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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 34197-1
COMMISSIONER LEWIN
AM2010/110
s.160 - Application to vary a modern award to remove ambiguity or uncertainty or correct error
Application by Australian Entertainment Industry Association
(AM2010/110)
Live Performance Award 2010
(ODN AM2008/35)
[MA000081 Print PR988941]]
Melbourne
10.03AM, WEDNESDAY, 24 NOVEMBER 2010
PN1
THE COMMISSIONER: Yes, I'll record today's appearances.
PN2
MR D. HAMILTON: If the commission pleases, D. Hamilton and MS S. ONG TAN for the Australian Entertainment Industry Association.
PN3
THE COMMISSIONER: Thank you, Mr Hamilton.
PN4
MR T. NOONE: Terry Noone for the Musicians Union of Australia.
PN5
THE COMMISSIONER: Thank you, Mr Noone. Go ahead, Mr Hamilton.
PN6
MR HAMILTON: Thank you, Commissioner. Commissioner, this is an application by my organisation to remove ambiguity and uncertainty from the modern award as a result of the full bench's decision in handing down this modern award which operated from 1 January 2010. Commissioner, as part of clarification what I intend to do today is to provide the commission with some additional information with regard to our application to ensure that the commission is aware of the ambiguity and uncertainty that has been created by certain parts of the award. Commissioner, I will go through our application from variation 1 through to 28, if that pleases the commission.
PN7
THE COMMISSIONER: Yes, that's what I was hoping you would do.
PN8
MR HAMILTON: Thank you, Commissioner. Commissioner, variation 1, clause 3.1(a) - we are seeking to insert a definition of "place of residence". Now, Commissioner, to assist you in this hearing I'm not sure if you would like to see a copy of our exposure draft that we submitted to the commission in May 2009, and this is where we'll be able to draw from our exposure draft where we had provisions in there that changed during the process - or the final process - of making the modern award.
PN9
THE COMMISSIONER: I don't know whether we need to go into that much detail at this instant in relation to this matter.
PN10
MR HAMILTON: Okay.
PN11
THE COMMISSIONER: I think the first thing you need to do is to establish the source of the power to make the variation so that there's a necessity for the tribunal to be convinced on the basis of this application that there exists an ambiguity or an uncertainty.
PN12
MR HAMILTON: Thank you, Commissioner.
PN13
THE COMMISSIONER: That's the first step because I can't vary the award unless there is an ambiguity or an uncertainty. The fact that one is alleged doesn't mean that there is one because the tribunal is taken to have made the award on a regular basis, so I have no power to vary the award until such time as I can be objectively satisfied that there is something ambiguous or uncertain in the term, so I would just go to the award and we go to clause 3.1 - - -
PN14
MR HAMILTON: 3.1, Commissioner.
PN15
THE COMMISSIONER: Now, what is it about? Is it ambiguous or is it uncertain or is it both?
PN16
MR HAMILTON: With "place of residence", Commissioner, it is both.
PN17
THE COMMISSIONER: But there is nothing there at the moment.
PN18
MR HAMILTON: That is correct, Commissioner.
PN19
THE COMMISSIONER: So presumably it has got to be a lack of certainty in clause 3.1, but it's not so much 3.1 actually, is it, it's 14.5 that creates an uncertainty? Is that the idea?
PN20
MR HAMILTON: That is correct, Commissioner.
PN21
THE COMMISSIONER: So in other words you're saying that clause 14.1 cannot operate with certainty in the absence of a definition of "place of residence".
PN22
MR HAMILTON: Place of residence.
PN23
THE COMMISSIONER: Just tell me why that is.
PN24
MR HAMILTON: That phrase, Commissioner, "place of residence" appears five times in clause 14.5, 14.5(a), (f)(i), (f)(ii). During the process of the final stages of the award modernisation, Commissioner, in the process of addressing the draft order considered by the commission, in our submission, we actually sought and the commission granted our comments that we should insert in 14.5(a) the words "their place of residence", because at the time the clause read:
PN25
An employee required by the employer to travel will be reimbursed their actual cost of economy air travel -
PN26
et cetera. The phrase "away from their place of residence" gives certainty to the travel provisions that have operated within the industry since 1989 and those words ensure that an employee will receive travelling allowance when they are working away from their place of residence - - -
PN27
THE COMMISSIONER: All right. I understand that - that goes to the first sentence of the proposed variation; what's the implication of the second sentence?
PN28
MR HAMILTON: I'm sorry, Commissioner?
PN29
THE COMMISSIONER: The proposed variation in the first item of your schedule of variation.
PN30
MR HAMILTON: The second sentence?
PN31
THE COMMISSIONER: Yes.
PN32
MR HAMILTON: An employer may - - -
PN33
THE COMMISSIONER: The (indistinct) you propose.
PN34
MR HAMILTON: Sorry:
PN35
PN36
THE COMMISSIONER: Yes, well, you see, that has a potential in situations where people change their place of residence during an engagement.
PN37
MR HAMILTON: But if the commission pleases, I draw your attention to clause 3.5(f) and in particular - - -
PN38
THE COMMISSIONER: Just a moment.
PN39
MR HAMILTON: Sorry, Commissioner.
PN40
THE COMMISSIONER: Just a moment. Yes, all right.
PN41
MR HAMILTON: So the second sentence of the definition of "place of residence" goes to the points made in the eligibility for receiving travel allowances and that particular provision, 14.5(f), basically states that the employee has to state their place of residence correctly; that the travelling provisions do not apply to an employee who works away from their place of residence for 12 months.
PN42
The employer cannot avoid the operation of this clause by coercing the employee to put down a different place of residence and it stops the employer from engaging an employee who that employer knows is not from the stated place of residence. This has been a common occurrence, Commissioner, that employees will follow the shows around Australia and, for all intents and purposes, they will state, I'm now living in Sydney" if they're going for a job in Sydney; that employee may have actually worked for the same producer in productions in Melbourne or Brisbane and the employer knows that that employee usually resides in Melbourne - because that is what was stated in the previous contract - and that provision and that phrase "place of residence" is pivotal to that employer knowing that they will have to pay travelling allowance to that employee if they engage that employee on that show, so it's more of a clarification issue. It is an issue - - -
PN43
THE COMMISSIONER: What do you mean by that in relation to the second sentence? How does that operate? I mean, I would have thought that the first sentence - you know it can be reasonably inferred into the operation of the award without the need for the variation, but let's assume that in the interests of certainty the first sentence is justified; that's a different thing to the second sentence.
PN44
MR HAMILTON: The second sentence, Commissioner, is that in situations - for argument's sake, the Melbourne Theatre Company; they will be doing a production in Melbourne only and in their audition notice they will advise auditionees that only Melbourne people will be auditioned for the roles that they have for their production. When the auditionees turn up for the audition they are required to fill out a form stating their address, their experience, et cetera, and if that person is selected for a role then that piece of paper that the employee completed will be taken as gospel and if the employee has not stated their correct place of residence and they are from out of town then, unknowingly, the Melbourne Theatre Company will have to pay travelling allowance for that employee because they are not a Melbourne resident, so that is why that second sentence - - -
PN45
THE COMMISSIONER: But why does the award need to say that?
PN46
MR HAMILTON: Well, it provides certainty for the employees that - - -
PN47
THE COMMISSIONER: No, but it's not about certainty for the employee or the employer. It's about certainty of application of the terms of the award; that's what "certainty" means in there.
PN48
MR HAMILTON: Well, it's certainty for the application of clause 14.5, yes, Commissioner.
PN49
THE COMMISSIONER: 14.5, and which part?
PN50
MR HAMILTON: Commissioner, 14.5(a), (b), (c), (d) and (g), so an employee that does not state their place of residence correctly and the employer unknowingly employs that person in the belief that they were a local resident then the - - -
PN51
THE COMMISSIONER: Why does the award want to deal with this matter? I just don't follow why you know the award wants to get into this territory at all. It's a misconception of what the purpose of the award is; it's not some omnibus regulatory instrument for the industry in relation to all its sort of problems and issues; that's not the statutory concept of the award. It's not a refuge. It's not a refuge for managerial issues and problems associated with the conduct of the industry. It is in fact delegated legislative act to set the floor of labour rights and obligations; no more or less than that. That's the certainty that needs to be achieved, not to provide some sort of auxiliary managerial sort of facility for the purpose of certainty for you know running the businesses that operate under the regulatory requirements of the award.
PN52
MR HAMILTON: This provision was inserted, as I mentioned, in the old award and in all - - -
PN53
THE COMMISSIONER: Yes, but this is a modern award.
PN54
MR HAMILTON: That's correct, Commissioner.
PN55
THE COMMISSIONER: I mean, I think it's really important because I detect a certain difference of perspective, if I might say so, that emanates from the parties in relation to the nature of this instrument and the nature of all of the instruments that preceded it. They have nothing at all in common conceptually.
PN56
MR HAMILTON: And the full bench made that comment in the decision - - -
PN57
THE COMMISSIONER: Yes, well, I mean I'm not even aware of that, but it is just so obvious from any understanding of the history of the statute and the legislative change to the Fair Work Act - and the process commenced in the Workplace Relations Act and in particular Work Choices, but these awards are not settlements of disputes between parties which might be brought and given legal form by a tribunal empowered by parliament to give effect to the wishes of the parties in order to bring a dispute to a conclusion and settlement.
PN58
Provided there was a dispute and they were industrial matters then you could give vent to the wishes of the parties in the form of a legally enforceable instrument. The purpose of the legislation was to settle disputes between the parties and if they decided that this was the best way to do it, provided it was within jurisdiction and power and not contrary to the public interest you would give effect to that, so they might have a provision, for instance, that you know the chairs be upholstered - or whatever it is - and that's a different concept. We're not in that business any more.
PN59
MR HAMILTON: I appreciate that, Commissioner.
PN60
THE COMMISSIONER: And what you're really dealing with, it seems to me, here in this second sentence - and some of these provisions in the award - is things which go to how you manage the labour inputs in these performances and the most felicitous way of doing it from a managerial and union perspective, but this instrument is simply the minimum terms and conditions of employment that anybody is to be employed under and the obligations of the employer in relation to those, and what you're telling me about is how it's a good idea to you know cast plays in a particular way and therefore the award should adapt itself in order to - to that. What is to stop an employer from requesting an employee to state his or her place of residence at the time of audition or engagement? What arises under the award that prevents that?
PN61
MR HAMILTON: Commissioner, I may well agree with your sentiments and the - - -
PN62
THE COMMISSIONER: One could even ask, well, the plain meaning of "the workplace of residence" is just notorious. It's where you usually live.
PN63
MR HAMILTON: That's true, Commissioner.
PN64
THE COMMISSIONER: But if there's certainty added by that, in the particular context of the industry - given that people might move around a bit - then I'm not so much troubled by that. But, you see, the implication of the second sentence is what does that mean for the obligations? What I'm concerned with is the integrity of the effects of the instrument, not the managerial convenience of people who are casting plays.
PN65
MR HAMILTON: We can appreciate that.
PN66
THE COMMISSIONER: So what is the effect - am I not potentially introducing an ambiguity there? If someone changes their address after the point of the audition - well, let's say they auditioned in Sydney to perform in a play in Melbourne and they subsequently move to Albury-Wodonga. Now, what does that mean? Does that mean they continue to receive the travelling allowance?
PN67
MR HAMILTON: If they were a Sydney based resident and they were performing in Melbourne, because they were not a Melbourne resident if they move to Albury-Wodonga - - -
PN68
THE COMMISSIONER: During the course of - - -
PN69
MR HAMILTON: They would still receive - - -
PN70
THE COMMISSIONER: The same amount of travelling allowance?
PN71
MR HAMILTON: That's correct.
PN72
THE COMMISSIONER: And why would that be?
PN73
MR HAMILTON: Sorry, Commissioner?
PN74
THE COMMISSIONER: Why, because the travelling allowance - - -
PN75
MR HAMILTON: Because the production is in Melbourne and the clause operates that those employees who do not reside in the city where the production is being performed are entitled to be paid travelling allowance. So any employee that is not a resident of Melbourne, in this scenario, would be entitled to the payment of travelling allowance.
PN76
THE COMMISSIONER: So if they moved to Melbourne they wouldn't be entitled to it any more?
PN77
MR HAMILTON: No, they would be entitled to it because their place of residence, as they had filled out in their audition sheet, was Sydney. So they would move to Melbourne to actually perform in the production but they receive travelling allowances for performing in Melbourne, because their place of residence is in Sydney. So with any of those large commercial - - -
PN78
THE COMMISSIONER: So the award provides that notwithstanding the fact that the - when you say travelling allowance, is just for the - what's the nature of the travelling allowance again?
PN79
MR HAMILTON: Which is set out in clause 14.5, Commissioner.
PN80
THE COMMISSIONER: So it’s just the air fare. We're talking about the air fare, aren't we? Are we talking about the air fare - 14.5(a), economy class air fare. Is that what we're talking about?
PN81
MR HAMILTON: So the effect is, Commissioner, if someone is engaged from interstate to - or even in country Victoria to work in Melbourne on a Melbourne show, then the employer is responsible to transport that employee to Melbourne. That would either be the cost of an economy air fare or some other mode of transport that the employee may agree to. If they travel by air and they then get a cab into town, they're entitled to reimbursement of taxi fares. The employer will provide accommodation for those employees. If those employees do not want to take the offer of the employer's accommodation then they're entitled to the cash allowance in clause (c)(i). If the employer does not provide accommodation then the employee can then seek reimbursement up to those amounts in clause (c)(ii).
PN82
During the stay in Melbourne the employee is to be paid the meals allowance in (d) and the incidental allowances in (e). Clause (f) is the eligibility for the payment of those travelling allowances which go to the employer cannot coerce the employee to state their place of residence is Melbourne when they know that they're in Sydney, et cetera. And if they're transporting luggage and instruments, clause (g), the employer will reimburse the employee for the transportation of luggage between theatres. So that's the - - -
PN83
THE COMMISSIONER: But why do we need a second sentence?
PN84
MR HAMILTON: Well, Commissioner, we're - - -
PN85
THE COMMISSIONER: It doesn't - - -
PN86
MR HAMILTON: We're happy to just amend our application.
PN87
THE COMMISSIONER: You don't need to amend it. I'm not forcing you to amend it. It's your application. You do with it as you please. I just need to be satisfied that that adds some certainty to the operation of the - you see, if you think about this as if it was a legislative instrument, "certainty" means the certainty of the operation of the terms of the instrument. I don't know that that actually adds anything.
PN88
MR HAMILTON: Correct, Commissioner.
PN89
THE COMMISSIONER: I doubt that it adds anything of that nature. Employers can ask their employees what their address is.
PN90
MR HAMILTON: And subsection (f) of 14.5 takes that into consideration anyway, Commissioner.
PN91
THE COMMISSIONER: Well, it assumes that somebody has got a place of residence. Some might not have one. You can ask them. They might say, "I have no fixed address."
PN92
MR HAMILTON: That's true. So Commissioner, we've - - -
PN93
THE COMMISSIONER: In which case they'd not be entitled to the provision.
PN94
MR HAMILTON: That's right. Commissioner, do you want us to amend our application?
PN95
THE COMMISSIONER: No, I don't want you to amend it. I'll deal with it but I'm sort of not all that persuaded that it adds anything by way of certainty to the terms of the award. There's nothing in the award to prevent an employer from asking a prospective employee what their address is.
PN96
MR HAMILTON: That's correct.
PN97
THE COMMISSIONER: And I wouldn't have thought that such a question is all that unusual in Australian employment.
PN98
MR HAMILTON: In our industry, Commissioner, there has been not a common occurrence but it does occur where employees will state a different place of residence so they will receive the travel - - -
PN99
THE COMMISSIONER: You see, that's what troubles me about that clause. I think you're digging into the problem, frankly. It creates more problems because an employee's residence, as defined, is an unchangeable objective fact. Once you started getting in the idea that the award is actually regulating what people say about it, then you're entering into a relative world of potential complications to do with, "This person put down this and that and the other and it wasn't the real one." The award doesn't want to engage with that. That brings uncertainty in terms of the operation, the legal effects of the instrument.
PN100
The question of what constitutes the place where an employee ordinarily resides is objectively verifiable as a matter of fact.
PN101
MR HAMILTON: Yes.
PN102
THE COMMISSIONER: Don't want to get the award into regulating things that people are saying, whether they're true or false. That's not what the award is there for. I think that's the practical distinction in the minutiae of this particular aspect of the award that arises out of the earlier discussion about: what do we mean by "certainty" in relation to a modern award as opposed to an award which has been made largely by consent by the parties in settlement of a dispute, because it brings certainty in relation to the agreement of the parties as to what will go on - is one thing.
PN103
MR HAMILTON: Yes.
PN104
THE COMMISSIONER: A modern award is a different thing. Will it give certainty to the legal effect of the terms of the instrument? I think there's greater certainty if you rely on the objective truth of the employee's ordinary residential address, not pieces of paper upon which people tell fibs and try and regulate that under the terms of the award.
PN105
MR HAMILTON: All right.
PN106
THE COMMISSIONER: So that's my reasoning.
PN107
MR HAMILTON: That's fine, Commissioner. Thank you.
PN108
THE COMMISSIONER: So can we move onto - - -
PN109
MR HAMILTON: Variation 1(b)?
PN110
THE COMMISSIONER: Yes.
PN111
MR HAMILTON: Commissioner, I might deal with 1(b) and variation 2 together after I've dealt with 1(c) and 1(d), if you don't mind. They are all interlinked.
PN112
THE COMMISSIONER: Very well.
PN113
MR HAMILTON: With regard to 1(c) and 1(d), Commissioner, if we go to paragraph 3 of the award and in alphabetical order we have specialty entertainment musician, specialty entertainment orchestral musician; then we have sound balance and seating call and then we have specialty entertainment - so three definitions of specialty entertainment. These provisions only apply to the musicians' part of the award. It goes to clause 31.5 of the award, Commissioner.
PN114
THE COMMISSIONER: Just correct me if I'm wrong, but isn't the purpose of the specialty entertainment definition a supportive one in relation to the two above?
PN115
MR HAMILTON: Commissioner, no, there are three definitions, and basically there should be one. That's what our variation seeks to do.
PN116
THE COMMISSIONER: All right. What is the ambiguity or uncertainty that's created by the existing definitions?
PN117
MR HAMILTON: Well, it's a duplication of - - -
PN118
THE COMMISSIONER: That may be - you might consider that's an unnecessary elaboration in the terminologies of the award, but that doesn't mean it's ambiguous.
PN119
MR HAMILTON: There are three - - -
PN120
THE COMMISSIONER: And it's not an error. It's obviously been quite conscientiously set out. I mean, the full bench didn't - I sort of participated in advisory discussions with the full bench, and I can assure you they go through every letter and comma and semicolon in these awards. They don't include things for no reason. It's quite a complex and very time-consuming task, but I can assure you it is extremely thorough.
PN121
MR HAMILTON: Commissioner, the three clauses would all only refer to clause 31.5, which is under the musicians' part of the award, where a musician that works in specialty entertainment receives an allowance of 66.7 per cent. The definition in the definitions goes to what is specialty entertainment, and they've got specialty entertainment musician, orchestral musician and then just specialty entertainment. It only applies to musicians. The orchestral musician definition came out of the Opera and Ballet Award. The specialty entertainment musician definition comes out of the old Musicians General Award and, similarly, with just specialty entertainment: that comes out of the Musicians General Award.
PN122
THE COMMISSIONER: But what is the uncertainty?
PN123
MR HAMILTON: Basically, Commissioner, (a) there is no orchestral musician definition or any reference to orchestral musician in this award. "Specialty entertainment" does not refer to whether it's a musician or a performer or a backstage employee. The only certainty is that 31.5 relates to a musician and relates to specialty entertainment for musician, so therefore there should be only the one definition of "specialty entertainment".
PN124
THE COMMISSIONER: Why?
PN125
MR HAMILTON: The others are superfluous, Commissioner.
PN126
THE COMMISSIONER: Right. So they're superfluous?
PN127
MR HAMILTON: Yes.
PN128
THE COMMISSIONER: I'm not sure I agree with that - - -
PN129
MR HAMILTON: Sorry, Commissioner?
PN130
THE COMMISSIONER: - - - because the clause 31.5 is "employee playing in special entertainments". "Special entertainment" is defined - - -
PN131
MR HAMILTON: Correct.
PN132
THE COMMISSIONER: - - - for the purpose of that clause.
PN133
MR HAMILTON: Correct, Commissioner.
PN134
THE COMMISSIONER: But isn't that what you want to delete?
PN135
MR HAMILTON: Sorry, Commissioner?
PN136
THE COMMISSIONER: Isn't that what you want to delete?
PN137
MR HAMILTON: We want to delete the orchestral musician and just the straight specialty entertainment. Then there will be only one definition of "specialty entertainment musician".
PN138
THE COMMISSIONER: Is that because the specialty entertainment provision only applies to musicians?
PN139
MR HAMILTON: That is correct, Commissioner.
PN140
THE COMMISSIONER: Just explain how that is to me.
PN141
MR HAMILTON: Sorry, Commissioner?
PN142
THE COMMISSIONER: But "employee playing in specialty entertainments" doesn't necessarily confine itself to musicians, does it? Is this in a part of the award that only applies to musicians?
PN143
MR HAMILTON: The only section in - - -
PN144
THE COMMISSIONER: It's in part 5.
PN145
MR HAMILTON: Is in part 5 in 31.5.
PN146
THE COMMISSIONER: All right.
PN147
MR HAMILTON: The only reference of "specialty entertainment" in the award, Commissioner.
PN148
THE COMMISSIONER: But there's no uncertainty, is there? Has this matter got any significance to it?
PN149
MR HAMILTON: Sorry, Commissioner?
PN150
THE COMMISSIONER: Has this matter got any significance, other than the editorial merit?
PN151
MR HAMILTON: Probably not, Commissioner, but it's tidying up those - - -
PN152
THE COMMISSIONER: Yes, I hear what you say, it's a tidying up exercise, but it has no practical significance in terms of the operation or the terms of the award.
PN153
MR HAMILTON: Not for the other two definitions, Commissioner.
PN154
THE COMMISSIONER: There's no way in which this will do anything, other than effect an editorial variation of the award. Isn't that right?
PN155
MR HAMILTON: Correct, Commissioner.
PN156
THE COMMISSIONER: The award can be applied with certainty now, can it not?
PN157
MR HAMILTON: To a certain extent, I think, Commissioner. An orchestral musician may then look at that definition and think that there would be something for them in the award about an orchestral musician playing specialty entertainment.
PN158
THE COMMISSIONER: Yes, but we're not worried about confusion amongst the orchestral musicians in this matter. This matter is very narrow. You've made your application under the ambiguity or uncertainty provision. Ambiguity and uncertainty are well known to this jurisdiction: either capable of differing and conflicting meanings or, alternatively, unable to be applied readily.
PN159
MR HAMILTON: And those other definitions would not be able to be applied.
PN160
THE COMMISSIONER: Why not? There's no obstacle to that. If you're an orchestral musician or a musician the instrument will apply. It's the instrument we're concerned with, not the subjective existential reality of an orchestral musician. We are interested here in the possibility of the certainty of application of the instrument on its terms and it just doesn't seem to me that there's any doubt about how it's to apply; it's to apply to musicians under part 5 - - -
PN161
MR HAMILTON: 5.
PN162
THE COMMISSIONER: Musicians generally or orchestral musicians providing specially entertainments which are defined and they're to be paid 66.7 per cent over and above.
PN163
MR HAMILTON: The award.
PN164
THE COMMISSIONER: I see no lack of certainty in the application of the instrument. There may be many, many comments that could be made about the editorial structure of the modern awards, the 122 of them, but it's not desirable for us to simply take on board editorial critique. The idea is to create an effect out of these proceeds which is different to the current effect of the instrument.
PN165
MR HAMILTON: Commissioner, we did that on the basis that we were making an application and that was a glaring - - -
PN166
THE COMMISSIONER: I can see that that may be, you know, to some degree infelicitous, but it doesn't necessarily create uncertainty.
PN167
MR HAMILTON: That's probably true, Commissioner.
PN168
THE COMMISSIONER: Yes, and I think the idea is that my powers only arise in a case of uncertainty - - -
PN169
MR HAMILTON: Uncertain - - -
PN170
THE COMMISSIONER: - - - and I have the power. Unless that's capable of two meanings I can't see that, or unless the instrument lacks certainty of application I have no power to vary it.
PN171
MR HAMILTON: That's fine, Commissioner.
PN172
THE COMMISSIONER: I cannot vary it on the grounds that - had I written it I might have only included one definition because I think that might have been a better editorial approach to the publication of the document; what we're here concerned with is the legal effects of the instrument.
PN173
MR HAMILTON: No, that's fine, Commissioner.
PN174
THE COMMISSIONER: I'm just explaining this to you because - - -
PN175
MR HAMILTON: Yes.
PN176
THE COMMISSIONER: - - - when I ultimately decide this application I don't want to have to go through everything. Everybody has had a chance to be here today. It's on the record. The decision may be somewhat summary in nature.
PN177
MR HAMILTON: No, that's fine, thank you, Commissioner.
PN178
THE COMMISSIONER: Right. What is the next one that's the - - -
PN179
MR HAMILTON: I'll go - - -
PN180
THE COMMISSIONER: That's (d), as well.
PN181
MR HAMILTON: Yes, that's (d), as well, Commissioner, yes.
PN182
THE COMMISSIONER: Another reason why I'm hesitant to deal with these things simply on the basis of editorial critique is that I didn't produce the exposure draft and I didn't make the award; eight other people in this place were involved in the production of this document.
PN183
MR HAMILTON: Point taken, thank you, Commissioner.
PN184
THE COMMISSIONER: They may have good reason for doing what they did. Unless it creates ambiguity or uncertainty I'm not minded to - I have no power to and I'm not inclined to go searching for the power to upset their drafting.
PN185
MR HAMILTON: Thank you, Commissioner. If I return now to variation 1(b) and variation 2, which goes to clause 13.2; variation 4 is also affected by what I'm about to say, and variation 28 - - -
PN186
THE COMMISSIONER: So this is production and support staff.
PN187
MR HAMILTON: Theatre, and the word "theatre" is the issue that has created ambiguity, uncertainty, in the award. Now, what we are seeking to do, Commissioner, is to delete the word "(Theatre)" and in variation 2 that's level - - -
PN188
THE COMMISSIONER: This is a common concept - - -
PN189
MR HAMILTON: It's a common - - -
PN190
THE COMMISSIONER: - - - to take "(Theatre)" out of all of these - - -
PN191
MR HAMILTON: That is correct, that is correct, Commissioner.
PN192
THE COMMISSIONER: Take "(Theatre)" out of all of these. Now, this is quite substantial, isn't it, because this extends - - -
PN193
MR HAMILTON: Sorry, Commissioner?
PN194
THE COMMISSIONER: I'm assuming this will therefore extend the award prescriptions to persons other than those involved in the theatre. Is that the effect of it? What's the effect of the change?
PN195
MR HAMILTON: The effect of the change was to actually try and increase rates of pay - - -
PN196
THE COMMISSIONER: This change that you're proposing?
PN197
MR HAMILTON: No, no, the - - -
PN198
THE COMMISSIONER: What's the effect of the change you're proposing?
PN199
MR HAMILTON: The effect of the change will be to reflect the agreed translation document that was handed to the full bench on 29 June and just before that time the union had submitted a submission which was unknown to us - - -
PN200
THE COMMISSIONER: Which union?
PN201
MR HAMILTON: MEAA. Can I explain the situation, Commissioner, so it might become a bit more clear: on 23 June MEAA submitted a submission to the full bench - - -
PN202
THE COMMISSIONER: Sorry, what date, 25 - - -
PN203
MR HAMILTON: 23 June.
PN204
THE COMMISSIONER: 23rd.
PN205
MR HAMILTON: And if you wish, Commissioner, I have copies here - - -
PN206
THE COMMISSIONER: Yes, please.
PN207
MR HAMILTON: Would you like just one copy, Commissioner?
PN208
THE COMMISSIONER: That's fine. I'll mark it A1.
PN209
MR HAMILTON: Sorry, Commissioner?
PN210
THE COMMISSIONER: I'll mark it A1.
PN211
MR HAMILTON: Thank you.
EXHIBIT #A1 SUBMISSION OF MEAA TO THE FULL BENCH
MR HAMILTON: Commissioner, as this was the week before the full bench hearing to go through those issues - as the full bench reminded us to go through those issues - that were in dispute with the union and we had the chance to put our submissions orally to the full bench. This letter came into the web site; we looked at the letter and this letter was a result of discussions between the parties, MEAA and ourselves, in chambers with Deegan C, and it was sorting out the definition of "performance" and "broken week" and MEAA sought to clarify their agreement to that definition.
PN213
Unbeknown to us, because we just looked at the web site, agreed that that's what the MEAA were doing, and we went on - unbeknown to us there was attached to that letter - and there was no reference in the letter - that there was another submission from the production - or the crew area of MEAA, which sought to import new classifications and adding the word "theatre" to those classifications and the effect of that was - and you will note, Commissioner, on page 2 of that second submission, that MEAA have stated:
PN214
We advise this submission is filed with the consent of Live Performance Australia.
PN215
And that was definitely not the case because we had an agreement with the union on the translation document, which we handed up to the full bench at the time of t29 June.
PN216
THE COMMISSIONER: All right, so what is the result of this in the award - something which you say was never agreed to by your organisation found its way into the award?
PN217
MR HAMILTON: Obviously the award modernisation people saw that; saw that we had agreed; showed it to the full bench and they added those classifications, productions, for worker level 4, 5 and 6 in a level above where we originally had just production and support staff level 4 - that's in level 4, but in level 5 you will see there is production and support staff level 4.
PN218
THE COMMISSIONER: My question very simply was prescriptions in the award - the details are irrelevant - were published, which you had not agreed to.
PN219
MR HAMILTON: Correct.
PN220
THE COMMISSIONER: And these prescriptions were as to classification levels and rates of pay.
PN221
MR HAMILTON: Correct.
PN222
THE COMMISSIONER: And what you now seek to do is to change that?
PN223
MR HAMILTON: Correct, with the consent of the union as they - - -
PN224
THE COMMISSIONER: With the consent of the MEAA.
PN225
MR HAMILTON: Within the - - -
PN226
THE COMMISSIONER: With their now consent.
PN227
MR HAMILTON: Correct.
PN228
THE COMMISSIONER: Which is on the record somewhere?
PN229
MR HAMILTON: Correct.
PN230
THE COMMISSIONER: Where's that? Where's that on the record?
PN231
MR HAMILTON: It's in a letter.
PN232
THE COMMISSIONER: I just want you to go on this record in your submissions - - -
PN233
MR HAMILTON: Have we got a copy of - - -
PN234
THE COMMISSIONER: So this is to correct an error, is it not?
PN235
MR HAMILTON: That is correct, Commissioner. It's to correct - - -
PN236
THE COMMISSIONER: This is not ambiguity or uncertainty. It's error.
PN237
MR HAMILTON: Commissioner, I haven't got the official - - -
PN238
THE COMMISSIONER: Well, we need to record that.
PN239
MR HAMILTON: Sorry, Commissioner?
PN240
THE COMMISSIONER: It's probably in the materials.
PN241
MR HAMILTON: It's on the web site.
PN242
THE COMMISSIONER: It's on the web site but - - -
PN243
MR HAMILTON: I do have an email here from Victoria Houston, who's the national live performance industrial officer, advising us that they agree to the variations, and there is also another one - - -
PN244
THE COMMISSIONER: You'd better tender that.
PN245
MR HAMILTON: I've written all over it.
PN246
THE COMMISSIONER: All right, but tender it anyway.
PN247
MR HAMILTON: And there is the official - - -
PN248
THE COMMISSIONER: This email is A2. The date of the email is 24 May 2010. The author is Victoria Houston, national life performance industrial officer, Media Entertainment and Arts Alliance. That's A2.
EXHIBIT #A2 EMAIL FROM VICTORIA HOUSTON DATED 24/05/2010
MR HAMILTON: Thank you, Commissioner. I haven't got a copy of the official agreement.
PN250
THE COMMISSIONER: That's on the web site?
PN251
MR HAMILTON: Yes, it is on the web site, Commissioner. Basically, Commissioner, the variation we seek takes that error out of contention. We are left with a classification structure originally agreed with with MEAA until - and MEAA have agreed that the original classification structure should stand and that their variation, or their letter or submission on 23 June 2009, was erroneous and should be amended. Now, that goes to - as I mentioned, Commissioner, variation 1(b), variation 2 of - - -
PN252
THE COMMISSIONER: Variation 4 and variation 28.
PN253
MR HAMILTON: Yes, variation 4, Commissioner, is a little bit different. Clause 22.5 is titled Support Staff and it should be - what we're seeking to do is change it to production and support staff because there is no support staff in the award.
PN254
THE COMMISSIONER: What happens under 28?
PN255
MR HAMILTON: 28 is a variation to schedule B, Commissioner, where the - and if you look at schedule B, that is the descriptors for each level.
PN256
THE COMMISSIONER: Why are you deleting those?
PN257
MR HAMILTON: What we're doing, Commissioner, is deleting - for example, in schedule B5, which is the live performance employee level 5, you will note in paragraph (d)(10) - well, (11), (12), (13), (14) and (15) in (d) all contain a classification like "accounts clerk (theatre)". We're deleting those classifications out of that descriptor because they are replicated in actually B4 in the classification - - -
PN258
THE COMMISSIONER: B4?
PN259
MR HAMILTON: Live performance employee level - - -
PN260
THE COMMISSIONER: And what happens at B6.1?
PN261
MR HAMILTON: In B6, Commissioner, in paragraph (d), those classifications which have "theatre" in brackets beside them are deleted.
PN262
THE COMMISSIONER: Because once again they appear in B4?
PN263
MR HAMILTON: I'm sorry, Commissioner?
PN264
THE COMMISSIONER: Is that because once again they appear in B4?
PN265
MR HAMILTON: They actually appear in B5. So the effect of MEAA's submission was to use the same classifications that we had as production or support staff level 4 or level 5 or level 6. What they did then is to take the same classification, level 5, put "(theatre)" beside it and then put it up into actually the level 6 classification band. So that was the effect of their submission and they confused it even further by putting "(theatre)" beside that classification because we're talking about production and support staff, and those production and support staff - - -
PN266
THE COMMISSIONER: So the rationale for all of these variations is that the full bench was advised by MEAA that the classifications and definitions - is it?
PN267
MR HAMILTON: And definitions, yes, Commissioner.
PN268
THE COMMISSIONER: And definitions now the subject of this application were agreed between MEAA and who? Who did they say had agreed to this? Give me the correct name. Which organisation? Your organisation?
PN269
MR HAMILTON: Yes, our organisation.
PN270
THE COMMISSIONER: Australian Entertainment Industry Association?
PN271
MR HAMILTON: That's correct, Commissioner. And Commissioner, just as - - -
PN272
THE COMMISSIONER: Just a moment.
PN273
MR HAMILTON: Sorry.
PN274
THE COMMISSIONER: Was it a full bench recommendation that the parties agree? You told me about a full bench telling you to go away and agree this.
PN275
MR HAMILTON: Sorry, Commissioner?
PN276
THE COMMISSIONER: You said earlier that at some point the full bench - and I'm assuming the award modernisation full bench - had told the parties to go away and agree these classifications.
PN277
MR HAMILTON: That's correct, Commissioner.
PN278
THE COMMISSIONER: When was that?
PN279
MR HAMILTON: It was before the full bench hearing of the 29th of - - -
PN280
THE COMMISSIONER: Before the 29th, but when was it? How did it happen? Did it happen at a live hearing? Did it happen by communication or - - -
PN281
MR HAMILTON: It happened between discussions between MEAA and ourselves and - - -
PN282
THE COMMISSIONER: No, how did the full bench communicate this to you?
PN283
MR HAMILTON: They accepted - when the full bench - - -
PN284
THE COMMISSIONER: Let's go back to the start.
PN285
MR HAMILTON: Yes.
PN286
THE COMMISSIONER: Just try and answer the question directly. The full bench, on what you've put to me, instructed the parties to agree upon these classifications and wage rates of translation. Isn't that right? That's what you told me a little while ago.
PN287
MR HAMILTON: We had agreed on the classification structure.
PN288
THE COMMISSIONER: No, you're not addressing to the question, with all due respect. I'm interested in the activities of the full bench.
PN289
MR HAMILTON: The full bench - - -
PN290
THE COMMISSIONER: Told you something. You said to me the full bench recommended something. What did they recommend? When did they recommend it? How did they recommend it?
PN291
MR HAMILTON: I didn't say the full bench recommended anything, Commissioner.
PN292
THE COMMISSIONER: I thought you did.
PN293
MR HAMILTON: No, sorry, Commissioner. What happened: during the proceedings of 29 June in front of the full bench - - -
PN294
THE COMMISSIONER: Right.
PN295
MR HAMILTON: - - - I presented a translation document - - -
PN296
THE COMMISSIONER: Yes.
PN297
MR HAMILTON: - - - to the Commission, and in the transcript from paragraph number 2884 to paragraph number 2906, various commission members, full bench members, asked me questions about the classification structure and the translation document, and in response to I think a question from Harrison SDP I made mention to the full bench that that document had been agreed to by MEAA.
PN298
THE COMMISSIONER: So this was a document that you tendered?
PN299
MR HAMILTON: That's correct, Commissioner. I have a copy of it - - -
PN300
THE COMMISSIONER: Just bear with me, please. I don't think my colleagues will take very kindly to me misrepresenting them in any decision, so I want to get this absolutely correct.
PN301
MR HAMILTON: Yes, Commissioner.
PN302
THE COMMISSIONER: So the document was tendered at that hearing?
PN303
MR HAMILTON: Correct, Commissioner.
PN304
THE COMMISSIONER: Was it marked?
PN305
MR HAMILTON: No. I asked the President if he would like it marked, but he advised me that they weren't marking them and they would take care of it if - at paragraph 2893 the President said, "No, we can attend to that," after I asked if - "I would like to submit this document." They had a copy of it.
PN306
THE COMMISSIONER: How had they obtained a copy?
PN307
MR HAMILTON: I handed up a copy.
PN308
THE COMMISSIONER: Yes, all right. So it wasn't marked.
PN309
MR HAMILTON: It wasn't marked. The President - - -
PN310
THE COMMISSIONER: Right. But you said that it had been agreed with MEAA.
PN311
MR HAMILTON: Correct, Commissioner. And I have a copy of that translation document, if you wish to view it. This is the document we handed up in the full - - -
PN312
THE COMMISSIONER: Yes, well, you might give me a copy of that, too. So this will be A3.
EXHIBIT #A3 TRANSLATION DOCUMENT TENDERED TO FULL BENCH ON 29/06/2010
THE COMMISSIONER: So this was tendered to the full bench on 29 June.
PN314
MR HAMILTON: Correct, Commissioner.
PN315
THE COMMISSIONER: And you stated that the MEAA had agreed to this. Now, let me just have a look at this. Had they advised the full bench of that?
PN316
MR HAMILTON: I am unsure, Commissioner.
PN317
THE COMMISSIONER: So the MEAA made a - do you have some form of confirmation of that agreement that was in your possession at that time?
PN318
MR HAMILTON: If you just bear with me, Commissioner.
PN319
THE COMMISSIONER: Yes.
PN320
MR HAMILTON: I haven't got anything here with me, Commissioner. In our exposure draft of May 2009, which we submitted to the full bench, the only thing I have here is that, in the classification structure that we had put up, we had a comment and a variation to the structure following discussions with MEAA, and we had amended our exposure draft, which we submitted to Deegan C, with these comments on it. So that's as far as - - -
PN321
THE COMMISSIONER: Actually, the difficulty here is that - I mean, we do have the MEAA agreeing to this now.
PN322
MR HAMILTON: Yes.
PN323
THE COMMISSIONER: I suppose it can be inferred that - I'm not sure what's to be inferred. But, anyway, they agree with it now.
PN324
MR HAMILTON: Correct.
PN325
THE COMMISSIONER: But we're here dealing with a proposition of error on the part of the full bench.
PN326
MR HAMILTON: Correct.
PN327
THE COMMISSIONER: And the error which is asserted is that they mistakenly incorporated rates of pay which were different to those which were agreed between the parties.
PN328
MR HAMILTON: Well, not the rates - - -
PN329
THE COMMISSIONER: And that those which were agreed between the parties - or classifications, shall we say? - classifications with attendant rates of pay in particular parts of the award.
PN330
MR HAMILTON: The full bench took into consideration that submission of 23 June - - -
PN331
THE COMMISSIONER: 23rd? 29th, you told me.
PN332
MR HAMILTON: No, the 23rd. Commissioner, A1, which I handed up, there are two parts of A1. There is a letter to Commissioner - - -
PN333
THE COMMISSIONER: Yes, I know that. You're elaborating on what I'm saying.
PN334
MR HAMILTON: Yes.
PN335
THE COMMISSIONER: Let me just see if I can define the error. If I'm going to exercise any power here, I have to set out in my decision what the basis upon which I conclude an error exists is. If that's not properly founded, there's no jurisdiction to make the variation sought by you.
PN336
MR HAMILTON: That's correct.
PN337
THE COMMISSIONER: So I have to find out what the error is and I have to define the error in order to make any variation to the award within jurisdiction. You don't want me making variations that at some point down the track people say, "Well, you know, there was never any identification of error so therefore the power to make the variation miscarried. There's been no variation." That's the legal effect of not defining the error. Do you follow what I mean? I can make all the orders I like, but if they're not made on a proper basis of jurisdiction and power, they don't exist.
PN338
MR HAMILTON: Correct, Commissioner.
PN339
THE COMMISSIONER: Yes. So just help me to go through the process of establishing in my own mind the basis upon which I can be satisfied that there was an error, and to do so precisely. The error which you say is that there was in fact an agreement between the parties which was explained to the full bench on 29 June. The difficulty we have in this chain of reasoning is that we don't have proof of the agreement.
PN340
MR HAMILTON: That's correct, Commissioner, except my statements in the transcript where I - - -
PN341
THE COMMISSIONER: Well, you asserted the agreement.
PN342
MR HAMILTON: And I was just looking at the transcript, and there was no confirmation - I was just quickly looking at the transcript, and I can't really see whether that issue was addressed by - - -
PN343
THE COMMISSIONER: I took your word for it and I have no reason to doubt it. But I wasn't there and I didn't make the decision.
PN344
MR HAMILTON: Correct.
PN345
THE COMMISSIONER: I'm now asked, in a separate proceeding, to find an error.
PN346
MR HAMILTON: Correct, Commissioner.
PN347
THE COMMISSIONER: The error which you say exists, in order for me to have the power to make the variation you seek, is that an agreement as to rates was not provided for in the award but, rather, a proposal of the MEAA that was never agreed. Correct?
PN348
MR HAMILTON: Basically, Commissioner, what had happened was a submission was put to the commission on 23 June; that submission by the MEAA states that Live Performance Australia agreed with that submission - - -
PN349
THE COMMISSIONER: Yes, I understand that part.
PN350
MR HAMILTON: We were unaware of that submission at the time of the full bench of the 29th - the hearing of the 29th.
PN351
THE COMMISSIONER: Right, so it's the adoption - - -
PN352
MR HAMILTON: And then the full bench adopted our classification structure plus that - - -
PN353
THE COMMISSIONER: In fact the error is the incorporation of proposals for the contentious classifications being included on the mistaken basis of AEIA's agreement - - -
PN354
MR HAMILTON: Correct.
PN355
THE COMMISSIONER: Agreement asserted in exhibit A1, which was never addressed on 29 June.
PN356
MR HAMILTON: That's correct, Commissioner. If we were aware of that submission we would have addressed it before the full bench on 29 June.
PN357
THE COMMISSIONER: And MEAA now concedes this.
PN358
MR HAMILTON: Correct.
PN359
THE COMMISSIONER: By inference in their support for the variation, the effect of which will be that the award will reflect exhibit A3.
PN360
MR HAMILTON: Correct.
PN361
THE COMMISSIONER: Is that right?
PN362
MR HAMILTON: Correct, Commissioner, and also A3 reflected our exposure draft of May 2009, just for completeness.
PN363
THE COMMISSIONER: Which was consistent with AEIA's - what was it again?
PN364
MR HAMILTON: May 2009.
PN365
THE COMMISSIONER: What was the date?
PN366
MR HAMILTON: I haven't got a specific date. I think it might - - -
PN367
THE COMMISSIONER: With which MEAA had agreed.
PN368
MR HAMILTON: - - - have been 18 June. It was submitted in June; it was in response to the full bench's draft, Commissioner. That's right, yes.
PN369
THE COMMISSIONER: It's not your exposure draft, is it?
PN370
MR HAMILTON: Sorry, Commissioner?
PN371
THE COMMISSIONER: It's not your exposure draft really. The exposure drafts are - in this discussion appropriate sort of reference to exposure drafts is exposure drafts of the tribunal, right, so this was your draft - - -
PN372
MR HAMILTON: Our draft, yes.
PN373
THE COMMISSIONER: Draft classification structure. Right?
PN374
MR HAMILTON: Correct, Commissioner.
PN375
THE COMMISSIONER: Submitted on - when was it submitted?
PN376
MR HAMILTON: 12 June. We will stand corrected on that, but it was around that time.
PN377
THE COMMISSIONER: Can you confirm that?
PN378
MR HAMILTON: Yes, Commissioner, we can confirm that.
PN379
THE COMMISSIONER: 2009. When you submitted that - you said something a little earlier about the fact that there had been some dialogue with the MEAA about that.
PN380
MR HAMILTON: That's correct, Commissioner.
PN381
THE COMMISSIONER: What happened?
PN382
MR HAMILTON: I have just notes in this marked-up version of our draft.
PN383
THE COMMISSIONER: So there's nothing on the record?
PN384
MR HAMILTON: I don't think so, Commissioner.
PN385
THE COMMISSIONER: All right.
PN386
MR HAMILTON: It would have been just verbal negotiation with MEAA at the time.
PN387
THE COMMISSIONER: All right. I understand that now.
PN388
MR HAMILTON: Have we dealt with those variations, Commissioner?
PN389
THE COMMISSIONER: Yes.
PN390
MR HAMILTON: Commissioner, variation 3 goes to a wrong reference in the award. The award in clause 13.3 refers to clauses 30 and 37; that reference should be to clause 24.
PN391
THE COMMISSIONER: How do you deal with the 37 reference in your application.
PN392
MR HAMILTON: We don't seek to change 37, Commissioner.
PN393
THE COMMISSIONER: All right.
PN394
MR HAMILTON: So clause 24 - - -
PN395
THE COMMISSIONER: What's the difference?
PN396
MR HAMILTON: Clause 30 in the award, Commissioner, is minimum wages for musicians and clause 13.3 says:
PN397
Further minimum wages for performers and company dancers and striptease artists - - -
PN398
THE COMMISSIONER: I don't understand the effect. What's the effect? What's the mistaken effect of the existing provision of the award and what's the error?
PN399
MR HAMILTON: The error is clause - the reference I've got to clause 30 is "minimum wages musicians", where it should be, "minimum wages for performers", which is clause 24.
PN400
THE COMMISSIONER: And why is that?
PN401
MR HAMILTON: Sorry, Commissioner?
PN402
THE COMMISSIONER: And why is that?
PN403
MR HAMILTON: Why is the reference to clause 30?
PN404
THE COMMISSIONER: The correct reference - no. Clause 24 the correct reference.
PN405
MR HAMILTON: That is the correct reference.
PN406
THE COMMISSIONER: Why?
PN407
MR HAMILTON: Because that sets out the minimum wages for performers and company dancers. Clause 37 - - -
PN408
THE COMMISSIONER: Clause 30 refers to what?
PN409
MR HAMILTON: Musicians' minimum wages. Clause 37 sets out minimum wages for striptease artists, so clause 13.3 does not refer to musicians.
PN410
THE COMMISSIONER: I'll have to go through this and start from the bottom up. What's important here is - - -
PN411
MR HAMILTON: Is the correct - - -
PN412
THE COMMISSIONER: - - - that the record of these proceedings, the transcript today, should have a level of clarity, that if the full bench reads it they understand what's going on.
PN413
MR HAMILTON: Correct, Commissioner.
PN414
THE COMMISSIONER: And ideally as clearly and as precisely as possible as to the changing effects of any variation that's mooted on the operation of the instrument, so that's why I want to go - I thought it might be possible to actually summarise the changing effect in a way that someone reading the transcript would really make sense of - - -
PN415
MR HAMILTON: Yes, Commissioner. Commissioner, clause 13.3 refers to a clause that indicates - - -
PN416
THE COMMISSIONER: It's a mistake in clause 13.3 - - -
PN417
MR HAMILTON: And every state - - -
PN418
THE COMMISSIONER: - - - because minimum wages of performers and company dancers and striptease artists are not mentioned in clause 30. Is that right?
PN419
MR HAMILTON: Correct, Commissioner.
PN420
THE COMMISSIONER: Rather, they are mentioned in clause 24.
PN421
MR HAMILTON: 24 and 37.
PN422
THE COMMISSIONER: Why don't we want to put 37 in there? Because that's already there, is it?
PN423
MR HAMILTON: That's already there, Commissioner. I just sought to change clause - - -
PN424
THE COMMISSIONER: Yes, I understand. All right. And that is simply an error of cross-referencing in the award.
PN425
MR HAMILTON: Correct.
PN426
THE COMMISSIONER: Yes, we can move on now. Well, we've dealt with 4.
PN427
MR HAMILTON: Dealt with 4, Commissioner. Clause 5 - variation 5. If I turn to clause 24.5, Commissioner, it is entitled Casuals. Now, this clause provides some ambiguity. In the classification structure we have a category 1, grades 1 and 2 performers, and we have a category 2 performer. A category 2 performer, Commissioner, is a variety artist, comedian, et cetera. Those employees under category 2, whilst having the same pay rate as a performer category 1 grade 2, have a different divisor to determine their performance rate.
PN428
The casual performance rate for a category 1 grade 1 or grade 2 performer is set out in clause 24.5. 24.5 then does not provide the casual performance rate for a category 2 performer. If we notice there, Commissioner, the 24.5 actually relates to grade 1 and grade 2 of category 1 - - -
PN429
THE COMMISSIONER: I'm looking at 24.5 and it makes no mention of anything to do with the categories.
PN430
MR HAMILTON: That's correct, Commissioner. That is except it distinguishes between company dancers - these provisions apply - clause 25 is minimum wages for performers and company dancers in part 4.
PN431
THE COMMISSIONER: That's right. A little bit too much information at this stage. I don’t make the connection. The clause - what's the problem? Is it ambiguous or uncertain? Is there an error? What is the issue? You've said it's ambiguous. I'm reading clause 24.5. I see no ambiguity.
PN432
MR HAMILTON: It does not distinguish between a category 1 and - - -
PN433
THE COMMISSIONER: It may not but the text itself is unambiguous.
PN434
MR HAMILTON: Well, the result of that provision is a reduction in pay for - - -
PN435
THE COMMISSIONER: That's a different thing. The fact that the effect of it may be a case that the award now sets a lower rate of remuneration for the employees that are subject to its terms is a different thing to whether or not the words that are used to express the entitlement are ambiguous. What you are seeking - as best I'm able to see it on the surface of the application - is to increase the rates. Is that not right? When I look at the variation, you're proposing a significantly higher - - -
PN436
MR HAMILTON: What we are seeking to do, Commissioner, is to keep the present clause 24.5 and change the title to Casual Performance to make a distinction between the rates of pay that are paid for casual rehearsal, and - - -
PN437
THE COMMISSIONER: Is that somewhere else, is it?
PN438
MR HAMILTON: Yes, that's somewhere else, which I'll be getting to a bit later, which is actually in variation 6, Commissioner.
PN439
THE COMMISSIONER: Just bear with me for a moment. Mr Hamilton, do you know why I'm perplexed about this, or should I explain it? I mean if you're changing the standards in the award, if you're introducing new award terms, that's a different thing to correcting an ambiguity, an uncertainty or an error. Somebody has left something out which - you know, because when it went into our publication section from the full bench, somehow or other somebody managed to leave it out. That's an error.
PN440
MR HAMILTON: Well, basically - - -
PN441
THE COMMISSIONER: But if what you're seeking to do is to actually change the effect of the instrument, either to increase a benefit under the agreement, to introduce a new benefit under the agreement, or to reduce an existing benefit, that comes under section 150 something or other, doesn't it, not section 160?
PN442
MR HAMILTON: Correct, Commissioner.
PN443
THE COMMISSIONER: But this is an application under section 160.
PN444
MR HAMILTON: Correct, Commissioner.
PN445
THE COMMISSIONER: So I'd like to start - on each time we go to the variation, let's not start with why you think it's a good idea that the award says this; let's start with my problem, which is what is the nature of the ambiguity, what is the nature of the uncertainty or what is the nature of the error, or all three as the case may be.
PN446
MR HAMILTON: The nature of the ambiguity - well, we would submit that it was an error because it was left out of the modern award - is that it does not provide for - - -
PN447
THE COMMISSIONER: So it's an error.
PN448
MR HAMILTON: Yes, the award - - -
PN449
THE COMMISSIONER: It's not ambiguity; it's error.
PN450
MR HAMILTON: Error. The award does not provide for a casual performance rate for a category 2 performer.
PN451
THE COMMISSIONER: Right, okay, so the error is that there is only one - well, there are various errors here. There are various, aren't there?
PN452
MR HAMILTON: Correct.
PN453
THE COMMISSIONER: One, there's no distinction between performance and rehearsal for casuals.
PN454
MR HAMILTON: Correct, Commissioner.
PN455
THE COMMISSIONER: Two, there is no distinction between category 1 and category 2.
PN456
MR HAMILTON: That's correct, Commissioner.
PN457
THE COMMISSIONER: So the correction is to have rates for rehearsal and - - -
PN458
MR HAMILTON: Performance.
PN459
THE COMMISSIONER: And two is to have two rates. All right, is that correct?
PN460
MR HAMILTON: That's correct, Commissioner.
PN461
THE COMMISSIONER: Now, how do you say that it's appropriate to characterise the omission of the distinction and the categorisation as an error? What's the nature of the error?
PN462
MR HAMILTON: The nature of the error, Commissioner, is that there is no performance rate.
PN463
THE COMMISSIONER: No, that's the outcome. The error is something that occurs in the process.
PN464
MR HAMILTON: Yes. Well, the error is, it was omitted from the original exposure draft.
PN465
THE COMMISSIONER: All right. So the full bench issued an exposure draft that had all these things in it. Is that right?
PN466
MR HAMILTON: No, it didn't, Commissioner.
PN467
THE COMMISSIONER: Was there ever an exposure draft issued by the full bench in - - -
PN468
MR HAMILTON: Yes, Commissioner.
PN469
THE COMMISSIONER: Right. So what was in that?
PN470
MR HAMILTON: There wasn't a provision for a category 2 or variety of performer and - - -
PN471
THE COMMISSIONER: So neither of these - so what was there? What's in the award was in the exposure draft. Is that right?
PN472
MR HAMILTON: No, Commissioner. They didn't put - sorry. Yes, the exposure draft reflect - the award - - -
PN473
THE COMMISSIONER: The award reflects the exposure draft - - -
PN474
MR HAMILTON: Correct.
PN475
THE COMMISSIONER: - - - in clause 24.5.
PN476
MR HAMILTON: Correct.
PN477
THE COMMISSIONER: So what's the error?
PN478
MR HAMILTON: And the parties were unaware and did not pick up that error.
PN479
THE COMMISSIONER: That's not an error.
PN480
MR HAMILTON: It's not an error, Commissioner?
PN481
THE COMMISSIONER: Well, it might be your error.
PN482
MR HAMILTON: That's our error.
PN483
THE COMMISSIONER: The errors that are correctable here are not your errors. It's errors of the tribunal, right, where the tribunal acts erroneously?
PN484
MR HAMILTON: No, we're not saying that - - -
PN485
THE COMMISSIONER: Otherwise, it makes a mockery of the distinction between where you're making an application to vary the modern award in order to achieve the modern award's objective and one where you're seeking to remedy any ambiguity, uncertainty or error.
PN486
MR HAMILTON: Yes.
PN487
THE COMMISSIONER: The statute divides them too clearly. If you're coming in to change the substantive terms of the award, then you go under a different section than ambiguity, uncertainty or error.
PN488
MR HAMILTON: We may well have to do that.
PN489
THE COMMISSIONER: I think the nature of this application is that it's actually - you're seeking a variation of the modern award, because the award - there's been no error. The full bench has issued an exposure draft.
PN490
MR HAMILTON: Yes.
PN491
THE COMMISSIONER: Nobody has addressed the casual provisions of the exposure draft. The full bench has, quite rightly, proceeded on the basis that there was no objection to that form and that level of entitlements.
PN492
MR HAMILTON: Yes, Commissioner. Agree with you.
PN493
THE COMMISSIONER: I think that's pretty clear - - -
PN494
MR HAMILTON: Yes.
PN495
THE COMMISSIONER: - - - on what you've told me. So this application - - -
PN496
MR HAMILTON: Variation 5, Commissioner.
PN497
THE COMMISSIONER: Just bear with me for a moment. This part of the application is subject to section 157, isn't it? I think this part of the application is more properly characterised as one that should be made under section 157.
PN498
MR HAMILTON: Sorry, Commissioner. Yes.
PN499
THE COMMISSIONER: Do you accept that? I mean, it seems to me that the error that you're identifying is the error of the parties in not responding to the exposure draft.
PN500
MR HAMILTON: Yes, that - - -
PN501
THE COMMISSIONER: That's not the nature of the error that's contemplated by the statute.
PN502
MR HAMILTON: Taken, Commissioner. Yes. Would that go for the next variation, variation 6, Commissioner?
PN503
THE COMMISSIONER: Just let me make a note of this. You didn't respond. No party has responded - parties responded differently to the FB B2 re casuals. Is that right?
PN504
MR HAMILTON: That's right, Commissioner.
PN505
THE COMMISSIONER: What's in the award was in the exposure draft.
PN506
MR HAMILTON: Yes.
PN507
THE COMMISSIONER: And there were no submissions saying, "Put something else in." Correct?
PN508
MR HAMILTON: Correct, Commissioner.
PN509
THE COMMISSIONER: So no error. All right. So now that is 5. We're moving onto 6. Sorry.
PN510
MR HAMILTON: Commissioner, this may or may not - - -
PN511
THE COMMISSIONER: So 6 really is just caught up with that. It's just consequential of the above, isn't it?
PN512
MR HAMILTON: Yes. Basically, Commissioner, it's to make sure that 24.8 refers to "casual employees". It doesn't refer to any other employee.
PN513
THE COMMISSIONER: All right. Let me have a look at that.
PN514
MR HAMILTON: So we are seeking rehearsals with "(casuals)" after the "rehearsals", so it is quite - - -
PN515
THE COMMISSIONER: Why is that an error? You need to locate this in the process. I mean, it's unambiguous, isn't it? There's nothing ambiguous about the terms of the award.
PN516
MR HAMILTON: It doesn't mention that it is for casuals.
PN517
THE COMMISSIONER: I know that, but statutory direction is that I must be satisfied that there's ambiguity in the terms. I can't see any there. You may think they're the wrong terms but the terms that are there are unambiguous, on my reading.
PN518
MR HAMILTON: No, that's fine, Commissioner.
PN519
THE COMMISSIONER: And they're not uncertain.
PN520
MR HAMILTON: No.
PN521
THE COMMISSIONER: You may consider them to be inappropriate in order to meet the modern award's objectives because they don't confine their prescription to casual employees.
PN522
MR HAMILTON: Yes.
PN523
THE COMMISSIONER: Right. So that the effect of the change to "casuals" would be what: would be that those benefits are not available to anybody else? Is that right?
PN524
MR HAMILTON: That's correct, Commissioner. So it would probably fall in the same category as variation 5, Commissioner.
PN525
THE COMMISSIONER: Well, I don't know, because it essentially comes under - is there another rehearsal provision in the award?
PN526
MR HAMILTON: No, Commissioner.
PN527
THE COMMISSIONER: This is the only rehearsals provision?
PN528
MR HAMILTON: Correct.
PN529
THE COMMISSIONER: So the implication - well, what's the implication? I mean, how could I possibly come to the conclusion that this is ambiguous and uncertain, if it's clearly intended to apply to casuals?
PN530
MR HAMILTON: That is correct, Commissioner. It does not apply to full-time employees.
PN531
THE COMMISSIONER: Well, it does, on its face.
PN532
MR HAMILTON: On its face, it could well be construed that it - - -
PN533
THE COMMISSIONER: That what? You have to explain to me in the context of the award why that creates ambiguity.
PN534
MR HAMILTON: In the context of the award, Commissioner, there is a performance rate for casual employees and the - - -
PN535
THE COMMISSIONER: Where's that?
PN536
MR HAMILTON: That's in clause - the one that we've just been discussing, Commissioner, which was - - -
PN537
THE COMMISSIONER: Right. So the implication is that this is the rehearsal rate for casual employees.
PN538
MR HAMILTON: That's correct. In 24.5 which is entitled Casuals - - -
PN539
THE COMMISSIONER: A better formatting would have had that in.
PN540
MR HAMILTON: Yes, and that's what we had sought in our variation, Commissioner, to call it "Casuals performance". That is, 24.5.
PN541
THE COMMISSIONER: You mean this variation you're now seeking?
PN542
MR HAMILTON: Sorry, Commissioner?
PN543
THE COMMISSIONER: The variation you are now seeking?
PN544
MR HAMILTON: No. I was just going to be recapping of what variation 5 was, which we've decided that - yes, is it a fresh application to vary award?
PN545
THE COMMISSIONER: But that goes to do two things - and perhaps you should have raised this. You might have in passing, but its very confusing, a lot of this, and a lot of it has got to do with the formatting of the provisions.
PN546
MR HAMILTON: Yes.
PN547
THE COMMISSIONER: The grouping of relationships. You know, this is a rate. These are casual rates, aren't they?
PN548
MR HAMILTON: Yes, these are casual rates, Commissioner. In our - - -
PN549
THE COMMISSIONER: And when you're prescribing rates of pay in an award there's something to be said for doing them all in the one place.
PN550
MR HAMILTON: Correct, Commissioner.
PN551
THE COMMISSIONER: Before you move onto other subject matter such as touring and juvenile rates of pay or whatever.
PN552
MR HAMILTON: Yes, juveniles are stuck in between the casual rates - - -
PN553
THE COMMISSIONER: That's right.
PN554
MR HAMILTON: And in our draft that we had submitted to the commission, we had actually a section for casuals where we had performance rehearsals.
PN555
THE COMMISSIONER: Right, and where is that?
PN556
MR HAMILTON: That is a draft that we submitted in June. We were going to confirm the date. I have a copy here if you wish to view it, Commissioner.
PN557
THE COMMISSIONER: I do - well, you see, what it seems to me you're saying is that you can treat this rehearsals provision as a casual rehearsals provision because there was never any other submission before the tribunal in relation to rehearsals - - -
PN558
MR HAMILTON: That's correct.
PN559
THE COMMISSIONER: - - - of this nature.
PN560
MR HAMILTON: Correct, Commissioner.
PN561
THE COMMISSIONER: And it's erroneous not to make - well, it drags certainty by using - - -
PN562
MR HAMILTON: The word "casual".
PN563
THE COMMISSIONER: - - - the word "casual", because there was - clearly there was nothing that ever occurred that contemplated a rate like this except applying to casuals.
PN564
MR HAMILTON: Casual - correct, Commissioner.
PN565
THE COMMISSIONER: So that the omission of the word "casual" creates uncertainty. Right.
PN566
MR HAMILTON: Yes, and to create - well, it creates it, yes, Commissioner. Commissioner, that document I've just - - -
PN567
THE COMMISSIONER: That's not all that difficult to sustain, I don't think.
PN568
MR HAMILTON: I would think not, Commissioner. It does provide certainty - - -
PN569
THE COMMISSIONER: So that you could actually move 24.8 to become a part of 24.5.
PN570
MR HAMILTON: And 24.9 could go there as well, Commissioner, which is - and that's, yes, casuals supernumerary, so that's identified as - if I turn to - - -
PN571
THE COMMISSIONER: No, not too much at once, please.
PN572
MR HAMILTON: Sorry, Commissioner.
PN573
THE COMMISSIONER: I think the idea is - if this is really about trimming the sails, it's getting it right within jurisdiction; precisely right, not roughly right. So 24.5(a) could become 24.8 plus - so that'd become casuals rehearsals and 24.5 could become - I'm sorry, 24.5(a) could become casuals performance, 24.5(b) casuals rehearsals - this is without changing any of the level of benefits prescribed by the modern award, and 24.5(c) could be casuals supernumerary.
PN574
MR HAMILTON: Yes, Commissioner, and in that document they've just handed to you, Commissioner, on page 22, that's how we kind of like had set an hour to hour in our draft.
PN575
THE COMMISSIONER: Yes, just bear with me. I want to just work my way through the solution correctly first. Now, where you put this, on page?
PN576
MR HAMILTON: This is in our exposure draft of May 2009, page 22, Commissioner.
PN577
THE COMMISSIONER: All right. So you just reorganise around your - what is this? Is this your exposure draft?
PN578
MR HAMILTON: This was in response to the commission's - - -
PN579
THE COMMISSIONER: No, Mr Hamilton. The point is that when you see these things with exposure draft on it, if you're a member of the tribunal, you assume that it is something published by the tribunal, but this is actually the AEIA's exposure draft.
PN580
MR HAMILTON: Correct, Commissioner.
PN581
THE COMMISSIONER: It can be a bit confusing when the documents don't have their source identified. So I'm going to mark this - it's going to be exhibit A4 which is your exposure draft of AEIA ED of May 2009, page 12.
EXHIBIT #A4 EXPOSURE DRAFT OF AEIA
THE COMMISSIONER: So that in fact what's happened is the full bench has adopted your exposure draft in relation to the substance of the casual provisions except that it has formatted them differently.
PN583
MR HAMILTON: That's correct, Commissioner, yes.
PN584
THE COMMISSIONER: All right. So it's (a) through (d).
PN585
MR HAMILTON: Correct, Commissioner.
PN586
THE COMMISSIONER: Does cancellation of engagement only apply to casuals?
PN587
MR HAMILTON: It does, Commissioner, which is 24.10 in the modern award.
PN588
THE COMMISSIONER: Yes. I don't know why juveniles managed to find their way in there.
PN589
MR HAMILTON: I'm not sure, Commissioner.
PN590
THE COMMISSIONER: New auditions is also carried through, isn't it? So 10 is there because 25.6 moves on to a different subject, doesn't it?
PN591
MR HAMILTON: Correct, Commissioner.
PN592
THE COMMISSIONER: All right.
PN593
MR HAMILTON: And 25 - that's in the AEIA - - -
PN594
THE COMMISSIONER: So really what's happened is that the award has picked up the 25.4 provisions of your ED. That's correct.
PN595
MR HAMILTON: Correct, Commissioner.
PN596
THE COMMISSIONER: Those are the terms which were adopted by the full bench, but just they formatted them differently.
PN597
MR HAMILTON: That's correct, Commissioner.
PN598
THE COMMISSIONER: And they confused it by putting the juvenile rates in it and not formatting the casual employees in the (a) and (b) format.
PN599
MR HAMILTON: Correct.
PN600
THE COMMISSIONER: Okay. I'm quite happy to accept that that creates uncertainty.
PN601
MR HAMILTON: Thank you, Commissioner.
PN602
THE COMMISSIONER: But as for your proposition that there ought to be a new clause with 20 per cent of the appropriate rate plus 25 per cent, that's a substantive change. You didn't propose that.
PN603
MR HAMILTON: Yes, correct. It was - - -
PN604
THE COMMISSIONER: Everything you've just said indicates that this was what was adopted.
PN605
MR HAMILTON: That's correct.
PN606
THE COMMISSIONER: That's a section 157 application.
PN607
MR HAMILTON: Yes.
PN608
THE COMMISSIONER: All right.
PN609
MR HAMILTON: That's correct, Commissioner.
PN610
THE COMMISSIONER: All right. So where are we up to now? 7.
PN611
MR HAMILTON: 7.
PN612
THE COMMISSIONER: How far - we've only got about another 20 or so to go, haven't we?
PN613
MR HAMILTON: Sorry, Commissioner.
PN614
THE COMMISSIONER: I think we've only got about another 20 to go or something, haven't we?
PN615
MR HAMILTON: We did deal with a few in the block, Commissioner, so hopefully 7 will be easily dealt with, Commissioner. It's another wrong reference in clause 24.11.
PN616
THE COMMISSIONER: Okay. So express the reference for the record - express the error of the cross-reference for the record, please.
PN617
MR HAMILTON: The cross-reference in clause 24 - clause 24.11, Auditions, refers to a casual rate prescribed in clause 24.5. 24.5 is actually the casual performance rate, not the casual rehearsal rate. So the correct reference should have been 24.8 which is - - -
PN618
THE COMMISSIONER: That would have to change if we did the things that you just suggested.
PN619
MR HAMILTON: That's correct, Commissioner. What that will then reflect - probably best to put it in - - -
PN620
THE COMMISSIONER: Let's assume I was to accept that certainty could be achieved in relation to casual employees by adopting your proposal in your exposure draft or the format thereof in clause 25.4.
PN621
MR HAMILTON: And if you insert that in 24.5, Commissioner, as we were discussing, and having (a), (b) and (c), then that reference will actually be then correct.
PN622
THE COMMISSIONER: 25.4 you mean? You just said 24.5.
PN623
MR HAMILTON: The 25.4 reference is AEIA's exposure draft.
PN624
THE COMMISSIONER: Sorry, 25.4? That's right, did you hear what I said? I thought you just mentioned 24.5.
PN625
MR HAMILTON: I did, Commissioner. In the modern award in clause 24.5, which is the clause that you are considering of putting all the casual provisions in, as we've just discussed - - -
PN626
THE COMMISSIONER: Yes.
PN627
MR HAMILTON: Then if we do that, then that reference is clause 24.11 will be correct.
PN628
THE COMMISSIONER: Yes, that's what I thought.
PN629
MR HAMILTON: Yes.
PN630
THE COMMISSIONER: What I'm going to do, Mr Hamilton, is because you've got these 27, 28 matters which we're grappling with here and I've given you an indication that there are some things which - in fact, subject to anything that Mr Noone says, I'm fairly fixed in that. Some of these things I don't intend to grapple with. I'm going to get you to, at the end of this discussion, prepare a draft order in line with the discussion.
PN631
MR HAMILTON: Yes, Commissioner.
PN632
THE COMMISSIONER: So you can take it for granted that I am going to vary the award in relation to casual employees and that what I'm going to do is to reformat the existing entitlements which I believe are reflected in your exposure draft of May.
PN633
MR HAMILTON: Yes, Commissioner.
PN634
THE COMMISSIONER: And therefore that disposes of the issue in 7.
PN635
MR HAMILTON: Correct, Commissioner.
PN636
THE COMMISSIONER: As we go along I want you to take note of these things so that you can produce - - -
PN637
MR HAMILTON: The draft order.
PN638
THE COMMISSIONER: - - - a draft order which is in line with our discussion today.
PN639
MR HAMILTON: Correct. We will do that, Commissioner.
PN640
THE COMMISSIONER: All right. So if we were to sort of go back over it, I'm inclined to include in the definitions the ordinary place of residence but not the second.
PN641
MR HAMILTON: Correct.
PN642
THE COMMISSIONER: I'm not inclined to deal with the specialty entertainment issue. I'm inclined to accept the submissions as to the production and support staff (theatre) classifications as being an erroneous adoption of what was perceived mistakenly by the bench to be an agreed position. And that deals with 1(b), 2, 4 and 28.
PN643
MR HAMILTON: Correct.
PN644
THE COMMISSIONER: In item 3 I accept the incorrect cross-reference. In item 5, which is - that's a section 157 matter but I am prepared to reformat the casual entitlements along the lines of the existing award entitlements as shown in your ED of May.
PN645
MR HAMILTON: Yes, Commissioner.
PN646
THE COMMISSIONER: That solves problem 7 as well.
PN647
MR HAMILTON: That's correct, Commissioner.
PN648
THE COMMISSIONER: So we can move on to 8.
PN649
MR HAMILTON: Commissioner, having heeded your words earlier, I think variation 8 was the parties' error and we would be seeking to substantially - - -
PN650
THE COMMISSIONER: So that's section 157?
PN651
MR HAMILTON: Correct.
PN652
THE COMMISSIONER: All right, 9.
PN653
MR HAMILTON: 9, Commissioner. In clause 25.6(a)(ii) there is a reference to clause 24.5. That will remain the same, so that will be - - -
PN654
THE COMMISSIONER: So that's another casual issue, is it?
PN655
MR HAMILTON: Yes, that's another casual issue.
PN656
THE COMMISSIONER: So that will be tidied up?
PN657
MR HAMILTON: Correct.
PN658
THE COMMISSIONER: Right.
PN659
MR HAMILTON: And it will - - -
PN660
THE COMMISSIONER: So there's no need to deal with that because your draft order will tidy that up along the lines that I've indicated I'm prepared to accept.
PN661
MR HAMILTON: Correct, Commissioner. Now, clause 26.1 deals with ordinary hours of work and rostering, and there is a reference in that clause 26.1 to clause 24.9. We were seeking that that should be 24.8 after our discussions but we're probably now 24.5, Commissioner.
PN662
THE COMMISSIONER: Let me just find 26.1. I don't understand this. What's this all about?
PN663
MR HAMILTON: There's a reference in clause 26.1, Commissioner, to - - -
PN664
THE COMMISSIONER: 24.9?
PN665
MR HAMILTON: To 24.9 in the award.
PN666
THE COMMISSIONER: Yes.
PN667
MR HAMILTON: 24.9 in the - - -
PN668
THE COMMISSIONER: Your draft will have to cross-reference to the new 24.5, right?
PN669
MR HAMILTON: That's correct, Commissioner.
PN670
THE COMMISSIONER: So I don't need to worry about that.
PN671
MR HAMILTON: No, you don't. That's correct, Commissioner. This is going to be a doozey, Commissioner.
PN672
THE COMMISSIONER: The next one? This is 12. All right, just - no, 11.
PN673
MR HAMILTON: 11, Commissioner. This may be complicated.
PN674
THE COMMISSIONER: Yes, all right. Go ahead.
PN675
MR HAMILTON: Commissioner, what we sought - if I can just give a bit of background. What we sought to do was, in the proceedings before the full bench, to try and provide one clause which would set out the number of performances for both performers and company dancers, and we did that in clause 26.4. You will note in clause 26.4 we've set out the number of performances for performers and company dancers. What we didn't do, and what was picked up by the full bench, was that there were different numbers of performances for performers that are engaged on school touring. Those provisions were picked up in clause 26.2(f), school tours. However, clause 26.2(g) does not refer to school touring. It just refers to a number of performances and therefore it conflicts - - -
PN676
THE COMMISSIONER: So that should have simply - there should be no (g).
PN677
MR HAMILTON: Correct.
PN678
THE COMMISSIONER: The (i) and the (ii) should have just started - the little (i) should have started where the - - -
PN679
MR HAMILTON: That would probably be the better way of fixing this.
PN680
THE COMMISSIONER: So that (g) really is just poor formatting again.
PN681
MR HAMILTON: That's correct.
PN682
THE COMMISSIONER: Those Roman (i) and (ii) were really meant to be under the heading of School Tours?
PN683
MR HAMILTON: That's correct, Commissioner.
PN684
THE COMMISSIONER: Same as the number of performances for other circumstances are dealt with elsewhere.
PN685
MR HAMILTON: That's correct.
PN686
THE COMMISSIONER: Right.
PN687
MR HAMILTON: That's correct.
PN688
THE COMMISSIONER: Just let me get this down.
PN689
MR HAMILTON: Yes.
PN690
THE COMMISSIONER: All right, I understand that creates ambiguity and uncertainty and is probably an error.
PN691
MR HAMILTON: And unfortunately, Commissioner, in my proposed variation I was taking the long way round.
PN692
THE COMMISSIONER: Yes. No, go the short way. Just use (f), no (g). Just use the Roman numeral - - -
PN693
MR HAMILTON: (vii)?
PN694
THE COMMISSIONER: (vii) and (viii), yes.
PN695
MR HAMILTON: Thank you, Commissioner, so that deals with 11. Actually, Commissioner, what that means then is that variations 12, 13, 14 and 15 are knocked out - - -
PN696
THE COMMISSIONER: They're not necessary.
PN697
MR HAMILTON: Not necessary after - - -
PN698
THE COMMISSIONER: If you just follow it the way I see it.
PN699
MR HAMILTON: Yes, yes.
PN700
THE COMMISSIONER: Right.
PN701
MR HAMILTON: So they are no longer on the list, Commissioner.
PN702
THE COMMISSIONER: Yes.
PN703
MR HAMILTON: Clause 27.5 - - -
PN704
THE COMMISSIONER: So we're up to 16 now.
PN705
MR HAMILTON: Yes, sorry, Commissioner, variation 16.
PN706
THE COMMISSIONER: Yes.
PN707
MR HAMILTON: If I take you to 27.5, Commissioner, the second part of 27.5, starting in that paragraph, "If there was a break of less than two hours", that is a replication of clause 25.5, so 25.5 provides a meal break between performance - - -
PN708
THE COMMISSIONER: Right, so that's replication of 25.5?
PN709
MR HAMILTON: That's correct, Commissioner, and strangely enough, Commissioner, the allowance set out in clause 27.5 is lower than the allowance set out in 25.5.
PN710
THE COMMISSIONER: Let me just have a look at 25.5. Right, so this all appears in the same - this has been varied.
PN711
MR HAMILTON: On 1 July 2010 with regards to - - -
PN712
THE COMMISSIONER: That's the level of the allowance.
PN713
MR HAMILTON: That's correct, Commissioner.
PN714
THE COMMISSIONER: Right.
PN715
MR HAMILTON: So the second part of 27.5 is actually clause 25.5.
PN716
THE COMMISSIONER: What's 27.5 again? What's the title of - 25, rather, special allowances. It's not a special allowance, is it, really?
PN717
MR HAMILTON: Special allowances for performers and company dancers.
PN718
THE COMMISSIONER: Right, well, do the breaks apply to them? Does 27 apply to them? Clause 27 applies to performers and company dancers, does it not?
PN719
MR HAMILTON: That's correct, Commissioner.
PN720
THE COMMISSIONER: All right, so why not just move 25.5 - forget the 25.5; you just renumber and take the text into - where is it again? 27.5, isn't it? You just move that - just replace the second line - that's an error obviously. The second and third sentences are included in error, are they not? It's clear that the correct allowance is actually in clause 25.5.
PN721
MR HAMILTON: That's correct, Commissioner.
PN722
THE COMMISSIONER: The second and third sentences are included in error - - -
PN723
MR HAMILTON: Correct, Commissioner.
PN724
THE COMMISSIONER: - - - because that's the correct allowance and that has been varied to keep it up to date, right, so the idea is to move the text of that so there's - and renumber clause 25, so you take what is 25.5 out and it becomes the substitute for the second and third sentences of clause 27.5. Is that clear?
PN725
MR HAMILTON: So - - -
PN726
THE COMMISSIONER: Delete the second and third sentences of clause 27.5 - - -
PN727
MR HAMILTON: Yes.
PN728
THE COMMISSIONER: - - - and insert the text as - after the first sentence of 27.5 from clause 25.5.
PN729
MR HAMILTON: Sorry, Commissioner, you have lost me with that one.
PN730
THE COMMISSIONER: All right. Look at clause 25.5.
PN731
MR HAMILTON: Yes, Commissioner.
PN732
THE COMMISSIONER: Imagine that you're actually going to delete 25.5 and renumber the rest of clause 25 and you're going to transfer the text - - -
PN733
MR HAMILTON: Okay, yes.
PN734
THE COMMISSIONER: - - - there to replace the second and third sentences currently appearing in 27.5.
PN735
MR HAMILTON: Whereas our variation saw it the other way by just deleting - - -
PN736
THE COMMISSIONER: Right. The point is that it deals with breaks - - -
PN737
MR HAMILTON: Yes.
PN738
THE COMMISSIONER: - - - and Breaks is the heading, not Special Allowances.
PN739
MR HAMILTON: Correct.
PN740
THE COMMISSIONER: The appropriate place for it is in clause 27.
PN741
MR HAMILTON: 27.
PN742
THE COMMISSIONER: Because it is a set of conditions that apply to breaks - - -
PN743
MR HAMILTON: Yes, Commissioner.
PN744
THE COMMISSIONER: - - - not a special allowance.
PN745
MR HAMILTON: And then we renumber - - -
PN746
THE COMMISSIONER: And you renumber 25.
PN747
MR HAMILTON: - - - the following clauses, yes, Commissioner.
PN748
THE COMMISSIONER: Yes.
PN749
MR HAMILTON: Commissioner, the next - - -
PN750
THE COMMISSIONER: Just - sorry.
PN751
MR HAMILTON: Sorry, Commissioner.
PN752
THE COMMISSIONER: Yes, number 17.
PN753
MR HAMILTON: We now move on to the Musicians Union part of the - - -
PN754
THE COMMISSIONER: Yes.
PN755
MR HAMILTON: In clause 29.3, Commissioner. Now, 29.3 in the modern award does not provide for arrangements that may be agreed between the employer and employee and specifying the hours of work to be worked each day of the week. The present provision, Commissioner, has only two parts, parts A and B, which go - A goes to the minimum two calls per week, maximum of six calls per week; B, part-time employee will be entitled to the same conditions of employment - - -
PN756
THE COMMISSIONER: This is the second 157 provision, isn't it?
PN757
MR HAMILTON: Would that be a 157, Commissioner?
PN758
THE COMMISSIONER: I think so.
PN759
MR HAMILTON: Okay.
PN760
THE COMMISSIONER: I mean, it is an additional term of the award. Now, was this is the exposure draft or you know was it left out? What happened? Did it fall out of the discussion or was it simply not addressed?
PN761
MR HAMILTON: Actually I think, Commissioner - - -
PN762
THE COMMISSIONER: I mean, it may be a desirable inclusion in the award, but that's a matter of merit, not a matter of uncertainty, ambiguity or error, unless you can show me some error. There's no ambiguity or uncertainty in there. It's a common feature of modern awards that there needs to be a set number of part-time hours, but for some reason or other it hasn't been put into this award and it may be the case that the full bench considered that it was not appropriate for this award.
PN763
MR HAMILTON: Yes, Commissioner.
PN764
THE COMMISSIONER: Unless you can show me that there is some error - - -
PN765
MR HAMILTON: No. It was not in the commission's exposure draft or our draft, Commissioner.
PN766
THE COMMISSIONER: Not in anybody's draft?
PN767
MR HAMILTON: Correct.
PN768
THE COMMISSIONER: Right. So that's 157?
PN769
MR HAMILTON: 157. If you go to clause 30.2, Commissioner - - -
PN770
THE COMMISSIONER: This is item 18 of the application, clause 30.2.
PN771
MR HAMILTON: Yes, 18.
PN772
THE COMMISSIONER: And 30.2 is some sort of an allowance, is it?
PN773
MR HAMILTON: No, this is the actual rate of pay for - - -
PN774
THE COMMISSIONER: I'm at the leader. There is no rate there for this conductor/leader.
PN775
MR HAMILTON: That's correct, Commissioner.
PN776
THE COMMISSIONER: Is that an error?
PN777
MR HAMILTON: That is an error, Commissioner, and this was subject to - - -
PN778
THE COMMISSIONER: Was that in the commission's exposure draft?
PN779
MR HAMILTON: I don't think it - - -
PN780
THE COMMISSIONER: Was there a classification of that kind?
PN781
MR HAMILTON: There was in our - in AEIA - - -
PN782
THE COMMISSIONER: In your exposure draft?
PN783
MR HAMILTON: That's correct, Commissioner.
PN784
THE COMMISSIONER: Was that in A3? No, that's not A3. That's in the MEAA - - -
PN785
MR HAMILTON: In A4 on page 36, Commissioner.
PN786
THE COMMISSIONER: A4? What are we doing in A4? That was in your exposure draft.
PN787
MR HAMILTON: That's correct, Commissioner.
PN788
THE COMMISSIONER: In the AEIA ED of May 09, wasn't it? Or was it May 10?
PN789
MR HAMILTON: On page 36, Commissioner.
PN790
THE COMMISSIONER: May 09?
PN791
MR HAMILTON: May 09.
PN792
THE COMMISSIONER: Yes. So that was in your exposure draft.
PN793
MR HAMILTON: Not the actual rate as expressed in - - -
PN794
THE COMMISSIONER: Well, what about the classifications?
PN795
MR HAMILTON: Clause 30.4 in the modern award, Commissioner, sets out the conductor/leader, if there is no rate of pay - - -
PN796
THE COMMISSIONER: We're talking about clause 30.2 at the moment?
PN797
MR HAMILTON: That's correct, Commissioner.
PN798
THE COMMISSIONER: Yes. So was there a conductor/leader classification in your exposure draft?
PN799
MR HAMILTON: In the classification structure there was but not in clause 30.2.
PN800
THE COMMISSIONER: So there's no classification in the award?
PN801
MR HAMILTON: There is in clause 13 in the salary - - -
PN802
THE COMMISSIONER: I understand that. But it doesn't set a rate of pay. There's nothing in - the first variation that you seek in paragraph 18 of your application, you're wanting to put the classification in at 30.2. That's where I'm up to.
PN803
MR HAMILTON: That's correct, Commissioner.
PN804
THE COMMISSIONER: Right. So my question is: when you submitted your exposure draft, did you have a classification for conductor/leader?
PN805
MR HAMILTON: Not as an hourly rate, Commissioner; as a weekly rate.
PN806
THE COMMISSIONER: As a weekly rate? So you had a classification in the classification table with a weekly rate?
PN807
MR HAMILTON: With a weekly rate, Commissioner, in level 15.
PN808
THE COMMISSIONER: All right. So therefore, for some reason or other, the conductor/leader rate just hasn't appeared in the award.
PN809
MR HAMILTON: That's correct, Commissioner.
PN810
THE COMMISSIONER: So how do we surmise that this is an error of omission rather than an intentional omission?
PN811
MR HAMILTON: May I hand over to Mr Noone, Commissioner - - -
PN812
THE COMMISSIONER: By all means, yes.
PN813
MR HAMILTON: - - - because I believe that as a result of a discussion with Mr Noone, that we actually put this variation - put this point into the variation.
PN814
THE COMMISSIONER: All right.
PN815
MR NOONE: Thank you, Commissioner. In the development of clause - - -
PN816
THE COMMISSIONER: 30.2.
PN817
MR NOONE: 30.2, Commissioner.
PN818
THE COMMISSIONER: You see, "Conductor/leader" at a minimum hourly wage doesn't appear there, and what item 18 of the application to vary seeks is to put that classification with the hourly rate of $40.39 in.
PN819
MR NOONE: I thought I was going to be able to help. I'm not actually sure I can help really. That's right. In 30.2 there are hourly rates for the other musicians.
PN820
THE COMMISSIONER: Yes.
PN821
MR NOONE: Musician, musician accompanying and principal musician. But there's no hourly rate for the conductor which is a classification - - -
PN822
THE COMMISSIONER: Is there a rate at all for the conductor in the award?
PN823
MR NOONE: In the classifications. It's a - - -
PN824
THE COMMISSIONER: Whereabouts does that appear?
PN825
MR NOONE: Clause 13. It's at a level 15, from memory.
PN826
THE COMMISSIONER: Clause 13, that's fine. So the idea is that what's missing is a minimum hourly rate.
PN827
MR NOONE: Correct, yes. But that is actually in - - -
PN828
THE COMMISSIONER: So actually it was intended that there should be a classification, and that's been intended and awarded that there should be a classification.
PN829
MR NOONE: Yes, and a rate - - -
PN830
THE COMMISSIONER: And a rate - plus a rate. So to add certainty, it's appropriate to have a minimum hourly rate for the purposes of the award generally and, in particular, 30.4.
PN831
MR NOONE: Yes, and like all other musicians.
PN832
THE COMMISSIONER: Yes. I accept that.
PN833
MR NOONE: Thank you, Commissioner.
PN834
THE COMMISSIONER: So that's provided the minimum hourly rate is the rate expressed in clause 13, divided by 38, and that is the amount of $40.39, I'm assuming.
PN835
MR HAMILTON: Actually, Commissioner, it's the weekly rate divided by 24.
PN836
THE COMMISSIONER: Why is that? Is that how the minimum hourly rates for all the other musicians are arrived at?
PN837
MR NOONE: Correct, Commissioner.
PN838
THE COMMISSIONER: All right. That's okay. Consistently with the award's treatment, the divisor is 24. I don't know the reason for that and, by the sound of it, it's not necessary or desirable that I do at this moment. It's mainly for the purposes of my own state of mind.
PN839
MR HAMILTON: That's correct, Commissioner. That deals with variation 18, Commissioner.
PN840
THE COMMISSIONER: Yes, it does.
PN841
MR HAMILTON: We're on the home stretch. Commissioner, variation 19 is a variation to the award to provide for an instrument allowance for casual employees. The provision presently in the award is for a weekly amount. It does not provide for a casual amount. Commissioner, this original provision as taken out of the pre-reform Musicians Opera and Ballet Award, where that award did provide for a weekly and a casual rate. The casual rate is attained by dividing the weekly rate by 8, if I remember correctly. So I'm not sure whether this is a 157 as well, Commissioner, but it appeared that the full bench only pulled the weekly rate out of the Opera and Ballet Award and did not reflect the old provision that actually there was a weekly rate and a casual rate. So at the present time casual employees, if you read the award, could either be granted the weekly rate, even for one casual call, or more likely they would not get an upkeep allowance because they were not a weekly employee.
PN842
THE COMMISSIONER: Aren't you just - I mean, the logic is that you're going to convert the $12.70 to an hourly rate?
PN843
MR HAMILTON: That would be - - -
PN844
MR NOONE: If I might, Commissioner.
PN845
THE COMMISSIONER: Because it's just a rate per week. No, right. So there is a casual employee but there's no - I mean, they get $12.70 a week. That's the way it goes at the moment. Isn't that right? And you're going for $1.59 per instrument per call.
PN846
MR HAMILTON: And that would be for a - because the award says that - - -
PN847
THE COMMISSIONER: I think I can accept that's an uncertainty.
PN848
MR HAMILTON: "Each employee, including a casual employee" - and that's what is stated in 31.7(a) - but there is not a provision there for a casual employee.
PN849
THE COMMISSIONER: Yes. This does change the entitlement, probably not intentionally, though, because it changes it from weekly entitlement to an entitlement per call.
PN850
MR HAMILTON: To - - -
PN851
THE COMMISSIONER: To all employees. That's the effect of the text you've drafted. You've changed the nature of the entitlement. If you take a person who is not a casual employee they get $12.70 per week, but yours is, they got $1.59 per call.
PN852
MR HAMILTON: If they're a casual.
PN853
THE COMMISSIONER: No, no, that's the point I'm making.
PN854
MR HAMILTON: Sorry, Commissioner, yes.
PN855
THE COMMISSIONER: The way it's expressed it goes further than what you intend and it creates further uncertainty.
PN856
MR HAMILTON: That is true, Commissioner.
PN857
THE COMMISSIONER: It changes the nature of the entitlement from a weekly allowance for a full-time employee to an occasional allowance with a maximum payment - that's not what you intend, is it? What you intend to do is to create $1.59 for casual employees.
PN858
MR HAMILTON: That's correct, Commissioner.
PN859
THE COMMISSIONER: Yes. What you have written goes further.
PN860
MR HAMILTON: It does, Commissioner.
PN861
THE COMMISSIONER: So you have to redraft that - - -
PN862
MR HAMILTON: Yes, Commissioner.
PN863
THE COMMISSIONER: - - - and that is it needs to be a casual rate for the purposes of certainty - you know, I'm not sure that - I'm a little bit uncertain about this because presently if you're a casual employee you get the $12.70 if you're engaged.
PN864
MR HAMILTON: Which was not the intent.
PN865
THE COMMISSIONER: It may not have been the intention, but that's what the award prescribes.
PN866
MR HAMILTON: It may not be paid.
PN867
THE COMMISSIONER: Well, that's what it says, "including a casual employee".
PN868
MR HAMILTON: And that was never the subject of any discussion with the full bench, Commissioner.
PN869
THE COMMISSIONER: Anyway, the union consents to this, I take it?
PN870
MR NOONE: Yes.
PN871
THE COMMISSIONER: But the drafting needs to be revisited if it's to be adopted.
PN872
MR NOONE: Yes, Commissioner, we will consult with - - -
PN873
THE COMMISSIONER: Because it travels too far at the moment.
PN874
MR NOONE: Okay, Commissioner, yes.
PN875
THE COMMISSIONER: It does not confine itself exclusively to casual employees in relation to the $1.59 - - -
PN876
MR NOONE: Yes.
PN877
THE COMMISSIONER: - - - and that would only add uncertainty.
PN878
MR NOONE: Correct, Commissioner, yes.
PN879
THE COMMISSIONER: All right, so we go onto 20.
PN880
MR HAMILTON: Clause 20, variation 20, Commissioner; we're seeking to delete clauses 32.2 and 32.3 in their entirety because they duplicate clauses 29.2 and 29.3. I'm not sure why those clauses were put into the Hours of Work clause, ordinary hours of work and rostering. They go to the type of employment.
PN881
THE COMMISSIONER: Right. Just let me have a look at it, please. So what part of the award is this in - it's just for musicians, is it?
PN882
MR HAMILTON: Musicians, that's correct, Commissioner.
PN883
THE COMMISSIONER: You're saying that they are a duplication of 29 - this is just a straight out error, is it?
PN884
MR HAMILTON: That's correct, Commissioner. It's just a duplication.
PN885
THE COMMISSIONER: Just a duplicate, a straightforward duplication.
PN886
MR HAMILTON: That's correct, Commissioner.
PN887
THE COMMISSIONER: All right, so that's just an error of duplication, erroneous duplication.
PN888
MR HAMILTON: That's correct, Commissioner.
PN889
THE COMMISSIONER: All right. I have looked at them and I'm satisfied that's true.
PN890
MR HAMILTON: Thank you, Commissioner.
PN891
THE COMMISSIONER: So you say this is an error, this $9.05. Is that right? Item 21?
PN892
MR HAMILTON: In 21, Commissioner - unfortunately, it may fall into a category that we need to change the full bench decision, but - so 157 application, because there is no provision for a tour allowance for other employees.
PN893
THE COMMISSIONER: Yes, this is 157. This is a new tour allowance?
PN894
MR HAMILTON: Unfortunately, it would be a new tour allowance under the - - -
PN895
THE COMMISSIONER: It's probably not unfortunate if you the employees are happy with it and the employer is content to pay it, it's probably fortunate if you provided for it, but it's a new award provision that you're seeking that didn't form part of the full bench exposure draft and something the parties hitherto have not raised.
PN896
MR HAMILTON: Yes, basically, Commissioner.
PN897
THE COMMISSIONER: It's a new proposition.
PN898
MR HAMILTON: Yes.
PN899
THE COMMISSIONER: Yes.
PN900
MR HAMILTON: That's why it was unfortunate - - -
PN901
THE COMMISSIONER: It's a section 157 application.
PN902
MR HAMILTON: Yes. I think clause 22, variation 22, will fall into the same bracket, Commissioner. The original provision that this was - this was lifted in the old pre-reform awards provided for a recording allowance only to be paid once, even though a number of recordings may have taken place. That particular provision was deleted in the commission's exposure draft, which was never picked up by the parties, so this variation is seeking to put that provision back in.
PN903
THE COMMISSIONER: This is an old award provision. It wasn't included in the ED or the award.
PN904
MR HAMILTON: It wasn't put into the modern award verbatim.
PN905
THE COMMISSIONER: It wasn't put into the tribunal's exposure draft either.
PN906
MR HAMILTON: Sorry, Commissioner?
PN907
THE COMMISSIONER: It wasn't in the tribunal's exposure draft.
PN908
MR HAMILTON: I am not sure, Commissioner. I don't think it was, and I think it has been missed by us, so that's why I think it might fall into 157.
PN909
THE COMMISSIONER: Yes.
PN910
MR HAMILTON: Sorry, Commissioner. In variation 23 there is another - clause 45.1(b) in the award, in the weekly hours there is a reference there with "(Theatre)", which we have discussed previously, which should be deleted.
PN911
THE COMMISSIONER: Yes, that's just an error.
PN912
MR HAMILTON: That's an error.
PN913
THE COMMISSIONER: It shouldn't be confined to "(Theatre)". That's a general proposition - - -
PN914
MR HAMILTON: Yes, that's correct.
PN915
THE COMMISSIONER: - - - in clause 45.1 applying to who - like all employees or - - -
PN916
MR HAMILTON: Applies to all weekly employees.
PN917
THE COMMISSIONER: All weekly employees?
PN918
MR HAMILTON: That's correct, Commissioner.
PN919
THE COMMISSIONER: All right. So it shouldn't be just confined to theatre employees?
PN920
MR HAMILTON: That's correct, Commissioner.
PN921
THE COMMISSIONER: So it's an error to include the in brackets theatre.
PN922
MR HAMILTON: That's correct, Commissioner.
PN923
THE COMMISSIONER: Because they're clauses of general application.
PN924
MR HAMILTON: That's correct.
PN925
THE COMMISSIONER: All right, fine. That's fine.
PN926
MR HAMILTON: Now, variation 24, Commissioner. Commissioner, the result of the new award basically means that casual employees do not get - well, meal breaks are not provided for casual employees.
PN927
THE COMMISSIONER: Why not?
PN928
MR HAMILTON: Because the - - -
PN929
THE COMMISSIONER: It refers to weekly employees in Breaks, does it? Weekly employees.
PN930
MR HAMILTON: So if we turn to clause 46 which is Breaks.
PN931
THE COMMISSIONER: Casual employees get a break after four hours in 46.2.
PN932
MR HAMILTON: Sorry, Commissioner?
PN933
THE COMMISSIONER: Casual employees get a break in 46.2 after four hours.
PN934
MR HAMILTON: That's correct, Commissioner. Now, that is the only provision with regard to casual employees. There is no provision there - if they work more than five continuous hours, do they get paid a penalty payment?
PN935
THE COMMISSIONER: If there's no provision they don't.
PN936
MR HAMILTON: And we are seeking to reinstate what those casual employees - - -
PN937
THE COMMISSIONER: What, under the old award?
PN938
MR HAMILTON: Under the old award.
PN939
THE COMMISSIONER: But that's a section 157.
PN940
MR HAMILTON: 157. We had it in our exposure draft, Commissioner, in A4.
PN941
THE COMMISSIONER: It obviously wasn't picked up, was it?
PN942
MR HAMILTON: Correct. Yes, Commissioner.
PN943
THE COMMISSIONER: I can't assume that that's an error because - - -
PN944
MR HAMILTON: No, no.
PN945
THE COMMISSIONER: Otherwise you can imagine what would be going on here; everybody would be coming here and submitting that because something in their exposure draft didn't appear in the award that that must be an error.
PN946
MR HAMILTON: You'd be having - - -
PN947
THE COMMISSIONER: I don't think that would stand for very long, that proposition.
PN948
MR HAMILTON: Or whether you could stand that proposition yourself - - -
PN949
THE COMMISSIONER: I imagine I'd be, sort of, receiving the file back from the appeal bench pretty promptly.
PN950
MR HAMILTON: Correct. So that takes us to variation 25, Commissioner. This is an error because if I take you to clause 47.3, Commissioner, and it is to be read in conjunction with clause 45.1(b), and in clause 45.1(b), after the word "theatre" which we're going to delete - it says, "Provided that a production support staff employee engaged specifically as a cleaner may be rostered to work hours between 12 midnight and 7 am and will receive an additional loading of 20 per cent of their hourly rate for such work." In clause 47.3(c) that provision states that, "For all work between 12 midnight and 7 am employees will be paid the rate of double time."
PN951
THE COMMISSIONER: This is for all employees, isn't it?
PN952
MR HAMILTON: That's correct, Commissioner. So there is - - -
PN953
THE COMMISSIONER: This is a little bit more meaty, isn't it?
PN954
MR HAMILTON: That's correct.
PN955
THE COMMISSIONER: What is the error? Is it double time or is it 20 per cent?
PN956
MR HAMILTON: The error is applying double time to cleaners for work between 12 midnight and 7 am. The provision of clause 45.1 provides an additional loading of 20 per cent for those cleaners - - -
PN957
THE COMMISSIONER: Are the cleaners already getting a night shift amount, are they?
PN958
MR HAMILTON: The cleaners - - -
PN959
THE COMMISSIONER: When they get the 20 per cent instead of (indistinct) 50 per cent, does the 20 per cent go on top of some sort of night work allowance, does it?
PN960
MR HAMILTON: There's no night work allowance.
PN961
THE COMMISSIONER: Is it built into the rate of pay?
PN962
MR HAMILTON: For cleaners - that would be contained in that rate of pay.
PN963
THE COMMISSIONER: How do we know that?
PN964
MR HAMILTON: We don't, Commissioner, because - - -
PN965
THE COMMISSIONER: Well, how do we know it's an error - that it's double time for everyone? Which one is in error?
PN966
MR HAMILTON: The double time - - -
PN967
THE COMMISSIONER: How do we know that the double time is the erroneous rate for all of the cleaners?
PN968
MR HAMILTON: Because in our draft and in the previous award there was a distinction - - -
PN969
THE COMMISSIONER: What about in the exposure draft of the tribunal?
PN970
MR HAMILTON: I am not sure about the exposure draft of the tribunal, Commissioner.
PN971
THE COMMISSIONER: That will be the thing that'll make the difference, won't it?
PN972
MR HAMILTON: I think - actually you might be right, Commissioner. I think - - -
PN973
THE COMMISSIONER: That will be the critical - - -
PN974
MR HAMILTON: Yes, I think the commission draft was as per the award, but that has now created a conflict of whether you pay 20 per cent in accordance with - - -
PN975
THE COMMISSIONER: So it's the inclusion of clause 47.3(c), without regard to the fact that in the exposure draft the tribunal had included the 20 per cent for cleaners and included that in the award - - -
PN976
MR HAMILTON: Correct.
PN977
THE COMMISSIONER: - - - makes it clear that there was consistently an intention that it would be 20 per cent for the cleaners. So this override in 47.3 is in conflict.
PN978
MR HAMILTON: That's correct.
PN979
THE COMMISSIONER: It's ambiguous.
PN980
MR HAMILTON: Ambiguous, yes, Commissioner. It creates uncertainty as to which rate of pay that you would pay a cleaner between 12 midnight and 7 am.
PN981
THE COMMISSIONER: Yes. All right. There is clearly an ambiguity. So it's the ED, that's the question - what was the intention there, or were they both in there?
PN982
MR HAMILTON: No, the - - -
PN983
THE COMMISSIONER: Was the "all employees" provision in there or not?
PN984
MR HAMILTON: The "all employees" provision was in there, Commissioner, but the (c) in a pre-reform award did contain an exemption for cleaners.
PN985
THE COMMISSIONER: All right. So what award was that?
PN986
MR HAMILTON: That was the Entertainment and Broadcasting Industry - Live Theatre and Concert - Award 1998.
PN987
THE COMMISSIONER: Now, what you need to do is to establish - did that have a provision that's the equivalent of 47.(c) in it?
PN988
MR HAMILTON: It did, with the exemption of cleaners.
PN989
THE COMMISSIONER: Yes, all right. You need to, I think, refer to that.
PN990
MR HAMILTON: Okay.
PN991
THE COMMISSIONER: You need to send that in; send in the pre-reform reference. It's still a little bit more complicated. It's very much - a very significant difference in the level of entitlement under the instrument.
PN992
MR HAMILTON: Sorry, Commissioner.
PN993
THE COMMISSIONER: I said this is a bit meatier in some respects than some of these variations because it directly engages with what's said to be an erroneous prescription of the level of benefit to certain employees for certain hours of work and it's a significant one.
PN994
MR HAMILTON: That's correct, Commissioner.
PN995
THE COMMISSIONER: Okay. Let's go to 26. You send that information in, please, Mr Hamilton.
PN996
MR HAMILTON: Yes, we will, Commissioner.
PN997
THE COMMISSIONER: Include that in your draft - you know the draft we're talking about?
PN998
MR HAMILTON: Yes, Commissioner.
PN999
THE COMMISSIONER: Include it in on the assumption that I'll accept that it is either that it's an error, but just track it as (indistinct) please in the document because I've got a question mark over that. But prima facie - - -
PN1000
MR HAMILTON: Yes, Commissioner.
PN1001
THE COMMISSIONER: - - - what you've said is an argument that it's an error, it's created an ambiguity and uncertainty as to what rate to pay.
PN1002
MR HAMILTON: Thank you, Commissioner.
PN1003
THE COMMISSIONER: Because if both were in the ED of the AIRC - I'll have to track that to see whether the exemption for the cleaners was included or not, and ask myself, "Well, if it wasn't, why wasn't it?"
PN1004
MR HAMILTON: And the reason - - -
PN1005
THE COMMISSIONER: And there's no mention of it in the decision.
PN1006
MR HAMILTON: Sorry, Commissioner.
PN1007
THE COMMISSIONER: There's no mention of this in the decisions of the - - -
PN1008
MR HAMILTON: No, Commissioner.
PN1009
THE COMMISSIONER: Okay.
PN1010
MR HAMILTON: Commissioner, I think we would have the dubious honour of having the less said in the decision about any modern - - -
PN1011
THE COMMISSIONER: In relation to any award.
PN1012
MR HAMILTON: Okay.
PN1013
THE COMMISSIONER: In the interests of (indistinct)
PN1014
MR HAMILTON: Variation 26, Commissioner - and again this might be a section 157. The provision we are seeking to change provides for a rostered day off to employees that work on a Sunday - sorry, where travel is taken on a Sunday, then the employee receives an allowance of 10 per cent. What we are seeking is to include a rostered day off because the Sunday may not necessarily be the rostered day off. In musical theatre, for instance, Sunday is always a working day. They always travel on a Monday if they do travel on a rostered day off. So I think that that was - - -
PN1015
THE COMMISSIONER: Was that in the exposure draft? Did anybody address that during the - - -
PN1016
MR HAMILTON: No.
PN1017
THE COMMISSIONER: It was never addressed?
PN1018
MR HAMILTON: No, no.
PN1019
THE COMMISSIONER: So it's section 157.
PN1020
MR HAMILTON: Yes, Commissioner. Variation 27 - - -
PN1021
THE COMMISSIONER: You're putting that in abeyance, as I understand it, as a result of the conference the other day.
PN1022
MR HAMILTON: Yes, Commissioner, if that's okay.
PN1023
THE COMMISSIONER: Yes, all right. So your draft can address all the other matters and it need not - - -
PN1024
MR HAMILTON: That's correct, Commissioner, and 28 we've dealt with in the classifications in schedule B, which we dealt with with variation.
PN1025
THE COMMISSIONER: You don't need to worry about that any more.
PN1026
MR HAMILTON: That's correct, Commissioner.
PN1027
THE COMMISSIONER: That relates to item - what's the number of that?
PN1028
MR HAMILTON: Variation 2 and 1(b).
PN1029
THE COMMISSIONER: All right, that finishes today, doesn't it?
PN1030
MR HAMILTON: I think so, Commissioner.
PN1031
THE COMMISSIONER: You have to go away and work out what you're going to do about your 157 matters. You're going to submit me a draft in relation to the matters are properly capable of being characterised as ambiguous, uncertain or erroneous, and we're going to put the clause 46, roadies, to one side.
PN1032
MR HAMILTON: Yes, Commissioner.
PN1033
THE COMMISSIONER: I think the only matter of any real substance for me is the cleaners.
PN1034
MR HAMILTON: Yes, Commissioner.
PN1035
THE COMMISSIONER: All right. As I indicated to you, there's a couple of things there that I don't intend to change.
PN1036
MR HAMILTON: Yes, Commissioner.
PN1037
THE COMMISSIONER: All right, very well. Look, I'll await that, if you can get that to me - when do you think you'll be able to do that?
PN1038
MR HAMILTON: May I ask for two weeks, Commissioner? We've got our annual general meeting.
PN1039
THE COMMISSIONER: All right, so you'll submit your revised draft order, a revised - yes, you'll submit a draft order in line with the matters dealt with today.
PN1040
MR HAMILTON: Yes, Commissioner.
PN1041
THE COMMISSIONER: You will deal with the matters that I've indicated are not subject to the power under section 160 - - -
PN1042
MR HAMILTON: Yes, Commissioner.
PN1043
THE COMMISSIONER: - - - according to your own likes, and you will indicate that you're deferring - - -
PN1044
MR HAMILTON: The crewing services.
PN1045
THE COMMISSIONER: Yes, the crewing services, which is item 27, isn't it?
PN1046
MR HAMILTON: Item 27.
PN1047
THE COMMISSIONER: 27 of the application. And subject to me further considering the question of the cleaners in light of research on the exposure draft - and I'm happy to receive any comments you might wish to make about the cleaners, and you will provide me with the information about the pro forma work provisions.
PN1048
MR HAMILTON: I will.
PN1049
THE COMMISSIONER: So you might make a mini submission about the cleaners - - -
PN1050
MR HAMILTON: Yes, Commissioner.
PN1051
THE COMMISSIONER: - - - as to the error in relation to the history of the proceedings that gave rise to the modern award.
PN1052
MR HAMILTON: Yes, Commissioner.
PN1053
THE COMMISSIONER: Good. The matter is adjourned to a time and date to be fixed, if necessary, but it may be possible to dispose of it on what I've received from the association in due course without further necessity for any hearing.
PN1054
MR HAMILTON: Sorry, Commissioner?
PN1055
THE COMMISSIONER: I said the matter is adjourned to a time and date to be fixed, only if necessary.
PN1056
MR HAMILTON: Yes, Commissioner.
PN1057
THE COMMISSIONER: It may be possible to dispose of the matter without the need for a further hearing on receipt of the materials from the association.
PN1058
MR HAMILTON: And, Commissioner, may we ask for 10 December to submit that material?
PN1059
THE COMMISSIONER: Yes, very well.
PN1060
MR HAMILTON: Thank you, Commissioner.
PN1061
THE COMMISSIONER: I will allow until 10 December for the association to submit the materials the subject of the oral directions given today. Thank you.
PN1062
MR HAMILTON: Thank you, Commissioner.
<ADJOURNED INDEFINITELY [12.45PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #A1 SUBMISSION OF MEAA TO THE FULL BENCH PN212
EXHIBIT #A2 EMAIL FROM VICTORIA HOUSTON DATED 24/05/2010 PN249
EXHIBIT #A3 TRANSLATION DOCUMENT TENDERED TO FULL BENCH ON 29/06/2010 PN313
EXHIBIT #A4 EXPOSURE DRAFT OF AEIA PN582