TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1050649-1

COMMISSIONER HAMPTON

AM2012/355

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

Applications in relation to part day public holiday provisions in various Modern Awards as a result of legislative change in South Australia.
(AM2012/355)
Clerks - Private Sector Award 2010

(ODN AM2008/7)
[MA000002CRA Print PR985112]]




Adelaide

12.19PM, WEDNESDAY, 17 SEPTEMBER 2014

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN ADELAIDE

Continued from 26/09/2013

PN814

THE COMMISSIONER: Yes, good afternoon. May I take the appearances starting here in Adelaide.

PN815

MS L. DOOLEY: Dooley, initial L, for the CFMEU.

PN816

THE COMMISSIONER: Yes, Ms Dooley.

PN817

MS L. HARRISON: Harrison, initial L., on behalf of the United Voice and also SA Unions.

PN818

THE COMMISSIONER: Ms Harrison.

PN819

MR D. BLAIRES: Blaires, initial D., appearing on behalf of the SEAU.

PN820

THE COMMISSIONER: Mr Blaires.

PN821

MR H. WALLGREN: Wallgren, initial H., for Business SA and also
MR S. CAIRNEY.

PN822

THE COMMISSIONER: Thank you, Mr Wallgren.

PN823

MR O. WEBB: Webb, initial O., appearing for the Australian Hotels Association.

PN824

THE COMMISSIONER: Thank you, Mr Webb. If there are there any other appearances can you come to the bar table.

PN825

MR M. HOWARD: If it pleased the commission, Howard, M.J., appearing with MR J. WINDSOR for Master Builders South Australia and Master Builders Australia.

PN826

THE COMMISSIONER: Thank you, Mr Howard.

PN827

MR E. SCHWIDDER: Yes, Egan Schwidder for the South Australian Wine Industry Association.

PN828

THE COMMISSIONER: Mr Schwidder.

PN829

MR G. WARREN: Mr Warren, initial L., on behalf of SafeWork SA and the Attorney-General’s Department. My role is just to observe and to assist the commission if required.

PN830

THE COMMISSIONER: I see. I imagine you’d be appearing for the minister if you want to make a full appearance, but very well. Anyone else? All right, and in Sydney.

PN831

MR G. PARKS: If the commission pleases, Parks, initial G. I’m appearing today on behalf of the Accommodation Association of Australia.

PN832

THE COMMISSIONER: Thanks, Mr Parks.

PN833

MR PARKS: I’m appearing on three, on behalf of three organisations, the Motor Inn, Motel and Accommodation Association and Restaurant and Catering Industrial.

PN834

THE COMMISSIONER: Very well, thank you, Mr Parks.

PN835

MS R. BATT: If it please the commission, Batt, initial R. I appear on behalf of the Australian Industry Group.

PN836

THE COMMISSIONER: I imagine that was Ms Batt. We can’t hear you for some reason.

PN837

MS BATT: Sorry, Commissioner, is that any better?

PN838

THE COMMISSIONER: That is much better, thank you.

PN839

MS M. ADLER: And Adler, initial M., on behalf of the Housing Industry Association.

PN840

THE COMMISSIONER: Thank you, Ms Adler. Ms Batt, I understand you’re appearing for the Australian Industry Group?

PN841

MS BATT: That’s correct, Commissioner.

PN842

THE COMMISSIONER: That’s right. I’m just helping the reporter here, that’s all. Look, by the way, this is a conference so, the parties in Adelaide, feel free to remain seated. The difficulty for those, when you speak from the back, you’ll need to come forward and make your contribution, however. Well, the context for this hearing has been set out in the notice of listing. The only additional bit of context I think I should put on the record is that the relevant full bench has confirmed that the public holidays matter more generally will be dealt with in the first half of next year in terms of the 2014 modern award review.

PN843

I think that was confirmed subsequent to the correspondence. At least certainly it’s now been confirmed by the relevant full bench. All right, so the purpose of this conference is to explore the positions with respect to the proposal which is set out in the notice of listing. If parties don’t make a contribution to the contrary, I’ll assume that it has your support. So, Mr Wallgren, perhaps I’ll start with you as the letter came from your organisation.

PN844

MR WALLGREN: Thank you, Commissioner, Business SA initiated discussions with the SDA and United Voice some time ago regarding the continuation of schedule X - - -

PN845

THE COMMISSIONER: Yes.

PN846

MR WALLGREN: And we also provided correspondence to the commission on 21 August setting out the reasons for the continuation of schedule X. In our experience, the schedule has operated for two years and we say that it’s sufficient time to assess whether it operates as intended and whether it operates as efficiently and effectively and, certainly in our experience, the schedule has been successful. It has provided clarity and certainty to those employers who are trading on part-day public holidays in South Australia. So we certainly would like to see continuation of the schedule.

PN847

This is the third year we’re appearing in the commission to argue for the retention of the schedule and we submit that a more efficient way going forward would be for the schedule to operate indefinitely; in other words, not have it limited to a particularly period in time so we need to appear next year once again to discuss this matter but to have it operate permanently. We also think that if parties later on would have particular issues in relation to a specific award, those could be raised in the four-yearly review next year or, alternatively, through a specific application if they still need for the schedule to be amended or adjusted.

PN848

So our primary submission is for the schedule to continue and we’re not seeking any amendments to any particular clauses of the schedule but to have the schedule operating on a permanent basis, if the commission pleases.

PN849

THE COMMISSIONER: So, Mr Wallgren, in that context how do you see that playing into the fact that a full bench is conducting a review of the public holiday provisions more generally as part of the 2014 review?

PN850

MR WALLGREN: Well, I mean, if particular clauses are changed as a result of the four-yearly review, well, that would need to be adjusted but I think for purposes, for the purposes of South Australia, I think the schedule has provided certain anxiety but amendments are made to particular clauses in awards, well, technical adjustments, technical amendments, may be required to the schedule.

PN851

THE COMMISSIONER: Presumably if the party wants to agitate a variation they can do so in that context as well.

PN852

MR WALLGREN: Yes.

PN853

THE COMMISSIONER: All right, thank you. Who would like to lead off? Yes, Mr Blaires.

PN854

MR BLAIRES: Our position would be largely supporting that of Business SA. We understand that the schedules are put in on a yearly basis and the logic behind that I think was sound at that point in time. There is I suppose general consensus that the schedules seemed to have worked. We’re certainly not aware of any problems that have arisen from them and, to put them in on an ongoing basis, would seem logically. I understand that the full bench or a full bench will be hearing public holiday submissions next year and are most likely to deal with this.

PN855

A part of them dealing with this would be - or part of them dealing with the public holiday issue may well be to remove this clause from schedules in the particular awards and encapsulate whatever concepts they deem appropriate in the body of the award but, in the event that this does not occur for some particular awards for whatever reason or a decision is not reached and implemented in sufficient time for next year, then there would be some logic to have this then continuing as essentially a fall-back position, not to say that it can’t be removed but it’s there until removed and I think, you know, the logic behind that would be as outlined by my friend.

PN856

THE COMMISSIONER: Thank you, Mr Blaires. Ms Harrison.

PN857

MS HARRISON: Thank you, Commissioner, United Voice basically consents to - echoes the same views as what has been put by the SDA and Business SA. We have significant coverage of members of the (indistinct) that are affected by these provisions and who regularly work on Christmas Eve and New Year’s Eve and we’ve had little to any feedback in relation to any (indistinct) and had no problems identified in relation to the operation of the schedules.

PN858

We certainly agree that it would be beneficial to all parties if the provisions were put into the awards on a permanent basis and I echo the views in the sense of if the review process varies then, well, so be it, but it may well be likely that we’ll be back here in 2015 to do a temporary variation if it’s varied on a temporary basis again this year. I spoke with - my instructions in relation to SA Unions are that they support a variation to the schedule and I haven’t had any identified problems with it from any of the affiliates from its union.

PN859

THE COMMISSIONER: So does that support extent of the making of an ongoing provision?

PN860

MS HARRISON: I don’t have instructions in relation to that from SA Unions. I did speak with them about it and I think that they probably want to consult with the other unions in relation to that if that was the case but I think initially there are no concerns in relation to that proposition.

PN861

THE COMMISSIONER: Thank you, Ms Harrison. Ms Dooley.

PN862

MS DOOLEY: Yes, thank you, Commissioner, the CFMEU I think can join the chorus that’s already spoken about the variation. However, I don’t have any instructions about a permanent change so I won’t need to go on.

PN863

THE COMMISSIONER: Very well, just whilst I’m on the CFMEU, albeit a different part of the organisation, there is correspondence that has been supplied to the commission on behalf of the forestry products division. The substance of that is to indicate that their support goes to the extent of deleting 2013 and inserting 2014. Thank you. All right, Mr Webb.

PN864

MR WEBB: Thank you, Commissioner. In relation to the AHA we support the proposal to maintain the current model interim part-day public holiday schedule in its current form and simply extending it to include the part-day public holidays in 2014. In relation to the proposition of making a permanent schedule, we don’t support the interim arrangement being made a permanent schedule certainly in relation to the Hospitality Industry General Award from our members’ perspective because it may be subject to submissions as part of the public holiday common matter in the 2014 modern award review.

PN865

THE COMMISSIONER: Does that mean you’re anticipating that matters that would go to the operation of the public holiday provisions in modern awards more generally might have an impact on these provisions?

PN866

MR WEBB: Yes, that’s correct, Commissioner.

PN867

THE COMMISSIONER: Right, thanks, Mr Webb. Mr Howard.

PN868

MR HOWARD: Thank you, Commissioner, the Master Builders Association have no objection to the application tendered by Business SA but we reserve the right in respect to any further submissions that might come forward from the CFMEU Forestry and Furnishing Division, if the Commissioner pleases.

PN869

THE COMMISSIONER: Thank you, Mr Howard. Mr Schwidder.

PN870

MR SCHWIDDER: Yes, thank you, Commissioner. Yes, the South Australian Wine Industry Association has no objection to the continuation of the 2014. However, we’re not in a position to support the ongoing nature of the schedule along the same lines as previously mentioned but we believe that it may have some impact on the full bench considerations with the review. So we can only support it for 2014.

PN871

THE COMMISSIONER: Thank you. Mr Warren, I think you indicated you’re only in an observing capacity?

PN872

MR WARREN: Yes.

PN873

THE COMMISSIONER: All right, so is that for parties in South Australia? All right, now, Mr Parks.

PN874

MR PARKS: Thank you, Commissioner. We support the continuation of the schedule on an interim arrangement for 2014. However, we’re opposed to the permanency of the schedule and we would seek the right to raise additional issues as part of the common issue of the public holiday matter that’s scheduled for 2015.

PN875

THE COMMISSIONER: Very well, thank you. Ms Batt.

PN876

MS BATT: Thank you, Commissioner. The Ai Group support the situation put by the Business SA in its correspondence of 21 August and that is that the schedule is amended by simply substituting 2013 with 2014 such that it applies this year. I don’t have instructions on our position as to this schedule applying indefinitely. Perhaps that’s something that can and should be dealt with as part of the public holidays’ common claims of 2015. It’s not something that we would necessarily oppose but I just don’t have instructions.

PN877

THE COMMISSIONER: I understand, thank you. Ms Adler.

PN878

MS ADLER: Thank you, Commissioner. We would support the continuation of the schedule on an interim basis and we would support the approached outlined at item 4 of the notice of listing which indicates more fully dealing with the schedule in the public holidays matter during the four-yearly review.

PN879

THE COMMISSIONER: Thank you. That’s it for Sydney, I believe, all right. Well, look, firstly this conference is being recorded and will subsequently be transcribed and put on the commission’s web site given the nature of the public interest in variations to modern awards on a general basis. Secondly, I propose to issue a statement, in essence to the present, but also indirectly therefore to the full bench that would deal with the 2014 modern award review more generally.

PN880

What I propose to do is to reflect the views of the parties and, in particular, that at one level there is a common position, that is that the current, what might be described as interim arrangement, should be continued and operate for 2014 but there’s a difference of view as to whether or not that should be made permanent. Now, in that context, what I just want to explore with the parties that have concerns about it being made permanent - and I should be putting that in italics because I think the difficulty I have with that notion is that, look, in a sense, no provision of a modern award is permanent and, even if it were made so that it operated on an ongoing basis, I suspect the view the commission is likely to take is that it will be subject to the 2014 review next year in any event no matter what label is put around it.

PN881

So can I just explore the concerns of those that are concerned about it being made - I’ll try and use a more neutral term - maybe a non-interim provision. Can I just explore - and I particularly want to accurately record the concerns of those parties in the statement that I’ll make and provided publicly and also to the President - is the concern about making the provisions non-interim that they are then suddenly beyond the scope of the review or that somehow the commission has said that they are sort of permanent so it becomes more difficult to change? I’m just trying to grasp the understanding of that so I think, in Adelaide at least - I think, Mr Webb, you’re the one that certainly most clearly put that view.

PN882

MR WEBB: Yes, look, I agree with the proposition dealing with this matter that’s been put forward in that it may be - or our concern would be that if it was done on, and we use the term “permanent basis”, that it may preclude us from making any submissions in relation to the schedule come 2015 in terms of the full bench review of the public holidays generally and whether or not there’s an impact upon the part-day public holiday schedule and the rest of the award when it comes to public holidays.

PN883

THE COMMISSIONER: Okay, so I mean the obvious advantage of making it non-interim is, in the event that the modern award review is completed in time for this time next year, you would having to do this. At least you are articulating those - that if that were intended to make it on a platform to make it more difficult to vary as part of the review, then that’s primarily where your concerns lay.

PN884

MR WEBB: Yes, that’s correct.

PN885

THE COMMISSIONER: Okay, fine, very well. All right, so then in terms of those parties I think in Sydney, Mr Parks, you expressed the contrary view.

PN886

MR PARKS: Yes, Commissioner, I think we’ve been one of the parties that have been quite vocal about this issue, you know, from the start and we were happy to have an interim arrangement to get over some of the obstacles that occurred originally. However, we really need, you know, to seek the opportunity to explore exactly how these types of provisions apply in the Restaurant Industry Award and the Hospitality Industry Award where it has a real impact on the commercial viability of small businesses. So we want to explore that and put detailed submissions to the full bench obviously as part of the broader public holidays common issues matter.

PN887

THE COMMISSIONER: I understand. I presume from that therefore - again I’m not sure who I clarified this with - but what I understand from that is that you’re proposing in a sense to seek a fundamental review of the operation of the public holiday provision in the context of the various industries you represent
and you’re concerned that that of itself may lead to the need for review of the schedules.

PN888

MR PARKS: Correct.

PN889

THE COMMISSIONER: Yes, okay, all right, thank you. Ms Batt, I think you were not so much sitting on the fence but you didn’t have any instructions in relation to the broader proposition but if you want to say anything further I’m happy for you to do that.

PN890

MS BATT: Commissioner, I need to say that we would agree with the observations you’ve made earlier in terms of the effect of this schedule being an interim schedule or a non-interim schedule in terms of how that would pan out in a public holidays’ review more generally but, as foreshadowed earlier, I simply just don’t have instructions today. If it assists the commission, we can undertake to write to the commission’s chambers by early next week about what our position is.

PN891

THE COMMISSIONER: Thank you. Ms Adler, do you want to add anything further?

PN892

MS ADLER: Only, Commissioner, that we would see that having the schedule dealt with more fully in the public holidays common issues matter would give parties a further opportunity to investigate these things with our members and consult with them to get a sense of how they’ve been operating in practice to date and any palpable issues that might need to be dealt with more fully.

PN893

THE COMMISSIONER: Right, very well. Yes, thank you, Mr Cairney.

PN894

MR CAIRNEY: If I may Commissioner, look, I just want to make it quite clear that it’s not Business SA’s intention to restrict any party to be able to deal with the common issue of public holidays because in fact it may well be Business SA is a party that wants to deal with public holidays. I think your point earlier is the approach we’ve taken, that is this is the third time we’ve been to the commission to deal with this issue over Christmas, so all we’re simply saying is just removing the temporary nature is just more efficient.

PN895

But I want to make it quite clear that is in no way trying to restrict any party to have the public holidays reviewed as part of the modern award and I would suggest that, also given your comments which I concur with, the modern review, this four-year review, everything is on the table. Thank you.

PN896

THE COMMISSIONER: Very well, anybody else would like to make a contribution? Mr Blaires.

PN897

MR BLAIRES: Look, I just echo what Mr Cairney said that it’s certainly not the position that anything we decide here would impact on the ability for parties to argue their case one way or the other in relation to the full bench hearings. I suppose the position is that, having this as a default sort of safety net, as it were, means that if the arguments go longer than possibly anticipated next year or if the decision needs some further time to think about this, we’re not sitting around in November wondering when the full bench decision is going to come down and if we need to be putting this application in or not. It gives parties certainty that, “Okay, well, the full bench hasn’t come down with their decision yet. Well, this is it.”

PN898

If the full bench comes down with their decision well in advance of Christmas and, you know, chooses to change the schedules or vary the schedules, remove them or incorporate them into the body of the agreement or abolish them altogether, so be it. That’s a decision for the full bench and certainly the SDA, as I’m sure most parties will, will be making submissions in due course next year but I suppose the position is to set a default, a backdrop with which to work against and then, you know, put our arguments forwarded next year.

PN899

THE COMMISSIONER: Very well, thank you. Look, as I said, I will prepare and issue a statement in due course but for those organisations that currently don’t have a position on the proposal that advanced most clearly this afternoon about making the schedules non-interim, that is ongoing but still subject to review as part of the 2014 modern award review process, I’m not sure what your turnaround times might be for getting instructions but I will need to prepare the statement next week so I’m prepared to give until close of business next Tuesday if you want to make any further submissions.

PN900

So it’s not necessary to repeat anything that’s been said but, if there are different positions that you want to advance and particularly those that don’t currently have instructions on that alternative approach, then I’ll give you until close of business Tuesday. They can be forwarded to my chambers and we’ll again publish them on the web site and I’ll shortly thereafter prepare the statement and then it will be in the hands of the commission more generally to deal with it. All right, well, thank you for the constructive contribution all parties have made. The tribunal will be adjourned.

<ADJOURNED INDEFINITELY [12.44PM]