TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 38378-1
DEPUTY PRESIDENT IVES
s.160 - Application to vary a modern award to remove ambiguity or uncertainty or correct error
Application by Airlite Cleaning Pty Ltd & Triumphant Property Services and Another
Cleaning Services Award 2010
[MA000022 Print PR986363]]
2.05PM, MONDAY, 31 JANUARY 2011
Continued from New
THE DEPUTY PRESIDENT: I will take the appearances please.
MS R. FRENZEL: I seek permission to appear on behalf of the three employer applicants in this matter.
MR D. TRINDIADE: I am a solicitor and I seek permission to appear on behalf of Spotless Services Australia Ltd and related entities, collectively referred to as the Spotless Group.
THE DEPUTY PRESIDENT: I don’t hear any objections to permission so permission is granted in both cases. I might just note before you start, Ms Frenzel, I note the advice from the applicant that this application to vary the Cleaning Services Award is a matter of consent between all of the parties. I specifically note an email correspondence from Mr Neil Swancott of the LHMU which states in essence that the LHMU consent to the application. I persevered with the listing of this matter despite that, Ms Frenzel, out of an abundance of caution more than anything else, just to make sure. In award variation matters it is a bit risky to take the chance that everybody is going to be happy just because I'm told that's the case. So it was really just to make sure that everybody that wanted the opportunity had the opportunity. Go ahead, Ms Frenzel.
MS FRENZEL: I'll be very brief, your Honour. The matter before the Tribunal relates to the transitional rates for shift work, in particular early morning shift work undertaken by part time and casual employees in the state of W.A. The clear intention of the parties at the time with respect to Western Australia was that given that the benchmark if you like from the Cleaning Contractors Award in W.A. as compared to the Cleaning Services Award was so different and in some respects the bar was much lower in W.A. that with respect to transitional rates for shift workers and casual employees the parties agreed, given that the casual loading was to increase from 20 to 25 per cent, albeit for five years, but more importantly that part time employees were to receive the 15 per cent part time allowance as of 1 January 2010.
But the transitional arrangements in W.A. with respect to shift workers for part timers and casual employees would commence from 1 January 2011 and that would give the employers time in terms of already paying the 15 per cent, then they were going to start transitioning the shift penalties on top of that 15 per cent part time allowance. The theory is fine and everybody agreed to it at the time and saw it as being an amicable solution. The only problem was the drafting of the award itself has in essence let everybody down. Can I say that one thousand eyes have gone over these rates. It was only when 1 January hit and the transitional rates commenced operation that it became obvious to all and sundry that the rates with respect to part timers and casuals were not operating the way they were intended.
The way they were intended to operate is that a part time or casual cleaner will now have a transition to shift penalty which is permitted under the AIRCs award modernisation decisions, transitioned over four years. The effect of the transitional tables is that the transitioning only occurs for work done after six a.m. So indeed any work done, for example, between two a.m. and six a.m. given the drafting of tables would in actual fact attract the full 15 per cent shift penalty and in addition to that obviously the 15 per cent part time allowance or the 21 per cent casual loading. So the intention of the parties was that the shift penalty in its entirety was to be transitioned. There was another added foible as well with the W.A. award, if I can call it that, and that is that the shift penalties for part timers and casuals in particular only operated between six p.m. and six a.m.
So any time worked after six a.m. under the former W.A. award was in actual fact day rates, so there was a transition there as well. So the clear intent of the parties was to recognise yes, there was an additional cost impost. We don't want to be unfair to employees, obviously they have got their 15 per cent part time allowance. But we do need to have some measure of phasing, albeit four years rather than the five. As I say regrettably the relevant extracts in the schedule, Schedule B98, do not do what the parties intended. So as a consequence once this came to our attention we had discussions with the LHMU, we sent them a copy of the application to vary.
The Tribunal has noted that the LHMU does not oppose the application on the basis of an agreed position and what we seek to do is merely to omit the words in the relevant sections of the schedule, payment for the time worked after six a.m. and what that does is it basically says the transitional rate applies for the entire shift which is its intention and it doesn't matter when the early morning shift finishes, the transitional rate will apply regardless. I might indicate that you will see it, for example at W.A. 2.4 that a similar model has been done with respect to the afternoon shifts. The afternoon shift is operating perfectly and in line with the parties' intentions, it's only the early morning shift.
So on that basis and given that it is a clear omission, certainly not an ambiguity or an uncertainty but it's certainly an error, the application is commended to the Tribunal. I might indicate we will be seeking an operative date from 1 January 2011, given that's when the schedule was intended to operate from. The LHMU was aware of that in terms of the draft order and the application filed and served upon them. They have made no reference to any issue about back dating for the pure and simple reason that I think the employers in W.A. have been applying the transitional rate in any event with the consent and acquiescence of (indistinct).
THE DEPUTY PRESIDENT: You're acknowledging that it had been breaching the award in its current form, are you?
MS FRENZEL: That's correct, without being polite about it. So we do seek to rectify the error. It is an error, it's not an intentional matter that the employers wish to press and I think the fact that it's not an intentional matter on the part of the employers has led the LHMU to also agree the particular provisions require rectification. If the Tribunal pleases.
THE DEPUTY PRESIDENT: Has it occurred to you, Ms Frenzel, that at some point in time in the future, I don't know when, but at some time in the future this massive store of knowledge and wisdom you've now got about every cleaning award that was ever made by any part of humanity since time immemorial will become totally useless?
MS FRENZEL: Not in the short term, it would seem your Honour.
THE DEPUTY PRESIDENT: No, no, I said at some point in time.
MS FRENZEL: Hopefully, can I suggest that at 31 December 2014 that that knowledge will become completely useless.
THE DEPUTY PRESIDENT: Yes, that's right. Thank you, Ms Frenzel. Yes, go ahead, Mr Trindiade.
MR TRINDIADE: Thank you, your Honour. Your Honour, we support the application and we adopt those submissions made by my friend other than the admission that there may have been a breach.
THE DEPUTY PRESIDENT: I was just going to ask you that question, Mr Trindiade.
MR TRINDIADE: Of which I have not instructions.
THE DEPUTY PRESIDENT: You have no instructions on that either.
MR TRINDIADE: I wouldn’t seek to make any submission on that, but apart from that your Honour we also commend the application. We think it was a good pick up by those employers who picked it up and we commend it to the Tribunal.
THE DEPUTY PRESIDENT: Thank you, Mr Trindiade. Section 160 of the Act provides that Fair Work Australia may make a determination varying a modern award to remove an ambiguity or uncertainty or to correct an error. The Tribunal may make that determination on its own initiative or on application by an employer or employee organisation or outworker entity that is covered by the modern award. I am satisfied that the application is properly made. I am further satisfied that there is an error and that the error is properly described by Ms Frenzel in her submissions.
EXHIBIT #A1 DRAFT DETERMINATION
THE DEPUTY PRESIDENT: The Cleaning Services Award 2010 will be varied in accordance with exhibit A1. The determination will give effect to the variation from the first pay period on or after 1 January 2011. The matter is adjourned.
<ADJOURNED INDEFINITELY [2.16PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #A1 DRAFT DETERMINATION PN24