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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 60-70 Elizabeth St SYDNEY NSW 2000
DX1344 Sydney Tel:(02) 9238-6500 Fax:(02) 9238-6533
TRANSCRIPT OF PROCEEDINGS
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
SENIOR DEPUTY PRESIDENT DRAKE
C No 22831 of 1999
C No 37827 of 1999
OGDENS INTERNATIONAL FACILITIES
CORPORATION (PERTH) PTY LIMITED
and
MEDIA, ENTERTAINMENT AND ARTS
ALLIANCE
Application pursuant to section 111AAA of the
Act by the company that the Commission cease
dealing with the alleged industrial dispute to
those employees sought to be covered by the MEAA
SYDNEY
10.00 AM, WEDNESDAY, 14 NOVEMBER 2001
Continued from 12.10.01
Adjourned sine die
PN243
THE SENIOR DEPUTY PRESIDENT: I think the appearances in this matter are the same? Mr Moloney?
PN244
MR MOLONEY: Your Honour, one change of appearance, your Honour, with me today is Mr G. SNOWDON, Venues Manager of Ogden IFC Perth.
PN245
THE SENIOR DEPUTY PRESIDENT: Yes, thank you. I have received from you, Mr Moloney, a statement of Mr Snowdon and the respondent's outline of submissions. Was a copy forwarded to the MEAA?
PN246
MR MOLONEY: Yes, there was, your Honour.
PN247
THE SENIOR DEPUTY PRESIDENT: All right, good. Well, I would ask if there any preliminary matters that need to be attended to this morning? This is listed for the purposes of my considering whether to make an award in the terms sought by the MEAA and now comprised in exhibit MEAA2, that is still the relief you seek, Mr Ryan?
PN248
MR RYAN: Yes, it is, your Honour.
PN249
THE SENIOR DEPUTY PRESIDENT: Yes. Mr Moloney?
PN250
MR MOLONEY: Your Honour, there is one preliminary fundamental matter. I took the opportunity this morning to check with your associate in relation to the file on this matter and my suspicion was correct, we don't actually have a dispute finding in this matter at this point in time with Ogden. That hasn't been addressed in our submissions and it is probably something that we will need to address the Commission later in these proceedings today.
PN251
THE SENIOR DEPUTY PRESIDENT: Well, I would have thought so, yes. Just a moment. Now, I think the industrial dispute that is relied upon for the purposes of obtaining the roping in award sought, is that in C number 22831 of 1999? I will just look at that. Yes, well, may be, Mr Ryan, you can short circuit this.
PN252
MR RYAN: Yes.
PN253
MR MOLONEY: We are not opposing a dispute finding, obviously, your Honour, but as a matter of precaution, we do need one, of course.
PN254
THE SENIOR DEPUTY PRESIDENT: Certainly.
PN255
MR RYAN: It may be that I should press now, your Honour, for a dispute finding to be made against the company. As you will recall, this matter has a long history in that matter 22831 of 1999, the Alliance sought a dispute finding against a range of employers in the entertainment industry, in the live theatre and concert industry, mainly in the State of Western Australia. His Honour, Senior Deputy President Polites, by a decision dated 24 November 1999 roped in to the Broadcasting Industry, Live Theatre and Concert Award a range of employers excluding Ogdens and that can be found at print S1263 where there was a small preamble by his Honour and then the order making of the roping-in award number 1 of 1999. I have a copy of this preamble order.
PN256
THE SENIOR DEPUTY PRESIDENT: Yes, thank you. I certainly have the file here in front of me. I'm just attempting to identify the document you speak of, but if you have a copy I will take that.
PN257
MR RYAN: As your Honour would be aware, Ogdens sought in matter C 1999/37827 to have the Commission cease dealing with this matter under section 111AAA of the Act. By decision of 21 March this year, in print PR902568 his Honour, Senior Deputy President Polites, rejected the company's application. So we would seek, your Honour, that a dispute be found between the Alliance and the company in terms of the log of claims contained in file C number 22831 of 1999 and the accompanying letter of demand.
PN258
The company has obviously not acceded to the demands of the Alliance, evidenced by the activities today. So we seek that under section 101 of the Act that a dispute be found in terms of the letter of demand and the log of claims attached to that file made between the Alliance and the company. If your Honour pleases.
PN259
THE SENIOR DEPUTY PRESIDENT: Again, just bear with me until I turn up the dispute finding. Yes, I now have the finding of dispute made by Senior Deputy President Polites on 12 October 1999, arising out of that round of service, one party have been served as Ogdens. What do you say about the request of the MEAA that I now find a dispute, or might I say, what I would contemplate doing is just varying the finding of dispute already made to add Ogdens to the employers, there found in dispute. Mr Moloney?
PN260
MR MOLONEY: We have no objection to that, your Honour.
PN261
THE SENIOR DEPUTY PRESIDENT: All right. Mr Ryan, I am inclined to think that I might just revisit the finding of dispute made by the Senior Deputy President and vary it to add Ogdens.
PN262
MR RYAN: Well, you have the power under the Act, your Honour, and it would seem appropriate in retrospect because the same log was served - - -
PN263
THE SENIOR DEPUTY PRESIDENT: Precisely, yes.
PN264
MR RYAN: - - - and the only reason why they weren't, at that point, added, was because of their application under section 111AAA.
PN265
THE SENIOR DEPUTY PRESIDENT: Yes. Well, I should indicate on the record, if there was any issue that arose I would be prepared to make a finding of dispute and identify that because it relates to this earlier round of service, the dispute extends beyond the limits of any one State but having said that I choose to revisit the finding of dispute made by Senior Deputy President Polites and reduced to writing on 12 October 1999 and that dispute finding will be varied to add an additional employer, that is, Ogden IFC (Perth) Pty Ltd?
PN266
MR MOLONEY: That is correct.
PN267
THE SENIOR DEPUTY PRESIDENT: Yes. The variation to that exists in finding dispute will reduce it to writing it in due course and a copy will be provided to both of you. That is you, Mr Moloney.
PN268
MR MOLONEY: Thank you, your Honour. Your Honour, we provided the Commission and the alliance with a copy of the statement of Garry Snowdon. I would seek to call evidence from Mr Snowdon in support of that statement?
PN269
PN270
THE SENIOR DEPUTY PRESIDENT: Mr Moloney?
PN271
MR MOLONEY: Mr Snowdon, do you have a copy of your statement with you?---Yes, I do.
PN272
Has that statement been prepared from information within your own knowledge?---Yes, it has.
PN273
To the best of your knowledge is that statement correct?---Yes, it is.
PN274
I tender that statement as an exhibit, your Honour.
PN275
THE SENIOR DEPUTY PRESIDENT: Yes, is the fourth attachment MEAA2?
PN276
MR MOLONEY: That is correct.
PN277
THE SENIOR DEPUTY PRESIDENT: All right.
PN278
MR RYAN: Sorry, if your Honour pleases - - -
PN279
THE SENIOR DEPUTY PRESIDENT: Mr Ryan?
PN280
MR RYAN: - - - I only have appendix A.
PN281
THE SENIOR DEPUTY PRESIDENT: You only have appendix A, do you?
****
PN282
MR RYAN: I have a statement which consists of 12 pages.
PN283
THE SENIOR DEPUTY PRESIDENT: Yes.
PN284
MR RYAN: The last page of mine is appendix A.
PN285
THE SENIOR DEPUTY PRESIDENT: All right, well, you should have a look at what Mr Moloney has there and I should indicate that - - -
PN286
MR MOLONEY: Well, I apologise for that, your Honour, but I did check the fax transmission slips.
PN287
PN288
THE SENIOR DEPUTY PRESIDENT: You might bear in mind, Mr Moloney, that the statement I have is unsigned, that should probably be attended to at some stage.
PN289
MR MOLONEY: Thank you, your Honour. I have nothing further of Mr Snowdon, your Honour.
PN290
**** XXN MR RYAN
PN291
MR RYAN: Thank you, your Honour. Mr Snowdon, you said you have made a study of the Federal Live Theatre and Concert Award, when did you undertake that study?---Sorry, as today's - I mean, having read it through, yes, and also a document provided by the state branch as well.
PN292
Just getting back to the question, you said you made a study of the Federal Live Theatre and Concert Award, when did you make that study?---That would really depend on what you mean by study, I mean, I have read it, that's - - -
PN293
Yes, when did you read it?---When we were working on the document we were preparing for the Ogden agreement that we are negotiating at the moment with our staff.
PN294
When was that, a year, a date, a month?---Well, we've been working on the document for over a year.
PN295
Yes, and this it is not hard, when did you read the Live Theatre and Concert Award?---The copy I had I would have read nearly 12 months ago.
PN296
You haven't read it since?---I've - only in pieces that have been brought to my notice during our negotiations by the State secretary in WA.
PN297
Right, but, in any event, you have read it since June 1998?---Yes.
PN298
You would be aware, would you not, after having read that that that award has been the subject of a decision of Commissioner Larkin to simplify it?---Yes.
PN299
Do you understand the concept of award simplification in the Federal Commission?---Sorry?
**** XXN MR RYAN
PN300
Do you understand the concept of award simplification?---I cannot say that I fully understand it, that's the advice I would receive from our HR manager.
PN301
So would you agree that the award is modern and up to date?---I wouldn't.
PN302
Why don't you say that is modern and up to date?---Well, it's just - in terms of us going through, preparing our document, we'd base our document on the original Perth Theatre Trust Award and a simplification of that for our local environment and - - -
PN303
Has that award actually been simplified?---Sorry?
PN304
What do you mean by the simplified Perth Theatre Trust Award?---Well, what the original Perth Theatre Trust Award, I know, where the last one dates back to the changes to '92, before that we were in negotiation with the WEA branch of the union to do an updated Perth Theatre Trust Award for various reasons.
PN305
That never took place, did it?---It didn't.
PN306
So the award you are saying, the Perth Theatre Trust Award, was last varied in 1992?---The - I think the copies on file are, yes.
PN307
Yes, all right, so you are putting to the Commission that the 1992 Perth Theatre Trust Award is more up to date than the Federal Live Theatre and Concert Award?---No, because what we were using and talking to your staff with was a draft of a new Perth Theatre Trust Award, which had a number of changes made to it in simplification and that was the document we used as a draft for our agreement that we are currently negotiated with our staff.
PN308
But that document does not exist in any legal sense at all, does it?---That - would have to refer back to - - -
**** XXN MR RYAN
PN309
Well, then I put it to you, does the so-called new Perth Theatre Trust Award, has that ever been to the West Australian Industrial Relations Commission?---The draft we're working on has not been accepted, or was not - I really can't tell you legally whether it was actually presented, it was negotiated with the union and then, for reasons that I don't fully know, it - the process was stopped but we had got down to finalisation of all but two clauses in that award, or in that new award for the Perth Theatre Trust Award.
PN310
So there wasn't even a complete document agreed, was there?---It was, except for two clauses.
PN311
Well, do you know what the word "complete" means?---Well, in - that's in the sense that you're saying: was it absolutely 100 per cent complete? No, it wasn't, there were two clauses that weren't - - -
PN312
Well, something is either complete or incomplete, isn't it?---Well, if you're arguing that you would have to say it was incomplete.
PN313
Thank you. So you seriously press your point that the 1998 Federal Award is less up to date than the incomplete draft 1992 Perth Theatre Trust Award?---Well, the agreement we're using, or have been working and negotiating - - -
PN314
So when you say "we" - - -?---Well, when I say "we" that is the - myself, the manager of the Perth Concert Hall on behalf of the management of Ogden Perth, Peter Woodward, the state secretary of the union and our staff representatives, which are made up of union and representatives, front of house, back stage of each of our venues negotiating with - on and that is the document, I'm sorry, I'm referring to.
PN315
So in fact that is the company's draft, isn't it?---It is the company's draft.
**** XXN MR RYAN
PN316
There is another draft, isn't there?---There is, yes.
PN317
Who provided that other draft?---Pardon?
PN318
Who provided the other draft?---The state secretary.
PN319
Right. So there's actually at this point agreed, is there?---We've worked through the documents and we were due to have another meeting this Friday morning, we were to have one on this Monday that had to be cancelled or postponed and we're due to meet again at 11 o'clock this coming Friday to continue negotiations on that document.
PN320
Right, can I take you to paragraph 19 of your statement?---Yes.
PN321
Where you say that you are prepared to acknowledge and recognise the Federal Award base rates, what do you mean by base rates?---Is that clause 19, sorry?
PN322
Paragraph 19 of your statement?--- Sorry, I've got a different number here. Can I have a look?
PN323
THE SENIOR DEPUTY PRESIDENT: Well, perhaps you should look at the one that has been marked as an exhibit, Mr Snowdon?---Yes.
PN324
I will hand you mine?---Thank you. Sorry, your question again.
PN325
MR RYAN: What do you mean by "base rates" in paragraph 19?---What we were referring to there is the rates in the Federal Award, to use those as the basis for our negotiations for a local agreement.
**** XXN MR RYAN
PN326
What do you know about the no disadvantage test?---My understanding that the employer at the end of the day can't be worse off financially, in terms of change of conditions, than what they would be under the current conditions that they are employed.
PN327
And that has to be the test for any agreement?---That's my understanding, yes.
PN328
What in a practical sense, is the difference then by having the company roped into the award and having that award used for the purpose of the no disadvantage test?---Sorry, again?
PN329
What is the practical differences between having the company bound by the Federal Award, or having it use for the purpose of the no disadvantage test?---Well, I think that what we're looking at is the actual conditions that are in the actual agreement that we're trying to negotiate with our staff and those conditions in some cases varying with what is in the Federal Award.
PN330
Yes, but for the purpose of allowing an agreement to be certified - - - ?---Yes.
PN331
- - - it still has to pass the no disadvantage test, correct?---Yes.
PN332
If that is the case, what is the practical difference in your negotiations, having to compare any agreement against the award by way of either being roped into it, or having it used for the no disadvantage test?---Well, I think again - I keep coming back to - is the actual conditions. Also that the union - or our staff and the WA branch of the union have also indicated to us at the moment that they are prepared to look at a variation to that classification structure at this time.
PN333
Yes, but - - -
**** XXN MR RYAN
PN334
THE SENIOR DEPUTY PRESIDENT: Just pause there for a minute, Mr Ryan. I think that the only difficulty Mr Snowdon may have, is he might not understand the legal basis upon which that question rests so - - -
PN335
MR RYAN: That could be so, although it is referred to in his statement, your Honour.
PN336
THE SENIOR DEPUTY PRESIDENT: Yes, but perhaps Mr Snowdon, might I just indicate this to you, that if you were to seek a Federal Certified Agreement?---Yes.
PN337
It needs to pass a no disadvantage test and if you were roped into the Live Theatre and Concert Award, that would be the award by which the test would be applied?---Right.
PN338
If you were not, a Member of the Commission would need before considering your certified agreement whether - would need to designate an appropriate award?---Right.
PN339
I think that Mr Ryan's question is based on the premise that: a Member of this Commission would most likely designate as the relevant award Live Theatre and Concert?---Right.
PN340
You would get to the same result for the purposes of which award you are applying the test against?---Yes.
PN341
Do you want to then ask Mr Ryan to ask you those questions again, given that explanation I've given to you, or not?---Well, I think it is our understanding that - that it would be the Federal Award that the rates would be compared against, if that is the question.
**** XXN MR RYAN
PN342
MR RYAN: Yes, it is. I just want to say that goes a little bit further than just the rates. If I was to say to you that the totality of any agreement reached between ourselves and your company - - - ?---Yes.
PN343
- - - would have to be tested against - and I put the premise that it will be the Live Theatre and Concern Award - to show that overall people weren't disadvantaged. I put it to you there is no practical difference between that test being conducted with the company being roped into the award, or whether that award is used for the no disadvantage test?---I - honestly, I don't think I could answer that without advice.
PN344
Well, can you explain then why you have made your statement in paragraph 22?---Well, what I've said there is that we would use the Federal Award - that is my understanding - - -
PN345
No, what do you actually say?---Any agreement reached would use the Federal - LTC awards as a safety net award for the purposes of no disadvantage.
PN346
So you have admitted in your evidence that you would use this award for the purpose of the no disadvantage test?---Right, yes.
PN347
What I'm seeking to get an answer to is: as far as your negotiations go for a certified agreement - - - ?---Yes.
PN348
- - - no matter which way you look at it, either by the company being roped into the award, or by your agreement to use it as the basis of the no disadvantage test - - - ?---Right.
PN349
There is no practical difference, is there?---Not that - in terms of - if you are applying the rates, then there may be no difference in the rates - it would be in the conditions attached to the rates.
**** XXN MR RYAN
PN350
Yes, but in either event, any change in conditions would have to be measured against the award?---Correct.
PN351
So there is no difference, is there, no practical difference?---Well, what we are saying is that in our situation, our staff are indicating that they may agree to conditions that vary to what is currently in the Federal Award.
PN352
And that is often the case with every certified agreement - - - ?---Yes.
PN353
- - - there is a difference to the award, otherwise, what is the purpose of having an agreement - - - ?---Yes.
PN354
But the test is the bundle of changes agreed to has to leave people no worse off overall than the award?---Correct - - -
PN355
That is correct, isn't it?---Yes, yes.
PN356
So on that basis at the end of the day the terms of the agreement will be compared with the award?---The terms of the agreement, or the actual rates and the actual amount that they are to receive weekly.
PN357
No, the overall package. The overall package of the agreement will be compared with the award. Do you accept that premise?---Yes, yes.
PN358
Then the next point is that the overall package in the agreement will be compared with - the overall package of the award and the agreement will be certified if it passes the no disadvantage test?---That's my understanding.
PN359
So again, it does not make any difference in a practical sense whether you are bound by the award of having been roped in, or to use for the purpose of the no disadvantage test?---We would probably still disagree in terms of the conditions being applied and also that our staff and, at this stage, the WA branch of the union being prepared to negotiate separately on our agreement.
**** XXN MR RYAN
PN360
Do you have any direct involvement in industrial relations or human resources?---No, I don't.
PN361
No further questions, your Honour.
PN362
THE SENIOR DEPUTY PRESIDENT: Any re-examination, Mr Moloney?
PN363
PN364
MR MOLONEY: Mr Snowdon, in relation to your statement, your paragraph 22, if you read the whole of that paragraph, it says:
PN365
Any agreement reached would use the Federal Live Theatre and Concert Award as the safety net award for the purposes of the no disadvantaged test in the certification of the agreement.
PN366
Now, in response to some questions from Mr Ryan about the no disadvantage test, could you tell the Commission what you were using as your comparator or your base in your enterprise bargaining discussions, what you have used to date?---Sorry?
PN367
What award or agreement have you used?---To comparison, what we have used at the moment is the document provided to us by the local branch of the union, WA branch of the union.
PN368
You have said earlier that you have been using the Perth Theatre Trust document?---That's correct, the draft of what was going to be - the draft of what was going to be a new Perth Theatre Trust Award, yes.
**** RXN MR MOLONEY
PN369
In terms of the practical impact of the Federal Live Theatre and Concert Award, that is set out in your appendix A to your statement?---Yes.
PN370
Appendix B listed all of the major issues that are on the table?---That's correct and which we have been negotiating with and which we have actually set down to continue negotiating this coming Friday.
PN371
One final point. In the discussions and negotiations that are happening at a local level, you are directly involved in those?---Yes, myself and the manager of the Perth Concert Hall are the staff representatives in terms of management and the rest of the committee is made up of representatives front of house, backstage and food and beverage from all the venues plus the State Secretary of the union and also some union representatives on staff.
PN372
Thank you, I've nothing further, Mr Snowdon?---Thank you.
PN373
Thank you, your Honour.
PN374
PN375
THE SENIOR DEPUTY PRESIDENT: Any other evidence?
PN376
MR MOLONEY: No further evidence, your Honour.
PN377
THE SENIOR DEPUTY PRESIDENT: I was in error when I marked Mr Snowdon's statement, which I need back from him, MEAA1 - I'm sorry, OGDEN1, it should have been OGDEN3. There are already two exhibits tendered by Ogden. I might now mark your outline of submissions and that will become OGDEN4.
PN378
THE SENIOR DEPUTY PRESIDENT: Is the union going to call any evidence or tender any - - -
PN379
MR RYAN: No, your Honour.
PN380
THE SENIOR DEPUTY PRESIDENT: Yes, all right. Mr Maloney?
PN381
MR MOLONEY: Your Honour, the matter of these proceedings is obviously a application for roping in of Ogden IFC Perth Proprietary Limited to become bound to the Entertainment and Broadcasting Industry Live Theatre and Concert Award 1998. We rely on the evidence of Mr Snowdon in this matter and perhaps if I can direct the Commission's attention to his statement where I think to put it in a nutshell, Mr Snowdon in paragraph 21 of his statement puts forth the proposition that he believes an equitable outcome would be to rope in Ogden IFC Perth Proprietary Limited as a respondent to the Federal Live Theatre and Concert Award but with the prospect of operative date of 1 February 2002, rationale being that that would allow sufficient time to conclude the EBA process and seek certification of an agreement.
PN382
We would certainly acknowledge as he has said in his statement in paragraph 22 that the LTC Award, if I can use that abbreviated form, would be in all likelihood the award that would be used for the no disadvantage test. That is quite clear. The no disadvantage test of course is not aligned by a line descriptive test, it is a global test and certainly that is the attitude that Ogden would be adopting in terms of seeking certification of an agreement. I won't take you through all of Mr Snowdon's statement but he certainly refers and touches on a number of issues in his statement in terms of the practical impact of simply moving directly into the Federal Award.
PN383
Whilst they are in the process of conducting enterprise bargaining negotiations, whilst they are in - also in the process of being sought to continue to maintain existing terms and conditions, all of those existing terms and conditions as is sought by the draft roping in award, exhibit MEAA2 in paragraph 3, the savings provision. Now, the essence of our written submission, your Honour, is simply to say that, that this Commission should in fact concur with the submissions of Ogden where I think we've said we've exhausted avenues under the Act in terms of section 111AAA, that was a legitimate argument and a legitimate application to take before the Commission.
PN384
The Commission has made that decision, no appeal arose from that, that is accepted and the next step of course is then to seek the dispute finding which the Commission has now attended to and to rope the company in. In roping the company in thought, we say that the savings provision in MEAA2 is, we would say, a nice attempt at having an each way bet, as it were, of maintaining every existing condition that currently exists with these employees which are all contained and in the main repeated in exhibit OGDEN1, which was the draft agreement that we tendered to the Commission on 2 October.
PN385
That document seeks to maintain many of the terms and conditions that pre-existed under the Perth Theatre Trust Award which is exhibit M1 in these proceedings as well as the range of additional conditions that were conferred upon employees of the Perth Theatre Trust by way of the Minister for Culture and the Arts Enterprise Agreement 1999 which is exhibit M2 in these proceedings.
PN386
THE SENIOR DEPUTY PRESIDENT: Mr Maloney, what terms and conditions of employment and rates of pay do you say are more beneficial than those that would be provided for, that are contained in the Live Theatre and Concert Award?
PN387
MR MOLONEY: It cuts each way, your Honour, and we referred in Mr Snowdon's statement - sorry, at appendix A, to some of those terms and conditions. In the main there, we say that that comparator sets out where there would be conditions or a cost impost on Ogden. There are some other terms and conditions that are contained in exhibit OGDEN1 that have been continued from the Perth Theatre Trust, terms and conditions of employment, that simply don't exist in the Federal Award. One very minor issue but a highly unusual one, for example, is a tissue donation leave clause, a very unusual type of provision but there are also some other provisions in relation to the actual manner in which the work is performed, particularly for backstage staff where the introduction of the Federal Award, as it stands, can have a very direct impact on staff.
PN388
This was disclosed in open discussion by the parties, particularly where we say the spread of hours, the number of days of the week in which work can be performed under the Federal Award as well as for example the 10 hour break clause. Under the current conditions, there are limitations in relation to when back of stage staff for example can be recalled to work and of course what rates of pay they get. If we impose the Federal Award directly with no preservation, certainly for back of stage staff, that would disclose that they could be asked for work as we are up to - they could certainly be asked to work a fair number of hours, something up to 60 hours a week and be asked to work on consecutive days of the week whereas their current conditions don't provide for that.
PN389
Now, we are not suggesting that that is going to be change and it is one of the - if we look at a technical comparison - one of the comparisons that was raised in terms of a disadvantage to staff members. I'm also advised the spread of weekly ordinary hours. Also it brings into play, you can see in appendix A your Honour, the spread of weekly hours, 7 to 12 in the Federal Award, 8 to 12, for example and 8 til 10 for some ticket sellers under the Perth Theatre Trust Award. There are some differences there and they were going to have a practical impact. They are some of the issues that I think you will find listed in the appendix to Mr Snowdon's statement that are being currently addressed. Mr Snowdon also acknowledges in his statement that there is no agreement on those sixteen issues. We don't want to put a flavour on those that currently does not exist. It is simply a statement of fact that they are on the table.
PN390
THE SENIOR DEPUTY PRESIDENT: Now, Mr Moloney, I think in your recent submissions you suggested that perhaps a savings provision might not be an allowable or a matter necessary and incidental. Do you press that submission or have I perhaps elevated your submission a little too highly - - -
PN391
MR MOLONEY: No.
PN392
THE SENIOR DEPUTY PRESIDENT: - - - and that really, your submission is about the actual terms of this argument's provision that concern you?
PN393
MR MOLONEY: Your Honour, it's the - the construction of that savings provision in MEAA2 that does concern us and we do press that submission as that clause is currently constructed. What I can say about - - -
PN394
THE SENIOR DEPUTY PRESIDENT: You know it's the clause that has been contained in roping an awards issued by Senior Deputy Polites since the provisions of section 90-89A have been in the Act?
PN395
MR MOLONEY: Well, if I can refer your Honour there to the roping in award made by his Honour - - -
PN396
THE SENIOR DEPUTY PRESIDENT: Yes.
PN397
MR MOLONEY: - - - on 24 November 1999.
PN398
THE SENIOR DEPUTY PRESIDENT: Yes, I have that.
PN399
MR MOLONEY: And if we look at that wording.
PN400
THE SENIOR DEPUTY PRESIDENT: Yes.
PN401
MR MOLONEY: That addresses the problem. See every - - -
PN402
THE SENIOR DEPUTY PRESIDENT: I see. I had rather thought the wording was identical. It is not, is it?
PN403
MR MOLONEY: No, no. It is vastly different and the way that clause 3 in MEAA2 is constructed, it would preserve everything.
PN404
THE SENIOR DEPUTY PRESIDENT: Perhaps I could - you might just take me to a comparison as to where the relevant differences are between the roping in award issued by his Honour and the one sought by the MEAA2, MEAA here.
PN405
MR MOLONEY: Does your Honour have a copy of that roping in award from Senior Deputy President? Quite simply, your Honour, if we look at MEAA2, it just simply says:
PN406
All terms and conditions and rates of pay applying to an employee which are more beneficial than those in the two awards mentioned herein, shall not be reduced as a consequence of the application of this award.
PN407
Now, that would mean any term of condition of employment, any rate of pay, must be preserved for ever and a day. What his Honour has done in variation number 5 to the Award, in his roping in award of 24 November 1999 is to limit that - - -
PN408
THE SENIOR DEPUTY PRESIDENT: Yes, to those that are dealt with by the federal award.
PN409
MR MOLONEY: Correct.
PN410
THE SENIOR DEPUTY PRESIDENT: Yes, I had overlooked those - that difference. Yes, I understand.
PN411
MR MOLONEY: Now, in a shortened sense that would rectify our problem in relation to the roping in award.
PN412
THE SENIOR DEPUTY PRESIDENT: We will just pause there for a moment. Mr Ryan, do you make any concession - are you prepared to make any concession about that, or perhaps - how strongly do you argue for the construction in MEAA2 as opposed to that which seems to have been - I don't know if it is the standard clause used by his Honour - but it certainly seems in the history of this dispute finding, it is the standard clause he has used.
PN413
MR RYAN: I don't think in a practical sense there's much difference, your Honour.
PN414
THE SENIOR DEPUTY PRESIDENT: That might be right. I don't know. I hadn't though it through.
PN415
MR RYAN: I'd be surprised if casual employees were given a range of benefits outside that container either the former Perth Theatre Trust Award, or the Live Theatre and Concert Award. Certainly, if that is the major bug-bear I would be prepared to acknowledge that the wording that his Honour put in the 1999 roping in award where more beneficial matters which are dealt with by the award continue, such as your rates of pay or hours of work. Now, if there's anything outside the award, yes we concede that should go.
PN416
THE SENIOR DEPUTY PRESIDENT: Or I should indicate that in the event the roping-in award is made and a savings provision is to be inserted. I would be persuaded that there's much to be said for it to be inserted in the same terms as his Honour has used and reflected in his several roping-in awards that were made naming as respondents a large number of parties who were served at the same time as Ogdens and some of which operate in and about the State of Western Australia.
PN417
MR MOLONEY: I also say this - sorry your Honour, just to pick up on that point. There's also, I suppose, another reason why that approach is probably - has some basis in that, if the company had not embarked upon the course of action that it had taken, then it would have been, I assume - - -
PN418
THE SENIOR DEPUTY PRESIDENT: Indeed.
PN419
MR MOLONEY: - - - roped in at that time - - -
PN420
THE SENIOR DEPUTY PRESIDENT: Yes, another good discretionary reason why it would probably come down on the side of consistency which his Honour's form of roping in award, so you don't need to press that point. Is there anything else you wish to argue in relation to the form of the roping in award that is sought by the union?
PN421
MR RYAN: The operative date, your Honour.
PN422
THE SENIOR DEPUTY PRESIDENT: MEAA2 does not have a date.
PN423
MR RYAN: That's right.
PN424
THE SENIOR DEPUTY PRESIDENT: What is the date that you are pressing.
PN425
MR RYAN: We would be seeking from the first paper commencing after today's date, your Honour.
PN426
THE SENIOR DEPUTY PRESIDENT: Yes, all right. I had assumed that would be so but now we know it is, so you oppose that - - -
PN427
MR RYAN: - - - that is the premise
PN428
THE SENIOR DEPUTY PRESIDENT: - - - and you press for 1 February 2002.
PN429
MR MOLONEY: Your Honour we do and there are a number of reasons and we do set those out in our submission before that. You probably appreciate that - we have lent on the tolerance of the Commission if I may say that - - -
PN430
MR RYAN: And mine.
PN431
MR MOLONEY: Mr Ryan has got plenty of tolerance, but we have certainly lent on the tolerance of the Commission and we appreciate that fact and I think it's relevant to dwell on that point for one moment and that is simply because the operations of Ogden are in a somewhat or unique position to many of the other employers. Ogden certainly is the contracted venue operator, venue manager to the Perth Theatre Trust. The Perth Theatre Trust of course comes under the control of the Western Australian State Minister for Culture and the Arts. Ogden is contractually bound to operate these venues and Mr Snowdon's statement indicates to the Commission. I point that out to the Commission. He indicates to the Commission that they are responsible for all front and back of house staff as well as food and beverage staff.
PN432
He also says is his statement at paragraph 6 that: the company maintained the Perth Theatre Trust conditions of employment and effectively the change in operation and the introduction of Ogden which commenced in March 1999, really overtook the process that was being undertaken by the Perth Theatre Trust for the creation of a fairly new comprehensive award which has now formed the basis for further discussions and enterprise discussions. On that basis the company has continued those conditions of employment. The date that is sought will allow the company and the parties the opportunity to complete those discussions without the interposing of the federal award but recognising that is going to be the award will be used for the notice of about his test for a federally certified agreement, but it also needs to give recognition to the operations of the four venues in Perth and some of the differences in those conditions that operate as a result of historical coverage under the State Award.
PN433
I think that historical cover was also recognised, indeed under the federal award, because the Perth Theatre Trust is still exempted from that federal award as an organisation. Now, Perth Theatre Trust does not employ any people at the moment who could be covered under that award. Sorry, I'm corrected there. It still does, I beg your pardon, your Honour. Box office and ticketing staff are employed under those terms and conditions of the Perth Theatre Trust Award and the following document that was developed has not been certified or approved by any industrial tribunal at this stage
PN434
So to that extent we would say: allow that process to continue. The company's submission is to say: allow that to continue until 1 February. At that point in time, as we have said in the submission and Mr Snowdon's the roping in should occur then. There will be proper award coverage of these employees, at that point in time the award can be used for no disadvantage test purposes. There is no prejudice to any employee as a result of that. We would say the only prejudice that will result would be to the employer namely, Ogden.
PN435
It creates an unnecessary complication. That it is simply going to, we say, creates some more difficulties at a local level, and that is where the discussions are being held, they are being held at a local. We would press for that operative date of 1 February 2002, your Honour. We would rely on Mr Snowdon's statement and also on the outline of submissions provided to the Commission and MEAA.
PN436
THE SENIOR DEPUTY PRESIDENT: Yes, thank you.
PN437
MR MOLONEY: Thank you.
PN438
THE SENIOR DEPUTY PRESIDENT: Mr Ryan?
PN439
MR RYAN: Thank you, your Honour. Now, your Honour, when this matter was on before you back in October we were assuming that the company would be running a 111(1)(g) argument seeking to oppose the roping-in award altogether. That now appears that they are putting forward a different proposition which basically says two things, the difference between what we seek, or may be one now with my concession previously, boils down to the operative date that the award should come in.
PN440
Can I say that there seems to be a fundamental misunderstanding by the company of what we seek by these proceedings. One is, that is, while we welcome enterprise bargaining, an engagement day in and day out, that is a separate function to what is sought in these proceedings and that is to establish safety net wages and working conditions for people who are currently award free, and that was the purpose of the log being served back in 1999 and the upshot was that a range of theatres in Western Australia were made the subject of the roping-in award.
PN441
We now have Ogdens still award free and their argument seems to be, as best as I could follow it, that: we want to stay award free until we reach agreement with our Western Australian branch. After we reach agreement we can be roped in to the award and they have set an arbitrary date of that agreement being reached by 1 February next year. I assume as night follows day, Mr Moloney would be putting in an application some time in January if agreement hadn't been reached to seek to vary that roping-in award to have a date further down the track of 1 February.
PN442
We put to you, your Honour, that the question of the current enterprise bargaining between the parties is totally irrelevant to what we seek here. The objects of the Act provide that there should be, as a primary object, the establishment of and maintenance of effective safety net awards. His Honour, Deputy President Polites, in his decision of March this year in rejecting the company's claim under section 111AAA in paragraph 11, referred to the public interest. I must say, your Honour, in that context it was - even if they were covered by a State award or agreement, which they weren't, his Honour said: that the public interest was against the company and points out that in the fifth last line, your Honour:
PN443
In my view, it is not in the public interest that steps were not taken to address the appropriate regulation of the employment of these employees. These steps have now been taken in this jurisdiction. For that reason I do not think it appropriate, if I am wrong about the question of whether these employees wages and working conditions of employment were governed by a State award, that I should cease dealing with the matter.
PN444
So that was back in March and in that decision he gave the company leave to think about running a 111(1)(g) argument and the matter was then relisted back in April. Since then we have been before you a number of times with the hope that agreement would be close on agreement level, that hasn't happened. It has been admitted by the company that if agreement is reached then the award will be used for the no disadvantage test. The one thing that hasn't been pointed out, is that, between now and whenever agreement is reached or 1 February, there is no legal basis underpinning rates of pay and working conditions for employees of Ogdens. Ogdens has carried on the former award, but there's no legal basis to that, it is just done by way of history.
PN445
The award has been simplified, it is relevant, up-to-date, it has properly fixed minimum rates, it has conditions which meet the requirements of Item 49 of the WROLA Act, or Item 51. The savings clause that we now seek was created by Senior Deputy Polites and has been reinforced quite recently, your Honour, in a decision of the Full Bench in print PR907235 in the long running G. and K.A. Connor case, if I could tender a copy of that, your Honour.
PN446
THE SENIOR DEPUTY PRESIDENT: Yes, I won't mark that, Mr Ryan.
PN447
MR RYAN: I only wish to draw your Honour's attention to the last two paragraphs of that decision.
PN448
THE SENIOR DEPUTY PRESIDENT: Yes.
PN449
MR RYAN: I'm sure it is a matter of notoriety around the place as a long going dispute between the Meat Workers Union and that particular company. This aspect of it was in relation to the company's desire for a safety net in the award to be made. The one issue was that, certain employees who had not taken up AWAs were governed by a 1992 agreement under the, I think, under the former Industrial Relations Act of 1988 which had peculiar ongoing force, and in paragraphs 38, the Full Bench said:
PN450
They thought that a safety net award should be made.
PN451
They refer to previous authority of which one you will be directly aware of, that the safety net award should be in terms of the General Industry Award. In paragraph 39, they refer to: grandfathering of those employees to whom the 1992 agreement applied. So that, and they say:
PN452
However, both the general principle of this Commission, the second reading speech and Items 49 to 51 of the WROLA Act make it plain that in the making of safety net awards it was not the intention of the legislature to lower rates of pay for employers.
PN453
and hence, they talk about having a grandfathering provision and a savings provisions. Now, we have before us, your Honour, a savings provision that, I think, both intellectually and industrially is appropriate. That is done by his Honour, Senior Deputy President Polites back in 1999. It protects those award matters which currently are in excess of - sorry, those terms and conditions and rates of pay which are governed by the Federal award where people have better than that, they maintain those, they are not reduced by the making of the roping-in award. But fundamentally we seek that in the public interest as determined by his Honour that a safety net award should be made.
PN454
The traditional approach is to rope in this company to the General Industry award and we would seek an operative date of today, so that employees of Ogdens are subject to enforceable rates of pay and working conditions of a standard set by this Commission as being fair minimum standards. That they should not be left in limbo for months to come purely because there seems to be some misunderstanding on the part of the company as to what you can do in enterprise bargaining. Although there was an admission, I think, that at the end of the day any agreement between us will be tested against the award whether they are roped in or used for the no disadvantage test.
PN455
That is fine, that has to happen anyway, as that is just as night follows day, that process will have to be followed, but these proceedings are directed to the fact that, like every other award-free company which is still to be roped in, current working conditions and rates of pay are determined directly by the employer and employees. There is no legal underpinning by way of any jurisdiction, either State or Federal commission. We seek to exercise our rights under the Act, under the principal objects of the Act to have the minimum conditions and rates of pay governed by the Live Theatre and Concert Award by way of a roping-in award which was set out with the now changed to clause 3, your Honour, to pick up the wording of the roping-in award number 1 1999 and an operative date of today's date. If the Commission pleases.
PN456
THE SENIOR DEPUTY PRESIDENT: Anything in reply, Mr Moloney?
PN457
MR MOLONEY: Just briefly, your Honour. Your Honour, I think we have acknowledged in the past that following on from Senior Deputy President Polites' decision earlier this year that there is no - legally there is no award applicable in Perth to the employees of Ogden IFC. That is certainly a position that has been acknowledged. I think also it is important for the Commission and for the Alliance to also acknowledge that there has been nothing put to the Commission to show, or say in these proceedings over the number of times we have been here that the company is doing something to the employees, or is not maintaining those terms and conditions of employment for its employees. It has certainly done that. It has indicated that intention to the Alliance and will continue to do so and, yes, we concur and it is important to have legally applicable binding and enforceable terms and conditions of employment for the employees - and if that is going to occur by way of coverage by the Live Theatre and Concert Award then so be it, and I think we have already said we acknowledge that, it is just a case of when it occurs.
PN458
Your Honour asked a question earlier this morning about areas of difference and I think in terms of areas of difference - I won't re-visit it - the appendix A to Mr Snowdon's statement certainly indicates some significant areas of difference, but also before your Honour on 2 October, he also provided the Commission with exhibit OGDEN2, which is a comparison of the Ogden Workplace Agreement proposal, the Live Theatre and Concert Award and the proposed MEAA agreement that were all tendered and that is a summary comparison of those three documents. That sets out where all of the differences lie and I certainly don't intend to go to any detail on those, but there are some differences there. We say that is part of the rationale as to why we believe it would be appropriate in these circumstances to have a prospective operative date for the roping in - that is really the issue that I think we are down to, your Honour. If the Commission pleases.
PN459
THE SENIOR DEPUTY PRESIDENT: Yes. Well, I should indicate that I'm persuaded that a roping in award should issue and I intend to announce my decision now and publish brief reasons for decisions shortly. I intend to make a roping in award in the terms sought by the union and reflected in exhibit MEAA2, that will contain a savings clause that will be in the same terms as that issued by Senior Deputy President Polites in Print S1263, and that roping in award will come into operation from the first full pay period on or after today, 14 November 2001. The roping in award will remain in force for a period of 6 months. The roping in award will be sealed and signed soon and provided to the parties and the reasons for decision will be issued as soon as possible. The Commission now adjourns.
ADJOURNED INDEFINITELY [11.05am]
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