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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009                                                    



 

DEPUTY PRESIDENT GOSTENCNIK

 

 

 

s.156 - 4 yearly review of modern awards

 

Four yearly review of modern awards

(AM2014/288)

Travelling Shows Award 2010

 

Sydney

 

9.29 AM, THURSDAY, 30 MARCH 2017

PN1          

THE DEPUTY PRESIDENT:  I have information that the proceedings this morning are being transcribed in order that an accurate record may be kept, so I might just begin by asking each party representative to announce his or her appearance, please.  Mr Lin - sorry, you can stay seated.  Ms McDonald, sorry.

PN2          

MS J McDONALD:  Ms McDonald, initial J, and I'm joined by my colleague Mr Lin, initial B, from the Australian Federation of Employers and Industries.

PN3          

THE DEPUTY PRESIDENT:  Yes.

PN4          

MR D HOULIHAN:  Houlihan, initial D, Deputy President, seeking permission to appear on behalf of the Showmen's Guild of Australasia.

PN5          

THE DEPUTY PRESIDENT:  You're seeking permission because?

PN6          

MR HOULIHAN:  I'm a paid agent, Deputy President.

PN7          

THE DEPUTY PRESIDENT:  I see.  Is there any objection?

PN8          

MS McDONALD:  There's no objection.

PN9          

THE DEPUTY PRESIDENT:  Yes, permission is granted, Mr Houlihan.

PN10        

MR HOULIHAN:  Thank you, Deputy President.

PN11        

THE DEPUTY PRESIDENT:  My purpose this morning is to discuss with the parties the issues that are set out in the summary of submissions technical and drafting which was published on 8 March 2017.  I'm assuming each of you has a copy of that document.

PN12        

MS McDONALD:  Yes.

PN13        

MR HOULIHAN:  Yes, Deputy President.

PN14        

THE DEPUTY PRESIDENT:  I propose to work our way through that document.  Having reviewed the material I don't anticipate we'll be very long this morning, but we will go through that document and see whether or not there are any outstanding issues at the end of it, and then I'll also turn to the question of the substantive issues list.  I am hoping that we're able to resolve all of the technical and drafting issues today and I'll prepare a report for the Full Bench of which I'm a member and these matters can be progressed to finality, hopefully without the need for further hearings.

PN15        

We might just begin working through the document, commencing with item 1.  That the proposal is to remove the underlining - I actually have a different proposal, if I might share it with you.  Since neither section 59 nor 131 says anything about the - or does not contain a national employment standard, section 59 is a guide, section 60 defines who an employer is and for the purposes of the division and section 131 from memory deals with the relationship between the NES and other commonwealth laws, a more apt description would be to simply provide that the NES means the national employment standards as contained in chapter 2, part 2 of et cetera.

PN16        

MR HOULIHAN:  That's perfectly acceptable to us.

PN17        

THE DEPUTY PRESIDENT:  Hopefully other provisions - definitional provisions in other awards can adopt the same structure.  That's acceptable I take it, Ms McDonald?

PN18        

MS McDONALD:  Yes, it is.

PN19        

THE DEPUTY PRESIDENT:  Yes, right.  So we'll amend the definition of NES appearing in clause 2 of the exposure draft by deleting the words "and underlining sections 59 to 131" and replacing that with "chapter 2, part 2-2".

PN20        

In respect of the second item, the proposal to move pre-existing paragraphs 4.2 and 4.3 as subparagraphs, I take it, of 4.6, appropriately renumbered, seems to me to make sense.  In so doing, I would also note that 4.2 currently refers to employers bound by rather than covered by.  So in amending that coverage clause we would amend existing paragraph 4.2 by deleting the word "bound" and inserting  "covered" and moving - perhaps also deleting in each of 4.2 and 4.3 the words "this award does not cover" and inserting as new 4.6(a) and (b) and appropriately renumbering (a), (b) and (c) to (c), (d) and (e).  The remainder of the words in existing 4.2 and 4.3 there would need to be a renumbering so that 4.4, 4.5 and 4.6 and 4.7 become respectively 4.2, 4.3, 4.4 and 4.5.  Hopefully that's accurate.

PN21        

MR HOULIHAN:  I think that's accurate, Deputy President.

PN22        

THE DEPUTY PRESIDENT:  Anyway, those reading the transcript will get the general gist I would think.

PN23        

MS McDONALD:  AFEI does not oppose that amendment.

PN24        

THE DEPUTY PRESIDENT:  Yes, thank you, Ms McDonald.  Item 3 also appears to me to be a sensible amendment to retain consistency with the style adopted elsewhere by deleting in clause 11.1 the words, "an employee who".  Happy with that, Ms McDonald?

PN25        

MS McDONALD:  Yes.  Yes, we are.  We do not oppose that amendment.

PN26        

THE DEPUTY PRESIDENT:  Given it's your proposal, Mr Houlihan, I take it you agree.

PN27        

MR HOULIHAN:  I'll say nothing, Deputy President, that's correct, yes.

PN28        

THE DEPUTY PRESIDENT:  Right.  The next proposal appears to be agreed, that is to amend 18.2 by adding the words, "and including" in the second line after the words, "up to".  Is that right?

PN29        

MS McDONALD:  That is correct.

PN30        

THE DEPUTY PRESIDENT:  Can I just raise this issue with you and it's a matter for you, but for my own part I don't think those words are necessary because four hours is caught by the phrase "up to four hours".  I don't think the words "and including" add anything, particularly when read in conjunction with 8.1 which is expressed as "more than four hours".  So that four hours is not more than four hours.  Four hours is four hours.

PN31        

I'm a big fan of not using unnecessary words but if you want - I'm not going to stand in your way if you want those words put in.  I just don't think they add anything.

PN32        

MS McDONALD:  Our position is that they do clarify on plain reading of the award that it does include.

PN33        

THE DEPUTY PRESIDENT:  Yes.  As I say, given that the parties agree I'm not going to stand in the way of it.  For my own part, an ordinary meaning of the phrase "for up to four hours" includes all.

PN34        

MR HOULIHAN:  The reason that we - - -

PN35        

THE DEPUTY PRESIDENT:  I understand, it's in the existing award, I understand.  So we'll add those words.  Item 5 is responsive to questions that are proposed by the drafters and the first concern is whether clause 22.1 has any work to do.  It seems on its face that it doesn't currently apply.

PN36        

MR HOULIHAN:  I think that's correct, Deputy President, despite what we said in our submissions, I think it's inarguable that it hasn't applied since 1 January 2015.

PN37        

THE DEPUTY PRESIDENT:  Yes, so the issue though is that there's provision that the clause will be reviewed as part of the four yearly review, so to that extent it's not a technical and drafting issue.  So is the appropriate course if one party wants to press for a particular Saturday and public holiday - Sunday and public holiday penalty for casual employees that that matter be added to the list of substantive issues.  Mr Houlihan?

PN38        

MR HOULIHAN:  Probably, Deputy President.  My instructions are to maintain as much of the award as possible from 2010, particularly in light of this provision being a provision that's existed for the entire history of an award in this industry.  I note that it's probably against my client's direct interest but my instructions are to not seek its removal, and so it's probably appropriate that it goes over onto the substantive matters list.

PN39        

THE DEPUTY PRESIDENT:  Ms McDonald, do you oppose that course?

PN40        

MS McDONALD:  We do not oppose that course.

PN41        

THE DEPUTY PRESIDENT:  Right.  In those circumstances, we will move the question of what, if any, provision should be made in the award for Saturday[sic] and public holiday penalty rates for casual employees to the list of substantive issues that will need to be determined by a Full Bench.

PN42        

The same may be said for items 6 and 7, dealing essentially with the same issue.

PN43        

MR HOULIHAN:  It's a slightly different issue, Deputy President.  It's the state based difference for the description of Royal Queensland Show Day.

PN44        

THE DEPUTY PRESIDENT:  No, I understand that but the whole of the clause - the clause - on a proper construction of clause 22.1 the clause presently has no operative work.

PN45        

MR HOULIHAN:  Agreed.

PN46        

THE DEPUTY PRESIDENT:  So whether or not a clause in that form or some other form should continue will be a matter as envisaged by paragraph (b), determined as part of the review, and the only way that will happen is if we move it to the substantive list.  I understand the different point but it needs to be dealt with in the same way.

PN47        

The answer to the second question posed I would have thought was self-evident, not without there being a substantial revision of the current words in 22.2.  So the answer to that question is no I would think.  No, it doesn't apply to casuals.

PN48        

MR HOULIHAN:  No, it doesn't apply to casuals.

PN49        

MS McDONALD:  It does not apply to casuals.

PN50        

THE DEPUTY PRESIDENT:  No.  The last issue against a drafting point.  If in determination of the substantive issues there is to be some form of penalty rate for public holidays for casuals, then an addition column might be added to 22.1 but as things presently stand, it seems to make sense that the words "and penalty" be deleted.

PN51        

MS McDONALD:  We agree.

PN52        

MR HOULIHAN:  We agree.

PN53        

THE DEPUTY PRESIDENT:  Yes, right.  Now there appears to be only one item other than the item that we're going to add on the substantive list and is that matter still being pressed?

PN54        

MR HOULIHAN:  It's not.  It was more of a comment rather than an application to vary in the submission.

PN55        

THE DEPUTY PRESIDENT:  That matter can be deleted.

PN56        

MR HOULIHAN:  That matter can be deleted, Deputy President, yes.

PN57        

THE DEPUTY PRESIDENT:  Right.  We will add the issue of what, if any, penalty shall apply to casual employees who work on a Sunday or public holiday, yes?

PN58        

MS McDONALD:  Yes.  Just to clarify, AFEI's position is but the clause does not apply, so it's - - -

PN59        

THE DEPUTY PRESIDENT:  I understand that.  That's why I said what, if any.

PN60        

MS McDONALD:  Excellent.

PN61        

THE DEPUTY PRESIDENT:  Is there anything else?

PN62        

MS McDONALD:  No.

PN63        

MR HOULIHAN:  Not from me, Deputy President.

PN64        

MS McDONALD:  No, Deputy President.

PN65        

THE DEPUTY PRESIDENT:  I thank you all for your attendance this morning and your input.  As I said, a revised version of the technical and drafting list and the substantive issues list will appear on the modern award website at the appropriate place to reflect the outcome this morning, and I will also prepare a short report for the Full Bench which will also be published in that vicinity in due course.  I thank you for your attendance and we're adjourned.

ADJOURNED INDEFINITELY                                                          [9.45 AM]