TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1050850-1
JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT
SENIOR DEPUTY PRESIDENT HARRISON
s.160 - Application to vary a modern award to remove ambiguity or uncertainty or correct error
Application by Australian Trainers' Association
Horse and Greyhound Training Award 2010
[MA000008 Print PR985118]]
10.28AM, MONDAY, 27 OCTOBER 2014
Continued from 25/09/2014
THE PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN MELBOURNE.
Reserved for Decision
JUSTICE BOULTON: Good morning and apologies for the delayed commencement of these proceedings due to some technical problems with the video conference facility from Melbourne. Can we have the appearances, starting with you, Mr Lee in Melbourne?
MR W. LEE: Thank you, Commissioner. Lee, initial W., from the Australian Trainers’ Association if it pleases the Commissioner for the applicant.
JUSTICE BOULTON: Thank you.
MS J. GHERJESTANI: Gherjestani, initial J., for the Australian Workers Union.
MS B. HARDING: Ms Harding, initial B., Solicitor, I seek leave to appear on behalf of Racing New South Wales, Racing Queensland and Racing Wagering W.A and I have with me, Mr Keith Bullock from Racing New South Wales instructing.
JUSTICE BOULTON: You’re seeking permission to appear as legal representative or you’re seeking leave for those people to, as it were intervene, as it were?
MS HARDING: Leave to appear as legal representative for those parties which we say are interested parties in the application.
JUSTICE BOULTON: Is there any objection to Ms Harding’s application for permission to appear?
MS GHERJESTANI: No, your Honour.
JUSTICE BOULTON: Mr Lee.
MR LEE: No, your Honour.
JUSTICE BOULTON: We will grant permission for your appearance, Ms Harding. Yes, Mr Lee. I think at the outset I should say that the bench takes notice of the conferences which have been held between the parties and convened by Commissioner Roe. We note the very significant progress which has been made in those conferences. We note the statement in particular of Commissioner Roe dated 6 October of this year, in which he sets out in effect the progress made in the conferences and the very large measure of agreement which has been achieved in relation to progressing the issue of apprentice jockeys.
We also note that in accordance with the directions given in that last statement outlines of submissions et cetera have been filed. That seems to be with the exception of two things, one is we’re not aware of the AWU’ written submissions but you might be able to correct us in terms of that. Also we’re not sure has the Australian Trainers’ Association, have you actually filed the actual draft award variations that you’re seeking or is it just what’s contained in the submissions which you have provided to the Commission on 23 October?
MR LEE: No we haven’t filed a draft, your Honour.
JUSTICE BOULTON: Well at some stage we’re going to have to get those draft variations just so that we can understand exactly what’s being proposed by the parties. Subject to all that, Mr Lee do you want to commence with your submissions?
MR LEE: Yes, I’d just like to say that the Australian Trainers’ Association is registered under the Fair Work Registration Organisation Act 2009. We have made an application under section 160 of the Fair Work Act 2009 to vary the Horse and Greyhound Training Award 2010 to include apprentice jockey pay rates. Apprentice jockeys undertake a range of duties for licenced race horse trainers, their employers, in the thoroughbred racing industry including stable hand and track riding duties. The duties of stable hand and track riders are covered under the Horse and Greyhound Training Award 2010. The ATA believes that the award should include apprentice jockey pay rates.
The Horse and Greyhound Training Award in clause 13.3 says, “Junior employees,” It states the following,
The minimum weekly wage to be paid to any un-apprentice employee including any probationary apprentice under the age of 21.
It fails to take into consideration bare minimum wages to junior employees for the apprentices to earn training (indistinct) applied.
The Fair Work Ombudsman have indicated to us that in their view because the jobs that are being done fall within the Horse and Greyhound Training Award that the rates of pay in that award should apply. They also say in the absence of junior rates for apprentices, a dock rate should apply. We believe that to not vary the award and include apprentice pay rates will stifle the future employment of apprentices in the industry as indicated by the statement of evidence that we’ve supplied.
A large proportion of apprentice jockeys, your Honours are young people between the ages of 15 and 21 years of age. Consequently there is a need to accommodate this section to ensure that they are all entitled to the same level of pay. Having an apprentice jockey wage rate in the award will also remove ambiguities for employers when they engage apprentice jockeys. The interested parties have all agreed that the award should be varied and that should be varied to include apprentice jockey wage rates which are the percentage of the track work riders shown in the table in the submission of 23 October. Your Honour I’d just like to leave it at that at this particular stage.
JUSTICE BOULTON: Just a couple of questions. Do you know what, as it where, provoked the Ombudsman’s interest in the award such that, that advice was given?
MR LEE: Yes, I’m the person that’s actually is contacted by many employers throughout Australia regarding what should be paid to apprentice jockeys. I was getting advice from all different sections of the racing industry of the different rates that they applied. Some were talking about using the Miscellaneous Award which triggered in me the thought that they shouldn’t be using that. Has the work that is being done is work that is in the Horse and Greyhound Training Award and therefore those rates shouldn’t apply. There was uncertainty from what should apply. There was on particular state that hadn’t reviewed apprentice wage rates since 1 August 2011. I believe that the Fair Work Act has given power to create awards that cover all industries and has such the apprentice jockey’s should have been included under the Horse and Greyhound Training Award when modernisation appeared.
It was I who contacted the Fair Work Ombudsman asking for their advice as to where are the apprentice rates, what they would be and how they would apply, your Honour.
JUSTICE BOULTON: There will probably be a number of other questions but you don’t want to say anything about retrospectivity at this stage? You’d prefer to hear what Ms Harding’s got to say or what?
MR LEE: Should the full bench determine that the award shall be varied then the issue of retrospectivity is raised. The ATA supports New South Wales submission pertaining the retrospectivity. Apprentice jockeys were not paid full adult rates prior to 1 January 2010. If the apprentice wage rates percentage do not apply retrospectively then there is an exposure to a potential underpayment claim. So we do support New South Wales rates in submission with regard to retrospectivity.
JUSTICE BOULTON: Perhaps we’ll hear the submissions in relation to retrospectivity and then there might be few issues because it’s a question of – are you seeking retrospectivity in terms of the rates or it is retrospectivity in relation to all the changes which will be made in relation to inserting apprentice rates and conditions into the award? To what extent are the relevant provisions of the legislation complied with in terms of any application for full retrospectivity? They’re matters that no doubt, Mr Harding’s going to deal with and maybe we’d like you views on all those matters at some stage. We might proceed to hear the other parties and then we’ll come back to you, Mr Lee.
MR LEE: Thank you, your Honour.
JUSTICE BOULTON: Ms Gherjestani to you want to make your submission now?
MS GHERJESTANI: Yes, your Honour. Your Honour the AWU did submit its submissions with the Fair Work Commission on 24 October, on Friday. We do not oppose the variation of the Horse and Greyhound Award.
JUSTICE BOULTON: I haven’t got it. Have you got a copy of it?
MS GHERJESTANI: Yes, I do. It’s on the website.
JUSTICE BOULTON: We might just get a couple of photocopies of it. Perhaps you can proceed.
MS GHERJESTANI: We don’t oppose the application made by the ATA to vary the Horse and Greyhound Training Award because we do believe that it removes uncertainty and ambiguity. By inserting the apprentice jockey wage rates it provides a national minimum benchmark for these young employees. However, in relation to the retrospectivity issue we believe that the variation was not intended to effect the take home or reduce the take home pay of the apprentice jockeys.
COMMISSIONER ROE: Just to make sure I understand exactly what you are saying there. Does that mean that you want to carve out in any decision about retrospectivity any rates that are higher than that that have actually been paid to employees? Or does it mean that you’re not supportive of retrospectivity?
MS GHERJESTANI: Your Honour we would like in the decision that there would be an indication that if retrospectivity applied, that the variation of the award is not intended to reduce take home pay of the apprentice jockeys.
COMMISSIONER ROE: The first.
MS GHERJESTANI: The first one. We are not opposed to the wage rates being within the award but we just are concerned that it may affect the take home pay and we want the carve out. Thank you, your Honour that’s my submissions.
JUSTICE BOULTON: I’m going to mark this submission. The submission is made – it doesn’t seem to have a date on it but - - -
MS GHERJESTANI: Your Honour, that’s my copy. The one that I’ve lodged with the Fair Work Commission which was submitted to the website on Friday has the final version. That’s just my copy without the date. If you’d like I can send - - -
JUSTICE BOULTON: We’ll mark it as exhibit AWU1.
EXHIBIT #AWU1 AWU SUBMISSIONS
JUSTICE BOULTON: You say that was provided to the Commission on the 24th.
MS GHERJESTANI: Yes it was and I did also contact your chambers to ask if they would like me to send a copy and I was advised that if we send it to AMOT that should have been sufficient.
JUSTICE BOULTON: Let us just have a moment to read it. This will repeat something that Commissioner Roe asked you but the application for retrospectivity as I understand might relate to all the changes which are being made. That would cover the rates and the conditions. One would assume that some of the conditions are new conditions and they wouldn’t have been observed so that could itself create a problem. In relation to the rates, you’re saying that you don’t oppose retrospectivity in relation to the rates so long as there is a qualification that it is not intended to result in a reduction in the take home pay of apprentice jockeys. Does that mean, as it were, into the future? Or does it mean that in the past if apprentice jockeys have actually been paid higher than the relevant rates, which would be inserted into the award that they would not need to repay any higher payment that they have received?
MS GHERJESTANI: In the past, your Honour as you’ve just outlined. From 2010 until now if retrospectivity was to applied from 2010 until now any employee who was paid above the minimum wage should not be disadvantaged.
JUSTICE BOULTON: What happens into the future?
MS GHERJESTANI: Into the future we would submit that if there was a carve out in there to support our submissions that the variation of the wage rate does not affect their take home pay. Would that be possible?
SENIOR DEPUTY PRESIDENT HARRISON: The pay their getting for work covered by the award. That’s what they mean by, “take home pay”?
MS GHERJESTANI: Yes, your Honour.
SENIOR DEPUTY PRESIDENT HARRISON: That’s the pay when you work under award.
MS GHERJESTANI: Yes, your Honour.
JUSTICE BOULTON: I’m not sure that once we make the variation we could influence things into the future apart from the variation which we’d make. Which we could if it was to apply retrospectively we could put a proviso on it that anybody who has received payments in excess of what they would have been entitled under the award as retrospectively varied would not need to repay anything over those award conditions. But as for what happens into the future the award provisions would apply and it would of course be a matter for the employers and the workers involved if they were to continue to receive benefits which were above what was in the minimum award.
MS GHERJESTANI: That’s agreeable with us, your Honour.
JUSTICE BOULTON: The AWU is not opposed to retrospectivity back to the beginning of 2010 on those terms.
MS GHERJESTANI: Yes, your Honour, on those terms.
JUSTICE BOULTON: Thank you. Ms Harding.
MS HARDING: Racing New South Wales has filed two sets of submissions in respect of this matter. The first dated 15 September and the second dated 23 October. The first set of submissions dated 15 September deals with Racing New South Wales position in relation to award coverage generally in relation to apprentice jockeys. The primary position being that we assert that apprentice jockeys are not currently covered by the Horse and Greyhound Training Award 2010. We say that when you look at the definition of track rider within the award which is defined as,
We say under that definition an apprentice jockey who is employed generally under a four year apprenticeship to obtain skills in respect to the horse training and race riding industry to proceed to get a licence to ride as a jockey, does not fall within that definition. But they are not engaged exclusively to undertake track work and that they do have established race riding arrangements with their employer. We say as a starting position that currently they’re not covered by the award.
I appreciate that there been an issue of uncertainty and ambiguity raised and the material that’s been put forth by ATA in terms of the opinion expressed by the Fair Work Ombudsman. But I’m not sure when you look at the particular wording of what the Fair Work Ombudsman has had to say, that that’s necessarily a wholesale endorsement that apprentice jockeys engaged in that four year apprenticeship obtaining those skills et cetera are covered under the Horse and Greyhound Training Award.
However, going forward we recognise that there is uncertainty and that there are different arrangements applying around Australia. There is benefit in terms of that being clarified going forward and in that respect we’ve worked the other parties to develop the definition of apprentice jockey which we support being inserted in the award going forward. In respect of the other conditions and the percentages attached then to a rate which will apply to apprentice jockey but which is equivalent to the track rider rate.
That leaves then, I think an issue of retrospectivity. Let me clarify in terms of that we’re not asserting that all of the variations should be retrospective. We are not asserting that the new definition of apprentice jockey and the variation of conditions et cetera should be retrospective. Our position, if I could describe it in short is that coverage from 1 January 2010 to today is effectively what it is but if our primary submission that award coverage doesn’t extend to apprentice jockeys is incorrect or there’s any potential that a class of apprentices may have been covered for the period, then the discounted rates should apply retrospectively.
That means that instead of full adult rates applying, if under the award from 1 January 2010 to date an apprentice jockey would have been covered in some limited classification that was never intended that full adult rates apply to those apprentice jockeys and that’s an unintended consequence of the award modernisation process. In terms of the award modernisation process, I think Commissioner Roe identified in one of his earlier statements that there had not been a lot of discussion about that at the time of the award modernisation process in relation to this award. There’s one reference to it potentially covering apprentice jockeys.
Commissioner Roe has also picked up in his statement that there was not previously a track rider rate in the old Federal Award that was used as the basis for the modern award. There doesn’t appear to be a lot of discussion material that I’ve been able to find in relation to the award modernisation process as to its introduction. So we say, as I said it’s an argument in the alternative. If we’re wrong in respect of our primary submission about award coverage or there’s potential that we’re wrong and some class of apprentice jockeys may be covered.
JUSTICE BOULTON: Yes but we’re not going the rule on that. I suppose we could be invited to rule on it but we’re not in a position to give a definitive ruling on it. It would only be tested definitively in the courts.
MS HARDING: Yes but given the uncertainty that’s been raised by the Fair Work Ombudsman opinion, if retrospectivity is not applied then there is the potential for that, as I said, unintended consequence of somebody seeking full adult rates in circumstances where it was never intended that they receive those full adult rates.
JUSTICE BOULTON: Are you aware of any claims of that nature?
MS HARDING: No, your Honour. It’s a preventative measure but if such a claim was brought there would not be the potential at that stage to deal with the, in a Federal Court proceeding for underpayment to deal with the issue that we’re dealing with in respect of this application and with the insertion of the discounted apprentice rates at this stage.
JUSTICE BOULTON: Your saying that the only thing that should be given retrospective operation would be that you’d have to have the inclusion of the definition of the jockey and then you’d have to have the wage rate provision, the table of wage rates, would you?
MS HARDING: No, your Honour. I’m not seeking that the definition be inserted because we would say that in fact varies the award to include apprentices. We are not seeking to do that for the past. Simply that the percentage rates that are being inserted in relation to apprentices, if there is potential that there are currently a class of apprentice jockeys that are covered that those percentage rates should apply to that class. So they would apply it to the track rider definition for example.
SENIOR DEPUTY PRESIDENT HARRISON: Have you provided the terms of the draft variation that would accommodate what you’re putting?
MS HARDING: No, not at this stage.
SENIOR DEPUTY PRESIDENT: It’s important for us to see that because it seems to have two parts to it. One part is almost us putting in an order assuming something to be the case then the following provisions are to apply. It all doesn’t sound right like that.
MS HARDING: Appreciate, it’s complicated.
SENIOR DEPUTY PRESIDENT HARRISON: I don’t know it’s complicated, it’s certainly novel. I was thinking I’d better understand how your submissions could be reflected in a draft order if we had it but we don’t.
MS HARDING: No. I think partly in terms of the issue of award coverage and your Honours you’ve said that that’s not something that you propose to determine in these proceedings.
JUSTICE BOULTON: I’m simply saying we couldn’t definitively determine it in any case. I mean if you press us, I mean we might need to make a decision in relation to it but what you’re saying is that the situation you say is clear but potentially is unclear because other people seem to be suggesting that in fact there could have been a different entitlement.
MS HARDING: Yes, including the Fair Work Ombudsman.
COMMISSIONER ROE: Do you take any issue with the statement that I issued on 7 August?
MS HARDING: I’m sorry, Commissioner in a particular respect or?
COMMISSIONER ROE: I thought in a general respect because we used as part of this process that statement on 7 August. Then based on that statement various discussions took place and then I made the further statement. I suppose we’re assuming that the issue wasn’t taken with the statement of 7 August.
MS HARDING: Commissioner I had understood that the statement of 7 August was, if you like, a summary of the parties positions in relation to - - -
COMMISSIONER ROE: It’s a summary of the parties position and also of some of the factual history. Certainly it’s a summary of the parties positons, I understand that but there are some summary of the history. You’ve for example have pointed to paragraph 12 for example. You made reference to that. I think you also made reference to paragraph 8.
MS HARDING: Yes. I don’t take any issue with those.
COMMISSIONER ROE: Paragraph 14.
MS HARDING: No I don’t have any issue with that.
COMMISSIONER ROE: If we look at what the ATA are proposing and if you go to their submission at point 2, 3 and 4. They set out the variations that they’re seeking.
MS HARDING: Yes and we support those variations.
COMMISSIONER ROE: As I understand it from both what the AWU have said and what the ATA say the variations in points 3 and 4 and five would operate from the date of effectively any decision that we made but the variation in point 2 would operate retrospectively subject to the reservation that the AWU have expressed about not reduction of take home pay. Is that essentially what you’re saying or are you saying something different to that?
MS HARDING: No, Commissioner Roe that’s essentially what I’m saying. So that it is in respect of 2, the percentage variations in relation to the rates should apply retrospectively. Your Honour, what I’m trying to propose is a fix for an unintended consequence that now seems to be raised by the views expressed by the Fair Work Ombudsman. I think the variation fixes the issue going forward but that’s still leaves us with the issue with respect to the past.
In terms of the statutory basis this application has been made under section 160 and as set out in our second set of submissions dated 23 October, we’ve set out the statutory basis for determining that the variation apply at an earlier date. Under section 165 and also similarly under section 166. That is where the determination is made under section 160 which deals with variation to remove ambiguities or correct errors and the Commission is satisfied that there are exceptional circumstances that justify specifying an earlier day. The Racing New South Wales submits that there are exceptional circumstances in this case that would justify applying the rates retrospectivity because it would be to correct an error which has resulted in the potential for apprentice jockeys, if any class of them is currently covered by the award, to then seek payment of full adult rates.
That’s and unintended effect arising out of the award modernisation process. It certainly wasn’t part of the submissions at the time. We would say that it brings it within the definition of exceptional circumstances. We’ve set out in the submission a number of Commission decisions in which variations have been made under section 160. We’re determined to apply from an earlier date back to 1 January 2010.
COMMISSIONER ROE: I find it obviously difficult to see that it was an error. It seems to me if you look at the decision that this particular full bench made in the apprentice matter, it doesn’t seem to be an error. That is the inclusion of apprentices within the award doesn’t appear to be an error particularly if you look at the issue of the history of how the awards changed. The insertion of track rider rates in the modern award and the definition of stable hands doesn’t exclude apprentices. I think it’s hard to say and I’m raising these matters so you’ve got the opportunity to respond to them. I think it’s hard to say that the full bench in making the award made an error. I think to the extent the apprentices were included in the award that was decision of the full bench in making the award.
It might be possible to argue that there’s some ambiguity about the fact that apprentices are included in the award, they’re exempted from junior rates but there’s no definition of the rates that should be paid. In that sense there might be said to be some ambiguity or uncertainty about the rates that should be paid. I personally not particularly persuaded by the argument that there was error. I’m only raising that to give the opportunity to respond to that.
MS HARDING: Commissioner I was not involved in the award modernisation process at the time in relation to this award so I can go on the material that’s publicly available. In that material there does not appear to be, that the full benches attention was drawn to the issue of coverage of apprentices or rates for apprentices. That certainly within the industry and across the various states at the time, apprentices were not being paid full adult rates. There are different arrangements in different states but they were certainly receiving discounted rates.
So it seems to be a fairly incredible step then at that stage to move to full adult rates applying to them. It may take your point, it may be that it was ambiguity or uncertainty in terms of the rates if coverage was intended that the error then or the ambiguity arose in respect of the reference in the junior rates to un-apprenticed juniors. It’s that, if you like, factual history of the circumstances that applied to apprentice jockeys in the industry prior to 1 January 2010 then what would have been a very significant change going forward from that date and we would say not an intended consequence of the award modernisation process. That leads to a grounds of submissions about error or ambiguity.
JUSTICE BOULTON: If there is to be retrospectivity, we don’t’ really know, do we exactly what these apprentices have been paid? So even if we were to insert back to 2010 the new scale it could be that some people will have claims of underpayment and overpayment on the basis of those scales. We simply don’t know, do we?
MS HARDING: That’s correct, your Honour and it could be, it’s not a perfect solution but it’s better than an underpayment claim against full adult rates. It’s why I say the coverage should not be changed retrospectively.
JUSTICE BOULTON: In relation to your full adult claim, that’s only on the basis that if as it were you were wrong in terms of what you’ve put because your primary submission is that these apprentice jockeys weren’t covered by this award. In fact they were paid under a different award and presumably they were paid correctly under that different award so that they wouldn’t have had a claim under this award for the full adult rate.
MS HARDING: That’s correct, that’s the primary.
JUSTICE BOULTON: Were as if we vary it retrospectively and they weren’t getting the level of payments which would now be prescribed then there definitely would be a claim that could be made.
MS HARDING: If the coverage is not varied retrospectively it remains as it is. So the new definition et cetera is not put in coverage remains as it is with the definitions then that primary argument is still available in those circumstances. It’s only if that primary argument fails and the view is that the current language of the award does extend to cover apprentice jockeys that then the issue of what they should have been paid arises. That’s where the full, if you like, detriment of the full adult rate would then hit the particular employer.
JUSTICE BOULTON: Just going back on a point which I raised. I’m not sure we could make the rates retrospectively, retrospective of an operation for the rates if we didn’t actually put the definitions that the rates operate according to have that same operative effective goes back to what Harrison SDP was raising with you that until we actually see exactly in draft variation form what you’re proposing it’s difficult to sort of understand precisely what the effect of it all might be.
I don’t think you’ve addressed this yet. The qualification or the protection that the AWU seeks to have included in any retrospectivity what’s your position on that? Firstly what’s your understanding of the protection? Secondly what’s your position on it?
MS HARDING: My understand of that discussion, your Honour was that in the past, if retrospectivity is applied, I understand the AWU to be asserting that if somebody has received higher take home pay than the discounted rates that were then apply, they’re not to be disadvantaged, they’re not to be required from able to pay that amount back to their employer. We certainly wouldn’t have any difficulty with that.
SENIOR DEPUTY PRESIDENT HARRISON: That would only relate to amounts paid pursuant to the award or any over award payments in relation to work done under the award. It would not relate to race riding arrangements.
MS HARDING: That’s correct, race riding arrangements.
SENIOR DEPUTY PRESIDENT HARRISON: I should make it clear. You would not be seeking to use for the purposes of offset, race riding arrangement payments?
MS HARDING: No. I don’t think that that’s available under the structure. The race riding contracts, if you like – - -
SENIOR DEPUTY PRESIDENT HARRISON: Sit completely outside and so therefore an employer could not bring those payments to their aide in an offsetting issues.
MS HARDING: No, separate contract, different parties and that would not be available as an offset.
SENIOR DEPUT PRESIDENT HARRISON: So to that extent we would have to understand what is meant by the term being used, “take home pay.” It would be read in light of that exchange we just had.
MS HARDING: Yes, I had not envisaged that racing riding arrangements at all were any part of the carve out.
JUSTICE BOULTON: Can you just clarify for us in making these submissions who you’re making the submissions for. We know Racing New South Wales.
MS HARDING: Yes and I’m also making the submissions today on behalf of Racing Queensland, Racing and Wagering WA support the submissions, they’re in a slightly different position because they have different arrangements in WA where they are the employing body and their jockey’s undergo a traineeship rather than an apprenticeship. So it’s a different arrangement in WA. I understand that Racing Victoria also supports the submissions. I think, Ms Fredericks from Racing Victoria was planning to attend this morning but there’s some wild storms down in Melbourne. I understand of course to have some difficulties.
JUSTICE BOULTON: Yes we’ve got an email dated today indicating that Racing Victoria will not be appearing but supports the submissions of Racing New South Wales.
MS HARDING: The concern I suppose of the racing organisations who have regulatory responsibility in the industry and have a role in, if you like, a monitoring arrangements with apprentice’s within the industry in making sure that they’re looked after. The concern is that that potential for claims in the past and no none of those have been raised at this stage but given the context of the variation now being sort and what’s being proposed to be included in the award that that squarely raises the issue of retrospectivity. We submit that it’s something that it would be appropriate to deal with in the context of this application.
JUSTICE BOULTON: Thank you. Mr Lee.
MR LEE: Yes, your Honour.
JUSTICE BOULTON: Did you want to make any further submissions about any of those matters including the retrospectivity issue?
MR LEE: Only that, your Honour that if the award is varied and there does become the issue of an under payment in wages from 2010 to current. If the Commission were to actually rule on it. If the Commission were not to rule on the evidence that we or the wording that we’ve got from the Fair Work Ombudsman then I believe the issue would then be to vary the award as of today or whenever the Commission deems. If they determine that the way. The issue that is in the past will stay in the past unless one of the apprentices decides that, “I should have been paid the adult rates” and therefore brought forth a claim and with that claim actually was able to convince that they should of applied from the word go.
It really depends on what the full bench decides as to whether we really need retrospectivity. Certainly it is required on the grounds of uncertainty if you were to rule that in light of what the Fair Work Ombudsman have said is that, “it does apply from 2010,” the modernisation of the award. If you’re not ruling on that then I believe that you’d be able to determine that the awards will be varied, if that’s what the full bench determines and it’ll be from a date that the full bench decides and there would be no retrospectivity at all. I’m sorry to confuse it but that’s the positon where we stand.
JUSTICE BOULTON: You’re not aware of any complaints from apprentice jockeys seeking payments back dated as it were?
MR LEE: No there are no claims but the fear is which is rightly raised Racing New South Wales and the racing bodies is that there potentially could be if it was ruled that they applied from the modernisation. If we don’t get that ruling then I think the issue then, so to speak, goes away. It’s not there. If it’s not ruled then a potential apprentice that wishes to seek full adult wages for the period will have to then go and prove that it did, that if the Fair Work Ombudsman’s words to the association is correct. I think in moving forward I think the interested parties have all agreed to clear up the uncertainty and moving forward and having a minimum national wage for as a bench mark. I believe that that is where it stands going forward. The issue with regard to retrospectivity really only becomes an issue if the full bench determines that the adult rates apply from the 2010, your Honour.
JUSTICE BOULTON: Thank you, Mr Lee. Ms Gherjestani did you want to say anything more?
MS GHERJESTANI: No, your Honour.
MS HARDING: Your Honour if I could just briefly just clarify one thing. I’m not seeking or inviting the full bench to make a determination on past award coverage.
COMMISSIONER ROE: We understand that.
JUSTICE BOULTON: Thank you for those submissions. As I indicated at the outset of the proceedings the full bench has noted the very significant progress which was made in the series of conferences convened by Commissioner Roe and in the discussions between the parties in relation to this matter. We would indicate that the award will be varied to include the apprentice provisions which have been the subject of agreement between the parties. That will include all those provisions relating to definitions and conditions of employment of apprentices.
The only matter on which we cannot announce any decision at this stage is the question of the relevant operative date for the changes. Before we were to reach a decision on that we would like to see the award variations which are being proposed by the parties. We would like you within seven days of today to forward to us the actual award variations which the parties are proposing and we would like you to do that, Ms Lee in conjunction with the AWU and Racing New South Wales.
Hopefully exactly what you’re seeking including any proviso in relation to the retrospective operation of any variations which the AWU has flagged. That could also be included either in the award variation or as a statement which the parties are seeking that the full bench make in relation to the matter. We’d like you to do that within seven days so that we can give some further consideration to what’s been put by the parties today in relation to the potential retrospectivity in relation to any award variation.
On that basis completes the proceedings. Thank you again for the submissions that you’ve made. The Commission will consider what’s been put, we’ll consider what you provide by way of those draft variations and we’ll announce our decision in this matter in due course. Until then the Commission adjourns.
<ADJOURNED INDEFINITELY [11.31PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #AWU1 AWU SUBMISSIONS PN79