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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052880
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT KOVACIC
COMMISSIONER JOHNS
AM2014/234
s.156 - 4 yearly review of modern awards
Four yearly review of modern awards
(AM2014/234)
Local Government Industry Award 2010
Melbourne
5.43 PM, WEDNESDAY, 16 DECEMBER 2015
PN1
VICE PRESIDENT CATANZARITI: Thank you, I'll take the appearances.
PN2
MR M RIZZO: Yes, your Honour. Rizzo, M, on behalf of the ASU.
PN3
VICE PRESIDENT CATANZARITI: Thank you, Mr Rizzo.
PN4
MS C YOUNG: May it please the Commissioner, Young, initial C, for the USU.
PN5
VICE PRESIDENT CATANZARITI: Thank you.
PN6
MR A DANSIE: If it please the Commissioner, Dansie, initial A, from the Local Government and Shires Association of New South Wales. I also appear for the Municipal Association of Victoria, the Local Government Association of Tasmania, the Local Government Association of South Australia, the Local Government Association of Queensland, Western Australian Local Government Association and the Local Government Association of the Northern Territory, which for the purposes of today I'll refer to as the Combined Local Government Associations.
PN7
VICE PRESIDENT CATANZARITI: The Commission apologises for the delay in the start but the penalty rates case has literally just finished for today. The purpose of today is to see - the written submissions have been filed. Are there any oral submissions the parties with to make today?
PN8
MR RIZZO: Your Honour, given the hour and so forth we would rely on our written submissions unless the Bench has any particular - - -
PN9
VICE PRESIDENT CATANZARITI: The Bench has some questions.
PN10
MR RIZZO: Okay.
PN11
DEPUTY PRESIDENT KOVACIC: I've got two questions, Mr Rizzo.
PN12
MR RIZZO: Yes.
PN13
DEPUTY PRESIDENT KOVACIC: It relates to two of the areas which are agreed matters, for want of a better description, and they are firstly if I characterise it as the issue of trade union training leave and also the proposal in terms of overtime afternoon on a Saturday. Were either of those issues contested issues in the context of the making of the modern award, as part of the award modernisation process?
PN14
MR RIZZO: Your Honour, I couldn't answer that truthfully because I wasn't involved in 2009. Mr Keith Harvey was our main advocate at that stage, so I couldn't answer you precisely about that. But from my general knowledge I think the issue of the dispute training leave may have been contested and the overtime one was not, as far as I know. Unless Mr Dansie - he was there actually.
PN15
MR DANSIE: I was there. You're asking me to think back to 2009. My recollection is that there wasn't any - the parties ultimately reached agreement with the final provisions to be included in the Local Government Industry Award and obviously Lawler VP at the time, who had carriage, also there was some further changes that were included. So the final document I don't recall there being any contest in relation to dispute resolution training. I suspect that there was a discussion between the parties and we reached agreement on an overall package, which at the time did not include dispute resolution training. There was no hearing as such.
PN16
DEPUTY PRESIDENT KOVACIC: In terms of the overtime issue on the Saturday afternoon?
PN17
MR DANSIE: That was not an issue that was contested.
PN18
DEPUTY PRESIDENT KOVACIC: I could interpret that response two days, Mr Dansie, in the sense that it either wasn't an issue that was canvassed in the context of the award modernisation process, or alternatively it was one which was agreed but for some reason didn't end up in the final instrument that was made by the Full Bench.
PN19
MR DANSIE: I can't recall the precise circumstances but what I can say is that the variation that we are putting forward today, which is a consent variation, that provision is consistent with many of the pre-reform local government awards. So as to why it wasn't included in 2009 I can't recall but it certainly is consistent with the provisions that existed in many of the pre-reform local government awards.
PN20
DEPUTY PRESIDENT KOVACIC: While you're on your feet, sorry Mr Dansie, but I'm assuming that the modern award was premised on the pre-existing federal award that would have operated in Victoria.
PN21
MR DANSIE: No, no, the modern award was arrived at by looking at a whole range of the pre-reform awards and NAPSAs at the time, and in fact I'm not sure whether you've had an opportunity to view the further written submission which was provided to the Commission yesterday. I have a copy which I can hand up - or copies that I can hand up - - -
PN22
VICE PRESIDENT CATANZARITI: Doesn't this fall within a similar - you may not know this but it seems to fall within the same issues in the penalty rates case, I should say, in relation to the Pharmacy Award. Where they bought state awards together and in this transitional period there are differences and also in the restaurant and caterers, the same sort of things happened. Is that the similar path that has occurred here?
PN23
MR DANSIE: I haven't been involved in the penalty rates case, I'm sorry your Honour, so I couldn't - - -
PN24
VICE PRESIDENT CATANZARITI: It's just that the argument - one of the arguments being run of course is that because people went to a lowest common denominator in the transition, when we look at it in 2015, it's got to look through the 2015 prism not the things you may have agreed along the way - - -
PN25
MR DANSIE: I understand.
PN26
VICE PRESIDENT CATANZARITI: - - - which may cause us a bit of concern.
PN27
MR DANSIE: I see. Again, I can't recall the precise circumstance as to why we have the overtime as it currently is. What I can say quite confidently is that the provision that we put forward today is consistent with what was in many of the pre-reform awards and we as the representatives of the employers in the local government industry, are quite comfortable that over time, after 12 noon on a Saturday should be at the rate of double time.
PN28
Can I indicate also from a cost impact perspective, the employers have considered overtime on a weekend on a Saturday ordinarily is time and a half, it kicks in after the - I've just got to get the award provision. Yes, time and a half after the first two hours and double time thereafter, so invariably by the time the person gets to 12 noon they're already in the double time penalty provision anyway and so in our assessment, looking across the industry, that will have minimal, if any, cost impact on local government as a sector.
PN29
COMMISSIONER JOHNS: Yes, I just have one matter, Mr Rizzo. In the further submissions which were filed by Mr Dansie on 16 December, there's a submission in relation to the superannuation change of default fund name. It's said that the Commission has the power to do that under section 160 but notes the difficulty caused by 152(2)(c). Do the unions have a view on that?
PN30
MR RIZZO: I think our simple view would be that 160 should prevail, Commissioner.
PN31
VICE PRESIDENT CATANZARITI: We're comfortable in issuing a decision today as follows, and I'll read this into the transcript.
PN32
The Full Bench has had regard to all of the material before it, in relation to the Four Yearly Review of the Local Government Industry Award 2010. The Full Bench notes that there is a final agreement between the parties to consent variations as set out in the joint submissions filed 24 February, 4 November 2015. We also note the supplementary submissions filed on 16 December 2015.
PN33
The Full Bench further notes the agreed variations do not encompass variations that may result from the determination by the Fair Work Commission of common issues and alleged inconsistencies with the National Employment Standards. Save in respect of one proposed variation to which I return later, we are satisfied that the variations sought to be made will be made by consent. Consistent with the modern awards objective in section 134 of the Fair Work Act, it will in the local government industry ensure a simple, easy to understand, stable and sustainable modern award. It will ensure a fair and relevant safety net of terms and conditions and concern either existing term or a new term that either; must be included in the modern award under section 143 of the Fair Work Act, or to be included in the modern award under section 139(1) of the Fair Work Act.
PN34
The one matter that we are not prepared to approve in relation to the proposed variation to subclause 20.4, in relation to the change of the default fund. While the argument advanced by the associations that the Commission has the power to make the amendment under section 160 of the Fair Work Act has some merit, we think the better view is that section 156(2)(c) of the Fair Work Act prevents us from doing so. In any case, we note the relevant superannuation provisions that clause 20.4 apply to the successor of the named superannuation fund.
PN35
We approve the consent variations to the Local Government Industry Award 2010 contained in the consent variations set out in the joint variations of 24 February 2015 and on 4 November 2015 accept the proposal made in clause 20.4(h). An order to this effect will be issued in due course. Thank you, the Commission is adjourned.
ADJOURNED INDEFINITELY [5.53 PM]