TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1051431-1

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT SMITH
COMMISSIONER HAMPTON

AM2012/355

s.160 - Application to vary a modern award to remove ambiguity or uncertainty or correct error

Application by
(AM2012/355)
Clerks - Private Sector Award 2010

(ODN AM2008/7)
[MA000002CRA Print PR985112]]




Melbourne

11.13AM, THURSDAY, 7 NOVEMBER 2013

Continued from 19/12/2012

PN696

JUSTICE ROSS: Could I have the appearances in Melbourne first please. No need to stand because otherwise the camera might have trouble tracking you.

PN697

MS R. READ: If it please the Commission, Ms R. Read, for the CFMEU.

PN698

JUSTICE ROSS: Thank you, Ms Read.

PN699

MR M. SHEEHAN: If it please the Commissions, Mr M. Sheehan, I appear on behalf of the (Indistinct) Association of South Australia. Thank you, sir.

PN700

JUSTICE ROSS: Thank you, Mr Sheehan, and in Sydney?

PN701

MR S. SMITH: If it pleases the Commission, Mr S. Smith of the Australian Industry Group.

PN702

JUSTICE ROSS: Thank you, Mr Smith.

PN703

MR A. BORG: Mr A. Borg also of the CFMEU.

PN704

JUSTICE ROSS: Thank you, Mr Borg.

PN705

MS M. ADLER: Ms M. Adler from the Housing Industry Association.

PN706

JUSTICE ROSS: Thank you, Ms Adler.

PN707

MR G. PARKES: If the Commission pleases, Mr G. Parkes, on behalf of Restaurant Catering Australia.

PN708

JUSTICE ROSS: Thank you, and in Adelaide.

PN709

MR A. STORY: If the Commission please, Mr A. Story and I appear for SA Unions, the peak trade union body in South Australia and the state branch of the Australian council of the trade unions and I also appear for the Maritime Union of Australia.

PN710

JUSTICE ROSS: Thank you, Mr Story.

PN711

MS L HARRISON: If the Commission pleases, Ms L. Harrison on behalf of United Voice.

PN712

JUSTICE ROSS: Ms Harrison.

PN713

MR D. BLAIRS: If the Commission pleases, Mr D. Blairs appearing on behalf of the SDA union.

PN714

JUSTICE ROSS: Thank you, Mr Blairs.

PN715

MR H. WALLGREN: If the Commission pleases Mr H. Wallgren for Business SA.

PN716

JUSTICE ROSS: Mr Wallgren.

PN717

MR E. SCHWIDDER: Mr E. Schwidder for the South Australian Wine Industry Association.

PN718

JUSTICE ROSS: Thank you.

PN719

MR T. EVANS: If the Commission pleases, Mr T. E. Evans on behalf of the Australian Hotels Association national executive.

PN720

JUSTICE ROSS: Thank you.

PN721

MR D. PUTLAND: If the Commission pleases, Mr D. Putland for the Master Builders South Australia, Master Builders Australia and its respective state-based organisations. Thank you.

PN722

JUSTICE ROSS: Thank you, and in Brisbane.

PN723

MR H. LEPAHE: Your Honours, my name is Mr H. Lepahe for Australian Business Industrial.

PN724

JUSTICE ROSS: Thank you.

PN725

MR LEPAHE: I’m the only one in the room.

PN726

JUSTICE ROSS: Okay. Subject to any different view how I thought we would proceed is to deal firstly with the Timber Industry Award as that seems to deal with a confined issue and then we would go to – following Commissioner Hampton’s report we would go to those parties who are proposing a variation to the current clause, that is ABI, RCA, AI Group and those supporting those propositions and then hear from any other parties in response. Is that all right?

PN727

MR BLAIRS: Your Honour, Balers from South Australia. I understand the fast food industry award is in the same group as the timber industry award and could possibly be dealt with as initial issues?

PN728

JUSTICE ROSS: That’s true, Mr Blairs, we will deal with both of them first. Let’s deal with the timber award.

PN729

MS READ: Thank you, sir. As you have noted the issue in relation to the timber industry award is confined. It was addressed by Commissioner Hampton in his report to the full bench and has also been the subject of a submission in the form of a letter by the union. We note that the ambiguity which is the subject of dispute in the other awards does not arise in the timber industry award because the allegedly ambiguous clause is not part of the award. Commissioner Hampton has suggested a form of variation in attachment A to his report of 25 October and the CFMEU indicates its consent to the variation of the award in the terms set out in that draft determination. I can also indicate this morning I have had conversation with Ms Watt of the Timber Merchants Association and she has asked me to advise the Commission that the Timber Merchants Association would also consent to the variation in the terms set out in that draft determination and on that basis we ask that the award be varied.

PN730

JUSTICE ROSS: Is there any party with an interest in this award present that wishes to make any submission in opposition to that proposition? We would propose then to make a determination variation in the terms agreed and set out at attachment A to Commissioner Hampton’s report.

PN731

MS READ: Thank you, sir, if I could be excused?

PN732

JUSTICE ROSS: Yes, certainly. Mr Blairs, do I take it you are putting something along similar lines in respect of the fast food industry award?

PN733

MR BLAIRS: That would be correct, we would support the draft determination proposed by Commissioner Hampton.

PN734

JUSTICE ROSS: Have you had any discussions with any employers or employer organisations interested in that award?

PN735

MR BLAIRS: We haven’t, your Honour.

PN736

JUSTICE ROSS: Do any of the parties present have an interest in that awed and do they have a view about whether or not a determination in the form proposed should be made?

PN737

MR WALLGREN: Your Honour, from Business SAs perspective we would support varying the fast food award in the terms set out in Commissioner Hampton’s draft determination.

PN738

JUSTICE ROSS: Does anyone else wish to be heard in respect of this award? No, thank you. We will make a determination in the form set out at attachment A to Commissioner Hampton’s report. That deals with those two discrete matters. Can we now turn to the variations that are proposed in respect of the current award provisions and can I start with ABI? Your position has been set out in Commissioner Hampton’s report, unless you are departing from that in any way we will take that as read. Is there anything in addition to what is set out that you wish to say in support?

PN739

MR LEPAHE: Your Honours, I think Commissioner Hampton’s report sets out the events of September and October comprehensively. I can say that as I understand it there were a number of discussions between parties particularly in the other states and there has been a movement, as I understand it, of support for the proposal of the Restaurant and Catering Association, it’s outlined I think in paragraph 21 of Commissioner Hampton’s report and that’s something that ABI has agreed to support.

PN740

JUSTICE ROSS: Do I take it now that you are supporting the RCAs proposal set out in paragraph 21 of the Commission’s report?

PN741

MR LEPAHE: I am, your Honours, and unless something has happened and unravelled in the other states in the last 24 hours of which I’m not aware as I understand it that’s the position that we’re arrived at.

PN742

JUSTICE ROSS: Okay, we’ll find out if there’s been any unravelling in due course. We might hear from the other employer parties before we go to Mr Parkes, just to see what the extent of the level of support amongst the employers might be for the RCA proposal and if indeed is that the one we ought to be focussing on. So if we just go around. If we deal firstly Mr Sheehan what’s your organisation’s position?

PN743

MR SHEEHAN: Thank you, your Honour. Your Honour, we are not aware of any circumstances where there were any ambiguities raised as a result of the new provisions that were implemented last year, certainly in the Vehicle Manufacturing Repair Services and Retail award. We read the clause which - the relevant clause which is sub-clause F of schedule G in our award as it interacts with sub-clause an in turn interacts with sub-clause B is clear enough and our position is to leave the schedule undisturbed. If there is some ambiguity it is possibly in sub-clause D which refers to a circumstance where there is an RDO. Our understanding is that is an accrued RDO. We’re not raising this as an issue that needs to be I guess dealt with today and we’re fairly happy to leave that to be dealt with in 2014 when there is a major review of all these matters. The only concern is why a part time employee would accrue an accrued RDO is I guess a bit of a question but as I said it’s an issue that we’re happy to leave to 2014.

PN744

JUSTICE ROSS: Very well.

PN745

MR SHEEHAN: The RDO proposal, we don’t have any major issues with it except that it would somehow mean that it impacts on sub-clause B of the schedule because sub-clause B actually does indicate that in connection with sub-clause A says where a part time or full time employee is usually rostered to work ordinary hours between those particular times as a result of exercising their right under the NES they’re to be paid their ordinary rate of pay for such hours not worked. Which is probably the second half of the RCA proposal. So I’m not sure how that would interact with sub-clause B in the current schedule. That’s basically all I’ve got to say, thank you your Honour.

PN746

JUSTICE ROSS: Thank you. If I can go to the employer representatives in Sydney. Mr Smith.

PN747

MR SMITH: Yes, thank you your Honour. As set out in our correspondence of 21 October, when we had a look at this issue and reviewed the submission that we made prior to last Christmas it was clear that the proposal of ABI was seeking to address exactly the same issue that we raised prior to last Christmas, so in that respect the problem that’s been identified we do agree does need to be addressed or should be addressed. We are quite open to what wording should be used to address that, we looked at the ABI wording, our wording that we proposed last Christmas and the restaurant and catering wording and our preference was either for our wording or the ABI wording as its simpler than the Restaurant and Catering Association’s wording but we don’t have any major objections to any of those forms of wording. If the Commission pleases.

PN748

JUSTICE ROSS: All right, thank you. Ms Adler.

PN749

MS ADLER: Thank you, your Honour. We would seek to rely on the correspondence that we lodged on 18 October and also provide support for the AIG proposal, but in saying that when determining the actual wording that would be required we would be open to what is proposed by the RCA. Thank you, your Honour.

PN750

JUSTICE ROSS: All right, thank you. I haven’t forgotten you Mr Borg but I’ll come back and deal with each of the unions in response because their positions are captured in the Commissioner’s report. If I can go to Adelaide and deal with the employers present there. Mr Wallgren, what do you want to say about it?

PN751

MR WALLGREN: Yes, thank you, your Honour. From Business SAs perspective the schedule have really operated as intended, providing necessary clarity for businesses operating on the two public holidays. We haven’t really had any issues with clause X1G or clause X1F. Having said that we appreciate that ABI has a general concern with the clause and they will be looking at ways to provide clarity. So we wouldn’t oppose the clause being varied as set out by the Restaurant and Catering Association.

PN752

JUSTICE ROSS: All right. The wine industry?

PN753

MS SCHWIDDER: Yes, thank you your Honours. Our position we would rely on the correspondence of 18 October to Commissioner Hampton. We basically confirm that our members didn’t have any difficulties with the clause as clause F in our award last year and our first proposal would be that it remains unchanged and is just extended for the 2013 Christmas and New Year’s period. However if the Commission was of the view that paragraph G as its currently worded creates any issue with ambiguity and that you would like to address that then our preference would be we would certainly support the RCA proposed wording.

PN754

JUSTICE ROSS: Very well. Mr Evans.

PN755

MR EVANS: Thank you, your Honour. The position with the AHA is pretty consistent with the Hospitality Industry General Award schedule H worked extremely well last year following the efforts of all the parties to bring a resolution on the issue. So from our perspective as we’ve said in our submission in September and October, pretty well leave it as it is. It works well, we’re okay with it. However, as we’ve indicated should there be considered to be some sort of clarification required we would suggest at sub-section G of schedule H of the Hospitality Industry Award could be varied in line with the words as submitted by RCA and contained in Commissioner Hampton’s submission at paragraph 21 and that variation, all it does from our perspective is just really reaffirms the intentions of sub-paragraphs A to E of schedule H of the hospitality award. It doesn’t really change too much from what our perspective would be, but it would just reaffirm the intention of those positions. So should it be considered that there is a need we would support the RCA position going in, as per paragraph 21 of Commissioner Hampton’s report.

PN756

JUSTICE ROSS: Thank you. Mr Putland for MBA?

PN757

MR PUTLAND: Thank you, your Honour. On behalf of Master Builders I’d like to first reiterate our general support submissions made by my friends today, in particular that as the general proposition Master Builders supports the model provisions as they were formulated last year. However, to the extent that there is any ambiguity as within those terms as outlined fairly comprehensively by ABI we would support clarification of that ambiguity and it would seem there is a general consensus leaning towards the RCA provisions – sorry, the RCA amendments whether it was deemed by the Commission that either the AIG or the ABI provisions were more appropriate in the circumstances, we would also support those courses as well. Thank you, your Honour.

PN758

JUSTICE ROSS: All right. Then can I now go to the Restaurant and Catering Association before providing the various unions with an opportunity to be heard. Were there any other employer organisations? No. All right. Mr Parkes, is there anything you wish to add and say in support of your proposition which seems to have a measure of support amongst the employers?

PN759

MR PARKES: Yes, thank you, your Honour. Our organisation represents a number of small businesses that need to operationally roster people during the Christmas and New Year period, so therefore we seek the alteration to make it very clear what those employers need to do. So we would strongly support the variation as proposed in our correspondence to Commissioner Hampton on 4 October 2013.

PN760

JUSTICE ROSS: Can I ask a question about the proposal you put? The exception in the second part of the proposal, is that intended to be a reference to section 114 in the NES?

PN761

MR PARKES: Well, yes insofar as it’s also related to sub-clause 1A as well of the schedule.

PN762

JUSTICE ROSS: Isn’t an issue with the formulation that you’ve raised this that section 114 of the NES of the Act applies to all employees, that is full time, part time and casual. It appears to on its face at least. Your provision only applies to part time and full time employees. How would we be able to make an award provision that derogates from the NES?

PN763

MR PARKES: In respect to the operation of the schedule we believe that that has narrowed it down correctly to part time and full time employees being accepted, but you know it adequately covers in the third sentence, “An employee not rostered to work between 7 p.m. and midnight will not be entitled to another day on or another day’s pay,” which was the original intention of the parties when this schedule was put together.

PN764

JUSTICE ROSS: No, no, I follow that but it’s the exception that if someone is not rostered because they’ve exercised their right not to work, consistent with section 114 of the Act then they will be paid their ordinary rate of pay for such hours that are not worked on the part day public holiday. My point is that you have framed that having regard to the terms of section 114, but you have made it narrower. How can you do that?

PN765

MR PARKES: That’s correct, that’s correct because if a casual is not rostered there is no entitlement to be paid.

PN766

JUSTICE ROSS: No, no, no, but if they are rostered but they exercise their right not to work, why doesn’t section 114 operate?

PN767

MR PARKES: I see.

PN768

MR BLAIRS: Your Honour, it’s Blairs from South Australia, if I could be of assistance. The note at the end of section 116 may be the answer to that question.

PN769

JUSTICE ROSS: Yes, but well, is it? For example the employee is not entitled to payment if the employee is a casual employee who is not rostered on for the public holiday or a part time employee. Well, that in some ways makes my point. If they are rostered on the converse of the note is if a casual employee is rostered on a public holiday but elects or takes advantage of the provisions of section 114 then aren’t they entitled to payment under that section? I’m raising it as a question, I’m not making a statement about it. I’m drawing it to your attention because we can only obviously make modern award terms that are consistent with or supplement the NES and the proposition you’re putting may have the effect of derogating from the NES and if it did it wouldn’t have any effect presumably. Would it be of assistance if we stood the matter down for 15 minutes? I appreciate this has been put to you on the run. We’re obviously anxious to resolve this matter to give certainty to everyone about what the position will be this year and I am anxious not to do it at the eleventh hour as we got caught with last year. We’re happy to stand the matter down, keep the video link open. No doubt if the employers want to talk amongst themselves the union representatives can facilitate that by ducking out of the room for 15 minutes. Would that be of some assistance? Do you want to have a think about this?

PN770

MR BLAIRS: It may well be, your Honour. I suppose the position of the union parties and I know I’m jumping ahead a little bit here is that you know the wording that has worked so far is this in a sense of work this is – and highlights you know problems as to why we may (indistinct) concerns (indistinct).

PN771

JUSTICE ROSS: No, I appreciate your position and I’m not – you’ll have a full opportunity to put your argument and nor you shouldn’t take my offer of an adjournment or the questions I’ve raised to be indicative of any position in respect of the matter because it’s not. It’s just that in reading that proposing that potential problem occurred to me. It’s not suggesting that if that problem was resolved we would necessarily or I would be in favour of adopting that provision, I would want to hear from everyone and then take some time to think about it. So you will have an opportunity to come back. I just think that given a number of the employer organisations have indicated their support for the RCA position, I have raised an issue with the RCA for them to think about. I think the employers might benefit from an opportunity to have a discussion amongst themselves about that issue and see hopefully if there’s some collective response, that’s all.

PN772

MR SMITH: Your Honour, could I just raise a question about the question I guess. What I don’t understand is where would an obligation arise to pay a casual who doesn’t work on a public holiday, as was pointed out section 116 is the section that deals with payment on the public holiday. 114 is looking at the rights in relation to working and refusing to work but because a casual is paid a casual loading under a relevant award it just seems there wouldn’t be any right to any payment if they didn’t work.

PN773

JUSTICE ROSS: That might be the answer to it, Mr Smith, I’m inviting you to take a few minutes to think about it and see if you can come back with a collective position. What I’m trying to avoid is five, four, six different employer positions. So you have reached a measure of agreement, I think it would be of assistance if you’re able to discuss it and hopefully come back with a single position in relation to the matter because whatever is in the award I assume we all agree can’t derogate from what’s in the NES?

PN774

MR SMITH: Yes.

PN775

JUSTICE ROSS: I suppose the other solution is just too simply include a note in lieu of the current language that’s referred to in paragraph 10 of the Commissioner’s report, the language in contention. An alternate position may be to put in a note about what the NES provides or draw the parties’ attention to the fact that in certain circumstances where someone exercises the election they may be entitled to payment under the terms of sections 114 to 116. I just think having nothing there, if you just remove those words may lead parties into practical problems where they only look at the award and they don’t consider the interaction of the NES. Look, in any event I’m proposing we stand down for 10 minutes so we would resume at 11.50 Eastern strand daylight saving time, so 10 minutes. If the union reps wouldn’t mind leaving the employer organisations to it they can have a discussion amongst themselves and see what they want to say about the issue that’s been raised and if there’s anything else they want to say in support of the proposition and then we’ll hear from the unions in relation to their position. We’ll adjourn for 10 minutes.

<LUNCHEON ADJOURNMENT [11.41AM]
<RESUMED [12.22PM]

PN776

JUSTICE ROSS: All right. Can anyone from the employer’s side tell us what if any outcome there has been from your discussions?

PN777

MR SMITH: Your Honour, I’m happy to do that. The employers have had quite a lengthy discussion about all of the issues and the various versions of the clause and they’ve come to a positon that the AI Group form of wording which as you know is very similar to the ADI form of wording does not go to the issue of payment is the version that I think certainly most of the employer groups support if not all of them.

PN778

JUSTICE ROSS: Very well. Do any of the other employer groups have a different view?

PN779

MR WALLGREN: Your Honour, Mr Wallgren from Business SA.

PN780

JUSTICE ROSS: Yes.

PN781

MR WALLGREN: As I mentioned earlier we haven’t had an issue with the clause, we under the ADI has an issue they want to rectify but I think it’s always problematic once you start throwing different wording around a hearing to just sign up to proposed wordings and say well that’s fine, they won’t have any unintended consequences. So I’m not able to give a (indistinct) to say well, let’s go with any number of until we’ve had time to properly look at the consequences and it’s been raised by others that they could have some unintended consequences that may not be appropriate to awards. So that’s basically where we sit.

PN782

JUSTICE ROSS: All right. Mr Wallgren, can I take up a point that both you raised and some other employers present in South Australia and that is that – and indeed the Motor Traders in Melbourne, that you have not encountered any practical problems in the operation of the current clause. Can I ask, look to our knowledge, that is myself and my colleagues, we are not aware of any dispute that’s been notified identifying a problem in the implementation of these provisions that the Commission has dealt with. Those who are advocating a change in the current clause I understand what you say about the potential for a problem but are you able to identify any problems that have in fact arisen or in fact arose last year when these provisions had practical effect in the operation of the current clause?

PN783

MR LEPAHE: I’m sorry, first your Honour in respect of ABI we’ve certainly in our submissions to Commissioner Hampton back in September we made it very clear that we had no practical matters that were before us we could raise to the Commission as evidence of mischief and we certainly didn’t accuse any party in this proceedings of any mischief in relation to the clause, it was simply that we identified an ambiguity which we believed is there and knowing it’s there we argue it ought be cured, but no we can’t bring any practical mischief or misdeed or matter that might have been raised before the Commission on this issue.

PN784

JUSTICE ROSS: Very well.

PN785

MR EVANS: Your Honour, if I could, Evans from the AHA. If like as was just put to you our initial position is that the variation to schedule H in the hospitality award was good, worked well and we had no issue. Our principal position is it still works fine, leave it as it is. The only position that we’re putting in terms of recognise another issue is we’re looking at it across the table, trying to get an established provision for the Fair Work Bench to apply. So it’s not going to work for every particular award, your Honour, but it’s really looking at the what if’s and my view would be RCA has identified a what if, so if the what if does occur well maybe that might be, maybe the AHA position there is slightly better. But principally the hospitality award is comfortable as it is and other than not trying to be outside of a national standard it works as was provided by your bench last year.

PN786

JUSTICE ROSS: All right. Thank you. Does anyone else from the employers wish to say anything?

PN787

MR PARKES: Your Honour, Mr G. Parkes from Restaurant and Catering. We did encounter operational issues with the schedule last year, we had a number of employees enquiring with our members about their entitlements under this provision and there was certainly ambiguity with our advisers providing advice in relation to the clause and I indicate to the bench that our members are currently subject to a national hospitality audit by the Fair Work Ombudsman and we’re concerned fi the ambiguities or loopholes identified by an Australian Business Industrial are not rectified it’s possible a judge of the federal circuit court may interpret the current provisions differently to what the intentions were so we strongly support for variations being made. Thank you.

PN788

JUSTICE ROSS: All right. If there is no one else we might go to our union partners.

PN789

MR SHEEHAN: If I could just make a final comment, President?

PN790

JUSTICE ROSS: Yes, certainly Mr Sheehan.

PN791

MR SHEEHAN: We probably support the position put up by Business SA and the AHA. We haven’t encountered any issues and I said that in my opening remarks. We would rather leave it undisturbed but if there is clarification required we would say that a statement should be issued by the full bench to indicate what the intention was in relation to payment issues, for example in relation to casual employees we firmly believe that if a casual employee was not rostered to work, either because they were not rostered to work or because they were not rostered to work because they used their entitlement under sub-clause A that they would not be entitled to payment for it and I think that was the concern that has been raised and that’s certainly our understanding of how it applies under section 116, we will leave it at that, sir, thank you.

PN792

JUSTICE ROSS: Thank you, Mr Sheehan. Look, can I raise, speaking for myself, an apprehension I have about the debate that we’ve been having and it’s this, that I’m concerned that if we were to make a variation which in effect puts a gloss on or interprets sections 114, 115 and 116 of the NES. I’m concerned about that for two reasons. One, I don’t think there’s been any debate really about how those provisions operate in respect of casual employees. Secondly, whatever we say about that is not going to be determinative of the question. Ultimately a court will determine what those sections of the Act means. We are not able to make an award provisions that derogates from them, so even if we were to accept what’s said about their application or otherwise to casual employees in relation to payment that would not determine the question. It would avoid you being prosecuted if the Ombudsman took a different view, indeed if the circuit court took a different view. It might lull you into a false sense of security that then exposes you to prosecution which was I suppose behind the concept of a note which simply refers you to the provisions of the NES without the gloss of saying what they – how they ought to be interpreted. But look, let’s at this stage go to the union’s position. Mr Story, it might be convenient to start with you and see if any of your colleagues have a different view.

PN793

MR STORY: Thank you, Deputy President. Look, our view as SA unions we support the positions which have been put by the SDA and by United Voice, we will speak to those in a minute but I can indicate that we support those views. On behalf of the MUA who we appear for we note paragraph 24 of Commissioner Hampton’s reports simply summarises the position of the MUA which is that in the absence of any cogent evidence that the awards that affect them aren’t operating effectively, they should continue without being amended. From an SA Unions point of view we support the recommendation at the end of Commissioner Hampton’s report, essentially that the schedules be rolled over and any concerns that might arise about the operation of those schedules be dealt with in 2014.

PN794

Perhaps just in conclusion, it may be a relevant consideration of the full bench that most of the employees in – well, sorry, the largest group of employees in South Australia are subject to these part time holiday provisions in fact within the state industrial relations system and they include employees in areas like corrections, police, residential care, hospitals, bus and tram drivers, a whole series of emergency (indistinct) staff in water, power and so on. They have been operating under a scheme of arrangements that reflects the original schedules that the full Commission looked at last year. They have done so without any concerns or ambiguities arising, certainly none of the unions reported any problems with those operations and we would not really be of a mind to reopen that whole issue in relation to state public sector employees. If the Commission pleases.

PN795

JUSTICE ROSS: Thank you. United Voice. Ms Harrison?

PN796

MS HARRISON: Thank you Mr President. In relation to the proposals that have been put forward, particularly in relation to the proposal brought in by the Australian Industry Group, United Voice has very large concerns that the proposal will actually cause more problems than the issue that has been acknowledged to be run by the Restaurant Catering Association. If I could just draw your attention to for example the hospitality industry general award and to the register and licensed clubs award. In South Australia we have a specific schedule that relates to South Australia. The definitions of casuals and part timers are significantly different than those contained in most of the other – in most – in the remainder of the award and any of the other modern awards to the point where we have casuals that work regular and systematic hours of work. We would say that they would be picked up by the proposed wording in the Australian Industry Group’s proposal where it talks about ordinary hours of work.

PN797

It’s my understanding that the purpose of the clause as drafted by the Australian Industry Group was to exclude casual employees, so I’m not sure that it serves the purpose that’s been put forward to serve. That said we don’t agree that there is any ambiguity for there to be varied. We would say that the clauses have operated as intended. We have heard from this – we have heard from the Australian Business Industry Association that they haven’t got any identified examples, I understand that that’s the same for the Australian Industry Group. I acknowledge the comments made by the Restaurant and Catering Association.

PN798

Likewise we have many inquiries from our membership about how those schedules operated but we were able to provide advice in relation to those and we don’t – as the bench has pointed out we have – there hasn’t been any disputes raised to our knowledge in the Fair Work Commission with respect to the operation of those provisions in South Australia and certainly we have not raised any issues as one of the main unions that covers employees who would have worked on the two identified part public holidays. So if the Commission pleases it’s United Voice’s view that the award should just be varied to change the year as proposed in our initial letter to the Fair Work Commission and we put to the Commission that those schedules shouldn’t be amended as proposed.

PN799

JUSTICE ROSS: Thank you, Ms Harrison. Mr Blairs.

PN800

MR BLAIRS: Thank you, your Honour. The position of the SDA is essentially the section 160 of the Act which is the section of the Act which this application falls under requires a two part process, firstly to identify whether an ambiguity or uncertainty exists and secondly to determine the appropriate wording to rectify that ambiguity or uncertainty. The Fair Work Commission and its predecessors have set a fairly high benchmark in relation to what constitutes an ambiguity or uncertainty that would enliven the Commission’s powers to actually step in and vary wording and we would suggest that the extent of the evidence that has been put forward to this point, which is that there were some inquiries made would fall short of that fairly high benchmark and we would certainly be of the view that there are no special circumstances that would be applicable to this particular case that should encourage the full bench to depart from its usual high benchmark in relation to rectifying ambiguities or uncertainties.

PN801

In relation to the second component determining appropriate wording to rectify it, we would suggest that it is paramount that the wording that is adopted should not create additional ambiguities or uncertainties or should at the very least rectify the ambiguities or uncertainties that have been identified and we would suggest that the proposed – that the new proposed wording probably does neither of those things. So we would probably have some ongoing concerns with the wording, even if that first portion of the test was met and I think it’s probably worthy of also pointing out that there seems to be some misconception around identifying the ambiguity or uncertainty that if an award says that X is not the case then the opposite must therefore be the case and I don’t think there is any award interpretation that would suggest that is correct.

PN802

Where the agreement says an employee who is not rostered to work between seven p.m. and midnight would not be entitled to another day off doesn’t suggest that an employee who is rostered will be entitled to another day off. I think if the unions had tried to run that argument to court that the opposite of a particular clause must be true, if you simply take the word “not” out would be laughed out of court. So I think the identified ambiguity or uncertainty I think is predicated on a misnomer and for those reasons we don’t think the first part of the test is met and in relation to the appropriate wording I would suggest more work needs to be done.

PN803

JUSTICE ROSS: All right. Mr Borg.

PN804

MR BORG: Thank you, your Honour. I would just simply - - -

PN805

JUSTICE ROSS: You thought we’d forgotten about you? I’m sorry?

PN806

MR BORG: I’m sorry, what was that?

PN807

JUSTICE ROSS: No, I thought you must have thought I’d forgotten about you, but - - -

PN808

MR BORG: No, no, no, I know your Honour is quite aware of my presence. I would just simply say that I fully endorse what the unions have said and further I would adopt as my own submission the comments your Honour has made about section 114 and in the light of those things that have been said I don’t think there’s much value in adding anything further.

PN809

JUSTICE ROSS: Very well, thank you. Is there anything anyone else wishes to say in relation to this matter before we adjourn to consider our position?

PN810

COMMISSIONER HAMPTON: Just before we do that. Mr Smith, just a couple of issues about AIGs draft that I raise. Effectively there are two amendments that are proposed. Firstly the deletion of the words which are said to be the cause of the problem, that is, “Other than an employee who has exercised their right in accordance with clause X.1A.” For my part at least that is designed to reflect the operation of the national employment standards so whether that’s removed or not the national employment standards will still have work to do. But leave that aside for a moment. The other change is to delete the concept of not being rostered to work and substitute “in lieu thereof whose ordinary hours of work do not fall”. I just wonder what you see as the effect of that substitution.

PN811

MR SMITH: Commissioner, the issue is explained in the ABI submission that it really goes to that very ambiguity, but similar to what ABI and some of the others have said we cannot identify any tangible example of where this problem has arisen, but we do believe as we did prior to last Christmas that the wording we proposed is clear or clearer than what’s the current wording in the schedule says. But I’m not sure that I can take it much further than that, it really is the very issue that’s set out in the ABI submission and the two alternative interpretations are set out there.

PN812

COMMISSIONER HAMPTON: All right. But my only observation would be that the expression, “whose ordinary hours do not fall”, might be considered to be proposed ordinary hours or rostered ordinary hours or alternatively it might be considered to be the actual order hours and of course you’d have a different result depending on what view was taken about that, because if the reason that the ordinary hours did fall between seven p.m. and midnight is because the employee had exercised their right and that would itself create a problem for the national employment standards.

PN813

MR SMITH: Commissioner, what we were looking at with that wording is the usual ordinary hours, the ordinary hours in our view are a tangible thing, they’re not the usual hours, they’re not the customary hours as such, they are the ordinary hours that are set within the spread of hours usually in the relevant award, so that concept as numerous courts and you know even during that reasonable hours case years ago, you know that concept has a particular industrial meaning and that’s the industrial meaning that we had in mind in using that construction.

PN814

COMMISSIONER HAMPTON: So is it like – should it be interpreted as being his ordinary hours would not otherwise have fallen between seven p.m. and midnight or something like that?

PN815

MR SMITH: It’s really those – yes, those ordinary hours that don’t fall, so you know an employee other than a casual that’s working ad hoc hours, but a full time or part time employee will have ordinary hours on that day. Well, they won’t necessarily have ordinary hours on that day but a full time employee who works five days and a public holiday falls, we’re really talking here about whether the ordinary hours of work fall during that period or not and that’s where this ambiguity potentially arises.

PN816

COMMISSIONER HAMPTON: All right, thank you, Mr Smith.

PN817

JUSTICE ROSS: If there is nothing further I propose to adjourn and reserve our decision. We are conscious of the need to get this matter resolved as quickly as possible. We will make the order that we referred to earlier in respect of the two awards that were discussed at the commencement. We will make that later today and we will endeavour to issue our decision in respect of the balance of matters as quickly as possible. Thank you very much for your assistance, we will adjourn.

<ADJOURNED INDEFINITELY [12.46PM]