TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT EASTON
cl.48, Schedule 1
of the Fair Work Act 2009
Variation of a modern award
9.05 AM, TUESDAY, 7 SEPTEMBER 2021
Continued from 6/09/2021
VICE PRESIDENT HATCHER: The first matter today is in relation to the Alpine Resorts Award. So Mr Pardo, you appear for the SDA, is that correct?
MR A PARDO: Yes, Vice President.
VICE PRESIDENT HATCHER: Are there any other appearances in relation to (indistinct)?
MR PARDO: Not to my knowledge, Vice President.
VICE PRESIDENT HATCHER: All right, you go ahead, Mr Pardo.
MR PARDO: Vice President, we really don't have too much to add to our submissions to date. I could make some very brief points for the sake of transcript if it would be of assistance.
VICE PRESIDENT HATCHER: It's up to you, Mr Pardo.
MR PARDO: Thank you, Vice President. I'll be brief. My first point will be, it seems to us that there's no direct inconsistency or difficulty in the clause in question, clause 20.2 of the Alpine Award. And we would refer to paragraph 15 of our latest submissions. It seems to us that it's more easily dealt with by a note requiring that any roles offered under 20.3 are dealt with - or sorry, that they need to be casual roles, and that a non casual roles can't be offered under that clause.
A few difficulties seem to arise with the Commission's proposed wording, we would respectfully submit. One of those difficulties would be that the primary role is already a full-time role or a part-time. The secondary role would also be full-time or part-time. And that creates two issues. Obviously, if you have two full-time roles that would create some difficulty within section 62 of the Act. But also, if you have two roles of the same classification, how they interact and the maximum hours under the award and under the Act would also be of some concern.
Clause 20.3 provides a casual loading with a minimum engagement of two hours, 11.5 of the award. An employee who is a casual can refuse hours and that would be lost with the Commission's proposed wording. We would submit that the proposed wording is more analogous to an IFA but without the requirement to be better off overall. In fact, an employee could be worse off overall under the proposed wording. And it would create some compliance issues if the code of industry practice is to offer them as casual hours to use it as a stop gap in particular circumstances. But if it's a full-time or a part-time, it obviously creates a greater onus of regularity. Those are my submission, Vice President.
VICE PRESIDENT HATCHER: Thank you. So just, the question is, when clause 20(c)(i) says, 'the non primary role is to be undertaken and paid for on a casual basis,' do you say that the effect of that under the Act as it now stands is that the role has to be one which fits in the section 15(a)(i) definition?
MR PARDO: Yes, Vice President. That would be the submission.
VICE PRESIDENT HATCHER: So if it doesn't, then what, the employer is not allowed to offer the role and the employee is not allowed to accept it, is that the way it works?
MR PARDO: Yes, I believe so, Vice President. The NES obviously rules the award and the NES defines what the casual employee is. If the role, the employee role, under the NES then you wouldn't be able to offer them that clause, would be our submission.
VICE PRESIDENT HATCHER: Yes. All right, thank you.
MR PARDO: Thank you, Vice President.
VICE PRESIDENT HATCHER: The next award is the Cleaning Service Award. So the appearances there, Ms Miflin, you appear for the UWU?
MS H MIFLIN: Yes, that's correct, thanks, Vice President.
VICE PRESIDENT HATCHER: Mr Smith, you appear for the Australian Industry Group?
MR S SMITH: Yes, thank you, Vice President.
VICE PRESIDENT HATCHER: Are there any other appearances in relation to this award? No? All right. We'll start with you, Ms Miflin.
MS MIFLIN: Thank you, Vice President. I have nothing further to add on top of our filed written submissions in reply. I note that our written submissions are in support of that provisional view that was handed down by the Full Bench and we only wrote some brief submissions in reply to Ai Group's opposition to those provisional views.
VICE PRESIDENT HATCHER: Thank you. Mr Smith?
MR SMITH: Yes. Thank you, your Honour. We strongly oppose the provisional view for the reasons that we've set out in our revised submission on 19 August, and the relevant sections of paragraphs 10 to 30 of that submission. There are a number of important reasons why we oppose the view. We think that the retention of the clause would be bound to confuse both employers and employees, given that the debate about the meaning of casual employment has been squarely about the issue of whether a casual can be, and must be, employed, or rather must be employed on an intermittent, irregular or uncertain basis. Those propositions have been roundly rejected by the High Court in the Rossato decision. We have in our submission highlighted some extracts from the Skene decision of the Federal Court and the rejection of those propositions by the High Court in its Rossato judgment.
The second reason for opposing the provisional view is we believe that the clause and the restrictions that would be retained in the clause are inconsistent with the considerations in section 15(a)(ii), (a) and (b) of the definition. And we'd argue that the ultimate decision of the Full Bench in stage 1 on that clause in the Manufacturing Award about the requirement to inform an employee on engagement of their likely number of hours, are very closely aligned with this argument. Because on that particular clause, and it was in the Manufacturing Award and also, as it turns out during the other stages, was quite common in other awards - as you can see from our submission there the extracts from paragraphs (1) to (4) in particular, of the Commission's July decision, the Full Bench decided that that requirement isn't directly inconsistent with the Acts but it would lead to uncertainty or difficulty because it is not consistent with it in the sense that it's imposing requirements, and in this case, restrictions, that are inconsistent with the propositions in 15(a)(ii), (a) and (b).
The third reason that we argue that it would be inappropriate to retain (indistinct) in the award, of course, is that they would be squarely inconsistent with the information in the casual employment information statement. The original version of the casual employment information statement didn't have much content in there about the definition of a casual. And we submitted to the Fair Work Ombudsman that that should be addressed, and a subsequent version of the casual employment information statement was issued that is more expansive of criteria in 15(a). So this set of restrictions, if it remained in the award, would be squarely inconsistent, in our submission, with the content of the casual employment information statement.
The fourth reason, and this is one that the Full Bench itself has accepted in its decision expressing the provisional views, is that it would effectively lead to casuals not having any conversion rights under the NES because the sort of pattern of work that a casual could work under the award would not be one that would lead to conversion rights under the NES. And in our submission that would, in effect, exclude the operation of the NES. In its provisional view the Full Bench didn't express a definitive view on whether these restrictions are similar to the temporal limit in the Teachers Award matter. But we would submit that they're not similar in that the temporal limitation on casual employment is of a very different nature to restrictions that talk about irregularity and so on, which is squarely at odds with the outcome of the Rossato High Court decision and squarely at odds with the criteria in 15(a) of the Act.
Two final issues that we would raise in strong support of removing the provision from the award is that the maintenance of the limitation could not, in our submission, be necessary to achieve the modern award's objective and therefore would be inconsistent with 138 of the Act. And very strong support for the removal, we would argue, is section 134(1)(g) of the modern award's objective which goes to the issue of a simple, easy to understand award. These limitations, because they are so squarely inconsistent with the definition and the outcome of the High Court decision would lead to a very confusing, difficult to understand, award contrary to the modern award's objective. So those are our submissions, if the Commission pleases.
VICE PRESIDENT HATCHER: Mr Smith, speaking for myself I'm having trouble to understand why there would be inconsistency. That is, the provisional view about clause 11.2 must be read with what you've said about 11.1, so nobody's opposed the notion that 'casual employee' in this award would be defined as a casual within the meaning of section 159(a)(1), so that when one looks at 11.2 we're already talking about somebody who fits within the definition of section 15(a). And then under the provisional view, 11.2 would maintain these restrictions on the use of casual employees as defined. That is, it's not a definition provision, it's a restriction on the use.
MR SMITH: Yes, we understand the basis for the provisional view but in our submission you can't divorce one from the other. Because the whole debate about the meaning of 'casual employment' was about whether there are limits on the sort of work and the pattern of hours that a casual could work. So if these restrictions remained in the award, you know, in effect, the outcome would be the outcome of the Skene and Federal Court Rossato limitations. And so, in effect, yes, on one hand there would be a definition that aligns with Acts but directly under that, that definition would be completely negated by clause 11.2 which would impose criteria and limitations that are inconsistent with the nature of casual employment.
VICE PRESIDENT HATCHER: Yes but, Mr Smith, there's nothing in the Act which prevents awards restricting the use of casual employment, is there?
MR SMITH: No, there aren't, your Honour, but these - - -
VICE PRESIDENT HATCHER: As you know, Mr Smith, we have some awards which don't provide for casual employment, at all, such as the Black Coal Award in Production classifications, and no one suggests that's inconsistent with the Act.
MR SMITH: Yes but we see this as a very different proposition. In the Black Coal Award and the Firefighting Award, and a few other awards that don't allow for casual employment or restrict it to certain categories, that's one proposition. The Teachers Award has a different proposition in that casuals can only be employed for a certain period. But this goes to the heart of the nature of casual employment by saying that a casual can only be employed on an irregular or intermittent basis. That goes to the very nature of casual employment. It's not a restriction on the amount of time or the classification in which a casual can be employed.
VICE PRESIDENT HATCHER: So therefore you're saying you cannot employ a regular casual employee?
MR SMITH: Yes. Yes, that's correct but that goes to the very nature of casual employment, in our submission. It doesn't go to things like a time limit or a classificational limitation.
VICE PRESIDENT HATCHER: I think I asked this question of some of the unions yesterday. You'd accept, Mr Smith, that if AiG or any other employment party wanted to mount a substantive merits case to remove this provision, they could do so outside the scope of this review?
MR SMITH: Yes, we accept that, your Honour.
VICE PRESIDENT HATCHER: All right, thank you. Anything in reply, Ms Miflin?
DEPUTY PRESIDENT EASTON: Just before - - -
VICE PRESIDENT HATCHER: I'm sorry.
DEPUTY PRESIDENT EASTON: So, Mr Smith, looking at the Act itself, the Act contemplates at least a couple of different kinds of casuals. It contemplates casuals who have a regular pattern of hours on an ongoing basis, as you can see in section 66B, for example, and then obviously captures intermittent casuals, as well. Isn't the effect of clause 11.2 that the only type of casuals that employer are permitted to engage, for the purposes of this award, the ones that fit the descriptor in 11.2?
MR SMITH: Yes, except that that's the effect of it. What we're arguing is that that's not an appropriate limitation to maintain and that we understand your view is seeking to separate out a definition from these other limitations. But in our view, for the reasons I've identified, the two need to be considered squarely together.
DEPUTY PRESIDENT EASTON: Thank you.
VICE PRESIDENT HATCHER: Ms Miflin?
MS MIFLIN: (No audible reply).
VICE PRESIDENT HATCHER: Are you still there, Ms Miflin?
MS MIFLIN: (No audible reply).
VICE PRESIDENT HATCHER: All right - - -
THE ASSOCIATE: She appears to still be on the line, Vice President, but I'm not sure what's happened.
VICE PRESIDENT HATCHER: Ms Miflin, if you can hear us, your microphone is off. All right, we'll move to the next matter. All right, it's not quite 9.30 yet but who's appearing in the horse and greyhound matter, is that you, Mr Duncalfe?
MR Z DUNCALFE: That's correct, Vice President, yes.
VICE PRESIDENT HATCHER: Is there any employer appearance in respect of that award?
MS J LOMBARDELLI: Yes, Vice President, Ms Lombardelli, initial J, for the ABI and NSWBC.
VICE PRESIDENT HATCHER: Are both parties ready to proceed with this award now?
MR DUNCALFE: Yes, Vice President.
MS LOMBARDELLI: Yes, Vice President.
VICE PRESIDENT HATCHER: All right. Perhaps I'll turn to you, Ms Lombardelli. Looking at your submissions there doesn't appear to be outright opposition to the provisional view, is that right?
MS LOMBARDELLI: Yes, that's correct, Vice President. ABI and NSW Business Chambers' concern arises out of having concurrent and different casual conversion terms which will give rise to confusion for employers. In that respect ABI and NSWBC consider that the casual conversion clause in its current form creates that uncertainty and confusion, given that the NES entitlement will apply at the same time. Given our focus that we are concerned about the current casual conversion clauses operating at the same time, we don't have a particular view as to whether the Commission should simply remove the existing clause, or whether it should be time limited to the first twelve months.
VICE PRESIDENT HATCHER: Just let me pull up the clause again. So it's clause 10.7 of the award. It seems to me that - and the parties can tell me if they disagree, that 10.7 offers a one-of right to elect for conversion after twelve weeks. So it seems to me, speaking for myself, that there's no overlap with the NES that is - you reach twelve weeks, you have a right to convert or a right not to convert, and that's the end of the provision. So would there be any overlap in those circumstances?
MS LOMBARDELLI: We consider that there would not be any overlap, if any, that would be possible in the current circumstances.
VICE PRESIDENT HATCHER: Do you agree with that, Mr Duncalfe?
MR DUNCALFE: Yes, Vice President. There is no potential for overlap nor confusion about the two entitlements as one. They are completely separate in our submission.
VICE PRESIDENT HATCHER: All right. Does any other party wish to say anything else about this award? All right, thank you. I'll just check. Is there any sign of Ms Miflin returning?
THE ASSOCIATE: Not as yet, Vice President.
VICE PRESIDENT HATCHER: No. All right, I think we'll now adjourn and we'll resume at 10 o'clock to deal with the Textile Award.
SHORT ADJOURNMENT [9.26 AM]
RESUMED [9.59 AM]
VICE PRESIDENT HATCHER: I'll take appearances. Ms Wiles, you appear for the CFMMEU?
MS V WILES: Thank you, your Honour.
VICE PRESIDENT HATCHER: Mr Smith, you're for the Australian Industry Group?
MR S SMITH: Thank you, your Honour.
VICE PRESIDENT HATCHER: So the Textiles Award, who'd like to go first?
MS WILES: I'm happy to kick off, your Honour.
VICE PRESIDENT HATCHER: All right.
MS WILES: Yes. In respect to clauses 11.1 and 11.12, the - I think paragraph 11.12 of the TCF Award, the CFMMEU purposely filed two submissions. The first was on 19 August, 2021 and the second was a submission in reply on 26 August, 2021 and we continue to rely on those submissions.
Turning first to clause 11.1 of the TCF Award, just going to the Full Bench's provisional view as outlined in 11 August, 2021 statement at paragraphs 96 to 98, in summary the Bench's provisional view was, firstly, that 11.1 is not consistent with the definition in section 15(a) of the Act because it incorporates restrictions on the use of casual employment not found in section 15(a). Secondly, that the prescriptions may be preserved provided they are apply upon a definition of 'casual employment' that is consistent with section 15(a). And thirdly that accordingly, a new definition of 'casual employee,' the first section 15(a) of the Act should be added to clause 2, the definition, and clause 11.1 should be modified to read, and I quote, 'A casual employee may only be engaged in relieving work or work of a casual, irregular or intermittent nature.'
As we've indicated in our earlier submissions the CFMMEU does not oppose the Full Bench's provisional view in relation to clause 11.1. However, the Ai Group does oppose the provisional view, as set out in the submissions of 19 August, 2021. The CFMMEU provided a detailed response to the contentions of the Ai Group and they are contained at paragraph 20 to 46 of its submission of 30 August, 2021. No further submissions of substance were made by Ai Group in its reply submission on 30 August, 2021 in relation to clause 11.1. Given this we are content to rely on our submissions of the date, subject to any questions the Full Bench may have, and if we could have a further opportunity to respond to any further oral submissions the Ai Group may make today. So I'm not sure, your Honour, whether you want to deal with 11.1 first and then - - -
VICE PRESIDENT HATCHER: We'll deal with all of it, Ms Wiles, so just go ahead with all of them.
MS WILES: All right. So then dealing with clause 11.12, the opening paragraph of 11.12 in which the Full Bench did not give a provisional view, the Full Bench's discussion of clause 11.12 after the opening paragraph that's contained at paragraph 49 to 51 of the 11 August statement. With respect to the opening paragraph of clause 11.12 the CFMMEU filed detailed submissions on 19 August, 2021 and those submissions are contained at paragraphs 13 to 33. And further, in a reply submission of 30 August, 2021 at paragraphs 47 to 61.
Just in relation to our reply submission of 30 August, 2021 I do wish to alert the Bench to a typographical error in the document which is on page 14, and just bear with me for a moment - yes, on page 14 after paragraph 46 you'll see that there's a subheading there, 'Issue 2,' which says, 'clause 11.1 of the TCF Award.' That should be, 'clause 11.12.' Just apologies for any confusion that may have caused.
But in terms of the substantive issue, in summary what we say in relation to the opening paragraph of clause 11.12 is that firstly that it is a relevant term. We concede that it is a relevant term pursuant to clause 48 of schedule 1 of the Act as amended. Secondly, we say that it's not merely an expression of an objective but is a substantive obligation which has work to do, both generally in maximising permanent employment with the TCF industry but also as part of the facilitation of conversion of casual employees.
Thirdly, we say that the second part of the term is not a qualification or limitation on the primary obligation which precedes it. However, the second part of the term does reinforce the importance of casual conversion in ensuring that permanent positions in the employer's workforce are maximised.
Fourthly, we submit that the opening paragraph to clause 11.12 is not inconsistent with the Act as amended. We say that that term does not constitute any uncertainty or difficulty relating to the interaction between the award and the NES. If, however, the CFMMEU's primary submission is not accepted, i.e., the retention of the opening paragraph to the clause as currently drafted, in the alternative we submit that the terms should still be retained and redrafted to read, 'The employee will take all reasonable steps to provide its employees with secure employment so maximising the number of permanent positions in the employer's workforce.'
We submit that the retention of the term in the TCF Award is necessary as required by section 138 in order to achieve the Modern Award's objective in section 134, particularly in the context of the part 10(a), Award Modernisation Process reasoning and further, the 2012 transitional review and the four yearly review of Modern Awards in which the term remained unchanged.
The CFMMEU's reply submission of 30 August, 2021 also responded in detail to the Ai Group's submission of 19 August and I won't repeat them here. And then the Ai Group also filed a reply submission on 2 September, 2021 and the relevant paragraphs that deal with the opening paragraph to clause 11.12 are contained at paragraphs 5 to 25 of the Ai Group's reply submission.
Just in terms of some responses to those submissions, at paragraph 7 of the AiG's reply submissions of 2 September, the Ai Group essentially categorised the term, or the retention term would be one that is essentially as a job security clause. We think that's a mischaracterisation of the term, itself. Further, the Ai Group go on to say that there would be no jurisdictional basis to retain the clause, and we reject the contention. And they also say that it's not an incidental term committed by section 139. At paragraph 9 they also say that the part 10(a) Award Modernisation Full Bench - or they draw a conclusion that that Bench must have found that the term was incidental to the casual conversion clause. With respect, we say that that conclusion can't be reasonably drawn from that decision. And then we say that that contention is speculative.
On the issue of jurisdiction and whether it is a term that can be included in the Modern Award, section 139 provides amongst other things that 'a Modern Award may include terms about any of the following matters.' And then section 139(a) refers to types of employment such as full-time, casual employment, regular, part-time, et cetera.
On reflection on reviewing the matter again we submit that the opening paragraph of clause 11.12, whether it's retained as it currently is, or in the alternative proposal, is a matter about type of employment under section 139(1)(b), supported by the reference to 'permanent positions,' in clause 11.12 which can be seen to have reference the particular type of employment. And therefore we say it comes within (indistinct) 1(b).
Alternatively, if the clause is retained in its current form, we say that it would have the character of a term that's incidental to casual employment and is therefore admissible under the Act.
VICE PRESIDENT HATCHER: Ms Wiles, if you look at the second part of the sentence - I mean, I'm not sure what work it has to do because it would always have to comply with the NES. What work does it have to do beyond that?
MS WILES: I guess it sets a context for the importance of the casual conversion process. So it reinforces that employees, casual employees should have an opportunity to elect to become full-time or part-time employees.
VICE PRESIDENT HATCHER: But the obligation of employers to comply with the NES provisions, and it be retained, what follows, in the casual conversion provision, the employer would have an obligation to comply with that. But what more would they do about providing an opportunity apart from complying with their legal obligation, which is given? I'm not sure what work it has to do beyond saying that employers have to do what the Act and the award says they have to do.
MS WILES: Your Honour, I accept what you're saying to a certain extent. I guess it would be of assistance if there was a dispute about whether an employer has a reasonable basis to refuse a request for casual conversion. We would argue that the opening paragraph assists in identifying a sort of regulatory purpose for the casual conversion clause and is the relevant context, rather than simply - and I take what you say, that the substantive terms themselves represent certain obligations and rights which apply to employers and employees. But certainly the opening paragraph, we say, is important in setting a context.
If the Bench is against us on that then we accept - we obviously accept that but we would say that the first part of the clause should be retained for the reason that we've outlined in our submissions previously.
VICE PRESIDENT HATCHER: So that opening part of the clause came in at the same time as the casual conversion, or it has no independent history, does it?
MS WILES: As far as I'm aware, I think that's right, Vice President.
VICE PRESIDENT HATCHER: And what work would that part of the sentence have to do, independent of casual conversion? That is, what might an employee do apart from casual conversion to comply with this part of the sentence?
MS WILES: You're just referring to the second part of the sentence, did you say?
VICE PRESIDENT HATCHER: The first part.
MS WILES: The first part? It is a statement that there is an obligation on employers to take reasonable steps to provide its employees with secure employment by maximising the number of permanent positions in the employer's workforce. So it's an obligation which say is you can, if an employer can and is able to employ permanent employees then they should do so and maximise the numbers of those employees relative to casual.
VICE PRESIDENT HATCHER: Let's assume that we maintained our provisional view about clause 11.1.
MS WILES: Yes.
VICE PRESIDENT HATCHER: So that casuals are only engaged to do work of a casual, irregular or intermittent nature. Then I'm struggling to understand what else an employer, if an employer complies with that clause then it follows what an employer would be required to do to comply with that first part of the sentence? That is, what do we require employers to do? Because bearing in mind that they may face consequences if they don't comply. And I'm just wondering what does the section actually require employers to do?
MS WILES: In our submission we say that it requires employees, where possible, to take the reasonable steps to maximise permanent employment. So that's a sort of independent standing obligation. But if they do employer casuals then the restrictions in the categories in which casuals can be employed are prescribed by 11.1.
VICE PRESIDENT HATCHER: I mean, that might be the best answer that's available to my question but I'm still struggling with the concept of if an employer reads that first part of the sentence, what will they understand that they have to do to comply?
MS WILES: Well, I think the obligation is that they need to turn their minds to employing people on a permanent basis where it's reasonable to do so, or where they can take reasonable steps to do so. But if they're unable to in terms of their operations and they do choose to employ casuals, then two sets of provisions apply. One is obviously the restrictions on casuals, and the second is the casual conversion clause which follows in 11.12.
VICE PRESIDENT HATCHER: Yes, all right.
MS WILES: But your Honour, I probably can't take my answer any further than that.
VICE PRESIDENT HATCHER: All right, thank you. Anything else?
MS WILES: Unless there's any other questions, your Honour, and as I said, if we can be given an opportunity to reply if necessary to Mr Smith's submissions that would be appreciated.
VICE PRESIDENT HATCHER: All right, thank you. Mr Smith?
MR SMITH: Thank you, your Honour. With clause 11.1, I won't go through those seven or eight key reasons why we say that this clause, just like the one in the Planning Award, is not appropriately maintained. You know, all of those arguments that I went through and that are set out in our written submissions, we rely on and press. There are two really important additional matters relating to this clause that are not relevant to the cleaning award clause that I would just like to highlight.
The first one of those is that this clause, 11.1, is very different to the clause in the Cleaning Award. The Cleaning Award has two subclauses and the Bench decided that the first subclause is the one about the definition, and the second subclause imposes restrictions on the nature of casual employment. This is very different. If you look at the wording in clause 11.1, this is a definitional clause. It says, 'a casual employee is,' and then it goes on to define a 'casual' in terms of the type of work they carry out. So it's completely different to the Cleaning Award clause. The two are chalk and cheese. So that's one really important point that we would press, and for all of the reasons that we've identified in our written submission and we talked about earlier with the Cleaning Award, we think this is squarely inconsistent with the Rossato High Court decision.
The second really important aspect of this clause that's not there in the cleaning award clause, is that it talks about a casual employee is an employee who is engaged in work of a casual nature, amongst other things. So the clause, in the way that the Rossato High Court decision has ended up, arguably imposes no restrictions whatsoever on casual employment because it just says that a casual is engaged on work of a casual nature. And the High Court has very clearly clarified that ongoing, regular casual work is work of a casual nature if it meets the other criteria which the High Court identified and which are now set out in the definition in 15(a). So for those two really important reasons, as well as the seven or eight reasons, we strongly oppose the retention of this restriction, if it is indeed even a restriction, given the wording, in the award.
If I could turn then to clause 11.12, and our arguments about that clause are identified in our initial submission but are set out more fulsomely in our reply submission of 30 August. There are a number of reasons why we strongly oppose the retention of the first paragraph. And we're pleased that the Full Bench hasn't expressed a provisional view on this one but has just called for submissions. And our submission is that it should not, and cannot be retained in the award. You know, there could be an interesting debate about the lawfulness of this clause in years gone by, prior to 1996. You know, job security clause, as the Full Bench was aware, there are many relevant High Court decisions on job security matters, or whether they're matters that pertain to the employment relationship. But in our submission once that clause or that paragraph is separated out from the concept of casual conversion it becomes, in effect, a job security clause. And certainly, even if it was allowable prior to '96 with all of those relevant High Court cases, it cannot possibly be allowable after 1996 and under the Fair Work Act because of the limitations that have been imposed on the content of awards.
If it was separated out we would see this as very similar to the issue your Honour was debating with the advocate for the CFMMEU yesterday about the anti-avoidance provision in the casual conversion clause of the Building Award. You know, that clause was a clause that Ai Group was involved in negotiating with the AMWU in the original Metals(?) casual conversion case but it was about casual conversion and then it flowed into other awards. And separated out from casual conversion it potentially takes on a different character. Like this particular paragraph would take on a completely different character with a sweeping obligation on employers to take reasonable steps to maximise, in effect, permanent employment, which would go to issues around casuals, but employment for a specific period of time, task or season, issues around independent contractors, labour hire, outsourcing. It would have a completely different, inappropriate character if it was separated out from the context of casual employment.
It doesn't actually have a long history, that paragraph. It was only put in as part of the Modern Award back in 2010. We couldn't find any reference to it prior to 2010.
VICE PRESIDENT HATCHER: So, Mr Smith, was the casual conversion clause in the award before 2010?
MR SMITH: I don't think so, your Honour.
VICE PRESIDENT HATCHER: No.
MR SMITH: It went in, in 2010. And I couldn't find a lot of history to that paragraph but it wasn't ideal that the Commission's, you know, award simplification materials are no longer widely available - you know, award modernisation materials are no longer widely available because of the closure of the AIRC website, so we couldn't do any detailed research within the time. But it looks like it only went in, in 2010 as part of the Modern Award and didn't have any history in the three main - three Modern Awards. In our submission the only conceivable basis for including it in the award at that time was the principles that are now in section 142 of the Act, in that it must have been seen as a clause that is incidental, and essential to the operation of another allowable term under section 139.
The CFMMEU are arguing that the clause is allowable under 139 because of 139(1)(b), and we submit that is a very big stretch. Because how can that sort of clause, if it's separated out into a general job security obligation, be a clause that's about a type of employment? In our submission that just can't possibly be right. And in terms of it being able to stay under the jurisdiction in 142, how could that possibly be right also? Because it wouldn't have any link to any allowable term under 139. So in our submission it's extremely clear that that clause is not able to be retained in the award because there's no conceivable jurisdictional basis for it to stay in the award of separated out from the context of casual conversion. Those are our submissions, if the Bench pleases.
VICE PRESIDENT HATCHER: Thank you. Anything in reply, Ms Wiles?
MS WILES: Just a few short points, your Honour. In relation to clause 11.1, Mr Smith raised two issues. On that first issue it is important to remember that in fact the Full Bench's provisional view proposes to redraft that clause in the following way:- 'a casual employee may only be engaged in relieving work, or work of a casual or intermittent nature.' So the first part of the current 11.1, 'a casual employee is an employee,' is proposed to be deleted. So we say that that deals with the first issue raised by Mr Smith.
But the second issue is about the use of the word, 'casual' in the clause. We made some submissions specifically about the issue in our 30 August reply submission at paragraph 21 to 23. And essentially what we said there was that the word, 'casual,' should properly be read in combination with the rest of clause 11.1, specifically the words which appear both before, i.e., 'relieving work,' and after, 'irregular or intermittent nature, in relation to the word 'casual.' We submitted there that on an ordinary construction the word, 'casual,' is placed in context of the associated restrictions of casual employment contained in the current clause, point 1.
And we also said that in the alternative, if the union's submission wasn't accepted on this point then the issue could be remedied by the deletion of the word, 'casual,' so that the amended clause, 11.1 would read, 'a casual employee may only be engaged in relieving work or work of an irregular or intermittent nature.' And we say that that would address the second issue raised by Mr Smith.
In terms of clause 11.12, the opening paragraph, in terms of the contentions around job security becoming a job security clause and we also included some specific submissions about that in our reply submission, and I'll just find the paragraphs - that's at paragraphs 55 to 60 of our reply submission and I won't repeat them but we do address the issue raised by Mr Smith there. Your Honour, you asked Mr Smith a question of the origins of the casual conversion clause in the (indistinct) award, and similarly on our review and research we couldn't - we don't think - well, my understanding is there was no casual conversion clause in the pre reform Federal Awards in the TCF sector, so the Clothing Trades Award, the Textile Award and the Footwear Award. But from memory, I do have - and again I haven't had an opportunity to confirm this, I think there may have been a casual conversion clause in some of the TCF (indistinct) but I can't confirm that categorically.
But in terms of the Modern Award, yes, that was the first time it was inserted in the Federal Award that we're aware of. Previously, the pre reform awards, and we outlined this in one of our earlier submissions, the pre-simplified awards in the sector had quite significant restrictions in casual employment, such as ratios, et cetera, and lengths of employment. So in that context there wouldn't have been a need for a casual conversion clause in those earlier conversions of the award. I think that was all, thank you, unless there's any further questions.
VICE PRESIDENT HATCHER: All right, thank you. We'll move to the next award. Firstly, as I understand it there's no appearances for the Higher Education Industry Academic Staff Award, and the only party that took limited issue with our provisional view, without the Group of Eight universities was content to rely upon its submissions. Can I confirm that there's no appearances in relation to that award? All right. And then there's the Labour Market Assistance Award. Are you still there, Mr Smith?
MR SMITH: Yes, I am, your Honour.
VICE PRESIDENT HATCHER: Does your organisation have any interest in this award?
MR SMITH: We did have a potential, significant interest when it was being developed but the way that the scope of it was modified during the course of the development of that award, it doesn't apply very broadly. So, no, the answer in short is.
VICE PRESIDENT HATCHER: Thank you. It appears we have received no submissions about what appears to be a difficult issue with that award, and nobody's appearing. So we'll have to work that out, by ourselves. That completes all the awards we need to deal with for this hearing, so we'll now reserve our decision and adjourn.
MR SMITH: Thank you.
ADJOURNED INDEFINITELY [10.32 AM]