TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 46637-1
SENIOR DEPUTY PRESIDENT HARRISON
AM2011/12
s.158 - Application to vary or revoke a modern award
Application by Australian Federation of Employers and Industries
(AM2011/12)
Road Transport and Distribution Award 2010
(ODN AM2008/21)
[MA000038 Print PR986380]]
Sydney
10.03AM, TUESDAY, 19 APRIL 2011
THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA
VIDEO CONFERENCE AND RECORDED IN SYDNEY
PN1
THE SENIOR DEPUTY PRESIDENT: Are there any changes to the appearances here in Sydney?
PN2
MR O. FAGIR: Yes, your Honour. Fagir, initial O, for the TWU, replacing Mr Burns.
PN3
THE SENIOR DEPUTY PRESIDENT: Yes, thanks, Mr Fagir. Yes, I'm sorry.
PN4
MR D. STORY: Sorry, your Honour. Story, initial D, from the Australian Federation of Employers and Industries.
PN5
THE SENIOR DEPUTY PRESIDENT: Thanks, Mr Story.
PN6
MR STORY: Thank you.
PN7
THE SENIOR DEPUTY PRESIDENT: Mr Ryan, we have you online in Melbourne?
PN8
MR P. RYAN: Yes, your Honour.
PN9
THE SENIOR DEPUTY PRESIDENT: Now, I think on the last occasion Ms Paul attended, from the AIG. We had thought she might have been attending this morning too so we don't know why she isn't here. Any other parties spoken to Ms Paul? No? All right. Now, Mr Story, the matter was listed before me previously for mention and I think a few matters were discussed but it ended up with the requirement that you have some discussions with the parties, all of whom at that stage either needed better description of what is intended to be achieved and/or oppose the application, at least in the form it was then filed. Let me know what's happened in the interim, would you?
PN10
MR STORY: Yes, your Honour. Since the initial hearing in March, AFEI has had individual discussions with each of the parties as well as a teleconference on 24 March. The teleconference was held to create some clarity about who the application is intended to cover and to hear the other parties' views to this application. It was explained to the parties at that stage that this application is made to cover a sector within the industry, being the dairy products vending and distribution sector. It's a sector that's probably most commonly referred to as "milk men" and it's the industry of employers who are purchasing the milk and dairy products and then selling them to final consumers or to semi-retail establishments.
PN11
It's not intended to cover the large transport operators, so it does not cover those that are selling to the major supermarkets, including Coles and Woolworths or Aldi or Franklins. Rather, it's to cover those who are distributing these dairy products to businesses in hospitals and schools, as well as to final consumers such as individual households, as well as small retail shops.
PN12
THE SENIOR DEPUTY PRESIDENT: Australia-wide?
PN13
MR STORY: Australia-wide, that's correct.
PN14
THE SENIOR DEPUTY PRESIDENT: Yes. Now, the definition in the application as filed - I don't know if it's going to be revisited or not - also extended to fruit juices.
PN15
MR STORY: That's correct. That is the definition that has been taken from the Victorian or the pre-reform award that applied to milk carting prior to the modern award. It included a definition of dairy products and dairy case products and that included fruit juices and yoghurt and custard and all that.
PN16
THE SENIOR DEPUTY PRESIDENT: The definition is taken from which award?
PN17
MR STORY: The award title was Transport Workers (Milk Carters) Award 2002.
PN18
THE SENIOR DEPUTY PRESIDENT: Was that a per-reform award?
PN19
MR STORY: That was a pre-reform award.
PN20
THE SENIOR DEPUTY PRESIDENT: Right.
PN21
MR STORY: Would you like the award code, your Honour?
PN22
THE SENIOR DEPUTY PRESIDENT: Yes, thank you.
PN23
MR STORY: It's AP817124 and it was common rule in Victoria.
PN24
THE SENIOR DEPUTY PRESIDENT: Yes, thank you. All right. Now, the shifts that are defined, or the spans, are they taken from that award as well?
PN25
MR STORY: They're not. That award had actually no shift penalties. It allowed hours of work to be worked between 3.30 am and 12.30 pm or between 11.30 pm and 10.30 am without any shift penalty in Victoria and similarly in Tasmania.
PN26
THE SENIOR DEPUTY PRESIDENT: Yes.
PN27
MR STORY: It also applied in South Australia but with a 12 and a half per cent penalty. The shift definitions that AFEI have inserted in this application are largely borrowed from the New South Wales NAPSA that applied to this industry. We would submit that that NAPSA had the most beneficial, for employees, shift penalty terms. The definitions have been tweaked, I would say, slightly so that it does not interfere with the ordinary hours of work clause in the Road Transport and Distribution Award. But the most significant part of those definitions is the insertion of an early morning shift penalty.
PN28
THE SENIOR DEPUTY PRESIDENT: Yes.
PN29
MR STORY: The penalty rates for each of those shifts have been drafted with the pre-modern awards in mind, but they are all higher than what was applicable previously.
PN30
THE SENIOR DEPUTY PRESIDENT: All right. Now, the employers in this sector of the industry, obviously you represent some of them. I'm just wondering if any consideration should be given to any other notification of the scope of this application or whether, at least from your point of view, the procedure that we're using here, which is the usual procedure for applications to vary modern awards which - should bring it to the attention of anyone with an interest in this modern award is adequate.
PN31
MR STORY: This application, your Honour, has been drafted in consultation with the Amalgamated Milk Vendors Association.
PN32
THE SENIOR DEPUTY PRESIDENT: Who are they?
PN33
MR STORY: They're an industry body for milk vendors.
PN34
THE SENIOR DEPUTY PRESIDENT: Yes.
PN35
MR STORY: It has been drafted and we have spoken with employers across Australia in that industry and we have gained information from those employers that are members of the AMVA, but we plan, if we are given the opportunity to make further submissions, to consult with those parties further.
PN36
THE SENIOR DEPUTY PRESIDENT: Now, the definition of the industry is the attempt to exclude the majors - - -
PN37
MR STORY: That's correct, your Honour.
PN38
THE SENIOR DEPUTY PRESIDENT: - - - from this variation, is it? Yes.
PN39
MR STORY: Yes. I understand it is (indistinct) we have constructed it in that way to try to limit the industry that it will apply to so it only takes in those that were previously covered by the pre-reform awards that applied to milk vendors and distributors prior to the modern award.
PN40
THE SENIOR DEPUTY PRESIDENT: All right. None of this was raised during the making of the modern award?
PN41
MR STORY: Unfortunately it was not. It seems to be a sector that was overlooked during the modernisation process.
PN42
THE SENIOR DEPUTY PRESIDENT: Well, it wasn't overlooked, it was specifically - - -
PN43
MR STORY: It was, yes.
PN44
THE SENIOR DEPUTY PRESIDENT: - - - referred to, but it's just that this sector did not make submissions for any specifically tailored accommodation.
PN45
MR STORY: That's correct, your Honour.
PN46
THE SENIOR DEPUTY PRESIDENT: Yes.
PN47
MR STORY: It appears they didn't - being a sector of very small business, I assume it's part of the issue in that they didn't appreciate the consequence of it.
PN48
THE SENIOR DEPUTY PRESIDENT: All right, yes. I'll come back to you. Mr Fagir, what's the union's attitude to the variation?
PN49
MR FAGIR: The union opposes the variation, your Honour. Without getting into chapter and verse, I would expect that there would be some dispute about the proposition that the pre-modern awards and their application to this sector were as described in the grounds of the application. That's one issue and as a second and perhaps more fundamental issue, it's our view that the grounds, even if made out on evidence or what passes for evidence in these matters, would be insufficient to achieve the high jurisdictional barrier that applies to this kind of application.
PN50
THE SENIOR DEPUTY PRESIDENT: What's this, the ambiguity ground, or - what do you call this jurisdictional barrier ground?
PN51
MR FAGIR: Well, I assume that the application proceeds on the basis that the variation sought will achieve the modern award objectives, rather than deal with any ambiguity. There certainly doesn't seem to be any ambiguity - - -
PN52
THE SENIOR DEPUTY PRESIDENT: I see.
PN53
MR FAGIR: - - - arising, but we say this application can't meet - there is nothing in the grounds that establishes that the variation is necessary to achieve the modern award's objective.
PN54
THE SENIOR DEPUTY PRESIDENT: Yes, I see. That's a ground upon which this relies. Yes, I understand. All right. Mr Ryan, what's ARTIO's attitude to the application?
PN55
MR RYAN: Your Honour, we oppose the application both from a jurisdictional and merit perspective. If it is to be heard, it should occur as part of the modern award review process which is scheduled for the next year, from memory, your Honour. I also note that Mr Story has been well and truly informed of what's required in an application of this nature in a decision given by Hamberger SDP on 14 March in an application by his organisation in which he appeared to vary the Amusement, Events and Recreation Modern Award where they were seeking changes in rest break provisions and it was spelt out very clearly by Hamberger SDP, what's involved in terms of the modern award - necessary to achieve the modern award's objective.
PN56
We're two years down the track from the making of these awards. Everybody had an opportunity to put forward their views in this process. Subclause (h) in the definition of Road Transport and Distribution made it very plain that the modern award currently is groups of employers and to then, two years later, say, "We're going to try and unscramble this egg", I think, is totally inappropriate. So I'll just reiterate that we oppose the application.
PN57
THE SENIOR DEPUTY PRESIDENT: All right. Well, we don't know whether AIG wishes to continue its appearance and, if so, what its attitude is but no doubt Ms Paul would be able to read this transcript if for some reason their non-attendance is an oversight this morning.
PN58
MR RYAN: Your Honour, if I might just say, this mention and programming conference wasn't listed on the web site dealing with modern award variations when I checked it this morning.
PN59
THE SENIOR DEPUTY PRESIDENT: Is that right? Yes.
PN60
MR RYAN: So whether that has caused some confusion, I don't know.
PN61
THE SENIOR DEPUTY PRESIDENT: Yes. Well, the listing no doubt would have gone out. Yes, it went out and they were notified but we'll have a look at that and make sure that that somehow hasn't misled AIG. But certainly I'm looking at the notice of listing and confirmation and details of that being sent. Well, Mr Story, it looks as if there are considerations that first need to be attended to. That is, whether this application should be entertained at all at this stage and then, if it is, the manner in which it should proceed, which would include the manner in which the merit of it might be made out. So do you want to say anything about whether I should - do we have a late attendance in this matter?
PN62
MS C. BROOKS: Yes, sorry. Catherine Brooks from Australian Industry Group.
PN63
THE SENIOR DEPUTY PRESIDENT: We've been speaking of AIG in your absence, Ms Brooks.
PN64
MS BROOKS: I apologise.
PN65
THE SENIOR DEPUTY PRESIDENT: That's fine. I was just mentioning that if AIG had overlooked this listing, the transcript of course would be brought to your attention. But in short, Mr Story presses for his application, Mr Fagir and Mr Ryan oppose it and the opposition falls into two parts. Namely, it's not appropriate now to be considering this application to amend. If it's to be considered, the opportunity will arise early next year and it's unlikely the application, in the terms as filed, would meet the modern award's objectives. So I had then started to talk about whether we split this matter into two and consider first whether the application should proceed at all at the moment and then, if so, how would the merit of the matter be made out and then you walked in. So what's AIG's attitude to this application?
PN66
MS BROOKS: We neither support nor object to the application at this stage. We merely want, I guess, the right to file submissions, if the other parties are, at that later stage. So - - -
PN67
THE SENIOR DEPUTY PRESIDENT: All right. Well, Mr Story, is this an appropriate matter for me to split into two and firstly consider any submissions the parties want to make as to whether this application should proceed at all at this stage?
PN68
MR STORY: Your Honour, AFEI would submit that this application has both jurisdiction and merit and that it should be heard as an ordinary application to vary the award. There are significant detrimental cost impacts resulting immediately from the modern award that cannot be phased in through the transitional provisions and the reason for that is, it's the way the overtime applies in the award. This is an industry that has historically operated in the early hours of the morning or very late at night and the modern award cannot accommodate the hours that it worked. We have modelling from some employers in this industry that are looking at employment increases of $6000 per person in this first year or $85,000 per year, and that's an employer with only 14 employees.
PN69
So we submit that the application is necessary to be heard now as opposed to waiting for the 2012 review. We acknowledge that it's unfortunate this hasn't been raised earlier and that it wasn't raised during the making of this modern award. It is however not a reasonable proposition for this sector, we would submit, for them to have to wait a further 12 months for the review to occur. We would submit that there is jurisdiction to hear this in accordance with section 158 of the Fair Work Act in order that this modern award achieve - be varied to achieve the modern award's object, particularly the objective at section 134(1)(f) in relation to employment costs in the sector.
PN70
THE SENIOR DEPUTY PRESIDENT: In relation to the merit of the application, will you be in a position to identify, with some particularity, who the employers are in this sector of the industry?
PN71
MR STORY: Do you mean name employers?
PN72
THE SENIOR DEPUTY PRESIDENT: Yes.
PN73
MR STORY: I would have to check with their association to see who may be prepared. I assume that there would be some who would be prepared to be named in this, but I would need to seek the permission first.
PN74
THE SENIOR DEPUTY PRESIDENT: Yes. Have you any feel at all for the incidence of agreement coverage within this sector of the industry?
PN75
MR STORY: It is my understand, your Honour, that agreement coverage is quite limited because they are generally quite small businesses, only a handful of employees. I am aware of at least one organisation that does have an agreement which is on the larger side of this sector and they have about 15 employees. But that's really considered a larger employer in milk vending and distribution.
PN76
THE SENIOR DEPUTY PRESIDENT: Yes. Now, if I was to list the matter to proceed both aspects - firstly whether it should be entertained at all and secondly, if so, the merit of it - how would you see your establishing or putting on the evidence, how would you see it progressing?
PN77
MR STORY: We would like the opportunity to make written submissions. We can provide evidence as to the previously applicable awards in this industry and the actual unique hours of work provisions and shift work provisions that applied, as well as we'd like the opportunity to provide even modelling that we've been provided by employers in this industry as to the employment cost increases as a result of the award.
PN78
THE SENIOR DEPUTY PRESIDENT: All right. Well, Mr Fagir, do you want to say anything else in addition to what your primary position is as a result of those additional submissions from Mr Story?
PN79
MR FAGIR: Just in terms of the procedural aspects of this matter, your Honour, our firmly held view is that the jurisdictional issue should be dealt with first and that's simply a matter of (indistinct) all the parties avoid going through - could be a potentially very wide-ranging exercise of award analysis in circumstances where the application may fail on its face, if that's the right way to put it, and I don't mean to pin Mr Story down to something that he's said off the cuff but if the basis for the application is said to be an increase of $6000 in employment costs across 15 employees, the application is not going to get there. So in short, our view is that the issue of whether the application is necessary to achieve the modern award's objectives be assessed first and then we can get into a broader assessment of the application.
PN80
THE SENIOR DEPUTY PRESIDENT: I suppose to some extent, even addressing that matter would probably - Mr Story should be given an opportunity to put on some evidence, nonetheless, and when I say "evidence", I don't have in mind some costs said to arise out of application of the award to some identified employer or employers when we don't know anything about the activities. Their employees, their rosters, their clients. So even requiring that sort of information to persuade me that it might be a case appropriate to reconsider before the two-yearly review requires some evidence, I imagine.
PN81
MR FAGIR: Yes, your Honour. I think there would certainly be some overlap in terms of what the applicant would need to put on in both cases. The position might be a little bit different for us as we may be able to take the applicant's material and just say, "Look, setting aside whether it's right or wrong or tracing the award history, even if we accept it on its face, we don't get there." So I suppose - - -
PN82
THE SENIOR DEPUTY PRESIDENT: Yes, I understand. Additionally, in that context you say that there might be an issue about what is asserted to be the pre-modern award regulation in any event.
PN83
MR FAGIR: Yes - - -
PN84
THE SENIOR DEPUTY PRESIDENT: All right. Well, that's just construction of awards, isn't it?
PN85
MR FAGIR: Yes, although there may be - I expect there will be an issue, certainly New South Wales, about exactly who these people are and whether they exist and the difference between a milkman and a small business employing 15 employees and those type of issues.
PN86
THE SENIOR DEPUTY PRESIDENT: All right. Mr Ryan, in light of the additional matters that Mr Story has addressed, anything further you want to say to the position you put earlier?
PN87
MR RYAN: I don't have a great deal, your Honour, other than to say that I note that some of the awards that the Road Transport and Distribution Award replaced as listed on Fair Work Australia's web site include the Home Milk Vending (ACT) Award, the Transport Workers (Mobile Food Vendors) Award which is a Western Australian award. I don't know whether that is applicable in this particular case. And the Transport Workers (Bulk Milk Carters) Award. Now, the bulk milk carters award wouldn't certainly be a NAPSA applicable here because I think Mr Story said, we're not dealing with the character of bulk milk and there's also the Transport Workers (Milk Carters) Award 2002.
PN88
So there are some NAPSAs in pre-existing NAPSAs that - we would say that there's a jurisdictional point that - that hurdle must be leapt before we get into the merits and there will be a little bit of (indistinct) and the final point I'd add is that one assumes that these employers have been complying with their award obligations for the past 17 months; another couple of months until the review process commences I don't think is going to kill anybody.
PN89
THE SENIOR DEPUTY PRESIDENT: All right. Well, you don't want to say any more than what you've already mentioned?
PN90
MS BROOKS: No, your Honour.
PN91
THE SENIOR DEPUTY PRESIDENT: No, all right. I'd like to have a short time to consider what procedural ruling I would make as to how this matter should proceed. I think I'll issue that in writing in the next couple of days and it will be on the web site so that gives an additional opportunity to anyone who hasn't quite grasped what this is all about to have something to say soon, rather than not at all. Yes, I think - - -
PN92
MR RYAN: Your Honour, may I - - -
PN93
THE SENIOR DEPUTY PRESIDENT: Mr Ryan?
PN94
MR RYAN: I note also that there's - another application to vary this award has been filed.
PN95
THE SENIOR DEPUTY PRESIDENT: Is that right? I was not aware of that. By Mr Story's organisation?
PN96
MR RYAN: No, by a completely different organisation called Peterson's Transport which is a Queensland-based organisation or transport company.
PN97
THE SENIOR DEPUTY PRESIDENT: Yes.
PN98
MR RYAN: From memory, that was filed in late March so - - -
PN99
THE SENIOR DEPUTY PRESIDENT: Really?
PN100
MR RYAN: - - - purely from a logistical perspective of sequencing these things, ARTIO certainly doesn't want to spend every other week or month involved at this place dealing with applications to vary that, in my view, are more properly dealt with under the 2012 review exercise.
PN101
THE SENIOR DEPUTY PRESIDENT: I'm not aware of that application, Mr Ryan, and that does surprise me because normally they're brought to my attention promptly. So I might ask you this: have you any feel for what the nature of the application is that Peterson's Transport is seeking? Nature of the variation?
PN102
MR RYAN: It's to deal with how overtime is paid under the Road Transport and Distribution Award - - -
PN103
THE SENIOR DEPUTY PRESIDENT: I see.
PN104
MR RYAN: - - - which I think - - -
PN105
THE SENIOR DEPUTY PRESIDENT: Of general application?
PN106
MR RYAN: Yes, but only for that particular company in its operations, which I think is part of the argument that Mr Story makes with respect to his businesses or those who he's representing in terms of overtime versus shift work provisions.
PN107
THE SENIOR DEPUTY PRESIDENT: All right. Well, I'll obviously track that one down as soon as possible. But you're not saying, are you, that there's any question of the two being dealt with together because they're related? Or you are saying that to the extent to which anyone is asking for a revisiting of the span of hours and consequentially, the manner in which overtime works. Any of those should be heard together?
PN108
MR RYAN: Your Honour, yes, I am saying they should be heard together in 2012 under the modern award review process.
PN109
THE SENIOR DEPUTY PRESIDENT: Yes, I understand that submission. All right.
PN110
MR RYAN: I don't think that's the specific question you asked me. There may well be some degree of commonality between them, although they're coming from totally separate parts of the spectrum, if that makes sense, your Honour.
PN111
THE SENIOR DEPUTY PRESIDENT: No, I understand. All right. I'll have a look at that application as well. Mr Fagir?
PN112
MR FAGIR: Your Honour, can I just say this, and this perhaps goes beyond Mr Story's position and I put it more generally: when we ask that what we loosely described as the jurisdictional elements be dealt with first, part of the concern is that we get these applications, the applicant identifies some issue affecting employers in the industry but the connection to the modern award's objectives is obscure and perhaps, even at the point of putting on these applications, people aren't properly turning their mind to exactly what the requirement is. As a result, both the tribunals and our and other parties' time is expended dealing with applications that, on proper consideration, would not be brought.
PN113
I suppose when we ask for that issue to be grappled with first, that's part of the reason. That is, encouraging parties to articulate exactly how this application is necessary to achieve the objective.
PN114
THE SENIOR DEPUTY PRESIDENT: Yes, all right. Did you want to say something more, Mr Story?
PN115
MR STORY: Just briefly, your Honour. AFEI would submit that one of the primary reasons this application has jurisdiction is because of its similarity to another matter that's been heard by Fair Work Australia in relation to variations to achieve modern award objectives and there was a decision in 2010 - there were two decisions actually - in relation to the General Retail Industry Award that were considered by the full bench. In particular, a decision reference (2010) FWAFB 1958 and that application sought to gain recognition in the hours of work clause in the General Retail Industry Award for those bakers, baking production employees in retail outlets and it was an application that sought to gain recognition of the unique hours of work of that sector within a much wider industry on the basis that that was part and parcel of working in that industry, that there would be unique hours of work that needed to be worked in the early hours of the morning.
PN116
The full bench in that case decided to vary the General Retail Industry Award to allow shift work to be worked in the very early hours of the morning with a minimal penalty rate. So AFEI would submit that this application is coming from a very similar perspective.
PN117
THE SENIOR DEPUTY PRESIDENT: All right, thanks. Well, I'll adjourn and make some rulings on this matter in the next couple of days, provide them to you and they will be posted on the relevant web site as well. I'll now adjourn.
<ADJOURNED INDEFINITELY [10.35AM]