C2002/3926, Transcript of Proceedings [2003] AIRCTrans 1301 (9 April 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LAWSON

C2002/3926
C2003/809
C2003/810
C2003/811

MOTELS, ACCOMMODATION AND RESORTS AWARD 1998

Applications under section 113 of the Act
by the Australian Liquor, Hospitality and
Miscellaneous Workers Union to vary the above
awards re reference corrections, annualised salaries provisions, bereavement leave, etcetera

SYDNEY

10.07 AM, WEDNESDAY, 26 MARCH 2003

Continued from 28.2.03

PN191

THE COMMISSIONER: These matters were last before the Commission on 28 February and it was agreed at that time that there would be a day - time set aside for potential conciliation of the differences that then existed between the parties in relation to the claims and counter claims to vary the Motels, Accommodation and Resorts Award 1998. An opportunity exists now for the parties to inform me on the record as to the current state of play between you and in your respect negotiations having regard to the fact that today is the deadline date for the filing of formal submissions in respect of all of the claims prior to the listed arbitration for the 8 and 9 and 14 April. Mr Swancott, do you want to commence and bring me up-to-date with where things are?

PN192

MR SWANCOTT: Yes, Commissioner, there have been a number of contacts between the LHMU and Employers First directly and indirectly with MIMAA since we were last before you. There have been, as I understand it a couple of minor developments in that not all of the outstanding matters are still present by MIMAA but I leave that to Mr McDonald to inform you of exactly what parts of C numbers 809, 810 and 811 of 2003 are still alive so to speak. I should report that as far as I can establish there is still a fair distance between the union and the employer group in relation to the union's application on casual conversation and MIMAAs application on regular part time employment and MIMAAs application as it relates to the extension of the introductory classification rate to other - to employees other than to whom it now applies.

PN193

There's been some progress and quite extensive discussion and communication in relation to public holidays and it may be that we can progress that matter in conciliation satisfactorily and at this stage that is really the extent of the report I can give you the Commission. As the Commission's indicated today is the day for filing formal applications. It may be that as today develops an application will be made to the Commission for a brief extension of that time period keeping in mind that you probably won't have time in Darwin next week to read anything anyway. Thank you, Commissioner.

PN194

THE COMMISSIONER: Well, Mr McDonald, what's the perspective of things from the employer's view?

PN195

MR McDONALD: Commissioner, there are three applications, the application in 809 of 2003 which was correction to various other matters was concluded in the proceedings on 28 February.

PN196

THE COMMISSIONER: Yes, and an order has been published in regard to those matters.

PN197

MR McDONALD: Yes, thank you, Commissioner, and in relation to 811 which was the public holiday application we are proceeding on the basis that that's a separate matter dealing with a flow on to test case provision. We don't object to having further discussions in the conciliation process in relation to that submissions have been filed by both parties. Constructive discussions have been had and we understood that the position of the parties were very close as to that and we would hope that arising out of the conciliation there might be the possibility that that matter may be progressed before the Commission even today if some agreement is reached.

PN198

In relation to matter 810 there hasn't been any change to the position we recorded on the last occasion. We indicated on the last occasion - I'm not sure whether that was on the record that in light of concessions had been made by the union we were not proceeding in relation to the superannuation variation that he had sought and in relation to the overnight stay allowance agreement had been reached and that was the subject of an order issued on 28 February. In relation to the other matters as to flexibility in relation to part time employment and the introductory classification and the rostering of part time employees those claims are, of course, still pressed.

PN199

THE COMMISSIONER: Can you just clarify that last component, there are six issues as I read them in 809. What you are saying is that you in fact not going to press the issue in relation to superannuation contributions. The overnight stay allowance is concluded and then you mentioned three matters one concerning the introductory classification extension, the hours of work for part time employees - does that also link in the issue of ordinary hours for part time employees without overtime - are those two effectively one and the same?

PN200

MR McDONALD: Yes, I should have gone into more detail there. There was the - we have sought that the minimum engagement for part time employees be the same as casuals that being two hours, it's currently three. We have sought that there be the ability to work additional hours at ordinary time rates where there is agreement between the employer and employee and we have also sought - - -

PN201

THE COMMISSIONER: That's additional hours for part time, is it?

PN202

MR McDONALD: Yes, Commissioner, up to the level of a full timer's hours and the other change that we seek is that the rostering provisions in relation to part timers be the same as in relation to full timers. There's currently a prohibition on changing hours by agreement in the hours clause.

PN203

THE COMMISSIONER: Was there even further consideration given by the employers to the issues raised on the last occasion on both on and off the record concerning the absence of local agreements either on a site specific basis or a regional or industry sector basis to accommodate different requirements or different flexibilities for the use of labour as I understand there is a blanket opposition by the employers to engage in any form of enterprise bargaining from those sorts of flexibilities - has that issue been considered further?

PN204

MR McDONALD: There isn't a blanket opposition to it, Commissioner, but we do - in our submission, aspects of the award such as casual and part time employment and how they operate are very fundamental to the operation of the award and are properly dealt with in the context of the award. There are, of course, individual circumstances of an enterprise that would be considered in the enterprise agreements but - - -

PN205

THE COMMISSIONER: But there are no enterprise agreements, you've conceded that.

PN206

MR McDONALD: Yes, Commissioner.

PN207

THE COMMISSIONER: And the question really related to has there been any further consideration of that general principle that enterprise agreements be utilised as flexibility provisions on a site specific basis or regional or industry sector basis.

PN208

MR McDONALD: And, Commissioner, the view that's been formed is that there's no opposition to that course, however, given the fundamental nature of the things that have been talked about they really need to be dealt with in an award context.

PN209

THE COMMISSIONER: Why do they need to be dealt with in an award context, if you want the flexibilities, you have the flexibilities outside of the award and embrace them with an enterprise agreement, that's the whole purpose of the enterprise agreement to give site specific tailor made flexibilities to suit industry sectors. I just don't understand your submission that there's no objection to flexibilities being negotiated on a site specific basis or regional basis so they've all got to sheet back to the award.

PN210

MR McDONALD: No, Commissioner, the award in the industry remains an important document of determining wages and conditions and in the association's view should be kept up-to-date and should reflect the needs of industry generally. That's not to say that there shouldn't be enterprise bargaining in the industry, of course, the Act provides for that but if such fundamental provisions as the part time provisions in the award aren't working in our submission it's appropriate that that be addressed at the award level.

PN211

THE COMMISSIONER: Well, that would appear to be what would occur in the time set aside for the arbitration if there's no recollection of the differences between the parties and that's what you're all working towards at the present moment, all right, thanks, Mr McDonald. Is there anything you wish to place on the record, Ms Bergmann-Hanna?

PN212

MS BERGMANN-HANNA: Yes, thank you, Commissioner, just want to comment in relation to 2003/811 the public holidays clause being considered today. I received correspondence on 19 March seeking our response by the 21st and I had no further - no discussions at all with Employers First in relation to - - -

PN213

THE COMMISSIONER: Sorry, who did you receive correspondence from?

PN214

MS BERGMANN-HANNA: Sorry, from Employers First with the revised public holidays order.

PN215

THE COMMISSIONER: Yes, I think that's the document that was also forwarded to the Commission.

PN216

MS BERGMANN-HANNA: I just want to seek some clarification in relation to the overnight stay allowance which as stated here today has been concluded. I understand there is an agreement in relation to the form of that clause but I had not understood that that order had been made in relation to that - - -

PN217

THE COMMISSIONER: No, an order hasn't been issued, in fact the order was withheld pending an outcome I presume today you're going to tell me what the outcome is to your correspondence dated 7 March. Now, you simply informed me that you were seeking more clarification of the proposed order from the LITU and MIMAA.

PN218

MS BERGMANN-HANNA: That's correct.

PN219

THE COMMISSIONER: Is there anything you going to say about it - have you had any discussion with them? I can't read people's minds, there is a proposed draft order before me.

PN220

MS BERGMANN-HANNA: Yes.

PN221

THE COMMISSIONER: And you've informed me that you're waiting for further clarification before you consent to the draft order.

PN222

MS BERGMANN-HANNA: Yes, that's right.

PN223

THE COMMISSIONER: But I'm not privy to what's been going on between your organisation and the LHMU on the one hand or MIMAA on the other hand with regard to this proposed draft order.

PN224

MS BERGMANN-HANNA: Yes, I understand that. I've had one brief discussion with the LHMU and I've had no discussions with Employers First in relation to that, clarification is still required.

PN225

THE COMMISSIONER: Well, I'm not here holding anybody's hand. If you want to talk to MIMAA about it then please do so, I'm happy to give you the opportunity to do so that might very well be one matter that we can put to one side if you can resolve the issues that you have raised in your correspondence to me dated 7 March which certainly raises some fundamental issues in relation to wage fixing principles. If you can't resolve that with Employers First on behalf of MIMAA then that will be another matter that will have to be addressed during the arbitration.

PN226

MS BERGMANN-HANNA: Yes.

PN227

THE COMMISSIONER: I understood the only thing that was preventing the overnight stay allowance draft order being translated into a formal order is AHAs consent or otherwise. All I can say is I will await AHAs response one way or the other.

PN228

MS BERGMANN-HANNA: Commissioner, as far as progress goes that is all I have to say right now, if it please the Commission.

PN229

MR McDONALD: Commissioner, if I may, ons the overnight stay allowance that is something that formed part of MIMAAs application filed on 28 January. There were some slight wording changes in the order that ultimately went forward and AHA was given seven days in which to examine those changes but the AHA at no time has ever approach MIMAA for any discussions in relation to overnight stay. We understand communications been sent to the Commission about it but there's not been a call, not been a letter since to MIMAA or ourselves addressing that. We;d be concerned about the issuing of that order being - - -

PN230

MR SWANCOTT: It hasn't been issued. I can tell you it hasn't been issued. I've got the order sitting here in front of me. I has not been issued because of the AHAs request for clarification of the justification of the allowance or the quantum of the allowances as I understand it from MIMAA.

PN231

MR McDONALD: Commissioner, no request has been made we see it as good progress that has been made in the matter as to the agreement that was reached by the parties to deal with this issue and concerned at this being raised particularly when no approach has ever been made for any clarification.

PN232

THE COMMISSIONER: So you're concerned at the delay in issuing the - what you understood to be the consent variation to the overnight stay or for the inclusion of an overnight stay allowance?

PN233

MR McDONALD: Well, yes, Commissioner, we say it is an important matter for the award - - -

PN234

THE COMMISSIONER: Well, perhaps one way to do it is that if I issue the order and if the AHA has got a problem with it they can appeal. At least they've got an instrument then to take to an appeal bench. That seems to be the problem between the parties and it seems to be the AHAs problem more than anybody else's problem and the AHA is not in a position to say whether it consents to the order or not.

PN235

MR McDONALD: Commissioner, the application in our submission has been on foot since - for the AHA now to raise this matter is a bit late in the day particularly when other than some wording changed which - - -

PN236

THE COMMISSIONER: Mr McDonald, don't get me started on the relationships that exist between employer organisations, I had plenty of experience in that before I put this hat on. If you can't talk to each other, that's tough.

PN237

MR SWANCOTT: Commissioner, can I intervene at this point and say that I received correspondence - I understood a copy of correspondence to you from the AHA dealing with this matter with this matter and I understood there were two issues raised - - -

PN238

THE COMMISSIONER: It was also sent to Mr Winchester and Mr McDonald as it turns out so for Mr McDonald to say he is not privy to AHAs position is a bit far fetched.

PN239

MR SWANCOTT: That was my understanding that I was part of the round robin copying and certainly the copy of the correspondence I had indicated that it had been sent to every relevant party. Now, as I understood it, AHA asked for clarification from MIMAA as the applicant on two issues, one was the justification of the quantum and two was the relevant principle in the Commission's statement of principles that supported the application. The second of those in fact was a matter discussed the last time this matter was before you and as the applicant I must confess today - sorry, in view of the fact that MIMAA was the applicant I confess that I left the response to that correspondence from the AHA to MIMAA and have not necessarily addressed those issues myself.

PN240

In regards to the quantum, that was an agreed figure. It had a scientific basis, a calculation as to the principles it certainly was my view that a brief answer on that issue from MIMAA would have satisfied all parties including the Commission, thank you, Commissioner.

PN241

THE COMMISSIONER: Ms Bergmann, how do you as one that's on the receiving end of most of what's occurring at the moment?

PN242

MS BERGMANN-HANNA: Yes, if I can intervene at this point, Commissioner. When we first received the overnight stay allowance clause it was not even perhaps 24 hours before it was proposed the order be made this didn't provide enough time to consult with AHA members. In that seven days following when the order was sought to be made where I sought - - -

PN243

THE COMMISSIONER: But you said you would respond in seven days.

PN244

MS BERGMANN-HANNA: And I did.

PN245

THE COMMISSIONER: You didn't object to the seven days.

PN246

MS BERGMANN-HANNA: The response was within seven days to the Commission and correspondence was being copied and it's in response to concerns raised by AHA members. I expected in that correspondence which was copied to all parties that a response would then be provided to me to clarify those issues. The aim was not to be obstructionist, it was simply to have those issues clarified, if it please the Commission.

PN247

THE COMMISSIONER: I'm prepared to give you the opportunity right now to confer with the MIMAA if you wish to because it seems to me that they're the two parties that need to resolve their differences about a proposed order. If you can't resolve the issues, I can issue the order and you can appeal it. That might be the best way of testing the parties resolve and AHAs desire for further clarification, we're adjourning soon and that's a matter that you might like to confer privately on before we resume in another place. Well, how do you see things unfolding further today, Mr Swancott?

PN248

MR SWANCOTT: Well, Commissioner, given that we had held out the hope that conciliation might assist in this matter I'm prepared to take whatever time it takes to explore that possibility. I might say I do so with without great expectations but I indicate that my union is prepared to seek a conciliated result if that's possible. In the alternative, we have a programme which will proceed if no further progress can be made today so it's my proposal, Commissioner, that we adjourn now into private conference.

PN249

THE COMMISSIONER: Mr McDonald?

PN250

MR McDONALD: We would support that approach, Commissioner.

PN251

THE COMMISSIONER: Ms Bergmann-Hanna?

PN252

MS BERGMANN-HANNA: Yes, we'd support moving into private conference, Commissioner.

PN253

THE COMMISSIONER: All right, well, let me adjourn the formal proceedings now into private conference. Before I resume and I've made facilities available in conference room 11A so if you wouldn't mind moving into there, I'll meet you up there. In the meantime, I would ask the AHA to confer with MIMAA about this issue of the overnight stay allowance and the proposed order and see whether MIMAAs explanation can satisfy the AHAs concerns about the proposed draft order. We'll adjourn now and resume in 15 minutes.

SHORT ADJOURNMENT [10.31am]

RESUMES [12.19pm]

PN254

THE COMMISSIONER: During today's private conference with the parties, there has been some clarification of matters which are now resolved and can be formally recorded as such for the purpose of the public record. There's been some narrowing of the issues that remain in dispute and, clearly, there are matters that the parties remain apart on. The timetable for future proceedings after today the proceedings will adjourn to the 8, 9 and 14 April when - and it is now clarified to significant threshold matters will be raised they being an application by the LHMU pursuant to section 1(11)(i)(g) and a likely application by the Motels Association of a 107 application or an application for the matter to be dealt with as a special case. The parties are still to clarify in their own formal submissions which of those threshold matters are to be dealt with on that day.

PN255

There has been an agreement as to the timetabling for the submission of the formal reply, submissions on merit issues at close of business today and for the filing of the material in support of the threshold issues, the deadline date being 4 April. Before concluding today's proceedings and adjourning to 8 April, it's an opportunity for the parties to now place on the record what the agreed positions are and should you choose to record what the latest position is on the disagreed elements of all of the parties. Mr Swancott, would you like to indicate to me what the position is with respect to an order in relation to - no, actually, it's Mr McDonald's application to vary the Motels Accommodation Resorts Award 1998 in respect of overnight stay allowance.

PN256

MR McDONALD: Commissioner, on 28 February in the proceedings we tendered a document marked exhibit MIMAA1 which was a draft order dealing with an application under section 113 to vary the Award of an overnight stay allowance that it formed part of the original application but there had been some slight wording changes which were indicated to the Commission on that day and parties were given time to consider those. I can indicate that no party now takes issue with that order and we would respectfully request that they be issued in the terms of the draft order tendered on that day.

PN257

THE COMMISSIONER: And your response, Mr Swancott?

PN258

MR SWANCOTT: Concerning public holidays, Commissioner - - -

PN259

THE COMMISSIONER: No, the overnight stay allowance, you don't have any objection to that, do you?

PN260

MR SWANCOTT: We have no objection to that and the terms that's it's handed up.

PN261

THE COMMISSIONER: Ms Bergmann-Hanna, your position?

PN262

MS BERGMANN-HANNA: Thank you, Commissioner, we are able to consent to that variation, if it please the Commission.

PN263

THE COMMISSIONER: All right then I can indicate to the parties to the extent that I'm able to publish it today the draft order will be published as an order of the Commission. It's in the form of the amended exhibit MIMAA1. It has in fact been prepared, I'll adjust the date of publication of it but the order in respect of the overnight stay allowance - the award will be varied in the terms sought and the order should come into effect the first pay period to commence on 28 February and shall remain in force for a period of six months.

PN264

Now, there is another matter that I think the parties have reached an agreed outcome on, Mr McDonald?

PN265

MR McDONALD: That's correct, Commissioner, in relation to our application C number 811 of 2003 dealing with public holidays, the parties have reached a consent position and, if I may tender a draft order we propose.

PN266

THE COMMISSIONER: The draft order now handed up by Mr McDonald, I'll mark as exhibit MIMAA3.

EXHIBIT #MIMAA3 DRAFT ORDER

PN267

MR McDONALD: Commissioner, the change in substance to the public holiday provision which would be affected by this application is in relation to regular part time employees. They would be entitled to public holidays on days upon which they ordinarily work. In our submission, this is consistent with the public holidays test case decision, Full Bench of this Commission issued on 20 March 1995 contained in print L9178 in which the Full Bench stated and I quote:

PN268

It is generally accepted by the parties and we agree that where the normal roster of a part time worker includes a day which is a holiday the worker should either enjoy the holiday on pay or receive the public holiday rate for working it.

PN269

Commissioner, we would say the change reflected in 32.6.2 as proposed is consistent with that decision, if it please.

PN270

THE COMMISSIONER: What's your response to exhibit MIMAA3, Mr Swancott?

PN271

MR SWANCOTT: Commissioner, we give qualified consent to the variation proposed in that exhibit. Our qualification is based on the concern that - to ensure that no employer respondent to the Award is encouraged by the variation to alter rosters in such a way as to deny regular part time employees their entitlements in relation to public holidays. The LHMU will write to MIMAA setting out this qualification and we'll forward a copy and any reply to that correspondence to the Commission for the Commission's files. I can indicate to the Commission that we hope that our monitoring doesn't require us to make any further variation but in the event that it does this qualified consent will be drawn to the notice of the Commissioner at that time.

PN272

THE COMMISSIONER: Thank you, Mr Swancott. Ms Bergmann-Hanna?

PN273

MS BERGMANN-HANNA: No objection, Commissioner.

PN274

THE COMMISSIONER: Having heard the parties, it is the Commission's decision that the Motels Accommodation and Resorts Award 1998 will be further varied in the terms sought as set out in exhibit MIMAA3 handed up today and that an order varying the Award should come into force at the beginning of the first pay period to commence on or after 26 March 2003 and shall remain in force for a period of six months. Is there anything further for the public record before we conclude today - any comments as to the timetables agreed for the filing of further documents in respect of either the threshold matters or the substantive matters?

PN275

MR SWANCOTT: No, Commissioner.

PN276

THE COMMISSIONER: Nothing further, all right, then I'll adjourn these proceedings now to 8 April and a listing has been effected already in respect of those hearings.

ADJOURNED UNTIL TUESDAY, 8 APRIL 2003 [12.29pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #MIMAA3 DRAFT ORDER PN267