C0025/398, Transcript of Proceedings [2002] AIRCTrans 4698 (22 November 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LACY

C No 00253 of 1998
C No 24453 of 1999
C2001/6462
C2002/1918

APPLICATION FOR A REVIEW PURSUANT TO
ITEM 51 SCHEDULE 5 TRANSITIONAL WROLA
ACT 1996 OF THE HOTEL MANAGERIAL STAFF
(FEDERAL) AWARD 1974 - LIQUOR AND
ACCOMMODATION INDUSTRY
RE CONDITIONS OF EMPLOYMENT

AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION

and

AUSTRALIAN HOTELS ASSOCIATION and OTHERS

Notification pursuant to section 99 of the Act
of a dispute re wages and conditions of employment

HOTEL MANAGERIAL STAFF (FEDERAL) AWARD 1974

Application under section 113 of the Act by
Club Managers' Association, Australia to set
aside award

CLUB MANAGERS' ASSOCIATION, AUSTRALIA

and

AUSTRALIAN HOTELS ASSOCIATION

Notification pursuant to section 99 of the Act
of a dispute re wages and conditions

SYDNEY

10.00 AM, FRIDAY, 8 NOVEMBER 2002

Continued from 24.10.02 in Melbourne

PN649

THE SENIOR DEPUTY PRESIDENT: Mr Cooper, you continue to appears for Club Management Association, Mr Swancott you are from the ALHMWU and Ms Zeitz, any other appearances

PN650

MR T. McDONALD: I appear for the Motor Inn and Hotel Association of Australia, we seek leave to intervene in these proceedings.

PN651

THE SENIOR DEPUTY PRESIDENT: Yes, thank you Mr McDonald. Any others?

PN652

MR J. BLACKBURN: I seek to leave firstly to appear as counsel on behalf of Burswood Hotel Proprietary Limited and also then we would seek leave to intervene in the proceedings, we advised your Honour and the parties yesterday of our intention.

PN653

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Blackburn. Mr Cooper, do you have any position on the interventions, first of all?

PN654

MR COOPER: Seeking leave to appear to start with, we don't take any problems with that but in respect of any of the other matters which still, by and large remain unclear to us - you acknowledged on the last occasion - indicated we were going to make a final stab at reaching some agreement rather than venturing down the process of work value and the parties met with that aim in mind on 1 November and I think that Susan Zeitz advised the Commission on Monday, 4 November, that the parties had reached a position.

PN655

Now, that is after a lot of consultation with the AAJs members and the unions working actively on a document. So we are again very disappointed that we are at a stage where we have new parties coming out at the last minute, possibly raising matters that should have been raised through their association through the consultation process that has been in place for more than 12 months now.

PN656

Sir, we were in a position with the request you received to convert this report back process into a formal hearing to put in place a consent award and it would appear today that that is not going to be possible so we object to these parties intervening at this stage because the basis - the history of this matter, these associations approached to negotiate in good faith with the other principal party to the award, which is the AAJ on behalf of its membership.

PN657

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Cooper. Mr Swancott.

PN658

MR SWANCOTT: I adopt a and support the position of Mr Cooper, your Honour.

PN659

THE SENIOR DEPUTY PRESIDENT: Ms Zeitz?

PN660

MS ZEITZ: In relation to the application by Mr McDonald, the AHAs position is this award, as proposed, is only binding on AHA and its members and therefore has no impact on the organisation which Mr McDonald represents and further, to the extent the scope and persons bound clause deals with the issue, it is in similar - substantially similar terms to the scope and persons bound clause of the Hospitality Industry Accommodation Hotels Resorts and Gaming Award, which operates in the - which also binds the AHA and its members.

PN661

While I understand Mr McDonald's organisation has raised some concerns as recently as yesterday, we fail to see the basis upon which that organisation should be applying for intervention on this occasion when any order made by the Commission would not be binding on its members. In relation to the application on behalf of Burswood Hotel Proprietary Limited, I am instructed to oppose that intervention, if the Commission pleases.

PN662

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Ms Zeitz. I should also indicate that there has been a contact made with my chambers this morning regarding the Australian Workers' Union, Queensland branch to confirm the status of quo in relation to Queensland is being maintained. I passed on to that contact that they should contact Mr Swancott or Mr Cooper about that. I do not know whether there has been any contact with either of you?

PN663

MR SWANCOTT: Yes, your Honour. I had three discussions with the AWU. The status quo, as your Honour describes it, is in fact the current award covers the whole of Queensland without exception. In fact, the parties or the two unions and the AHA in discussions reported to the Commission earlier this year to meet particular - particular request of the AWU altered or proposed to alter that status quo to the benefit of the AWU by nominating two specific awards of the Queensland Industrial Relations Commission. Subsequent I advised the AMWU of that position which I might say was in direct response to their initial correspondence and - - -

PN664

THE SENIOR DEPUTY PRESIDENT: That is what I understood them to mean about the status quo but the position reached between you and them.

PN665

MR SWANCOTT: Yes. Although technically the status quo is that they have no interest because the award completely covers the field. The agreement we had benefited their position by restricting it to that part of Queensland other than those covered by those two State award. Subsequently I was advised by the AWU that they would prefer to seek an exemption for the whole of south-east Queensland. I have since advised them that was not agreed or could not be agreed between the parties and should they wish to argue beyond the accommodation that has been offered them they would need to do that in the formal way.

PN666

THE SENIOR DEPUTY PRESIDENT: Have you had contact with them this morning, from the AWU this morning?

PN667

MR SWANCOTT: Not this morning. I had contact on Wednesday of this week and I advised them of that position. Thank you, your Honour.

PN668

THE SENIOR DEPUTY PRESIDENT: Mr McDonald, why should you be granted leave to intervene in light of what Ms Zeitz has said about the operation of the award?

PN669

MR McDONALD: Your Honour, the Motor Inn and Motel Association has broad coverage in the combination industry and if I may tender a copy of the eligibility rule of the association.

PN670

THE SENIOR DEPUTY PRESIDENT: Are you a member of counsel, Mr McDonald?

PN671

MR McDONALD: I am not, your Honour.

PN672

THE SENIOR DEPUTY PRESIDENT: What is the name of the Association?

PN673

MR McDONALD: The Motor Inn and Motel Association of Australia.

PN674

THE SENIOR DEPUTY PRESIDENT: It has got Motor Inn, Motel and Accommodation Association, is that right?

PN675

MR McDONALD: I am sorry, Commissioner.

EXHIBIT #MM1 EXTRACT OF THE RULES OF THE MOTOR INN, MOTEL AND ACCOMMODATION ASSOCIATION

PN676

MR McDONALD: I simply point out in clause 1: Name and industry, the broad coverage of the association. For example, in (b) it refers to unlicensed private hotels as being within the coverage of the association. The association intervened when this award was first made in 1974 and was active in looking at the definitions in the award to ensure that it only applied to hotels who were licensed as hotels. The award contains various definitions dealing with that, in particular a definition of hotel which is defined by the various licenses issued in the states, in the various state the hotel is.

PN677

We understand, your Honour, there has been a move to take that definition out of any award that is proposed to be made as a result of these proceedings which could impact upon the coverage of the award and potentially impact upon members of the association. We have written to all the parties asking - raising our concern. We have also asked for a copy of the proposed document in order that we can check and satisfy ourselves that the award proposed is not going to affect the association's members either now or in the future.

PN678

THE SENIOR DEPUTY PRESIDENT: Who did you ask for that? Who did you request that from?

PN679

MR McDONALD: Hotels Association, your Honour. They have been prepared to show one of the definitions in the award of the employer but that does not go far enough, in our submission, in enabling us to really check as to whether we are affected by the award. We've never been served with any documentation in relation to these proceedings and - - -

PN680

THE SENIOR DEPUTY PRESIDENT: Well, if you were not covered by the award, then there's no reason for you to be served, would there? It is not a common law award.

PN681

MR McDONALD: Yes, your Honour, we would. However, if the award's coverage was to be changed, in our submission, that could affect us and we would seek to be heard in relation to that. It may be, your Honour, that - - -

PN682

THE SENIOR DEPUTY PRESIDENT: Sorry. How would that affect you if the only party is the AHA, the only employer party is the AHA, it would only be members of the AHA that would be covered by it. Not your members, unless they have also got membership of the AHA.

PN683

MR McDONALD: Your Honour, we are not even sure as to that because we haven't been provided with a copy of the document but in relation to - even if it was at this stage limited to members of the AHA, if this coverage was extended into the area of coverage of the Motor Inn and Motel Accommodation Association, then that would cause us some concerns if there are any roping-in exercises. There are also a number of log of claims that presumably are still relevant from it gave rise to 1974 proceedings.

PN684

In the absence of a document we can't really check that, your Honour. If we were able to be provided with a document, it may be that our concerns could well be alleviated but at least we would be in a better position to focus any address to the Commission if that was required.

PN685

THE SENIOR DEPUTY PRESIDENT: Well, Mr Blackburn, leave to appear is granted. There's been no objection to your appearance.

PN686

MR BLACKBURN: Thank you, your Honour.

PN687

THE SENIOR DEPUTY PRESIDENT: Why should Burswood be permitted to intervene? First of all Burswood - am I right in understanding that is a casino?

PN688

MR BLACKBURN: Yes and no, your Honour. Burswood is part of the business known as Burswood International Resort Casino. However, the Burswood Hotel is owned by a different company and importantly given the nature of the exemption that is in the proposed award which refers to casino complexes under State legislation, the hotel has been excised from the casino complex under the Western Australian Act by an order of the Honourable Minister for Gaming and Racing in Western Australia. Now, your Honour, if I could - - -

PN689

THE SENIOR DEPUTY PRESIDENT: So which entity do you actually appear for?

PN690

MR BLACKBURN: Burswood Hotel Proprietary Limited.

PN691

THE SENIOR DEPUTY PRESIDENT: Or seek leave to intervene.

PN692

MR BLACKBURN: Yes, Burswood Hotel Proprietary Limited, your Honour, which is the employer of employees in the Burswood Hotel.

PN693

THE SENIOR DEPUTY PRESIDENT: Yes.

PN694

MR BLACKBURN: If I might hand up an affidavit which has been completed by Ms Kathleen Drimatas. I only have one signed copy, your Honour, that is the copy that I am handing up to you. The copy that I have - - -

PN695

THE SENIOR DEPUTY PRESIDENT: Have you provided this to the parties?

PN696

MR BLACKBURN: Yes, I'm providing it to the parties now, your Honour. Your Honour, if I can perhaps come to the point that you have raised first and before doing so, as I indicated in my letter to yourself and to the parties, we seek to adopt the submissions that were previously made in relation to the Defence Forces regarding intervention by the core group on 8 August. We recognise however that your Honour has made a decision in relation to those submissions and we seek to proceed on the premise that - we seek to move on from the decision that your Honour made in your Honour's decision which was PR 921749.

PN697

It seemed to us that your Honour was effectively saying that the relevant question is whether the AHA member, if not granted leave to intervene, would not have had an adequate opportunity to be heard or would not be adequately represented in the proceedings or will not have had its interests protected. We accept that for the purposes of today's application but that is the relevant test and we seek to meet that test. Your Honour, if I can go firstly to attachment A to the affidavit - and I apologise if the affidavit appears a little rough in places.

PN698

It was put together rather hastily because until as late as yesterday we had hoped, indeed expected the matter could have been settled. Attachment A is a letter sent on 7 November to AHA WA Branch and it sets out the relevant provisions firstly of the proposed award which is clause 4.3.1. You can see that the proposed award exempts gaming establishments/complexes holding a casino licence under relevant State legislation and the relevant Act in West Australia is the Casino Control Act. Your Honour, if I could hand up extracts from that Act which were also reproduced in that letter.

PN699

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN700

MR BLACKBURN: Right, as set out in the letter, section 3(1) of the Act defines a casino complex for the purposes of the State Act in the following way. It says:

PN701

Subject to any order made under section 21F(1)(b) -

PN702

and that is the important part for present purposes -

PN703

the casino complex means an area in which a casino and a hotel and other amenities or premises are established or intended to be established.

PN704

And (b):

PN705

Which is the subject of the Casino Complex Agreement.

PN706

THE SENIOR DEPUTY PRESIDENT: Sorry, I'm just not with you. Where is the part subject to any order made under 21F?

PN707

MR BLACKBURN: It is in the definition, your Honour, on the first page of the - - -

PN708

THE SENIOR DEPUTY PRESIDENT: I see, yes.

PN709

MR BLACKBURN: It begins:

PN710

Casino complex subject to any order made under 21F(1)(b).

PN711

In a moment I will take your Honour to an order that was actually made under that section. It means an area in which a casino hotel and other premises are to be established and (b) which is the subject of the Casino Complex Agreement and includes any casino or hotel or other amenities or premises established in that area. So as a result of that wording, your Honour, and the wording is proposed to be included in the award, most casino hotels, if not all casino hotels in Australia with the exception of the Burswood Hotel, would be exempt from the operation of the award because they fall within the - I withdraw that.

PN712

Certainly within Western Australia, they would be exempt from the operation of the award because they would fall within the definition of a casino complex as defined under the State Act. The difficulty in Western Australia is that the Burswood Hotel has had - is the subject of an order made under section 21F(1)(b). I can take your Honour to section 21F which is on page 30, it is the last page of the extract from the Act, 21F(1)(b):

PN713

The Minister may on the disposition of part of the casino complex to an approved person (b) by order to clear the relevant casino complex agreement does not apply to that part and that part ceases to form part of the casino complex which order has effect according to its tenor.

PN714

If I could return to attachment A which is the letter - - -

PN715

THE SENIOR DEPUTY PRESIDENT: I will just mark these documents, Mr Blackburn.

PN716

MR BLACKBURN: Thank you, your Honour.

EXHIBIT #B1 AFFIDAVIT

EXHIBIT #B2 EXTRACT FROM THE CASINO CONTROL ACT 1984

PN717

MS ZEITZ: Sorry, your Honour, I don't wish to interrupt my friend. Do I understand from your marking of that, that Ms Drimatas is available for cross-examination? We don't accept the contents of this affidavit. We've only received it just this moment.

PN718

THE SENIOR DEPUTY PRESIDENT: I see. You require Ms Drimatas for - - -

PN719

MS ZEITZ: I don't know, your Honour. I haven't had a chance to read this prior to these hearings.

PN720

THE SENIOR DEPUTY PRESIDENT: Well, I will hear first of all - this is just the application for leave to intervene. I'm only marking it for those purposes at this stage.

PN721

MR BLACKBURN: Your Honour, Ms Drimatas has come to Sydney with me and so is available for cross-examination if required. Your Honour, if I could return to the attachment A to the affidavit which is the letter to Bradbury Woods who is the executive director of the State Branch of the AHA, the letter having set out the terms of section 31 and then 21F(1)(b) of the Act on page 2 indicates that in 1985 when the casino was established, it was in a complex when it was established, it comprised of the Burswood Casino, hotel, a facility known as the Burswood Dome and a convention centre.

PN722

The Burswood Hotel was then sold by the Burswood Property Trust in 1987 and subsequent to that, the disposal, the Honorary Minister for Racing gave an order under section 21F(1)(b) of the Casino Control Act removing the hotel from the casino complex, and that order which appeared in the Government Gazette on 30 December 1987 is attached to that letter and if we go to the order, your Honour, it can - it can be seen that at part four of the order:

PN723

It is hereby declared that the Casino Complex Agreement does not apply to the excluded part and (b) the excluded part ceases to form part of the Casino Complex and the excluded part is defined in the schedule as being the portion of Swan location 10662 being lot 1 on plan 16029 and being the whole of the land comprises a certificate of title volume 1778, folio 610 and the hotel established thereon.

PN724

Your Honour, that is the order which effectively removes the hotel from the - or it prevented the hotel from that time on being regarded as part of the Casino complex for the purpose of the Act. We return to the letter, your Honour, on page 2. What happened then was that in 1990 the Burswood Hotel were sold to its current owner, Mr Ogino, and then in 1997 the trustee of the Burswood property trust, Burswood Nominees Proprietary Limited entered into a lease with Mr Ogino to lease the hotel and has leased the hotel since that date.

PN725

Burswood Nominees Proprietary Limited holds the liquor licence for the Burswood Hotel and at about the same time 1997 Burswood made a irrevocable offer to purchase the Burswood Hotel, that offer has been accepted and settlement will be February 2003. So, your Honour, for all intents and purposes Burswood operates the hotel, it leases it, it holds the liquor licence and Burswood Hotel Proprietary Limited employs the staff in the hotel and Burswood Nominees will acquire the hotel in February 2003 having entered into an agreement to do so.

PN726

How it is the original order made the Minister remains in force, the hotel does not now fall within the definition of Casino complex under the Act. That being the case, your Honour, the wording contained in the proposed consentable will not be sufficient to exclude the hotel. For that reason, we said in the letter to the HA that we must insist on an amendment to the proposed wording and we suggested a form of words which was that - over the page:

PN727

This award not apply to gaming establishments or complexes holding a Casino licence under relative State Legislation.

PN728

Which is effectively what is there now:

PN729

Or to any hotel or other facility located within or in the area approximate to any such gaming establishments or complexes.

PN730

THE SENIOR DEPUTY PRESIDENT: Well, that would go beyond your interest, though wouldn't it?

PN731

MR BLACKBURN: Well, your Honour, we said to the HA that if that was too wide then we invite them to suggest a form of words which would protect our interest because that is all that we were seeking to do. We then made some other remarks, your Honour, asking - at the time of writing, your Honour, we had not been advised by the State Branch that these proceedings were scheduled for today or that consent awards were proposed to be made today and we asked for the - in fact the State Branch had written to members on 6 November, saying: here is a copy of the Consent Award, which was the first we had seen it: we will convene a meeting of members shortly to discuss it.

PN732

That was on 6 November which didn't quite tally with what our own inquiries had revealed which was that there was in fact to be a hearing today for the making of the award. So we asked the union to indicate - sorry, the AHA to indicate whether in fact the hearing today would proceed, or if it would not proceed, or alternatively whether it would agree and seek the agreement to the Club Manager's Association to the wording that we had requested. Sir, on the significance of that letter is that it establishes that Burswood Hotel Proprietary Limited which was a member of the Australian Hotel Association has a direct interest in these proceedings today and that it stands to be affected by the outcome of these proceedings.

PN733

If I could return now, your Honour, to the affidavit. The affidavit has been completed by Ms Drimatas. Ms Drimatas, appears at paragraph 2 is the Human Resources Coordinator for the whole of the business, trading as Burswood International Resort Casino which includes the Burswood Hotel. She has been employed in that position since August 2001. She has approximately - well, she has eight human resource officers reporting to her in paragraph 5 and she is responsible for managing the human resources activities across the resort.

PN734

She has responsibility for formulating and developing human resource and industrial relations policies and procedures for the company and her main duties include negotiating with unions and strategic workplace relations planning. Her qualifications are set out there as well. In paragraph 7 she says that she has been responsible for monitoring the probus of proceedings relating to the making of new Federal Hotel Managers Award and liaising with the HA in order to ensure that Burswood's interests are adequately represented and protected.

PN735

Then, your Honour, at paragraphs 8 through to 16, we deal with the question of how it is that BHBL stands to be effected by the award as it currently stands. At paragraph 9, as to the supervisors and managers, 70 or so of those, some are covered under the Hotel Tavern Workers Award, while others hitherto were covered by the Federal Managers Award which is before us today. Your Honour, at paragraph 17, I ask the Commission's indulgence in progressing through the affidavit and some of the attachments because, in my submission, it reveals a truly remarkable state of affairs and a lack of consultation and ultimately utter disregard for the interests of Burswood.

PN736

THE SENIOR DEPUTY PRESIDENT: But there are mechanisms by which those matters can be addressed under the rules.

PN737

MR BLACKBURN: Your Honour, there are very few mechanisms by which a single member can address those matters. There were - and I have copies of the rules with me, but there are very few mechanisms by which a single member can deal with those matters. If I could take your Honour to the sequence of events at paragraph 17, in July of this year, Ms Drimatas said she became aware through the State branch that the national office had begun negotiating an award with the Club Managers Association and that issue was one of considerable concern to Burswood and other AHA members as she had not been advised of the status of the negotiations and had not been provided with any documentation in respect of draft clauses.

PN738

Paragraph 18, Ms Drimatas says that she attended a meeting held by the WA branch on 5 July and was advised that negotiations had taken place for some time - had been taking place for sometime between the AHA and the Club Managers Association and those matters were further discussed at meetings of the AHA WA Branch Industrial Relations Consultancy Group on 5th, 11th and 17 July 2002 and she attended each of those meetings. At paragraph 19, Ms Drimatas says as a result of the concerns expressed by the AHA WA members, the WA branch wrote to the national office on 26 July outlining their concerns over the lack of communication on the matter and that letter is annexed and marked B.

PN739

Now, this letter, your Honour, is annexure B, deals with the situation regarding lack of communication that had occurred up until July 2002. It is addressed, it is over the signature of Mr John Fitzpatrick who is General Councillor of Industrial Relations of the WA Branch to Ms Bergmann-Hana. He says in the second paragraph:

PN740

As you know the award is a sensitive and controversial issue for many members. We believe that it is not only important that the award is dealt with appropriately but that the process is one which involves as well as being seen to involve the following characteristics. Open and frank communication with members, direct participation of members in the process, transparency in relation to the activities conducted on behalf of members. Going forward, we believe it is important to ensure that there is an appropriate procedure in place to ensure that members have direct participation in the process.

PN741

PN742

He then, under item 1, says:

PN743

Our understanding from previous discussions with you is the approach which was taken by the AHA National Office was on the basis of participating in awards simplification and that activity had been undertaken on ....reads....April 2002 would have been major issues of concern that should have been reported immediately and made subject to further consideration.

PN744

The information over the page regarding the new dispute findings set out in your memo of 16 July have not been disclosed to us previously and it is a matter of disappointment to us that this information is being ....reads..... our members and other State branches have regarding the level of communication and consultation and we would like to see that going forward there is an upgrading level of communication, consultation and cooperation.

PN745

That is from the State branch to the national office, in fact, your Honour, as will appear from the correspondence there was no such upgrading at all, in fact there was a deterioration from that point. Your Honour, if I could return to the affidavit, Ms Drimatas says that, at paragraph 20 that:

PN746

As a result of the concerns that have been raised by WA members that a Industrial Relations Subcommittee was formed to specifically address the issues associated with the Federal Award.

PN747

She was a member of the subcommittee and the first meeting was held on 25 July. She was not able to attend at that meeting as she was away for 1 month from 23 July. There was subsequent meetings on 2 August and 27 August. She advised the branch that she was not able to attend the meeting of 27 August but she received copies of minutes and all associated papers. She says at paragraph 22:

PN748

On 5 September I received by email from the AHA branch a copy of a draft interim award dated 8 August 2002.

PN749

Now, your Honour, until Wednesday I think it was, 6 August, when Burswood received a copy of the proposed consent award, this is the only award document or the only document containing any draft clauses that Burswood ever received in relation to this matter. It was the draft interim award dated 8 August 2002. She says in her affidavit:

PN750

It was not clear who proposed the award and whether it represented an agreed position. Furthermore, the content of the award seemed to bear ...reads.... The email from the AHA WA Branch requested that we consider the draft award and reply prior to 12 noon on Friday, 6 September.

PN751

That was prior to 12 noon the following day. On the next paragraph, your Honour, 12 September Ms Drimatas says that she emailed Mr Fitzpatrick seeking advise on whether the interim award dated 8 August was the most recent draft and asked if it wasn't for the latest version to be sent and she also indicated in her email that she was confused as to whether it was the most recent draft. Mr Fitzpatrick replied and his reply is annexed and marked as attachment C. In his reply, your Honour, Mr Fitzpatrick says certainly in the second paragraph:

PN752

Certainly I would not categorise your questions as being silly. This is a serious matter and I can understand Burswood's particular concerns especially bearing in mind the potential agenda of the Miscellaneous Workers Union. One, the interim award is the most recent one we have received and I believe it is the current working document.

PN753

And attached to that at the back, your Honour, is the email which Ms Drimatas sent indicating that she was confused as to what version people were working from. Ms Drimatas then goes on at paragraph 25 to say that as a result of being unable to attend the meetings that occurred while she was on annual leave she and Michael Kidd, the General Manager, Human Resources of Burswood met with John Fitzpatrick on 11 September and at that meeting Mr Fitzpatrick to draft a letter to the national office detailing Burswood's concerns and he agreed to forward a copy to Burswood for Burswood to review. The letter would go on the letterhead of the WA branch. Ms Drimatas said that she followed this matter up with Mr Fitzpatrick on a number of occasions and finally received a draft on 17 September and that is annexed and marked D.

PN754

Now, your Honour, this is potentially important attachment in view of what I suspect that the AHA might say. The significance of this letter, firstly is that it was drafted by the AHA WA branch. It was going to be addressed - it was addressed to the Federal office and it raised a number of questions. Now, it follows from that the WA branch did not have the answer to those questions, but something else also flows from this letter and that is under A. I think, your Honour, that a subsequent version of this letter was copied to your Honour by the AHA subsequently, but under paragraph (a) well, perhaps in the third paragraph down, Mr Fitzpatrick says:

PN755

Burswood are concerned to ensure their position as an employer is protected.

PN756

And they have indicated that one of the options that they are considering is whether it is appropriate for them to make an application to intervene in the proceedings:

PN757

Their willingness to contain representation, to continue to retain representation by the AHA is dependant on the issues set out below being addressed and communicated to them. So they can make an informed assessment regarding whether they believe their interests is being adequately represented by the AHA.

PN758

This is Mr Fitzpatrick of the WA branch speaking. Then he says under paragraph (a):

PN759

Whether Burswood considers it is appropriate to be bound by the award. Burswood are concerned regarding whether any Burswood entity should agree to be bound by the award.

PN760

So they still considering their final position. At this stage they do not wish any Burwood entity to be named as a respondent, well, of course, that was never going to occur. They are considering whether they wish any Burswood entity to be bound by the award. One of their concerns is regarding the current wording of the exemption clause 4.3.1 and they have requested that be amended to read: Gaming Establishments holding a casino licence or a casino complex under relevant State legislation. That, at least, your Honour, would exempt the casino operations which Burswood had, but as the letter indicates, Burswood had a number of employing entities and still had to decide whether its other entities should be - whether Burswood should seek to have its other entities excluded. This appears on the following page, your Honour, where Mr Fitzpatrick writes:

PN761

Burswood is in a unique position amongst casino operators in that it has several employing entities relating to different business activities at Burswood. They are concerned that their decision regarding whether they are agreeable to any of their employing entities being bound by the award is dependent upon an assessment of the strategic direction and likely outcome of the proceedings.

PN762

THE SENIOR DEPUTY PRESIDENT: What are the award arrangements for those other employing entities that are present on?

PN763

MR BLACKBURN: The Hotel and Tavern Workers Award, your Honour, the State Hotel and Tavern Workers Award applies and also, of course, as mentioned earlier the current Hotel Managers Award applies to Burswood because there is not currently an exemption for casinos as I understand it. Your Honour, the affidavit, the significance of that, your Honour, is not only here is the - yes, the significance is twofold, not only is the AHA WA branch requesting advice as then appears further down that page:

PN764

In relation to issues such as rates of pay, overtime, penalties and so forth, whether there have been any terms agreed or finalised and if so please identify those terms.

PN765

Not only is the WA branch asking the Federal office to provide information which indicates that the WA branch does not have, but also the WA branch or, at least, Mr Fitzpatrick is aware that there are some versions of entities that currently as matters presently stand could be bound by the award and Mr Fitzpatrick was also aware that Burswood was in the process of making a decision as to whether it wished those entities to be bound by the award or not and that would depend on receiving advice from the AHA about the award proceedings and the status of matter in the various claims that have been made and so forth.

PN766

So Burswood's position at that point, your Honour, was that it was aware that there was an exemption for casino complexes generally or that an exemption had been proposed and was likely to be agreed. That would exempt most other casino hotels, if not all other casino hotels, but it wouldn't exempt the Burswood Hotel for the reasons that I've outlined. So their decision that they had to make was, okay whether or not to say well that is fine we don't mind the award applying to Burswood Hotel or whether to say look, can we amend that wording so that the Burswood Hotel along with other casino hotels is excluded from the award, and that was basically the decision that Burswood had to make and it was a decision which they required information about the award proceedings in order to make it.

PN767

Your Honour, at paragraph 26, Ms Drimatas said on 20 September she had a further discussion with Mr Fitzpatrick. She received a reply from on 24 September which didn't address the specific concerns that it had raised. However, it indicated that the AHA WA would not oppose Burswood intervening if that was its ultimate decision, well obviously that position was changed. That by the way, Your Honour is - - -

PN768

THE SENIOR DEPUTY PRESIDENT: Well, AHA WA isn't here before me today, is it?

PN769

MR BLACKBURN: Well, it probably does not exist, your Honour. Sorry, it may exist under the State system. Yes, one wonders then why Mr Fitzpatrick wrote that, but nonetheless he did and it is part of annexure E. Your Honour, the email also which is annexure E, and I will go to that, also confirms something else which is of interest as at 24 September. At annexure E, on the last page, Mr Fitzpatrick endeavours to provide some information in relation to the status of the matter and this was dated 24 September and under paragraph 6 he says:

PN770

The AHA National Office has taken on board your concerns regarding classification structure. Jane Bergmann-Hana pointed out that numerous submissions have been received regarding classification structure and definitions and that various proposed options were set out in her fax of 16 September 2002, copy of which has previously been forwarded to you. Jan Bergmann-Hana indicated to Bradley that she believed that she would be in a position to circulate the proposed definitions late in September or early in October.

PN771

The point being, your Honour, as at 24 September the AHA had not made clear its position in relation to classification structures and definitions. Yet it circulated an options document on 16 September and stated that it believed that it would be a position to circulate proposed definitions late in September or early October. I can advise your Honour and it will appear from the affidavit that no definitions or classifications or anything at all was provided that would meet that description, certainly no proposed definitions.

PN772

Prior to Burswood receiving the proposed consent award on Wednesday it had never seen a proposed definition of any sort, let alone the type which was referred to in that email. Your Honour, at paragraph 27, Ms Drimatas says that on 24 September and then subsequently on 3 October - 24 September she provided some amendments to the draft letter that Mr Fitzpatrick had sent to her which he was proposing to send on to the national office. She sent those revisions back on 24 September. She followed up on the status of the letter on 3 October and was advised that it was being reviewed by Bradley Woods, the Executive Director of the WA branch but he wasn't available for a further couple of days.

PN773

So the Burswood were trying to get the State branch to write and send this letter to the Federal office and there was this delay because it was on Mr Woods' desk and he wasn't available for a further couple of days to consider it. So finally Ms Drimatas says at paragraph 27, midway through the paragraph:

PN774

Given the considerable length of time that had already past and the urgency of the matter I wrote directly to the National Office on 7 October and requested an urgent reply. The letter sent to the National Office was based on the draft letter prepared by John Fitzpatrick.

PN775

And that is annexed and identified as annexure G. Your Honour can see in the letter, the letter headed: Burswood International Resort Casino, and then under A: Award Coverage, there is a statement that Burswood is in a unique position, has several employing entities, etcetera and its decision as to whether it is agreeable to any of those entities being bound by award is dependent on an assessment and the direction and likely outcome of proceedings and in that regard Burswood requires information. Until this information is - I am unable to make a decision on whether any of our entities should agree to be bound by the award. Then there is the further reference to the exemption to apply in relation to casinos and that is all straight out of Mr Fitzpatrick's letter.

PN776

There is then under paragraph (b) a request for specific information:

PN777

I require the following information from the AHA as a matter of urgency to assist us in properly considering our position. What is the current status of the ....reads.... and classification structure. And finally, whether there have been any terms agreed or finalised and if so please identify those terms.

PN778

In other words your Honour, Ms Drimatas and Burswood had very little idea where the matter was at, what the AHAs position was, whether any terms had been agreed and was asking the AHA for that information. The WA branch not having that information. At the same time at attachment H, your Honour, Ms Drimatas sent a facsimile to - an email, sorry, to the State branch saying that:

PN779

Further to our conversation today I wish to advise you that unfortunately due to the urgency of the matter we cannot hold off any longer in sending the letter to the National Office, therefore I will sending a letter today under my signature outlining Burswood's concerns. The concerns I will outline will be taken from the letter that was going to be send by Bradley.

PN780

Meaning Bradley Woods. Your Honour, no response was received and then we go straight to attachment I. A week later Ms Drimatas again wrote to the national office, Ms Bergmann-Hana, saying:

PN781

I refer to my facsimile dated 7 October in which I requested further information in response ...(reads)... close of business on Tuesday, 15 October 2002.

PN782

Well, I think at that time there were proceedings set down - I think there were directions that your Honour issued for final submissions to be in by 25 October and Ms Drimatas was obviously mindful of those. Now, as appears in paragraph 28 of the affidavit, Ms Drimatas sets out the positions I have indicated earlier as can be seen from the letter:

PN783

We requested advice as to the AHAs position in relation to rates of pay, overtime and so forth whether there had been any terms agreed or finalised in the likelihood of the LHMU becoming party to the award.

PN784

Ms Drimatas says:

PN785

At the time of writing, Burswood understood that the award was not intended to apply to casino complexes ...(reads)... impact of the award on the hotel's operations.

PN786

She says on 14 October:

PN787

As I have not received a response I again write to the national office.

PN788

That is attachment I. Then on the same day Ms Drimatas received a reply from the national office which did not provide any of the answers sought.

PN789

THE SENIOR DEPUTY PRESIDENT: Well, if we get past that, just go to attachment J, if you would.

PN790

MR BLACKBURN: Yes, your Honour, attachment J is the reply, yes.

PN791

THE SENIOR DEPUTY PRESIDENT: Could I just go to that?

PN792

MR BLACKBURN: Yes.

PN793

THE SENIOR DEPUTY PRESIDENT: It says there:

PN794

We were informed by our Western Australian branch that you are a member of the AHA WA Investor Relations Consultative Group who provided a detailed analysis of the issues in respect of the Federal Hotel Managers' Award.

PN795

Now, I note from the affidavit of Ms Drimatas that there are a number of occasions she didn't attend meetings. Why should the AHA be responsible for the fact that she was not briefed because of her inability to attend meetings?

PN796

MR BLACKBURN: Yes, your Honour, there were several meetings, three I think in fact, that Ms Drimatas was not able to attend and - - -

PN797

THE SENIOR DEPUTY PRESIDENT: Well, I think she says first of all there was:

PN798

As a result of being unable to attend a number of meetings...

PN799

this is in paragraph 25.

PN800

MR BLACKBURN: Yes, your Honour, there were three. In paragraph 20 she was unable to attend the meeting on 25 July. In paragraph 21, 2 August, then 27 August. So there were three meetings.

PN801

THE SENIOR DEPUTY PRESIDENT: Is that the reference in paragraph 25 to a number of meetings, is it?

PN802

MR BLACKBURN: Yes, it is, your Honour, yes. Consequently, your Honour, as a result of that - and Ms Drimatas says she read all the papers that were circulated and the minutes of those meetings - and as a result of that she met with Mr Fitzpatrick subsequently and received from Mr Fitzpatrick, in fairness to him, I believe all the information Mr Fitzpatrick had. Then there was further correspondence with Mr Fitzpatrick and Mr Fitzpatrick agreed to write that letter to the federal branch to try to get more answers. It appeared to Burswood that the WA branch simply did not have the answers and there was quite a bit of liaison with Mr Fitzpatrick in an effort through him to try and obtain information from the national office.

PN803

As far as we were able to tell from where we stand, it is the national office which failed to provide the information to the WA branch because certainly every time Burswood spoke to the WA branch it didn't have the answers and we have no reason to believe the WA branch would withhold answers or information that it had. So Burswood and Ms Drimatas, your Honour, had made a strong attempt to obtain the information from the AHAs WA branch and had consulted with the AHAs WA branch to account them, to make up the fact that Ms Drimatas had not been able to attend those meetings and reviewed all the papers in relation to those meetings and simply the information wasn't there and Mr Fitzpatrick didn't have the answers.

PN804

THE SENIOR DEPUTY PRESIDENT: What information are you referring to?

PN805

MR BLACKBURN: Your Honour, information such as the position of the AHA in relation to various award clauses such as classifications, rates of pay, transitional structures, penalty rates, definitions, exemption clauses, the particular clauses which provide that you pay a certain amount over the base rate you get exempted from certain clauses, those clauses as well. The first time mentioned exemptions, scope of the award, all of those issues, your Honour, there was simply - - -

PN806

THE SENIOR DEPUTY PRESIDENT: As I understand the letter that you took me to during the course of this address, or one of the letters in any event, the AHA was asking the membership: what is your position, what do you want? It seems that Burswood is coming back and saying: well, tell us what the information is. I mean, AHA was seeking from its membership some indication of how they wanted the matter dealt with.

PN807

MR BLACKBURN: Your Honour, I don't think that would appear from any of the letters I took you to.

PN808

THE SENIOR DEPUTY PRESIDENT: Well, if you go to the letter of - you took me to a letter that said: please let us know something by 12 September, as I recall.

PN809

MR BLACKBURN: Yes. I think there was one. It was when the interim award dated 8 August was provided.

PN810

THE SENIOR DEPUTY PRESIDENT: Yes.

PN811

MR BLACKBURN: They asked for a response by the following day. So they provided a copy of the interim award which bore little correlation to the discussions that had occurred previously. The award was dated 8 August. I think it was provided on 5 September. They asked for a response by noon on 6 September and that is that document. Your Honour, there is no doubt that Burswood participated in meetings - - -

PN812

THE SENIOR DEPUTY PRESIDENT: When they attended a meeting.

PN813

MR BLACKBURN: Sorry, your Honour?

PN814

THE SENIOR DEPUTY PRESIDENT: When they attended them.

PN815

MR BLACKBURN: Yes, yes, participated in meetings in which a number of representations were put forward and we believe passed on to the federal office. So there is evidence that there was information going forward to the federal office. What we didn't get was anything coming back from the federal office saying: okay, we've received the information, this is the position, what do you think of that? There was never anything coming back. There was no classification structure coming back. We didn't know whether it was a 7-level structure or a 2-level structure or 1-level structure. We didn't know what any of the definitions were or what the rates of pay were or would be or what the AHA contemplated.

PN816

Then we move ahead, your Honour, and all of a sudden we find that lo and behold, the consent award has been all bar made. Burswood is now starting to panic, I guess, for want of a better word, because it is quite obvious that the matter is now reaching - getting closer to, at that point, we thought arbitration. Directions had been issued for final submissions to be lodged and Burswood and other WA employers wanted to see a copy of those submissions before they were lodged so that they could comment on them so they could see what the position was that the AHA was going to contend, argue for, in any arbitration and so that Burswood could decide on the position with respect to its particular hotel, whether it should seek to be exempted along with all other senior hotels.

PN817

So finally when it could not send the - or when the state branch was for various reasons slow in sending the letter that it had agreed to send to the federal office to obtain information, Burswood wrote itself to the federal office and then got this reply back from Ms Bergmann-Hana and in it - - -

PN818

THE SENIOR DEPUTY PRESIDENT: Sorry, which one are you referring to?

PN819

MR BLACKBURN: Annexure J, your Honour.

PN820

THE SENIOR DEPUTY PRESIDENT: Yes.

PN821

MR BLACKBURN: In it Ms Bergmann-Hana says in the second paragraph:

PN822

We have complete confidence that the AHA WA branch will provide feedback on your behalf ...(reads)... members who are already represented.

PN823

We have taken the liberty of copying your correspondence to your Honour.

PN824

THE SENIOR DEPUTY PRESIDENT: Isn't that right? If there is a branch that has been provided with the information, isn't the organisation entitled to rely on the representations being passed on to the branch membership?

PN825

MR BLACKBURN: If the system was functioning properly, yes, your Honour, it would, but bearing in mind the request for information was a request drafted by the WA branch which Burswood then sent because the WA branch was slow in sending it, but the request was drafted by the WA branch indicating that the WA branch didn't have the answers. Not only did the WA branch not have the answers, it was prepared to write to the national office on Burswood's behalf but was slow in doing so and time was passing by. So at that point, Burswood having no other option, went direct to the national office and was basically told off for doing so.

PN826

Burswood had no other option at that point because the state branch didn't have the answers and was delaying in sending the letter that it had agreed to send. The agreement to send that letter was I think reached on 11 September, so almost a month had passed.

PN827

THE SENIOR DEPUTY PRESIDENT: In the paragraph on page 2 the AHA says in relation to the classification levels said level 5 supervisor. Has that matter been taken into account?

PN828

MR BLACKBURN: Yes, your Honour. There was a number of references to that effect but we had no indication as to how it was taken into account. Again, no definitions provided, no classification structure was provided, no information was provided at all. To simply say: well, it has been taken into account, gave Burswood no great comfort. Your Honour, if I can return to the affidavit at paragraph 31. Ms Drimatas states that on 14 October she attended the Industrial Relations Sub-Committee meeting held by the AHA WA branch and at that meeting he raised a number of concerns including the lack of information provided, the status of the interim award and the exception for casinos. The draft minutes of that meeting which had been prepared by the AHA WA state and she quotes:

PN829

Mr Fitzpatrick noted that Burswood was in a unique position amongst casinos in that it had several employing entities relating to different business activities within the Burswood organisation. This meant that Burswood had to consider issues regarding whether it wished to be subject to the award.

PN830

So again Mr Fitzpatrick there on 14 October is reiterating what he said in the letter that he drafted in early September. He knows that Burswood has an issue, that it isn't as things presently stand going to be wholly excluded and that it has to consider whether it wishes all its entities to be subject to the award. Your Honour, at paragraph 32, and I should add that I have a copy of those minutes with me. We have not attached them to the affidavit simply because - for reasons, I guess, of industrial practicality but if the AHA wishes them to be provided I have a copy of them with me. At paragraph 32 Ms Drimatas says the draft minutes state that:

PN831

It was agreed that AHA WA should request that the AHA national office should provide copies of the following documents.

PN832

There was reference to the schedule of proposed inspections, the schedules of inspections lodged by the other parties, and then in the affidavit the material the AHA national office proposes to submit to the AIRC on the basis that this is provided within a reasonable time before the date when it is required to be submitted so that AHA WA members have a reasonable opportunity to comment on that material. She says Burswood never received this material.

PN833

Your Honour, that is in the minutes of the meeting of the AHA WA branch Industrial Relations Sub-Committee on 14 October 2002. They were requesting a copy of that documentation so they could comment on it in sufficient time. She then says on 16 October having in effect been reprimanded by Ms Bergmann-Hana for writing to the national office directly:

PN834

Burswood subsequently wrote to the national office outlining the reason for having written directly ...(reads)... letter also indicated we had engaged the Chamber of Commerce and Industry -

PN835

and that is myself, your Honour -

PN836

to assist with this matter.

PN837

Then a copy of that letter is annexed. So it was at that point that Burswood, having been frustrated by its inability to obtain information from the AHA through the usual channels, engaged myself to try to assist it to obtain the necessary information and if necessary liaise with the AHA. At paragraph 34, your Honour, Ms Drimatas notes that:

PN838

On 17 October Mr Blackburn on behalf of ...(reads)... with information as to the nature and extent of the claims maintained by the CMA and LHMU and AHAs proposed response.

PN839

So we didn't know what the unions were claiming, nor did we know what the AHA was proposing by way of a response:

PN840

As a result, Burswood had not been in a position to assess the extent to which ...(reads)... and the requested material was not forthcoming.

PN841

Your Honour, that is annexure L to the affidavit. If I could take your Honour to annexure L, it makes some very specific requests, none of which to this day have been met. Firstly, Ms Drimatas points out that - was a member of the AHA, then that the AHA has in recent weeks failed to provide Burswood or the WA sub-committee on which it is represented with information that is to the extent of the claims or proposed response, etcetera. Then over the page I say in this regard AHAs broad assertion that it will take BHPLs interest into account and represent those interests in the forthcoming proceedings is insufficient. BHPL needs to be informed so that it can assess these matters for itself.

PN842

To illustrate the extent to which AHA has failed to keep Burswood and the WA sub-committee informed of the progress of the current proceedings we are instructed that the WA sub-committee and BHPL have not bee informed as to the outcome of the LHMUs application to become a party to the proposed award and if the application has not yet been determined, whether the AHA is continuing to oppose it. The WA sub-committee and Burswood were advised by the AHA WA branch on 11 July 2002 - this appears in the minutes of the meeting, your Honour, prepared by the AHA - that AHA filed a submission opposing the LHMUs application on 5 July although we can find no reference to it in any transcript.

PN843

Your Honour, I might add that when Burswood caused a search to be conducted of the Commission's files, we were unable to find that submission on the Commission's files either. Next, the WA sub - - -

PN844

THE SENIOR DEPUTY PRESIDENT: Did you examine the transcript?

PN845

MR BLACKBURN: Yes, your Honour, I have read the transcript thoroughly. I can find no reference to any submission, any written submission filed by the AHA on that subject.

PN846

THE SENIOR DEPUTY PRESIDENT: Well, I don't know that there's a written submission filed but there were submissions made.

PN847

MR BLACKBURN: Your Honour, we were specifically told in writing and it appears in the minutes of the meeting of the sub-committee on 5 July that the AHA had - sorry, the sub-committee of 11 July - that the AHA had filed a written application on 5 July and that your Honour would decide the matter.

PN848

THE SENIOR DEPUTY PRESIDENT: I would have to go back and check the records myself but I seem to recall ruling on the issue of the LHMUs intervention.

PN849

MR BLACKBURN: The intervention, yes, your Honour.

PN850

THE SENIOR DEPUTY PRESIDENT: My recollection is that the AHA didn't agree to it or consent to it.

PN851

MR BLACKBURN: This was more the issue of whether the LHMU would be party to any subsequent award that was made. The AHA stated categorically in the minutes of the meeting and in fact in another notice, I think, sent by one of the branches, not the WA branch, to members that the AHA had filed a submission, a written submission, on 5 July.

PN852

THE SENIOR DEPUTY PRESIDENT: Yes, it had.

PN853

MR BLACKBURN: In relation to that matter.

PN854

THE SENIOR DEPUTY PRESIDENT: Well, I'm not sure whether it is in relation to that matter. I can't recall the exact terms of it. I think it went more to the content of the award.

PN855

MR BLACKBURN: Yes, we were unable to find any submission opposing the LHMUs application on the file or referred to in the transcript, your Honour.

PN856

THE SENIOR DEPUTY PRESIDENT: Well, I'm surprised about that but anyway, go on.

PN857

MR BLACKBURN: The next point is that the WA sub-committee and Burswood have not been provided with any recent information as to the position of the CMA or the LHMU in relation to those clauses remaining in dispute. Of particular importance to Burswood in this regard were the clauses dealing with wages and classifications, transitional arrangements, hours, overtime, penalty rates, parties bound and exemptions.

PN858

The next point was that the WA sub committee and Burswood had not provided with any draft award or copies of draft clauses proposed by HA subsequent to 8 August, nor had there been any indication that any such material would be forthcoming in sufficient time to allow the WA sub committee or Burswood to comment. The only written material which should have been provided in that regard was the draft interim award dated 8 August and a meeting with officers of the WA branch on 14 October, Burswood was given to understand that that award was no longer relevant.

PN859

Next, the WA sub committee and Burswood had not been provided with any draft submissions or outline of the argument which the AHA proposed to present in the proceedings which at that time we understood would be commencing on 4 November nor had there been any indication that the draft submissions would be forwarded in sufficient time to allow the WA sub committee or Burswood to comment and finally, the WA sub committee and Burswood had not been informed of the status of any interim award including whether interim award was still proposed to be made and if so, the form it would take - and including if there was no room at the respected positions of the parties.

PN860

The letter goes on to say that AHA national office had provided the WA branch with a copy of the letter sent to the Commission on 20 September setting out those matters in dispute, however, once again it wasn't clear from the letter whether firstly, the other parties accepted the HAs identification on the matters in dispute and secondly, and more importantly, whether in relation to those matters - in relation to those matters which HA considered to be in dispute, the nature and extent of the dispute and the parties respected positions.

PN861

And, your Honour, I note in this regard, I think we saw on the file a letter from the Miscellaneous Workers Union, who responded to the AHAs identification of the matters in dispute by saying: we don't know their position either. So we felt a little bit better about that and - - -

PN862

THE SENIOR DEPUTY PRESIDENT: Who - Miscellaneous Workers Union?

PN863

MR BLACKBURN: Yes, I think - it was either - yes, it - - -

PN864

THE SENIOR DEPUTY PRESIDENT: LHM - AH.

PN865

MR BLACKBURN: - - - yes, and said: but we don't know the HAs position either. Certainly, your Honour, the members and Burswood do not know the position which the HA was adopting in relation to those matters in dispute and we were then asked well, to enable Burswood to consider its interest and whether those interests are capable of being or will be adequately represented by AHA on 4 November, we ask you provide us with advice as to the status of the LHMUs application or whether the AHA is continuing to oppose that application? A copy of the written submission filed by HA on 5 July 2002 in opposition to the LHMUs application to be joined as a party to the award.

PN866

Copies of correspondence outlining the most recent positions of the unions. Copy of the draft award including an interim award which AHA will seek to have made in the proceedings, indicating those clauses which agreed and which are not. A draft outline and submissions which AHA propose to file with the Commission on 25 October. Advice as to what was proposed by each of the parties, but particularly AHA in relation to the making of interim award, wages and classifications, transitional arrangements, hours, overtime, penalty rates, ..... bounds, and exemptions.

PN867

THE SENIOR DEPUTY PRESIDENT: Just before you go on, Mr Blackburn - - -

PN868

MR BLACKBURN: Yes, your Honour.

PN869

THE SENIOR DEPUTY PRESIDENT: - - - that document is on file by the way.

PN870

MR BLACKBURN: Which one, your Honour?

PN871

THE SENIOR DEPUTY PRESIDENT: The one that you said you couldn't find on the file, it is right on the back of the file.

PN872

MR BLACKBURN: Well, my apologies, your Honour, the - we engaged, as your Honour is aware, Arnold Block Lever, to search the file for us and - - -

PN873

THE SENIOR DEPUTY PRESIDENT: Yes, could I also indicate to you before you go on about that, there seems to have been some confusion about that. My directions do not say that the submissions had to be filed. That original submission or tender - there appears to be a confusion, it was also in minder of the club manager and the AHA helped the LHMU as far as I could see, because my direction was that the parties should identify or isolate for me what the matters that they contend are an issue and then there was to be a subsequent filing of submissions.

PN874

MR BLACKBURN: Yes.

PN875

THE SENIOR DEPUTY PRESIDENT: Now, the AHA complied with that.

PN876

MR BLACKBURN: Yes.

PN877

THE SENIOR DEPUTY PRESIDENT: There was no compliance from the union, but the union said: well, that didn't fill the bill as far as my directions were concerned. I haven't taken that up with anybody at this stage but that complied as far as I was concerned with the requirements of the matters that were going to be an issue for the AHA.

PN878

MR BLACKBURN: Yes, your Honour, we don't - we don't suggest otherwise but what we do say is that that was all that we had, that was all that Burswood had, that was all the WA members had in terms of the HAs position. So that was all the information we had, we didn't know what the HAs - like the LHMU, we didn't know what the HAs position was or was suppose to be in respect of any of those matters. We were conscious that were other directions which required submissions to be filed later by 25 October and we requested a copy of those submissions in advance of their being filed so that we could understand and comment upon the HAs position.

PN879

Your Honour may recall that email advice from the WA branch from - indicating that Ms Bergmann had them in September, was going to provide some - was going to be in a position to provide some definitions and classifications in either September or early October, we have not received any of that. So there was simply no information provided to Burswood or for that matter, the other members of the sub committee as far as we are aware in respect of the AHAs position. And finally, your Honour, we ask the AHA to advise how once Burswood had had an opportunity to consider the material, which we fully expected would be provided, Burswood interest could be taken into account and represented by the AHA given that the AHA was required to file its submissions by 25 October.

PN880

So at that point Burswood was desperately trying to get this information from the AHA in order to be able to comment before the AHA filed its submissions in the Commission after which point it seemed to us it would be very difficult to input into that process. Your Honour, the reply to that letter came on 18 October and is annexure N. It is from Ms Bergmann-Hana who says very shortly in the second paragraph:

PN881

We will continue to deal directly with Burswood Casino through our WA Branch and Burswood Casino had been thoroughly consulted.

PN882

This is a standard response, your Honour, Burswood Casino had been thoroughly consulted - thoroughly consulted every time Burswood asks for specific information. They don't get the information, they just get a reply saying: look, you've been thoroughly consulted.

PN883

THE SENIOR DEPUTY PRESIDENT: But it says also in that very last paragraph that Burswood has failed to - or chosen not to attend a number of important meetings held by AHA WA Branch.

PN884

MR BLACKBURN: Yes, your Honour, that was the - the response, it was the line that was then taken. That is a reference, your Honour, to those three meetings and as I've indicated, your Honour, Burswood had met with Mr Fitzpatrick and liaised with him on a number of occasions both by telephone and email subsequent to those three meetings and attended every meeting after that. So it was three meetings, two of which occurred while Ms Drimatas was overseas and the third which occurred on a day - and I understand Ms Drimatas advised Burswood she would not be available that day and she was asked for the dates by the AHA when they were convening the meeting.

PN885

She told them she would not be available on that date and said any date other than date: because I'm in Court on that day, and that day was the day the meeting was listed and Ms Drimatas has failed to give evidence to that effect if required.

PN886

THE SENIOR DEPUTY PRESIDENT: All right, well, presumably there is more than Ms Drimatas' - - -

PN887

MR BLACKBURN: Yes, there are, your Honour, there are.

PN888

THE SENIOR DEPUTY PRESIDENT: - - - convenience to be taken into account.

PN889

MR BLACKBURN: Yes, there are. Sir, annexure N was the short reply that I received from Ms Bergmann-Hana and that was in fact the only reply we got to the letter at all. So on 21 October I again wrote to Ms Zeitz and that is annexure N reiterating in the third paragraph that Burswood had not received any of the information or advice requested in the letter of 17 October or any indication that the advice would be forthcoming in time for it to comment before the AHA filed its outline of submissions and I asked before Burswood considers its future course of action could you please confirm by return facsimile whether and if so when AHA intends to provide the information and advice requested by Burswood.

PN890

That generated a short response from Ms Zeitz - that is annexure O and she says:

PN891

I understand your client has received correspondence in reply from the AHA I'm not instructed to provide any separate response.

PN892

Then on - the next thing that occurred from Ms Drimatas's affidavit which was paragraph 37 she says:

PN893

On 23 October I sought confirmation by email from the AHA WA Branch that they had requested the material the National Office proposed to submit to the Commission on 25 October as was agreed at the IR sub-committee meeting held on 14 October 2002.

PN894

And the minutes recorded of that meeting recorded that in fact that that was the agreed resolution, that the WA Branch would write to the National Office requesting that position - that information in sufficient time for the WA Branch members to considerately respond. Ms Drimatas then says at paragraph 38:

PN895

On 25 October Bradley Woods replied indicating by email had been forwarded to the National Office and that in addition he had verbally requested the material.

PN896

There is no indication of whether he had in fact done so before, receiving the reminder from Ms Drimatas. On the same day Mr Woods sent a memorandum to the IR Consultancy Group, again confirming that he had sought an outcome of the ..... argument for the national office and was seeking further advice of the national office and their legal advisers with respect to the national position and their inclusion of WA issues. Subsequent to that, on 28 October, Ms Drimatas says: in order to gain some understanding as to status of the matter and what had passed she caused a search to be conducted to the Commissioner's file, and we are grateful to your Honour for facilitating that.

PN897

Your Honour, at paragraph 40 Ms Drimatas says: that on 30 October, so we are now getting fairly close, Mr Woods advised Burswood and other AHA members that he and WA Branch-President, Michael Monahan, had met with representatives of the national body that day in relation to the proposed award. Mr Woods advised that the meeting had been extremely successful and that as a result of the meeting the following outcomes sought by WA had been achieved and would be included in the AHA national body submission of outline and argument. Firstly: a spot rate for managers will be pursued based on 110 per cent of the Metal Trades Award rate. 110 per cent, your Honour, comes out at $577.72, and as you know the final award provides for 115.

PN898

Secondly: the level 1 Manager classification level under the Federal award will be argued to be based on grade 3 supervisory rate under the WA State award rather than level 5 under the Federal award. Your Honour, Ms Drimatas says:

PN899

I'm aware that 110 per cent of the Metal Trades' rate is 577.72 a week and the rate for a grade 3 supervisor is currently 491.50.

PN900

I will come back to that annexure in a moment, your Honour. Paragraph 42, she says:

PN901

At the same time the memorandum also stated that "if our agreed position put by the AHA is accepted by the unions we envisage the matter proceeding to a consent award early in November."

PN902

Ms Drimatas has attached a copy of that memorandum that was received from Mr Woods on 30 October. Now, there's a covering letter to Burswood and then attached is the facsimile from Mr Woods. It indicates that he and Mr Monahan, the State branch-president, have met with representatives of the national office. The meeting, in the third paragraph:

PN903

The meeting was extremely successful with the WA issues of concern had been fully addressed.

PN904

THE SENIOR DEPUTY PRESIDENT: Yes, I've actually read that.

PN905

MR BLACKBURN: Sorry, your Honour?

PN906

THE SENIOR DEPUTY PRESIDENT: I read that a moment ago when you were - - -

PN907

MR BLACKBURN: Yes, thank you, and you will see then that there's a reference, Mr Woods refers to: the spot base rate for managers and the level 1 manager classification' level. Finally, the reference to: an agreed position, right at the end of the document:

PN908

The agreed position is accepted by the unions, we envisage the matter re the consent award.

PN909

Now, as Ms Drimatas says in paragraph 43: Burswood had a number of concerns arising from that memorandum. Firstly, or in particular, she didn't understand references to a spot base rate and the level 1 manager' classification. I should add, your Honour, that what Mr Woods has set out bears very little relation to what is now in the award, the proposed consent award. The rates that are proposed in Mr Woods' memorandum are significantly lower than the rates that are now - the single rate that is now been agreed upon in the consent award. Ms Drimatas says at paragraph 43:

PN910

If Burswood had a number of concerns in particular it did not understand the references to a spot base rate manager' classification. We had not seen any definitions and we did not know what the agreed position -

PN911

referred to in the memorandum, which was proposed to be put to the unions -

PN912

was.

PN913

So there was reference to the agreed position leading to a consent award, and Burswood has no idea what the agreed position is, and neither, for that matter, your Honour, in our view, with the other members of the WA sub-committee because Burswood, as a member of the sub-committee, has not received any information from the AHA that would assist in that regard. Ms Drimatas then says:

PN914

As a result I convened a meeting of members for the IR sub-committee at short notice without the AHA WA to discuss the issues.

PN915

The meeting was held on 31 October, which was the following day. However, due to the short notice not all members were able to attend. Those present expressed concern at the prospect of a consent award issuing without members having been appraised or consulted as to its content. It was agreed at that meeting to: request the WA branch to convene an urgent meeting of the IR sub-committee on Monday, 4 November to answer the questions previously raised and provide the information previously requested by Burswood.

PN916

On 31 October I sent two emails to Bradley Woods, the first of which requested the meeting and the second detailing the questions we wish to have answers and the information we required. We also indicated, in our email, that: a process of communicating with and gaining feedback from members needed to occur before any further negotiations towards a consent award took place. Your Honour, the reply came back, through another one of the members who attended that meeting, that Bradley Woods was interstate until late Tuesday, 5 November, and therefore a meeting could not be convened.

PN917

However, Mr Woods did commit to write to those who attended the meeting on 31 October to: provide feedback on the issues raised, and he committed to doing that by Monday, 4 November. Your Honour, annexed and marked Q and R are those emails, Q is the request from Burswood for the meeting, R is a longer email which states the concerns that Burswood has arising out of the memorandum that Mr Woods has sent, being that: it is not clear what is meant by spot-base-rate and the level 1 manager' classification, there's been no definitions provided. We are particularly concerned about this reference about a consent award and the so-called agreed position, we don't know what that agreed position is.

PN918

Then, it repeats in effect the request for the information that had been sought previously from Ms Zeitz. Burswood states, in the fifth last paragraph of that email:

PN919

As you are aware at the last meeting of the sub-committee it was agreed that you would write to the national office requesting a copy of their final submissions before they were filed in the Commission and sufficient time to allow the sub-committee time to comment.

PN920

Obviously we did not receive those submissions. Our concern now is that AHA will similarly enter into a consent award in the near future without - - -

PN921

THE SENIOR DEPUTY PRESIDENT: Can I just say about that: there have been no final submissions. The whole thing, the requirement for submissions was pre-empted by the parties entering into further discussions or negotiations.

PN922

MR BLACKBURN: Yes. Yes, I appreciate that, your Honour. At the time that - but no-one said that to us at the time that we were making these requests, and we were only aware of the information that we had gleaned from the Commissioner's file that certain directions had issued. The AHA had told us itself that: the submissions had to be filed by 25 October, they continued to tell us that that was the position that: submissions had to be filed by 25 October, but we weren't aware of anything to the contrary. In fact, until Mr Woods' memorandum of 30 October, we weren't aware that a consent award was in the offing. As far as we were aware: it was scheduled for arbitration commencing on 4 November.

PN923

THE SENIOR DEPUTY PRESIDENT: Well, it was only ever going to be a consent award if the parties actually agreed.

PN924

MR BLACKBURN: Yes, I appreciate that, your Honour, but again there was no indication to Burswood or the other members of the sub-committee as to the status of any negotiations or the likelihood of consent award, we were simply told that: submissions had to be in by 25 October. Fine, okay, but can we please have at copy of them beforehand so we can comment on them. But whether it was in the form of submissions or not, your Honour, there was simply no information of any sort from the AHA as to its position, whether an arbitration or that it was going to pursue in negotiations for a consent award.

PN925

So Burswood said: we are now concerned that the AHA will similarly enter into a consent award in the near future without at any time having allowed its WA' members to consider and comment on its proposals. Further, in our view, a process of communicating with and gaining feedback from members needs to occur before any further negotiations towards consent awards takes place. Over the page, your Honour, the next page is an email sent by a Mr Andrew Nodding, who was one of the attendees at the impromptu meeting convened in the absence of the AHA, and he says there that: he spoke with Mr Woods that afternoon and unfortunately wasn't back in Perth until Tuesday evening, therefore he couldn't organise the meeting, but he had committed to writing to each of those present at the day's meeting in order to provide feedback on the issues, and he distribute that by Monday, 4 November.

PN926

Again, your Honour, that wasn't received, at least not received by Burswood. I don't have anything to suggest that it was received by anyone else. Your Honour, the next thing that occurred, as Ms Drimatas says in her affidavit at paragraph 47, because on 4 November she did receive a letter from Bradley Woods. The letter did not address any of the issues raised in the previous correspondence, nor did it provide any of the material requested. Instead Mr Woods advised Burswood that: the AHA had been successful in exempting all casino operators in the award, and accordingly, from Mr Woods' view, Burswood no longer had any interest in the matter. That letter is attached at annexure S.

PN927

THE SENIOR DEPUTY PRESIDENT: Yes, I've read that.

PN928

MR BLACKBURN: Sorry, your Honour?

PN929

THE SENIOR DEPUTY PRESIDENT: I've read that.

PN930

MR BLACKBURN: Yes, thank you. Now, as Ms Drimatas points out, that represented a complete misunderstanding of Burswood's position. As the AHAWA General Counsel John Fitzpatrick had observed on 14 October and as is set out elsewhere in this affidavit, Burswood is in the unique position amongst casinos in that it has several employing entities.

PN931

Accordingly while the proposed wording excluded the casino, it did not exclude the hotel and that was something as we've seen, your Honour, Mr Fitzpatrick at least, the AHAs General Counsel Industrial Relations, was well aware of and had noted in the minutes of one of the subcommittee meetings. Ms Drimatas says:

PN932

Given everything that had transpired, the lack of any meaningful information or answers to our questions and the possibility that a consent award about which we knew nothing would be made on 8 November -

PN933

and I think she should say there "we decided" or "Burswood decided" -

PN934

that it would now seek an exception for the Burswood Hotel in accordance with other casino hotels around the country.

PN935

And it was at that point Burswood effectively gave up considering whether or not - was seeking to try and consider whether or not it was in its best interests to be covered by the award and basically said: look, bar these we are not getting any information. We want out along with every other casino hotel. And so she says that:

PN936

Accordingly on 5 November I rang Bradley Woods and advised him firstly that the existing wording did not exempt the hotel and secondly the BHBL now wished the hotel to be exempt from the award and this would require the wording to be amended.

PN937

THE SENIOR DEPUTY PRESIDENT: Tell me did Burswood - when the order was made by the minister in 1987 did Burswood then apply to the Commission to be exempted from the award that was then in place, the federal award?

PN938

MR BLACKBURN: I'm not aware, your Honour. I don't know what the relevant award provision would have been at the time, whether there would have been a general exemption. The award of course at that time was in a highly different form to what is now proposed.

PN939

THE SENIOR DEPUTY PRESIDENT: Yes, yes.

PN940

MR BLACKBURN: Your Honour, then attached is a copy of that letter which is attachment T simply advising Mr Woods of Burswood's decision and of the form of words that Burswood sought and as your Honour has indicated that the form of words as proposed may in fact be wider than is necessary to accommodate the Burswood Hotel but as is set out in the third-last paragraph Ms Drimatas says:

PN941

If the above wording is not accepted it appears Burswood will continue to be exposed to being bound by the award.

PN942

And Burswood are open and I believe that Ms Drimatas had indicated to Mr Woods, and she is nodding her head at the moment, that if that wording was not accepted that the AHA could come back with some other wording that would protect Burswood Hotel interests and that was all that was required and all that was sought. At that point, your Honour, we thought the matter could be simply resolved without the need for all this.

PN943

Your Honour, at paragraph 51 - and I should add of course at that point Burswood weren't aware that consent awards had been virtually agreed. At paragraph 51 Ms Drimatas says:

PN944

On 6 November I received advice from the Chamber of Commerce and Industry myself to the effect that the AHA and the CMA had agreed on the terms of the consent award ...(reads)... 30 October 2002.

PN945

Ms Drimatas goes on and says:

PN946

In his advice of 6 November Mr Woods also asked that we forward information explaining why the hotel was not included in the definition of casino complex under the state act. Mr Woods stated this information had been requested by the national office to assist in the matter.

PN947

A copy of the memorandum from Mr Woods indicating firstly that - well firstly requesting that additional information from Burswood as to why the current wording in the exemption clause wouldn't apply to it and secondly advising of the consent award that had been reached, that appears at annexure U.

PN948

Your Honour, Ms Drimatas at paragraph 53 says:

PN949

Later that day -

PN950

this is on 6 November, Wednesday -

PN951

I received a further email from Bradley Woods' office asking the Industrial Relations Subcommittee to review the award as it was proposed to convene a meeting of the subcommittee within the next few days to discuss it.

PN952

Annexed hereto and marked B is a copy of this email. Your Honour, we attach this email because it seems to us to be just simply symbolic of really the whole process of consultation. Here is the AHAWA branch on Wednesday 6 November for the first time providing the subcommittee with a copy of the draft award and saying that:

PN953

Could you please review the award as it is proposed to convene a meeting of the subcommittee to discuss the revised award. I will contact you with details of the meeting within the next few days.

PN954

The only problem of course, proceedings had been listed for Friday to make that consent award. So one wonders what the purpose of any possible review by WA members of that meeting whenever it is held would be. But the other point of course, it is obvious from that, that the members are not being told that the matter is to proceed to the Commission on the Friday.

PN955

Ms Drimatas says at paragraph 54:

PN956

On 7 November I sent Bradley Woods a letter outlining the relevant decisions of the Casino Control Act and a copy of the order issued by the honorary minister in 1987 declaring the hotel was excluded from the casino complex for the purpose of the Act.

PN957

And that of course was annexure A which was the first annexure that I took your Honour to:

PN958

On 7 November I also spoke to Bradley Woods and I requested that I be advised as a matter of urgency whether the CMA and the AHA national office accepted Burswood's proposed wording. Mr Woods advised ...(reads)... national office every hour.

PN959

Finally, your Honour:

PN960

Later that day Mr Woods replied to my letter in relation to the effect of the Casino Control Act stating only that it was regrettable that this issue has not been brought to his attention previously.

PN961

The letter did not indicate whether the AHAs national office or the CMA had been approached regarding the matter and a copy of that letter, your Honour, is attached as annexure W. Your Honour, the situation from our perspective ought be evident now from the affidavit and the annexures. Burswood has made every attempt to obtain information from the AHA through its WA branch and its national office and has simply been denied that information.

PN962

As a consequence it came to a decision in the end that it did not wish to be covered by an award that it had no knowledge of and had not had any information about and sought to be exempted from the award in the same way as all other casino hotels sought to be exempt from the award and in the circumstances, given that it is in some respects by way of a technicality that Burswood is not already - the hotel is not already covered by the existing clause and given that we have been told by the AHA on previous occasions that it is intended that gaming establishments and casino hotels would be excluded and that that in fact was the AHAs belief or so we are told now by Mr Woods and I've been advised by Ms Zeitz that that was the case as well, that that was the AHAs belief, notwithstanding Mr Fitzgerald's obvious knowledge to the contrary.

PN963

We would have thought that was a simple matter and wouldn't have necessitated our having to come over here to intervene in the proceedings. We didn't want to intervene in the proceedings. I have great sympathy for the position which Mr Cooper put at the start and we would hope that if we are granted leave to intervene because we don't believe that our interests have been represented by the AHA or are capable of being represented by the AHA or that we haven't had a good opportunity to be heard, if we are granted leave to intervene, your Honour, we would request that an adjournment of the proceedings and either directions to facilitate discussions between Burswood, the AHA and the Club Managers Association and perhaps even conciliation, your Honour, because I would have thought this was a simple matter that could be resolved if it is the intention of the parties, of the award parties that the award not apply to casinos and hotels associated with casinos.

PN964

Your Honour, failing that if there was not to be a happy outcome out of any such conciliation if we were granted leave to intervene, then we would seek to achieve that position by arbitration to effectively put our submissions to you on that point. Thank you.

PN965

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Blackburn. Mr Cooper, did you want to respond first of all to Mr McDonald's application?

PN966

MR COOPER: I think the Commission has been used as a dispute and grievance settlement process between a member and its own organisation. I care to make no observations in respect of the affidavit insofar as the communications between the national office of the AHA and their Western Australian State Branch and their Industrial Relations Subcommittee.

PN967

I thought it was enlightening to inform us in respect of that piece of legislation which excludes the hotel from the gaming complex considerations. That is of information to us today. When we decided to meet on 1 November I was under the understanding the AHA had consulted widely with its membership and Mr Mulcahy was in attendance at that meeting and he tried to convey to me that there were membership issues, that they had got on top of those.

PN968

There was an adjournment called during our negotiations that Friday where further consultation was being made with his membership. Now, I didn't inquire as to who he was consulting. I'm not aware of their national executive, national counsel or other representative bodies but the executive officer of the AHA was there and sought an adjournment to consult with others.

PN969

So the good faith part in us again, we were there on track to reach an understanding on a consent award. So of the affidavit, as I say I make no observations about the internal wranglings between a member and its national body but the other matter which is of concern to me is that it would appear that as identified in this affidavit in point number 10, 9 and 10 where it identifies that the hotel operations are covered by two awards for some of their senior supervisors and lower managers and that is the awards being identified as in the Western Australian Award which is the Hotel and Tavern Workers Award of 1978 and also some others being covered by the Hotel Managerial Staffs Award.

PN970

So I think if that is the status quo at the moment that we believe there should be no exemption granted for them not being party to the new award. It was our intentions to exclude casinos and I was satisfied with the wording the parties had negotiated, talking about gaming establishments, casinos/complexes would cover the field adequately. As I indicated up front, we are again a little bit disappointed that this matter has yet again stalled.

PN971

It has been on the go since Vice President Ross had it more than 2 years ago and I think you have had it now for about 18 months and we've - when Dan Edmonds, the executive officer of the industrial relations part advised you in the first instance, probably I think it was June 2001 that the AHA would be on a process of consulting with its state branches, and I think that is on transcript, all the way through we have made no observations of their undertaking to their own members and still today we make no observation on that issue.

PN972

Would you like me to make some comments insofar as the employer's first application?

PN973

THE SENIOR DEPUTY PRESIDENT: Sorry, the?

PN974

MR COOPER: Motels, motor inns.

PN975

THE SENIOR DEPUTY PRESIDENT: Yes, please.

PN976

MR COOPER: The existing award refers to residential hotels and the new award - residential hotels that have more than 50 rooms. The new award is proposing to replicate that but not call it residential hotels but call it accommodation hotels but the intention of the parties is to clearly define that this is an award made for the hotel industry, not for motels or other considerations and I think that discussions, further discussions with Mr McDonald may resolve some of those concerns that he had. So I consider that to be a reasonably straightforward matter and - - -

PN977

THE SENIOR DEPUTY PRESIDENT: Has Mr McDonald been in touch with you before today?

PN978

MR COOPER: Only a fax I received yesterday dated the 7th and I should point out too that really there is no final document we have to present to the Commission today. The program that was agreed to on the first of - - -

PN979

THE SENIOR DEPUTY PRESIDENT: No, I don't want to go into that just now if you don't mind.

PN980

MR COOPER: Yes, okay.

PN981

THE SENIOR DEPUTY PRESIDENT: I just want to deal with the intervention issue first and then we can - - -

PN982

MR COOPER: Yes, sure but I think it has been alluded to the fact that there is a consent document that is going to go to the Commission today.

PN983

THE SENIOR DEPUTY PRESIDENT: Well, yes. I think Mr Blackburn has that understanding but I don't know that that is necessarily so.

PN984

MR COOPER: That is not the position at the moment.

PN985

THE SENIOR DEPUTY PRESIDENT: No.

PN986

MR COOPER: Thank you.

PN987

THE SENIOR DEPUTY PRESIDENT: Mr Swancott, did you wish to - - -

PN988

MR SWANCOTT: Very briefly. Your Honour, I think our view in relation to MIMAs intervention is that perhaps that association was not fully informed as to the shape the proposed new award was taking. As I understand the position, the only members of the Motels Association who could possibly be affected by the proposed outcome would be those with dual membership of the Australian Hotels Association and MIMA in which case that is in one sense a product of joining more than one organisation.

PN989

If there are any such animals, and it is possible that there aren't but if there are, then it would be appropriate for those entities, those corporations to bring themselves forward in the normal way and seek by application to seek an exemption but at the moment in the absence of any information about any such corporation or employer it seems to us that the Commission can subsequently in due course satisfy itself that the proposed award would not affect MIMAs interests but in the event that it did inadvertently do so, then MIMAs rights or its individual members' rights would be clearly still existing under the Act.

PN990

Your Honour, in relation to the Burswood application for intervention it is our view that leave should not be granted but if it is granted then it is our view that the conciliation that has been referred to by Mr Blackwood should take place in Perth in order that the interests of employees can also be consulted.

PN991

There have been a number of activities involving the Burswood Casino Complex and its various interrelated entities that have been dealt with in the Western Australian Industrial Relations Commission in recent months including the making of a special state award to cover certain employees of at least one of the entities of the Burswood - employing entities of the Burswood Casino Group in circumstances where in an attempt to avoid the operation of an existing award the employment of various individuals was effectively transferred from the food and beverage area to another company, the effect temporally being that they lost the protection of the Western Australian Award.

PN992

So because of the involvement of the Western Australian Industrial Relations Commission in recent years and a whole range of Burswood activities relating to the employees, the inquiries that Mr Blackwood would seek to make should intervention be granted in our view should take place in Perth so that those issues can be explored and the true purpose of the foreshadowed application for exemption from an award to which Mr Blackwood's client is currently a party can be explored as well.

PN993

Now, as I understand the affidavit as a member of the AHA the hotel company for which Mr Blackwood appears is bound by the current managerial award which does not provide properly fixed minimum rates of pay and which is not up to date in terms of Commission test case standards and the concern that appears to be underlying the application for intervention is that in the event that this award is made in the terms provided, that hotel might continue to be bound by a federal award which is brought up to date and which does provide properly fixed minimum rates of pay and I say that without prejudice to what I might say later but at least attempts to provide properly fixed minimum rates of pay.

PN994

Now, if that is the true purpose underlying the application for exemption then that should be explored in a proper hearing and both sides of the story should be put. Thank you.

PN995

THE SENIOR DEPUTY PRESIDENT: I will hear Ms Zeitz first, Mr McDonald. Firstly, in relation to Mr McDonald, if you don't mind Ms Zeitz.

PN996

MS ZEITZ: Your Honour I will simply state that the concerns raised by Mr McDonald relate to two matters. The concern he has in relation to his existing membership and we say that there is no concern there because this award purports only to bind members of the Australian Hotels Association and then a concern he expresses about the potential for variations to the award which might, at some later stage, purport to rope in or otherwise extend the award to coverage of a person's - the organisation which he represents as a membership.

PN997

We simply say in relation to that that if that were to happen that is the appropriate time for the application to be made. We say that there is no proper basis established on the material before the Commission which supports the application for intervention. Having said that I also echo what Mr Cooper has said that there is no intention, and we don't believe the award, as proposed, subject to some further, what we hope is minor discussion, will ultimately achieve, it is intended to apply to hotels and to motels.

PN998

In relation to Burswood Hotel, I should indicate firstly that the first occasion on which the AHA was made aware that there was any issue relating to the proposed exemption in relation to Burswood Casino was on Monday 4 November and I note that attachment A to the affidavit of Ms Drimatas is actually dated 7 November so we are talking about - - -

PN999

THE SENIOR DEPUTY PRESIDENT: I think in fact in the affidavit in the very last or second to last paragraph there's a reference to it being - I don't say it is the paragraph 54 - - -

PN1000

MS ZEITZ: Yes.

PN1001

THE SENIOR DEPUTY PRESIDENT: - - - 7 November I sent a letter outlining - - -

PN1002

MS ZEITZ: Yes, that was the first occasion that that issue had been raised and the AHA maintains the position that when the - when Burswood first raised the issue of the reference to coverage the draft award that was circulated in - that has been referred to by my friend, referred to:

PN1003

Those gaming establishments holding a casino license as being exempt from the operation of the award.

PN1004

Were that wording to be left the position as Mr Blackburn has put would be exactly as it is, as he suggested, would have still been the position because that is all he says that that exemption would cover, i.e. the Casino. On 7 October and that is - I'm not sure which exhibit it is - - -

PN1005

THE SENIOR DEPUTY PRESIDENT: You say - sorry, that draft award, when was that circulated?

PN1006

MS ZEITZ: That was the one that was circulated in - yes, August 2002. By letter of 7 October the AHA was advised that there was an issue in relation to coverage of that and specifically requested it to adopt wording that extended it cover a complex and that has now been incorporated into a proposed draft. At no stage was it raised with my client that there was any State legislation which might in any way impact upon that and what we simply is this. That is not definitive in any way of the issue of whether this award covers Burswood or not.

PN1007

There are a number of casinos in operation around Australia and I will come to the consultation process that has happened in a moment. The wording that is currently proposed has been agreed by all the casinos bar Burswood and as is the case with all representative organisations, we say that firstly there is no issue but to the extent that there is an issue, Ms Drimatas has already identified that there in existing respondent to the Federal Manager's award so the updating of this award should be of no great surprise.

PN1008

Can I indicate - I just briefly refer to exhibit or attachments C to Ms Drimatas' affidavit. It is an email forwarded to her on 13 September and in particular I refer to item 4 where Burswood is specifically requested to advise:

PN1009

I would be grateful if you would let me know your views regarding whether you wish any Burswood entity to be bound by the award so that I can notify the AHA National Office accordingly.

PN1010

Now there is no record in Ms Drimatas' affidavit beyond the document of 7 October where any suggestion is made as to what Burswood required. The only reference is in exhibit E, or attachment E rather, there is a reference, and that is dated 24 September, there is a suggestion that Burswood is still considering its position. So far from trying to get a message through to AHA National Office by late September, the only information my client has is Burswood is still considering its position and I note that the correspondence that was forwarded to Ms Bergmann-Hana by Mr Woods of the AHAWA Branch, which I note for the record is a separately registered Federal body, a somewhat unusual arrangement but it is separately registered, Federal, as part of the branch and national infrastructure, that that correspondence was copied to all members of the AHAWA industrial relations consultants group of which Ms Drimatas was a member. Was there - were there any - - -

PN1011

THE SENIOR DEPUTY PRESIDENT: Which was is that, sorry? Which one are you referring to?

PN1012

MS ZEITZ: That is attachment D to her affidavit, your Honour. We simply say that were there any difficulties identified from that there was amply opportunity for Burswood to further pursue those matters. Now, I just want to go briefly to the process of consultation. What is missing from the attachments to Ms Drimatas' affidavit, among some other things, is correspondence dated 16 October 2002 and I will provide a copy to the Commission and the parties but I will just go to it first.

PN1013

It is to Mr Michael Woods, the General Manager of Human Resources of Burswood International Resort Casino, to whom Ms Drimatas reports and it is forwarded by Mr Woods to the Executive Director of the AHAWA Branch and it follows the correspondence ordered by Burswood to the AHA National Office dated 16 October 2002 and I think that that is attachment K to Ms Drimatas' affidavit. In particular it states that in 2001 an industrial relations consultancy group was established to meet regularly to discuss issues of concern to members and a representative of Burswood was a member of that group.

PN1014

It notes that the issue and the importance of the Federal Hotels Management Award to members had resulted in its being an agenda item since the first meeting of the group in November 2001. It noted that there had been special meetings in relation to the award convened by the Industrial Relations Consultancy group on the subject, on 5 July 2002, 11 July 2002 and 17 July 2002 and that as a result of that a Federal Hotel Mangers' Award sub-committee had been established. If I can just pause there, this is all part of the consultative process to which my friend suggest has not occurred.

PN1015

The sub-committee had proven to be an effective vehicle for consultation and had met on 25 July 2002, 2 August 2002, 22 August 2002 and 14 October 2002. Ms Drimatas as a member of the sub-committee had been provided with all correspondence and minutes and its correspondence notes. It is a matter of record that Ms Drimatas had not attended any of the meetings of the sub-committee except the meeting convened on 14 October 2002. In relation to each of the meetings agendas had been distributed prior to each meeting and minutes of each meeting had been distributed to both Mr Kidd and Ms Drimatas.

PN1016

It then goes on, and I quote:

PN1017

Due to our concern regarding Ms Drimatas being unable to attend meetings, Mr Fitzpatrick arranged to meet with yourself and Ms Drimatas with a view to ensuring that consultation took place with Burswood. We note further that at the meeting of the sub-committee convened on 14 October 2002, Ms Drimatas did not indicate any dissatisfaction with the way in which we have represented Burswood.

PN1018

He then goes on to confirm his concern that Burswood was now suggesting that there had been inadequate consultation. Now, I've noted - perhaps what I will do is simply hand up - it is a bundle of correspondence some of which appears as an attachment but it sets the chronological order so I will hand it up as a bundle. That - the relevant letter to which I have just referred appears about 6 pages in, your Honour.

PN1019

THE SENIOR DEPUTY PRESIDENT: Yes, I will mark that bundle of correspondence as AHA1.

EXHIBIT #AHA1 BUNDLE OF CORRESPONDENCE - CHRONOLOGICAL ORDER

PN1020

MR BLACKBURN: Your Honour, might I be provided with a copy of those documents?

PN1021

MS ZEITZ: It is in chronological order from 18 October, back through to 11 October. Now, I note from the affidavit of Ms Drimatas that she refers to her inability to attend meetings. The presence of Burswood here is sufficient indication to the Commission, in my submission, that Burswood regards this matter as important and yet I find it and I submit that it is somewhat remarkable that despite the fact Ms Drimatas could not attend these meetings which were regarded as so important, neither Mr Kidd, the general manager of human resources to whom she reports, nor any of the eight human resources officers to whom she refers in clause 5 of her affidavit, managed to be seconded to attend in her stead and to represent the interests of Burswood.

PN1022

It would appear that there has been no genuine effort to consult, in my submission. AHA, the Commission will recall this, indicated to the Commission that it was going to embark upon an extensive consultation process with its members to ascertain what was happening out in the field effectively and what the members might be prepared to accept by way of the AHAs position. That was finalised as the commencement point for negotiations and that is referred to, I think, in the circular of Mr Woods. He referred to the 110 per cent rate.

PN1023

What subsequently occurred is the parties met on 1 November, the National Executive of the AHA authorised the negotiations to take place and an arrangement or an agreement was reached as to an outcome which was acceptable, brought it to the AHA and we believe, to the unions, subject to what Mr Swancott may be saying later to which he has referred. Could I also indicate that not only were the concerns of Burswood identified through that mechanism but they were so taken into account that the casinos were approached with a view to having a meeting of the casinos regarding what was occurring in relation to the award and I have here an email recorded by Mr Jones to the AHA regarding a meeting that he convened on 15 October for the purposes of discussing what was happening with this award.

PN1024

I note, and I put this in the context that, if your Honour has looked at the correspondence, about this time we have - well, you have got my friend to support - Burswood being extremely concerned, anxious about what is occurring, not knowing. A telephone hook-up - - -

PN1025

THE SENIOR DEPUTY PRESIDENT: But it was invited as one of the casinos to participate in that conference.

PN1026

MS ZEITZ: A telephone hook-up of major casino employers was convened to discuss the emerging position of Burswood in respect to the above matter. Unfortunately, the representative from Burswood was not available to participate in the conference, so yet another example of Burswood making a lot of noise but not being prepared to participate in a conference.

PN1027

MR BLACKBURN: I might ask for a copy of that.

PN1028

MS ZEITZ: Yes I will photo-copy it.

PN1029

THE SENIOR DEPUTY PRESIDENT: Did Burswood give a response at all, or - - -

PN1030

MS ZEITZ: I understand that they - that the advice received by Mr Jones was simply they weren't available.

PN1031

THE SENIOR DEPUTY PRESIDENT: I mark this document as AHA2.

EXHIBIT #AHA2 DOCUMENT

PN1032

MS ZEITZ: Perhaps I should just indicate for clarification, Don Jones heads up the human resources consultative committee for all the casinos within the AHA so it was in - within the Australian Casinos Association, sorry, so entirely proper for him to embark upon that and it is quite common for, when the casinos have matter of common interest, for that body to meet and confer so, in my submission, not only was there ample opportunity for Burswood to contribute through the consultation process with the AHAWA branch, but there was similarly ample opportunity for it to contribute had it so chosen, by raising those issues directly with the other casino operators in seeking their support and you will note from the terms of that email that it was actually - the meeting was actually convened as a result of the concerns raised by Burswood. So there was no other reason for that meeting and yet they have not made themselves available to participate. Now, my friend referred to the meeting of 14 October and I propose to tender a copy of the minutes. I wonder if - - -

PN1033

THE SENIOR DEPUTY PRESIDENT: Sorry, would you mind - well, could your associate - - -

PN1034

MS ZEITZ: If your Honour would excuse me approaching the bench.

PN1035

THE SENIOR DEPUTY PRESIDENT: Yes. I will mark the meeting, sorry, the minutes of the AHA West Australian Industrial Relations -what does the IRCG stand for, sorry?

PN1036

MS ZEITZ: Industrial Relations Consulting Group - - -

PN1037

THE SENIOR DEPUTY PRESIDENT: Consulting Group?

PN1038

MS ZEITZ: - - - Consultative Group.

PN1039

THE SENIOR DEPUTY PRESIDENT: Consultative Group, Federal Hotel Managers Award sub-committee for 14 October is AHA3.

EXHIBIT #AHA3 CONSULTATIVE GROUP, FEDERAL HOTEL MANAGERS AWARD SUB-COMMITTEE MINUTES DATED 14 OCTOBER

PN1040

MS ZEITZ: If I might take your Honour to - - -

PN1041

MR COOPER: Excuse me your Honour, those last two matters that were tabled, could we also have copies of that, please?

PN1042

THE SENIOR DEPUTY PRESIDENT: So that - you have copies of those now?

PN1043

MR COOPER: And the minutes. Thank you.

PN1044

MS ZEITZ: If I take your Honour to page 6 - sorry, firstly to page 5. My friend made some reference to what had been - what was to be requested from the AHA National Office in that meeting and you will note that at - it is the end of item 7 at the top of page, there's a reference to the fact that a listed person has been provided to the AHA national office and the AHA national office was going to approach the persons identified and there was a request that the listed questions for witnesses, if any, which the AHA utilises, be provided in the course of proofing witnesses.

PN1045

Now, that is the only reference to the proceedings and to any request for information. The only other issue that is raised is at the top of page 6 and that is where Burswood raised issue of definition of casino.

PN1046

It is noted this issue had been raised by Burswood directly with the AHA National Office.

PN1047

And that was purely reference to 7 October correspondence and that again is the - and then there's the question of the coverage of casinos by the award. That Burswood had any to divide in subplacitum 3. The AHA maintains its opposition to intervention, therefore, on three grounds. Firstly, there has been adequate consultation with its membership and it is unfortunate that these proceedings have come into the Commission in this form today, but there has not only been adequate consultation with its membership, but Burswood has had ample opportunity to participate in the process and my client can't be and shouldn't be criticised for a failure by Burswood to attend meetings and to actively participate in the process and then to attempt to raise at the very eleventh hour, concerns that have not previously been identified.

PN1048

We say that because secondly - and this is the second aspect of the matter - the concern that it raised which took the exemption more broadly than the strict application of the casino licence to include complexes, was wording specifically requested by Burswood, and has been accommodated by the AHA and the AHA does not and should not be required to be aware of any corporate structure that may or may not be in place, that was what was requested and that was what was provided. Now, the extent to which it is now suggested that the exemption is insufficiently broad, in our submission, the language of the proposed award purports to:

PN1049

Exempt gaming establishments/complexes holding a casino licence under relevant State legislation.

PN1050

That is a broad exemption and would be applied consistently in our submission across Australia and there is no reason to pre-suppose that the situation in Western Australia is in any way adversely impacted by the nature of that exemption. The proposed wording that has been sought in our submission is far too broad and, certainly, is not something which the - - -

PN1051

THE SENIOR DEPUTY PRESIDENT: Sorry, that is the one that is being - - -

PN1052

MS ZEITZ: Now proposed.

PN1053

THE SENIOR DEPUTY PRESIDENT: Now proposed, yes.

PN1054

MS ZEITZ: And in our submission, is not necessary.

PN1055

THE SENIOR DEPUTY PRESIDENT: Is the one that the AHA is putting forward, that is the one that was originally suggested by Burswood, as I understand it. Is that right?

PN1056

MS ZEITZ: Yes, that is right.

PN1057

THE SENIOR DEPUTY PRESIDENT: Is that likely to lead to any ambiguity about whether or not it covers the operation of the hotel?

PN1058

MS ZEITZ: I don't know the answer to that, your Honour. Our understanding was that that was the wording put forward by Burswood on the basis that would resolve their issues.

PN1059

THE SENIOR DEPUTY PRESIDENT: And acceptable to both parties, is it?

PN1060

MS ZEITZ: And it was acceptable to all parties. I didn't quite understand what my friend was saying about the proposed restructuring that is going to happen in 2003, but if - or the changing in ownership, or whatever is now proposed - if the situation is not clear now, or it becomes more or less clear following that, then, there is opportunity for them to apply but, in my submission, there is nothing in that definition, or that exemption that in any way purports to leave out the hotel from the rest of the casino complex. I don't know what the purpose of the order was made originally was and I don't know if it is proposed and my friend has not indicated whether it is proposed that there would be any consequential directions issued by the Minister following 2003.

PN1061

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1062

MS ZEITZ: But it does appear to be a situation where through corporate restructures, there can be a hopping in and hopping out and that is not appropriate either. So the approach the AHA has taken, it has accepted the proposal by Burswood on the basis that it provides sufficient flexibility within the exemption to accommodate the concerns, not only of Burswood, but of any of the other casinos. I would simply say that it wouldn't be the first time that there is inconsistencies between Federal delegated legislation and State legislations, so I don't think it is a foregone conclusion, or any disputed outcome could be irrespective of the language.

PN1063

The third aspect of the matter is that there is absolutely nothing that has been put in my submission that would suggest anything other than Burswood - it is clearly unhappy with what has occurred. AHA has a substantial membership, it doesn't expect that it will have 100 per cent success in terms of its members accepting outcomes that it either negotiates on their behalf in what it believes to be the best interests of the membership, or indeed as a result of arbitrations.

PN1064

I note that Burswood is represented by the AHA and that in its representative capacity, the AHA has put forward and has accommodated - firstly, has consulted and, secondly, has put forward its position, and I simply refer to the decision of the Full Bench in the Tennex matter, where your Honour was on the Board of that in relation to the circumstances where intervention is and is not appropriate, we say on this occasion, but it is not appropriate because the concerns of Burswood have, to the extent that it has been prepared to participate in consultation, been accommodated and taken into account by the AHA in reaching a preliminary consent position with the unions, and it is too late in the day for Burswood to now be attempting to cut across that because it is not happy that it didn't get all that it wanted out of the outcome. If the Commission pleases.

PN1065

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Zeitz. Mr McDonald.

PN1066

MR McDONALD: Thank you, your Honour. Your Honour, the intervention that the Association seeks is a very narrow one at this stage. What we have asked for, your Honour, is that we be provided with a copy of the award proposals in order that we may make an assessment as to whether the interests of the Association - - -

PN1067

THE SENIOR DEPUTY PRESIDENT: But why can't that be achieved without intervention? Apparently, you haven't made any representations to either of the parties, or any of the parties I should say, prior to yesterday.

PN1068

MR McDONALD: Yes, your Honour, that was when we became aware of the proceedings and, in fact, yesterday we weren't even aware that the proceedings were on this morning. In terms of asking for copies of the award, we certainly did with the Australian Hotels Association, that has been denied us both yesterday and this morning, and it may be that in an examination of the proposed awards would mean that we would not have to go any further with our intervention.

PN1069

THE SENIOR DEPUTY PRESIDENT: But the problem with it is, is it is not a concluded document yet, I mean, it is still under negotiation. Why should it be made available to you in those circumstances, it could change.

PN1070

MR McDONALD: Your Honour, for this reason and if we could have some assurances to this, we would not seek to press the matter, but if the definition of the hotel, for example, was to change and to go from - as it currently is, to cover those establishments which have a hotels licence, or something similar compared to - in the different States - if it was to go from that to cover all accommodation establishments - by calling themselves hotels - that would be a very distinct change to the award, that is an apprehension that we have.

PN1071

THE SENIOR DEPUTY PRESIDENT: But it still wouldn't cover your members unless, as Mr Swancott said, they have dual membership of your association and the AHA. It is not a Common Law award it is an award that binds only the parties to the award and their members of their organisations.

PN1072

MR McDONALD: Your Honour, part of the difficulty is without seeing a document we can't really put any submissions as to that because we don't even know whether there are other respondents, or other logs pending it - - -

PN1073

THE SENIOR DEPUTY PRESIDENT: Yes, but the point is that if anybody else was sought to be made a party to the award they would have to be notified and they would be given an opportunity to be heard.

PN1074

MR McDONALD: Your Honour, there is this difficulty though, that if the award was made - and we don't know what the terms of this award are - but if the award was to be made with an extended scope of application which was to cover the various coverage of the Association I represent, then, it would be a fairly straightforward matter, in terms of roping in and the like but, really, I'm in the dark. Your Honour, without having a copy of that document we are in some difficulty.

PN1075

We have been allowed to intervene in these proceedings before where coverage questions have arisen when it was first made back in 1974 and it is very limited what we are asking for. It may be that our interests are protected but we are asked to simply rely on the say so of one of the parties to the award that our interests are not affected and, it may be, that it is the case that they believe that that is the situation, but until we check that, we can't be sure for ourselves and it may be that there are and intend to change us.

PN1076

If there is no change to the provisions to the award, in particular the definitions of "hotel" in the award. None of the definitions are to be widened which would affect the application, or potential application of the award, we would have no concern. Your Honour, given that we have only just been made aware of these proceedings, we haven't been in a position to put a case list to your Honour, but if I could refer the Commission to the decision, the Hotel Employees State Award of last year - it is a Full Bench of the Industrial Relations Commission of New South Wales at 113 IR. It related at page 393 - related to a not dissimilar situation where that award was being reviewed in accordance with the State legislation.

PN1077

The AHA on that occasion sought to extend the coverage of the award, for the effect of the document was to extend the coverage of the award. The Judge concerned had not realised that was the case, it had not been canvassed in the proceedings and the effect of that was that the Full Bench set aside the award on the basis that those - that parties were not aware of it and that the changes to the coverage that the AHA were making had not been pointed out to the Commission, nor was it part of the nature of a review proceedings that the coverage of the award would be changed. I can hand up a copy of that decision, if that assists. The relevant extract is at page 400. Your Honour, for completeness - and it may already be before the Commission - if I can hand up the copy of the Hotel Managerial Staff Award of 1974.

PN1078

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN1079

MR McDONALD: I simply draw your Honour's attention on the second page to the Motor Inn and Motel Association to intervention in those proceedings and on the third page, the definitions clause and, in particular on the fourth page, the definition of "hotel" in paragraph G of clause 6. Your Honour will note that "hotel" is defined in accordance with liquor licences in the various States. The liquor licences have now been updated in New South Wales, for hotels it would be a hotel's licence. If there was no definition - - -

PN1080

THE SENIOR DEPUTY PRESIDENT: Sorry, this is a Common Law award, is it?

PN1081

MR McDONALD: No, your Honour, this is the award now under consideration.

PN1082

THE SENIOR DEPUTY PRESIDENT: Where, in the State or Federal?

PN1083

MR McDONALD: I'm sorry, the Hotel Managerial - - -

PN1084

THE SENIOR DEPUTY PRESIDENT: I'm sorry, yes. Yes.

PN1085

MR McDONALD: Our concern is principally in relation to the definition of "hotel" in the middle of the fourth page of that copy, and that refers to "licensed hotels" and our apprehension is that if that definition was being taken out, that it would extend to "unlicensed hotels", which are within the coverage of the Motor Inn and Motel Association. The effect of that would be to extend the coverage of the award, potentially, to many thousands of other establishments that it could otherwise cover with that definition in the award.

PN1086

If none of those definitions are changed we would withdraw from the proceedings. We have no concern in terms of hotels that are licensed as hotels, or members of the AHA as to what they are prepared to agree to, your Honour. If it pleases.

PN1087

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr McDonald. Yes, Mr Blackburn.

PN1088

MR BLACKBURN: Your Honour, firstly, if I could just make a very quick remark in relation to the comments of Mr Cooper and Mr Swancott. Mr Cooper indicated that he was unaware from the position of the Burswood Hotel and the significance of the Casino Control Act and how it affected the Burswood Hotel. That obviously indicates to us that the AHA has not attempted to take the matter up with the CMAA on Burswood's behalf.

PN1089

THE SENIOR DEPUTY PRESIDENT: But it only found out about the issue of the divided licence hotel premises, if you like on 7 November.

PN1090

MR BLACKBURN: Your Honour, Mr Fitzpatrick, as we have seen from the previous minutes in the letter that Mr Fitzpatrick drafted, was aware of that as far back as October and it may even have been earlier - sorry, 11 September I think it was is when he drafted that original letter, or thereabouts, and those comments were reproduced in the minutes that he prepared in October, and as my friend has seen fit to pass up. So Mr Fitzpatrick, the AHA legal counsel, was aware of the issue. The point is, however, that Burswood did not specifically request that the hotel be excluded until 4 November - the 5th, or the 6th - earlier this week as the correspondence indicates, and the reason for that, your Honour, was that Burswood was continuing to try to obtain information about the award.

PN1091

Now, my friend has handed up an email - sorry, has referred to annexure C, which was to Ms Drimatas' affidavit, which was an email sent to Ms Drimatas by Mr Fitzpatrick, and the fourth point in his email was:

PN1092

I would be grateful if you would let me know your views regarding whether you wish any Burswood entity to be bound by the award, so that I can notify the AHA national office.

PN1093

That was 13 September, so that is further evidence that Mr Fitzpatrick is aware of the issue. My friend made the comment that she wasn't aware of any response. I have, your Honour, an email sent by Ms Drimatas back to Mr Fitzpatrick on the same day, 13 September. She says:

PN1094

Thank you for your email. At this stage I cannot advise you on whether we wish any Burswood entity to be bound by the award, so I require further information on the current status of the ALHMWUs application to be party to the award. Can you please advise me where this is at?

PN1095

That is consistent with what Ms Drimatas has said repeatedly and that was, that an order to make a decision on whether it wished its hotel to be covered by the award, it required information and that information in the end was never forthcoming. Coming back, I'm conscious your Honour that the request for the hotel to be exempted was only made early this week, I think it was. As a result of Burswood suddenly realising, or believing that the matter had now reached - was getting very close to finality - previously we were working on the basis that an arbitration would commence on 4 November.

PN1096

Also, as a result of the fact that Burswood had tried everything it could think of to obtain the information and it had not been able to obtain information, so that really was the catalyst for it reaching the decision to tell the AHA: well, look, please get us out of this award, along with every other casino hotel. We don't know anything about it, we haven't seen it, we just want to be out of it. Your Honour, and Mr Cooper's comments just confirm to us that the AHA has not raised the matter with the CMA on Burswood's behalf. We would have thought given the views put by the AHA and reiterated in some respects by Ms Zeitz.

PN1097

THE SENIOR DEPUTY PRESIDENT: But they have put forward, as I understand it, the initial request of Burswood for the changing the definition.

PN1098

MR BLACKBURN: Yes, which would succeed in exempting the casino, but it does no succeed in exempting the, and for that matter - - -

PN1099

THE SENIOR DEPUTY PRESIDENT: The complex.

PN1100

MR BLACKBURN: - - - it would - it exempts the complex, but of course the hotel is now not part of the complex for the purpose of the State Act. The hotel is the only part that is not part of the complex for the purpose of the State Act. So the Dome, the Burswood Dome and the Burswood Convention Centre are part of the complex and are exempted but the hotel is not exempted. Your Honour, Mr Swancott raised an issue which, in our submission, is something of a red herring. He said that if conciliation should take place it should occur in Perth because there are these other matters occurring in Perth and he referred to something about different corporate entities being used to evade award coverage and these things needed to be explored, and the true purpose of Burswood's application needed to be explored, etcetera.

PN1101

Your Honour, it seems to us that the relevant parties to any conciliation at this point would be the CMA and the AHA because that is who the proposed award is to be made between, as we understand it. If Mr Swancott has any issues - - -

PN1102

THE SENIOR DEPUTY PRESIDENT: Well, sorry - the LHMU was granted leave very early in the piece to intervene in this proceeding.

PN1103

MR BLACKBURN: Yes.

PN1104

THE SENIOR DEPUTY PRESIDENT: And has participated in the proceedings.

PN1105

MR BLACKBURN: Yes, I appreciate that, but it seems to us, in our submission, that the principal parties then perhaps if we can put it that way, in any conciliation would need to be the CMA as the party to the proposed consent.

PN1106

THE SENIOR DEPUTY PRESIDENT: Well, I don't think that is right, because I think the High Court says that if a person is given leave to intervene in the proceeding he has the same rights as every other party. So although you might oppose him being party to the award, as far as the proceedings are concerned they are a party.

PN1107

MR BLACKBURN: Yes, well, I suppose to some extent it depends on Mr Swancott's position in relation to the consent award which is proposed to be made without his union. But we reiterate the point that if the Miscellaneous Workers Union has any issue then it is quite easy for the Miscellaneous Workers Union to make a separate application to address that issue in Perth. We are here to discuss the operation of this particular award that was proposed to be made with the CMA as the union party. Your Honour, the AHA has sought to make much of this issue that - the first occasion on which this exemption was raised on 4 November and we have addressed that advising that it was a decision that Burswood came to as a result of lack of information but Mr Fitzgerald was aware of the issue in September and October.

PN1108

Ms Zeitz referred to a letter which was sent by the AHA to Burswood on 16 October and this is part of AHA1 and that letter is addressed to Michael Kidd, signed by Bradley Woods, and the significant point about this letter is once again that it fails to provide any of the answers requested. It is the, if you like, the stock standard AHA line: we have adequately represented you, we have consulted with you lots, but there is no answer to the actual questions and the illuminating thing again about my friend's submissions today is that they have not put anything before you to show that they have actually at any stage up until the award was past through on Wednesday, I think it was, provided anything to either Burswood or any other members of the WA subcommittee.

PN1109

THE SENIOR DEPUTY PRESIDENT: I thought there was something went in August.

PN1110

MR BLACKBURN: That was a draft interim award, yes, that was the last document, your Honour. The draft interim award which seemed to be, as Ms Drimatas indicated in her affidavit, seemed to bear very little resemblance to anything that had been discussed between the parties. They didn't know who had proposed the award, we believe now that it may have been a CMA draft award, we still don't know. But in terms of the discussions that were taking place about a - - -

PN1111

THE SENIOR DEPUTY PRESIDENT: What difference does it make who drafted it if it was put forward as a basis for discussion?

PN1112

MR BLACKBURN: Well, the difficulty is, your Honour, that we didn't know the status of it, was it the AHAs preferred position, was it the union's preferred position, did the AHA have something else in mind, because this was in the context of various proposals being put forward at various times where, for example, there was to be a seven-level classification structure, then there was to be a two-level classification structure and then this award appears which bears no resemblance to any of those things and has a single rate. No one is quite clear and the WA branch are not able to provide clarity on the status of this award and then it eventually turns out - - -

PN1113

THE SENIOR DEPUTY PRESIDENT: What does Burswood want, the seven classifications?

PN1114

MR BLACKBURN: We would like to know, your Honour, what the proposals are. We would like to see the definitions, seven classifications in some circumstances could be better than one, it just depends. But Burswood just wants information and apart from that document of 8 August which was the draft interim award there is then nothing at all and even today the AHA cannot show you any draft classifications, there were emails which promised that classifications would be forthcoming. There was nothing.

PN1115

THE SENIOR DEPUTY PRESIDENT: But why shouldn't I be entitled to assume AHA, as a registered organisation, has registered rules under the Act which comply with the Act, otherwise there is provision available to the members of the association to challenge the invalidity of the rules if it does not comply with the Act. There is provision in the Act for individual members of the association to have the union comply, or the organisation executive members comply with the rules of the organisation in the event that they are not complying with them. There is no evidence before me that any steps have been taken by any member of the organisation to have them comply with their rules. Why am I not entitled to assume that they have complied with their rules?

PN1116

MR BLACKBURN: Well, your Honour, we don't assert that the AHA has not complied with its rules. As I indicated previously, we have no evidence to put to you to say that the AHA has not complied with its rules.

PN1117

THE SENIOR DEPUTY PRESIDENT: Well, as a representative body, why am I not entitled to assume that it is representing the interests of its members if you don't suggest that they are not complying with the rules?

PN1118

MR BLACKBURN: Because your Honour the evidence before you, we would suggest, indicates to the contrary. It indicates that the AHA has not provided its members, at least its Western Australian members, with information - - -

PN1119

THE SENIOR DEPUTY PRESIDENT: Well, with respect, it does not do that. It opens up a number of questions about that, but unless I conduct a separate hearing in itself to determine that issue then I'm not going to be able to satisfy myself that it hasn't represented the interests of your members.

PN1120

MR BLACKBURN: Your Honour, as I indicated previously in my submissions, Ms Drimatas is available here today to be cross-examined on her affidavit. The AHA didn't take that opportunity and so therefore it would seem to me that her affidavit must stand. There is no evidence to the contrary. Ms Bergmann-Hana is here.

PN1121

THE SENIOR DEPUTY PRESIDENT: But there are a lot of other things unsaid in here, for example - well, there is one thing that is said, and that is Ms Drimatas did not attend three meetings.

PN1122

MR BLACKBURN: Yes.

PN1123

THE SENIOR DEPUTY PRESIDENT: And that was a matter for her convenience. There is material here that seems to address the issues that Ms Drimatas says she has concerns about but, it appears on the face of it, that Ms Drimatas didn't have an understanding of that. Now, I'm not sure that all of it relates to a failure to provide information, rather than an understanding on Ms Drimatas' part.

PN1124

MR BLACKBURN: Your Honour, the AHA has not even attempted to show where it has provided the information. There is no document at all that the AHA can provide between 8 August and 6 November which indicates to you, or to anybody that the information has been provided.

PN1125

THE SENIOR DEPUTY PRESIDENT: But it provided a document on 8 August and it asked for input from members. Now, having provided that document and then asking for input, the only response that came from the Burswood Hotel was: please explain to me the definitions? I mean, why can't the members themselves read the definitions, the definitions were there.

PN1126

MR BLACKBURN: Your Honour, because the proposed clause bore no resemblance, 8 August award seemed to bear no resemblance to what was being discussed in the subcommittee meetings. I took your Honour to an email from the WA branch which, among other things, referred to communication between the WA branch and Ms Bergmann-Hana in which Ms Bergmann-Hana had said that, look, you know, we provided you on 16 September with a number of options in relation to definitions and will be in a position to provide you with a number of options in relation to definitions and classification structures.

PN1127

What that was, your Honour, was a matrix if you like, of the positions that had been advanced by the various State branches and that had simply been collated and forwarded to everyone. There was no indication in the document that the AHA preferred one position over another. This is basically what the State branches have said to us. Subsequently the WA branch has said to Burswood, okay, you were given that on 16 September and Ms Bergmann-Hana has indicated that she will be in a position to provide some definitions and classifications, ie, the AHAs proposed position in late September, early October. Those things never came forward.

PN1128

THE SENIOR DEPUTY PRESIDENT: How many people are on the subcommittee on the West Australian branch?

PN1129

MR BLACKBURN: I'm advised by my friend it is 16, your Honour.

PN1130

THE SENIOR DEPUTY PRESIDENT: And they represent a number of separate interests apart from the Burswood?

PN1131

MR BLACKBURN: I think a number of those appear to be AHA WA officials, Ms Drimatas tells me that it is 10, but anyway somewhere between - - -

PN1132

THE SENIOR DEPUTY PRESIDENT: But in any event, they represent other interests apart from Burswood?

PN1133

MR BLACKBURN: Yes, your Honour, they do, and one of them, for example, represents the core group who was before you previously.

PN1134

THE SENIOR DEPUTY PRESIDENT: Sorry, the - - -

PN1135

MR BLACKBURN: One of them represents the core group which was before you previously saying much the same.

PN1136

THE SENIOR DEPUTY PRESIDENT: Yes, but as Ms Zeitz said, in any organisation there are doubtless going to be some people or some entities who are not satisfied with the outcome that has been agreed upon by the majority and why should the Commission entertain all of the individual interests of the organisation when the whole purpose of organisations is to provide a representative view or representative position of the members of that organisation.

PN1137

MR BLACKBURN: Yes, but how can it be representative, in our submission, your Honour, if the organisation has not informed its members of the position that it proposed to advance and sought comment on that?

PN1138

THE SENIOR DEPUTY PRESIDENT: Burswood is the only organisation that is here telling me that.

PN1139

MR BLACKBURN: Yes, your Honour, I appreciate that, I can't speak for the others. There is evidence in Ms Drimatas' affidavit that those other employers that were able - members that were able to attend that meeting on 31 October at short notice expressed concern about the lack of communication and - - -

PN1140

THE SENIOR DEPUTY PRESIDENT: Yes, but what weight can I give to that, if they are not here?

PN1141

MR BLACKBURN: Well, it is the only evidence we have, your Honour, and it wasn't challenged. Your Honour, the sort of material that the AHA has been responding with, such as the letter of 16 October, simply stating that we have consulted, again as I said, never answering any of the queries, never pointing to any specific information that has been provided, just saying that, look, we have consulted widely, go away. Then of course there is the targeted criticism of Ms Drimatas being absent from those three meetings and it is only three meetings, your Honour, and those meetings were in July and August - some time ago.

PN1142

Since that time, the evidence is very clear that Ms Drimatas has been very active in trying to find out what is occurring and that WA State branch didn't know and was drafting letters on her behalf to send to the Federal office. As far as the meetings were concerned two of them fell during the period when she was overseas, and the third one as I mentioned earlier. She gave the AHA WA branch a date, the only date which she could not attend, it was convened on that day. Now, I recognise that not everything can be convened to suit her, but I don't think in fairness to her as she had a core commitment on that day that she can be criticised for that.

PN1143

Those meetings were in July and August and since then she has made considerable efforts and they are shown in the affidavit to not only equate herself with the information, such as it was the State branch was able to provide but also to try and obtain more information. In fact, as in the end, she was as well acquainted as anybody in Western Australia I suspect on this status, and certainly as well acquainted as the State branch, they simply did not have the answers because they weren't being provided with the answers. It comes back to this issue that the AHA and my friend can target Ms Drimatas for being absent at those three meetings but the fact is the information never came through and the AHA can't point to it coming through.

PN1144

Your Honour, there was also a reference made to a telephone hook-up between the casino operators on the 15 October and to the fact that Ms Drimatas was not able to participate in that. That hook-up, your Honour, was actually instigated by Ms Drimatas and the earlier email that Mr Don Jones had sent to his colleagues to convene the meeting said:

PN1145

I had a telephone conversation to day with Kathleen regarding the current proceedings in the AIRC in respect to the Federal Hotel Managerial Staff Award. Kathleen has expressed some specific concerns ...(reads)... will be of the essence as the hearing commences in earnest early November can you please advise your availability in the next 24 to 48 hours. Please note that Kathleen is only available tomorrow due to other commitments.

PN1146

Your Honour, those were commitments again in the State Industrial Commission, commitments that can't easily be avoided. So that telephone hook-up was - - -

PN1147

THE SENIOR DEPUTY PRESIDENT: How many people were in the Industrial Relations section in the Burswood group?

PN1148

MR BLACKBURN: Ms Drimatas says that there is herself and one other officer, your Honour, but she is the person in charge with - - -

PN1149

THE SENIOR DEPUTY PRESIDENT: But Ms Drimatas answers to - - -

PN1150

MR BLACKBURN: To Mr Michael Kidd, your Honour, but I'm advised that Mr Kidd has very little involvement in industrial relations matters, notwithstanding his title which I think is general manager of human resources, I am advised that he has very little, if practically no involvement in industrial relations matters and it actually is Ms Drimatas who is the guiding force within the Burswood group on these issues. So this hook-up was instigated by Ms Drimatas and of course they came back with the resolution, if you like, that they would continue to support the exemption for casino complexes that was being proposed because, of course, that would exempt them and their hotels, there is no reason why they wouldn't support that. But of course, it does not exempt Burswood, so I don't think - - -

PN1151

THE SENIOR DEPUTY PRESIDENT: Well, it was the one originally suggested by Burswood?

PN1152

MR BLACKBURN: It was at a time when Burswood was still wanting to try and get some information on the award to see whether its hotel - whether they should argue for its hotel to be removed or not. Burswood recognised that there was the ability, if you like, because its hotel was not part of the complex to be covered by the award and it wanted information about the award in order to make that decision and eventually it gave up trying to get that information and decided that it wanted to throw its lot in with all the other casino operators and casino hotels and be excluded and even today Ms Zeitz is casting doubt on whether in fact Burswood would not be excluded. I understood her submissions to say that she wasn't entirely sure whether Burswood Hotel would be covered by the award or not and that it could not be - - -

PN1153

THE SENIOR DEPUTY PRESIDENT: Well, I don't know that that was what Ms Zeitz said in answer to a question I asked her about whether or not it was ambiguous.

PN1154

MR BLACKBURN: Yes.

PN1155

THE SENIOR DEPUTY PRESIDENT: Ms Zeitz said that she didn't have a view on that.

PN1156

MR BLACKBURN: That she didn't - - -

PN1157

THE SENIOR DEPUTY PRESIDENT: Have a view on that.

PN1158

MR BLACKBURN: Yes. Yes, I can't remember whether she didn't know or - - -

PN1159

THE SENIOR DEPUTY PRESIDENT: Yes, well, what was said, well, didn't know and I don't know that anybody knows until it is tested I suppose.

PN1160

MR BLACKBURN: Yes. Now, if that is the AHAs view then it seems to us to be a simple enough matter and simply amend the clause even if it by so small an amendment as to specifically name the Burswood International Resort to put - - -

PN1161

THE SENIOR DEPUTY PRESIDENT: But how do you get on then, you have people who are already covered by the existing award, so what you are seeking to do is remove from them, those people, the entitlements they have already got.

PN1162

MR BLACKBURN: Well, your Honour, as your Honour is aware the existing award has a very low threshold and it is, I think, been the union's compliant that virtually nobody is covered by it. The other point, your Honour, is that the Burswood Hotel is no different from all of the other casino hotels who will, as a result of what is proposed and agreed between the AHA and CMA, be excluded from the operation of the award. So they go from being covered by the award to being excluded.

PN1163

THE SENIOR DEPUTY PRESIDENT: But it has been happy to let it lie since 1987, in effect.

PN1164

MR BLACKBURN: Yes.

PN1165

THE SENIOR DEPUTY PRESIDENT: Never taken any steps to remove Burswood Hotel from the operation of that award since 1987 and presumably in 1987 the award was not too far out of date, or not so far out of date.

PN1166

MR BLACKBURN: No, I don't know what the position was then, but certainly in recent times the award has - well, put it this way, the award that is now proposed is a very different award from the award that has operated in recent times and it contains - - -

PN1167

THE SENIOR DEPUTY PRESIDENT: Allowable matters only.

PN1168

MR BLACKBURN: Well, it also contains very significant cost increases as a result of the increase in the wage structure and so forth.

PN1169

THE SENIOR DEPUTY PRESIDENT: That is a transitional, or proposed transitional position.

PN1170

MR BLACKBURN: Well, yes, I think it is 24 weeks or something, it is not particularly helpful. So Burswood are simply saying: we haven't been consulted about this award, nor for that matter have other WA employers. It would be picking up the submissions of the core group on the last occasion when the principles were put to you about intervention tantamount to - it would be a denial of natural justice to deny Burswood the opportunity to intervene and be heard in these proceedings.

PN1171

THE SENIOR DEPUTY PRESIDENT: That is a pretty strong thing to say, isn't i t?

PN1172

MR BLACKBURN: Well, no, your Honour, because the evidence has demonstrated that Burswood has been not provided with any information at all in relation - well, it is "not any information at all", I withdraw that, but been provided with very little information in relation to these proceedings, has not been represented in the true sense by the AHA, has not been provided with information by the AHA, nor has it even taken the Burswood's position in respect of the clause forward to the CMA and notwithstanding that was raised earlier this week, there was still ample time to do it, but it didn't do it, and we would've thought that it would've been a simple matter that would have been remedied. So we have no confidence that the AHA

PN1173

THE SENIOR DEPUTY PRESIDENT: Sorry, MR Blackburn, are you going to be much longer, by the way?

PN1174

MR BLACKBURN: No, your Honour.

PN1175

THE SENIOR DEPUTY PRESIDENT: No, that is all right. I don't mean to rush you. We can adjourn and come back after lunch, if you like.

PN1176

MR BLACKBURN: No, thank you, your Honour. Your Honour, thank you for the time you have afforded us today to make the application and those are our submissions.

PN1177

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Blackburn. Yes, Ms?

PN1178

MS ZEITZ: Your Honour, just briefly, my friend has purported to quote from an email of 13 or 14 September. I note he has not produced it but I would ask that that be produced.

PN1179

MR BLACKBURN: Yes, I'm happy to, your Honour. I don't have a copy. I will have to hand it up.

PN1180

THE SENIOR DEPUTY PRESIDENT: Well, perhaps you could show it to Ms Zeitz and - - -

PN1181

MS ZEITZ: No, that wasn't the one. It was a reply to John Fitzpatrick.

PN1182

MR BLACKBURN: Yes, sorry.

PN1183

MS ZEITZ: Yes, I'm happy for that to be provided to the Commission.

PN1184

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1185

MS ZEITZ: My submission speaks for itself as to what Burswood true position was.

PN1186

THE SENIOR DEPUTY PRESIDENT: All right.

EXHIBIT #B3 EMAIL REPLY

PN1187

THE SENIOR DEPUTY PRESIDENT: Mr Blackburn, I will announce my decision after lunch in relation to your application. In relation to the application by MIMA, I'm not satisfied that MIMA has demonstrated a sufficiently relevant interest at this stage of the proceedings to warrant their intervention. I will direct, however, that the AHA and the LHMU and CMAA have discussions with Mr McDonald as a representative of MIMA to clarify any matters that Mr McDonald wishes clarified and reserve further question of MIMAs intervention to a future date in the event that MIMA wishes to pursue that application. I will adjourn now until 2.15.

LUNCHEON ADJOURNMENT [12.55pm]

RESUMED [2.21pm]

PN1188

THE SENIOR DEPUTY PRESIDENT: Mr Blackburn, could I just clarify something with you in relation to attachment G to the affidavit of Mrs Drimatas?

PN1189

MR BLACKBURN: Yes, your Honour?

PN1190

THE SENIOR DEPUTY PRESIDENT: If Burswood is allowed leave to intervene, what would be the purpose of its intervention?

PN1191

MR BLACKBURN: Your Honour, in the first instance, we would ask that the parties be directed to confer with Burswood with a view to resolving Burswood's particular concern by agreement, and there would also then be the possibility of conciliation if the parties or the Commission form the view that conciliation might be of some assistance. We certainly wouldn't envisage any extended period of conciliation by any means. It would be a very short conciliation which the Commission could investigate, perhaps, whether the matter could be approached and dealt with in that way.

PN1192

Failing any agreement on the point, your Honour, we would seek to put submissions to you as to why Burswood Hotel should be exempt, and that would include - - -

PN1193

THE SENIOR DEPUTY PRESIDENT: Should be exempt from what?

PN1194

MR BLACKBURN: From the award, along with other - as other hotel/casinos are, and that would include evidence which could be in affidavit form, if required, as to the current status of the employees, the number of employees affected, their current conditions, if you like, and award coverage, the number of employees elsewhere in the Burswood complex for whom there is a potential flow-on because the employees in the casino complex itself, being the employees in the convention centre, the dome, and the casino, of course, will not be covered by the new managers' award and the potential, if the hotel is covered by this new award, for claims that flow on to those other employees.

PN1195

So that evidence, we would seek to put before you in support of an argument that an exemption should be granted which would be in, perhaps, more particular terms than the one that we've outlined in the correspondence and directed solely to Burswood International - the business trading of Burswood International Resort Casino.

PN1196

THE SENIOR DEPUTY PRESIDENT: Burswood Hotel Proprietary Limited, and I will refer to that as Burswood, has applied for leave to intervene in these proceedings as a member of the AHA. The AHA is a registered organisation. Burswood does have a direct interest in the proceedings and is directly, or would be directly affected by the outcome. Burswood contends, in reliance upon the affidavit of Kathleen Drimatas and the attachments to all the documents exhibited thereto, that its interests were not being adequately represented by AHA.

PN1197

AHA is not keeping it informed, so it contends, and not responding to Burswood's requests for further information. The AHA, LHMU, and the Club Managers Association oppose the application for leave to intervene on the basis that the interests of Burswood are adequately represented by AHA. Over the course of the luncheon adjournment, I took the opportunity to re-read the affidavit of Ms Drimatas and the documents exhibited thereto, or the correspondence that is exhibited thereto, and was left with the distinct impression that the dilemma that Burswood finds itself in has less to do with the AHA than with its own busy schedule which precludes it from participating in a number of meetings that were conducted for this specific purpose of considering these proceedings.

PN1198

It is clear that Ms Drimatas has not attended specific meetings related to these proceedings. I'm also concerned that having regard to the attachments D, E, and G that Burswood is failing to acknowledge or recognise that certain of the matters that they have raised from time to time are addressed by the AHA, and yet pursued again, despite those matters having been addressed in correspondence. It seems to me that given the history of these proceedings, that is, the length of time that they have been on foot, likely further delay in allowing Burswood to intervene at this late stage would only, I think, cause those people covered by the existing award to have their benefits or entitlements further adversely affected by that delay.

PN1199

In the circumstances, what I propose to do is to allow Burswood leave to intervene for the limited purpose of making submissions, if and when the award is made, as to the matters that it is concerned about in relation to the hotel in the Burswood complex - sorry, the hotel was part of the Burswood complex and has been removed from the complex by legislative fear.

PN1200

MR BLACKBURN: Thank you, your Honour.

PN1201

THE SENIOR DEPUTY PRESIDENT: You are welcome to stay if you wish.

PN1202

MR BLACKBURN: Thank you, your Honour.

PN1203

THE SENIOR DEPUTY PRESIDENT: In making that decision, I should say that I've referred back to the earlier decision I made about the principles, and I rely on those principles about the adequacy of representation. Yes, Mr McDonald, do you want to say something?

PN1204

MR McDONALD: If I may. Over the luncheon adjournment, we have been provided with a copy of the proposed award and had some constructive discussions in relation to it as to the definition of concerns that we have raised. We would seek to have further discussions following today, and hope that that would resolve our concerns. We, therefore, seek at this stage to have leave to be excused from the proceedings and if those - come back to the Commission following those discussions, if the Commission pleases.

PN1205

THE SENIOR DEPUTY PRESIDENT: Yes, thank you for the courtesy. You are excused. Mr Cooper, what is the situation. Do you or Mr Swancott wish to speak first?

PN1206

MR COOPER: We have received a clean copy of a draft that is a work in motion, so to speak. Further telephone discussions were held yesterday with the AHA in the drafting of this and we are just going through it now. In light of what has just been said, and with your decision on transcript, I'm looking for a bit of guidance of what our next step may be with this matter. The parties were intending to happily proceed with the consent award this afternoon, but that may not be the case now.

PN1207

THE SENIOR DEPUTY PRESIDENT: I'm not sure what stage the draft award is at. I don't know - perhaps I haven't made myself clear. What I've done is allow Burswood - - -

PN1208

MR COOPER: Yes.

PN1209

THE SENIOR DEPUTY PRESIDENT: - - - in effect to have their position reserved, that is, the award can be made and then Burswood can apply to be exempted or excluded from it on whatever grounds or basis that they believe - exempted either totally or in part or however it is Burswood wishes to advocate such a case.

PN1210

MR COOPER: Sorry, sir, I misunderstood your decision. I thought that they were able to make submissions in the making of the award.

PN1211

THE SENIOR DEPUTY PRESIDENT: No, no. I said "if and when the award is made" - well, I believe I said that.

PN1212

MR COOPER: Yes.

PN1213

THE SENIOR DEPUTY PRESIDENT: If and when the award is made, Burswood would be granted an opportunity to put its case as to why it may - why its hotel should be excluded from the award.

PN1214

MR COOPER: Okay, thank you.

PN1215

THE SENIOR DEPUTY PRESIDENT: Yes?

PN1216

MS ZEITZ: Your Honour, I've provided Mr Cooper and Mr Swancott with a copy of a formatted, most recent draft of what represents the consent position that was reached last Friday. I can indicate to the Commission that all matters at issue between the parties have been resolved, save and except in relation to the motels matters which we believe can be resolved in a very short order. We've had some preliminary discussions about that and very soon, and also in relation - subject to the position in relation to Burswood that your Honour has ruled on, there have been some further discussions.

PN1217

This has been an argument that has been checked and double checked and triple checked by various people to try and make sure that all of the relevant issues - - -

PN1218

THE SENIOR DEPUTY PRESIDENT: I haven't had an opportunity to have a look at that.

PN1219

MS ZEITZ: No, you haven't. What I'm proposing to do, your Honour, is to provide you with a copy of where we are at at the moment with the document. Perhaps just briefly, your Honour, just to take you through it by way of summary, the award is expressed in clause 4 and be binding on the Club Managers Association, its officers and members, and the Australian Hotels Association. It then has a list of exemptions and the matter in respect of which Burswood has a particular concern is, we understand, clause 4.2.1 of that.

PN1220

THE SENIOR DEPUTY PRESIDENT: That is, clause 4.2.1 now reflects the initial position of Burswood. Is that right?

PN1221

MS ZEITZ: Yes, yes, and not just Burswood. It reflects the position of Burswood but applies to all casinos in Australia.

PN1222

THE SENIOR DEPUTY PRESIDENT: Yes, I appreciate that.

PN1223

MS ZEITZ: The other exemptions are set out and broadly reflect what was contained in the - what is contained in, what I call loosely, the current award which is the 1974 award. There is an additional exemption at clause 4.2.6 which specifically identifies the very senior levels of management as not falling within the scope of the award and indicative position titles have been included there. That is effectively a new addition from what your Honour would have seen in the past.

PN1224

THE SENIOR DEPUTY PRESIDENT: Right.

PN1225

MS ZEITZ: Clause 4.3, transmission of business, is in the same terms as I think your Honour saw in an earlier draft as is locality. I made no comment on the locality issue. I think you raised this morning the issue of the AWU. We simply adopt the submissions of Mr Swancott in that regard and - - -

PN1226

THE SENIOR DEPUTY PRESIDENT: I should indicate that during the course of the proceedings this morning, an email came to my chambers from the AWU which suggests they take a different position to that Mr Swancott was indicating to me, I think. Just a moment. Sorry to hold you up. Sorry, I can't access it at the moment. Perhaps, we will proceed and I will bring that to the attention of the parties in due course, but if it is a different position to that which Mr Swancott believes is the position, then my suspicion is that the AWU wishes to maintain its application for leave to intervene.

PN1227

It has not been given leave to intervene at this stage because there were discussions between it and the LHMU and, presumably, the Club Managers didn't persist with its application to intervene after that, but it might be different. We have got it. What the email says is:

PN1228

We understand that the above matter is listed for hearing at 10 am today. The union's interest in this matter relates to the application of the award in Queensland. Discussions have occurred between representatives from our Queensland branch in the LHMU. Unfortunately, the AWU Queensland Industrial Officer is on leave and we wish to ensure that an award that is made under item 51 review does not vary the current application clause in regard to Queensland. I've attempted to contact, without success, Mr Swancott.

PN1229

MS ZEITZ: I'm not sure that the writer of that email understands that the current position is that the award applies throughout the State of Queensland, and that what was proposed was an accommodation - - -

PN1230

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1231

MS ZEITZ: - - - which neither - none of the parties to the proposed award would - potential parties of the proposed award would be - - -

PN1232

THE SENIOR DEPUTY PRESIDENT: Yes, I wasn't sure he had that understanding. Yes, that is what Mr Swancott said this morning. That was the status quo, and that is actually what he said to me - Mr - I've forgotten his name. The gentleman that rang this morning to our chambers and left that message that said they wanted the status quo. In any event, perhaps Mr Swancott can enlighten us on that after.

PN1233

MS ZEITZ: I take it no further than that.

PN1234

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1235

MS ZEITZ: Clause 6 is the operation of the transitional arrangements and that is in the same form as was previously identified. It indicates that the rates of pay don't effectively apply until 8 weeks from the date the award commences, and then there's a further transitional period allowed for those situations where - - -

PN1236

THE SENIOR DEPUTY PRESIDENT: Three instalments, in effect?

PN1237

MS ZEITZ: Yes.

PN1238

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1239

MS ZEITZ: Clause 7 deals with the relationships to other awards and is self explanatory and is, again, consistent with what has been previously before the Commission. Clause 7.3- sorry, clause 7.4, my apologies, on page 6 makes it clear that those exclusions do not extend to the all others not elsewhere classified classifications. Clause 7.5 also provides that the mere designation of an employee's position with the title, Manager, does not necessarily bring it under the award, that they must actually be performing the duties of a manager under the award.

PN1240

That was to reflect a concern expressed by a number of members of the AHA where for public relations reasons, they may have a person who is, for example, designated as Front Desk Manager but who is essentially carrying out reception, front desk reception functions and that sort of thing. The definitions section, being clause 8, sets out the appropriate definitions. There is - after discussions this morning with the Club Managers Association, there is a proposal to re-introduce a definition for accommodation hotel which would extend to cover hotels that have greater than a 50 bed capacity so that would be included, and following discussions - - -

PN1241

THE SENIOR DEPUTY PRESIDENT: It will be included, did you say?

PN1242

MS ZEITZ: That definition will be included.

PN1243

THE SENIOR DEPUTY PRESIDENT: Is that by agreement?

PN1244

MR COOPER: Yes, your Honour.

PN1245

MS ZEITZ: Yes.

PN1246

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1247

MR COOPER: Maybe if I just clarify that. What I said this morning is that the current award referred to a residential hotel with more than 50 rooms. This is just modernising the award by calling it an accommodation hotel, and the other definition kicks in saying we are talking about the hotel industry, not motels and so forth. So I think we are not doing anything. We are just changing a word that has the same effect so I'm happy with that position. I don't think it has any implications for the motel/inn people at all.

PN1248

THE SENIOR DEPUTY PRESIDENT: All right. I notice the LHMU is not defined as a party to this award. Presumably, I will hear something from Mr Swancott later on about that.

PN1249

MS ZEITZ: On page 7, following discussions with the motel industry and subject to our instructions and further discussions, we anticipate it is likely that a definition of "hotel" will be included that alleviates the concerns that have been identified. Clause 8.5 identifies what a manager is under the award. That is a new definition.

PN1250

THE SENIOR DEPUTY PRESIDENT: It is a new definition, did you say?

PN1251

MS ZEITZ: Yes, and it is directed to the tasks that are performed so it is task based. The enterprise flexibility provision in clause 9 and redundancy in clause 10 are in the standard form.

PN1252

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1253

MS ZEITZ: As is termination of employment in clause 11, as is clause 12, settlement of dispute, clause 13 - - -

PN1254

THE SENIOR DEPUTY PRESIDENT: Sorry, just going back to 10.3.1, is that one year or less, no severance pay, does that stand?

PN1255

MS ZEITZ: Yes, it is. That is in accordance with the standard - - -

PN1256

THE SENIOR DEPUTY PRESIDENT: Sorry?

PN1257

MS ZEITZ: That is in accordance with - they are entitled to notice but not severance for less than one year's service.

PN1258

THE SENIOR DEPUTY PRESIDENT: All right, but shouldn't it say, "less than one year", because the next one says, "one year and up to 2" so you have got a conflict in the one year. If a person is there one year - - -

PN1259

MR SWANCOTT: If it assists your Honour, section 173CM uses the words, "not more than 1 year."

PN1260

THE SENIOR DEPUTY PRESIDENT: Yes, that is right.

PN1261

MS ZEITZ: This is the product of trying, where possible, to be consistent with the Hospitality Industry Award because it actually reads in clause 16.3.1, you know, to different terms to what is contained in the proposed award so that is where that has come from. It is obviously something that has slipped through for a number of years without the parties being aware of it but - - -

PN1262

THE SENIOR DEPUTY PRESIDENT: Well, anyway, what do you want to do about that? Do you want to leave it as it is or do you want to put, "not more than one year?"

PN1263

MS ZEITZ: We would simply change that to either, "less than one year's service", or "not more than one year's service."

PN1264

THE SENIOR DEPUTY PRESIDENT: Yes, all right. So you were up to termination of employment.

PN1265

MS ZEITZ: Yes, clause 11 is in a standard form as is clause 12, settlement of disputes, and clause 13, regular part-time employment. Classification and wage rates is at clause 14, and following discussions between the parties, there is to be one classification for a manager, and clause 14.2 sets out the minimum rates.

PN1266

THE SENIOR DEPUTY PRESIDENT: That was going to be 110 per cent, was it, or was it always going to be 115?

PN1267

MS ZEITZ: Following negotiations last Friday, it was agreed to be 115 per cent.

PN1268

THE SENIOR DEPUTY PRESIDENT: Right, and that can be substantiated, can it, in terms of the metal trades classification?

PN1269

MS ZEITZ: Yes. I think equivalent metal trades classification is for a supervisory tradesperson's rate - - -

PN1270

THE SENIOR DEPUTY PRESIDENT: Right.

PN1271

MS ZEITZ: - - - so it falls well within - - -

PN1272

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1273

MS ZEITZ: You will see there's a reference there in column 3 to the 25 per cent, and that is identified in clause 14.5 where, after discussions, the parties have included a number of matters that do not apply to employees who are in receipt of a salary 25 per cent in excess - sorry, in receipt of a salary 25 per cent or more in excess of the new annual salary rates. Your Honour might - - -

PN1274

THE SENIOR DEPUTY PRESIDENT: That is, in effect, if a person is receiving $50,000 a year or $49,000, perhaps, or less than $49,000 - - -

PN1275

MS ZEITZ: A person who is on the current proposed rate receives more than $39,258 a year, they would receive - - -

PN1276

THE SENIOR DEPUTY PRESIDENT: Up to 20 - if they receive 25 per cent in excess of that amount, is that right, or is that the amount?

PN1277

MS ZEITZ: That is the amount.

PN1278

THE SENIOR DEPUTY PRESIDENT: 39,000?

PN1279

MS ZEITZ: Yes.

PN1280

THE SENIOR DEPUTY PRESIDENT: That is very low, isn't it.

PN1281

MS ZEITZ: That is, the base annual salary, your Honour, you will see is 31,406.

PN1282

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1283

MS ZEITZ: So the 25 per cent has been added to that.

PN1284

THE SENIOR DEPUTY PRESIDENT: All right.

PN1285

MS ZEITZ: Yes, in that clause 14.5.1, there does need to be an amendment where it talks about the provision of clause - in the first line - 16 allowances. It should be clause 16.2 allowances. Clause 16.1 allows for reimbursements of costs properly incurred and that is, obviously, not intended to be withdrawn. Clause 15, payment of salaries, remains in the same form as previously, as does allowances. Superannuation identifies the two superannuation schemes operating in the industry, and also includes provision for any other compliant fund which an employer is contributing.

PN1286

That is a recognition of changes that may or may not occur at some point. Other than that, the clause is in fairly standard format. Hours of work is set out in clause 18 and reflects the hours that were in the current award together with provision for rostered days off at clause 19.

PN1287

THE SENIOR DEPUTY PRESIDENT: Is it new or - sorry, the rostered days off one is where?

PN1288

MS ZEITZ: That's at page - - -

PN1289

THE SENIOR DEPUTY PRESIDENT: At 18.3, yes.

PN1290

MS ZEITZ: Yes.

PN1291

THE SENIOR DEPUTY PRESIDENT: Is that the same as before or is that new?

PN1292

MS ZEITZ: That's the same as was in earlier drafts, yes. There's provision for meal breaks. Overtime again is in the same form as was previously provided. The annual leave clause starts at page 21 and the various personal and other leave clauses are all in the format required by the Commission and make provision consistent with Commission standards. Jury service is provided for at clause 24 and again is consistent with what has previously been before your Honour. That hasn't changed. Long service leave relies - in clause 25 - upon the state legislation.

PN1293

There is provision for public holidays. There is one minor issue there in relation to 26.2(a), Show Day, about which we had a discussion about things but apart from that - and that's just an issue that's been raised this morning. So we talked with them about that.

PN1294

THE SENIOR DEPUTY PRESIDENT: So that's still unresolved, is it?

PN1295

MS ZEITZ: I don't know that it's not resolved. I think we just need to clarify what we mean by it. Part of what we have tried to do in relation to jury service, public holidays and what follows with accommodation, at clause 27 and uniforms, at clause 28, is in recognition of the industry within which it operates is to line those provisions up with the hospitality award as near as practically can be the case so that there is consistency of conditions applying across those two periods. Clause 27 accommodation reflects what is currently in the Hospitality Award, as does clause 28.

PN1296

THE SENIOR DEPUTY PRESIDENT: Right. Just going back to clause 26.2, has the union picked a day in an allowable manner?

PN1297

MS ZEITZ: Mr Swancott assures me that it is and I'm sure he's right.

PN1298

THE SENIOR DEPUTY PRESIDENT: I am sure Mr Swancott will be able to tell me where I will find it is. All right.

PN1299

MS ZEITZ: So apart from the issues that have been raised by the various parties this morning in broad that represents an agreed position apart from some very very minor matters. Certainly the RHA is prepared to move to a consent order as soon as possible, subject to the Commission being satisfied.

PN1300

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I would like an opportunity just to go through it and have a closer look at it but upon the face of it it appears pretty much in accordance with the other draft that I had but nonetheless I would like to have a look at it and just confirm that I am satisfied that it is compliant. For example, the rearrangement clause, I think that needs to reformatted. In any event I will just look at those matters. Thank you very much, Ms Zeitz. Mr Cooper.

PN1301

MR COOPER: Your Honour, this does represent the basic agreement or understanding we have reached on 1 November, but as I indicated, there was some further discussions by way of telephone yesterday afternoon at 4 o'clock with the AHA. There is probably - as a matter of clarification, I just want to raise 4.26. During our discussions on 1 November I indicated some concerns with the term "venue manager," and I thought we were going to substitute that with that new term, "general/hotel manager."

PN1302

THE SENIOR DEPUTY PRESIDENT: That is in there, isn't it, general/hotel manager?

PN1303

MR COOPER: No, I don't think it is - in lieu of having a venue manager inserted.

PN1304

THE SENIOR DEPUTY PRESIDENT: I see.

PN1305

MR COOPER: I'm just flagging that as a point of clarification because what we did with that particular clause, there was part (a) and part (b) to it and we combined the two together and I raised the Victorian situation with venue managers and I thought the way of overcoming the AHAs problem was to extend - put a slash in there, put hotel manager. Your first draft had just simply general manager. That's just a matter that won't be a huge issue but I just think it needs further clarification.

PN1306

THE SENIOR DEPUTY PRESIDENT: Yes. Perhaps that can be clarified, yes.

PN1307

MR COOPER: Sir, what I'm intending to do here is just to indicate the differences that may need some fine tuning but in essence I support the submission that has just been made in the creation of this consent draft document.

PN1308

THE SENIOR DEPUTY PRESIDENT: Perhaps I should mark that by the way as J1 in this matter. Sorry, I've already marked something - I'll mark this as JA1.

EXHIBIT #JA1 CONSENT DRAFT DOCUMENT

PN1309

MR COOPER: Turning to clause 14, the classification and wage rates, which is on page 13, we have had some discussions to clarify the column 1 description. I did suggest that we use the classification level as a properly fixed minimum rate of an external relativity with the trades rate. So somewhere in the future that 115 per cent would be understood by everyone.

PN1310

THE SENIOR DEPUTY PRESIDENT: So that will always be the relativity.

PN1311

MR COOPER: Yes. There is no internal relativities to be made.

PN1312

THE SENIOR DEPUTY PRESIDENT: No, I see that.

PN1313

MR COOPER: I assume we will tidy that up as well. Clause 14.5, the salary absorption provisions, it was noted one of our discussions yesterday dealt with the allowances that people expending money on behalf of the employer should be open to be reimbursed. So it will tie that down to 16.2 which is under motor vehicle allowance provisions. I did request that consideration be given to the deletion of jury service, clause 26 and I hadn't heard back from the AHA.

PN1314

THE SENIOR DEPUTY PRESIDENT: Clause 26.

PN1315

MR COOPER: Yes. One of the matters exempted - 24, I'm sorry. Yes, 24.

PN1316

THE SENIOR DEPUTY PRESIDENT: Shouldn't people have leave for jury service?

PN1317

MR COOPER: They should but they should also receive the make-up pay.

PN1318

THE SENIOR DEPUTY PRESIDENT: I see.

PN1319

MR COOPER: That's the intent of that.

PN1320

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1321

MR COOPER: So I ask that consideration be given by the AHA to remove that as one of those absorption clauses.

PN1322

THE SENIOR DEPUTY PRESIDENT: So that's a matter still under consideration, is it?

PN1323

MR COOPER: Yes, it is. We also ask that maybe one of the provisions of clause 18, hours, be reconsidered as well.

PN1324

THE SENIOR DEPUTY PRESIDENT: That's as it is at the present time, isn't it?

PN1325

MR COOPER: Yes, it is, in accordance with my draft of 8 August. So apart from those three areas that I've just mentioned there, the Association is reasonably comfortable with the document presented to the Commission this afternoon and as the matter pertaining to the CMAA and the LHMU, the two unions will be entering into some understanding independently in respect of having to deal with our respective members in the workplace. I think Mr Swancott would like to make further mention of those matters in his submissions.

PN1326

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1327

MR COOPER: That's all I would like to say, your Honour, this afternoon.

PN1328

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Cooper. Yes, Mr Swancott.

PN1329

MR SWANCOTT: Your Honour, the LHMU didn't take part in the meeting on 1 November in the plush surrounds of Surfers Paradise, although we were informed the night before by the AHA that meeting was on and given a sort of off-hand verbal invitation to attend. Nevertheless, the LHMU has been working closely with the Club Managers Association for some time now in trying to lift this award into the 21st century and we appreciate that that has had some problems in some of the 19th century employers not too far west of us but our intention has been to try to provide at least properly fixed minimum rates and standard conditions of employment for employees, the employees covered by this award.

PN1330

Because we weren't at the meeting on Friday, we were therefore not party to the decision which has led to the draft before you which excludes us. We were advised by the Club Managers Association that the AHA was particularly anxious not to have the LHMU made a party to this award and we considered our position over the week since last Friday in light of that pressure, as it were, from the Australian Hotels Association. We were provided a draft similar to the draft before you now of this award based on the discussions in Queensland on Wednesday this week. We went through it in detail and provided to the Club Managers Association our views on some of the areas that perhaps needed to be addressed or some of the areas that specifically needed to be cleaned up.

PN1331

Some of those issues, as Mr Cooper has indicated, have been addressed in the draft in exhibit JA1 and others haven't. Ones of particular concern to us and one or two others are, with due respect, drafting issues that raise ambiguities that shouldn't be in the award. The one that is of particular concern to us Mr Cooper referred to and that is the exclusion in clause 14.5.1 of all parts of clause 18 of the award. They have explained that 14.5.1 follows on a tradition in the hotels industry of what is described in the Hospitality Award, the Federal Hospitality Award, as an annualised salary or an alternative method of payment.

PN1332

It allows for the payment of 25 per cent in addition to the appropriate classification made in lieu of penalty rates and overtime but that is as far as the exemption goes in the Hospitality Award.

PN1333

THE SENIOR DEPUTY PRESIDENT: Do you know off the top of your head what a supervisor might earn, for example, annually with penalties and overtime and so forth on average in the hotel industry?

PN1334

MR SWANCOTT: That's a very interesting question, your Honour. If you look at the exhibit tendered earlier today by Mr Blackburn you will see that in Western Australia that figure is $31,000 and - - -

PN1335

THE SENIOR DEPUTY PRESIDENT: Well, I won't - just continue on with what you were saying.

PN1336

MR SWANCOTT: Sorry, I withdraw that. It wasn't Mr Blackburn's. It was AHAs exhibit 3 earlier today in summary of the meeting of the AHAs Western Australian IRCG.

PN1337

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1338

MR SWANCOTT: If you go to the last page of that exhibit - perhaps it's easier to start at the second last page where Mr Nodding is reported at the meeting as querying the likely result of the arbitration proceedings, particularly bearing in mind the different position of eastern states hotels. Mr Fitzpatrick commented that:

PN1339

It was difficult to predict the outcome of the proceedings, particularly bearing in mind the different attitude of eastern states hotel operators. At this time it became difficult for hotels to decide whether to engage employees as "managers" at lower levels of management or engage such persons as supervisory employees under level 3 of the West Australian Hotel and Tavern Workers Award. This was a particular concern bearing in mind that there was a risk that a lower level manager employed at, say, $31,000 per year on an all in basis may become entitled to a salary of $47,000 a year. As a consequence of the making of a new award -

PN1340

then it goes on to say -

PN1341

this rate was projected by Ms Gibbons of Rendezvous Observation City Hotel after considering the provisions of the draft interim award and in particular the 40 hour week, overtime and public holiday clauses in the draft interim award applied to the typical working pattern of a lower level manager. Mr Fitzpatrick noted that pending the resolution of the award issue several members had adopted a strategy of engaging persons as level 3 supervisors rather than managers.

PN1342

So we see from that and also from the affidavit that was tendered where the level 3 supervisor rate was identified at $491.50 from memory, that as a matter of strategy we change the name or definition of the person and pick an award rate that suits us. Now, one of the advantages - I'm sorry. Your Honour, to answer your question I hand up a copy of extracts from the Hospitality Industry Award where supervisory positions are set out - are extracted and the rates of pay with them.

EXHIBIT #LHMUA1 EXTRACTS FROM HOSPITALITY INDUSTRY AWARD

PN1343

MR SWANCOTT: Your Honour, at clause 3.51 of that award there is a definition of a food and beverage supervisor. There's a supervisory position as a kitchen attendant grade 3. Then in the kitchen stream there is a cook tradesperson grade 4, a demi-chef who also supervises and trains other cooks and kitchen employees, and a cook tradesperson grade 5 or a chef de parti or equivalent, who performs functions which include sole responsibility for other cooks. Then there are guest service supervisors, front office supervisors, clerical supervisors. If you turn the page you see the rates of pay. I will just indicate that the level 5 rate of pay under that award is the equivalent of 110 per cent relativity to the trade rate and a level 6, the chef de parti, or cook grade 5, is 115 per cent.

PN1344

Now, if you take the 25 per cent loading then in the case of the level 5 supervisor under the Hospitality Award, you get the figure that is set out in exhibit JA1 at column 3 of course, 14.2. The level 6 rate annualises at 39,258 but it does not cut the employee out from a range of conditions that the draft attended Ms Zeitz has the the effect of removing from employees. In the case of the level 5 supervisor, her salary is approximately 5 per cent below that of the level 6. The annualised rate on the 25 per cent formula is less than the 39,258. I give you these figures to indicate that: it is normally a fundamental of proper wage fixation that supervisors or managers are paid higher than the people they supervise or manage. In the case of food and beverage managers in large hotels: the chef de parte, or the common chef are in the hierarchy below the manager. So one would expect, on a property fixed hierarchy of wage rates, that the manager's rate, the hotel manager's rate, would be above the annualised rate for the chef de parte. In other words, the trade cooks working in the kitchen, and that is not necessarily the case.

PN1345

The true answer to your question, your Honour, is $24,000 per annum or any amount above that that the employer wishes to pay, because at the moment the exemption rate from the current award, the hotel managerial award, is $24,000 and there is no rate that you can point to to say that that is the appropriate rate. Our surveys indicate that in South Australia the hotel manager' rate is approximately $32,000 at the moment in the absence of properly fixed award rates. Our surveys therefore line up with the estimates in the West Australian AHA minutes, for which, of course, we are grateful to have that confirmation.

PN1346

The truth is that, once these rates are properly fixed, even at the rate proposed by the AHA - sorry, updated, is a better way of putting it, the rates proposed by the AHA and the CMAA. If that causes a pay-rise, of the extent that appears to concern our colleagues in Western Australia, well, that is the effect of bringing wages up to their appropriate level in conformity with the workplace relations, in other words, the Legislation Act. Your Honour, if that was a long answer to your question I apologise.

PN1347

THE SENIOR DEPUTY PRESIDENT: Well, that is helpful actually, and I diverted you, that is the only other thing, you were saying about the exclusion of clause 18 in its entirety?

PN1348

MR SWANCOTT: Yes, your Honour. If I can take you briefly to clause 18, there is in fact a new subclause inserted in that clause which the LHMU believes is essential for the effective operation of the award, and that clause 18.3.7. It is a clause which provides a mechanism to enable managers to record when they are required to work on their rostered days off. It is a mechanism that actually builds in protection, as for both employees and for employers. It says that: to be entitled to a claim for restoration of a rostered day off, and that right is expressed in clause 14.5.2:

PN1349

An employee paid pursuant to 14.5.1 will be entitled to a minimum of 8 days off per 4-week cycle.

PN1350

So, in other words, an average of two rostered days off per week or eight per 4-week cycle. If an employee is required to work on their rostered day off and there is no mechanism for drawing that to the attention to the pay-office then there is no enforceable right subsequently, short of lengthy evidence: I say I've worked on that day, we don't know that you did. So, in other words, for the effective operation of the clause which guarantees people an average of 8 days off per 4-week cycle we believe there needs to be a recording mechanism and that once recorded, if the entry is not challenged it stands, and if the entry is not made, and a subsequent claim for payment or restoration of the lost day is not enforceable.

PN1351

I should point out that: if an employee is operating under the award and not the exemption clause then that provision applies to them, they record when they are rostered off and when they are called in they are rostered off. There's a similar clause that has been inserted at clause 20.3 relating to overtime. The second part of subclause 20.3: provides a time-book to overtime recording methods must be provided by the employee and an entry must be made, etcetera. Now, we accept that the exemption, 25 per cent rate, ousts the operation of the overtime clause for employees paid according to that rate but we don't accept that that should be the case for the rostered day off provisions.

PN1352

I think I've just persuaded Ms Zeitz of the wisdom of that course of action. As with Mr Cooper, we also believe that is inappropriate to specifically exempt managers paid the exemption rate of pay from the provisions of jury service, the jury service' clause. We believe that that is a reasonable proposition for the rare occasions when employees are called in for jury service, and then in the absence of that clause there's no entitlement to maintenance of salary. There's, in our view, no cost consequence of any great note in allowing managers paid the exemption rate access to salary maintenance in the event that they are called up for jury service.

PN1353

Your Honour, I turn to the question of respondents to the award. As you know, and we have put the detailed written submission earlier which supported our application to intervene, which is granted by your Honour. The LHMU has constitutional coverage for all employees in hotels, including hotel managers. We have hotel managers in membership, including managers covered by the existing award, or at the very least managers coming within the exemption clause of the existing award, and we have represented their interests before industrial Tribunals and Courts. Arguably, the freedom of association' provisions of the 1996 legislation require that: as we are a union with constitutional coverage and we have the requisite dispute finding current, pursuant to section 101 of the Act, that we are entitled to be made a party to the award in order to effectively represent our members.

PN1354

Indeed, the disputes settlement' clause of the award that has been handed up to you in exhibit JA1 specifically provides for our right to be nominated by individual members and to represent them through the disputes' process, because as a registered union we can be the other representative of an employee accessing that clause. Your Honour, it is true to say that the history of this award has not given us any cause for complacency. With due respect, the AHA hardly comes to the Commission, the Tribunal of equity with clean hands. In 15 years the AHA has made no attempt to up date the award to reflect contemporary Commission standards.

PN1355

THE SENIOR DEPUTY PRESIDENT: Is it their responsibility?

PN1356

MR SWANCOTT: But they are the ones who filed the section 111(1)(g) application seeking to put outside of the award, a union which has a history of regularly updating its own awards and which consistently applies Commission first case standards to them. I accept that it is a - it takes two to tango and that this award lay dormant either with the acquiescence or the oversight of everybody. But what we do know from the exhibits tendered this morning, that it has suited some employers to take advantage of the state of this award and only to seek out other alternative awards when they face the prospect that this award would be brought up to date.

PN1357

Your Honour, the AHMUs position is that it will keep a close watch on the operation of this award. We will examine whether applications are made for the award to be varied from time to time to reflect changes in Commission test case standards. We note for the record that exhibit JA1 does not incorporate the Commission's reasonable overtime standard made earlier this year as a test case standard nor does it reflect a much older 38 hour week standard. We will also be watching to ensure that the award was maintained through prompt adjustment of minimum wages if and when they are increased in annual safety net review cases.

PN1358

They will also be watching to ensure that the award is extended beyond AHA members to relevant employees who are not AHA members. So in other words in the interest of breaking the log jam we will not press our application at this stage to be made a party to the award but we seek now to reserve the right to apply to become a party to the award in any of the following circumstances. First, if the award operates unfairly as a result of its failure to provide a proper career structure, it is to be noted that there is no career structure whereas a single rate of pay which in our view, under values the work of- of hotel managers and it is struck at a rate that is below the highest hands-on working rate in the Hospitality Award.

PN1359

It is struck by agreement and we note that as well, but it is an agreement that breaks a log jam, allows for an award to be made which is at least - and a significant advance for many employees employed pursuant to it. Secondly, if the parties fail to maintain the award at relevant levels. Thirdly, if legislation dealing with representative rights of registered organisations changes or if the constitution rule of either party to the proposed award alters in any significant way. And fourthly, if the changes in definition which have been put into this award had the effect of altering the scope or reach of the award in an improper or unfair way and/or if the award proves to exclude a significant part of the industry.

PN1360

Your Honour, one of the motivating factors for the LHMUs involvement in this long and drawn out process has been to remove the inequity that has existed where because of the listless of the current award, employees have been able to be taken outside of the properly fixed Hospitality Awards, given fancy titles and underpaid and I in earlier submissions to the Commission, appended a number of decisions of State Industrial Tribunals which went to those issues and I won't repeat or dwell on those.

PN1361

What attracts us to the agreement between the CMA and the AHA is that there are now for the first time, a proper objective definition of manager and there is now for the first time a proper - an objective clause that is - which sets out the relationship between this award as varied and the Hospitality Awards that operate Federally and in the various states. Now, I note that some employers think that that will be to their advantage, it is our view that that will also be to the advantage of many employees because it will now be an objective test on the work done as to what rates of pay apply and not the election of the employer.

PN1362

So, your Honour, I would ask that you adjourn sine die C No - C No 24453 of 1999 which is the union's - - -

PN1363

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1364

MR SWANCOTT: - - - notification of dispute on the basis that I would outline that on the basis of the union's rights to simply made a part of this award can be activated should the circumstances warrant it. Thank you, your Honour.

PN1365

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Swancott. Ms Zeitz, did you want to respond to any of those matters?

PN1366

MS ZEITZ: I think I can confirm to the Commission that following the listing of the matter before you on 24 October where the meeting of 1 November was identified which took place last Friday, the meeting didn't take place with Mr Cooper as indicated and certainly the AHA understood that, but prior to that meeting the accommodation that has been referred to or the arrangement being referred to had been entered into between the two unions otherwise they would have expected Mr Swancott to be in attendance. But we were certainly advised that that was the case, I just to ensure the Commission that there had been no attempt to exclude anybody from that meeting.

PN1367

The - I think it is fair to say the 1974 award, I don't think anybody who is a party to that has entirely clean hands and I note that all of both the LHMU, the CMA and AHA have in various - at various times when the Commission proceedings as far as back as the early 1990s had the attention of their respective organisations directed to the languishing of that award and I don't - I certainly know the LHMU was in receipt of that comment as indeed others were aware of it. So, the purpose of this document is to update, bring into the - effectively as Mr Swancott has said, the twenty-first century, the award.

PN1368

I note he has referred to the level of wages. One of the difficulties that has been addressed in the consultation process with the AHAs and would have been addressed if the matter had had to proceed by way of work value is - it is, and I don't mean to understate or to detract from what he said but the scope of the award is vast, it applies to a range of very different enterprises and while it is somewhat neat to refer to the chef de parte rate and those rates, that may apply in some - in the larger hotels, the larger establishments, but this award will apply to establishments across the length and breadth of Australia and in very different sized establishments and that has been one of the issues that certainly the AHA has had to come to terms with in trying to determine - - -

PN1369

THE SENIOR DEPUTY PRESIDENT: Well, I suppose it is one of the issues that troubled me when there was talk of different classifications because I wasn't sure of how the application of this, if you like, in small hotels and things of that nature, but anyway.

PN1370

MS ZEITZ: It is true that a conservative approach has therefore adopted by the AHA. It is the case of doing it on that basis. I can indicate that in relation to the matters that Mr Cooper has raised, we had understood that the venue manager in 4.2.6 was part of that consolidated original clause that was provided and the instructions we had are predicated on the base of that clause, so that would create some issues for us if that were to change. In relation to - - -

PN1371

THE SENIOR DEPUTY PRESIDENT: Could you discuss that with Mr Cooper and - - -

PN1372

MS ZEITZ: Yes, yes, I'm just foreshadowing that that remains an issue.

PN1373

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1374

MS ZEITZ: In relation to 10.3.1, that is not an issue, that is less than 1 year's service. We don't have a difficulty with referring in 14.2 to an external relativity of the metal trade rate of 100 per cent as the base for determining that. In clause 14.5.1 18 hours of work can simply be amended to read:

PN1375

18 hours of work (excluding clause 18.3.7).

PN1376

As Mr Swancott said we are persuaded by his argument.

PN1377

THE SENIOR DEPUTY PRESIDENT: Very persuasive submissions.

PN1378

MS ZEITZ: He was being quite sensible when he spoke about it so - - -

PN1379

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1380

MS ZEITZ: As to the other matters he raised, we have no objection to the Commission adjourning C24453 of 1999 on the basis that he has submitted. If the Commission pleases.

PN1381

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Swancott, I omitted to ask you about the AWU.

PN1382

MR SWANCOTT: Yes, your Honour. I think the problem may actually reside in the fact that the industrial officer responsible is absent and somebody else has picked up the file because the choice of language, well, certainly throws me back because the status quote is more detrimental to the AWU than the compromise proposed. I did point out to them that the exemption of all of Queensland other than South-East Queensland was not agreed and that they would need to take that up. My - I have left them in that position saying that there is a middle ground that has been agreed. It is better than your current position. The afterthought, the second position you have put, an afterthought position, is not agreed. We suggest you take what is on offer. So we were a little surprised to hear of that email today.

PN1383

THE SENIOR DEPUTY PRESIDENT: As you say, it might be because the person who was handling the file was away and - - -

PN1384

MR SWANCOTT: I'm at a loss as to what to suggest other than to process the document as it is and their right to an argument to variation should they wish to pursue it. The original correspondence which I think I either handed up or certainly referred to in much earlier proceedings, the two specific awards that seem to concern the AWU at that time were nominated and they have been incorporated into the document.

PN1385

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1386

MR SWANCOTT: As I say, I'm not sure that we can go any further than that.

PN1387

THE SENIOR DEPUTY PRESIDENT: Well, is it possible for you to - I know, you having withdrawn, and I acknowledge the very sensible position you have adopted in relation to this matter to ensure that it does go forward, but would it be possible for you to have contact with the AWU just to clarify that position?

PN1388

MR SWANCOTT: Yes, your Honour.

PN1389

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you very much. Well, it seems I still have to wait the finalisation of the position of the parties in relation to those few matters that have been identified. Subject to those matters being clarified and the most recent agreed position then being emailed - or faxed and emailed to my chambers, I will make the award in the terms proposed subject to the formatting issue in relation to the arrangements clause but I think all the rest of the formatting is in order. That will mean, of course, Mr Blackburn will have the right then to seek to have Burswood excluded or make such application as he may be instructed to make.

PN1390

MS ZEITZ: Perhaps if, your Honour, I could just direct you to clause 6.1 which talks about the operative date. Would it be your Honour's intention to, subject to those outstanding matters, make an order that it operates from the first full pay period to commence on or after today's date or did you prefer to wait until the documents are - - -

PN1391

THE SENIOR DEPUTY PRESIDENT: I will wait until the documents come because I will issue some reasons for decision and set out more fully my reasons for allowing only the limited right of intervention to Burswood and acknowledge or according the fact that LHMU seeks to have that file adjourned sine die subject to the matters or the right to intervene at some time when these matters come up.

PN1392

MS ZEITZ: Thank you.

PN1393

MR SWANCOTT: Your Honour, just in case we missed it on the way through, if I could point out that in clause 14.2 the date of operation needs to be inserted as well, so that would be - - -

PN1394

THE SENIOR DEPUTY PRESIDENT: Yes, I did note it.

PN1395

MR SWANCOTT: - - - consistent with 6.1.

PN1396

THE SENIOR DEPUTY PRESIDENT: Yes. Which one did you say? 14.2?

PN1397

MR SWANCOTT: Yes.

PN1398

MS ZEITZ: It is just what looks like the reference to the date of operation in parenthesis. It has actually just been left out on the third line. It should be:

PN1399

First full pay period on or after...

PN1400

and then there should just simply be a gap.

PN1401

THE SENIOR DEPUTY PRESIDENT: Yes, yes. There's also the same thing appears in the clause B or the B clause.

PN1402

MR BLACKBURN: Your Honour, might I ask that a copy of the document provided to your Honour is also provided to - - -

PN1403

THE SENIOR DEPUTY PRESIDENT: You don't have a copy of that?

PN1404

MR BLACKBURN: I have a copy that was provided to Burswood on 6 November. I understand it is fairly close to what is before us at the moment - what is before you at the moment, but in particular when the parties have reached their final document and email it through to you, if it can also be provided to us.

PN1405

THE SENIOR DEPUTY PRESIDENT: Yes. There is no problem with that, is there, Ms Zeitz?

PN1406

MS ZEITZ: No.

PN1407

MR BLACKBURN: Thank you.

PN1408

THE SENIOR DEPUTY PRESIDENT: Mr Blackburn, while you are on your feet, I thank you for your very exhaustive submissions this morning. Just to go back to something you said, and I appreciate you are not at this stage in the proceedings, but I would have thought with the LHMU withdrawing from the proceedings much of the concerns of Burswood would have disappeared.

PN1409

MR BLACKBURN: Your Honour, there are still a number of concerns arising from increased costs associated with the - - -

PN1410

THE SENIOR DEPUTY PRESIDENT: I'm sure a lot of hotels have those concerns though.

PN1411

MR BLACKBURN: That may be the case, your Honour, but there's also some concerns that we will elaborate on in our submission as to flow-on given the proximity of the hotel to the other establishments within the casino complex which are exempt from the award.

PN1412

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Will you, when the award is made, notify my associate of your requirement to have the matter listed?

PN1413

MR BLACKBURN: Yes.

PN1414

THE SENIOR DEPUTY PRESIDENT: Because it might be as well to list it then for directions, first of all to set out some exchange of material on the application.

PN1415

MR BLACKBURN: Yes, thank you.

PN1416

THE SENIOR DEPUTY PRESIDENT: Anything else? Well, I congratulate the parties. I know it has taken a long time but it is finally there and thank you very much for saving me having to arbitrate on it. The matter is adjourned and I do adjourn sine die C number 24453 of 1999.

ADJOURNED INDEFINITELY [3.37pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #MM1 EXTRACT OF THE RULES OF THE MOTOR INN, MOTEL AND ACCOMMODATION ASSOCIATION PN676
EXHIBIT #B1 AFFIDAVIT PN717
EXHIBIT #B2 EXTRACT FROM THE CASINO CONTROL ACT 1984 PN717
EXHIBIT #AHA1 BUNDLE OF CORRESPONDENCE - CHRONOLOGICAL ORDER PN1020
EXHIBIT #AHA2 DOCUMENT PN1032
EXHIBIT #AHA3 CONSULTATIVE GROUP, FEDERAL HOTEL MANAGERS AWARD SUB-COMMITTEE MINUTES DATED 14 OCTOBER PN1040
EXHIBIT #B3 EMAIL REPLY PN1187
EXHIBIT #JA1 CONSENT DRAFT DOCUMENT PN1309
EXHIBIT #LHMUA1 EXTRACTS FROM HOSPITALITY INDUSTRY AWARD PN1343