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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009                                                    

 

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT MASSON
COMMISSIONER LEE

 

AM2017/59

 

s.156 - 4 yearly review of modern awards

 

Four yearly review of modern awards

(AM2017/59)

Hospitality Industry (General) Award 2010

 

Sydney

 

10.46 AM, TUESDAY, 27 NOVEMBER 2018


PN1          

JUSTICE ROSS:  How would you like to start?

PN2          

MR S BULL:  If the Commission pleases, my name is Bull.  I appear for United Voice - - -

PN3          

JUSTICE ROSS:  No, you don't need to do the appearances.  Well, I suppose you do because it's the Hospitality matter, so, yes, Mr Bull, with Ms Dabarera.

PN4          

MR BULL:  If the Commission pleases, my name is Bull.  I appear for United Voice, with my colleague.

PN5          

JUSTICE ROSS:  Ms Dabarera.

PN6          

MR P RYAN:  Ryan, initial P, for the Australian Hotels Association and the Accommodation Association, your Honour.  One of my colleagues is at the bar table, but she won't be appearing in the matter.

PN7          

JUSTICE ROSS:  All right.  Thank you.

PN8          

MS K THOMSON:  Thomson, initial K, if the Commission pleases, for ABI and the New South Wales Business Chamber.

PN9          

JUSTICE ROSS:  Thank you.

PN10        

MR BULL:  We might deal with the tool allowance matter - sorry.

PN11        

MR W DAVEY:  Mr Davey, from the Queensland Hotels Association, merely observing.

PN12        

JUSTICE ROSS:  All right.  Anyone from Restaurant and Catering?  No?  All right.

PN13        

MR BULL:  We might deal with the tool allowance matter first.

PN14        

JUSTICE ROSS:  Yes.

PN15        

MR BULL:  I understand there is agreement from the AHA to broaden the coverage of the eligibility for the allowance in that particular award.  To be candid - and I think your Honour used the term "dog's breakfast" in relation to some other matters in relation to allowances and so forth.

PN16        

JUSTICE ROSS:  The relativity point, about if you provide accommodation with no meals versus if you provide it with meals; the differential and those sorts of issues, yes.

PN17        

MR BULL:  Yes.  I think allowances generally in the modern award system can be characterised as a bowl full of dog biscuits.  There isn't any particular rhyme or reason as to how these allowances are calculated and, to be quite candid, our claim has a significant element of ambit in it.  If you don't ask for things, you don't get anything.

PN18        

I had a closer look just to clarify the two most comparable awards, which were the Aged Care Award and the Health Professional and Support Services Award, and I couldn't find any provision for reimbursement in relation to those awards.  The higher amount in terms of any logic perhaps can be attributable to the fact that there is no reimbursement.

PN19        

Our principal concern is that it seems to us that in the Restaurant and in the Hospitality Awards you're covering particularly in relation to chefs and cooks; more or less identical work.  There seems no logical reason why you get paid 50 cents less a week if you work in a restaurant - rather, you know, $1.50 less if you work in a pub and more if you work in a restaurant.

PN20        

JUSTICE ROSS:  When you say the word "comparable" - and I'm not disagreeing with the proposition - that flows from the fact that the Hospitality Award covers restaurants that are operated in or in connection with the hospitality venue such as a hotel, motel, boarding house, et cetera.

PN21        

MR BULL:  Yes.

PN22        

JUSTICE ROSS:  A restaurant that is in or connected with a hotel versus the Restaurant Award which excludes that element of coverage but covers restaurants generally, so what you might describe as free‑standing restaurant operations; but broadly your proposition is for restaurants and restaurants.  It's a location question and a chef/cook performing the work in a - you know, obviously the level of the restaurant, the range of meals, et cetera, but fundamentally the task is - - -

PN23        

MR BULL:  It's the preparation of meals.

PN24        

JUSTICE ROSS:  Yes, preparation of meals and for that purpose they use tools, and on that basis the tool allowance level should be the same.  That is the essence of it.

PN25        

MR BULL:  Correct.

PN26        

JUSTICE ROSS:  I understand then that the Associations agree on the scope, cooks and apprentices, and they agree on the adjustment mechanism.  Where are the parties at with this proposition about the quantum being - - -

PN27        

MR BULL:  Well, I think where we differ is my friend would say that it should go up to what it should have been had it been adjusted to CPI.

PN28        

JUSTICE ROSS:  Yes, I see.  If you had applied the correct adjustment factor, where would it be from 2010, and you say, well, it should go up to where it is in the Restaurant Award.

PN29        

MR BULL:  Correct.  We would say that if you apply the correct adjustment factor, you get to $7.93 per week.  That is at paragraph 35 in your background paper.

PN30        

JUSTICE ROSS:  Yes.

PN31        

MR BULL:  The current amount is $8.49 in the Restaurant Award and we would say that it should just reflect what the Restaurant Award is.  There was - and I note this in the submission.  This is at paragraph 58 of our submission.  There is some comment in a document from award modernisation which seems to indicate that the current amounts in the Hospitality Award are out of date.  I've described that as marginalia, but more that marginalia.

PN32        

JUSTICE ROSS:  All right.

PN33        

MR BULL:  We wouldn't suggest that the Restaurant Award should go down and that the appropriate way to deal with the problem is just to set the level of the Restaurant Award.

PN34        

JUSTICE ROSS:  I see.  All right.

PN35        

MR BULL:  That is logical and I don't think it will drive pubs into insolvency if that occurs.  The other thing about this particular allowance is that it's at the control of the employer.  It's when the employer directs the chef or the cook to use their own tools.

PN36        

JUSTICE ROSS:  All right.  Well, I think we understand the area between you.  Are you content with the summary of your position or is there something you wanted to add?

PN37        

MR RYAN:  Well, I would like to just address the bench briefly on that, your Honour.

PN38        

JUSTICE ROSS:  Sure.

PN39        

MR RYAN:  Because there is a discrete difference between what we would be prepared to go to and the way in which it has been framed by United Voice.  Just firstly I do question whether the amount of 1.62 per day and 7.93 per week in paragraph 35 of the report is correct because if I draw your Honours and Commissioner to page 8 of the report, which is a table - - -

PN40        

JUSTICE ROSS:  Yes.

PN41        

MR RYAN:  - - - the table seems to suggest from March '18 that they should be 8.19 and 1.73.  The difficulty we have - - -

PN42        

JUSTICE ROSS:  But do I take it that - leave aside the arithmetic for the moment.

PN43        

MR RYAN:  Yes.

PN44        

JUSTICE ROSS:  That as far as you would be prepared to go would be to apply the correct adjustment factor back to when the modern award was made in 2010 and you arrive at a particular number for that, but you don't see any basis for increasing the number beyond that to the level that is in the Restaurant Award.

PN45        

MR RYAN:  Correct, your Honour, but the level in the Restaurant Award is where we say that adjustment factor should be now.  If you adjusted it in accordance with the tools index, bearing in mind that the Restaurant Award started from 1 January 2010 at 1.55 and 7.60 and then was adjusted in accordance with the tools index - - -

PN46        

JUSTICE ROSS:  Yes.

PN47        

MR RYAN:  - - - and it has landed at 8.49, we say we would be prepared for the Hospitality Award to go up to 8.49 and the Restaurant Award and the Hospitality Award stay at that point, and then be adjusted in accordance with the tools index; but to go beyond 8.49, there has not been a case made out.  There has been no evidence - - -

PN48        

JUSTICE ROSS:  I follow, okay.

PN49        

MR RYAN:  Yes.

PN50        

JUSTICE ROSS:  So the allowance should be equalised at the current level in the Restaurant Award, then be adjusted on the tool allowance from that point on.

PN51        

MR RYAN:  Yes.

PN52        

JUSTICE ROSS:  But there is no warrant for any level of 11.20 or anything above - - -

PN53        

MR RYAN:  I just want to make the careful distinction here that our submissions shouldn't be the same as the Restaurant Award because there is a live claim in the Restaurant Award to lift it above 8.49.

PN54        

JUSTICE ROSS:  No, no, I follow.  Yes, I see.

PN55        

MR RYAN:  Yes.

PN56        

JUSTICE ROSS:  So you want to preserve your position?

PN57        

MR RYAN:  As per the tool index.

PN58        

JUSTICE ROSS:  Where is the live claim in the Restaurant Award?

PN59        

MR RYAN:  Well, it was sort of more accurately described as a Dutch auction yesterday.  It started at 11.20 and went to $9.00.

PN60        

JUSTICE ROSS:  Look, I think the same thing would have to follow.  The concession in relation - the 11.20 is really only based on the Aged Care and the Health matter.  It has been conceded that those provisions are not comparable.

PN61        

MR RYAN:  Yes.

PN62        

JUSTICE ROSS:  I don't see how a different argument can be run in Restaurants.  I think we would take what Mr Bull said in the Hospitality matter this morning into account in dealing with the Restaurant claim.

PN63        

MR RYAN:  Yes.

PN64        

JUSTICE ROSS:  No, I see.  You don't want to get caught, in other words.

PN65        

MR RYAN:  Precisely.

PN66        

JUSTICE ROSS:  No, no, I follow.  All right.

PN67        

MR RYAN:  If it gives your Honours and Commissioner comfort about a like‑for‑like tool allowance, we disagree with the submission of United Voice in terms of the Aged Care and Health Services Award being similar.  We would say that the Hair and Beauty Award is similar.  It's not in the sense similar in terms of the industry or tools, but it's similar in the operation of a clause for tool allowance which has both reimbursement as well as a weekly allowance.

PN68        

JUSTICE ROSS:  Yes.

PN69        

MR RYAN:  When you look at the amounts and the quantum of the weekly amount, the Hair and Beauty Award is much similar.  I think it's about $8.93 versus $8.49.  I suspect with Hair and Beauty there would be the upkeep; electrical tools might be somewhat more as a basis as to why that might be marginally higher.  Unless there is anything further on the tool allowance, your Honour - - -

PN70        

JUSTICE ROSS:  No, thank you.  What is the position of ABI?

PN71        

MS THOMSON:  We support the position of the AHA in respect of the claims now, your Honour.

PN72        

JUSTICE ROSS:  Okay.  Thank you.  What should I do about RCI?  They have an interest in it.  I wonder if I could prevail on you to contact them and advise them of your position, and ask for an indication from them as to whether or not they take a different view.

PN73        

MR RYAN:  On the quantum?

PN74        

JUSTICE ROSS:  Yes, on that issue really, because they have already expressed their view about the extension to cooks and chefs.  We put a question in the background paper asking them to elaborate on what is the logical reason for that.  They have not done that.  I don't want to close off anything they wish to say, but we need to bring the proceedings to a conclusion at some point.

PN75        

It may be that we can communicate to them and say we propose to provide a short final opportunity to answer the questions and to say anything they wish to say about the agreed position between the associations, ABI and the union in respect of the tool allowance matter in the Hospitality Award at a hearing at 2 pm tomorrow, and then they will have the opportunity.  Look, the other option just gets messy.  We can ask them to put in written stuff, but then people will be responding.

PN76        

It's a fairly short point, so that might be the best.  At some point we'll take a short adjournment and I would be grateful, Mr Ryan, if you could contact them and just see - - -

PN77        

MR RYAN:  Yes.

PN78        

JUSTICE ROSS:  Look, if they don't want the opportunity and they don't wish to say anything further about the logic of the apprentice being covered but not the cook, and if they're content to express a view through you about what their position is on the quantum question, then that's fine, too.  I don't want to force them to come, but I don't want to deny them an opportunity either.

PN79        

MR RYAN:  So if 2 pm tomorrow works - - -

PN80        

JUSTICE ROSS:  Yes, then they can come along and say what they wish to say.  If they are content to simply relay their position through you, then that can be done later this morning, as well.

PN81        

MR RYAN:  May it please.

PN82        

JUSTICE ROSS:  All right.  Thank you.  Any other discussions or that is the - - -

PN83        

MR BULL:  My colleague has been dealing with the other matters.

PN84        

JUSTICE ROSS:  Okay.  Ms Dabarera?

PN85        

MS DABARERA:  Your Honour, may I do the joint submission on the AHA and United Voice's joint statement of 20 November 2018 at this point, if that suits the Commission?

PN86        

JUSTICE ROSS:  Certainly.  Just bear with me for a moment.  In relation to the apprenticeship matter and the question of a competency based system, I don't think we need to hear from you in that.  That is material set out in the AHA's submission of 24 July and they refer to it from paragraphs 89 and following.  In particular they take us to the Apprentices Full Bench decision, so I think that adequately covers that point.

PN87        

That really then leaves I think the junior employee question definition and the forklift driver allowance.  I had worked on the assumption that those amendments were intended to add clarity and to make the award simpler and easier to understand.

PN88        

MS DABARERA:  Yes, your Honour.

PN89        

JUSTICE ROSS:  I think the junior employee question definition and the forklift driver allowance - I had worked on the assumption that those amendments were intended to add clarity and to make the award simpler and easier to understand.

PN90        

MS DABARERA:  Yes, your Honour.  Those are the AHA claims, so I don't know if they want to speak to those claims.

PN91        

MR RYAN:  Yes, your Honour.  I think many of these matters that are not opposed are largely clarifying issues and enliven section 134(1)(g); that is, the need to ensure a simple and easy to understand award system.  Might I just deal with the junior employee definition first.  There is some legislation at state and territory level, for example, in New South Wales, that juniors are not to be employed in vocations.

PN92        

The proposed amendment simply just clarifies that, although I should say, your Honour, we need to make perhaps one further adjustment because the definition of a junior employee in a plain language exposure draft is premised on a junior being under the age of 21, whereas the documents filed by the Australian Hotels Association are premised on a junior being 20.  I don't think it affects anything; it just means that for the purposes of the percentages although a junior might be under 21, when they hit 20 in the Hospitality Award they are still entitled to 100 per cent of the adult rate.

PN93        

JUSTICE ROSS:  I should say that we would - subject to being satisfied - give effect to a variation determination to the award and then update the PLED.

PN94        

MR RYAN:  Yes.

PN95        

JUSTICE ROSS:  On any variation determination, you would have an opportunity to comment on that.

PN96        

MR RYAN:  Yes.

PN97        

JUSTICE ROSS:  Certainly on the translation of that when it's finalised into the plain language exposure draft, there would be an opportunity, as well.  We can probably, I think, work on the language of the award and then we'll do the transposition question a bit later on.

PN98        

MR RYAN:  May it please.  In terms of apprentices and the competency based wage progression, as your Honour pointed out - this is at paragraphs 89 to 116 of our submission - in essence it provides a mechanism for an apprentice to be progressed through the apprenticeship levels according to their skills and competencies, but it's only available where competency based wage progression is permitted under the relevant state or territory legislation; so it's not a catch‑all as such, your Honours and Commissioner.

PN99        

JUSTICE ROSS:  So you still have the option of time based or competency based.

PN100      

MR RYAN:  Yes.

PN101      

JUSTICE ROSS:  Depending on whether competency based is available.  For example, in Queensland I think it's all competency based.

PN102      

MR RYAN:  Precisely.

PN103      

JUSTICE ROSS:  Yes.

PN104      

MR RYAN:  This draws in matters such as the need to promote social inclusion through increased workforce participation.  The simple and easy to understand stable award system, it will increase relative living standards as apprentices with skills progress through that and are entitled to and attract a higher level of remuneration.

PN105      

In terms of the wording of the clause, if I could just take - there was a decision - excuse me, your Honours and Commissioner.  I've got some technical - there was a Full Bench decision which isn't referenced in our materials, but the reference is [2013] FWCFB 9630.  That dealt with competency based wage progression in a range of awards as part of the two-year transitional review.

PN106      

The wording that we proposed is actually adopted from similar wording that is in other awards, such as the Manufacturing and Associated Industries Award, the Building and Construction (On‑site) Award, the Graphic Arts Award.  I think there is one other, but it's not language that's foreign to the Commission.  It's competency based wage progression terms which are being adopted by a Full Bench of this tribunal in other awards.

PN107      

The one departure from those provisions is in subclause (e), but essentially subclause (e) of the proposed clause 4.12 is a mirror to subclause (b).  Subclause (b) gives the employer a right to essentially challenge the competency level that an employee is judged to be at and subclause (e) provides a corresponding right to the employee.

PN108      

JUSTICE ROSS:  Yes.

PN109      

MR RYAN:  Other than that, the clause is almost identical to those other awards I've drawn your attention to.  The other matters in relation to apprentices was an adjustment from standard weekly rate to standard hourly rate.  Again this is something, your Honour, which might be fleshed out in the translation.  However, at the very least we think there should be a reference to "standard hourly rate" in the clause whether you have weekly rates and hourly rates, but it brings in the operation of the definitions in clause 3.

PN110      

The definitions in clause 3 - there is a minimum hourly rate in clause 20 and then a definition of "ordinary hourly rate" in clause 3, which is premised on the minimum hourly rate plus any all‑purpose allowance.

PN111      

JUSTICE ROSS:  Yes.

PN112      

MR RYAN:  So it provides an operative mechanism to that by including a reference to the hourly rates for apprentices in clause 20.4.  In terms of expanding the scope of apprentices, the current Hospitality Award deals with apprenticeships for cooking and waiting only, but there are other types of trade‑qualified classifications provided for in the award.  For example, gardener grade 3, gardener grade 4.  I think there is also some in the guests services scheme with trade‑qualified tailors and dry cleaners, and food and beverage trade‑qualified waiters, although I don't know if there are many of those around any more.

PN113      

Nonetheless, what we have sought to do there is to address the issue of where a large resort may have a maintenance team and wants to employ an apprentice gardener; what modern award would cover their employment that would fall outside the scope of the Gardening and Landscaping Award.  It would either be the Miscellaneous Award - and it wouldn't be an efficient means to - - -

PN114      

JUSTICE ROSS:  No.

PN115      

MR RYAN:  - - - push an employer onto a separate award merely to employ an apprentice.  Essentially an amendment to clause 20 there is to permit an employer to engage an apprentice for any of the trade‑qualified roles that are otherwise covered in the classification structure.  The percentage progression amounts in 20.4 for the cooking apprenticeship are aligned with the apprentice percentages in the Miscellaneous Award.

PN116      

If I can then deal with the issue of forklift drivers; at the outset in particular with reference to part‑time and casual forklift drivers.  As we have submitted at paragraphs 126 and onwards, that provision no longer truly operates as an all‑purpose allowance.  It was varied by consent during the transitional review.  The parties in reaching that position perhaps didn't appreciate the full nature of the all‑purpose allowance.  What our proposed amendment seeks to do is to restore that.

PN117      

If I can just firstly deal with full‑time employees and the amendment there.  This is really just touching on 134(1)(g) and a simple and easy to understand award system.  An all‑purpose allowance is generally understood to be an amount that is added to an employee's minimum hourly rate to arrive at an ordinary hourly rate for the calculation of overtime and penalty rate payments when they might otherwise apply.  However, in many cases the all‑purpose allowance is merely set in the award as a weekly amount with no indication as to how you convert that to an hourly amount.

PN118      

Secondly, as a weekly amount it could be read that it provides a cap per week of that amount and when an all‑purpose allowance would apply to both ordinary hours and overtime hours, in our submission it creates confusion.  If an all‑purpose allowance is to be added as an amount per hour to the minimum hourly rate to create the ordinary hourly rate for all purposes, it is our submission that that amount should be expressed as an amount per hour.  That really would, in our submission, make the calculation of the ordinary hourly rate simple and easy to understand for all users of this award.

PN119      

I will address one matter, your Honours and Commissioner.  I think perhaps in the haste of some discussions we had with United Voice last week, a draft determination went in in correspondence which indicated that it might be an amount of the standard weekly rate divided by 38.  We think that could be cleaned up just by having that percentage amount of the standard hourly rate.

PN120      

In terms of the part‑time and casual employees, as I said, that was amended to be a daily rate and there was perhaps not a full appreciation of its all‑purpose nature.  We are seeking to restore that.  There has been some concern that in doing so some employees might be worse off.  The draft determination that was submitted last week allows that to preserve for any employees that are currently being paid a daily amount, but it also provides a mechanism to opt out into the revised amount if the Commission is so minded to grant that.

PN121      

MS DABARERA:  Your Honour and Commissioner, I might briefly mention that we touch on that issue of our concerns that some part‑time employees and casual employees will be negatively impacted by this change in our submission in reply, in paragraphs 33 to 35.  The joint position we have reached essentially seeks to retain the current mechanisms for those employees who do have that and then going forward introduce the hourly rate for new employees.

PN122      

JUSTICE ROSS:  Okay.  Look, just touching on the point you've made about the tweaking of the draft variation determination, perhaps the best course is to provide you with a period of time to file a revised variation determination.  If that can be done by, say, seven days; so 4 pm, Wednesday of next week.  If you could have some discussions about that and if you reach a landing on the junior matter that is agreed, then include that in the variation determination.

PN123      

MR RYAN:  Lastly - and this wasn't part of the paper that was handed down by the bench yesterday, your Honour, but it was foreshadowed in our report last week in relation to items 3 and 23.  This is the description of an accrued day off and a rostered day off.

PN124      

JUSTICE ROSS:  Yes.

PN125      

MR RYAN:  I might, if I can, hand up three draft determinations - well, three copies of one draft determination.  There was an issue between the parties regarding some consequential impact about a defined term being accrued day off and largely this variation would place a distinction in the award between a rostered day off which is an ordinary unpaid day off, and a paid rostered day off which is accrued when working the 160 hours over a four‑week period.

PN126      

JUSTICE ROSS:  Could you just go through that distinction again for me.

PN127      

MR RYAN:  Sorry.  A distinction between a rostered day off which is simply an unpaid day off, one of the two days per week or eight days per four‑week cycle, and - - -

PN128      

JUSTICE ROSS:  And an accrued - - -

PN129      

MR RYAN:  - - - an accrued day off which is a paid day off under the 160 hours of a four‑week mechanism in clause 29.  Again, this is just another matter of clarity in the award and the consequential amendments are that where the current award deals with rostered day off which includes both, we have separated that out to be a rostered day off or accrued day off, as you can see at item 2 in that draft determination which relates to clause 26.15.  The remainder of the amendments are largely in the same terms and this position is agreed with United Voice.

PN130      

JUSTICE ROSS:  What items does that relate to in the claims, do you know?

PN131      

MR RYAN:  Your Honour, it is items 3 and 23.  That is items 3 and 23 in the document published 22 May 2018.

PN132      

JUSTICE ROSS:  All right.  Thank you.

PN133      

MR RYAN:  From the AHA's perspective they are the items that are not opposed, unless there is anything further, your Honours and Commissioner.

PN134      

JUSTICE ROSS:  No.  That's fine.

PN135      

MS DABARERA:  Your Honour, I might add one other matter which we have had some further discussions about and I believe that we could come up with a determination for that within that seven‑day time period.  That is items 20 and 28, which is "Public holiday".

PN136      

JUSTICE ROSS:  That was the matter that we were - - -

PN137      

MS DABARERA:  That's a matter that you raised in your questions and provisional views paper yesterday.

PN138      

JUSTICE ROSS:  Yes.

PN139      

MS DABARERA:  In relation to currently an employee can take off that public holiday that they have worked, that additional day off, within the 28 days.

PN140      

JUSTICE ROSS:  Yes.

PN141      

MS DABARERA:  There was a question raised about taking that off within the six months.  We don't oppose that being taken off within the six months provided that, you know, if the employee leaves their employment it's paid out properly.

PN142      

JUSTICE ROSS:  Yes.

PN143      

MS DABARERA:  I think we could work with AHA to get some wording around that and submit that alongside the revised draft determination if that's appropriate.

PN144      

JUSTICE ROSS:  Yes, that's fine.  Just bear with me for a moment.  Can I take you through - if you've got that document from yesterday - "Questions and provisional views".  Do you have that in front of you?

PN145      

MS DABARERA:  Yes, your Honour.

PN146      

JUSTICE ROSS:  You will see there clause 33.4, "Time off instead of payment for overtime".  Speaking for myself, I had in mind that you would have the six months.  You would also have the provision - or something like it - in paragraph (g), if it's not taken within six months, what happened, and you would also have the provision in (k) that if there is termination and it's not taken, what happens; so some mechanism for paying out if you're outside.

PN147      

MR RYAN:  No objection.

PN148      

JUSTICE ROSS:  Yes.  I think if you work on that basis, that seems to be a sensible resolution.  That is, it gives a bit more flexibility but places an outer limit on it and protects employees in the event that it's not provided within the time frame or their employment is terminated.  Okay?

PN149      

MS DABARERA:  Yes, your Honour.

PN150      

JUSTICE ROSS:  We are content to leave that with you and await what you wish to say about it.  I would ask that you keep ABI informed and RCI so that we can ascertain their view in relation to any agreed proposal that comes forward, and we don't need to go back to you.  Okay?

PN151      

MS DABARERA:  Yes, your Honour.

PN152      

JUSTICE ROSS:  All right.  I'm particularly conscious, Mr Ryan, that I've missed those claims that you've identified in the agreed drafted termination.  I might mark that as exhibit A1.  That is the consent draft determination proposal dealing with items 3 and 21.

EXHIBIT #A1 CONSENT DRAFT DETERMINATION PROPOSAL DEALING WITH ITEMS 3 AND 21

PN153      

JUSTICE ROSS:  As some point if we could get an electronic version of that, that would be of assistance.  Subject to the inclusion of that item, can I just give you a short document which just lists what we think we have got in front of us so that we're not missing anything else or nothing else is falling through.

PN154      

What I propose to do is to adjourn briefly, until quarter to 12.  That would give you an opportunity to look at that document, but also if you're able to, Mr Ryan, if you could contact Mr Ward and find out what's going on there.

PN155      

MR RYAN:  Yes.

PN156      

JUSTICE ROSS:  All right.  We will adjourn until quarter to.  Thank you.

SHORT ADJOURNMENT                                                                  [11.21 AM]

RESUMED                                                                                             [11.36 AM]

PN157      

JUSTICE ROSS:  Can we start firstly with whether we have correctly captured the claims if we include the consent matter in exhibit A.  Is there anything we're missing?

PN158      

MS DABARERA:  Your Honour, I might just mention that with the opposed claim in this document, paragraph 13 refers to item 47(a) which is the working away from usual place allowance.

PN159      

JUSTICE ROSS:  Yes - no, that may not be correctly characterised, although I understand what ABI says and the Associations say.  I'm not entirely sure on RCI's position, but - - -

PN160      

MS DABARERA:  Yes, I understand.  AHA and United Voice are in agreement, and ABI doesn't oppose our position.

PN161      

JUSTICE ROSS:  Yes.

PN162      

MS DABARERA:  But RCI, I understand, do oppose that.

PN163      

JUSTICE ROSS:  Yes, that's why it's - - -

PN164      

MS DABARERA:  Yes.

PN165      

JUSTICE ROSS:  Yes.  Thank you.  Have we missed anything?

PN166      

MR RYAN:  Not that I can see, your Honour.

PN167      

JUSTICE ROSS:  Okay.  Look, in any event it's not the end of the world.  If we do, I'm sure when the decision eventually comes out you will draw it to our attention and we'll tidy up whatever we've left out.

PN168      

MS DABARERA:  Your Honour, I might just quickly mention again with the opposed claims - - -

PN169      

JUSTICE ROSS:  Yes.

PN170      

MS DABARERA:  - - - in paragraph 5 it refers to items 20 and 28.  That's actually item 27.

PN171      

JUSTICE ROSS:  Yes.  Thank you.  All right.  Did you have any luck with the - - -

PN172      

MR RYAN:  Yes, I did, your Honour.

PN173      

JUSTICE ROSS:  Yes.

PN174      

MR RYAN:  I spoke to Mr Ward.  He was appreciative of the opportunity, but he doesn't require to address the bench and wants to rely on the written and oral submissions made to date.

PN175      

JUSTICE ROSS:  What does he say about your position in relation to the tool allowance?

PN176      

MR DAVEY:  He relies on the written and oral submissions made to date.

PN177      

JUSTICE ROSS:  Made today?

PN178      

MR RYAN:  Made to date.

PN179      

JUSTICE ROSS:  "To date", I'm sorry.  Okay.  They maintain their position and you have yours.

PN180      

MR RYAN:  Yes.

PN181      

MS THOMSON:  If I may, your Honour - - -

PN182      

JUSTICE ROSS:  Certainly.

PN183      

MS THOMSON:  Just in respect of the Restaurant and Hospitality Awards and my client's position for the tool allowance claim in respect of both, I just wanted to make it abundantly clear, if it wasn't already, the position generally is that United Voice haven't made out the grounds upon which the application is necessary to achieve the modern awards objective.

PN184      

Our view is that the awards have been the way they are now for some extended period of time, happily meeting the modern awards objective, but to the extent that there are some aspects of the claims in respect of each award that aren't opposed, those are my instructions to put that to the bench.

PN185      

JUSTICE ROSS:  Yes.

PN186      

MS THOMSON:  I just needed to ensure that that was made abundantly clear.

PN187      

JUSTICE ROSS:  No, that's fine.  Look, I think the submission you advance on the tool allowance is also - well, United Voice have had a while to tidy this up and they haven't.  Look, the same point can be made in relation to some of the Association claims - and it is a review.  If we identify a problem, then the fact there might have been a delay in bringing it to attention, I'm not sure that would necessarily be determinative of the question, but I understand your position.  Thank you.

PN188      

MS THOMSON:  Thank you.

PN189      

JUSTICE ROSS:  All right.  Shall we go to the opposed claims.  The background document summarises the submissions.  We have indicated - I think particularly as Ms Dabarera has pointed out, it's item 27 - that we were looking for some further elaboration on that issue.  I think the balance seem to be fairly clear.  Yes, Mr Ryan.

PN190      

MR RYAN:  Yes, item 27, your Honour, essentially, and in the paper that was issued of yesterday afternoon, paragraph 6, the question is posed, "What is the problem the amendment is seeking to solve?"  It is perhaps more a case that the amendment is seeking to clarify again - and largely resting on 134(1)(g) - that where work performed on a public holiday also is part of a shift which bridges either into the public holiday from a non‑public holiday or out of the public holiday or part of a day, that the entirety of the shift length can be taken into consideration for the purposes of a minimum payment of four hours.

PN191      

The award doesn't specify that it's a minimum payment of a public holiday for four hours.  We have provided an example in our submissions at paragraph 210.

PN192      

JUSTICE ROSS:  Is this - bear with me for a moment.

PN193      

MR RYAN:  The submissions dated 24 July.

PN194      

JUSTICE ROSS:  Yes, I see.

PN195      

MR RYAN:  That example uses a four‑hour shift, but it could be a longer shift.  The proposition or the principle is the same if it was a longer shift for a full‑time employee, but in that example in our submission that meets the threshold.  What we're trying to clarify here is just that the hours of the shift length can be counted for the minimum payment of four hours.  For example, you might have a shift that goes from 5 pm one day through to 1 am of the public holiday.

PN196      

A similar argument was made in relation to the casual overtime provision before the part‑time/casual Full Bench that overtime should be considered on the shift length where they traverse two days rather than being a calculation on an intra‑day basis.  It's not changing, in our submission, the current operation of the award.  I will concede that perhaps the wording in red at paragraph 6 of the statement yesterday afternoon probably needs a little bit more finessing, but we are seeking this amendment, as I said, from the perspective of a simple and easy to understand award system taking into consideration the breadth of the users that interact with this award on a daily basis.

PN197      

It is part of an industry which has probably one of the highest rates of awards reliance and there are many players using this award on a day‑to‑day basis from an interpretation perspective, from a claims perspective, so we're just seeking an amendment to that effect to provide that clarity.

PN198      

JUSTICE ROSS:  All right.  You have indicated the language of it may need finessing.

PN199      

MR RYAN:  Yes.

PN200      

JUSTICE ROSS:  You would have liberty to provide an alternative by 4 pm next Wednesday.  Can I also suggest, if we were minded to do it, then it's also a provision that might be assisted by an example as to how it operates.

PN201      

MR RYAN:  Yes, your Honour.

PN202      

JUSTICE ROSS:  That might also promote the issue of clarity, so if you could give some thought to that and what example might be appropriate, and file that.  What you will be filing won't in substance be different to the claim you're seeking.  We have seen what United Voice has said about that, but if United Voice has anything they wish to say about the particular language that is used - we understand you oppose the proposition, but if you want to say anything about the language, then if you could do that by 4 pm next Friday.

PN203      

MS DABARERA:  Yes, your Honour.  We'll do that.

PN204      

JUSTICE ROSS:  Okay.  Look, if for some reason anyone else wants to say anything, you do it in that time frame and if the time frame creates a particular problem for whatever reason just let my Chambers know.

PN205      

MR RYAN:  Your Honour, just for clarity, does your Honour envisage the example will be part of the draft determination clause?

PN206      

JUSTICE ROSS:  Yes.

PN207      

MR RYAN:  Yes.

PN208      

JUSTICE ROSS:  Yes.

PN209      

MR RYAN:  May it please.

PN210      

JUSTICE ROSS:  Taking your point that, well, (1) you might want to finesse the language of the variation to the substantive provision, but it also occurs to me that an example may illustrate how it works in practice which may also assist picking up your point about the range of people who utilise the award.

PN211      

MR RYAN:  May it please.

PN212      

JUSTICE ROSS:  Was there anything in particular you wanted to say about any of the other contested claims?  We've of course set out your submissions in the background document, and it was really only this one that gave rise to any particular questions on our part.

PN213      

MR RYAN:  Yes, sorry, your Honour.  I thought we might just work through them one by one.

PN214      

JUSTICE ROSS:  Certainly.

PN215      

MR RYAN:  But in terms of the statement or the document issued yesterday afternoon starting with item 19 we consider that it's the provisional view that the determination of the claim be adjourned until the finalisation of the payment of wages common matter is appropriate.

PN216      

Items 20 and 28 we've dealt with, and I think with that six month outer limit we'll be able to file by next Friday an agreed position on the draft determination addressing that issue.

PN217      

JUSTICE ROSS:  I think Wednesday.

PN218      

MR RYAN:  By Wednesday, sorry.

PN219      

JUSTICE ROSS:  That's right.

PN220      

MR RYAN:  Part of that items 20 and 28 captured item 27, which we've just dealt with but in terms of the ‑ ‑ ‑

PN221      

JUSTICE ROSS:  Yes.

PN222      

MR RYAN:  ‑ ‑ ‑ item 21 is ordinary hours of work, it would be appropriate to include, with a minimum of four days off each two week period as part of that wording if that subparagraph "or option of 76 hours over a two week period" was included in the award.  We think that it is an appropriate amendment to include, and again, your Honours and Commissioner, there's a lot resting on 134(1)(g) today, but, for example, if one was to go to clause 26.2 of the current award that deals with payment of wages, and by agreement one of the options for payment of wages is on a fortnightly basis.  There are other provisions in the award presently which contemplate and, at the very least, would imply fortnightly rosters.  For example, recent amendments that kicked off earlier or commenced earlier this year dealing with part-time and casual employment, they took clause 12.2, provide for a roster cycle.  The roster cycle is undefined but generally refers to a roster cycle of no more than four weeks, and certainly that was the case in relation to amendments to casual employment for the incorporation of overtime, and that's at clause 13.3.

PN223      

If a particular employer was operating a fortnightly roster for casuals and part-timers and paying wages on a fortnightly basis this amendment just rounds that out and provides an option to operate a fortnightly hours of work provision for full-time employees.  I think my friends want to say something in reply on this point.

PN224      

MS DABARERA:  Your Honour, in relation to that claim we've opposed that in our submissions, and we rely upon what we've said in paragraphs 54 to 59 of our submission in reply.  If the Commission is minded to make that variation, and in paragraph 7 the Commission has put a question to us regarding the wording, we do believe it's appropriate to have that additional wording that says there will be a minimum of four days off each two week period.  Thank you.

PN225      

JUSTICE ROSS:  Thank you, Ms Dabarera.

PN226      

MR RYAN:  Your Honours, Commissioner, the next matter, and I'm working through the statement or document handed down yesterday afternoon.

PN227      

JUSTICE ROSS:  Yes.

PN228      

MR RYAN:  Item 34, we submit the adjournment until the finalisation of the clubs matters is appropriate.

PN229      

MS DABARERA:  And we would agree with that, your Honour.

PN230      

MR RYAN:  That brings us to deductions for provision of employee accommodation and meals.  I think we've set out – actually, before I begin, your Honours and Commissioner, and I might just – if I could just hand up two documents, your Honours and Commissioner:  one is a copy of the consent order; the other is a copy of the transcript of the proceedings, or part of the proceedings, number 2004.

PN231      

The matter in 2004 came about as a result of some adjustments to an industry award which provided for an increase in employee allowances, employee wage rates, et cetera, and it was observed that some of the employer amounts hadn't adjusted.  This prompted discussions between, at the time, I supposed I'm speaking a little bit from personal experience here, but between the Association and the Liquor and Hospitality and Miscellaneous Union, initially the application was filed on the basis that the amounts be adjusted according to CPI, and that is – there is a transcript from, I think, 16 July which sets that out.

PN232      

In the intervening period between 16 July and 31 August I think there might've been one report back.  I think that's contemplated at PN22 of the transcript document that was handed up.  But there were some discussions, and if I can draw in the transcript document your Honours and Commissioner to PN32, which is on page 3, and we have where we copied documents today attempted to do them double-sided in the interests of preserving paper, but PN32 on page 3 refers to some historical analysis and there were deductions for the provision of accommodation in a very early award, which related to 25 per cent of the barman's rate.  The position at the time, and I suppose this, your Honour, is addressing your question yesterday about the rationale and the logic to the relativities, it was against that background that 25 per cent of the trade person rate was set for the single room and three meals a day.  The internal relativities were then calculated as they were as a percentage of the trade person rate at that point in time to maintain their relativity to each other.  So that is where the quantum of the amounts are in the present award, and by structuring it on a wage rate adjustment it meant that these amounts were automatically adjusted on an annual basis.  At that point in time, your Honours, Commissioner, I think it's remarked in the transcript the rates had not been adjusted since 1992.

PN233      

JUSTICE ROSS:  1992, wasn't it?  Yes.

PN234      

MR RYAN:  So they had been stagnate for some time.  So that's the background to it in terms of the history of that clause coming in and the relativities.  In terms of comments that were made yesterday regarding the new clause and its interaction with 326 and 324 of the Act, and the quantum, I have had discussions with United Voice and ABI overnight.  I think there is some agreement on some aspects, but we're not there on everything, and if I might just hand up this document.  It's one that ultimately your Honour will need to be part of anything filed next Wednesday at 4 pm.

PN235      

So where we are at, at this stage, is if one reads this provision in conjunction with clause 39.  Clause 39 of the Hospitality Award, 39.1 is currently reflected in 39.1(a) of this document.  The next text is 39.1(b).  That new text is to address the issue of the provision and deduction for the provision of accommodation and meals of employees under the age of 18, or deductions which, in particular circumstances, would be unreasonable.

PN236      

The next issue is we don't propose to change 39.2 or point 3, but in relation to 39.4 to insert the words, and this was to address the question from your Honour about, well, it may well be that an employer provides the meal but the employee doesn't necessarily consume the meal, and whether or not there should be provision for a deduction, or at least a loop hole for deduction in those circumstances, and what we've proposed in the time we've had is to insert the words "at the employee's request" at the end of 39.4(b).  So 39.4(b) would read:

PN237      

The meal is provided during the employee's normal working hours at the employee's request.

PN238      

JUSTICE ROSS:  So has there been any agreement about the adjustment factor of whatever amount is determined?

PN239      

MR RYAN:  In relation to adjustment factor there's no – well, there is agreement there's no dispute between the AHA and United Voice that that move to the same adjustment factor for the overtime allowance ‑ ‑ ‑

PN240      

JUSTICE ROSS:  The takeaway meals and takeaway food, yes.

PN241      

MS THOMSON:  I don't have instructions on that matter, I'm sorry, your Honour.

PN242      

JUSTICE ROSS:  No, that's all right.  Look, the matter can be the subject of further discussion between the parties and if you file the documents setting out what you agree to and what you don't agree to.  But can I draw one thing without wanting to, you know, create a problem for where you've got to at the moment, I just draw your attention to the proposition in 39.1(b)(i) and this goes to of course the limitations in 326(4) so that you're not permitted to make a deduction unless it's agreed to in writing by the parent or guardian of the employee.

PN243      

This issue came up in the payment on termination standard term.  There was a debate there about whether a provision such as this go in, and the argument – I'll forward the reference to each of you – was put essentially I think that a number of the employer interests sought a clause in those terms, that you could deduct provided you had agreement in writing from the parent or guardian.  The ACTU put the view that well, as a matter of practicality what parent or guardian would agree in writing to have a deduction from their child's wages, and that was a view the Full Bench took, that it just seemed unlikely to arise in practice and so there was simply – and also in the interests of clarity and make sure no one has any problem complying with it, it simply said you can't make a deduction from someone under 18.

PN244      

MR RYAN:  Yes.

PN245      

JUSTICE ROSS:  So I'll get the references to you.  I just ask you to take that into account.  Where you land is obviously a matter for you.

PN246      

MR RYAN:  Yes.

PN247      

JUSTICE ROSS:  But I wanted to draw to your attention that the issue albeit in a different context ‑ ‑ ‑

PN248      

MR RYAN:  Yes.

PN249      

JUSTICE ROSS:  ‑ ‑ ‑ has been the subject of some attention.

PN250      

MR RYAN:  If I could address your Honours and Commissioner on that context?

PN251      

JUSTICE ROSS:  Of course, yes.

PN252      

MR RYAN:  The context is the nature of a deduction for an employee failing to provide notice is very different to the deduction for the provision of goods and services at a very reduced rate.  So ‑ ‑ ‑

PN253      

JUSTICE ROSS:  Yes, because they're getting a benefit.

PN254      

MR RYAN:  They're getting a much – a benefit.

PN255      

JUSTICE ROSS:  Yes.  No, no, I follow.  Yes.

PN256      

MR RYAN:  So it's a very different subject matter.

PN257      

JUSTICE ROSS:  Yes.

PN258      

MR RYAN:  And we would argue or submit that the deduction for the provision of accommodation and meals is totally in a separate category that ‑ ‑ ‑

PN259      

JUSTICE ROSS:  No, no, I don't take issue with that, and one of them occurs of course at the end of employment, so why on earth would anyone consent at that point ‑ ‑ ‑

PN260      

MR RYAN:  Yes.

PN261      

JUSTICE ROSS:  ‑ ‑ ‑ is really what drove the other matter, but I wanted to draw your attention to the fact at least, you know, in general terms that had been debated, but I acknowledge what you say about the difference in the context.

PN262      

MR RYAN:  In terms of the quantum there seems to be a dispute about whether 8.37 is an unreasonable amount.  In our submission, it's been an indexed amount as a one per cent of the trade person rate for almost 15 years, about 14 years.  There has been no issue with that quantum over that period.  It's never been raised, and ‑ ‑ ‑

PN263      

JUSTICE ROSS:  Do we know anything about employers actually deduct that amount?

PN264      

MR RYAN:  I can say, from my experience, your Honour, there is a range of things which happen across the spectrum.  I mean, and one of the problems we have with striking an amount is that even within the one venue if the amount has to, for want of a better word, scientifically match the cost of the meal provided that's going to fluctuate day in and day out.

PN265      

JUSTICE ROSS:  Yes.  I don't think for myself I'm not attracted to something that says it has to bear a relationship to.  I just think it gets too complicated.

PN266      

MR RYAN:  Yes.

PN267      

JUSTICE ROSS:  If you're going to have it you'd strike an amount.

PN268      

MR RYAN:  Yes.

PN269      

JUSTICE ROSS:  And I think it would be, you know, a rough approximation.

PN270      

MR RYAN:  Yes.

PN271      

JUSTICE ROSS:  I don't think you can do more than that.

PN272      

MR RYAN:  I've given this consideration following the comments and the paper issued yesterday, and in the time that we've had, and one of the things I looked at is typically in a food business they cut things either in three ways:  overheads, labour, profit.  And in overheads would include – sorry, cost of food, profit and overheads which includes labour.  Or another way to do it 30/30/30/10, and the 10 would be profit.

PN273      

But generally what you're saying in a roundabout way is the cost of a meal should be around about two-thirds of the ultimate sale and as ‑ ‑ ‑

PN274      

JUSTICE ROSS:  Yes, if the margin is about – yes.

PN275      

MR RYAN:  Roughly about that.

PN276      

JUSTICE ROSS:  Yes.

PN277      

MR RYAN:  And this is just talking very anecdotally, but coincidentally if an employee works in clause 21.1(a) there's a meal allowance for an employee who works overtime for more than two hours without being notified the previous day or earlier, they must be supplied with a meal by the employer or paid an allowance of 12.97, and one could argue that should that amount be the same as the deductable amount, but going against that argument would be that well, that's to compensate the employee to purchase a meal and they don't necessarily have to purchase it cost price from their employer.  But quite coincidentally in an approximate basis 8.37 is around about two-thirds of the 12.97.  Again, it's just arrived there for different reasons.

PN278      

But if one wanted to assess whether that was a reasonable amount on the general proposition that cost of production is roughly two-thirds and there's an allowance for purchasing a meal elsewhere and the deduction amount is two-thirds of that amount I would submit that you're approximately on the money.

PN279      

So in the absence of any evidence or submissions from United Voice about the quantum, and it has been raised very late from them in the alternative to whether that expression or deduction should be per week or per meal would ‑ ‑ ‑

PN280      

JUSTICE ROSS:  To be fair to them I think it was raised by us.

PN281      

MS DABARERA:  That's correct, your Honour.

PN282      

MR RYAN:  Yes.

PN283      

JUSTICE ROSS:  Because their position is well, really that they're not conceding it's an error but I think the history suggests that something has gone wrong, and they say that in the event that whatever the history it has to be viewed in the light of the current legislative framework and it would have an impact on the needs of the low paid if it went from weekly to a meal basis is really their argument.  They're not – well, they just don't want it at all.  But we have raised it in the event that it appears that it is a drafting error, and that if you move to per day the point we're making is well, you then need to look at it as to whether it's appropriate in the current legislative framework that quantum, or whether you need to do something else, and that's where the discussion about the under 18 and the rest of arises.

PN284      

MR RYAN:  Yes.

PN285      

JUSTICE ROSS:  But to some extent also we would have to take into account the fact that if it's at the employee's request and they understand the deduction would be made, well, that also lends colour to the overall provision.

PN286      

MR RYAN:  Yes.

PN287      

JUSTICE ROSS:  So it's not something that you could sort of view in isolation.

PN288      

MR RYAN:  Yes.  And I think the Commission has to be mindful with these amounts if they strike them they're a very good yard stick for the industry in terms of what is reasonable and fair.  If the Commission strikes them at a point that's too low or too high both sides can experience unfairness.

PN289      

JUSTICE ROSS:  Yes.

PN290      

MR RYAN:  And what could happen, particularly from the employee's perspective is employers won't deduct.

PN291      

JUSTICE ROSS:  No, no.

PN292      

MR RYAN:  And that would ‑ ‑ ‑

PN293      

JUSTICE ROSS:  Yes, they won't provide the meal and – yes.

PN294      

MR RYAN:  Or they'll say, "You're welcome to purchase it off the menu" or something like that.

PN295      

JUSTICE ROSS:  Yes, yes, yes.  Yes.  No, I follow.

PN296      

MR RYAN:  So there needs to be – it is arbitrary, it is an approximate, if you're not going to get scientific, but there needs to be that element of judgment factored in.

PN297      

JUSTICE ROSS:  Yes.

PN298      

MR RYAN:  If the Bench was minded or wanted to look at something more detailed on this issue, and I ‑ ‑ ‑

PN299      

JUSTICE ROSS:  I think we would come back to the parties and provide you with a further opportunity.  For myself I'd be reluctant to launch off on coming up with another number without putting something back to you.  We've got a number of steps to get to that point.  Have to be persuaded the error point, have to be persuaded on the structure of the clause and how it fits.  If at the end of that we have a residual concern about the quantum then I think the appropriate course will be to put that back to each of you, and rather than say, well, we think it should be X, if we were to depart from the current quantum you would have a further opportunity to be heard in relation to that.

PN300      

MR RYAN:  May it please.

PN301      

MS DABARERA:  Your Honour and the Bench, I might just speak to that issue.

PN302      

JUSTICE ROSS:  Sure.

PN303      

MS DABARERA:  As your Honour has pointed out our primary position is that there shouldn't be a change in the award from the per week basis to the per meal basis, and we have made some submissions about the internal relativities and keeping that in accordance.

PN304      

In relation to the question that was raised yesterday by the Commission we've reviewed the Act and our position is that in terms of section 324 and 326 we do submit that the Act would allow for a deduction for a meal provided that the deduction was not unreasonable, and there's a few aspects to that which the AHA has raised some of, one of which is that it should be at the employee's request rather than done without their knowledge or consent.  The second is the issue about employees who are under the age of 18.

PN305      

JUSTICE ROSS:  Yes.

PN306      

MS DABARERA:  The third issue that we would submit is relevant in looking at unreasonable would be that the figure for deduction should be set in relation to the cost of providing the meal rather than at a higher rate.  So it shouldn't be a situation where the employer is making a profit from that deduction.

PN307      

JUSTICE ROSS:  How do you frame that though?

PN308      

MS DABARERA:  We do recognise that it's difficult given that we're talking about different employers, and then the amount itself is difficult to arrive at.  However, we say that the figure that's there currently which is 8.37 on the per weekly basis we say that's too high if we were going go to down to that being on a per meal basis, and we're not in a position to say this is the correct amount, at this point.  It is difficult to come up with that figure.

PN309      

JUSTICE ROSS:  No, no, we'll deal with this in a sort of iterative way.  I understand it's been raised late.  We're not going to be launching off determining the amount.  If we get to a point on the structure of a clause, having regard to what you come up with, I think we're more likely to put that back to you as a provisional view, and give you a further opportunity to have a think about it.

PN310      

For myself I think it's a bit problematic to have a general provision without an amount that says it has to simply be the cost of producing the meal, because that then creates the issue in a single venue, depending on what the person purchases, or rather what meal is provided, might be different days, and different venues will have different means of calculating.  Some won't do an exact calculation of a cost of per meal, others go into it in a micro-level of detail, and, you know, it may mean the deduction fluctuates.  One week you get fish, the next week it's – do you know what I mean?

PN311      

MS DABARERA:  Sorry, your Honour, our submission wasn't that it should be exactly what the cost of the meal is.

PN312      

JUSTICE ROSS:  Yes.

PN313      

MS DABARERA:  But that should be the guidance in terms of coming up with a figure.

PN314      

JUSTICE ROSS:  Yes.

PN315      

MS DABARERA:  And that the 8.37 we would say in looking at it from that perspective would be too high.

PN316      

JUSTICE ROSS:  Okay.

PN317      

MS DABARERA:  The only other point I wanted to make is the AHA raised clause 21.1(a) which is the meal allowance.

PN318      

JUSTICE ROSS:  Yes.

PN319      

MS DABARERA:  Which is what the employee gets when they work the overtime without notification.

PN320      

JUSTICE ROSS:  Yes.

PN321      

MS DABARERA:  We would say that's not comparable in the sense that:  (a) an employer is able to provide them with a meal instead of paying the allowance in those circumstances, so the employer can do that; and (b) as the AHA alluded to that is the cost of going and buying and purchasing a meal at a venue.

PN322      

JUSTICE ROSS:  Yes.

PN323      

MS DABARERA:  Which is not comparable.

PN324      

JUSTICE ROSS:  All right.

PN325      

MS DABARERA:  So that's our submissions on that, your Honour and Commissioner.

PN326      

JUSTICE ROSS:  Thank you.

PN327      

MR RYAN:  The next item, your Honours, Commissioner, is item 38, classifications.  And the only matter remaining there is our application to incorporate the taking of reservations, greeting and seating guests as part of the food and beverage attendant duties for grade 2.

PN328      

JUSTICE ROSS:  I should have clarified that question was really directed at United Voice, because they referred to the evidence in that case in the course of their submissions, but ‑ ‑ ‑

PN329      

MR RYAN:  Yes, your Honour.  But does your Honour require me to otherwise address you or are you content for a ‑ ‑ ‑

PN330      

JUSTICE ROSS:  No, I think we understand the point you've raised in your written submissions.

PN331      

MR RYAN:  Yes.

PN332      

JUSTICE ROSS:  It was really just for clarification around United Voice's submissions and trying to get an idea of well, if they have any further information about what the evidence was in that case.  It's touched on in the decision.  I think there was one witness, but I'm not sure if there was anything else.

PN333      

MS DABARERA:  Yes, your Honour.  I did have some difficulty finding the exact evidence, but I'll explain in the decision itself in paragraph 153 it stated that, "We are satisfied on the evidence", and it refers to in footnote 98 it refers to three exhibits:  exhibit A13, exhibit A14 and exhibit A21.  The difficulty I had in finding exactly those exhibits was that – so this decision [2014] FWCFB 1996 was an appeal of an earlier ‑ ‑ ‑

PN334      

JUSTICE ROSS:  Yes, from the Gooley DP.

PN335      

MS DABARERA:  That's correct.  And that original hearing was held over a number of days, and I went through the transcripts.  Those exhibits appear to be ‑ ‑ ‑

PN336      

JUSTICE ROSS:  First instance matters.

PN337      

MS DABARERA:  ‑ ‑ ‑ the first instance, and on the day – going through the transcripts as far as I could tell they would have appeared on 16 May 2013, however the transcript for that day was not on the Commission's website, so I was unable to find exactly which witnesses or documents those exhibits referred to.

PN338      

JUSTICE ROSS:  We'll try and track those down and see what that shows us.

PN339      

MS DABARERA:  Yes, thank you, your Honour.  Essentially our point was in making that submission that was that in that particular case there was witness evidence about the duties.

PN340      

JUSTICE ROSS:  Yes.

PN341      

MS DABARERA:  Whereas in this circumstance the AHA has not provided witness evidence and has not provided the probative evidence we say that is required to make that variation.  Thank you your Honours and Commissioner.

PN342      

MR RYAN:  If I could just briefly respond to that?

PN343      

JUSTICE ROSS:  Certainly.

PN344      

MR RYAN:  Yes, your Honours, Commissioner, there is no evidence.  That doesn't prevent this tribunal from reviewing an issue in an award and making an assessment on whether a change could be made.

PN345      

At paragraph 239 of our submissions dated 24 July we set out a table which compares the food and beverage attendance grade 2 for the Hospitality Industry Award and the Restaurant Industry Award.  The differences are largely, apart from some of the wording, the dot points are lower case letters for the Restaurant Industry Award and the other substantial difference in the Restaurant Award is subparagraph (g) taking reservations, greeting and seating guests.

PN346      

This means that for the Hospitality Industry covered employers a food and beverage attendant can walk over to table take an order, deliver the food, take payment for the food, but they can't go to the front of the restaurant say hello, and show that person to their seat, and we would say, for the reasons found in the Restaurant Award, that this is not a relevant minimum safety net of terms and conditions, and what it does for those businesses, including restaurants that are operated in or connected with venues otherwise covered or employers otherwise covered by the Hospitality Award is if they don't have a standalone Matre D or someone standing at the entrance they need to lift all of their waiters who are sharing that duty up to a grade 3 level.

PN347      

Other examples where this tribunal has extrapolated terms and conditions in a consistent manner across these two awards include the part-time proceedings.  In those proceedings the part-time and casual Full Bench, in dealing with the part-time issue said at paragraph 538 ‑ ‑ ‑

PN348      

JUSTICE ROSS:  What's the reference to that?

PN349      

MR RYAN:  I'll have to take on notice, your Honour.

PN350      

JUSTICE ROSS:  That's fine.

PN351      

MR RYAN:  It's the Full Bench decision handed down in July '17 regarding the review of casual and part-time employment.

PN352      

JUSTICE ROSS:  Yes.

PN353      

MR RYAN:  But at paragraph 538 having remarked that the Restaurant and Catering Association had a claim in but withdrew it at the beginning of proceedings they said:

PN354      

Notwithstanding this, because we consider it likely that the circumstances of the restaurant and catering industry with respect to the workability of the current award part-time employment are substantially the same as those for the hospitality and clubs industries, we have formed the provisional view that there is a strong basis for the part-time employment clause in the Restaurants Award to be altered in the same way as for the Hospitality Award and the Clubs Award.  We will invite interested parties to make further submissions and, if necessary, adduce evidence in relation to this proposition.

PN355      

There was no further proceeding.  There were positions put in.  They were simply a handful of one-line submissions saying there was no opposition, at least for our part, and the Restaurant Industry Award was subsequently varied to include that provision.

PN356      

Another example is the considerations that are occurring in these proceedings regarding the tool allowance in relation to the nature of the work, as Mr Bull for United Voice described, a chef in a standalone or restaurant in a kitchen vis-ΰ-vis a restaurant operating in or in connection with a venue covered by the Hospitality Award it's largely the same work, and we would say that can be extrapolated across in this examples with duties of F&B2 and F&B3.  Unless there's anything further they're the submissions from AHA.

PN357      

JUSTICE ROSS:  Thank you.

PN358      

COMMISSIONER LEE:  You mentioned in particular the greeting and serving guests rather than the taking of reservations, is that the major issue?

PN359      

MR RYAN:  If I've omitted reservations it would be all three there, Commissioner.

PN360      

COMMISSIONER LEE:  Just in terms of the way you talked about that example of, you know, the grade 2 can do everything, but, you know, the person comes to the door they don't have the capacity to greet them and ‑ ‑ ‑

PN361      

MR RYAN:  Greet and see them.

PN362      

COMMISSIONER LEE:  Whereas taking reservations might be ‑ ‑ ‑

PN363      

MR RYAN:  Or take reservations arguably.

PN364      

COMMISSIONER LEE:  Okay.

PN365      

MR RYAN:  As that duty presently stands that's at a grade 3 level.

PN366      

COMMISSIONER LEE:  Yes, I understand that.

PN367      

MR RYAN:  Yes.

PN368      

COMMISSIONER LEE:  But they're not separable in any sense ‑ ‑ ‑

PN369      

MR RYAN:  No, and ‑ ‑ ‑

PN370      

COMMISSIONER LEE:  ‑ ‑ ‑ in your submission.

PN371      

MR RYAN:  It may be the case that in a large multi-venue operation you might have a central reservations team.

PN372      

COMMISSIONER LEE:  Yes.

PN373      

MR RYAN:  But where you have a smaller venue, whether it's a bar, whether it's a small style accommodation hotel or motel, or service apartments which have a restaurant, it may be someone answering the phone in the restaurant who is delivering food, who is taking payment.

PN374      

COMMISSIONER LEE:  Thanks.

PN375      

JUSTICE ROSS:  Thank you.

PN376      

MR RYAN:  Thank you.

PN377      

JUSTICE ROSS:  Anything from anyone else?  No?  All right, well, thank you very much.  We'll adjourn and reserve.  We'll hear from you by 4 pm next Wednesday about where you're up to with the discussions and the extent of the agreement.  I think you want an opportunity to re-submit the proposed draft variation determination.

PN378      

MR RYAN:  Yes.

PN379      

JUSTICE ROSS:  And then if anything arises from that that any party wishes to say anything about they can do so by 4 pm next Friday, and there's liberty to apply in the event that the timelines are a problem.

PN380      

MR RYAN:  So would your Honour just clarify ‑ ‑ ‑

PN381      

JUSTICE ROSS:  Sure.

PN382      

MR RYAN:  ‑ ‑ ‑ 4 pm Wednesday and then reply by Friday?

PN383      

JUSTICE ROSS:  Yes.

PN384      

MR RYAN:  And in doing so draft determinations can include agreed matters and non-agreed matters if they need finessing?

PN385      

JUSTICE ROSS:  Yes, of course.  Yes, of course.  Yes.

PN386      

MR RYAN:  May it please.

PN387      

JUSTICE ROSS:  I'd ask you to just keep ABI and the RCI informed so that ‑ ‑ ‑

PN388      

MR RYAN:  Yes, of course.

PN389      

JUSTICE ROSS:  ‑ ‑ ‑ they have an opportunity to say what they wish to say and even if they don't want to say anything it would be helpful if they write in and say, "We don't want to say anything".

PN390      

MR RYAN:  May it please.

PN391      

MS DABARERA:  Thank you, your Honour.

PN392      

JUSTICE ROSS:  Thanks very much for your assistance.

ADJOURNED INDEFINITELY                                                         [12.22 PM]


LIST OF WITNESSES, EXHIBITS AND MFIs

 

EXHIBIT #A1 CONSENT DRAFT DETERMINATION PROPOSAL DEALING WITH ITEMS 3 AND 21................................................................................................................ PN152