs as a result of the NAPSA ceasing to exist when the modern award came into force, and an absence of any transitional provision dealing with long service leave, either in the transitional act or in the Fair Work Act itself.
PN114
So, in summary, your Honour, my submission is, if the tribunal accepts that more beneficial NAPSA long service leave entitlements have been lost through their non-preservation under section 113 and the introduction of the modern award, which cannot deal with long service leave, then consistent with the full bench's view in paragraphs 12 to 14, unless there were unusual circumstances of a kind such as the division 2B award having been varied significantly in relation to long service leave prior to 1 January 2010, then the tribunal wouldn't be inclined as an exercise of discretion to preserve those and thereby create different entitlements under the safety net for employees doing the same work in the same industry under the same modern award. If it pleases.
PN115
THE VICE PRESIDENT: Yes, thank you, Mr Boyce. Mr Briggs.
PN116
MR BRIGGS: Thank you. If it please the commission. Otherwise I rely on our earlier submissions and agree with the submissions of Mr Boyce. However, there is one point which I'd like to add to the deliberations. It's not ABI's understanding that the full bench of Fair Work Australia made the assumption, which you believe it did, that the NAPSA long service leave provisions would be - there was the assumption they would be retained through section 113. Upon reading the full bench's decision in that regard, at paragraph 55, the decision states:
PN117
It was said that such an order will ensure that employees previously covered by division 2B state awards are subject to the same arrangements as employees covered by section 113 of the Fair Work Act.
PN118
ABI reads that to mean those employees covered by awards being pre-reform awards and state transitional reference awards - sorry if I've got that wrong - and only those to which your Honour mentioned to Mr Blake earlier, where the work would be done for that provision. Also, to look back at the ACTU's submissions to Fair Work Australia that gave rise to that decision, the ACTU at paragraph 59 of their submission on page 18 state that:
PN119
PN120
Now, they are only refer to "other transitional instruments", and they do not refer to NAPSAs either, and this issue of whether or not they applied to NAPSAs was never specifically dealt with. Whilst I don't wish to claim to know the tribunal's thinking on this matter, it isn't immediately clear to myself that that assumption was made. On those grounds, ABI believes that the full bench has shown a strong indication to maintain comity between those coming from division 2B awards and those on the NAPSA, and that on those grounds, whether or not the order should be made, should be considered. That's all, your Honour.
PN121
THE VICE PRESIDENT: Sorry, can you just repeat what you were saying what your last submission was - the intent of the full bench?
PN122
MR BRIGGS: Just that ABI's interpretation of the full bench's decision - it's not immediately clear that they made the assumption that NAPSAs would be covered by section 113 in the regard that we believe.
PN123
THE VICE PRESIDENT: So that would suggest that if the rationale is not dependent on that, then it's more a matter of consistency of a position with federal awards, whereby more favourable award entitlements continue.
PN124
MR BRIGGS: Yes, your Honour. ABI's understanding is that section 113's work is only in relation to federal awards, and - I've got an old copy of the act, unfortunately, but it's state transitional reference awards - and that because those two kinds of instruments are specifically listed, the lack of reference, they act to exclude any other sort of instruments that may otherwise be considered there - - -
PN125
THE VICE PRESIDENT: Yes.
PN126
MR BRIGGS: - - - to rely on the assumption.
PN127
THE VICE PRESIDENT: Yes.
PN128
MR BRIGGS: Thank you, your Honour.
PN129
THE VICE PRESIDENT: Yes, thank you, Mr Briggs. Mr Blake?
PN130
MR BLAKE: Thank you, your Honour. A couple of brief comments: if it's possible, I would like to get a copy of the document that Mr Boyce referred to in relation to Andrew Stewart's analysis of these matters - to have the benefit of reading that, we would like to do so.
PN131
MR BOYCE: I can email that.
PN132
MR BLAKE: Thank you. If I can just go back to the submission of Mr Briggs in relation to paragraph 55 of the full bench decision - and I agree that it's difficult sometimes to glean the entire views of the full bench but I think it's worth going over it again. The ACTU, supported by the New South Wales government and a number of unions, admitted that the bench had made a general order preserving long service leave entitlement in division 2B awards for the duration of the transition period. It said that such an order would ensure that employees covered by division 2B awards are subject to the same arrangements as employees covered by section 113 of the act. I note that there was no opposition to the proposal. However, the full bench determined that it would be preferable prior to making a general order, to make an order for each relevant provision to the state award.
PN133
In our submission, your Honour, if you accept the views of the employers today that in relation to the long service leave provisions of the NAPSAs providing for more generous provisions, that they're gone, arising from the award modernisation decision, and that 2B employees should not be able to maintain their benefits over and above the modern award or section 113, because that will establish two streams or two tiers of benefits, you have to ask yourself what was the full bench - what was their understanding as to the work they would have to do in relation to 2B state awards, because I'm not aware of any 2B state awards that would provide for long service leave benefits that would have been less than the provisions of the relevant state legislation.
PN134
In fact, we would submit that the full bench in relation to their consideration of this matter, were proceeding on the basis that 2B employees, 2B awards, would have provided for benefits over and above those protected by section 113, and that there would be consideration by the tribunal to make orders protecting those provisions, for a period of the transitional period, otherwise in our submission, the full bench decision on paragraph 55 makes no sense whatsoever. It seems to me that it would be very difficult to support an argument that the full bench would have made those comments on the understanding that there would be no circumstances in which 2B awards would be subject to the relevant orders - this is under paragraph 55 of the full bench decision; quite the contrary.
PN135
So without getting into any more debate about the scope of section 113, and other provisions in the Transitional Provisions and Consequential Amendments Act, we say that it was the understanding or the intention of the full bench in this decision to in certain circumstances make orders, preserving more beneficial long service leave entitlements for division 2B employees, and that's what our applications are seeking to have made today, your Honour, and that concludes our submissions, subject to any questions you may have.
PN136
THE VICE PRESIDENT: Yes, thank you. I understand that's really the submission why the scope or the entitlements to employees under NAPSA are not relevant to the application. It's really that point that you made earlier.
PN137
MR BLAKE: Yes.
PN138
THE VICE PRESIDENT: Yes.
PN139
MR BLAKE: I agree with the employers and, I think, your views, your Honour, that section 113 is very difficult to understand. It's very difficult to follow when you apply it to the decision of the full bench in relation to long service leave.
PN140
THE VICE PRESIDENT: Yes. The extract of Stewart's Guide to Employment Law does deal with section 113. I'd be prepared to provide you a brief time to make a short written submission in response to that, to supplement your submissions if you'd like that, Mr Blake.
PN141
MR BLAKE: Thank you, your Honour.
PN142
THE VICE PRESIDENT: Is by close of business Monday sufficient for you to do that?
PN143
MR BLAKE: Yes, thank you.
PN144
THE VICE PRESIDENT: Yes. Thank you for those submissions. I'll reserve my decision in this matter, and I'll determine the matter after receiving the further written submission by Mr Blake. I'll now adjourn the proceedings.
<ADJOURNED INDEFINITELY [3.26PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #ANF1 OUTLINE OF SUBMISSIONS OF THE AUSTRALIAN NURSING FEDERATION PN14
EXHIBIT #AGED AND COMMUNITY SERVICES ASSOCIATION1 SUBMISSIONS OF AGED AND COMMUNITY SERVICES ASSOCIATION PN74