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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009                                       1056556

 

COMMISSIONER MCKENNA

 

AG2018/3615

 

s.185 - Application for approval of a single-enterprise agreement

 

Application by Guzman Y Gomez Leasing Pty Ltd

(AG2018/3615)

 

Sydney

 

11.07 AM, WEDNESDAY, 31 OCTOBER 2018

 

Continued from 22/10/2018

 


PN217      

THE COMMISSIONER:  Thank you.  I will take the appearances first.

PN218      

MR P RYAN:  May it please the Commission, Ryan, initial P, appearing for the applicant with Dunn, initial M.

PN219      

THE COMMISSIONER:  Thank you.  Are you seeking permission to appear?

PN220      

MR RYAN:  If that is necessary, Commissioner.  I understand that at the last hearing on Monday the 22nd leave was granted.

PN221      

THE COMMISSIONER:  That was Mr Clarke, as the employer bargaining representative.

PN222      

MR RYAN:  I understand he was granted 596.  If that was the case, then following the principles enunciated in the appeal by New South Wales Bar Association and the Full Bench decision - - -

PN223      

THE COMMISSIONER:  Yes.  In any event, I'm satisfied given the complexities in relation to this matter - - -

PN224      

MR RYAN:  May it please.

PN225      

THE COMMISSIONER:  - - - that permission should be granted to appear.  Thank you.

PN226      

MR RYAN:  Thank you, Commissioner.

PN227      

THE COMMISSIONER:  Now, first of all, of course you have now come into the matter and I am not sure if you are fully across what occurred on the last occasion, but transcript was ordered or has been ordered but there are some corrections that need to be - there are some typographical errors in the corrections, but I can arrange to have the uncorrected version given to you so that you have a better appreciation of what was said on the last occasion, particularly in relation to my concerns with the - there might be different ways to call them - flexible part-time employees - - -

PN228      

MR RYAN:  Yes.

PN229      

THE COMMISSIONER:  - - - or however described that were really in the forefront of my concerns in relation to the better off overall considerations.

PN230      

MR RYAN:  Yes.  I am aware of those concerns, your Honour - - -

PN231      

THE COMMISSIONER:  Commissioner, yes.

PN232      

MR RYAN:  - - -and I see how you've set them out in the statement issued of yesterday evening.

PN233      

THE COMMISSIONER:  Yes.  That was in very short form.

PN234      

MR RYAN:  Yes.  We have addressed them in submissions, but I will address part-time employment with you today.

PN235      

THE COMMISSIONER:  Yes.  Now, perhaps then if you can - this late-breaking development, as I say - - -

PN236      

MR RYAN:  Yes.  What I propose to do, Commissioner, with your permission is perhaps just at paragraph 19 of the statement issued last evening is to walk you through - -

PN237      

THE COMMISSIONER:  Yesterday afternoon, yes.

PN238      

MR RYAN:  - - - those dot points.

PN239      

THE COMMISSIONER:  I beg your pardon?

PN240      

MR RYAN:  To walk you through those dot points and how we respond to them.

PN241      

THE COMMISSIONER:  Perhaps if you could first formally deal with - you might formally advise me of the - - -

PN242      

MR RYAN:  Correction order?

PN243      

THE COMMISSIONER:  Yes.

PN244      

MR RYAN:  That is the first dot point.  So in light of the statement issued yesterday and drawing the attention in regards to the inclusion of the applicant in the scope of employees to be covered by the agreement under the single interest employer authorisation, the applicant made an application to Hamberger SDP early this morning to seek a correction order and that was issued and that was issued around about 10.30 and it was forwarded to your chambers.

PN245      

The effect of that order is that the single interest employer authorisation, paragraph 4 would now read as follows.  The employees that will be covered by the agreement are those employees employed by the applicant and the employees listed in annexure A of this order, in various roles including, without limitation, fast food level employee 1, 2 and 3.

PN246      

That is the first Amendment and that would satisfy, in our submission, the concerns that the Commission had in respect to the applicant not being included in the scope of employees on the single-interest employer authorisation.

PN247      

THE COMMISSIONER:  Well, I will give some consideration to that.  At the time, all relevant steps were taken, your client was not included in that - relevantly in that order.

PN248      

MR RYAN:  Yes.  However, it is a correction order and not an amendment to include.  In our submission there would be a difference between an application to vary that authorisation to add an employer vis-ā-vis a correction by the Commission under the slip rule.

PN249      

THE COMMISSIONER:  Yes.  Well, I will give some consideration to that, but at the time relevant steps were taken Guzman Y Gomez Leasing - - -

PN250      

MR RYAN:  Was an employer.  Was an employer within the scope.

PN251      

THE COMMISSIONER:  But it's employees were not covered.

PN252      

MR RYAN:  And it would be absurd to issue a single interest employer authorisation to an employer that doesn't have employees for the purpose of bargaining.

PN253      

THE COMMISSIONER:  I have what I have before me.

PN254      

MR RYAN:  Yes.  So what we say in our submission is that the effect of the correction order should be that they were included.

PN255      

THE COMMISSIONER:  May I have a copy of the application, please, that was made to Hamberger SDP?

PN256      

MR RYAN:  I only have one printed copy with me, Commissioner, but- and it's not in order.  The application is at the back.

PN257      

THE COMMISSIONER:  All right.

PN258      

MR RYAN:  There were two attached documents to it.  The first attached document was a copy of your statement of yesterday afternoon.  So his Honour had an appreciation of the concern and the other document was the original application.  And you will see in the original application that was made pursuant to section 248 in part - I think it is part 2.2, paragraph 17 and 18 clearly contemplates in the employers to be covered and the employees to be covered it is to be the applicant and the employers listed at annexure A and then employees of the applicant and employers at annexure A.

PN259      

THE COMMISSIONER:  What I might do in those circumstances, because I have not seen this - - -

PN260      

MR RYAN:  Yes.

PN261      

THE COMMISSIONER:  I might take an adjournment.  I will arrange to have this copied and return your original to you.  At the same time I will arrange to have copies of the uncorrected transcript provided and you might wish to have a look at that as well and then perhaps give my associate a telephone call when you are ready for me to return.

PN262      

MR RYAN:  May it please.

PN263      

THE COMMISSIONER:  And if you have got a pen and paper there, my associate Ms Paris' number is 93081820.  I am sure you are fully briefed in relation to matters, but equally I think it might assist you, having only very recently come into the matter yesterday by the looks of it - - -

PN264      

MR RYAN:  Yes.

PN265      

THE COMMISSIONER:  That if you actually read what I - if you have the opportunity to read what I actually said on the last occasion.

PN266      

MR RYAN:  May it please, Commissioner.

SHORT ADJOURNMENT                                                                  [11.14 AM]

RESUMED                                                                                             [12.01 PM]

PN267      

THE COMMISSIONER:  Mr Ryan.

PN268      

MR RYAN:  May it please.

PN269      

THE COMMISSIONER:  Yes.  You've had an opportunity now to read the transcript, albeit in its unedited form with some typographical errors.

PN270      

MR RYAN:  Yes, I have.

PN271      

THE COMMISSIONER:  Very good.

PN272      

MR RYAN:  In terms of proceeding, would it be convenient to deal with the issues raised in the statement first, which will pick up issues that were raised in the transcript?

PN273      

THE COMMISSIONER:  Yes.  Let's see how we go.

PN274      

MR RYAN:  Okay.  So we've dealt with the - I don't know if the Commission has any  further queries or requires any further submission regarding the single interest employer authorisation and the correction this morning?

PN275      

THE COMMISSIONER:  I can - - -

PN276      

MR RYAN:  Take that on notice.

PN277      

THE COMMISSIONER:  Yes.

PN278      

MR RYAN:  The next issue - - -

PN279      

THE COMMISSIONER:  I should mark it, I suppose.  Now, this will be the first of the exhibits.  Exhibit 1 is an application by Guzman Y Gomez Leasing Pty Ltd concerning seeking an urgent amendment to the single interest employer authorisation earlier issued on 17 May 2018.

EXHIBIT #1 APPLICATION BY GUZMAN Y GOMEZ LEASING PTY LTD SEEKING URGENT AMENDMENT TO SINGLE INTEREST EMPLOYER AUTHORISATION ISSUED 17/05/2018

PN280      

THE COMMISSIONER:  And exhibit 2 is a correction order issued earlier today by Hamberger SDP.  Relevantly that correction order adds certain words and makes a further correction.

EXHIBIT #2 CORRECTION ORDER ISSUED 21/10/2018 BY HAMBERGER SDP

PN281      

THE COMMISSIONER:  Thank you.  That was print 701 at 938.  Thank you.

PN282      

MR RYAN:  Is this a convenient time, Commissioner, to deal with the marking of the statutory declaration of Katherine Jane Wood, dated 29 October?

PN283      

THE COMMISSIONER:  Together with all of the annexures?

PN284      

MR RYAN:  Together with the schedule which is known a schedule D.

PN285      

THE COMMISSIONER:  Attachment D.

PN286      

MR RYAN:  Attachment D, sorry.

PN287      

THE COMMISSIONER:  Exhibit 3 is the statutory declaration of Katherine with a K, Jane Wood dated 29 October 2018, together with attachment D, comprising some 263 pages.

EXHIBIT #3 STATUTORY DECLARATION OF KATHERINE JANE WOOD DATED 29/10/2018 WITH ATTACHMENT D COMPRISING 263 PAGES

PN288      

MR RYAN:  The other document, Commissioner, filed on Monday afternoon was submissions, which included four schedules.

PN289      

THE COMMISSIONER:  Just for ease of reference, although they're submissions - - -

PN290      

MR RYAN:  They're submissions.

PN291      

THE COMMISSIONER:  But I will mark them as well.  Exhibit 4 are submissions of the applicant dated 29 October, I believe, also.  Yes.

EXHIBIT #4 APPLICANT'S SUBMISSIONS DATED 29/10/2018

PN292      

THE COMMISSIONER:  In marking Ms Wood's statutory declaration, it's not my practice to cross-examine matt I am not an advocate at the Bar Table, but I refer to this in the statement.  If you would go to page 239 of the annexure?

PN293      

MR RYAN:  Yes.

PN294      

THE COMMISSIONER:  Now, that deals with - I mean, this is some kind of information sheet that was used for the purposes of speakers at the presentation, is it?

PN295      

MR RYAN:  The black box in the top half of the screen is the PowerPoint slide that would be shown.  The notes below it are the speaker's notes or presenter's notes.

PN296      

THE COMMISSIONER:  All right.  Well, I will take you to those.

PN297      

MR RYAN:  Yes.

PN298      

THE COMMISSIONER:  So what the employees were shown then is the boxed information which is junior rates which identifies the new EA percentage rates.

PN299      

MR RYAN:  Yes.

PN300      

THE COMMISSIONER:  And it identifies what the new EA rates are at under 16 years of age, 40 per cent, 16 years of age, 50 per cent and up to then 21 years, 100 per cent.  Now the modern award or the Restaurant Industry Award at under 16 years of age is 50 per cent.  At 16 it's 50 per cent.  At 17 is 60 per cent.  At 18 is 70 per cent.  At 19 is 85 per cent and then at age 20, under the modern award, the employees then go to 100 per cent, whereas under the enterprise agreement they would not reach 100 per cent until they reach 21 years of age.  And so you say that the speakers notes for the explanation of this agreement read as follows:

PN301      

The junior rates will change with percentages increasing, meaning that the full rate commences at 21 and not 20 as is the case under your current arrangements.  However, as the base rates in the EA are slightly higher -

PN302      

And that would be the percentage of the - the scale percentage of the 7 cents,

PN303      

this means that the FT/PT rates in the new EA are slightly higher for those between 16 years of age and 19 years of age -

PN304      

And then I emphasise,

PN305      

only slightly lower between 20 and 21.  Keep in mind that, moving forward, the adult rate is higher under the new EA.

PN306      

So that reference to "only slightly lower between ages 20 and 21", that's 10 per cent.

PN307      

MR RYAN:  It's 10 per cent off the relevant reference rate.

PN308      

THE COMMISSIONER:  And then written in bold, for the speaker's benefit, is text which reads:

PN309      

No one's base rate will go backwards.  However, if you are already paid at a higher rate, you will remain there.

PN310      

MR RYAN:  Yes.

PN311      

THE COMMISSIONER:  And where is that dealt with in the enterprise agreement?  I can't find any preservation clause.  Then it is written again for the information or speaker notes for the presenter:

PN312      

Casual rates under the EA are higher between 16 years and 18 years.

PN313      

Well, that's not correct.  The modern award at 16 is 50 per cent, whereas under the enterprise agreement it's 40 per cent.  And only slightly lower between 19 and 20, however the adult rate is higher moving forward.

PN314      

And then there is text which reads, in the speaker's notes, again in bold:

PN315      

If asked, comparison is - CASUAL 20-year old rate ($1.74 less under the EA)  19-year-old rate (60 cents less under the enterprise agreement)  Adult (78 cents higher under the EA)

PN316      

MR RYAN:  Commissioner, I think there is a difference not only between the percentage loadings for the junior rates, but the actual base that they're coming off, the level rates; there's a translation issue between the two awards.  So I think it's the combined effect of the difference in the quantum of the level when you translate - I will firm this up with further instructions before the end of today if it assists, your Honour, but I think there is two stages to the - to a comparison.  There is the difference in the percentage and a difference in the rate, the actual rate we're working off.

PN317      

THE COMMISSIONER:  All right.  Now, if I can go also to page 237.

PN318      

MR RYAN:  Yes.

PN319      

THE COMMISSIONER:  So following on from your information - from your submission that what is in the boxes what was shown to the employees, it's indicated in the box it was shown to the employees that the new enterprise agreement would have a rate at level 1 of $25.19.  Well, I don't think that that is the case.  Level 2, as shown to the employees, indicates that the level 2 rate would be $26.70.  I don't think that's the case.  Level 3 indicates a rate of $27.43 cents.  Again, I do not think that that is the case.

PN320      

And then in further text shown to the employees in this slide or photo projection, or PowerPoint, it says:

PN321      

Crew who are younger than 21 are paid on junior rates -

PN322      

So they would think, one presumes, that they would be getting the percentage rate amounts as identified and also that no base rates will go down.  Again, I don't see that in the enterprise agreement.  And then in the speaker's notes, not shown to the employees, it is written:

PN323      

The hourly rates in the new EA are higher with FT/PT crew positions increasing to $20.15 an hour and shift leaders to $21.36 per hour, and casual crew increasing to $25.19, and casual shift leaders to $26.70.

PN324      

MR RYAN:  Now, those last two figures you mentioned, Commissioner, $25.19 and $26.70, they match what's on the screen.

PN325      

THE COMMISSIONER:  Yes.

PN326      

MR RYAN:  Okay.  And where you mentioned earlier, Commissioner, in reference to the rates on the screen under the box, "new EA", you said, "I don't think that is the case."  You are correct, because the rates set out in the agreement are higher than that.

PN327      

The difference between the presentation and the rates at clause 17.2 is the adjustment from the annual wage review, bearing in mind that the information sessions and the process for this commenced in May.

PN328      

THE COMMISSIONER:  In May.

PN329      

MR RYAN:  Carried through June and July.  The only adjustment between the agreement that was proposed and distributed to the employees at the beginning of the process until the end was the adjustment for the annual wage review and factored that it.  So if you have a look - if I can take you to 17.2 of the agreement, there is a boxed provision and the $25.19 rate is $26.08, and then respectably for level 2 and level 3, 27.64 and 28.40.

PN330      

THE COMMISSIONER:  Yes.  Now, in relation also to the information that was provided to the employees, and again I've noted this in the statement, relevantly the comparisons seem to have been predicated on comparisons, at least in some instances, between the existing agreements.

PN331      

MR RYAN:  Yes.

PN332      

THE COMMISSIONER:  "Zombie agreements", sometimes so-called.

PN333      

MR RYAN:  Well, I think - I mean, everyone has a different flavour on "zombie", but my understanding of zombie agreements are they're pre-Fair Work Act agreements.

PN334      

THE COMMISSIONER:  All right.

PN335      

MR RYAN:  Yes.

PN336      

THE COMMISSIONER:  Well, I have read the materials that the employee applicants put on in relation to the application for the termination of the agreement and there's some explanation there about what they were being paid.

PN337      

MR RYAN:  Well, in terms of the terms, of course one of the key things that in any enterprise agreement explanation of terms, our hourly rates are going to be the key term that needs explanation.  Part-time provisions are also explained.  In some cases that incorporated overtime and things like that.

PN338      

THE COMMISSIONER:  Well, I am not sure that that's the case; at least going on the material that's before me.  And, in fact, what the information that appears to have been given to the employees indicates is that it would be of great benefit for them to have these alternative part-time work arrangements where they make themselves available for a specified number of hours.

PN339      

They don't know how many hours they are going to get apart from the stipulated in the agreement.  They might get the minimum amount of hours or they might get, let's say, 20 hours.  They have to be, in fact, available to do that and then the rosters are developed and they don't know until the roster is developed what day, what hours and the like that they are going to be working.

PN340      

Moreover, the rosters can be changed on seven days' notice.  This stands in contrast with arrangements under the fast food industry award where the employees would have the benefit of certainty as to which days, which hours and matters of that nature and if they work more hours than that, then under the modern award they would be entitled to overtime payments.

PN341      

It is being extolled as a virtue in the material that was presented to the employees that they'd be able to work other hours at flat rates and that, to me, on one view of it, is reminiscent of the old preferred hours type-approach, which has long been discredited.

PN342      

MR RYAN:  Well firstly, Commissioner, in response if I can take you to page 228 of attachment D to exhibit 3.  Page 228 talks about the part-time clause in the notes.  You will see there that it refers to explaining that hours worked outside your starting and finishing times can attract overtime.  I suppose, at this particular juncture, Commissioner, it is an appropriate time to deal with the part-time provision.

PN343      

The part-time provision is quite different from the preferred hours.  It is not a case that the part-time provision in the agreement allows you to go up and down at the whim of the employer's choice.  At the commencement of the employment relationship and this is, if I take you to clause 12.3 of the agreement at page 5:

PN344      

There must be a specification of the minimum number of hours to be worked each week.

PN345      

That is the floor now for some employees - it must be a minimum of nine for an employee.  For school age, it must be a minimum of five.  So under this arrangement an employer is going to get nine hours per week.  They might get more, whatever the number is.  The number is going to be somewhere between nine and 38.

PN346      

But whatever number is agreed at the outset of the employment relationship for the part-time employee, that's the number they get.  And that is on identical terms.  I will come to when they work hours at the moment, but the actual number guaranteed each week is on identical terms to the Fast Food Industry Award.

PN347      

So if an employer is saying the minimum number is 20, then they know they're getting 20 each week rostered and paid.  There is no ability to go down or up outside of that.

PN348      

THE COMMISSIONER:  There's a minimum floor and then there's a maximum.  Let's say it's between nine and 20.

PN349      

MR RYAN:  Yes.

PN350      

THE COMMISSIONER:  And they don't know which day that's going to be; they don't know how many hours in a particular day they would get.  Under the modern award, if you don't - if an employee's working arrangements don't meet the specifications there set out, they are entitled to a 25 percent loading because they are casuals.

PN351      

MR RYAN:  Well, if they go outside of that pattern of work under the Fast Food Award, it's paid at overtime.  So you - - -

PN352      

THE COMMISSIONER:  Yes.  If they go outside the outer reaches of the maximum hours that they'd be available - - -

PN353      

MR RYAN:  Well, it's supposed - - -

PN354      

THE COMMISSIONER:  So let's say it's more than 20 hours and then also in the modern award, and I'm only dealing here with the Fast Food Award - - -

PN355      

MR RYAN:  Yes.

PN356      

THE COMMISSIONER:  - - - because the Restaurant Industry Award only came to my attention yesterday.

PN357      

MR RYAN:  Yes.

PN358      

THE COMMISSIONER:  I might have something more to say about that.

PN359      

MR RYAN:  Yes.

PN360      

THE COMMISSIONER:  The overtime would be engaged over a working - over five days, rather than over 10 days.

PN361      

MR RYAN:  Well, it would depend if you use that provision in the - over five days or possible six.  I will address that provision a little bit later, but in terms of the under - the fundamental aspect of the part-time clause is that an employee gets a number of hours guaranteed to be paid and rostered each week.  Now it must be nine or it could be 37, but the one employee it could be 25 and for another employee it could be 12, but they get that every week.

PN362      

There's no (indistinct) hours where you get a minimum of nine and one week you've got 15 and one week you've got eight, one week you've got eight, one week you've got 13 and another week you've got three.  That's not how this agreement operates and that's clearly set out in clause 12.3.  The daily engagement is three, but the minimum hours to be worked each week must be agreed in writing up front.

PN363      

THE COMMISSIONER:  How could the employees be better off overall if under the modern award they would have the certainty of knowing which day, how many hours and matters of that nature?  And if they worked - if business exigencies were such that they were - needed to work more than those agreed written hours, they would be entitled to overtime for those hours in addition to their confirmed-in-writing part-time hours?

PN364      

MR RYAN:  They are in this agreement as well, Commissioner.  Yes, the agreement does provide the ability to provide additional hours and that will go up to 38 at ordinary rates, but that is with the agreement of the employee and similarly to the provision, the regular part-time provision has been in since the simplification case in 97.  That provision contains the ability to agree to additional hours at different times and that would attract ordinary rates as well.

PN365      

So the ability to agree to do additional hours over the minimum, whatever the minimum is agreed, whatever the fixed number - call it a fixed number under 12.3(a), you can do more at ordinary rates, with the agreement of the employee.  And as set out in the award, if that agreement doesn't occur, and as set out on page 228 of the schedule - attachment D to exhibit 3 - overtime rates would apply.

PN366      

THE COMMISSIONER:  I see.  And in relation - - -

PN367      

MR RYAN:  So the window - - -

PN368      

THE COMMISSIONER:  I am sorry.  Please continue.

PN369      

MR RYAN:  The window is really this; under the Fast Food Award and these regular patterns of work, employees can agree.  They can agree to change their days.  They can agree to change their starting and finishing times.  It is very common in a workforce which is in that 15 to 25 or 15 to 30 year age, particularly one that has a proportion of students in it.

PN370      

A student roster - student rosters and student patterns of work vary fairly regularly, depending upon student timetables at universities, semester 1 versus semester 2, the exam period (indistinct) semester 1 versus the exam period in semester 2.  So this provision is dealing with the twofold.  It's the needs of the business as well is the needs of the employee.

PN371      

The settlement of Katherine Jane Wood, exhibit 3, sets out that this arrangement would be beneficial and that's given in her experience of dealing with her workforce across this franchised network in her role as the chief people officer.

PN372      

What the employees have done, is through 12.2, which is on page 5 of the agreement - they've agreed upfront that, "My 20 hours a week", or somebody else's 25 or somebody else's 30, they can be varied within a window.  And they can - they have a say in that window.  The window - the parameters at which they can be rostered have to be agreed.  And the comparator to the award is if that exchange that is done upfront in 12.2, was done a week by week basis, it still would not attract overtime, because there is an agreed variation.

PN373      

All this agreement does is remove the requirement to agree each week to have an agreement that is upfront.  An agreement, which if it occurred each week, would not attract overtime under the Fast Food Industry Award, would not have attracted overtime under the Restaurant Award, prior to 1 January this year and would not have attracted overtime under other industry awards that have been varied (indistinct) part-time and casual employment.

PN374      

This fixed pattern of work for part-time employment can be varied, with agreement, and it won't attract overtime and quite appropriately this EA allows for that agreement upfront, but if you don't get that agreement on a particular day to go over it or you work outside that availability, overtime applies.

PN375      

THE COMMISSIONER:  The roster can be varied by mutual consent or unilaterally.  Now, how does that - - -

PN376      

MR RYAN:  On seven days' notice.

PN377      

THE COMMISSIONER:  Yes.  And how does that dovetail with the requirement concerning consultation in relation to roster changes?

PN378      

MR RYAN:  It's a common clause, even in modern awards.  It's not in the Fast Food Award, but it's to be able to facilitate both parties, the employer and the employee, to deal with situations which arise, whether it's staff leave, unexpected urgencies.  Again, staff wanting to swap off just for personal arrangements.

PN379      

THE COMMISSIONER:  I will repeat the question.

PN380      

MR RYAN:  Yes.

PN381      

THE COMMISSIONER:  How does that unilateral capacity in the fast - in your client's proposed enterprise agreement dovetail with the consultation requirements in the agreement?

PN382      

MR RYAN:  Under clause 8.

PN383      

THE COMMISSIONER:  Clause 8.2

PN384      

MR RYAN:  In clause 8.2, Commissioner.  It can work alongside it.  There is no reason why the proposed clause - I think it is 25.6.  Sorry, I withdraw that.  It's 25.5.  There is no reason why 25.5 and clause 8.2 can't operate in concert.  What it would depend upon is how drastic the particular change at a particular time was.

PN385      

THE COMMISSIONER:  Well, consultation about changes to rosters or hours of work in the enterprise agreement, contrary to - well, there is tension, I will put it that way, in relation to the ability to unilaterally change; that is, without agreement, on the giving of seven days' notice.  Clause 8.2 of the enterprise agreement says:

PN386      

Where the employer proposes to change an employee's regular roster or ordinary hours of work, the employer must consult with the employee or employees affected and their representatives, if any, about the proposed change. (b) the employer must (i) provide to the employee or employees affected and their representatives, if any, information about the proposed change (for example information about the nature of the change to the employee's regular roster or ordinary hours of work and when that change is proposed to commence) (ii) invite the employee or employees affected and their representatives, if any, to give their views about the impact of the proposed change, including any impact in relation to their family or caring responsibilities and (iii) give consideration to any views about the impact of the proposed change that are given by the employee or employees concerned and/or their representatives.

PN387      

Then subparagraph or subclause (c) reads:

PN388      

The requirement to consult under this clause does not apply where an employee has irregular, sporadic or unpredictable hours of work.  These provisions are to be read in conjunction with any other agreement provisions concerning the scheduling of work and notice requirements.

PN389      

I just don't know how the two can stand together.

PN390      

MR RYAN:  Well, firstly it doesn't apply to irregular (indistinct) predictable working hours.

PN391      

THE COMMISSIONER:  But these are people that you submit are - have those - - -

PN392      

MR RYAN:  That have a reasonably predictable hour of work, yes, near the window, yes.  Just one moment, if I can just clarify - - -

PN393      

THE COMMISSIONER:  I'll leave that one with you.  There's just something else and it's not dealt with in the statement and it's perhaps a little bit out of left field, if I can put it this way.  I see that you're making another proposal - a proposed undertaking concerning superannuation.

PN394      

MR RYAN:  Yes.

PN395      

THE COMMISSIONER:  Some of these employees are covered by the Restaurant Industry Award which has a range of superannuation funds including, for example, Australian Super and other industry funds.  The enterprise agreement, as it is before me, has as its first default fund, MLC Business - I'm sorry, clause 21, point one reads as follows:

PN396      

The employer will contribute superannuation on behalf of all eligible employees to either of the four awards below, as selected by the employee in accordance with applicable superannuation guarantee legislation.

PN397      

The first one is MLC MasterKey Business Super.  So, they have to select one of the first four, you say, or the agreement says?

PN398      

MR RYAN:  Or any other super fund they want.  A modern award or an industrial instrument under the Fair Work Act cannot take away an employee's right to choose.

PN399      

THE COMMISSIONER:  I know, but that's not what this agreement specifies.  Moreover, if I could just finish.  The Restaurant Award has much longer lists, so you might have had somebody who was in Australian Super and if they're just looking at the enterprise agreement and say I have to take my money out or they get told by the employer, so we know it's a different position, we know that.

PN400      

MR RYAN:  Yes.

PN401      

THE COMMISSIONER:  And told, we're going to put your money in - you have to choose one of these four and the first one is MLC MasterKey Business Super?

PN402      

MR RYAN:  The issue of superannuation, how we propose to deal with that is by way of an undertaking.  The undertaking is in paragraph 6 of schedule 4 of exhibit 4.  That essentially restores - - -

PN403      

THE COMMISSIONER:  Sorry, I see a colleague shaking his head as he's sitting next to you, at what I'm raising.  You might wish to say something to Mr Ryan if you have a concern about what I'm saying.

PN404      

UNIDENTIFIED:  Excuse me Commissioner, I was approached in relation to a matter, not what you were saying but what my friend was raising with you.

PN405      

THE COMMISSIONER:  I see.

PN406      

MR RYAN:  What we're proposing to do is provide an undertaking in relation to superannuation and that's set out on pages 21 of schedule 4 to annexure 4.  That undertaking essentially puts in place the - we're acutely aware of the date that's looming in relation to an order made by his Honour Hamberger SDP in relation to Guzman Y Gomez 2012 agreement.

PN407      

THE COMMISSIONER:  That's why I issued the statement yesterday because I'm acutely aware of it as well.

PN408      

MR RYAN:  Yes, and we're trying to assist the Commission as best we can to understand and address the concerns and if there is a concern about how that superannuation clause is drafted, what we're proposing is an undertaking in schedule 4.  So it starts about point 7 of the way on page 21.

PN409      

Importantly, that is it's largely the superannuation clause from the Fast Food Industry Award, so it's like for like, modified to refer to the agreement and the relevant clauses in the agreement as vis-ā-vis the award.  It also adds in a couple of super clauses.  We would say - - -

PN410      

THE COMMISSIONER:  So 21.4 the proposed undertaking replicates the - you've inverted the order of the superannuation funds.  It's Rest, SunSuper, Intrust Super, MLC MasterKey Business Super which was at the head of the list before and then Host Plus.  For the employees who are under the Restaurant Award, what would happen to them if they were in a superannuation fund different from one of those?

PN411      

MR RYAN:  (f) or (g).

PN412      

THE COMMISSIONER:  (f) or (g) in your proposed undertaking are you referring to?

PN413      

Any superannuation fund to which the employer was making superannuation contributions for the benefit of employees before 12 September 2008.

PN414      

MR RYAN:  It's been largely extracted from the Fast Food Industry Award.  So if (f) needs some tailoring to make it clear that employees can have a choice of fund.  We're not trying to, in any way shape or form, curtail or constrain where superannuation goes.  We're trying to balance something with the requirements to have a MySuper product and that employees can have their choice.

PN415      

THE COMMISSIONER:  I'm sorry that was a diversion.

PN416      

MR RYAN:  Sorry, I think we're on part time.

PN417      

THE COMMISSIONER:  Yes, please.

PN418      

MR RYAN:  So look, I think it would be fair to say that the whole concept of part time employment is in a period of transition at the moment.  The review of modern awards has varied part time employment in relation to some service sector industries.  If I could take you just to this and I do so knowing and being acutely aware that your assessment has to be agreement versus Fast Food Award as it is now, not as it may be down the track.

PN419      

But in terms of just dealing with that regular part time clause, in relation to service sectors and really the hospitality and club sector and they're a little bit away from fast food, but they are akin in certain respects and there is a - for want of a word - a breach to this sector through the decision of the Full Bench.

PN420      

What they found in relation to clubs and hospitality was that the part time provision which currently covers - - -

PN421      

THE COMMISSIONER:  Do you have this - I have it of course, but if you'd just give me the citation of the paragraph number that you're referring to please?

PN422      

MR RYAN:  Sorry, Commissioner.  The decision is (2017) FWCFB 3541 - AM2014/196 and AM2014/197.

PN423      

THE COMMISSIONER:  Yes.

PN424      

MR RYAN:  Now I'm summarising some of the conclusions of the Full Bench in that review.

PN425      

THE COMMISSIONER:  From about paragraph?

PN426      

MR RYAN:  Probably looking from 516 through to about 530.  What they said at 516 is that the evidence makes it clear we conclude that the current part time employment provision in the Hospitality Award is little used and proven to be ineffective.

PN427      

At 524 the Full Bench said:

PN428      

We consider that the evidence demonstrates that the current part time provision of the Hospitality Award is close to being a dead letter because it does not provide a workable model for the regulation of part time employment in the sector covered by the award.  It does not properly bear upon or connect with the circumstances of that sector.

PN429      

At 525, this was an important part.  The Full Bench said:

PN430      

It's clear that greater flexibility in the rostering of hours is necessary for part time provisions in these two awards.

PN431      

That's been the Hospitality Award and the Clubs Award, although there's proceedings before the Commission presently to revoke the Clubs Award.

PN432      

THE COMMISSIONER:  I lose track, there's so many applications.

PN433      

MR RYAN:  It's been a long five years, Commissioner.

PN434      

In stating this conclusion, the Full Bench said we do not intend it apart from the general principle stated by the Australian Industrial Relations Commission Full Bench in an award modernisation decision of 4 September 2009, that as a matter of concept and principle, part time employment must carry with it a degree of regularity and certainty and that it should be akin to full time employment in all respects, except that the average weekly ordinary hours are fewer than 38.

PN435      

The bridge that I referred to earlier is at paragraph 538.  What they said following their findings in relation to the hospitality industry and Registered and Licensed Clubs Award, they referred to an application that was made in relation to the Restaurants Award that was withdrawn just prior to commencement of the proceedings.

PN436      

They went on to say:

PN437      

That notwithstanding that, we consider it likely that the circumstance of restaurant and catering industry with respect to the workability of the current part time provisions are substantially the same as those of the hospitality and club industries and we form the provisional view that they should go into the Restaurant Award as well.

PN438      

That's what happened.  Now there are similarities that exist between hospitality and restaurant award in my submission would also exist between restaurant and fast food.  However, having said all that, we appreciate and we know up front, right in front of us, what we're dealing with isn't something that's in those sector awards, isn't something that might be in the Fast Food Award, it's what's in there now.

PN439      

As I said before, what the employees have agreed under this provision - they're still getting a fixed number of hours per week, they can't go down.  It can't go up and if it does go up, it goes up with overtime unless - - -

PN440      

THE COMMISSIONER:  Now overtime, if it's at the outer parameter of the identified hours that have been - so using that example of between 9 and 20, if it went above 20, that's when overtime would be engaged.

PN441      

MR RYAN:  Not in our submission.  Not in our understanding.  Not in the way the agreement operates on its terms.  I'll take you to it.  This is an important arrangement for the applicant.  Just one moment.  We pick up from the Fast Food Award the reasonable predictable hours of work.

PN442      

12.3   At the time of first being employed, the employer and the part time employee agree on a pattern of work specifying the hours of work.

PN443      

As I said, that might be 20, it might be 25.  But it can't deviate.  It can't go down.  The minimum of 9 hours is just the minimum that you must get each week.

PN444      

THE COMMISSIONER:  Except it might be nine hours on a Saturday.

PN445      

MR RYAN:  If that's what the employee says. It might be someone who is using part time employment as a second job and says I'll work - it could be school student, it could be anything.  But it could be one nine hour day, yes, because that's the day I'm available.  But they can't go down below nine.  But if the number of hours was 15, let's say they were doing two, a seven and an eight, or three fives, they can't go below 15.

PN446      

So the whole preferred hours thing that they can go down to the floor of nine and then back up again at the whim of the roster each week, doesn't exist in this agreement.

PN447      

The second point to go up, you can't go either over.  If you do, say if you take your 15, take you 20, whatever the number is, if you go over it, you're in overtime territory unless the employer agrees.  That is, in my submission, identical to the provision in the Fast Food Industry Award - overs above what their fixed weekly amount might be.

PN448      

That's set out, at 12.4 deals with going over the hours where there's agreement and 12.8 deals with second sentence:

PN449      

All time worked in excess of the hours as agreed under 12.3 and 12.4 or varied under 12.5 and roster cycle at 25.5 will be overtime and paid for the rates prescribed in clause 26.

PN450      

The only real change, Commissioner, between the agreement's part time employment provision and the Fast Food Award is that rather than agree on a week by week basis either initiated by the employer or initiated by the employee, there's an agreed parameter up front that you can do it in, that suits both.

PN451      

If in the absence of doing it up front under 12.2 you did do it on a week by week basis, overtime wouldn't apply under the award because you've got the agreement.  The relevant provisions in the Fast Food Award.  Do you have a copy of that?

PN452      

THE COMMISSIONER:  I know the provision.  I've been looking at it since McDonalds.

PN453      

MR RYAN:  We've got reems here, Commissioner, but the relevant provision is 12.3, 12.4.  Any agreement that varies the pattern of work in 12.2 results in a new pattern of work at ordinary rates.  That pattern of work can change in a variety of ways.  It can be days of the week, it can be starting and finishing times.  It can be global numbers per week going up or down, under 12.3 and 12.4.

PN454      

With this agreement, we say you get your numbers each week, you've agreed not that they go up, not that they go down - that's dealt with elsewhere.  What you've agreed is just that where your 20 hours or where your 15 or where your 18 fall within that week, they'll fall within your availability; what you've permitted us to do.  But if we go outside of that, if we go outside of your agreement, we're on overtime rates.

PN455      

THE COMMISSIONER:  I think we're both saying the same thing.

PN456      

MR RYAN:  I think we're there.

PN457      

THE COMMISSIONER:  No.

PN458      

MR RYAN:  Not sure?

PN459      

THE COMMISSIONER:  In your client's agreement, at 12.3 the agreement reads:

PN460      

At the time of first being employed, the employer and the part time employee will agree in writing on a pattern of work specifying at least the minimum number of hours to be worked each week within the employee's agreed availability.

PN461      

It says that the minimum hours must be at least nine hours a week and then five for school children and then there's the minimum engagement of three hours.

PN462      

MR RYAN:  And the daily engagement matches on all fours with the award.  So, the minimum numbers worked each work is in (a).  It's conditioned by that minimum being at least nine, which is more favourable than the award.

PN463      

THE COMMISSIONER:  And it could be up to 37 on your submission?

PN464      

MR RYAN:  It could be, yes.  It could be 37 and 59 minutes, but it must be at least nine.  There is I suppose Commissioner, in the Fast Food Award there is an implied minimum.  There's no minimum number of hours that the 12.2 pattern of work must meet, but there is a minimum daily engagement.  So if there was one shift within that pattern, it has to be three hours, so there's an implied minimum of three hours, but for the applicant's EA, there is clearly a minimum of nine.  Where that goes for each individual employee, will depend on their personal circumstances.  That operates in the same way as 12.2 in the award.

PN465      

If we used employee A, B and C, one employee could be on the minimum nine, one employee could be on 35 and one employee could be on 26.  Those hours, how they're rostered, fall within the employees' availability.  The range in which that employer said I give you up front permission, rather than week by week permission to place those hours within those days and the range of hours within those days.

PN466      

THE COMMISSIONER:  I hear the submissions that you've put forward, if I can put it that way.

PN467      

MR RYAN:  Could I contrast it?  It might be a convenient time, Commissioner, for me to hand up a bundle of cases which deal with - one of which is relevant to this.  I've tried to keep the bundle small and I've double sided them in the interests of looking after the environment and my own back as I made my way down here.

PN468      

THE COMMISSIONER:  Well, before we go to those cases, I might just take a 10 minutes break and we'll resume at one.

PN469      

MR RYAN:  May it please.

PN470      

THE COMMISSIONER:  Thank you.

SHORT ADJOURNMENT                                                                  [12.50 PM]

RESUMED                                                                                               [1.01 PM]

PN471      

MR RYAN:  Commissioner, I think just before that break I was going to take you to some cases.  Bear with me for one second.  Firstly, in our submissions dealing with part time employment, paragraph 30 at the bottom of page 7.

PN472      

THE COMMISSIONER:  Would you just give me a moment to locate that please?  Thank you, I have it now.

PN473      

MR RYAN:  I suppose the exchange prior to the adjournment played out what we've summarised in paragraph 29.  In paragraph 30, we talk about the interaction between the overtime provision, the part time provision and the rostering provision, but together in the agreement they provide for a particular pattern of ordinary hours and preserve in a modified form the requirement for mutual agreement in respect to patterns of ordinary hours as well as the entitlement to overtime.

PN474      

So what we've cited there is the decision concerning an enterprise agreement in relation to Cosco.  Importantly, and as the Commission may appreciate, we can distinguish the part time employment provision in the agreement from the part time employment provision that were proposed in other agreements and which we've set out in paragraph 31.  The AJ Convenient Services - - -

PN475      

THE COMMISSIONER:  Yes, the 7-Eleven Full Bench decision.

PN476      

MR RYAN:  The 7-Eleven and Eagle Eyes as well.

PN477      

THE COMMISSIONER:  I haven't read that one, or if I have, I don't immediately recall it.

PN478      

MR RYAN:  But I don't think I've got an extra copy of that one.

PN479      

THE COMMISSIONER:  That's all right I'll read it in due course.

PN480      

MR RYAN:  At 36 and 50, the concern of the Commission was that with Eagle Eyes under the agreement appears the hours a part time employee can be varied without agreement.

PN481      

THE COMMISSIONER:  I see, just for my own information, who was the member in Eagle Eyes?

PN482      

MR RYAN:  Gregory C, and the agreement was ultimately refused.  But with part time employment the term of the agreement permitted the variation for the hours of a part time employee without agreement.

PN483      

THE COMMISSIONER:  I see that that was a 2018 decision.  Is it comparatively recent?

PN484      

MR RYAN:  January.

PN485      

THE COMMISSIONER:  January, then you.

PN486      

MR RYAN:  The citation is in our submissions.

PN487      

THE COMMISSIONER:  I see that, thank you.

PN488      

MR RYAN:  Another relevant case and what's instructed or contained in the Bench Book - and this is the Bench Book published on 31 July 2017 edition.

PN489      

THE COMMISSIONER:  This is the Commission's Bench Book you're referring to, thank you.

PN490      

MR RYAN:  The Commission's Bench Book.  They give an example of a class of employees not better off overall, as part time employees.  There is a well, a one page decision of the Full Bench which I've handed up amongst those decisions, Commissioner.  It's the appeal by Roseneath Aged Care Centre.  The citation is (2013) FWCFB 7430.

PN491      

It's very light on, but at paragraph 3, there was a proposed undertaking that part time employees will not be directed to work additional hours in the absence of agreement from the employee.  The real nuts and bolts of this case are set out in the Bench Book at page 136.  In that case, the terms of the agreement were considered not to be consistent with the awards which provide an employee directed to work outside his or her agreed hours and was paid at overtime rates.  So, in this case - - -

PN492      

THE COMMISSIONER:  Yes, I don't - - -

PN493      

MR RYAN:  We can distinguish this case, Eagle Eyes and 7-Eleven from what is put up in the agreement before the Commission at the moment.

PN494      

THE COMMISSIONER:  Because I was in that industry for a while, there's many issues around part time work, I know that from my past experience.  More particularly, I see it's the nurses and the HSU, so the relevant modern award for the health services members differs in relation to part time work arrangements.

PN495      

MR RYAN:  Yes, I accept that, but in terms of - at least from the agreement, the agreement that was put up in this decision in Roseneath, was that part time aged care and health professional employees could be directed to work outside of their agreed hours at ordinary rate.  That can be easily distinguished from what we've put up where any increase above what's been agreed at the outset by agreement, is either by agreement or at overtime rates and that's clear.

PN496      

THE COMMISSIONER:  What is usually said in that industry, because I've encountered provisions of that nature is that the employer will ordinarily say, and given the nature of these sorts of types of facilities, is that - I've heard it again and again in proceedings that it would be cheaper for us to engage a casual at 1.25 rather than pay overtime.  I'm not sure of the exact circumstances of this one, but I'll have a look at what's in the Bench Book or have a look at the decision.

PN497      

MR RYAN:  We have provided in exhibit 3 - I'll withdraw that Commissioner, exhibit 4, at schedule 2, a comparator.

PN498      

THE COMMISSIONER:  Schedule 2.

PN499      

MR RYAN:  Exhibit 4, sorry Commissioner.  Page 14 of exhibit 4.

PN500      

THE COMMISSIONER:  Thank you.  But that refers only to the Fast Food Industry Award, yes?

PN501      

MR RYAN:  Which is the relevant award for the assessment of the Better Off Overall Test.

PN502      

THE COMMISSIONER:  Well, some employees were covered by the Restaurant Industry Award.

PN503      

MR RYAN:  It might be an opportune time to move into that part.

PN504      

THE COMMISSIONER:  Well, I'm most concerned about the form F17, statutory declaration.

PN505      

MR RYAN:  Yes.  Would your Honour like me to address you on that now?

PN506      

THE COMMISSIONER:  Well, I see what is - and I've referred to it in the statement, what is written in the statutory declaration before the Commission.  The fact is, one presumes, that those employees' pay slips, if they were in accordance with the requirements, would have identified the Restaurant Industry Award.  That was what they were being employed under.  Now, I've seen the result of some of the restaurants, the Guzman Y Gomez restaurants and now have the uber or other such organisations collecting food for home delivery.  You say that that moves those restaurant employees into the Fast Food Industry Award.

PN507      

I'm not sure that now, or this application is the occasion to be debating what was the proper award coverage for those employees.  The fact of the matter is, that at least some employees were provided with comparative information in relation to the Restaurant Industry Award, presumptively on the basis that is what was covering them.  None of the information that was filed in support of the application referred to the industry award and an analysis has not been undertaken by me.

PN508      

I mean I went through some of the matters myself, like the junior rates, which is what concerned me about that information on I think it was page 237, that it had been provided to the employees - quite misleading.

PN509      

MR RYAN:  Well - - -

PN510      

THE COMMISSIONER:  Mr Ryan, I appreciate - you have my sympathies.  You've been in this matter for about 24 hours, so nothing that I'm saying is any personal criticism of you.

PN511      

MR RYAN:  None is taken, Commissioner.

PN512      

THE COMMISSIONER:  In fact, I'm indebted, given I know your vast industry experience in relation to these matters.

PN513      

MR RYAN:  Thank you.

PN514      

THE COMMISSIONER:  I'm being very much assisted by what you're saying and being taken to cases and matters of that nature, thank you.

PN515      

MR RYAN:  I appreciate the Commission's comments.

PN516      

THE COMMISSIONER:  We'll, they're true.

PN517      

MR RYAN:  Look, in the context of 17, and presumably, I think the Commission's concern is at point 3.1 at least for the Better Off Overall Test.

PN518      

THE COMMISSIONER:  Thank you.  Yes, the question in the form F17 asks:

PN519      

List the modern awards, if any that currently cover the employer and any of the employees covered by this agreement.

PN520      

The only award that is identified is the Fast Food Industry Award 2010.

PN521      

MR RYAN:  It is in the context - well, in the context of the Better Off Overall Test, it's the instrument which would be relevant to the work performed under the agreement.  So, if I could take you to - and that's where that question arises, but section 193.4 deals with award covered employees, 193.5 deals with prospective award covered employees.  Subparagraph 4(b)(iii) talks about the relevant modern award, the test time being the award that covers the employee in relation to the work that he or she has performed under the agreement.  That is the same in relation to prospective award employees.

PN522      

In the explanatory memorandum, it was quite clear in relation to what was then in the bill, clauses 193.4 and 193.5 that 193.4 would provide that an award-covered employee employed at the test time is covered by the agreement and is covered by a modern award that is in operation and covers the employer.  The modern award must cover the employee in relation to the work that she or he is to perform under the agreement.  It's similarly worded in relation to prospective award employees in 193.5.

PN523      

Now, the identification of awards BOOT has come up.  If I could - I'm just going to refer to the Bench Book Commissioner.  Firstly, page 138 states:

PN524      

To determine the award that covers an employee it may be necessary to examine the major substantial and principle aspect of the work performed by the employee at test time, including the amount of time spent performing particular tasks, the circumstance of the employment and what the employee was employed to do.

PN525      

The question is one of fact to be determined by reference to the duties actually attached to the position rather than its title.

PN526      

If I can then take you to page 128.  Page 128 references one of the decisions I handed up earlier, Commissioner, which is the decision Australia Western Railroad Pty Ltd T/A ARG - A QR Co re Australia Western Railroad (Western Australia) Rail Operations Enterprise Agreement 2011.  The reference is (2011) FWAA 8555, a decision of Fair Work Australia.  Williams C was the member.  At paragraph 5 of that decision it state that:

PN527      

The question posed by the Better Off Overall Test is not whether each employee is better off under the agreement compared to their particular or existing working arrangements, but whether they would be better off if the agreement applied rather than the relevant modern award.

PN528      

That decision of Williams C is cited in the Bench Book at page 128.  So, the question becomes, for the purposes of assessment of the agreement, is it the Restaurant, is it the Fast Food or is it both?  In our submission for the reasons that we follow, it is the Fast Food Industry Award.

PN529      

THE COMMISSIONER:  Mr Ryan, I have evidence before me that employees, presumably employees whose pay advices identify the Restaurant Industry Award were provided with comparative information.  It's going to be a matter of - I can put it this way for want of a better description, jurisdictional fact as to whether particular restaurants were really covered by the Fast Food Award or the Restaurant Award.  I just - more particularly in the time sensitive issue of this matter.

PN530      

It is not satisfactory; it is not satisfactory for a form F17 to identify only the Fast Food Industry Award when I now have evidence before me of information being provided to employees as to their status under the Restaurant Industry Award and the proposed agreement.  It's just not satisfactory.

PN531      

MR RYAN:  And while that may be the case, the pre-approval steps in terms of the explanation of terms and the impact of the agreement compared the Restaurant Award to the GYG agreement.

PN532      

THE COMMISSIONER:  Yes, but with the other employees, the comparison was with the expired enterprise agreements and the proposed agreement.

PN533      

MR RYAN:  Yes, of course, it was with the particular industrial instrument which was applicable in each particular employee scenario.

PN534      

THE COMMISSIONER:  The comparison is with the award, not with an expired agreement.  I have to qualify that, because most employees, if they've been working for an organisation for a while, they're going to be more interested, I suppose, in how is this going to differ from what my current situation is and usually it's, what's that new rate of pay going to be?

PN535      

MR RYAN:  And that is the method they adopted in terms of, it wasn't adopted, it's just saying you go from A to B.  It was the method to adopt it to illustrate it to the employees the impact and the terms and how they operate of this agreement, vis-ā-vis the current positions.  So, in terms of coverage however, going forward with this agreement, it's solely on fast food.

PN536      

THE COMMISSIONER:  Well that's your submission.

PN537      

MR RYAN:  It's our submission, it's based on the evidence.

PN538      

THE COMMISSIONER:  Well, I don't know.  I know that I now have evidence of employees being provided with comparative information concerning the Restaurant Industry Award.

PN539      

MR RYAN:  Going into an agreement based on the Fast Food Award.  See, one of the - - -

PN540      

THE COMMISSIONER:  And again - and I'm sorry to interrupt you, but you would be aware that Mr Ryan with your experience, there's been case after case, usually where there's a contradictor with an employer saying it should be such and such an Award and typically a union saying no, that's the wrong reference instrument.  It should be a different one, the one that we contend for.

PN541      

MR RYAN:  If I could take you to - do you have a copy of the Restaurant Industry Award your Honour?

PN542      

THE COMMISSIONER:  I do.

PN543      

MR RYAN:  An important feature of modern awards is within the coverage clause there is a provision which - and in both the Restaurant Award and the Fast Food Industry Award, it's set out at 4.7.

PN544      

THE COMMISSIONER:  Yes.

PN545      

MR RYAN:  Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed and the environment to which the employee normally works.  Now, it's an interesting concept whether coverage of a modern award can change and certainly, in our submission at 4.7 allows it.  Other environments that change - or 4.7 recognises that it might occur.

PN546      

There have been circumstances where liquor licensing development consent conditions, trading conditions can change award coverage in terms of changing a premises from X to a premises Y.  In the Restaurant Industry Award, the award is described as covering employers in the restaurant industry.

PN547      

We then go to clause 3, the definitions and restaurant industry means:

PN548      

Restaurants, reception centres, night clubs, cafes and roadhouses and includes any tea room, café, catering by a restaurant business but does not include a restaurant operated in or in connection with premises owned or operated by employers covered by any of the following awards.  Hospitality, registered licensed clubs or fast food.

PN549      

With the Fast Food Industry Award, also an industry award, it covers employers throughout Australia in the Fast Food Industry.  Fast Food Industry is defined in clause 3 as:

PN550      

The industry of taking orders for and/or preparation and/or sale and/or delivery of:

PN551      

Meals, snacks and all food and all beverages which are sold to the public primarily to be consumed away from the point of sale.

PN552      

Take away foods and beverages packaged, sold or served in such a manner as to be allow their being taken from the point of sale to be consumed elsewhere, should the customer so desire; and

PN553      

All food and/or beverages in food courts and all shopping centres and/or in retail complexes excluding coffee shops, cafes, bars, restaurants providing primarily a sit down service inside the catering establishment.

PN554      

The change in circumstances and the environment in which these stores are operating was set out in exhibit 3 at paragraph 22 at the top of page 6.  In our submission, the changing environment relating to online ordering and home delivery services and whatever, that evidence shows that the environment that they're operating in now, is primarily that the food these restaurants are producing and selling to the public, is being primarily consumed away from the business.

PN555      

THE COMMISSIONER:  Yes, if I could take you to the enterprise agreement at clause 16.2 as to the levels.  This is on page 8 of the agreement.

PN556      

All crew member positions within a Guzman Y Gomez restaurant, a level 3 restaurant manager.  An employee appointed by the employer to be in charge of a Guzman Y Gomez restaurant.

PN557      

MR RYAN:  I think if one was to google a McDonalds website, they'd probably describe themselves as McDonalds family restaurants.

PN558      

THE COMMISSIONER:  Point taken.

PN559      

MR RYAN:  So, I think a name is one but thing.  But you've got to look through it and I suppose in that sense, it's an opportune time to move on to an appeal by the AWU.  That is one of the decisions I've handed up, Commissioner.  It's titled Appeal by The Australian Workers' Union (2013) FWCFB 2894.  To assist you Commissioner, this decision is also citated or referred to in the Bench Book at page 139.

PN560      

It was, I suppose an issue of whether the on-site award applied or whether it was the Manufacturing Award.  What the Full Bench said at 27 is:

PN561      

It is strictly unnecessary that we consider the basis that the Commissioner found that the On-site Award did not apply or indeed whether the On-site Award would apply if the interaction provisions did not render it inapplicable. Whether Coffey is an employer in the building and construction industry depends on an analysis of the services it provides, the relationship between those services and the construction activity and the application of the definitions in the On-site Award.

PN562      

Here we have an award which says if you're producing food, beverage or meals that's primarily for consumption away, then that's going to trigger the Fast Food Award being the applicable award.  That's in the definition of the Fast Food Industry Award.  We could very well be having this discussion if the restaurant award applies in some instances and not in others.  One week here; the following week we could be having the alternate discussion with the regulator.  That's the manner in which we're operating.

PN563      

THE COMMISSIONER:  Can I just come back to the evidence that I have before me now?

PN564      

MR RYAN:  Yes.

PN565      

THE COMMISSIONER:  Some employees were covered by the Restaurant Employees Award.  There would have been no cause to provide an explanation to them about proposed changes, were that not the case.  That is a matter of fact and now what's being advanced now is a contention that well, I'm not saying this in any pejorative way to you, Mr Ryan, that we actually think we should have been employing them under a different award.  But they weren't employed under the Fast Food Industry Award

PN566      

MR RYAN:  Well, it's not something we're saying that goes back forever and a day.  It's something that moves with the changing environment.  For example, wearing a different hat.  There is in the inner west of Sydney a venue which had a restaurant licence it applied for and was granted a hotel licence on a particular date which fell mid-week in a particular pay week in December, three or four years ago.

PN567      

That, combined with some other change in activities, rendered the Restaurant Industry Award no longer being applicable to that business and the hospitality industry generally applying.  Award coverage can change depending on the changing environment.

PN568      

Now, the evidence of Katherine Wood, is that this is something that's occurred increasingly because you've got to hit that threshold in the Fast Food Industry Award and that is, it's primarily.  Primarily, once your custom and environment you're operating changes from take away from being secondary or tertiary in nature to other forms of dine in, home delivery, whatever.  Once it's consumption away becomes the greater component of the business, it is, in our submission the Fast Food Industry Award.

PN569      

Perhaps that could have been better reflected in the 17.  Perhaps with the benefit of 50:50 hindsight, an assessment about that could have been made beforehand.  But there is no, in our submission, no issue with going forward and in the absence of this, let's pause on this application for one moment, Commissioner, and just say, let's hypothetically say that this application was dismissed and let's say on 15 November, 14 November, certain venues revert back to the relevant award.

PN570      

For those who are under the Restaurant Award, it might be the employer who would have to say well, we're going to have to transition onto this award, Fast Food, because of our changing circumstances over the last 12 months.

PN571      

THE COMMISSIONER:  But that transition hadn't occurred at the time the employees were being given this information.

PN572      

MR RYAN:  Well, the information they got was a comparison between an agreement which is largely based on the Fast Food Industry Award vis-ā-vis the Restaurant Award.  I mean, one sits down - the text and the syntax is amended here or there in a few parts.  The part time clause is different, but not in effect but we've covered that.  There's a rostering clause in there which we have to come back, that isn't featured in the Fast Food Industry Award.

PN573      

There's a few other bits and pieces, but by and large, the agreement is almost identical in its effect to what's in the Fast Food Industry Award.  I know what you've said about allowances last week and I'll address that later.  But by and large it's the same and the presentation they got was in the context of you're here now, this is where we're going with the agreement and this is how it compares, this is how the terms affect you.

PN574      

In terms of pre-approval steps, there was nothing done, no step not take through what's occurred that would render the agreement not being able to be approved on the basis of pre-approval steps.  Yes, the F17 could have included restaurants, but the explanation is set out in the evidence.

PN575      

THE COMMISSIONER:  Yes, on that topic, do you have a copy of the notice of employee representational rights for the company I identified in the statement of Pampana?

PN576      

MR RYAN:  It's on my list, Commissioner.  This is the appointment of Ross Clarke?  Sorry, I've got the wrong thing.  Pampana, okay.

PN577      

THE COMMISSIONER:  I just interpose there, because you're talking about pre-approval status.

PN578      

MR RYAN:  Yes.  Pampana, no notice of representational rights was issued by Pampana and none has been provided.  They don't have any employees.  So, they didn't have any employees, the reality of the situation Commissioner, is that they didn't employ any relevant employees to be covered by the agreement.  They didn't actively participate in any approval steps.  In essence, their only involvement in these proceedings to date, tend to be listed on the single interest employer authorisation.  They did have employees I understand, but there was a change.

PN579      

I have a statutory declaration of a director of Pampana Holdings which explains that as at 25 May, Pampana Holdings has not and does not employ any employees who will be covered by the proposed enterprise agreement.  Because of that, they do not involve itself in any pre-approval steps taken because there just wasn't anything to do.  You can't give a notice of representational rights to employees you don't have.

PN580      

THE COMMISSIONER:  So they're using this as a mechanism - a type of greenfields agreement?

PN581      

MR RYAN:  No.

PN582      

THE COMMISSIONER:  Well, it couldn't have been a greenfields.  I don't understand it; I'm perplexed.

PN583      

MR RYAN:  No, they're not.  Essentially, they had a change in their employment situation.  In reality they should have been struck off.

PN584      

THE COMMISSIONER:  They weren't.

PN585      

MR RYAN:  They weren't.  We can't force them.  What we can do, Commissioner, what we can do with this, because there are no employees affected and the fact that they haven't taken a step that they couldn't take, because they had no employees to hand out those representational rights to, it shouldn't, in our submission, and there's no provision requiring to unravel this for the balance of the employers.  If it gives the Commission comfort, there is a way of dealing with this.

PN586      

It's readily apparent, that if this agreement is to be approved, it will have to be approved with undertakings.  The scope of those undertakings, I think we're getting closer to.  But if that was the case, any employer in the single interest employer authorisation that did not sign those undertakings because it is a requirement that they do, would have to have the agreement refused in relation to them.  That means Pampana would not be able to take advantage of this agreement or use the agreement in a greenfields way or any other way.  It just can't happen.

PN587      

THE COMMISSIONER:  The form F17 indicates - the statutory declaration indicates that all employers took the steps described within that statutory declaration.

PN588      

MR RYAN:  To the best of their knowledge and belief.  It was only brought to our attention following.

PN589      

THE COMMISSIONER:  They were issued by head office, if I can put it that way.

PN590      

MR RYAN:  Yes, but they didn't go anywhere near any employees.  There were no employees at Pampana at the time of issuing.

PN591      

THE COMMISSIONER:  It's a query I raised on the last occasion with there being issued individually by the franchisees, or was it the head office operation, corporate operation.  It was head office that issued.

PN592      

MR RYAN:  Through the VIVA GYG network, yes.  But there were no employees at that point.

PN593      

THE COMMISSIONER:  Well head office would have known that if they didn't send it to the employees.

PN594      

MR RYAN:  It's another issue.

PN595      

THE COMMISSIONER:  Head office, if I can put it generically, knew what was going into the form F17.

PN596      

MR RYAN:  Yes.

PN597      

THE COMMISSIONER:  Mr Ryan, there's so much that's arising now in relation to this agreement and I have another matter listed at 2 o'clock.  It might be that we have to open our diaries and look at another time.  I'll order transcript of today's proceedings to try to better absorb some of the matters that you've been raising.

PN598      

MR RYAN:  May it please.

PN599      

THE COMMISSIONER:  It may be that - I don't know.  I can remember one time I had a sort of Catholic School single interest employer authorisation where one of the Catholic organisations was doing - I can't tell in that matter actually submitted as best I recall, that the difficulty with one of the Catholic schools not having done what was required in terms of pre-approval.  So, perhaps what I hear you say is because there were no employees, actually affected the single interest employer authorisation.  That was their own submission.  It was addressed otherwise, but it might make the single interest employer authorisation fall over.  I don't know.

PN600      

MR RYAN:  Maybe, if I could - - -

PN601      

THE COMMISSIONER:  That is failure by one, then has the effect of failure by all because they travel together.  I don't have a concluded view on it.  I didn't have to determine it, but that's what counsel for the Catholic Schools actually submitted to me in earlier proceedings.

PN602      

MR RYAN:  I think - well firstly, they didn't not comply with any steps because they didn't have any employees to provide the pre-approval steps or undertake the pre-approval steps with.  There's nothing that I can see in my research because - - -

PN603      

THE COMMISSIONER:  Well how could they make - be party to an enterprise agreement which had no employees, I ask rhetorically?

PN604      

MR RYAN:  Well, yes.  That's a very good rhetorical question.  They are related entities, one of the employers on the authorisation, Mojo Mex.  It may be that for whatever reason they had employees and they moved them across there.  I understand with Pampana there has been a delay with the construction opening of a store and maybe with that not happening or being delayed, they moved employees across to another entity that is on the authorisation.  But at the point - - -

PN605      

THE COMMISSIONER:  But it was a greenfields site.

PN606      

MR RYAN:  Let me get instructions on that.

PN607      

THE COMMISSIONER:  All right.

PN608      

MR RYAN:  But I don't think these pre-approval steps were not taken in relation to any employees.

PN609      

THE COMMISSIONER:  Because the premises wasn't built?

PN610      

MR RYAN:  Or wasn't modified.

PN611      

THE COMMISSIONER:  Again, I say Mr Ryan, you have my sympathies.

PN612      

MR RYAN:  There's probably two other listings that we wish to draw the Commission's attention to.  There's Pampana - GB Broadbeach, number 11.

PN613      

THE COMMISSIONER:  Now this is in the list of employers?

PN614      

MR RYAN:  Yes.

PN615      

THE COMMISSIONER:  What number is that?

PN616      

MR RYAN:  They're employer number 11, GB Broadbeach.  On 8 October the GYG Restaurant Group which is number 14 purchased that restaurant from the franchisee and took a transfer of all employees.  That's 8 October.  On 9 October, GB Broadbeach Pty Ltd, I'm instructed went into liquidation.

PN617      

THE COMMISSIONER:  Thank you for that.

PN618      

MR RYAN:  All of those employees, all of the steps were taken.

PN619      

THE COMMISSIONER:  But that's just a very recent development.

PN620      

MR RYAN:  Yes.  Then we have QMetro-1 Pty Ltd.

PN621      

THE COMMISSIONER:  Which number is that?

PN622      

MR RYAN:  Number 28.

PN623      

THE COMMISSIONER:  Yes.

PN624      

MR RYAN:  GYG Restaurant now operates that franchise.

PN625      

THE COMMISSIONER:  Is that GYG Leasing, or?

PN626      

MR RYAN:  A GYG restaurant number 14.

PN627      

THE COMMISSIONER:  I see.

PN628      

MR RYAN:  The circumstances there are that they ceased to be a franchisee and so again, similar to the GB Broadbeach, an employer that's otherwise involved as part of its application, has taken those employees on.

PN629      

THE COMMISSIONER:  Well, if there's ceased to be a franchisee, what have they - it would still apply to them if they operate any other franchise.

PN630      

MR RYAN:  Like a McDonalds franchise?

PN631      

THE COMMISSIONER:  No, no, any other.

PN632      

MR RYAN:  Well, if we approach that, Commissioner, on the basis of number 28 QMetro.  If QMetro is operating a franchise and it ceases, and down the track it pops up there, if that's - - -

PN633      

THE COMMISSIONER:  They'd be covered by this.  I think that's right.

PN634      

MR RYAN:  May it please.  I don't see anything contrary to the legislative scheme with that arrangement.

PN635      

THE COMMISSIONER:  Mr Ryan, so time sensitive and there's so many matters arising.  I think - I don't have availability this week.  The first time really that I would have availability would be Monday 5 November at 3 o'clock and we could sit late.  There has to be a decision one way or the other by me and preferably - - -

PN636      

MR RYAN:  By Tuesday or Wednesday.

PN637      

THE COMMISSIONER:  It may be - well, it may be that - I wish I had more time to consider this.  But what I could do.

PN638      

MR RYAN:  Commissioner, it's not out of play to extend the order until mid-November, until this agreement can be properly considered.

PN639      

THE COMMISSIONER:  It's not my order.

PN640      

MR RYAN:  Well, we'll give some consideration to that, but it wouldn't be out of the - it's not offensive to the legislative scheme.  But given the circumstances that we are very close to that date and given the circumstances that - - -

PN641      

THE COMMISSIONER:  You'll have a decision before the 15th.

PN642      

You have my assurance.

PN643      

MR RYAN:  The only difficulty with that, Commissioner, I think we really need a decision before the 8th.

PN644      

THE COMMISSIONER:  What I'm thinking is that what I might do is let's say I might announce my decision and reserve the reasons, or something of that nature.

PN645      

MR RYAN:  The difficulty we have is section 54.  If the agreement is approved, it takes effect in seven days.  It would be just an upheaval, administratively.

PN646      

THE COMMISSIONER:  That's one of the reasons why I did the statement because - - -

PN647      

MR RYAN:  We appreciate the statement.  I think today's been very constructive in terms of working through this.

PN648      

THE COMMISSIONER:  I can imagine all sorts of administrative arrangements are being put in place or are in place on the assumption that if this is what - and rostering and those of that nature on the basis that things would unfold a certain way.

PN649      

MR RYAN:  Far from certain.

PN650      

THE COMMISSIONER:  3 o'clock on Monday Mr Ryan?  We'll sit late.

PN651      

MR RYAN:  May it please.

PN652      

THE COMMISSIONER:  Could I have please the instruments of appointment concerning Mr Clarke?

PN653      

MR RYAN:  Can I address you very quickly on that?  Mr Clarke, his role really is limited to essentially an advisor.  He didn't play any role in liaising with employees directly as bargaining representative.  He didn't play any role other than to advise the employer.  He was engaged as a consultant at the very - - -

PN654      

THE COMMISSIONER:  The papers identify Mr Clarke as the person appointed as the bargaining representative.  That appointment must be in writing.

PN655      

MR RYAN:  It is.

PN656      

THE COMMISSIONER:  Who is the bargaining representative for these employers, because it's not just one employer acting on its own behalf?

PN657      

MR RYAN:  The employers are themselves the bargaining representatives.

PN658      

THE COMMISSIONER:  That's not what the paper indicates.

PN659      

MR RYAN:  Well, they're taken to be.  They don't need to be appointed in writing.

PN660      

THE COMMISSIONER:  Mr Ryan, once again, I can only say you have my sympathies.  The form F16 completed by Ms Wood indicates in response to question 3.1, "Did the employers appoint a bargaining representative?"  The response given is yes.  Question 3.2 reads "If you answered yes to question 3.1, provide the name of the employer bargaining representatives."  The name of the organisation is given as Work Relations.  The contact person is Ross Clarke and then there are other details.

PN661      

Then there is a question about whether there were any union bargaining representatives.  We know there weren't.  We also know - at least I'm informed, if I can rely on the paperwork that's been lodged.  "Were there any employee bargaining representatives?"

PN662      

Now I'm going have to adjourn because my parties will be dialling in soon.  It will be 3 o'clock on Monday.

PN663      

MR RYAN:  Thank you.  May it please the Commission.

ADJOURNED INDEFINITELY                                                           [1.51 PM]


LIST OF WITNESSES, EXHIBITS AND MFIs

 

EXHIBIT #1 APPLICATION BY GUZMAN Y GOMEZ LEASING PTY LTD SEEKING URGENT AMENDMENT TO SINGLE INTEREST EMPLOYER AUTHORISATION ISSUED 17/05/2018............................................................................................................... PN279

EXHIBIT #2 CORRECTION ORDER ISSUED 21/10/2018 BY HAMBERGER SDP           PN280

EXHIBIT #3 STATUTORY DECLARATION OF KATHERINE JANE WOOD DATED 29/10/2018 WITH ATTACHMENT D COMPRISING 263 PAGES............... PN287

EXHIBIT #4 APPLICANT'S SUBMISSIONS DATED 29/10/2018................ PN291