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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 26240-1
VICE PRESIDENT WATSON
AM2010/35
s.160 - Application to vary a modern award to remove ambiguity or uncertainty or correct error
Application by Australian Childcare Centres Association
(AM2010/35)
Children's Services Award 2010
(ODN AM2008/77)
[MA000120 Print PR991088]]
Sydney
2.04PM, WEDNESDAY, 28 APRIL 2010
PN1
THE VICE PRESIDENT: Can I have the appearances please, commencing in Brisbane.
PN2
MR L.E. MOLONEY: Yes, your Honour, if the tribunal pleases, Moloney, L.E. of Livingstones Australia. I seek permission to appear as agent on behalf of Australian Child Care Centres Association. I also seek to enter an appearance on behalf of Australian Community Services Employers Association, appearing with me is MR C. HARDY, executive officer, Australian Community Services Employers Association, and MS Z. MACINTOSH, a consultant with Livingstones Australia.
PN3
THE VICE PRESIDENT: Thank you, Mr Moloney. And in Sydney.
PN4
MR W. ASH: Yes, your Honour, if the tribunal please, Ash, initial W, for the LHMU.
PN5
THE VICE PRESIDENT: Thank you, Mr Ash. Permission is granted, Mr Moloney.
PN6
MR MOLONEY: Your Honour, we can't see the tribunal. We've got a very clear picture of your associate.
PN7
THE VICE PRESIDENT: I can assure you she's not acting as a ventriloquist.
PN8
MR MOLONEY: Thank you, your Honour.
PN9
THE VICE PRESIDENT: It needs to move a bit. That might be better.
PN10
MR MOLONEY: That's it. Thank you.
PN11
THE VICE PRESIDENT: I'm going to call on you, Mr Moloney, so it's important that I can see you.
PN12
MR MOLONEY: Thank you. Your Honour, the application by the association is obviously supported by ACSEA. They're the two major employer organisations involved in this industry, registered under the act. The application was filed on 12 March and we set out the variation that we've required and we were seeking, and also some reasonably comprehensive grounds for reasons. They were supported by our submissions which we filed on 31 March, effectively giving some of the history to this matter as to how this provision - how it came about within the pre-reformed federal awards; they're the awards that applied in Victoria and the ACT.
PN13
I think what was intended by the parties was that part of that provision in the Victorian award was to be replicated by the board. For a variety of reasons it didn't seem to make - it got ruled that way, but made it into the modern award in a different format. Effectively the provision that we're seeking is to apply the first aid allowance where employees below level 3 classification level who are appointed to provide first aid to children under their care are paid a separate allowance, an additional allowance, for that work and that responsibility. That was determined by a full bench of the former AIRC arising out of what I might phrase as the pay work value cases in the children services industry in 2005 and 2004.
PN14
Those provisions, as I say, made their way into the pre-reformed federal awards, by way of arbitration, I would say, and they haven't been replicated in full in the modern award. What has happened as a result of the provision that appears at clause 15.4 of the modern award is that that allowance is worded so that it does apply to employees at level 3, and we would submit that it was never intended that that allowance should apply to employees at level 3 because, as a result of the full bench decisions from 2005, their wage rate contemplates remuneration for that responsibility.
PN15
In other words, as part of their certificate III and (indistinct) qualifications, children's services employees must have a first aid certificate and acquire that first aid certificate; whereas employees below level 3, it's an optional issue. They don't have to have it and that's why they get paid the allowance. So we say that was an unintended consequence of the modern award.
PN16
THE VICE PRESIDENT: Were there any changes between the exposure draft and the final version in relation to this wording of the first aid allowance clause?
PN17
MR MOLONEY: I don't believe there were, your Honour.
PN18
THE VICE PRESIDENT: I'm just wondering how the error occurred and wasn't detected earlier.
PN19
MR MOLONEY: We had some fairly detailed discussions and negotiations between ourselves, our organisations and the LHMU, and we effectively had what came up to be a matter of agreed, not-agreed issues in the exposure draft. Unfortunately, and regrettably, the first aid allowance was overlooked by, I think, all of us and it didn't actually get flagged before the full bench as an agreed issue. Hence it was left to, I guess, the discretion of the commission to include that provision in the award. We say that was an unintended consequence which I think is what we've said in our actual grounds and reasons attached to the application. We say the history of that merely says that it should not apply to level 3.
PN20
It was something that we say was in our initial draft award and if I can refer your Honour to paragraph 4.13 of our application where we say that the draft award submitted by our associations in July 2009 amended the commission's exposure draft to reflect the agreed, not-agreed provisions of the award, and the first aid allowance clause was inadvertently not identified as an agreed matter by the parties, hence the draft award presented to the bench didn't properly reflect our true positions with respect to the first aid allowance. I think that's where, unfortunately, the error has occurred. We call it an error. It's an unattended consequence which means that that allowance now applies where it probably shouldn't, in our submission.
PN21
THE VICE PRESIDENT: Yes.
PN22
MR MOLONEY: The rectification that we seek is that. I understand the position of the LHMU is that they're not opposing, and certainly don't disagree with, our application for that clause. I certainly understand Mr Ash will speak for himself, but the LHMU are seeking an additional clause to go into the clause 15.4 as well, and I'll leave Mr Ash to respond to that. Can I say this, your Honour, we say, as we've said in our submissions and the outline that was filed earlier today, that it would be proper for the commission to do that. We would draw the commission's attention to our submissions from earlier today, the outline of submissions. Certainly the parties have standing to do this. We rely on the provisions of the act as it has an interrelationship between section 157 and the modern awards objective at section 134, particularly 134(d), (f) and (g).
PN23
We would say the approach that we have adopted to this matter is consistent with a decision of the tribunal as it is currently constituted. I think it was a decision last Friday in relation to the supermarket trolley collectors where the tribunal detailed the relationship between the act provisions, and there is also a decision recently by his Honour Watson SDP on 16 April in dealing with the Building and Construction General On-site Award which related to an application to vary that award in relation to the frequency of payment of wages. Again there, his Honour detailed the relationship between the provisions of the act, namely section 160, to remove ambiguities or errors, and also the interrelationship then between section 157 and 134.
PN24
We say that the application that we make is consistent with the views expressed by the tribunal as it is currently constituted and also by Watson SDP in the building and construction matter. It is also, we say, consistent with the modern awards objective, as I say, at 134(d), (f) and (g), particularly in relation to the application of the allowance itself. The allowance itself is not insignificant, your Honour. It's $7.20 per day per employee, and every room in a child care setting or centre has one of these persons. So it becomes a very expensive exercise and to that extent we say that it's squarely within 134(f), which means that it's an increased employment cost which we say should not have happened, and it's an inadvertent consequence of the terms of the modern award and therefore should be rectified.
PN25
We do say there would be no prejudice to any employee or employer as a result of this, because what it reflects is the pre-existing situation. On that basis we would rely on the submissions that we've filed, your Honour, and seek that the application be granted with effect from today. Can I just say this finally, in relation to the LHMU application, what it seeks is the inclusion of clause 19.5.1 from the pre-reformed Victorian award, and we say that that's likely to cause some confusion because the way that its worded, it only applies in that award to employees in Victoria, and what the LHMU have done in its proposal is to remove the reference to Victoria and make it have general application. That would have general application across Australia and we say that's not consistent.
PN26
It wasn't part of the modern award, it never formed part of it, and was never sought. To that extent we would say there's no proper application before Fair Work Australia for that particular part of the clause that the LHMU seeks, and for that reason we oppose it. Unless the tribunal has any questions, those would be our submissions, your Honour.
PN27
THE VICE PRESIDENT: Yes, Mr Moloney. There is just the single outline of submissions dated 28 April?
PN28
MR MOLONEY: That's right.
PN29
THE VICE PRESIDENT: Yes. I'll mark that outline exhibit M1 in these proceedings.
EXHIBIT #M1 OUTLINE OF SUBMISSIONS BY MR MOLONEY DATED 28/04/10
THE VICE PRESIDENT: Mr Moloney, it appears in your application, where there are quite detailed grounds, you were relying at least primarily on section 160 of the act, and in the outline of submissions there seems to be a primary reliance on section 157 of the act. What is your current position?
PN31
MR MOLONEY: Your Honour, we're not trying to, as it were, have an each way bet, but section 160 really refers to removing ambiguities or errors, and our reference in our outline of submission is right. I think it really attempts to draw the tribunal's attention to the relationship between 157(1)(a) and the provisions of 134. But our primary reliance would be on section 160, your Honour, and then a reference back to 134(1)(d), (f) and (g).
PN32
THE VICE PRESIDENT: Yes, that doesn't arise if there's an error.
PN33
MR MOLONEY: No, I think the application still - the tribunal's consideration must still be consistent with the modern award's objective and we say this application meets that objective in those three subparagraphs.
PN34
THE VICE PRESIDENT: Yes. It's a higher test under section 157 than simply meeting the objective.
PN35
MR MOLONEY: Yes.
PN36
THE VICE PRESIDENT: Thank you, Mr Moloney. Mr Ash.
PN37
MR ASH: Thank you, your Honour. Your Honour, if this is to be an application under section 160, we would agree that an error has occurred in relation to the content of clause 15.4. In the submissions received this afternoon from Mr Moloney, at paragraph 7 he states that the variation sought is consistent with the provisions of the pre-existing federal pre-reform awards. In paragraph 9 it is stated that the LHMU is seeking to include an additional provision. Your Honour, you simply can't be seeking something that consistent with the provisions in the pre-reformed federal award which includes that extra amendment that we've proposed and say that we're seeking something additional, when in fact it's the full clause and consistent with that clause.
PN38
Your Honour, I note that Mr Moloney took you to - and it's extracted in paragraph 7 as well of his submissions - section 134(f) objectives, "not increasing employment costs". Your Honour would note that the first aid allowance clause in question is only where the employer appoints a particular employee to act as that first aider, and I think in most child care rooms you will find that there is at least someone above level 3, if not at level 3, working in those rooms with the appropriate qualifications. In any case, the clause is actually not going to have very much work to do in a few years' time. The current reforms are such that there will be a minimum certificate III level qualification in the industry, and of course all of those employees will be required to have first aid training as part of their certificate III qualifications as discussed by Mr Moloney.
PN39
Your Honour, all the LHMU is seeking to do is correct this error fully, and that is to reflect, and be consistent with the first aid provisions in that principal pre-reformed federal award on which Mr Moloney is relying, the Children's Services Victoria Award 2005. That award, and some of the history - even taking some of that history, but that award provides for two types of first aid allowance, one being first aid allowance where an employee is required to administer first aid to children, and the one that we're asking for the retention of, and that's where an employee is appointed to act as a first aider and administer first aid in respect of their work colleagues.
PN40
This is a provision that, your Honour, we submit is not additional, that it's consistent with the full provision that I believe was the intention of the parties for inclusion. Mr Moloney disagrees. We're not opposing their application but we're seeking that the position be fully rectified.
PN41
THE VICE PRESIDENT: What about the natural justice issue, if I can call it that, that the additional clause that you seek to add is not part of the application, and therefore may not have been able to be considered and dealt with and responded to by everyone bound by the award. It may be many others, other than the applicants in these proceedings. Is it something for nature justice reasons it should appropriately be dealt with by way of a separate application?
PN42
MR ASH: I don't think so, your Honour. I believe that this is correcting an error. It's not additional. Our submission, which provided our different position, was provided shortly after Mr Moloney submitted his application. Since that time, Mr Moloney has also provided further submissions, as have other parties, and they had the ability to consider the submissions of the LHMU in relation to correcting that error being the full clause from the pre-reformed federal award.
PN43
THE VICE PRESIDENT: CCIWA, for example, filed a submission dated 19 March in response to the application. Your submission was filed, I think, on 1 April. There was no provision in a directions for any written responses to counter applications or by other parties. I suppose they could have been here or they could have seen what was put and chosen to be here in that sense, but if what Mr Moloney says is that it's a position didn't apply outside of Victoria, that's correct, then where is the opportunity, I guess, apart from appearing today and reading it in a comprehensive manner for those potentially affected to respond to what you've put.
PN44
MR ASH: Your Honour, one could look at it as if it was an alternate submission from the LHMU in relation to what's being sought by the Australian Child Care Centres Association.
PN45
THE VICE PRESIDENT: And the opportunity therefore in the proceedings arises from those participating in the proceedings. What if someone looked at the original application and thought that it didn't concern them one way or the other, and didn't take any further interest in what was filed? How would they be aware of it and could there be issues that they might want to raise on their behalf?
PN46
MR ASH: Your Honour, we would say that they had enough of an opportunity and there is sufficient material on that web site for any interested parties to make themselves aware of any relevant submission well in advance of today's public hearing. Nothing further.
PN47
THE VICE PRESIDENT: Yes, thank you. I might, for consistency, Mr Ash, and not by way of grading, mark your outline of submission. It's exhibit A1.
EXHIBIT #A1 OUTLINE OF SUBMISSION BY MR ASH
THE VICE PRESIDENT: Mr Moloney, anything in reply?
PN49
MR MOLONEY: Yes, your Honour. Just briefly, I don't have a copy of the exposure draft with me, but my recollection, your Honour, was we were directly involved with Mr Ash - was that the additional provisions sought arising out of the Victorian pre-reformed award at clause 19.5.1 wasn't part of the exposure draft produced by the commission. So it wasn't there. The provision that's been sought in this submission by the LHMU is effectively a new clause in the modern award and it expands the operation of that clause Australia-wide, where it previously didn't apply. It only applied in the ACT and Victoria; didn't apply in any other state or territory of Australia. So it's a completely new provision being put into the award.
PN50
To the extent we would effectively say it is a new application and there is no such application before the tribunal. So in our view, not only do we object to it, we say it should be rejected. If the LHMU believes that it is appropriate to do that, then the option is available to them to make application, as has ACCCA made an application, but it certainly expands it and creates a new obligation under the award which previously didn't exist. I don't know about the other parties to it. The other parties may well have some view about that if they were given the opportunity, and I think that is as much as we need to say. The LHMU application or alternative submission isn't correcting an error; it's adding something new. If the tribunal pleases.
PN51
THE VICE PRESIDENT: Thank you, Mr Moloney. I'm in a position to indicate my decision in relation to this matter. The application made by the Australian Child Care Centres Association seeks to amend clause 15.4(a) of the Children's Services Award 2010, effectively by providing that the first aid allowance in clause 15.4(a) apply to employees classified below level 3, rather than those classified at level 3 or below, as provided by the current wording of the clause. I have had regard to the submissions of the parties and I am satisfied that the wording of the clause is in error and did not reflect the terms of pre-existing awards, which in turn arose from full bench decisions of the Australian Industrial Relations Commission, and that the error is one that should be remedied by making the variation sought in the application.
PN52
I note that the applicant seeks an operative date of that variation from today and I will make the determination varying the award, with an operative date of today. The LHMU in their submissions in reply sought an additional clause to be inserted, not dealt with in the application. Purely for natural justice reasons I do not believe it is appropriate that I address that matter at this stage. The processes of Fair Work Australia are to consider applications to vary modern awards and if appropriate to correct errors or otherwise to give effect to the provisions of the act. While in appropriate cases applications may be granted, I believe that it's appropriate to provide all potentially interested parties with every opportunity to address those matters, to be aware of what is sought and to make submissions.
PN53
Being made as an alternative submission in this matter, in my view, runs the risk that persons bound by the award may not be aware of the submission that's made and the variation sought and have no had a proper opportunity to address the matter. In my view it is appropriate if the LHMU wishes to proceed, for it to make a separate application in relation to that matter, and it can be dealt with fully on its merits. I will issue the determination as soon as practical, giving effect to this decision, and these proceedings are now adjourned.
<ADJOURNED INDEFINITELY [2.31PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #M1 OUTLINE OF SUBMISSIONS BY MR MOLONEY DATED 28/04/10 PN30
EXHIBIT #A1 OUTLINE OF SUBMISSION BY MR ASH PN48