TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009

VICE PRESIDENT HATCHER

AM2017/51

s.156 - 4 yearly review of modern awards

Four yearly review of modern awards
(AM2017/51)

Sydney

10.13 AM, WEDNESDAY, 27 OCTOBER 2021

Continued from 11/08/2021

PN1

THE VICE PRESIDENT:  I'll take the appearances.  The only appearance, Mr Rabaut.  You appear for the Australian Services Union.

PN2

MR C RABAUT:  Yes, that's correct, Vice President.

PN3

THE VICE PRESIDENT:  I've looked at your application.  It appears to me that you've raised two issues.  The first is that the cross‑reference in clause 29.2 is incorrect or perhaps incomplete, and the second is that the pay rates in schedule B.2 don't reflect the penalty rates established in clause 21.3.  Is that correct?

PN4

MR RABAUT:  That's correct.

PN5

THE VICE PRESIDENT:  there might perhaps be a third issue, and that is the heading to clause 21.3 may not be fully accurate.  Your application is self‑explanatory, so unless you particularly want to, I don't need to receive any further submissions from you.

PN6

MR RABAUT:  No, thank you, Vice President.

PN7

THE VICE PRESIDENT:  Perhaps you can't answer this, but I'm just looking at the award.  Is there any reason why on public holidays there is such an extraordinarily high penalty rate in clause 21.C(ii)?

PN8

MR RABAUT:  I can't answer it specifically, except for the fact that in the four‑yearly review, as set out in the application, the Full Bench at that point determined that the casual loading was on a compounding basis.  So I don't know the submissions that went into that particular matter for the Full Bench to make that determination, but that's where it comes from in particular.

PN9

THE VICE PRESIDENT:  It's not necessarily just the casual rate, it's the fact that even the full‑time is at triple time and a half, but in any event, that's not an issue that I need to consider.  This happened in the casual award terms review.  Is there some respondent organisation or employers that you consider might appear in this matter?

PN10

MR RABAUT:  The only other party that might be interested is HR Legal.  Obviously they wrote into the Commission a few weeks ago on a matter that's tangentially related to this.  So it wasn't specifically related to this, but it was a question around the pay rates in the schedule itself.  So they didn't go to clause 29.2 or the ambiguity in the body of the agreement but rather the schedule.  Other than that, I don't believe there would be any particular employers that would have a particular interest or should be otherwise notified.

PN11

THE VICE PRESIDENT:  All right, thank you.  Mr Rabaut, unless you tell me otherwise, what I propose to do is, in the absence of any contradictor, simply make a decision on the basis of the grounds articulated in your application.

PN12

If I decide, in accordance with the application, that the award should be varied, there will be a draft determination published with that decision.  Parties will then be given a period of 14 days to comment, and if there's no opposition, the award will then be varied.  Is that a suitable course to take?

PN13

MR RABAUT:  Yes, Vice President.

PN14

THE VICE PRESIDENT:  That's what we'll do then.  If there's nothing further, I thank you for your attendance, Mr Rabaut, and we'll now adjourn.

PN15

MR RABAUT:  Thank you.

ADJOURNED INDEFINITELY                                                [10.17 AM]