PN1

THE VICE PRESIDENT: I will take the appearances. Mr Withers you appear on your own behalf as the applicant in the matter. Is that correct?

PN2

MR C WITHERS: Yes.

PN3

THE VICE PRESIDENT: Ms Bhatt, you appear for the Australian Industry Group?

PN4

MS R BHATT: Yes, Vice President.

PN5

THE VICE PRESIDENT: Mr Izzo, you appear for the New South Wales business chamber and Australian Business Industrial.

PN6

MR L IZZO: Yes, Vice President.

PN7

THE VICE PRESIDENT: Mr Delaney, you appear for the Australian Security Industry Association.

PN8

MR C DELANEY: Yes, Vice President.

PN9

THE VICE PRESIDENT: All right. Mr Withers, the purpose of the short hearing today is just to discuss and determine the procedural path forward to deal with your application. Firstly, can I just confirm, and I infer this from the terms of the application that when you made the application you were an employee covered by the award. Is that correct? That is the (indistinct).

PN10

MR WITHERS: Yes, sir. I am.

PN11

THE VICE PRESIDENT: All right. Well, Mr Withers, when the Commission deals with an application to vary awards, we usually undertake a process by which parties file documents setting out the evidence they rely upon and any submissions they want to make. And then we list the matter for hearing. But how do you wish to proceed with your application?

PN12

MR WITHERS: Honestly, I'm not sure. Just send me some information on how things need to go and I will follow what I'm shown to do. I'm a bit out of my depth here.

PN13

THE VICE PRESIDENT: No. I understand. Put it this way, you've set out in your application, I think in reasonably clear terms, the basic outline of the matters you want changed in the award and the reasons why. You want to add to what you've got in the application by way of giving evidence about the facts and circumstances applicable to the matters you've raised or to make further submissions explaining why it is you say that the application you make should be granted or are you content to simply rely upon the matters in your application?

PN14

MR WITHERS: I think the matters in the application themself are enough to rely upon. I did try to be quite thorough with it. But, in saying that, there is always more that can be added to things.

PN15

THE VICE PRESIDENT: All right. Well, I might turn to the other parties now. Ms Bhatt, do you have any views as to how I should approach this application?

PN16

MS BHATT: Thank you, Vice President. I will note at the outset that the application is opposed by the Australian Industry Group. If the Applicant is suggesting that perhaps there is additional material that he wishes to file, then the general way in which these matters unfold, which was described by the Vice President earlier, we think would be appropriate; which is that the applicant is Given a further opportunity to file whatever material he seeks to rely on and then any parties who wish to respond are given a period to respond. We are still consulting with our members to understand the extent and the nature of the material that we would be filing in response. But we would seek a period of at least three or four weeks After the applicant files any additional material to file our response.

PN17

Can I also just identify that one of the variations that the applicant is seeking is a fairly substantial increase to all of the minimum rates prescribed by the award for the security officer classification levels. And, of course, as the Vice President would know, the Commission has very limited power to vary minimum rates outside of the annual wage review. Specifically, the Commission can only do so if there are work value reasons; if there is an ambiguity or an error, or if there's a referral that's made by the Australian Human Rights Commission.

PN18

The arguments that the applicant seems to be advancing in relation to the increase to minimum wages are by reference to the cost of living. And so on it's face it would seem that the Commission doesn't have power to increase minimum rates in the context of this kind of application on that basis. We think it would be appropriate that the applicant reflects on whether this is an appropriate vehicle for seeking an increase to the minimum wages on that basis. There is nothing further that I wish to say at this stage, Vice President.

PN19

THE VICE PRESIDENT: Right. Mr Izzo.

PN20

MR IZZO: Our position is broadly similar, Vice President. We also oppose and we'd seek a period of three to four weeks to respond as well. So our view, in terms of the proposed directions are the same as AiG. I also agree that I think of the variations sought, the variation described at paragraph 1(c) of the application pertaining to minimum rates does appear to be of a different nature to the others. And I am mindful that the annual wage review process has not been completed. There is actually an opportunity for the applicant to file materials in reply as part of the annual wage review, I think, on 6 May. SO there may be some benefit in the applicant being informed that there is this other vehicle currently running simultaneously to this application that his application regarding 1(c) might be better directed to. So I think the applicant might want to take some advice on that and there does appear to be merit to that part being dealt with differently or carves off. But otherwise, our opposition to paragraphs 1(a), (b) and (d) of the application could proceed in the normal course of filing of materials and filing of materials in response.

PN21

THE VICE PRESIDENT: Mr Delaney?

PN22

MR DELANEY: Yes. Thank you, Vice President. We don't depart from either AiG or ABL on this matter. We would agree with the process that they have described. You know I am not a person to go over things over and over again. But I would like to make the point that this casual overtime issue has been dealt with on quite a number of different Occasions and the very last occasion was in AM 2017/51, and I think your Honour might be familiar with the statement that was made there at 63 and that is that:

PN23

It is not in dispute that casual employees I'm not currently entitled to receive the casual loading when being paid overtime penalty rates.

PN24

And you go on to say that

PN25

the above variation is not intended to disturb that.

PN26

And that, of course, was in the four-yearly review. This has been the subject of quite a bit of discussion over the years. It goes right back to pre-reform awards. It just seems to us that even though Mr Withers has got some valid reasons, he believes, for making this application it's doomed to failure. But we are happy to follow whatever process you determine, your Honour.

PN27

THE VICE PRESIDENT: All right. Well, I might get back to you, Mr Withers. One of the matters which particularly Ms Bhatt has touched upon that Mr Izzo emphasises that - I don't know if you are aware of this, but currently the Commission is engaging in its annual wage review of all modern awards, including the Security Services Industry Award to take into account the general matters it raised, Including, among other things, the rate of inflation. And normally that results in a decision issuing in May or June at the latest, leading to an adjustment of wages in all modern awards. And I think the point being made by Mr Izzo in particular is it seems to be the case that the matters you are raising about wage increases in this award would seem to overlap with what is currently going on in the Commission and the wage review. I just want to ask you this, would it Be a good idea for you to reconsider your position once the result of the annual wage review is know? That is, it may be that the outcome of that review answers wholly or Partially the matters that you have raised, at least in terms of the general wage increases that are sought?

PN28

MR WITHERS: I think that at one point in the application I did mention that I was aware of the annual wage review. And generally speaking I do believe that all wages need a significant increase as opposed to previous years. But I think that the security industry in particular has had quite a large - has been impacted quite a lot in the past couple of years by COVID and there's also been some changes, specifically in the aviation security industry in regard to the qualifications that are required for that. however, if it is generally agreed that I would be better served to submit my opinions to the annual wage review, then that may be a better course of action.

PN29

THE VICE PRESIDENT: That course is always open to you, but all I'm suggesting is that perhaps you should await the outcome of that review before proceeding with this application further. Particularly as paragraph 8 of your (indistinct) and reasons seem to reflect general matters that are likely to be taken into account in the (indistinct) review.

PN30

MR WITHERS: Approximately when is the wage review due to be completed, sorry?

PN31

THE VICE PRESIDENT: It will be completed in May or early June I anticipate. So (indistinct) it may - now I say 'may' - involve adjustments to wages proceeding from a date from 1 July, although in some cases it may be a later date.

PN32

MR WITHERS: So what from what I understand, the other parties present have requested three to four weeks to respond. Is it likely that the wage review would be completed by the time those responses are made or would I need to do something in the meantime?

PN33

THE VICE PRESIDENT: Well, what I am contemplating, Mr Withers, is this, that before I ask the other parties to respond, I think it might be the best course, firstly to give you an opportunity to put on any other material which you wish to rely upon in support of your application and that might be something or nothing. That's a matter for you. And, secondly, to await the outcome of the annual wage review. So what I'm proposing, I think, is simply to give you a period of, say, six weeks to put on any further material which you want to rely upon in support of your application in writing and that may include evidence that is witness statements from persons who work in the industry about the matter you've discussed. That might include a witness statement from yourself or anybody else. And, secondly, submissions which you might want to make which add to supplement the matters you've already raised in your submissions. that time period would allow you to take into account the outcome of the annual wage review and then, once that's done, I would put the matter on for further report back to discuss the next step forward. Does that seem to be an appropriate course for you, Mr Withers?

PN34

MR WITHERS: That does seem to be an amenable course of action. Yes.

PN35

THE VICE PRESIDENT: All right. Well, what I propose to do is to take that course. So what I will do is the parties will be issued a direction which simply requires Mr Withers, the applicant, as this stage to put on any evidence and further submissions he wishes to rely upon for his application and I will allow him a period of six weeks to do that. I will also sent out a notice of listing for a further report back at a time after that six week period has expired.

PN36

Do any of the employer representatives wish to say anything in opposition to that course?

PN37

MR DELANEY: Not from ASIAL, your Honour.

PN38

MS BHATT: No, that's (indistinct) thank you.

PN39

THE VICE PRESIDENT: All right. Well, that's the course I propose to take, so the parties can expect to receive directions and a notice of listing to that effect later today. I think the parties for their attendance and I will now adjourn.

ADJOURNED INDEFINITELY [9.59 AM]