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Fair Work Act 2009                                       1056878






s.156 - 4 yearly review of modern awards


Four yearly review of modern awards


Registered and Licensed Clubs Award 2010




9.39 AM, WEDNESDAY, 10 APRIL 2019


JUSTICE ROSS:  Could I have the appearances, please?


MR C MOSSMAN:  Good morning, your Honour.  My name is Mossman, initial C, I'm the executive director of Clubs Australia - Industrial.


JUSTICE ROSS:  Thank you.


MS N DABARERA:  If the Commission pleases, Dabarera, initial N, appearing for United Voice, and also with me is Bull, initial S.


JUSTICE ROSS:  Thank you.


MR P COOPER:  Your Honour, if it pleases the Commission, my name is Cooper, initial P.  Appearing with me is Imber, initial P, both from the Clubs Manager's Association.


JUSTICE ROSS:  Thank you.


MR C ACEV:  Your Honour, if it please the Commission, Acev, A-c-e-v, initial C, of United Voice - Liquor and Hospitality Division.


JUSTICE ROSS:  Thank you.  Just bear with me for a moment, is there anybody interstate?


THE ASSOCIATE:  Ms Crowe, are you there?


MS V CROWE:  Yes.  Good morning, your Honour.  Crowe, initial V, from the Professional Golfers Association of Australia.


JUSTICE ROSS:  Thank you.  All right.  Arising from the mention last week, I published a statement on 8 April and indicated there would be the mention today.  The purpose of the mention was to get the parties to identify which of the proposed substantive variations that they'd made in the past they were pressing, and where the technical and drafting changes were up to.


I don't propose to discuss the technical and drafting changes today.  The course I propose to adopt, because these changes or these issues that have been raised relate to an exposure draft that was published some time ago, and that exposure draft has, in some senses, been overtaken by events.  There's been some common issue decisions, there have been some group decisions that affect the structure of awards, et cetera.


I think rather than getting you to comment on something that now has short of historical interest, I think the most appropriate course is to republish an exposure draft, an updated exposure draft.


We will pick up the typographical errors and the matters that seem to be agreed, we'll pick those up on the way through and you'll have a further opportunity to comment on that exposure draft.  Once we've got the comments we'll publish a summary, have  a conference, we'll work our way through those.


I expect the updated exposure draft will be published early next week and we'll give you three weeks, or so, to look at it.  There will be liberty to apply, in the event that you need more time to look at the exposure draft.


For today I'm particularly interested in the substantive variations that were initially proposed.  A summary of those was published on the Commission's website, on 8 March.  That has your organisation, Mr Mossman, pursuing some nine claims.  That's all right, keep your seat.  United Voice - I'm sorry, you're pursuing 10 claims, that's the Clubs Australia.  United Voice was pursuing, at that stage, five claims and Business SA was - well, not pursuing any claims but expressing a general interest in the award.


So really what I want to know, and if not today then shortly thereafter, because we'll look to program that.  Let's go to CAI first, which of those do you now press?


MR MOSSMAN:  Thank you, your Honour.  Claims S1 to S7 - sorry, S1 to S4, I should say, are pressed.




MR MOSSMAN:  S5 is not, on the basis that that was an issue that's been adequately dealt with, I understand, in discussions with my friend Mr Cooper, from the CMA, in the most recent exposure draft of the award.  On that basis S5 loses its relevance.


S6 is still pressed.  S7 is not pressed, your Honour and S8 and S9 are continued to be pressed.  In relation to S11, those are matters which have been dealt with in - - -


JUSTICE ROSS:  What about S10?  I'm sorry, that's United Voice.


MR MOSSMAN:  Thank you.




MR MOSSMAN:  In relation to S11, your Honour, those are matters which have been dealt with in the part-time and casual common issue review.


JUSTICE ROSS:  All right, so you're not - there's no claim before - - -


MR MOSSMAN:  That's so.


JUSTICE ROSS:  Yes.  So that's not pressed, at least not pressed in these proceedings.


MR MOSSMAN:  Those are the matters on the list for CAI.  There is one matter which I just should note, for the sake of completeness, your Honour, which is this.  It doesn't appear on the summary, but there is a decision I'm waiting from the common issues public holidays review.


The parties have been involved the case that's being heard.  There was a determination of the Bench, at that stage, that any judgement or decision in relation to that matter should be stayed, pending the outcome of the consolidation proceedings which have, as your Honour is aware, recently been dealt with.  That is, CAI's application to merge coverage with the Hospitality Award.


JUSTICE ROSS:  Yes.  So there's an outstanding matter before the public holiday's common interest Full Bench.


MR MOSSMAN:  That's so.  The parties have a - or, rather, CAI has written to that Bench, earlier this month, but I understand the parties are all in agreement that that decision ought now issue.  But all that needs to be done in relation to that is for the decision and the ancillary issues that come out of that to be dealt with.


JUSTICE ROSS:  All right.  So the proceedings have been run, it's just - - -


MR MOSSMAN:  That's so.


JUSTICE ROSS:  Yes, okay.


MR MOSSMAN:  That's so.


JUSTICE ROSS:  Now, with the claims that you're pressing, S1 to S4, S6, S8 and S9, what sort of case are you proposing to run for those?  That is, are you proposing to adduce evidence or is it to be a submission based?  And when will you be in a position to file all your material in support of those claims?


MR MOSSMAN:  Yes, thank you, your Honour.  Your Honour, I should say, and to go back to your Honour's statements earlier, in relation to the publishing of new exposure draft and a conference, I suspect that there's many matters in here which will be resolved by consent between the parties at conference.  But that said, in the event that a - that the matters are not agreed with by consent, CIA, at this stage, we're of the view that they're not matters in which evidence would need to be run, they're matters that could be dealt with by submission, given the nature of what's being sought.


JUSTICE ROSS:  Well, perhaps a first step would be for you to file a draft variation determination that consolidates each one of these.  So, in effect, it sets out seven items and sets out, in detail, the proposed variation you're seeking.


MR MOSSMAN:  Yes, your Honour.


JUSTICE ROSS:  If you can file that as soon as possible.  Once I've got that - I'll raise the same issue with United Voice when I come to them.  Once we've got the proposed changes each of you is seeking, then we'll have a conference on the substantive issues matter.  And from that point on we'll see, rather than put everyone to the trouble of filing written submissions at this stage, let's see what can be sorted out between the parties.


MR MOSSMAN:  Yes, thank you, your Honour.  I should indicate, if I'm wrong in that and CAI takes the view that some evidence may need to be called, I'd be of the view that that would be very short in compass and certainly wouldn't require a hearing as extensive as some of the hearings that have gone before, in relation to this award.


JUSTICE ROSS:  All right, thank you.


MR MOSSMAN:  Thank you, your Honour.  Unless I can be of any further assistance, they are my - - -


JUSTICE ROSS:  Thank you.  Ms Dabarera, if I go to United Voice's previous substantive claims, that's S10, S12, 12(a), 12(b), 12(c) and S15, what's the status of those matters?


MS DABARERA:  Your Honour, a large number of United Voice's substantive claims have been dealt with in other proceedings, such as the part-time and casual proceedings, the annualised salaries matter.  So the only remaining claim we have, in relation to this list, is S12(b), which is our claim in regard to allowance, specifically the tool allowance.


What we would also say, your Honour, is that given that the last exposure draft was released in November 2016, we would seek an opportunity, once the exposure draft had been released, to consider whether or not we wished to run any other substantive claims.


JUSTICE ROSS:  Well, the exposure draft isn't going to change any substantive provision in the award.


MS DABARERA:  There has been a number of - given that there's been some time since the exposure draft was released, there's been a number of other changes that have come through the process and we would just merely seek an opportunity to ensure that we don't have any other substantive claims that we wished to run.


JUSTICE ROSS:  All right.  It seems contrary to the position you've taken in relation to ABI's recent claim, but nevertheless.  There has been the passage of some time.  I think the parties are entitled to look at the revised exposure draft.  If any party wants to make an application to vary, having regard to that revised exposure draft.  I'll provide a timeline, I think it should be short period of time.  I'll be cognisant of the fact we've got Easter, in the intervening period, but I would expect I'd give you about a fortnight to provide any - well, to provide an indication as to whether or not there are any further substantive claims that are being sought.


So we'll republish the summary of the proposed variations, having regard to what's been put.  There will be an opportunity, by, bear with me for a moment, by 4 pm on Monday, 29 April.  Any party who seeks a substantive variation should file a short submission.  It doesn't need to deal with the merit, it just needs to set out what the proposed variation is, and attach a draft variation determination.


I think your earlier submission, in relation to that allowance question, did attach a draft determination, so we already have one from you.


MS DABARERA:  Yes, your Honour.


JUSTICE ROSS:  In relation to Clubs, as I've indicated, if you can file one as soon as you can and I'll provide a date, in, look, probably - I'll provide until around Friday, 10 May, for parties to make any technical and drafting comments on the republished exposure draft.


So just to recap, expect the republished exposure draft on Monday, or no later than early next week.  You will have until 4 pm Friday, 10 May to comment on that and if you can indicate whether there are any further substantive claims, that indication is to be made by 4 pm on Monday, 29 April, and it should attach a proposed variation determination of that the relevant party is seeking.


Once that material has come in I'll have a conference to deal with both the technical and drafting comments and the substantive claims and we'll see what we can work through, through the conference process.  Once we reach - and I imagine it would be one, perhaps two, conferences.  Once we reach an endpoint to that then we'll look at directions for the filing of material and the hearing and determination.  So that's the proposal.


I've heard from United Voice and Clubs, was there anything you wanted to say about any of that, just before I - - -


MS DABARERA:  Your Honour, I would just say I don't - United Voice isn't necessarily planning to run significant other claims, but it's an opportunity to review what's been put in 2014 and 2015.


JUSTICE ROSS:  Sure, sure.  Well, we'll find out anyway, what everyone wants to put.


MS DABARERA:  Thank you, your Honour.


JUSTICE ROSS:  Anything from the Club Managers?


MR COOPER:  Yes, your Honour.  We looked at the exposure draft, back in November 2016, and when we were going through that, of course, the penalty rates decision came down in February 2017, so I suppose we've been in limbo since that time.  It's only we've just recently revisited it.


We obviously believe that with the retention of the Registered Licenced Clubs Award we're seeking to get the award bedded down with great certainty so we can all move forward without any further litigation or arguments.  I think the issues that we've had back at that time, on 21 December 2016, we filed clarity for the annual leave provisions for club managers.  That's been picked up by the Commission in the technical drafting issues document of 8 April, so we're happy with that.




MR COOPER:  There's a number of other things that we've recognised since that time that have been problematic with the award.  We don't think they're substantive but we do believe them to be technical and drafting issues.


JUSTICE ROSS:  Well, for the abundance of caution, you should identify those by 4 pm on Monday, 29 April.  So identify the variations you're seeking, rather than describing them as technical just identify - if you see there's a problem with the award, identify briefly what it is.  You don't need to set out your submission in support of it.  Say, briefly, what the problem is and attach a variation determination varying the current award so that it addresses the problem you've identified, okay?  All right?


MR COOPER:  Okay, fair enough.  Thank you very much.


JUSTICE ROSS:  Thank you.  Anything from you, Ms Crowe?


MS CROWE:  Yes, your Honour, thank you.  We submitted our substantive variations in October '17.  It appears that they've actually been left off the list.


JUSTICE ROSS:  No, that's fine.  We'll publish an updated - we'll publish an updated summary, reflecting today's proceedings and I'll put the PGAs earlier matter in that update.


MS CROWE:  Thank you.  We would still be pressing four issues, your Honour.  The first being inclusion of PGA professionals in the definitions and interpretation.  Second would be in the coverage, and all of these are just in regards to identifying the actual words of a professional golfer and what they do, just to give the golf industry a clearer idea of where they fit into the award.  So ours hasn't changed from 2017, your Honour.


JUSTICE ROSS:  All right.  Okay, thank you very much.  We'll republish the proposed substantive variations document later this week to reflect what's been put today and I'll also put out a short statement just reminding parties of the date deadlines that we have set.


Nothing further?  All right, thanks for your attendance, I'll adjourn.

ADJOURNED INDEFINITELY                                                          [9.57 AM]