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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 60-70 Elizabeth St SYDNEY NSW 2000
DX1344 Sydney Tel:(02) 9238-6500 Fax:(02) 9238-6533
TRANSCRIPT OF PROCEEDINGS
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER LAWSON
C2002/3926
C2003/810
AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS
WORKERS UNION (MOTELS, ACCOMMODATION AND RESORTS) AWARD 1998
Application under section 113 of the Act
by Australian Liquor, Hospitality and
Miscellaneous Workers Union to vary re
casual employment and reasonable hours and
re extension of definition of 'introductory'
classification, etcetera - part heard
SYDNEY
10.43 AM, TUESDAY, 8 APRIL 2003
Continued from 28.2.03
Hearing continuing
PN190
THE COMMISSIONER: We will now turn our attention to matter 3926 which is being heard in conjunction with matter C2003/810. In the parties formal written submissions filed with the Commission prior to the deadline date of last Friday the LHMU has raised as a preliminary matter a likely section 111(1)(g) application. At the same time the Motor Inn, Motel and Accommodation Association has raised another threshold matter and a foreshadowed section 107 application. What I intend to do is hear from the parties any verbal submissions in support of those formal submissions and I take it the formal tendering of those formal submissions in relation to the threshold matters and then we'll deal with matters as they unfold. To you at first instance, Mr Swancott, in respect of your foreshadowed section 111(1)(g) application.
PN191
MR SWANCOTT: As you've indicated the LHMU filed on 24 March a bundle of materials. It may be appropriate that they be marked and that will be easier for me to identify to the Commission that bundle of material.
PN192
THE COMMISSIONER: The documents were in three parts; do you wish the three parts to be separately identified.
PN193
MR SWANCOTT: It may be of assistance, Commissioner.
PN194
PN195
THE COMMISSIONER: The second document titled Part 2 MIMAA Application to Extend the Introductory Rate of Pay to all Classifications in the Award I will mark as S7. I acknowledge that that is a document fled by the LHMU.
EXHIBIT #S7 DOCUMENT TITLED PART 2 MIMAA APPLICATION TO EXTEND THE INTRODUCTORY RATE OF PAY TO ALL CLASSIFICATIONS IN THE AWARD (DOCUMENT FILED BY LHMU)
PN196
PN197
THE COMMISSIONER: I'm aware that there were other documents faxed to the Commission under covering fax sheet dated 26 March that were not able to be attached to exhibit S8 electronically but form part of exhibit S8 and there are a bundle documents; a two page document titled Guidelines on Transition Arrangements, Australian Industrial Relations Commission Letterhead Document dated 18 February 1998 concerning the Award Simplification Decision, the Settlement of Orders and the Final Report; that is a 9 page document over the authority of the Vice President of the Commission. Those two documents will constitute part of exhibit S8. Is that all of a separate identity that you require, Mr Swancott?
PN198
MR SWANCOTT: Yes, Commissioner. It's not my intention to read the bundle of documents to you but to briefly summarise their contents in the context of making the application under section 11(1)(g)(iii) of the Act that the Commission refrain from further hearing matter 3926/2003, that is the employer's first application to vary the - - -
PN199
THE COMMISSIONER: 3926? That I refrain from hearing that? You're asking me to refrain from hearing your own matter?
PN200
MR SWANCOTT: Sorry.
PN201
THE COMMISSIONER: It is a novel approach.
PN202
MR SWANCOTT: Yes, it is. 2003/810 being the employer's first application to vary the Motels, Accommodation and Resorts Award. The application as I indicated is made under section 111(1)(g)(iii) of the Act which is a provision which gives the Commission the discretionary power to dismiss a matter or part of a matter or refrain from further hearing or from determining the industrial dispute or part of the industrial dispute if it appears that further proceedings are not necessary or desirable in the public interest.
PN203
Commissioner, in exhibit S6 the LHMU provides an analysis of the submissions and the witness statements put forward by MIMAA in respect to matter 3926 of 2002. Briefly stated, the LHMUs position is that the MIMAA arguments put forward either misunderstand or misrepresent the true nature or effect of the LHMUs proposals in relation to the variation of the award to provide an opportunity for long term casual employees to elect to convert, in appropriate circumstances, their type of employment to that of full time or regular part time employment.
PN204
The LHMU draws attention in exhibit S6 to its belief that much of the opinion evidence of MIMAA employer witnesses does not address the objective criteria which was set out in the revised draft order to assist employers who would be dealing with an application for conversation in the circumstances contemplated in the application to vary the award. We expressed our surprise that that was the case as the nature of the objective criteria had been extensively discussed with representatives of the Motels Association in the lead up to the filing of the first round of documents in this matter. The view we've expressed in our written submission is that the MIMAA association filed its counter application 810/2003 on the basis of a misunderstanding seeking what appears to us to be a trade off for being obliged to grant permanency of employment to casual employees on request. Now, the draft order that was filed with the application didn't seek that and much of the evidence that's been put forward in our view is misdirected. We have analysed that evidence; I won't take you to the detail of that unless the Commission wants me to but the key elements of the LMHU application are these. It acknowledges that casual employment is a necessary part of the employment mix in the hospitality industry in general and in that part of the hospitality industry that is represented under what I will call from now on the Motels Award.
PN205
It recognises that there will be circumstances which will not lend themselves to conversation of a casual employee to part time or full time employment in a particular establishment in relation to factors such as the size of the workplace, the seasonal or cyclical trading demand of the particular workplace, the trading patterns, the nature of the work the employees has been performing. Regional issues that are addressed in some of the minor witness statements filed in the first round of documents are relevant factors for employers in dealing with the request for conversion made by an employee and where an employer has genuine reason to say that it is not feasible in the circumstances of his or her enterprise to accede to a request for conversion then there will be no compulsion to do so. In exhibit S6 we draw attention to a number of the extracts from the various witness statements which seem based on an assumption that there is a compulsive element to the LHMWU application rather than an objective test of reasonableness in dealing with a request for conversion.
PN206
So to that extent we say that much of the fear that is raised through MIMAAs arguments to date and through its witnesses is misdirected and misplaced.
PN207
The second element of the LHMWUs documents filed on 24 March are set out in what is now exhibit S7 and this deals with that part of 810 of 2003 which seeks to extend the introductory rate of pay to all classifications in the award. We make the point in the written submission that introductory rate of pay in the award is the Federal minimum wage rate, the lowest possible adult rate in the Federal system, and that the effect of the application were to apply that rate to work and to people who under the award as it currently stands are entitled to a greater rate than the lowest possible rate available in the Federal system.
PN208
More importantly and more fundamentally we make this point, that the classification structure in the Motels Award is part of an industry consensus designed for the hospitality industry with the active participation of MIMAA and the Australian Hotels Association and the LHMWU designed by Tourism Australia for the industry and consented to by the industry. The application, or that part of A10 that seeks to vary the classification structure is a unilateral action by one part of that consensus as far as we are concerned without consultation with the rest of the industry that was part of that consensus and certainly without the approval or even serious attempts, without the approval of the LHMWU or without as far as we're aware any attempt by MIMAA to bring the other elements of the industry into discussions on that classification structure.
PN209
The fact that MIMAA was involved in the preparation and the work involved in bringing that industry classification structure together is established through the extracts that the LHMWU has set out in exhibit S7 from the Motels appeal case and the evidence of Mr Farrar, a former executive officer of MIMAA and those extracts are at page 31 of exhibit S7. The Full Bench extract there makes specific reference to the evidence of Mr Farrar from the proceedings at first instance in which the Full Bench observes that the classification structures in both the Motels and Hotels Awards were designed by Tourism Training Australia for the hospitality industry generally and sources that comment to the evidence of Mr Farrar and it notes Mr Farrar's further evidence that the Motels Award classification structure is underpinned by the Hospitality Industry Training & Accreditation arrangements.
PN210
Further, the similarities between the Motels Award and the Hotels Award classification definitions were also conceded by Mr Farrar in evidence. The Full Bench then goes through the classification structure and draws attention to those similarities.
PN211
So it is part of our submission that it is not in the public interest that in circumstances where the Motor Inn Association acknowledged the industry consensus and the status of the classification structure when it had its origins in this award that it should unilaterally seek to vary it and not, and without consultation or the approval to the other parties to that consensus.
PN212
Commissioner, those two elements, exhibits, set out in exhibits S6 and S7, assist or inform the submissions that we set out in exhibit S8. They are the substantive submissions under section 111(1G)(3) of the Act that the Commission in the public interest refrain from further hearing, the remaining live matters in application 2003/810.
PN213
We indicate at page 5 of part 3 of the submission, paragraph 3, the three grounds upon which the application is made are summarised. First we say that the application is contrary to establish Commission principles. Commissioner, I might just break there and say - - -
PN214
THE COMMISSIONER: Sorry, which document are you referring to now, page 5?
PN215
MR SWANCOTT: Yes, part 3, section 111(1G)(a) is the heading.
PN216
I'm referring to the first page of that. I have a suspicion that your page numbers may be different to mine because mine was transmitted well - - -
PN217
THE COMMISSIONER: I certainly have part 3 section 111(1G) application document in front of me.
PN218
MR SWANCOTT: Paragraph 3, the first page of that document. So I'll refer to paragraph numbers in this section rather than page numbers. So in paragraph 3 we summarised the three legs, if you like, of the application we make. Firstly, that the application is contrary to established Commission principles, that is the MIMAA application. It seeks to gain through the award system what is more appropriately pursued through enterprise bargaining. Secondly, that the application is an attack on the award safety net represented by the Motels Award in particular and awards generally. While the MIMAA application in relation to part time work is presented by MIMAA as a facilitative provision requiring a genuine agreement of employees the new part time regime proposed by the Association has significant potential to operate unfairly.
PN219
Thirdly in summary, the regular part time employment provisions of the Motels Award are in virtually identical terms to those inserted in the Hospitality Award and the award simplification decision - and the reference is given there. Those provisions were made pursuant to principles established by the Full Bench under item 53 of the transitional provisions of the Workplace Relations & Other Legislation Act 1996. The Commission's power to vary an award is exercisable only if the contents of the proposed variation are consistent with the principles established by the award simplification decision, Full Bench. The MIMAA application seeks to vary the award in a manner consistent with those principles. accordingly it is beyond the jurisdiction of the Commission as presently constituted to entertain an application.
PN220
Now, in the covering letter, Commissioner, we indicated that we would initially press the first two legs of that application and we would rely on the third leg in the event that we were unable to persuade you to act, to refrain from further hearing under either of the first two legs. I acknowledge that if MIMAA were to make a reference under 107 that it may seek to, or make an application for reference under section 107 that it may seek to attack the award simplification decision more overtly than the covert manner in which it implies that the Full Bench in that matter simply got it wrong. But that's not for me at this stage.
PN221
My argument in relation to the legislative scheme is that in the first place the award simplification Full Bench was obliged to do what it did in the Hospitality Award. It follows that because of the nature of item 53 of the transition provisions that Commissioner Wilks was obliged to follow that scheme when simplifying the Motels Award; and thirdly, that the Commission as currently constituted is not permitted by item 53 to depart from that scheme, however we acknowledge that the effect of section 106 is that a Full Bench could if properly persuaded depart from the award simplification decision in relation to regular part time employment although for the reasons we've set out we say that the legislation is not for departure.
PN222
Commissioner, in relation to ground 1 and I remind you that that was the ground that asserts that the Commission is being asked to vary an award to provide through the award system what is more appropriately pursued through enterprise bargaining. We've noted that the 21 witness statements provided by MIMAA in matter C2003/810 that of those 21 witness statements, not one of the witness statements attested to the existence of an enterprise agreement, certified agreement applicable to the operator.
PN223
Not one of the statements attested to any successful or unsuccessful attempt by the operator or the employer to negotiate at enterprise level with employees for the significant additional flexibility that's being sought in this application. Similar circumstances were before a Full Bench of the Commission in relation to the Hospitality Industry Award and an application by the AHA in 1996/97 to insert a multi-hiring clause, that is a clause that would facilitate the hiring on a second engagement as a casual employee of employees who are substantively engaged as either full time or part time employees for their particular employers.
PN224
In that case which is recorded at Print 35446 the Full Bench examined the 1996 legislation under which that bench was operating and under which, of course, the Commission continues to operate. We've set out the four relevant observations about the legislative frame work that were made by the Full Bench in the multi-hire case. Firstly that the priority in the Act is on the parties at the work place or enterprise level taking responsibility for their own industrial relations and reaching agreements in relation to matters affecting their employment relationship.
PN225
Secondly, that awards act as a safety net of fair minimum wages and conditions of employment. Thirdly that the Commission's arbitrary role is more constrained than was the case under the former Act and fourthly that the Act envisages that the roles and functions performed by awards and those performed by agreements are separate. Now, in that particular case, the Full Bench declined to accept the AHA's application to insert the multi-hiring clause determining that the practical affect of the proposal would be a reduction of overtime penalty rates which form part of the award safety net.
PN226
It would have enabled the engagement of full time employees to perform additional work outside normal hours for 25 percent premium in circumstances where the award provided that such work be paid for at 50 percent premium for the first two hours and 100 percent after that. Now, the LHMU contends that in the current matter, the practical effect of MIMAA's proposal concerning part time employees would be to enable employees to be prevailed upon to perform additional work outside their agreed normal hours at no premium.
PN227
In the absence of such provisions, employees would be entitled to a premium of 50 percent for the first two hours and 100 percent thereafter unless the additional work were part of an agreed arrangement at the enterprise level where the no disadvantage test would come into play. Now, Commissioner, we also draw attention to the fact that in the multi-hiring case the LHMU provided evidence from a senior official that the LHMU did not have a policy position opposing bargaining over multi-hiring and in fact had a relatively open mind on the kind of issues that were negotiable at enterprise level.
PN228
In this case, in matter 2003/3926 similar evidence has been adduced by the LHMU in relation to flexible part time work. The witness statement of Mr Ferari at paragraph 43 indicates that the LHMU has no policy opposition to flexible part time employment. In fact, attached to Mr Ferari's statement is an extract from a union negotiated certified agreement which makes provision for flexible part time work. That agreement also deals with a range of other issues including wage rates and wage premiums.
PN229
In other words, it is a package approach to employment in the hospitality industry and the part time work provision is just one of a number of parts of that agreed package and that entire package is tested against the no disadvantage test. What is being proposed in this application by MIMAA is to reduce elements or, I'll withdraw that and say to pluck out elements of a package of that nature, and to remove it from the bargaining table from the employee's side. In other words to remove part of the negotiating equation and to load in fact the negotiations up on the side of the employers. Our submission is that MIMAA is inappropriately asking the Commission to exercise arbitrary powers to grant employees aspects of enterprise bargaining packages that in other circumstances have been subjected to the no disadvantage test of the Act.
PN230
MIMAA offers no balancing compensation for the loss of employee rights that is essential to its application. In paragraph 12 of that submission, we list a number of authorities referred to and endorsed by the Full Bench in the multi-hiring case where the bench was particularly conscious to observe that while the policy of the Commission referred to in Teachers Victorian Government Schools Conditions of Employment Award and re Victorian Catholic Schools were established under the previous Act that that policy and those principles applied more so under the current Act in the context of the four observations that I've referred to of the Full Bench.
PN231
Commissioner, if I turn to ground 2 which commences at paragraph 14 of exhibit S.
PN232
MR McDONALD: Commissioner, if I may before Mr Swancott turns to that ground, there's been a number of references to evidence in the proceedings and reference to the various witness statements that have been filed by MIMAA and relied upon by the union. In our submission, none of that is in evidence in the case and the gravamen of the submission of the union is that that evidence not be heard. We would be, by not objecting to that as Mr Swancott goes through his submission, we wouldn't wish it to be taken that we accept that that material is in evidence and can be relied upon.
PN233
THE COMMISSIONER: Are you not going to submit that material as evidence?
PN234
MR McDONALD: Commissioner, as I understand the union's submission it is that the evidence shouldn't be heard in the case, that the Commission should simply refrain from hearing the matter without hearing a case at all.
PN235
THE COMMISSIONER: You will have an opportunity to respond to this 111(1)(g) application and I would expect in the course of your response to the 111(1)(g) application you will, in fact, draw my attention to material that will be relied upon by the association when the matters are dealt with on merit. In any event, you've submitted that material in response to Commission directions albeit it's not formally before me, nor have the witnesses attested to the content of their various statements, nor been cross-examined by them. I acknowledge that.
PN236
MR McDONALD: Thank you, Commissioner.
PN237
MR SWANCOTT: Yes, Commissioner, it may have been procedurally smoother, I suppose, if I had asked for you to mark everything that's been supplied to date, but of course this application is not made in a vacuum. It's made in the context of four months of negotiations with MIMAA and in the context of extensive materials supplied or filed by both parties with the Commission and indications that each party will rely on the material as filed.
PN238
Now, Commissioner, in relation to ground 2 we draw attention to the findings of the Commission in relation to the hospitality industry in general. We quote the observation of the award simplification decision which dealt with the nature of the hospitality industry and whilst specifically it dealt with the nature of that part of the hospitality industry that is subject to or regulated by the Hospitality Award, the evidence in that case covered the hospitality industry generally.
PN239
In that industry, motel employees formed a part. The LHMU argued in the award simplification decision that on the basis of the evidence provided in that case, that women, particularly those from non English speaking backgrounds, were in significant proportions in the industry and had difficulty in negotiating with management and because they were in an unequal bargaining position they were at a disadvantage and conditions could be altered by individual agreement without Commission supervision.
PN240
At paragraph 16, we sourced the Full Bench's comment that it had taken the LHMU's submissions into account in framing the new Hospitality Award. We draw particular attention to the Full Bench's treatment of clause 26 of the Hospitality Award which is the hours of work clause where the Full Bench considered employer proposals to relax the limitation on working of broken shifts on the one part and to make the length of the ten hour break between shifts negotiable between the employer and the employee.
PN241
The Full Bench rejected those proposals, expressing its concern that "in the circumstances of this industry unfair demands might be made on employees if we make the alterations sought". At paragraph 18 we set out a table of the current award provisions relating to regular part time employees and the changes proposed by MIMAA. One of the paragraphs that we draw attention to which is paragraph 13.32 of the award, ..... in identical terms to the statutory definition of regular part time employee contained in section 4 of the Act. MIMAAs application is not proposed to delete that clause. It does however propose to delete paragraph 13.3.3 of the award which at paragraph 20 we point out is referrable to section 89A(5)(b) of the Act. So that section as the Commission is no doubt aware is a provision which indicates that paragraph 4(b) of section 89A does not prevent the condition from including in an award provisions facilitating a regular pattern in the hours worked by regular part time employees.
PN242
So Parliament in section 89A(5) has made it clear that the Commission has the power to include in awards provisions facilitating a regular pattern in the hours worked by regular part time employees and it is that provision that MIMAA seeks to delete from the award.
PN243
It also seeks to delete in 13.34 the requirement that the agreed pattern of hours of an employee where varied be recorded in writing. So the two elements of the clause are first that there be an agreed pattern and second, that it be reduced to writing, has with it the third element in 13.34 that if that agreed patent is to be varied it also has to be evidenced in writing. All of those three elements are sought to be deleted by MIMAA from the protections provided in the clause.
PN244
At paragraph 13.37 of the current award the award provides that time worked in excess of the hours as mutually arranged under the clause will be overtime and paid for at overtime rates. MIMAA proposes to change that to enable work to be done up to 38 hours irrespective of the minimum that is agreed under 13.3.2. Additional hours up to 38 hours to be paid without the payment of - to be worked without the payment of overtime and as I point out again without the requirement to record in writing the nature of any agreement that permits that additional work to be done.
PN245
Paragraph 22 of the submission, we make the point that in our view it has been missing from the analysis that MIMAA has put forward in its written submissions and that is that the definition of part-time employee is an employee who has reasonably predictable hours of work is different from what is contemplated in 89A(5)(b) where it speaks of a regular pattern in the hours of work. Reasonably predictable hours of work relates to the employee knowing the starting and finishing times of his or her work and on which day they will work. A regular pattern relates to the larger issues of the regularity of those hours and days so they are different concepts.
PN246
The current award clause dealing with regular part time employment is constructed in such a way as to require an employer and an employee to reach agreement at the point of the employee's engagement on starting and finishing times and on the days of the week the employee will be working. To reduce potential areas of dispute the award requires that this agreement be reduced to writing. It requires that any variation be in writing. It does not permit the employer to unilaterally vary starting and finishing times nor does it permit unilateral alteration to the agreed working days of the employee but that is what the MIMAA application would bring about.
PN247
The MIMAA proposal is advanced ostensibly to enable an employee and an employer to agree on the employee performing additional work. In practice it will open the door for unscrupulous employers to require employees to subordinate their individual needs for the employer's needs and that quote is taken from the Award Simplification Full Bench Decision.
PN248
At paragraph 29 we also set out in tabular form the proposed variation to the rosters clause. Read together it makes it clear that MIMAA would introduce the concept of mutual consent to the rostering provision and the employee will again be placed at the mercy of the moral assuasion of the dominant partner in an employment relationship.
PN249
Commissioner, we deal at paragraphs 35 onwards with a detailed analysis of Parliament's intention in enacting the regular part time provisions of the Workplace Relations Act. It is not my intention or desire to take you through the detail of that analysis. Suffice it to say that the analysis examines both the passage of the legislation through the Parliament and the extensive materials that are available within the agreement between the Commonwealth government and the Australian Democrats on the Workplace Relations Bill and explanatory memorandum that was associated with that. The Commission is aware of course that the final version of the 1996 legislation owed its origins to that agreement and the nature of that agreement is spelt out and then explained in an explanatory memorandum for the amendments that were moved on behalf of the government for the Australian Democrats.
PN250
At paragraph 40 is set out the analysis or the contents of the explanatory memorandum as it applies to regular part time employment. The agreement and explanatory memorandum are at pains to distinguish between regular part time employees on the one hand or employment on the one hand and employees who are truly casual, whose work is casual in its nature. The agreement makes it clear that Parliament's intention was to provide a system of regular part time work in which people could balance their family responsibilities with their work requirements where they could have reasonable predictability of starting and finishing times so that they could achieve that balance and that in circumstances where they could not predict their starting and finishing times or the days of the week on which they work that work would in normal circumstances be truly casual work and should be treated as such by the award system.
PN251
At paragraph 43 we also set out the Commonwealth government's submissions to the award simplification case. It was the Commonwealth who directed the full bench's attention to Parliament's intention. It was the Commonwealth who made particular mention of the need to distinguish between genuine regular part time employees on the one hand and casual employment on the other. The significant extracts that are underlined highlight that distinction and lead inevitably to the full bench's conclusion in relation to regular part time employment.
PN252
Commissioner, I won't take you to any more of that detail but I do indicate that MIMAAs current proposal does not leave the award with any regular part time award protections if it were to be successful. What it does, what it would leave the award with is flexible part time employment subject to re-rostering at short notice by the employer because that is the effect of the variation of the rostering and casual employment. The true effect of it is that current part time employees, few though they be in number in the motels industry according to the evidence submitted from the 21 properties representing - sorry, I've forgotten the figure - but from the properties represented in the witness statements of MIMAA, few though the number of regular part time employees, they would in truth become casuals by another name and I might also indicate casuals on a lower rate, a 20 per cent lower rate than they are getting now.
PN253
So the MIMAA proposition would depart from the Parliamentary intention of providing where appropriate for reasonable predictability for employees and in fact turn those regular part time employees into casuals by another name.
PN254
Commissioner, I will make one other reference to this issue of reasonable predictability. It has been argued by MIMAA in its written submissions that in truth the award simplification decision provided total predictability of hours, absolute predictability of starting and finishing times whereas all the Act required was that it be reasonable and it was on that basis as we understood the written submission of MIMAA it was suggested that the full bench got the legislation wrong.
PN255
The LHMU points out that the reasonable predictability of hours is in the context of a clause which allows for regular part time employees to work overtime by random. And in the context of an award privilege in that it obliges them to work reasonable overtime. The reasonable predictability is in the context of an agreement to work reasonable overtime or a requirement to work reasonable overtime. the award does not prevent employees working overtime. It doesn't say you've agreed to knock off at 5 o'clock every day and that's it. The award enables people to have reasonable predictability of their finishing time in the context that they may work additional hours within the scope of the award or for that matter within the scope and enterprise agreement if any.
PN256
So at paragraph 58 of S8 we conclude, sorry at paragraph 57 we draw our conclusions in relation to the regular part time employee provisions within the award which are now under attack by MIMAA. Those provisions were inserted into the hospitality and award in a manner which brought them "into conformity with the Act" according to the Full Bench. MIMAAs application will take those provisions outside this position of conformity with the Act.
PN257
In our submission the final hospitality award provision which is reflected in the motels award was the inevitable conclusion that the Full Bench's construction of the legislation for dealing with. The Full Bench had limited discretion in reaching the final wording in the regular part time employment clause. Its discretion is limited to whether or not it was appropriate in the award to be gained provisions enabling the employment of regular part time employees.
PN258
No party in the award simplification decision said it was inappropriate to have such a category in the hospitality award. No party said that it was inappropriate to have Commissioner Wilks who was dealing with motels award but it was inappropriate to make such provision, to make provision for regular part time employees in the motels award. So it is our submission in paragraph 58 that Commissioner Wilks was compelled to consider whether it was appropriate that the award contain provisions for the employment of regular part time employees. When he accepted that it was appropriate the clause he inserted in the motels award was inevitable.
PN259
In fact, Commissioner Wilks was obliged, we say at paragraph 59 by principle 7 of the award simplification principles to review those parts of the motels award which dealt with part time work and in the words of the Full Bench in the award simplification decision to bring them into conformity with the Act. And that's what he did. We say that MIMAAs application is not permitted by the Act, sorry, the changes are they seek are not permitted by the Act.
PN260
For all of those reasons we say that further consideration of the application is futile and contrary to the public interest and accordingly we say the commission should dismiss the application or refrain from further hearing. So Commissioner I rely on the written materials that have been supplied and the oral summary that I have put, thank you.
PN261
THE COMMISSIONER: Mr Watts do you have anything to say with regard to the section 111(1)(g) application?
PN262
MR WATTS: Commissioner the ACTU supports the application and we concur with the submissions of Mr Swancott. I think I have nothing further to add other than that I think it is certainly mindful of section 3 the objects of the Act and certainly we are well aware of the discussions that have not taken place at a local level in regards to the member application in that we're not aware of these matters and have not been brought to our attention anyway. This is something which is now actively pursued out there on the ground, at the workplace level and certainly I think we are well aware that those are matters which are open to the union to discuss at a local level should they arise.
PN263
Certainly on a wider perspective we are concerned that what may be good for the goose is good for the gander with these types of applications that they come to the commission in the first instance with no history of an attempt at the workplace level to resolve these issues to suit in the best interests of both parties at the local level as per section 3 the objects of the Act that we believe we are not working within the proper auspices of the Act. Whilst we certainly believe that there is a role for the commission to play in such matters, it is a concern of ours that in a wider context in the first instance these matters are brought to the commission that any genuine attempt to resolve them a workplace level, we have process where the objects of the Act are certainly not being met. Other than that Commissioner we have nothing further to add other than to endorse the union's submissions, if the commission pleases.
PN264
THE COMMISSIONER: Thank you Mr Watts. Your responses, Mr McDonald?
PN265
MR McDONALD: Commissioner, if I may first deal with our submissions in relation to a reference of the matter. There was a document filed by us on 27 March entitled "Statement of Principles".
PN266
THE COMMISSIONER: Yes, I have that document.
PN267
MR McDONALD: If I could tender that.
PN268
PN269
MR McDONALD: As set out in MIMAA4 the Association seeks to have this matter referred to a Full Bench.
PN270
THE COMMISSIONER: Which matter are you referring to? This is your application, the matters in C2003/810?
PN271
MR McDONALD: We seek the reference in relation to all of the matters concerning the Motels Accommodation and Resorts Award those being the union's application in relation to casual conversion 3926/2002 and our application which still remains live 810/2003.
PN272
THE COMMISSIONER: The remaining unresolved matters in matter 810?
PN273
MR McDONALD: Yes, Commissioner. The matters are set out MIMAA4 in point 1, the nature of the flexibilities in relation to part time employment that have been sought and in paragraph 2, the union's application as to casual conversion. We say that neither of the applications fall within the circumstances set out in principle 2 of the wage fixing principles; they're at 112 IR 411. Principle 2 is set out at page 470.
PN274
THE COMMISSIONER: Yes, go ahead please, Mr McDonald?
PN275
MR McDONALD: The applications don't fall within any of the circumstances set out in principle 2 and as a result would require consideration as a special case pursuant to principle 10 of Dealing With, Making and Varying an Award Above or Below the Safety Net, that being defined by principle 2 itself. We note that that can be dealt with either by a Full Bench or a single member. We would have no issue with either course provided that we proceed beyond today's proceedings and we would say there is a substantial evidentiary case which, in our submission, would lend itself to the evidence being dealt with by a single member but we make the application in any event under section 107 that it would fall within the circumstances set out in principle 10.
PN276
I understand from the union's written submissions as to casual conversion that that same matter was raised although in their submissions they refer to the possibility that it might be dealt with as a first award. We would say that the first award principle or extension to an existing award is really dealing with work which is currently not regulated by an award at all so we'd say that that would not be an appropriate mechanism by which the applications might be dealt. The approach that we seek is the approach that was taken in the Metals Casuals case; that's reported at 110 IR.
PN277
THE COMMISSIONER: When you say the same approach as the Metals Casuals case meaning, what, a reference to a Full Bench?
PN278
MR McDONALD: Yes. The Commission in that case dealt with the issues on a special case basis. There were various issues some which are also dealt with in this application dealing with, for example, minimum engagements for part time and casual employees and also the casual conversion issue. The relevant passage is cited at paragraph 5 of our submission.
PN279
Commissioner, if I could then turn to our response to the union's section 111(1)(g) application. I make the point initially that the submissions of the union in our view really go to the merits of our application, and a submission is more appropriate to be heard at the time that all the evidence has been heard and tested and the case has run its normal course.
PN280
The running of a case in the normal way and the provision of evidence is the best way for the Commission to be satisfied that whatever it determines is an appropriate course for the industry under consideration.
PN281
THE COMMISSIONER: Do you say the 111(1)(g) is premature, do you?
PN282
MR McDONALD: Commissioner, we say that the 111(1)(g) application in this context is really not appropriate at all. It's a most exceptional type of case that might attract the provisions of section 111(1)(g)(iii). Certainly this sort of case has never attracted the operation of that provision. It seems to have normally been used to two contexts: where a party is arguing that a federal award shouldn't be made because there are state awards in existence; and the other circumstance is where it might upset existing union demarcations or existing union coverage and that it may be argued that it's not in the public interest to do so.
PN283
We would say that there's nothing in the arguments that have been run which deal with the very specific provisions of 111(1)(g)(iii), namely that the proceedings are not necessary, and they're not desirable in the public interest, and the union is asking, as section 111(1)(g)(iii) provides, that before anything is dealt with in the case, before any evidence, the case just be dismissed out of hand. We would say on any view of it that would be an inappropriate course. That's not to say that our application - - -
PN284
THE COMMISSIONER: That it's made on the basis that certain assumptions or misconceptions are in the union's view believed to have been the basis of your organisation's claims, and it's on that understanding, or the union's understanding of your association's misconceptions that they have mounted the case they have? If your association doesn't have that misunderstanding or misconception, then say so, but it would appear on the face of the material and the witness evidence, not tendered but submitted to date, that the union is well-founded in its understanding of MIMAAs position. Now, if it's not MIMAAs position then please state on the public record exactly what it is.
PN285
MR McDONALD: Well, we'd say our position is misconceived. We've made an application in a pretty ordinary way of seeking to free up the part-time provisions to make part-time employment more available in the industry.
PN286
THE COMMISSIONER: To which the union has responded that there were certain minimum standards set for the industry in prior proceedings which you now seek to change, and it's impermissible, from the union's perspective, that those changes be made.
PN287
MR McDONALD: Commissioner, I think the proceedings that the union points to are the proceedings involving itself and Australian Hotels Association and others in relation - - -
PN288
THE COMMISSIONER: Subsequently followed by Commissioner Wilks in his application of those concepts and principles in the very award that you now seek to change.
PN289
MR McDONALD: Well, Commissioner, there's no reasons given there was nothing on the file in relation to the motels award simplification. It did pick up in part, the provision of the hotels award, certainly the whole of it, and while some aspects of the motels award part-time provisions are the same, the rostering provisions in particular are very different between the hotels and motels award, the hotels award being the one considered in the award simplification case.
PN290
THE COMMISSIONER: So are you saying that the motels award part-time provisions are not a direct consequence of and an obliged reflection of the hospitality industry test case standards?
PN291
MR McDONALD: Commissioner, there are, with the exception of the rostering provision, but the difference in the rostering provision also bears upon the interpretation of other part-time provisions. But clause 13.3 of the award, being the part-time clause, is in the same terms as those of the hotels award. The only things that seemed to be on the file when the award was simplified were parties reserving their positions. For example, MIMAA reserved its position in relation to additional hours of part time employees.
PN292
THE COMMISSIONER: I don't have any of that before me. If you're countering Mr Swancott's argument about obligations upon the Commission to follow the test case standards because of the absence of something on a file then I think it's appropriate that you bring it formally to my attention what it is that's missing. What is it that supports your argument that there was no obligation on Commissioner Wilks to follow the award variations made in the Hospitality Industry Award when he was subsequently simplifying the Motels Award?
PN293
MR McDONALD: Commissioner, as I've indicated the decision of the Association is that there is no evidence before the Commission. The union is asking for the case to be dismissed out of hand. If the union wants to lead evidence as to what happened before Commissioner Wilks and what its understanding of the arrangements are it's a matter for it but we don't see it as incumbent upon us to run our whole case without the benefit of the evidence and the normal processes that would occur in a hearing. To the extent that the union seeks to rely on parts of the evidence without cross-examining any of our witnesses, without bringing any of its own witnesses for cross-examination we say it's inappropriate. We don't say - - -
PN294
THE COMMISSIONER: You've already made the point that the 111(1)(g) application effectively is premature until the merit arguments are run before me. Well, if that's the case then you're probably obliged to run your merit case. I'll then deal with the 111(1)(g) matter but in the meantime you want me to refer the whole lot to the President anyway.
PN295
MR McDONALD: Yes, Commissioner. If I could perhaps go to the scope of the section 111(1)(3) as we see it and we'd seek to principally rely on the decision in Queensland Electricity Commission and Others; Ex parte The Electrical Trades Union Australia reported in 21 IR. We'd seek to refer the judgment of Deane J at page 163 of the report. Commissioner, we'd seek to rely on this judgment to establish three propositions. The first of those is that an applicant for a variation to an award or for an award has a prima facie right to have its application properly and fully heard and determined. Secondly, that the onus lies with the party making the section 111(1)(g) application.
PN296
THE COMMISSIONER: Is this a formal submission that you've prepared or is this something you're just doing now? Do you have an extract from QEC; Ex parte ETU?
PN297
MR McDONALD: Yes, Commissioner. Before going to that I was just explaining the propositions I was seeking to establish.
PN298
THE COMMISSIONER: Can you just tell me what those propositions are?
PN299
MR McDONALD: The first of those is that an applicant has a prima facie right to have its application properly and fully heard and determined. Secondly, that the onus lies with the party making the section 111(1)(g) application to persuade the Commission that it should override this right and thirdly, that the onus with the party making the section 111(1)(g) application is much higher when the public interest ground in paragraph (iii) is relied upon. That onus would require a special or extraordinary circumstance. The passage supporting those propositions is at page 163 of the judgment and that was dealing with 111(1)(g) when it was then section 41(1)(d) in the same terms in the Conciliation and Arbitration Act, and at the top of the page his Honour says:
PN300
Upon an application under section 41(1)(d) ...(reads)... recourse to any Tribunal.
PN301
Commissioner, that's the exact position that MIMAA finds itself in, that if the 111(1)(g) application was to be granted there would be no other rights by which part time employment in this industry under this award could be examined by this Commission or any other Tribunal.
PN302
We say it's that situation that would be clearly contrary to the public interest and it goes to the fundamental operation of the Commission that is established to hear such applications, conciliate about such applications and if conciliation fails to determine such applications by arbitration.
PN303
Commissioner, that position is clearly set out in section 104(i) of the Act which states that:
PN304
When a conciliation before a member of the Commission ...(reads)... or the matters remaining in dispute by arbitration.
PN305
Commissioner, that provision has a long history in the Act. Whilst arbitration may now be a last resort it's still just as mandatory in its terms that it is ultimately required if conciliation fails. The forerunner under the Conciliation & Arbitration Act was section 38 and at the end of R v Commonwealth Court of Conciliation & Arbitration ex parte Ozone Theatres, the operation of section 38 was commented upon. That's found in 78 CLR 398. The particular excerpt we take the Commission to is about point 6. It refers to section 25 about alteration to the basic wage and then goes on to refer to section 38. The judgment goes on to say that:
PN306
Apart however from this requirement what section 25 does ...(reads)... is not at liberty to refuse to deal with the matter.
PN307
And a full Federal Court has found that the same operation occurs with section 104 of the Act. If I may hand up some unreported authorities. Commissioner, the first of those is - - -
PN308
THE COMMISSIONER: I note that Mr McDonald has now handed up a volume of listed authorities. I won't mark it particularly, you can just draw my attention to the various excerpts that are contained in them.
PN309
MR McDONALD: I refer to paragraph 39 of that decision which is the fourth page from the back of the copy.
PN310
THE COMMISSIONER: You have lost me completely.
PN311
MR McDONALD: I'm sorry, Commissioner, at tab A is a decision in the State of Queensland v Australian Industrial Relations Commission and if I could refer to paragraph 39 which is the fourth photocopy page from the back of that decision.
PN312
THE COMMISSIONER: This is published as the year 2000 FCA1654 on 20 November, 2000, the decision is entitled State of Queensland v Australian Industrial Relations Commission. On the fourth last page?
PN313
MR McDONALD: Yes Commissioner, paragraph 39 in the middle of the page. And an argument was run in that case that the decision in Ozone Theatres was no longer current and that things have moved on in terms of section 104 and that the rights of the Commission in relation to arbitration had been reduced but the full Federal Court makes it clear in the passage that section 104 of the Act mandates no less forcefully that the Commission shall proceed to deal with the industrial dispute by arbitration.
PN314
If I could refer also to tab B of those authorities which is an article by Justice Grane and Shane Marshall entitled, the Australian Industrial Relations Commission's discretion to refuse to invoke its own jurisdiction. I refer to this article as to it being a most exceptional type of case that might be able to attract the provisions of 111(1G)(iii) and at page 44 of the article the learned authors state that:
PN315
Given the nature of the Act ...(reads)... regarded as the public interest itself.
PN316
Whilst there may have been some restrictions on the matters that can be allowed in awards and certainly part time employment certainly isn't one of them and the Commission has a very clear charter in that area of powers to deal with issues relating to part time employment as provided in section 89A of the Act.
PN317
The learned authors of that article proceed on the next page to say that they could only really see section 111(1G)(iii) operating in relation to competing union membership issues are very narrow type context and then even that has been largely rendered obsolete by the changes to the demarcation provisions of the Act which were not around when this provision first appeared in the Conciliation & Arbitration Act.
PN318
As well as the Commission's powers under section 104 I refer the Commission to section 89 dealing with functions of the Commission. We say that section 89 puts the application of MIMAAs squarely within the Commission's functions, namely to prevent and settle industrial disputes so far as possible by conciliation and is a last resort and within the limits specified in this Act by arbitration. I note that the Commission has conciliated on at least two occasions but the parties have not been able to come to an agreement in relation to this particular issue and we see it falling squarely within 89A(ii).
PN319
Commissioner, another aspect of the union's application which is unusual is the timing of the section 111(1)(g)(iii) application. Normally, such applications would be made following an application being filed. In this case what's happened is MIMAA has been put to the trouble of putting together some 21 witness statements from all over New South Wales, Victoria and Tasmania. It's duly filed with the Commission in accordance with the Commission's directions. The union has filed very limited evidence in relation to the Motels Award.
PN320
THE COMMISSIONER: And that will be to the union's detriment if it relies on limited evidence, won't it?
PN321
MR McDONALD: Commissioner, in our submission, by running the section 111(1)(g) argument at this stage, it allows the union to examine what it believes might be the strength of our evidence and perhaps the strength of its evidence and then make a decision that it's probably better that the evidence not be heard by the Commission, it just be dismissed out of hand at this stage. If it's going to be dismissed out of hand, then that's something that should be put initially once the application is filed, not after all the evidence is in and we've gone this far down the track of the case.
PN322
THE COMMISSIONER: Well, we've hardly gone anywhere down the track of the case so far. We haven't dealt with any merit issues at all. These are all threshold matters and I think that both parties are entitled to rely upon the documents that have been filed in response to the Commission's directions in dealing with their respective positions concerning the threshold matters. I don't see the substance of your last submission. How are you in any way adversely affected? You're aware of what the union's claim is, you've responded to the union's claims in formal submissions and you have other material in support of your own applications to vary the award.
PN323
MR McDONALD: Well, Commissioner, we would see it as a mechanism by which our application is derailed. To bring it at this late stage, in our submission, is inappropriate. It's not something that the Commission would normally allow, particularly when the Commission has all the material potentially that could be put into evidence and hear a proper case about this application.
PN324
THE COMMISSIONER: Are you suggesting some improper procedures are being followed here, Mr McDonald?
PN325
MR McDONALD: Commissioner, in terms of process, yes. We've gone along a particular path. We've had the conciliation. We've had directions. That was the time for the union to raise this argument. It wasn't waiting to see the evidence and deciding whether or not the evidence should be heard in determining - - -
PN326
THE COMMISSIONER: Well with very great respect you argued in front of me some time ago that the section 111(1)(g) argument ought to be run after all the merit issues have been dealt with, that's as I understood your earlier submission. You can't have it both ways.
PN327
MR McDONALD: Commissioner, our argument is that there's no grounds established for the section 111(1)(g) argument at all and what the Commission should do is deal with the case in the ordinary way and decide whether the jurisdiction and the merits warrant the Commission granting the application in the terms sought.
PN328
THE COMMISSIONER: In any event, to a very large degree, your application pursuant to section 107 undermines the whole process, because I'm obliged, as you are well aware, to refer all of the claims in respect of applications to vary this award to the President. The President will decide how the matter will be dealt with beyond this point. I'll certainly raise with the President the concurrency of the union's section 111(1)(g) application. I can assure the parties of that.
PN329
MR McDONALD: Commissioner, we certainly have no objection to the Commission as currently constituted dealing with all matters. What we didn't want to do though was not point out that our understanding of the wage principles, we see it as making very little difference to the way that the case is run, particularly if the case was to proceed by way of a delegation to the Commission as currently constituted. There is a decision which supports our position as to that is a decision involving Hoyts and Australian and Theatrical Amusement Employees Association Print K4920 and that's to be found at tab C of our unreported authorities.
PN330
At page 10, which is the second last page of the internet copy, tab B.
PN331
THE COMMISSIONER: The second last page?
PN332
MR McDONALD: Yes, Commissioner. The Full Bench deals with 111(1)(g) application made by Hoyts in circumstances when they were saying they were wanting to pursue it down the path - pursuing an enterprise agreement under the then section 115 provisions of the Act. The Full Bench says:
PN333
We do not consider that the public interest would be served ...(reads)... and considered by the Commission.
PN334
As we see it, Commissioner, had the union not failed a week ago in its 111(1)(g) application, the three days of hearing starting today could have proceeded and could have substantially concluded the applications.
PN335
THE COMMISSIONER: Well, it's not as though you're caught off guard by the union's intention, Mr McDonald. I think I can recall probably more than a month ago and I'd have to check my file notes, but I think it's at least a month ago, the 111(1)(g) was flagged at that time as was your 107 application flagged.
PN336
MR McDONALD: In respect of all the three grounds that have been advanced by the union, it's only that the last ground which is advanced on a jurisdictional basis and only in the alternative, that is the Commission doesn't have power to deviate from the clause determined for the Hotels Award. The other grounds are grounds as to how the Commission should exercise its discretion. In relation to the first one whether the Commission should find that it's more appropriate that this be dealt with by way of bargaining than by award, in relation to the second ground as to whether the safety net will operate unfairly.
PN337
Now, for the Commission to be able to decide that in any sort of vacuum is impossible. The Commission doesn't have the evidence before it as to how it might exercise its discretion on those things.
PN338
The Commission may hear all the evidence and decide that the union's arguments are well founded and that our application should be declined but we say that the Commission shouldn't do that until after hearing our case. In relation to the first ground as to the union's preference for enterprise bargaining in terms of how these matters might be dealt with, there is no question that the Commission doesn't have power under section 89(A) of the Act, no question that the Commission doesn't have the function to conciliate and arbitrate in such matters under section 89 although it does indeed have an obligation under section 104 to determine such provisions in awards.
PN339
We say that in relation to the way the Commission would exercise its discretion, it would be a most unusual case that the Commission wouldn't see part time employment as part, in any way, of an award safety net. Certainly, it is most simple that the award simplification decision has authority for that proposition that the Commission wouldn't decline to exercise jurisdiction in relation to that as well as dealing with it on an award simplification basis. There were various applications by the union and AHA in that case to what appropriate provisions should be. I certainly know of no authority were the Commission has said that consideration shouldn't be given by the Commission in award circumstances to part time provisions.
PN340
Section 89(A)(5)(b) says that Commission is not prevented from including in the award provisions facilitating irregular pattern in the hours worked by regular part time employees. Now we say that the provision does not mean that the Commission must include the provision of the type that the union seeks, that is that you must have nominated the set starting time, the set finishing time, set days of work.
PN341
We say that there are a number of options available to the Commission if it wished to exercise the power at all as to how that might be done. We say that doesn't prevent but it doesn't require the Commission to put in place such a provision. It would be sufficient, for example, for the Commission to put in place a requirement that there be reasonably predictable hours of work in accordance with the definition of part time work in section 4 and that's something that is contained in MIMAA's application.
PN342
He also complains of the provision in relation to rosters, that may be able to be changed by agreement with individual employees. Such a position in our submission is hardly novel. The hotels award has no prohibition of the kind that the motels award has as to rostering the part time employees. There would be a good argument as to suggest that part time employees rostering provisions shouldn't be any less flexible than those applying to full time employees having regard to the pro-rata requirements in relation to part time employment.
PN343
So we would submit that our application in that regard is quite in keeping with the Act and probably more reflects the norm than exception to the norm. I would refer, very briefly, by way of example, to one of the decisions in the unreported authorities of paragraph D as being the decision of Senior Deputy President Duncan in relation to the Aged and Disabled Person Hostels ALHMWU Interim Award and various other awards at Print 910160, 12 October 2001 and in relation to paragraph 103 on page 32. His Honour deals with issues between the parties as to the rostering provisions, the timing of the roster and whether it should be able to be changed by consent. At the top of page 33 his Honour the notes:
PN344
That I accept that there may be many reasons for roster to change, fixing the notice of 48 hours but permitting other change by agreement introduces the next necessary flexibility by retaining the protection for individuals to refuse to change if domestic circumstances require.
PN345
It goes on to set out the provisions there. We point to that is being an example, there are many others dealing with that same issue. The third point that's raised in relation to the operation of the safety net is that part time employees could agree to work additional hours without payment of overtime. In response to that, this is pointed out by the evidence that the affect of the part time clause has been that part time employment is too inflexible and that it is not something that is usable for either employers or employees and to that extent it is not an effective part of the safety net and it operates unfairly in the sense that it is not available to employees or available to employers.
PN346
These, of course, would be dealt with in full in the context of the case and really rely on evidence to establish. In relation to parliamentary intention, in our submission that's best ascertained by the provisions of the Act itself and that going to various agreements between political parties, what a particular opposition member said in the parliament etc, doesn't really go a long way in dealing with the provisions which on their face we would submit are fairly straightforward. We do however refer to a Ministerial Information Paper, Casual Employment and Working Hours in Australia, simply to make the point that it's - - -
PN347
THE COMMISSIONER: Does that have any more relevance than the union relying upon an arrangement with the democrats?
PN348
MR MCDONALD: We would say not Commissioner but I tender it in any event that we would submit it carries much weight in that regard.
PN349
THE COMMISSIONER: And what's this document that you are handing up now?
PN350
MR MCDONALD: This is the Ministerial Information Paper, Casual Employment and Working Hours.
PN351
PN352
MR MCDONALD: On page 11, after outlining the changes to regular part time work, in the second last paragraph on that page, the information paper says that these changes to the workplace relations act 1996 are intended to provide greater access to regular part time work but not to limit scope for casual employment where it has a valid role to play in the labour market. The changes are also intended to encourage a more appropriate balance with a mix of regular part time and casual employment by providing employers and employees with improved access to their preferred arrangements by removing arbitrary restrictions.
PN353
Commissioner, in our submission that's exactly what this application does. We say it's consistent with the definition of part time employment, in any event, in section 4 of the Act. Simply put, we say that the Act was designed not to discourage part time employment but to remove restrictions to - - -
PN354
THE COMMISSIONER: This particular document doesn't have any particular authority about it, does it? It's merely an information paper as at the time?
PN355
MR MCDONALD: Exactly Commissioner, I suppose we take the same point though, as in the sense that the union relies on a number of extrinsic materials to attempt to establish some particular parliamentary intention and in our submission it's best established from the Act itself. As to its last point, that the Commission doesn't have jurisdiction to award anything different from the hotels award, part time clause in any other award, we say that we disagree with that submission. There are, of course. Numerous other awards, many examples of which were filed in our evidence which have different part time provisions and there is also authority that the Commission is not bound to provide those in every other award and I refer by way of example to the decision of Senior Deputy President Duncan at tab D, the unreported authorities which I tendered and in page 29.
PN356
THE COMMISSIONER: Page 29 of what?
PN357
MR MCDONALD: I am sorry, of the decision of Senior Deputy President Duncan, print 910160 being in relation to the Aged and Disabled Persons Hostels ALHMWU Interim Award and other awards which is at tab D of the unreported decisions. In page 29, at paragraph 87, his Honour notes the union relies on item 51(7B) and says the claim, in similar terms to the provisions awarded in the awards decision and then sets out what item 51(7B) provides.
PN358
His Honour then deals with the evidence of the union and the employers about appropriate part time provisions and in paragraph 90, his Honour states, in this circumstance I have decided to balance the undoubted decrease in flexibility, consequent upon acceptance of the LH and new proposal and the common occurrence and simplify the words of what the LHMU seeks. I do not regard item 51(7B) as requiring the insertion of the common occurrence in every award
PN359
His Honour then moved on not to award the clause from the hotels award but a different clause, an example of which is to be found at the end of that tab as clause 9 of the nursing assistants ALHMWU interim award. The Commission will note that in clause 9, a number of the concepts that are contained in our application have been inserted into that clause by Senior Deputy President Duncan.
PN360
Commissioner, if I can just recap as to our first submission, we say that the operation of Section 111(1)(g(3) should not apply to these circumstances and it is hard to see how it could. We say it's an extremely high onus that has to be met for that to occur and it's never been met in such a case before.
PN361
We submit that as to how the Commission should exercise its discretion in relation to our application to be determined after an opportunity has been given to the full and proper case including the hearing of the 21 witness statements we've filed and that none of the grounds raised by the union identify anything that would suggest it is not necessary at all to deal with the application or that it's not desirable in the public interest.
PN362
Our submission is that the opposite is true. The weight of evidence would suggest that it is necessary to hear the application and that the public interest is served by the Commission exercising its powers under the Act to hear applications about changes to awards, in particular, changes to provisions in relation to part time employment. We have not sought in our submissions to deal with our full case, we don't think that we can do that without any hearing of the evidence.
PN363
Our submissions will in an the case if it proceeds to that would be reliant upon the evidence we put forward. We have filed, however, submissions in support of our application which deal more expansively with the merits by way of outline and we do tender those at this time. There is a folder entitled Submissions and Documentary Evidence filed by the association and we seek to tender tab A of that folder entitled Outline of Submissions in support of MIMAA's applications to vary the Motels Accommodation Resorts Award. We don't seek to tender the remainder?
PN364
THE COMMISSIONER: You don't wish to tender this entire document only tab A.
PN365
MR McDONALD: Yes, Commissioner.
PN366
PN367
MR McDONALD: Commissioner, I understand that the union's application under 111(1)(g)(3) seeks to deal with the part time flexibilities that have been sought in MIMAA'S application. They were set out at paragraph 2 of its written submissions on the point. We don't understand that that goes to other aspects of our application. If it does perhaps that could be clarified.
PN368
THE COMMISSIONER: Sorry, I don't know what it is that you are seeking, clarification or - you are jumping from document to document without identifying which document you are jumping to.
PN369
MR McDONALD: I apologise.
PN370
THE COMMISSIONER: And what have you jumped to now?
PN371
MR McDONALD: Exhibit S8, being the union's submissions in relation to its section 111(1)(g) application.
PN372
THE COMMISSIONER: You've dealt with the three ground.
PN373
MR McDONALD: Yes, Commissioner, and we note in paragraph (2) that the application is made in respect of our application in relation to regular part time employment and hours of work. The only point is that they are the only things that we've addressed. There were other aspects of the submissions in Exhibit S7 and S6 that were referred to. I didn't understand those to be in support of the section 111(1)(g) application in respect of the introductory classification, for example.
PN374
THE COMMISSIONER: Mr Swancott certainly referred to the introductory classification in the context of the section 111(1)(g) primary argument.
PN375
MR McDONALD: Commissioner, in that case, I will also address those two if I may.
PN376
THE COMMISSIONER: Is that correct, Mr Swancott, that your application pursuant to section 111(g) does cover the issues now raised by Mr Mcdonald?
PN377
MR SWANCOTT: Yes, Commissioner. Those matters can be dealt with in Exhibit S7 but it should have been apparent. I apologise if there is any confusion, it covers the whole of the outstanding matters.
PN378
MR McDONALD: Commissioner, in response to the submissions as to the introductory classification, again, we only address them in the context of section 111(1)(g). We say that there is no evidence about this consensus that the union refers to that the introductory level is appropriate and that such evidence could be let in in an appropriate case. We do say that since the excerpts of the decision which have been referred to by the full bench there have been some two decisions of other tribunals which have not sought to adopt the same approach to the introductory classification and in the outline of submissions that we've tendered, MIMAA6, Commissioner that we've set out the extracts of those decisions being decisions of Justice Marks and Commissioner Wellnigh of the Queensland Industrial Relations Commission.
PN379
Again, we would seek to bring evidence as to how that operates. the fact that it's already in the award and had been put in some time ago we would say would not render it immutable from scrutiny by this Commission and we note that some time has gone by since those provisions were included in the award but the circumstances of that again would have to be examined in the appropriate case. If the Commission pleases.
PN380
THE COMMISSIONER: Before asking you to respond - is there anything further Mr McDonald?
PN381
MR McDONALD: No, Commissioner.
PN382
THE COMMISSIONER: Mr Swancott - Ms Zeitz, do you have a position in respect of the section 111(1)(g) application in matter 3926 and 810?
PN383
MS ZEITZ: Commissioner, I have a couple of brief comments. In relation to the Section 107 application the position of the Australian Hotels Association is that as the application seeks to vary what was the subject of consideration by the full bench of this Commission on the award simplification case, it's appropriate for the Commission as currently constituted to consult with the president pursuant to Principle 10 and ascertain whether the president considers it appropriate that the matter be dealt with either by a full bench or indeed remitted to the Commission as currently constituted for hearing and determination.
PN384
In relation to the section 111(1)(g) argument, the submission, the position of the Australian Hotels Association is that it is perhaps characterised as a no case to answer submission because it points to the absence or the alleged absence of evidence. We make no comment on that, that's a matter for the Commission to determine but that appears to be the characterisation. Given the submission that in the normal course of 111(1)(g) argument as put very early in the proceedings and proceeding further progressed at this stage we do say that it's not unusual in administrative tribunals for that tribunal to have power to determine such application; they're usually vested directly by the legislative provision.
PN385
Off the top of my head I can recall certainly the Victorian Administrative Appeals Tribunal has power under section 75 to hear an application essentially on the papers without hearing any evidence once all the submissions have been filed and evidence is in the Commission to hear and determine it. So, on that basis, if that in fact be the characterisation we would say that is a matter again that the Commission as currently constituted could raise with the president and could be dealt with at that point; we say it's probably not appropriate given the 107 application but be dealt with either as a preliminary matter before a full bench or determined by yourself if the matters in fact were remitted back to yourself for hearing.
PN386
The only other comment we make is that in relation to the reference to the State of Queensland v The Australian Industrial Relations Commission the Full Bench decision of the Federal Court of Australia which I think was tab A in the unreported decisions provided, we understand that that matter has an effect then now determined by the High Court and that decision has been somewhat qualified. I don't have a copy of that with me but over the luncheon adjournment we will attempt to obtain it for the assistance of the Commission.
PN387
I am sure that our application is the matter should - we would simply put on behalf of the AHA that given the 107 application has been raised the President should decide that issue after consultation with yourself and the parties can then proceed either with - well, I've characterised as a no-case to answer submission or with the merits of application. If the Commission pleases.
PN388
THE COMMISSIONER: Thank you, Ms Zeitz. Before calling on you to respond Mr Swancott to what you heard from employers I think it probably appropriate that I give you an opportunity to consider that response and prepare something, unless you are ready to proceed. I'm happy to adjourn the matter for a while to give you an opportunity to do that.
PN389
MR SWANCOTT: Commissioner, I would anticipate speaking out about in a 10 or 15 in response, but I wouldn't object to five or 10 minute adjournment. In other words I'm happy to accept 1 o'clock as cut-off point.
PN390
THE COMMISSIONER: All right. I'll resume in 15 minutes and I'll hear your response.
PN391
MR SWANCOTT: Thank you, Commissioner.
SHORT ADJOURNMENT [12.36PM]
RESUMES [12.57PM]
PN392
THE COMMISSIONER: Mr Swancott.
PN393
MR SWANCOTT: Thank you, Commissioner. My reply will be brief. I remind the Commissioner that when we consider a number of the precedents brought forward by Mr McDonald we are dealing with a new act with new objects and the arguments that we put need to be considered in that context. We remind the Commissioner also that the key elements of MIMAAs application in 2003/810 have been examined extensively by the Full Bench in the award simplification decision in the context off the hospitality industry and they have been determined.
PN394
The clause in the Hospitality Award and the clause in the Motels Award dealing with regular part-time employment is in identical terms in all relevant respects and the operational effect of the rostering clauses read together with the regular part-time employment clauses in both awards are also identical.
PN395
Mr McDonald raised QEC v The ETU, the High Court decision. We accept the three points that he sought to derive from that decision at 21 IR particularly at page 163. Firstly, that an applicant has a prima facie right to have their case determined. Secondly, that there's an onus on a party raising section 111(1)(g)(iii) matters are to persuade the Commission to override this right. Thirdly, that when Placitum III is relied upon the onus is heavy. In our view we have met that onus requirement.
PN396
In relation to the timing off this application we remind the Commission that it was an agreed position early in the unfolding of this case that the parties would file first round and second round submissions and evidentiary material. In other words, the ALHMU submission is now an informed submission. It's not one based on a speculation of what MIMAA might be intending to put or a speculation on the evidence it might be intending to call. It is an informed decision with all of the papers before us. That consensus was arrived at, the Commission might recall, because of the late lodging of 810. In fact it was lodged the day before 3925 and 3926 of 2002 were listed for first hearing.
PN397
As I mentioned it's our submission, and we've argued this in our written submissions, that the key elements of MIMAAs applications have been dealt with by the Full Bench. Some of the elements that have been proposed by MIMAA have been rejected by the Full Bench in the awards simplification decision applicable to this industry.
PN398
In our view, what MIMAA is proposing to do is to re-open the award simplification decision as it related to regular part-time employment. We say they've not put a compelling case to re-open that decision. The award simplification decision was the building block not only for the Motels Award but for many hundreds of other awards of the Commission in relation to regular part-time employment and in relation to a host of other minimum standards across the safety net award system. It's a serious issue to re-open that issue, that interpretation by the Full Bench of the legislative intent.
PN399
In relation to parliament's intent we rely on the submissions we've put. To the extent that extrinsic materials are relevant, it's our submission that exhibit COL2 which was the Commonwealth's submissions in the award simplification decision and the relevant extracts of which have been extracted in exhibit S8 is to be preferred over the opinions of a ministerial staff member.
PN400
Perhaps, for completeness, Commissioner, I should notionally or formally tender the ALHMUs documentary material supplied in the first round. I'm not sure they're actually in evidence. Relevantly, the outline of ALHMU contentions concerning the conversion of casual employees or regular part-time employment.
PN401
THE COMMISSIONER: It's just the outline alone?
PN402
MR SWANCOTT: Yes, Commissioner.
PN403
THE COMMISSIONER: At first instance?
PN404
MR SWANCOTT: Although, I do point out that it makes reference to the witness statements and draws on those in that outline.
PN405
THE COMMISSIONER: Yes. That's a one and a bit page document attached to which is an attachment RDO3 and RDO4?
PN406
MR SWANCOTT: Yes, Commissioner.
PN407
PN408
MR SWANCOTT: An RDO in that context stands for Revised Draft Order not Rostered Day Off, unfortunately.
PN409
THE COMMISSIONER: You're not suggesting we don't deserve it, are you?
PN410
MR SWANCOTT: Next week, one hopes. Commissioner, we have been at pains in our submissions to say that the ALHMU does not rule out discussions at enterprise level on any matter associated with regular part-time employment and/or any of the matters that are set out in application 810 of 2003.
PN411
The evidence is that there is no discussion at enterprise level to bring about the sort of flexibilities for some employees. Rather what's been approached by MIMAA is a variation to the award, a one size fits all variation, that would leave no regular part-time employees in truth in the industry. All part-time employees would become flexible part-time employees and it's noticeable that throughout his submission Mr McDonald referred not to regular part-time employment but to part-time employment whereas section 89(a) and the definition in section 4 highlights the concept of regular part-time employment and the reasonable predicability for such employees of their starting and finishing times.
PN412
Commissioner, I finish on the final observation that, yes, we accept that section 104 has a two-stage process. The first is to attempt to settle disputes between award parties by conciliation and if unsuccessful then in the normal course they would proceed to arbitration for a settlement. But section 111(1)(g) is in the Act for a purpose and it's our view that this is one of the purposes met by that section which is to finish now, on the basis of all of the material before you, an inquiry which in our submission has no chance of substantial success for MIMAA and would in any event operate unfairly contrary to Commission principle and contrary to the legislative intent should it ever see the light of day. Thank you, Commissioner, I have concluded.
PN413
THE COMMISSIONER: All right. Thank you for those submissions. Do you have anything in reply, Mr Watts?
PN414
MR WATTS: No, I don't, Commissioner.
PN415
THE COMMISSIONER: All I can say in response to both the section 111(1)(g) application and the section 107 application is that I will consider the matters that have been put before me today. Particularly in regard to the section 107 application I will, as required, refer these matters to the President and the parties will be informed of the President's decision with regard to that reference.
SHORT ADJOURNMENT [12.50PM]
PN416
MS ZEITZ: Just a couple of minor matters in relation to that, Commissioner. The first is that there has been an exchange of correspondence between the parties that we would wish to place on the Commission file as part of the Commission record. That relates to some of the issues that go to the transition and matters of that nature and then the parties' understanding as to how it is to operate. That can be provided to the Commission.
PN417
The second matter and I would simply raise it, Commissioner, because exhibit S4 refers to whether or not you wish to consult with the President given that there was an issue about the extent to which this went beyond the award safety net. We don't wish to cut across your decision in any way. Whether you wish to qualify that in any way by making it subject to reference to the President we are content with that, we have no difficulty with that. Indeed our position would be that if the President doesn't believe a Full Bench is necessary we don't believe the matter needs to come back before you in any formal sense other than for the purpose of an order issuing. It would require a further hearing if the Commission is otherwise satisfied with the terms of the order. We only raise that as, really an abundance of caution to make sure that we don't inadvertently not line up with what the principals require us to do.
PN418
THE COMMISSIONER: Perhaps if I was to qualify the decision earlier given on transcript that I, in the circumstances, will refer the proposed consent draft order to the President pursuant to section 107 and hold off issuing any order that might arise from my earlier decision subject to whatever feedback I get from the President and decision of the President in that regard. Does that satisfy you?
PN419
MS ZEITZ: We would be content with that, Commissioner.
PN420
THE COMMISSIONER: Mr Swancott are you happy with that?
PN421
MR SWANCOTT: Yes, Commissioner.
PN422
THE COMMISSIONER: Or to the extent that it is necessary to qualify my earlier decision I will do so as spelt out in the transcript now.
PN423
MS ZEITZ: Thank you, Commissioner.
PN424
THE COMMISSIONER: Unless anyone else has anything further for the transcript today it is my intention to adjourn the proceedings generally but we will just go off the record for a moment.
OFF THE RECORD [1.12pm]
RESUMES [1.16pm]
PN425
THE COMMISSIONER: Whilst off the record it has been raised with me the parties desire in matter 3925 to have their joint covering letter dealing with transitional issues in relation to the decision that I earlier made on transcript. Ms Zeitz has indicated that she doesn't have additional copies of that document at this time but will forward such a document to the Commission for retention on the Commission's record. I can indicate to you that on receipt of that document it will identified as exhibit AHA2.
PN426
MS ZEITZ: Thank you, Commissioner.
PN427
THE COMMISSIONER: If there is nothing further for the record at this stage I will vacate the balance of today's hearing, tomorrow 9 April and also 14 April days that were set aside for the further conduct of these proceedings. I will undertake to get back to the parties with a response from the President once I have had an opportunity to prepare an appropriate package of materials for him and refer that matter to him and get a response. In the meantime these proceedings are adjourned to a time and date to be fixed.
ADJOURNED INDEFINITELY [1.18pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #S6 DOCUMENT TITLED LHMU RESPONSE TO MIMAA SUBMISSIONS PN195
EXHIBIT #S7 DOCUMENT TITLED PART 2 MIMAA APPLICATION TO EXTEND THE INTRODUCTORY RATE OF PAY TO ALL CLASSIFICATIONS IN THE AWARD (DOCUMENT
FILED BY LHMU) PN196
EXHIBIT #S8 DOCUMENT TITLED PART 3 SECTION 111(1)(g) APPLICATION PLUS ATTACHMENTS AS LISTED BELOW PN197
EXHIBIT #MIMAA4 DOCUMENT FILED 27 MARCH TITLED STATEMENT OF PRINCIPLES PN269
EXHIBIT #MIMAA5 MINISTERIAL INFORMATION PAPER PN352
EXHIBIT #MIMAA6 FOLDER ENTITLED SUBMISSIONS AND DOCUMENTARY EVIDENCE PN367
EXHIBIT #S9 OUTLINE OF ALHMU CONTENTIONS PN408
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