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Fair Work Act 2009                                                    






s.156 - 4 yearly review of modern awards


Four yearly review of modern awards


Amusement, Events and Recreation Award 2010




12.09 PM, THURSDAY, 20 APRIL 2017


THE VICE PRESIDENT:  Thank you.  I'll have the appearances in Sydney.


MR Z DUNCALFE:  May it please the Commission, Duncalfe, initial Z, for the Australian Workers Union.


MS J McDONALD:  McDonald, initial J, for the Australian Federation of Employees and Industries.


THE VICE PRESIDENT:  Thank you.  I'll have the appearances in Newcastle.


MS K THOMSON:  Thomson, initial K, for ABI New South Wales Business Chamber.


THE VICE PRESIDENT:  Thank you.  And, in Perth?


MR D HAMILTON:  Your Honour, David Hamilton and Renee Spoors for the Australian Entertainment Industry Association, trading as Live Performance Australia.  And your Honour it's very difficult to hear you over here.


THE VICE PRESIDENT:  I'll try to speak up.


MR HAMILTON:  Thank you.


THE VICE PRESIDENT:  This matter is listed for today as a preliminary conference.  The parties will have seen from the website two documents - of drafting and summary of proposed substantive variations.  I take that's the case.  And what I propose to do is really to narrow down the issues the need to ultimately go to a Full Bench.  So for the preliminary conference, at least, we'll work through these two documents and see where they've landed and then I'll ascertain from the parties what their plans are for further conferences, and see what ultimately has to be left to go to the Full Bench to determine the matters.  So if we just work through them relatively quickly.


Item one.  There doesn't appear to be any dispute about item one.


MR DUNCALFE:  No, your Honour.


THE VICE PRESIDENT:  Now, item two.  The ABI is not supporting the AWU's submissions at this point.


MR DUNCALFE:  I can clear that up, your Honour.


MS THOMSON:  No, your Honour.


MR DUNCALFE:  I can clear that one up, your Honour.




MR DUNCALFE:  That submission will withdraw.  The ABI has made a similar submission at item six.




MR DUNCALFE:  And I think the plain language proceedings FWC 2924 states that this clause will be at clause five for - awards.




MR DUNCALFE:  So we'll withdraw that.


THE VICE PRESIDENT:  So item two will be withdrawn.  Okay.  Item three?  That's just left.  And item four appears to be agreed.  Item five is moving around some clauses.  Is there nay - it looks like it's agreed.  Is there any - - -


MR DUNCALFE:  No, it wasn't.  No.


THE VICE PRESIDENT:  Item six?  It looks like it's agreed.


MS THOMSON:  I think item six, your Honour, we also have some reference to the plain language principles there as my friend just referred to.


THE VICE PRESIDENT:  Yes.  I see that.  But otherwise it's agreed.  Item seven.  Does someone like to speak on item seven?  There appears to be some differences.


MS McDONALD:  In regards to item seven it appears that there is agreement in relation to clause 13 being used rather than clause 13.2.  I'd like to add that AFEI also submitted that clause 19.4 should be included in the table as a facility provision.


THE VICE PRESIDENT:  And what's the union position in relation to it?


MR DUNCALFE:  I'm just reading it up now, thanks.


THE VICE PRESIDENT:  Well, I know I put you on the spot today.  It's a question whether he's going to ultimately agree there can be further discussions about it but it doesn't look like it's - - -


MR DUNCALFE:  And that was to place it into the individual agreement.


MS McDONALD:  But that's - - -


MR DUNCALFE:  They were - - -


MS McDONALD:  Yes.  It's an agreement with an individual employee.


MR DUNCALFE:  That's fine from our position.


THE VICE PRESIDENT:  Right.  So that means clause seven as amended by Ms McDonald - sorry, item seven, as amended by you.


MS McDONALD:  Thank you.


THE VICE PRESIDENT:  Right.  Clause eight - paragraph eight I should say.  Is everybody on agreement on that?


MR DUNCALFE:  Yes, your Honour.


THE VICE PRESIDENT:  Number nine we've got - - -


MR DUNCALFE:  That's my submission, your Honour.  We'll withdraw that because the exposure draft actually has a discrete rostering arrangement at clause 14 that the current award doesn't and so that obviates any concern for us there.


THE VICE PRESIDENT:  Number nine's gone, yes.


MR DUNCALFE:  So we withdraw that.


THE VICE PRESIDENT:  Number 10?  The employers agree with each other.  What about the union position?


MR DUNCALFE:  We don't oppose that, your Honour.


THE VICE PRESIDENT:  Right.  Now, 11 there is a disagreement.


MR DUNCALFE:  Yes, your Honour.  I can speak to that.  The union feels that these references aren't unnecessary.  We believe the removal of the references to clause 26 has the potential to give the impression that an employer's obligations concerning rostering arrangements are contained exclusively in clause 14.  And the reference to clause 26 ensures navigation to and observation of those consultation requirements in clause 26 where an employer is contemplating changes to regular rosters or ordinary hours of work.  We note that clause 26 only comes into operation where an employer proposes to change an employee's regular roster or ordinary hours of work.  So in circumstances where this is not occurring, such as when an employee is asked to cover a shift the requirements of clause 26 are not enlivened and I feel that may be the concern that AFEI may have in wanting to remove the references to clause 26.


MS McDONALD:  We've had a further look at this and it's not a significant matter for us so we are happy to withdraw that submission.


THE VICE PRESIDENT:  All right.  Well, clause number 11 is then agreed.


MR DUNCALFE:  Agreed or withdrawn?  Sorry.


MS McDONALD:  The AFEI submission is withdrawn, yes.


THE VICE PRESIDENT:  The AFEI position is withdrawn.


MR DUNCALFE:  Thank you.


THE VICE PRESIDENT:  Number 12.  Now, we don't have anybody prosecuting number 12 here today.


MR HAMILTON:  Your Honour, it's very hard to hear.  I'm sorry.


THE VICE PRESIDENT:  I'm just saying we don't seem to have anybody here.  Who's talking on number 12?  Item 12?


MR HAMILTON:  Yes, your Honour.  That's one of our issues.  We believe that 14.3(a) and (b) should form part of clause 13 ordinary hours of work.  That it's not rostering arrangements, however, the following clause (c) - 14.3(c) - should remain in the rostering arrangements.


MR DUNCALFE:  We don't oppose that, your Honour.  For those two - (a) and (b) - to be moved to clause 13 and then 14.3(c) would be relabelled (a) I'm assuming.


THE VICE PRESIDENT:  Yes, that would be right.


MR DUNCALFE:  We won't oppose that your Honour.


THE VICE PRESIDENT:  So that's agreed.  We then go to 13.


MS McDONALD:  Sorry, your Honour, just in regards to the drafting of that we also do not oppose but we do recommend that the subtitle of special provisions for exhibition employees be transferred as well as 14.3(a) and (b) to 13 - what would become 13.6 (a) and (b).




MS McDONALD:  And retain it as well in the current 14 - for what would now become 14.3(1) and (2).


THE VICE PRESIDENT:  Yes.  Is that a problem, Mr Duncalfe?


MR DUNCALFE:  Not at all, your Honour.


THE VICE PRESIDENT:  What will happen at the end of this is that the transcript will be made available at the parties and then there will be a further table prepared to see what falls out.  Item 13.  Mr Duncalfe, where is that?  Yes - the AFEI currently do not support the proposed changes.


MS McDONALD:  That's correct.  The reason we do not support them is that those additional words are unnecessary and add to the length of that clause.  They create unnecessary link to that clause.


MR DUNCALFE:  Our concern here, your Honour, is that there is an all-purpose allowance in this award and the current wording at clause 16.1 gives the impression that the amounts listed are the minimum for all employees, including those entitled to that all-purpose allowance which is incorrect.  So an exhibition technician is classified as a grade four.  The minimum amount expressed in the table at 16.1 is $783.30 per week.  At clause 17.2(b) an exhibition technician is entitled to an all-purpose allowance at $55.61 per week in addition to that $783.30.  So the preamble of the table fails to mention that allowance, and in doing so, may mislead someone - either an employer or an employee - on what an employee is entitled to.


THE VICE PRESIDENT:  Yes, I find that.  Ms McDonald, do you want to reconsider that either now or later?


MS McDONALD:  I would need to get further instructions, that's true.


THE VICE PRESIDENT:  Yes.  Well, you've heard the arguments.


MS McDONALD:  Thank you.


THE VICE PRESIDENT:  That is not agreed.  Fourteen?  Mr Hamilton?  That's your proposal.


MR HAMILTON:  Yes, your Honour.


THE VICE PRESIDENT:  What does the union say about that?


MR DUNCALFE:  The union's position on this is that we oppose - primarily to preserve the status quo we don't really understand the substance of the LPA submissions.  So I have - I would like to hear from LPA actually on that why they would like that removed.




MR HAMILTON:  Your Honour, the flexible loading allowance supervisory loading allowance paid relating to full-time and part-time employees, they're weekly allowances for all purposes of the award and there's no provision - well, there's no reason to have an hourly rate because what happens in practise is that those allowances have added to the minimum weekly rates to give you the minimum rate of pay - a loaded minimum rate of pay for those employees.  And they're all weekly employees and paid by the week.  Our members are confused by having the hourly rate there.  It would just cause more confusion.  Everyone is used to a weekly rate.  And that's how it's expressed in the present award.


MR DUNCALFE:  Is the LPA submitting that a part-time employee who does less hours still maintains that same per weekly allowance.


MR HAMILTON:  Sorry, I can't - I can't hear you.


MR DUNCALFE:  Sorry.  Does the LPA submit that a part-time employee who may do only half the amount of hours - say, let's say 20 hours a week - is entitled to that whole allowance?


MR HAMILTON:  Well, their wages is worked out by those allowances being added to the minimum rate and then divided that total rate by the number of hours that they are deemed to work.  There's not many - if any at all - part-time employees anyway.  But that's the - - -


MR DUNCALFE:  So does the per hour rate actually do that work for you?




MR DUNCALFE:  Does the per hour column with the allowance per hour listed already do that work for you?  So you don't have to do the per weekly allowance divided by the number of hours and then multiply it by the number of hours that it would work?  I'm just having trouble understanding why the per hour allowance is a problem.  In terms of part-time employee - - -


MR HAMILTON:  It is confusing because, as I mentioned, how the weekly rate is calculated is that you have the minimum rate plus those weekly allowances to give you a loaded rate - if I can put it like that.  And to get the hourly rate for those employees you divide it by 38.  So you divide the whole amount - that whole loaded amount by 38.  So that hourly rate for those allowances is superfluous because it's contained already in the loaded rate that is worked out - a part-time employees' rate would be worked on.


THE VICE PRESIDENT:  Well, Mr Duncalfe, I think what I propose is that there should be further discussions with the parties in relation to - - -


MR DUNCALFE:  I think so.


MR HAMILTON:  Sorry, your Honour, I didn't hear that.


THE VICE PRESIDENT:  What I propose there be further discussions off-line between the parties in relation to this clause and that way - I'll come back and recap this at the end of this.  Let's move on to item 15.


MR DUNCALFE:  I can speak to this one, your Honour.  It's in response to a question raised by the Commission.  It seems that all submissions apart from the union's - are the same and I'll speak to why I disagree with the other parties.  Firstly, ordinary working day is not used anywhere else in the award.  It's not defined in the award and according to clause 13.5 of the exposure draft ordinary hours can be worked on any day of the week, Monday to Sunday, therefore there is no ordinary working days.  We don't understand how - if there is no such thing as an ordinary working day how the term can be used in the sub-clause and we believe the removal would improve the clarity of the clause.


The fact that it's a unique term too - if in the entire document to this clause the 17.3(b) - we just think that that will create confusion where someone reads a document and tries to understand what an ordinary working day is.  We don't see it having effect on the entitlement in the clause whatsoever and we believe that there's the possibility that the words "ordinary working day" may be interpreted to deny an employee who works two or more hours of overtime on a day that they don't usually work and that's obviously an incorrect reading but it's a possibility with the words "ordinary working day" inserted without being defined or used anywhere else in the award.


THE VICE PRESIDENT:  Yes, I follow the argument.  I'll note that and that become further discussion I think.


MR DUNCALFE:  Yes, your Honour.


THE VICE PRESIDENT:  We'll go to 16 which is yours, Ms McDonald?


MS McDONALD:  Yes, thank you.  Our submission is that the heading should be amended so that it reads, "Overtime and Penalty Rates".  That would vary the exposure draft so that is consistent with the current award.  And that provision also does contain overtime and some subclauses which deal with penalty rates.


MR DUNCALFE:  And we don't oppose that, your Honour.


THE VICE PRESIDENT:  All right.  Seventeen?


MR DUNCALFE:  That's mine.  Okay.  So I would like to clarify this submission.  We will maintain this submission but taking into account the reply submissions from Business South Australia and AFEI - we still - taking into account those submissions - we still maintain that the word in clause 19.1 of the exposure draft is insufficient.  The text of 19.1 states that - "All time worked in excess of the rostered working hours in one day not the ordinary hours or agreed ordinary hours" - so therefore an employee could be rostered for 12 hours could only agree to a 10-hour working day under clause 13.3.  And according to 19.1, unless this leads to an excess of a 38-hour per week average - no overtime is payable.  So we propose an amendment to remove the words "the rostered" - in 19.1 - and replace it with "ordinary".  And this will allow for employees who work eight, 10 and 12-hour days to access the benefits of that.


THE VICE PRESIDENT:  I presume Ms McDonald it's a question you will take on notice?


MS McDONALD:  Yes.  Thank you.


THE VICE PRESIDENT:  And similarly Business South Australia.  All right.  Eighteen?


MR DUNCALFE:  I can speak to this one again, your Honour.  Business South Australia and the union are of the same opinion.  We've also proposed an amendment to clarify the operation of these clauses and the interaction between them.  I'll just get the clauses in front of me.  Okay, so the argument here is between what penalty rate applies and we believe - the union believes that the overtime rates are - they prevail over the just ordinary Sunday rates.


In response to the submission from AFEI we believe that our proposal is consistent with the current award - 23.3(a) and the purpose of the question is to determine which clause prevails and obviously we've landed on different sides of that. In terms of the current award the question of the interaction is between clauses 23.3(a) and 23.1 and it's the same in the exposure draft - the same question arises between 19.5(a) and 19.2 so that it's a similar situation or exactly the same situation between the current award and the exposure draft.  And it's the view of the union and I'm also assuming Business SA that the 150 percent penalty for all Sunday work is for all ordinary hours worked on a Sunday.  So we propose that 19.5(a) be amended to insert "ordinary" after the word "all" and before "time" - to give clause the clarity about the operation between and the interaction between the two clauses.


THE VICE PRESIDENT:  Ms McDonald will take that one on notice as well upon discussion.


MS McDONALD:  Yes, thank you.


THE VICE PRESIDENT:  Now, go to 19.  Is there any issue about 19?


MS McDONALD:  We were seeking further explanation from those parties in regards to their submissions that employees may only be grades 2, 4 or 5.


THE VICE PRESIDENT:  All right.  Well, that can be parked for further discussion.


MS McDONALD:  Thank you.


THE VICE PRESIDENT:  Then item 20, which is Mr Hamilton's?


MR HAMILTON:  Your Honour, just on 19 we agree that exhibition employees are employed on grades 2, 4 and 5 which was the question raised by the Commission.


THE VICE PRESIDENT:  Yes, I think what's been proposed Mr Hamilton is - - -


MR HAMILTON:  Sorry, your Honour?


THE VICE PRESIDENT:  What has been proposed is AFEI would prefer to have a discussion about it and that's what will happen.




THE VICE PRESIDENT:  So I note the submissions.  Let's go to item 20.


MR HAMILTON:  Your Honour, but if I may?  When we presented schedule "C" to our members they were horrified at the extent of the confusion that these tables would cause.  Our employees obviously for the casual employees the hourly rates are appropriate that for full-time employees the weekly rates are appropriate and nowhere in that schedule is there any full-time weekly rates of pay.  So that was the thrust of our members' concerns that there is no weekly rates which include and I refer back to my submissions before.  The penalties are worked out on the loaded rate of pay not - on the ordinary weekly rate - and then those allowances.


So we would like that to be tidied up to reflect the present arrangements and ensure that the weekly rates that are presented in that table are those weekly rates that include those allowances, and the casual rate is expressed as an hourly rate of the ordinary rate because casual employees don't get those - those supervisory or flexibility allowances.


THE VICE PRESIDENT:  Is there any initial reaction from your, Mr Duncalfe?


MR DUNCALFE:  Yes, your Honour.  In response to - sorry, I'll speak up - in response to the removal of the hourly rates in these tables I would just like to ask the LPA how a public holiday penalty rate can be calculated on a weekly rate.  We need the hourly rate there to be able to calculate what an employee is entitled to on a public holiday or for overtime and that's the purpose of Schedule "C".  So we oppose to removing hourly rates because then again it's similar to our disagreement before.  This schedule actually saves calculation because they're pre-calculated for you.


THE VICE PRESIDENT:  Isn't he arguing that there's no weekly rate?  So there are hourly rates but there should be some weekly rates.


MR DUNCALFE:  According to the document it's about the removal of hourly rates so if that can be clarified by LPA that that's no longer an issue?


MR HAMILTON:  No.  We've got no problems with the hourly rates being there.  It's probably - Schedule "C" probably could be a summary of weekly and hourly rates because the weekly rate is - and there's nowhere in the document that shows that the weekly rate for an exhibition employee includes the supervisory and flexibility allowances or loadings and we would like that to be expressed in that document.  Yes, by all means the hourly rate should be there - yes, agreed - to calculate their overtime or public holiday rates of pay.  But I thought it would be a good idea if we could actually express the weekly loaded rates in that document to ensure that when you calculate the penalty rates that those allowances are taken into consideration for full time employees.


MR DUNCALFE:  And we whole-heartedly agree with that.  I was going to personally raise that all of the figures in Schedule "C" are actually incorrect by virtue of not taking into account any of those allowances.  It's all calculated on the minimum rate and not the all-purpose rate.  So from our perspective Schedule "C" is entirely incorrect the actual numbers expressed.




MR DUNCALFE:  Because of its failure to take into account the all-purpose allowances that are available under this award and considering that Schedule "C" is specifically for and solely for exhibition employees the all-purpose allowance has to be taken into consideration especially because this schedule is only concerned with those employees who do receive the all-purpose allowance.  So the fact that the minimum hourly rate has been listed in the first table at C.2.1 is incorrect from the start and then obviously everything has been calculated off that.  So it's entirely inaccurate.


THE VICE PRESIDENT:  All right.  Well, it seems, Mr Duncalfe, that that can also be workshopped to reach an agreement.


MR DUNCALFE:  Well, I think that in principle, we agree with the LPA.


THE VICE PRESIDENT:  Yes, well I think - you know - we're not having in-principle agreements.  We can actually see the agreement.  So there needs to be a discussion about what the new Schedule "C" should look like.


MR DUNCALFE:  Yes, your Honour.


THE VICE PRESIDENT:  All right.  So let's just recap while we're on the technical and drafting before I go to the substantive and anybody should interrupt if my comment is incorrect.  Item one has been agreed.  Item two is withdrawn.  Item three agreed.  Item four agreed.  Item five agreed.  Item six agreed.  Item seven agreed.  Item eight agreed.  Item nine withdrawn.  Item 10 agreed.  Item 11 withdrawn.  Item 12 agreed.


Now for further discussion between the parties items 13, 14, 15, 17, 18, 19 and 20 with items 16 agreed.  Is that a summary?  Anybody disagree with that summary?


MR DUNCALFE:  No, your Honour.


THE VICE PRESIDENT:  Well, so what I will come to the substantive matters in a moment but on the technical matters the parties should engage in further discussions with the report-back and we'll come back to how long you need for that after I do the substantive variations.


If we just turn briefly to the substantive matters and I'll - what I'm just really is to confirming whether they're still alive for the purposes of today.  The first of these is number one.  This is to seek the very clause include professional golfers.  Has there been any discussion on the substantive variations between the parties?


MS McDONALD:  Not at this stage.


THE VICE PRESIDENT:  So it is possible that on these items there might be some movement.  Mr Duncalfe?


MR DUNCALFE:  I'm sorry, your Honour.


THE VICE PRESIDENT:  On the substantive variations?


MR DUNCALFE:  Has there been any discussion on that?


THE VICE PRESIDENT:  No.  Well, the answer appears there hasn't been discussions and some of these are on their face potentially innocuous.


MR DUNCALFE:  Some, yes.  And some are potentially very substantial.


THE VICE PRESIDENT:  That is so, particularly the one dealing with overtime and penalty rates.




THE VICE PRESIDENT:  But there's been no - well, are any of the documents on the table withdrawn?  We'll do it that way.  Is anybody aware of any of the documents to now to be withdrawn on the substantive variations?


MS THOMSON:  Yes, your Honour.  The substantive variation number nine is withdrawn.


THE VICE PRESIDENT:  Thank you.  Okay.  So we're left with eight substantive variations and then the fall-out from the technical and drafting.  So how long would the parties need to have more discussions amongst themselves when we come back for another report back to deal with reducing the scope of the technical and drafting variations - hopefully to nothing - and then working out how far we're going on the substantive variations.  Mr Duncalfe?


MR DUNCALFE:  It seems that we would have to have discussions with AFEI and the LPA.  So I'm open to 14 days.


MS THOMSON:  We'd also like to be a part of those discussions please.


THE VICE PRESIDENT:  Would you be in a position say to come back by Friday 5 May?


MR HAMILTON:  Your Honour, we might have a bit of a problem with that.




MR HAMILTON:  Particularly being the 1 May - we're in Perth - again.




MR DUNCALFE:  Friday the 12th suits us.


MR HAMILTON:  Friday the 12th suits us as well, your Honour.


THE VICE PRESIDENT:  Everybody happy?  Yes?


MS McDONALD:  Yes, the 12 May suits.


THE VICE PRESIDENT:  All right.  We'll have our report back on Friday 12 May at 9.00 am and we'll have prepared at this end the revised document on second drafting as it stands and also on substantive variations deleting item nine.  The parties should engage in further discussions and advise us of what the position is on the next report back.  The Commission can assist in further conferencing at that point and discussion if it appears that we have reached the end of the road then I will prepare the report and say this is what remains and we'll then go back to the Full Bench for arbitration.  Anything further today?


MR DUNCALFE:  No, your Honour.


THE VICE PRESIDENT:  Thank you.  The Commission is adjourned.

ADJOURNED INDEFINITELY                                                         [12.44 PM]