Epiq logo Fair Work Commission logo






Fair Work Act 2009                                                    






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


Application by EPI Capital Pty Ltd



Clerks—Private Sector Award 2020




9.30 AM, MONDAY, 11 JULY 2022


Continued from 30/05/2022



THE VICE PRESIDENT:  I'll take the appearances.  Mr Stirling, you appear for EPI Capital.


MR A. STIRLING:  Yes, Vice President.


THE VICE PRESIDENT:  Mr Fary, you appear for the ASU.


MR S. FARY:  Yes, that is correct, Vice President.


THE VICE PRESIDENT:  Mr Kemppi, you appear for the ACTU.


MR S. KEMPII:  Yes, Vice President.


THE VICE PRESIDENT:  Ms Bhatt, you appear for the Ai Group.


MS R. BHATT:  Yes, Vice President.


THE VICE PRESIDENT:  Ms Lombardelli, you appear for the New South Wales Business Chamber and ABI.


MS J. LOMBARDELLI:  Yes, I do, thank you, your Honour.


THE VICE PRESIDENT:  And, Mr Farrow, you appear for the Australian Chamber of Commerce and Industry.


MR S. FARROW:  Yes, that's correct, Vice President.


THE VICE PRESIDENT:  The applicant has now filed submissions in support of its application in accordance with the Commission's directions.


I'll allow the parties to address what should happen next, but perhaps the first question that needs to be addressed is the submissions, to use the terminology in them, refer to two possible interpretations of the award, which are called the 'including leave' and 'excluding leave' interpretations.


As I understand it, Mr Stirling, your position is that the including leave interpretation is the one that should be preferred, so I suppose the first thing to ascertain is whether there is actually any disagreement about that which may go to the question of whether there's any ambiguity or uncertainty.  Who would like to respond first?


MS BHATT:  Vice President, I'll endeavour to.




MS BHATT:  I think from our perspective, at this stage, at least, we're of the view that the answer to that question might depend on the particular circumstances.  I think we're still thinking through what the answer to that might be, but it's not clear that it will always be the same.  It might depend on the particular arrangement of hours that applies to an individual employee.


THE VICE PRESIDENT:  Does that answer imply that there is ambiguity or uncertainty?  That is, without being critical, the fact that you can't give an immediate answer to the proposition, does that support the applicant's contention that the provisions have some ambiguity or uncertainty?


MS BHATT:  We would say that that's not the case, Vice President.  It simply turns on the circumstances, and this has been the subject of some discussion between the parties prior to the last report back before you, but our contention would be that, no, that does not of itself demonstrate an ambiguity or uncertainty.


THE VICE PRESIDENT:  All right.  So what do you see is the next step in the proceedings, Ms Bhatt?


MS BHATT:  Vice President, we say that we should be given an opportunity to file submissions and any evidence in reply.  We're proposing that we be given until 5 September to do so, and I'll come back to why we're seeking that period of time.  We would suggest that the applicant is then given two or three weeks, or longer, if they consider that necessary, to file any submissions in reply and any evidence on the issue of standing.


My understanding is that the applicant's position is that they don't intend to file any evidence in these proceedings unless there is any contest about their standing to make this application.  I can indicate that we don't intend to contest that they have standing, but I'm not sure what the position of the other parties might be.  Then we say that the matter should be listed for hearing once the applicant has filed their reply material.


We say that the application gives rise to a number of issues that will need to carefully be dealt with in our written submissions, and we're still considering whether there would be a need to call any evidence and, if so, what that evidence would look like.


There's also obviously a need to properly consider the practical implications of the multiple variations, or proposed variations, that have been advanced by the applicant.  We're also mindful of our involvement in various other matters and some planned leave arrangements.  So for all of those reasons, we say we should be given the period of time that we've sought.


THE VICE PRESIDENT:  Is it likely that this application will have implications for other modern awards?


MS BHATT:  It's not clear that it would, Vice President, because the submissions that have been filed seem to turn on the manner in which the Clerks Award is drafted, and my understanding is that the arguments are therefore confined to the Clerks Award.


THE VICE PRESIDENT:  All right.  Perhaps I'll turn next to the other employer representatives.  So, Ms Lombardelli, do you want to put anything different to what Ms Bhatt has just said?


MS LOMBARDELLI:  Nothing further to what Ms Bhatt has said, thank you, your Honour, but we're supportive of the proposed directions put forward by Ms Bhatt.




MR FARROW:  Thank you, Vice President.  ACCI doesn't have anything else to add to what Ms Bhatt just spoke about earlier.  We also do not intend to contest the applicant's standing and we support Ms Bhatt's proposed directions as well for a date in early September for filing our material.


THE VICE PRESIDENT:  Thank you.  Mr Kemppi or Mr Fary, do you want to go next?  Perhaps you can identify whether you've got a view about the preferred interpretation of the two proposed by the applicant.


MR FARY:  Thank you, Vice President Hatcher.  I guess in broad terms the ASU are in agreement with what Ms Bhatt has laid out in terms of the lack of ambiguity or uncertainty within the award.


THE VICE PRESIDENT:  In that context, what do you say is the correct interpretation?


MR FARY:  We would say that there is no ambiguity and that an authorised absence should be treated as time worked when read in conjunction with section 62(4) of the Fair Work Act.




MR FARY:  In terms of the directions that Ms Bhatt has proposed, I guess the one difference from the ASU's perspective is that we would be intending to contest the standing of the applicant.  From our read of the submissions, or as Ms Bhatt mentioned, there's been no evidence filed and we simply have an assertion that the applicant is an employer covered by the Clerks Award.


So the ASU would be intending to contest that issue, and I guess, perhaps, given that that's a preliminary issue, that may make sense to address before the other parties prepare their submissions and any evidence they might be relying upon.


THE VICE PRESIDENT:  Thank you.  Mr Kemppi?


MR KEMPPI:  Thank you.  We're supportive of most of what has been said.  We certainly agree with the time frame that's been proposed by the employer groups to resolve the matter, or to file submissions, subject to what Mr Fary said, in terms of perhaps the standing issue could be determined first.


In support of that, we would just simply say that it doesn't appear to be that there's a strong drive from any of the actual employers, the employer groups or the representatives of workers to have this resolved on the time frame that the applicant contends, and so we would say those views ought to be preferred in timetabling it.


The other factor that I would add, I guess, from the ACTU's perspective, is that we are, at the moment, uncertain about the spill‑over effect this could have on other awards, so we would appreciate any time frame that the directions would allow - perhaps not explicitly, but any extra sort of time that we would be able to consult with affiliates to see if there are any concerns about other awards that we should have in mind as we go through this case.


THE VICE PRESIDENT:  All right.  Mr Stirling, would you be in a position to put on evidence and any further submissions to sustain your position as to standing within a period of four weeks?


MR STIRLING:  Yes, Vice President.  I'm very content to do that.


THE VICE PRESIDENT:  All right.  We'll make a direction to that effect.  I think the only other direction I'll make at this stage is that other interested parties should file submissions in response to the applicant's submissions by Friday, 2 September, and then, having regard to the content of those submissions, I'll then make a determination as to what the next step should be.  I thank you for your attendance.  If there's nothing further, we'll now adjourn.


MR STIRLING:  Thank you, Vice President.

ADJOURNED INDEFINITELY                                                            [9.54 AM]