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Fair Work Act 2009                                                    






s.158 - Application to vary or revoke a modern award


Application by Restaurant & Catering Industrial



Restaurant Industry Award 2020




10.00 AM, THURSDAY, 25 AUGUST 2022


Continued from 03/06/2021



DEPUTY PRESIDENT CLANCY:  Good morning.  I will just confirm appearances, thank you.  Mr Zhu, for Restaurant & Catering Australia, can you hear and see me?


MR B ZHU:  I can, good morning, thank you.


DEPUTY PRESIDENT CLANCY:  Thank you.  And Mr Redford from the United Workers Union, can you hear and see me?


MR B REDFORD:  Yes, I can, your Honour.  Good morning.


DEPUTY PRESIDENT CLANCY:  Thank you.  My associates had also attended to a hearing room here in Melbourne, just to ensure that, if there was any interested party that proposed to attend in person here in Melbourne, that a court was available for it, but, at this point, no one has arrived in person and, as far as my chambers are aware, it is just the two of you that have responded to the conference listing, so we will proceed.


As with all the AMOD conferences, they will be recorded and transcripts will be available in case there are any interested parties that were unable to attend today, but, thank you both for your attendance.


The conference arises out of the statement that was issued on 5 August by the President, and the President has asked me to convene this conference.


You are both well aware of the background insofar as there were two schedules, Schedule AA and Schedule R, inserted into the Restaurant Industry Award of 2020, and those schedules ceased operating on 10 August.


When they were inserted, there was a suggestion, at the time that decision was made by the Full Bench, from the UWU that there would be a review into the operation of the schedules to take place, and that is one of the matters I want to address with the parties today, but, fundamentally, with the schedules having lapsed, the Commission, and the Full Bench in particular, would be interested in any observations that either of you wish to make about the schedules and where matters might proceed from here, if at all, given the circumstances that are now in existence.


So, if you are comfortable with that, I will ask Mr Zhu to make some comments and then I'll throw to you, Mr Redford.  Are you comfortable with that?




DEPUTY PRESIDENT CLANCY:  All right, thank you, Mr Zhu.


MR ZHU:  Thank you, your Honour.  Certainly on behalf of Restaurant & Catering Australia, given that those two schedules have lapsed, it is Restaurant & Catering's view that there was no intention to try and seek for those to be reinstated or, at the time, for the schedules to be extended for a variety of reasons and observations that we had made and also in consultation with members.


There are a few factors.  Firstly, of course, the fact that these were intended to be COVID-19 flexibility measures during the height and in response to the pandemic.  The recent decision as well from the Commission in relation to outer limits for annualised salaries made earlier this year in April, which come into effect in September, in effect, the timing was quite convenient in that sense and how they were to intersect with one another certainly led to that view that in the lead-up to these schedules lapsing, that, rather than trying to have these various schedules and differing approaches, to allow for this transition, for example, with the 1 September changes for the annualised salary and the outer limits.


Certainly the take up for these changes, given the opt-in nature, were not necessarily as widespread as initially thought might be the case, and so in response to member feedback and given that this was not a priority for the members either, this is why we have taken this view to decide not to go ahead with any extension or reinstatement of it.


In terms of a review, more than happy and willing to do so, if that is what the Commission would like to proceed with, but also aware of the conversations that Mr Redfern and I have had, and if the Commission were to decide an alternative pathway, we would certainly be open and willing for that as well.


DEPUTY PRESIDENT CLANCY:  All right.  What you are saying is, in relation to the annualised salary changes, that the sort of considerations that lay behind Schedule AA and Schedule R can be addressed through the annualised salaries changes coming into effect on 1 September.  Is that the essence of it?


MR ZHU:  Certainly, yes, for components of it.  So, for example, with the substitute allowance, given that allowances have been incorporated into the annualised salary approach, essentially, you know, that takes into effect a substitute allowance.  The exemption rate one was certainly, though, one where that intersection between the exemption rate and the new annualised salaries with the outer limits and how they interacted with one another, that was one that we were aware of leading up to this point in time, and certainly, as a result of that, have decided not to seek even the exemption rate to be extended, given these new changes and these new rules that come into effect from 1 September anyway.


DEPUTY PRESIDENT CLANCY:  All right.  Thank you.  Mr Redfern, please.


MR REDFORD:  Your Honour, the UWU opposed the inclusion of these schedules into the award and at the time they were included in the award, we expressed some concerns about them.  One of the concerns we expressed was that they were not necessary changes to the award.  Our experience since the changes have been made are that we are not aware of any use of the schedules, and I note, your Honour, that some of the measures envisaged by the schedules, if they are to be implemented, require consultation with a person's representative.  We have not been consulted by anyone about the implementation of any of the measures.  That's not to say they haven't been used, your Honour, but we're not aware of them having been used at all.


They now have lapsed.  Having opposed their inclusion in the first place, we don't intend to seek for their reintroduction.


We did suggest, your Honour, that there be a review about the measures included in the award by the schedules, but given that they have lapsed, our position is that that review may no longer be necessary, and if it were the decision of the Commission to not conduct a review, we wouldn't oppose that course of action.  We suggest, respectfully, your Honour, that there is nothing to review any more.


DEPUTY PRESIDENT CLANCY:  That was going to be my question, perhaps, that the apprehension that you expressed at the time the schedules were inserted that prompted you to seek or suggest a review haven't - the concerns haven't materialised, therefore you say there's nothing to review?


MR REDFORD:  Except, your Honour, for the concern that the schedules might not be of any use to anyone.  If our experience is reflective of the take up of the measures in the schedules, then that concern we had, that is that they wouldn't be of any use to anyone, may have materialised, but, otherwise, yes, your Honour.  The other concerns that we expressed, we don't know whether they would have materialised because we're not aware of the measures ever being used.


DEPUTY PRESIDENT CLANCY:  Yes, all right.  Anything you want to add, Mr Zhu?


MR ZHU:  Nothing further to that, your Honour, thank you.


DEPUTY PRESIDENT CLANCY:  All right, thank you.  What the process will be from here is I will discuss this conference with the President and we will, following that discussion, arrive at a course of action in relation to the review - it might be inaction - but certainly we note that there's no, and there isn't going to be, application for a reinstatement of the two schedules into the award, so, in essence, it will be whether the Commission embarks upon a review process or not, which we will take into consideration.


That being the case, I thank you again for your attendance and response to the statement and we can adjourn the Commission.

ADJOURNED INDEFINITELY                                                          [10.21 AM]