TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009
VICE PRESIDENT HATCHER
s.156 - 4 yearly review of modern awards
Four yearly review of modern awards
10.07 AM, WEDNESDAY, 11 AUGUST 2021
Continued from 26/02/2021
THE VICE PRESIDENT: I'll take the appearances. Mr Galbraith and Ms Perera, you appear for the SDA. Hello?
MS S PERERA: Yes, thank you, your Honour.
THE VICE PRESIDENT: All right.
MR GALBRAITH: Yes, thank you, your Honour.
THE VICE PRESIDENT: Mr Crawford, you appear for the AWU.
MR S CRAWFORD: Yes, thank you, your Honour.
THE VICE PRESIDENT: And, Ms Bhatt, you appear for the Ai Group.
MS R BHATT: Yes, Vice President.
THE VICE PRESIDENT: All right. There's two issues which I want to briefly discuss with the parties today. The first is the issue that was raised in paragraph 13 of the Full Bench's decision on 5 March, which, as you will see from paragraph 6 of the decision of 2 August, has been assigned for resolution to this Full Bench.
The parties have already filed some submissions about this issue. The only issue I want to discuss today is whether the parties are content for the Full Bench to decide the issue on the basis of the written submissions already filed or whether they want a further opportunity to make submissions or, alternatively or in addition, want to have an oral hearing about the matter. So I don't mind what order you respond to, but does anyone want to respond to that?
MS BHATT: Vice President, it's Ms Bhatt. I'm happy to indicate on behalf of Ai Group that we're content for the matter to be determined on the basis of what's already been filed.
THE VICE PRESIDENT: All right, thank you. Does anyone take a different view from that?
MR CRAWFORD: No, your Honour. The AWU supports that course of action too.
THE VICE PRESIDENT: All right, thank you. And SDA?
MS PERERA: No, your Honour, the SDA are also happy to support that, thank you.
THE VICE PRESIDENT: All right. The second issue is the email correspondence which was sent to the parties yesterday. Arising out of the March decision we made a variation, which I don't think anyone opposed, to clause 31.2, but it's been picked up that that may contain an error, insofar as it conflicts with clause 12.7 of the award, which for part‑time employees provides for overtime after the agreed hours have been exceeded, not just 38 hours. Does any party wish to contend that that is not an error?
MS BHATT: Vice President, it's Ms Bhatt here. We've briefly considered the issue since the correspondence was sent to us yesterday, and it wasn't apparent to us that there is necessarily a conflict between the two provisions. It seems to us that hours that are agreed in accordance with clause - I think it's clause 12 for a part‑time employee, would necessarily be less than 38 or an average of 38 in a week, because those are part‑time employees' ordinary hours.
So 31.2(a) requires the payment of overtime rates for time that wouldn't necessarily fall beyond a part‑time employee's agreed number of hours under clause 12, so to that extent it doesn't appear to us that there is an inconsistency, as such, but perhaps we've misunderstood the issue.
THE VICE PRESIDENT: The new clause 31.2(a) says it's hours in excess of the ordinary numbers of hours work prescribed by clause 28.2, which simply refers to 38 hours. So on one view, that's applicable only to full‑time employees, and then for part‑time employees it should cross‑refer to 12.7 in respect of them.
In any event, is there any doubt that under the award as it currently stands, part‑time employees are entitled to overtime penalty rates if they exceed the agreed number of part‑time hours?
MS BHATT: Not from Ai Group's perspective.
THE VICE PRESIDENT: And I assume that the AWU and SDA agree with that?
MR CRAWFORD: Yes, that's certainly our view - the AWU's view, your Honour.
MS PERERA: And that's the SDA's view too, your Honour, thank you.
THE VICE PRESIDENT: All right. I think the course I propose to take is that the Commission will issue a draft determination modifying 31.2, just to clarify the point that overtime applies in respect of part‑time employees as provided for in 12.7, and the parties will then have an opportunity to comment upon that. Is that a suitable course of action?
MS BHATT: It is from our perspective, Vice President, thank you.
MR CRAWFORD: Yes, your Honour.
MS PERERA: Yes, your Honour. The SDA are happy with that, thank you.
THE VICE PRESIDENT: All right. They're all the matters I want to deal with today, unless there's any other relevant matter any party wishes to raise. No? All right. I thank the parties for their attendance today, and we'll now adjourn.
MR CRAWFORD: Thanks, your Honour.
ADJOURNED INDEFINITELY [10.13 AM]