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Fair Work Act 2009                                       1056949






s.156 - 4 yearly review of modern awards


Four yearly review of modern awards


Food, Beverage and Tobacco Manufacturing Award 2010




10.04 AM, FRIDAY, 10 MAY 2019


THE DEPUTY PRESIDENT:  Good morning.  As is my practice, with (indistinct) before the Commission, the review of modern awards, (indistinct) produce (indistinct) up to date and also - for example we might (indistinct) to the extent that there might be (indistinct) although I know who you all are, if you announce your appearances, for the record, beginning with you, Mr Grealy.


MR N GREALY:  If the Commission pleases, Grealy, for the AMWU.


THE DEPUTY PRESIDENT:  Yes, thank you.  Ms Bolton?


MS M BOLTON:  If the Commission pleases, Bolton, initial M, for United Voice.


MR S BULL:  If the Commission pleases, Bull, initial S, also for United Voice.


THE DEPUTY PRESIDENT:  What would happen if the Commission didn't please?


MR BULL:  I don't know.  It's a somewhat old-fashioned - well, it's a sign of - it's respect to the - taking the volume down.  I'm not happy.


MR B FERGUSON:  Ferguson, initial B, for the Australian Industry Group.


MS BHATT:  And Bhatt, initial R, for the Australian Industry Group.


THE DEPUTY PRESIDENT:  The AWU and the United Voice has filed the (indistinct), for the purpose of programming this conference, we can see whether or not any progress might be made in narrowing the issues and, to the possible, reaching some agreement on some of the matters.  I take it the parties haven't had an opportunity to have any discussions?


MR BULL:  No, not really.


THE DEPUTY PRESIDENT:  That's all right.  Mr Grealy and Ms Bolton, I might just get you, briefly, to outline the basis of (indistinct) determination being sought and so forth and then we might just seek a response from the Ai Group, if that's a convenient approach?  Mr Grealy?


MR GREALY:  Thank you, Deputy President.  Your Honour will have observed that the AMWU's draft determination deals with the classification structure of the award.  The amendments proposed include an, I suppose, an outline of the approach to be taken to the word "equivalent".  The intention there is to provide some guidance to employers, employees and, I suppose, the Commission also, in assessing equivalence between qualifications and experience.


The intention there is to allow persons classifying employees to take a holistic view of a qualification at the same AQF level as that which is specified at the relevant qualification level, and also have regard to competency, including cumulatively, where it might be said that the whole is greater than some of its parts.  So it's allowing for a process whereby a person need not necessarily look at each unit of competency in a qualification and determine whether each competency is equivalent, but also have regard to the overall certificate or qualification.  So that's the intention of, I suppose, fleshing out that word "equivalent".


The draft determination goes on to clarify, at the lower levels, a progression structure, some of which is already in the award but we think is set out more clearly in the draft determination.  The intention there is to ensure that a person should only work at level 1, where they have fewer than three months experience.


The award currently requires a person at level 1 to be undertaking up to 38 hours induction training.  That's occasionally not done and really is a discretionary program for an employer to implement or not implement.  At level 2 that structure of training is also mentioned.  A person at level 2, under the current award, is undertaking structured training to enable the employee to work at level 3.  We've amended that to read "may be", to ensure that a person is not, I suppose, trapped at a low level of classification by a failure to provide training.


We've also amended the word "competencies", where it appears in the current award, to read "indicative tasks", because, in our view, it better describes the words that follow, at each level.


So those are the primary amendments that are proposed in the draft determination.


THE DEPUTY PRESIDENT:  I'm assuming that your reference to schedule A is a reference to schedule A in the exposure draft, because the classifications are in schedule B.


MR GREALY:  That's right, Deputy President, but I understand the current schedule A is to be removed.


THE DEPUTY PRESIDENT:  It will be, yes.  What impact, if any do you think the proposal of clarifying "equivalence" will have, in relation to the operation of other awards which, similarly, use such descriptors between - comparisons between other qualifications and/or experience and the AQF version?


MR GREALY:  Well, we did have regard to other awards and they do, only to some degree, in terms of definitions particularly, as one might expect from the AMWU, we did have regard to the Manufacturing and Associated Industries Award.  So some awards have  more developed, I suppose, scheme, for the assessment and reclassification of workers.  Others simply use the word equivalent where - and it should be taken to bear it's ordinary meaning.


I suppose what we're proposing here is simply a guide to ensure that the persons can, as I said earlier, take a more holistic view of a worker's classifications and education.  Whether such an approach should be taken in other industries is, I suppose, beyond my remit.  But it stems from, I suppose, from a policy perspective, a concern that we've observed that people have been, I suppose, trapped in lower levels of the classification structure and this would allow their education to be properly recognised.


THE DEPUTY PRESIDENT:  Thank you, Mr Grealy.  Ms Bolton?


MR BULL:  I might just talk to the first one, thanks.


The first one deals with the thorny issue, which isn't peculiar to this award, that security - workers engaged in what I call security and cleaning, if they're not covered by - the Cleaning Award is, essentially, a contracting award and the Security Award is, similarly, a contracting - or covers labour hire type arrangements.  In circumstances where a person is performing that work and is directly engaged by the employer, they're notionally award free.  So this is to basically bring people doing that work in this sector within the modern award covering the sector.  There's generic classifications in the award, which wouldn't be in issue.  They probably haven't done an analysis but - - -


THE DEPUTY PRESIDENT:  Is there a large proliferation of directly employed persons undertaking security work?


MR BULL:  Possibly not, and since we're off record I'll be candid.  This is one where - - -


THE DEPUTY PRESIDENT:  We do have transcript.


MR BULL:  Right.  We're in the process of getting evidence and if we don't get evidence we may be withdrawing this claim.




MR FERGUSON:  I might jump in, Deputy President.  I heard what you said about maintaining the record, just so you're aware, there was some discussion between the parties, prior the proceedings commencing, about the fact that there might be some merit in going off record for some period.


THE DEPUTY PRESIDENT:  If, at any stage, the parties want to go off record, I'm happy to facilitate that.


MR BULL:  What I've just said is nothing which is particularly astounding.  So, look, the substance of the claim is basically to bring persons doing, respectively, cleaning and security work in the sector covered by the award under the award.


THE DEPUTY PRESIDENT:  If I understand correctly, what you have indicated, Mr Bull, is your prosecution of the claim would be subject to United Voice being satisfied that there's a cohort of persons who has so employed?


MR BULL:  Yes, and to be candid, we've had some difficulty getting evidence.  One of the peculiar things is that the security and cleaning function tends to be outsourced, therefore it's covered by the Cleaning and Security Award, so there's probably very few.  And the ones where they would be directly engaged are likely at smaller establishments.  It's a significant issue in these two types of work and, as I said, it's not peculiar to this award.


Obviously, in the appropriate time, we'll disclose to the participants that it's withdrawn, it may be withdrawn.  We're in the process of getting evidence.  It think it's a claim which you can't run effectively, without some evidence.  Because it's a significant issue it's best not to run it poorly.


THE DEPUTY PRESIDENT:  Yes, I understand.


MR BULL:  The second matter concerns hot places.  And this reflects - - -


THE DEPUTY PRESIDENT:  As in warm rather than popular?


MR BULL:  I beg your pardon?


THE DEPUTY PRESIDENT:  As in warm rather than popular.


MR BULL:  Yes, temperature rather than atmosphere.  You don't need a loading for a hot place, in a general sense.  One of the issues with these claims, this is, once again, being candid, these are basically put on four years ago so this one is perhaps a bit simpler and is likely to be progressed.  But I can't imagine the evidence is going to be particularly complex.


Some of the matters I would say are just issues that can be dealt with.  They're problems with the drafting and so forth.  There's obviously the issues about we say the rates should be higher, and the evidence we would probably present in relation to that might be some general physiological evidence, concerning the effect of temperature.


THE DEPUTY PRESIDENT:  The effect of your proposal was two-fold, one to raise the payment for working in there and, secondly, the manner in which the actual temperature is determined.


MR BULL:  Correct.  And currently it's determined by - unilaterally, by the employer and we say it would be by agreement between the employee.  It's not uncommon, in awards, where that method is determined.  That could arguably lead to some evidence that the current provision is being abused.


The second one is dealing with 32.5, which is more dealing ambiguity and clarifying what we say is just - the current provisions seem to be ambiguous about meal breaks.  This is inserting a clarification which reflects what is common in other modern awards where if you don't take a break - if the employee doesn't get a break some penalty starts accruing.  It's ambiguous in the current award, because there's provisions that appear to contradict each other.  That's something there we wouldn't be - that'd be by submission.


THE DEPUTY PRESIDENT:  If I could just seek clarification, what way is it ambiguous?  It struck me that - - -


MR BULL:  Well, we've had a submission we filed that - - -


MR FERGUSON:  It struck me that you were just removing an ability to reach agreement on alternate arrangements, rather than addressing any further ambiguity.  The current clause provides, these are the words:


Except for where an alternate arrangement was entered into by agreement between the employer and employee concerned, the rate of  must be paid.


So that's you - - -


MR BULL:  I agree with that.  And the problem with that is we say the agreement is often not real agreement.  These are, essentially, factories, manufacturing factories for food and so forth and it's appropriate that there be some rigidity.  And when the employer's obliged to give the employee a meal break.  So I'm happy to characterise it that way.


The second one is clarification of - this is just, we say, once again, bringing this award in line with what's common practice in other awards, in relation to ordinary hours and overtime.  It's time and a half and then double time, after two hours, for overtime.  We wouldn't imagine having a lot of evidence about that.


MR FERGUSON:  Do you have a view about which awards your lining it up with?


MR BULL:  Manufacturing, sorry.


MR FERGUSON:  You're going to tell me that it's not common in manufacturing?


MR BULL:  No, sorry, food manufacturing.  The draft was, to some extent, based on the manufacturing award.  The manufacturing award is three, it's three in food.  You're actually not lining it up, you're actually changing it.


MR FERGUSON:  It's common in other awards to have two halves.  Security, cleaning, hospitality.  Then we have a claim, in relation to (indistinct) the definition of "shift worker".  So there seemed to be an ambiguity as to whether the additional week of annual leave is given to shift workers, under this award.  That would be bringing it in line.  That's an NES issue.


THE DEPUTY PRESIDENT:  As I apprehend it, the change that you want to make is - the current formulation is that a seven day shift worker (indistinct) entitlement to someone who is regularly rostered to work on Saturdays and public holidays, (indistinct) sorry, Sundays and public holidays, (indistinct) to delete Sundays and inserting weekends.  Presumably to catch Saturdays?


MR BULL:  I beg your pardon?


THE DEPUTY PRESIDENT:  Presumably to catch Saturdays.


MR BULL:  Correct.  So the kind of work reflects, I suppose, the concept that Saturday, or Saturday morning at least, was considered a work day.  The formulation, we say, is more up to date, weekends and public holidays.  Those are the claims we're at the moment, have, in relation to the review of this award.


MR FERGUSON:  Does that mean that 5, 6 and 7 are withdrawn?


MR BULL:  I beg your pardon?


MR FERGUSON:  I thought there were variations - - -


MR BULL:  Five?  This is where overtime on a Sunday must be paid at two hours.


MS BHATT:  Five, 6 and 7 are all in relation to the overtime claim.




MR BULL:  So they're ancillary or they're part of bringing it down to two hours rather than three.  So I said two, previously it was three, it's inserting "two".




MR BULL:  So they're just a, basically, off-shoot of the overtime claim, if that makes sense.  They're not fresh claims.


MR FERGUSON:  No, no, no, I'm just trying to - - -


THE DEPUTY PRESIDENT:  So, effectively, 4 through 7 seeks to alter the formulation so that the higher rate kicks in after two hours, rather than three?


MS BHATT:  Apologies, 7 is the shift worker clause.  Four through to 6.  So 4 through to 7 are the overtime claims, yes.


MR FERGUSON:  If I might just cut to the chase here for 6 and 7, aren't you reducing your entitlements?


MR BULL:  In what sense?


MR FERGUSON:  Sunday you have to be paid for a minimum of three hours at 200 per cent at the moment, and you're proposing to make it a minimum of two hours?


MR BULL:  Have you got a point?


MR FERGUSON:  I'm happy to agree to it, but it might come unstuck later on.  Public holidays as well.  You must be paid for a minimum of three at the moment and you're reducing it to two.


MR BULL:  I hear what you're saying.


MR FERGUSON:  In all of them.  So it seems to me that we could reach agreement to that quickly.  But 6 and 7, I assume, you might not press.


MR BULL:  I don't think we're going to press them.  So you can delete 6 and 7.


THE DEPUTY PRESIDENT:  All right.  Mr Ferguson?  Before you do.  Mr Bull, do you have a view on the AMWU's proposal?


MR BULL:  I beg your pardon?


THE DEPUTY PRESIDENT:  What is United Voice's view on the AMWU's proposal?


MR BULL:  It seems a reasonable proposal, so we'd be supporting it, I imagine.


THE DEPUTY PRESIDENT:  All right.  Sorry, Mr Ferguson?


MR FERGUSON:  I think at the moment we haven't been supportive of any of the proposed variations, but I think it might be prudent to go off record and have some discussions about our views.



OFF THE RECORD                                                                             [10.28 AM]

ON THE RECORD                                                                               [11.16 AM]


THE DEPUTY PRESIDENT:  Well, the parties have had some private discussions.  There has been an indication, from United Voice, that it no longer presses the matters set out in paragraphs 6 and 7 of the draft determination.  There were some other aspects of the claims, contained in the draft determination about which United Voice will give further consideration and, to the extent that any of the remaining claims change, or are to be omitted, I would ask that in addition to filing its submissions in evidence it file an amended draft determination at the time that it's due to file its submissions in evidence, which is 3 June 2019.


As to the AMWU's claim, they (indistinct) engage in some further discussions to try and reach an agreement or at least minimise the differences between them before the hearing.  It might be useful to also involve United Voice in those discussions.


MR BULL:  We're probably won't be able to add a great deal, but we're happy to participate.


THE DEPUTY PRESIDENT:  It's a matter for you.  If you want to participate I don't think there will be any objection.


MR FERGUSON:  We'll make sure, everyone's invited.


THE DEPUTY PRESIDENT:  All right.  That concludes the conference for today.  Thank you, (indistinct) for your helpful participation and we'll adjourn.

ADJOURNED INDEFINITELY                                                        [11.18 AM]