C2004/4005, Transcript of Proceedings [2004] AIRCTrans 2324 (23 June 2004)

AUSCRIPT PTY LTD
(Administrator Appointed)
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
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TRANSCRIPT OF PROCEEDINGS


O/N 7446

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WATSON

C2004/4005

LICENSED CLUBS (VICTORIA) AWARD
1998

Application under section 113 of the Act by
Clubs Victoria Inc to vary the above award re
to expand the classification structure and to
expand the options under the hours of work
clause

MELBOURNE

2.04 PM, FRIDAY, 11 JUNE 2004

PN1

MR A. GRINBERG: I am the Industrial Relations Manager at Clubs Victoria.

PN2

MS V. ILIAS: I appear on behalf of the LHMU.

PN3

MR P. EBERHARD: I appear on behalf of the Victorian Employers Chamber of Commerce and Industry.

PN4

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Grinberg?

PN5

MR GRINBERG: Yes, good afternoon.

PN6

THE SENIOR DEPUTY PRESIDENT: Could I just perhaps before you start ask you, Mr Grinberg, if my understanding of the effect of the variations is clear. The first is to include the proposed clauses 11.3.5 to 9 and 11.4.1 to 4 front office and clerical classifications. Secondly, in respect to clause 11.6 and various points, "Casual and support ground full day employees used picking up glasses," to remove from the award a range of allowance levels reflecting different years of safety net adjustment and simply maintain in the award the most recent June 2003 level, rather than have a series. Finally in relation to hours of work to include a new specific option at 15.3.5 for the working of hours and a new 15.5. Does that cover the effect of the variations?

PN7

MR GRINBERG: Yes, it does, your Honour. There are a few minor alterations that also need to be made. However, in between the time when the application was originally submitted and today's hearing the Licensed Clubs Award has been subject to a safety net adjustment. So if the Commission pleases I would like to submit a varied draft order to reflect the new safety net values.

PN8

THE SENIOR DEPUTY PRESIDENT: I will mark that exhibit CV1, that is in terms of the initial order filed, but it updates each of the rates and allowances in accordance with the May 2004 safety net decision?

PN9

MR GRINBERG: Yes, that is correct.

EXHIBIT #CV1 VARIED DRAFT ORDER REFLECTING NEW SAFETY NET VALUES

PN10

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Okay, well I will let you address me. Can I say that the issue removing the now redundant range of allowance rates for various safety net increases going back to '98 and '99 I understand that and I have no difficulty with that. You don't need to address me in relation to those. But if you can take me through the new classifications and the hours.

PN11

MR GRINBERG: Certainly. Currently under the Licensed Clubs Award there is no classification structure which includes - the classification excludes those employees employed in an administrative or clerical capacity. When the award was first written some time in 1988 there was no requirement for such employee aggregates and classifications. Since that time there has been some growth in the industry and that has now necessitated that these employees be included. Currently those employees are covered by schedule 1A of the Workplace Relations Act and the Victorian Industry Sectors.

PN12

THE SENIOR DEPUTY PRESIDENT: So they are award-free and this variation in respect to that issue at least - - -

PN13

MR GRINBERG: That is correct.

PN14

THE SENIOR DEPUTY PRESIDENT: - - - has the effect - well, would rely on principle 11 extension of the award for new work or work not covered. Okay.

PN15

MR GRINBERG: So the application for variation now includes various classifications of clerical employees and also administrative employees. This classification structure is derived directly from the Hotels, Resorts - from the Hospitality Industry Accommodation, Hotels, Resorts and Gaming Award 1998 which is - - -

PN16

THE SENIOR DEPUTY PRESIDENT: Sorry Hospitality Industry - just go through it more slowly for me if you would?

PN17

MR GRINBERG: Accommodation, Hotels - - -

PN18

THE SENIOR DEPUTY PRESIDENT: Hotels.

PN19

MR GRINBERG: Resorts and Gaming Award 1998.

PN20

THE SENIOR DEPUTY PRESIDENT: Yes, that is a simplified award?

PN21

MR GRINBERG: It is.

PN22

THE SENIOR DEPUTY PRESIDENT: Yes.

PN23

MR GRINBERG: It is AW783479.

PN24

THE SENIOR DEPUTY PRESIDENT: 479 okay. And when you say it is the structure derived directly from that award, that is in terms of the number and definition of classifications and the minimum rates attached to that?

PN25

MR GRINBERG: It is with reference to the structure and the hierarchical nature of the duties.

PN26

THE SENIOR DEPUTY PRESIDENT: And the rates are the same sort of having regard to whether the safety net adjustments have been made or not?

PN27

MR GRINBERG: There are minor differences, however, these differences have been discussed and negotiated with the union who is also a party to the agreement and the rates that you see before you are as agreed from those negotiations.

PN28

THE SENIOR DEPUTY PRESIDENT: Well, where do the differences arise?

PN29

MR GRINBERG: The differences arise essentially in the fact that the there is an extra classification under the Hotels - sorry, there is an extra classification under the Licensed Clubs Award.

PN30

THE SENIOR DEPUTY PRESIDENT: Yes. Which is the which classification?

PN31

MR GRINBERG: There are essentially five classification levels, different classification levels under the Hotels Award and there are six under the Clubs Award.

PN32

THE SENIOR DEPUTY PRESIDENT: Yes.

PN33

MR GRINBERG: So the levels of the supervisory levels for both clerical and administrative were associated with the supervisory levels for food and beverage supervisor.

PN34

THE SENIOR DEPUTY PRESIDENT: Yes.

PN35

MR GRINBERG: And that similarly is consistent with the way that the rates are associated under the Hotels Award and from there on worked in reverse order from that point.

PN36

THE SENIOR DEPUTY PRESIDENT: I see, yes. Okay, well which is the additional grade?

PN37

MR GRINBERG: The additional grade comes about at - essentially at the level between food and beverage grade 4 and food and beverage grade 5. Under the Hotels Award those two classification levels are essentially merged into one classification level under the Hotels Award. It is broken into two under the Licensed Clubs Award.

PN38

THE SENIOR DEPUTY PRESIDENT: That is the food and beverage attendant; is that right?

PN39

MR GRINBERG: I am using those grade structures as a reference point.

PN40

THE SENIOR DEPUTY PRESIDENT: Yes. I see - - -

PN41

MR GRINBERG: The levels were associated were linked up with the Hotels Award structure as best as possible. The two highest awards - the two highest classification levels, that being of a supervisory level and then the grade below it are consistent with the levels under the Hotels Award.

PN42

THE SENIOR DEPUTY PRESIDENT: Yes, so - - -

PN43

MR GRINBERG: All levels are consistent with the levels under the Hotels Award, however if you have a look - if I can draw the Commission's attention to clause - under the variation to the draft order under clause 11.6.1 under clerical, or under the administration section you will notice that the structure, a clerical grade 1 employee receives $484.10 per week. That is consistent with a food and beverage grade 2. A clerical grade 2 receives 506.60, that is consistent with a food and beverage grade 3. Clerical grade 3 receives 561.20, that is consistent with a food and beverage attendant grade 5.

PN44

THE SENIOR DEPUTY PRESIDENT: And that is the similar position in respect of the front office grade 1.

PN45

MR GRINBERG: That is correct.

PN46

THE SENIOR DEPUTY PRESIDENT: Okay. And you say do you that for example a front office grade 2 or clerical grade 2, their work value, skills, responsibility is comparable to guest service grade 3, food and beverage grade 3 and the like? Is that how I read it?

PN47

MR GRINBERG: That is correct.

PN48

THE SENIOR DEPUTY PRESIDENT: Yes. Okay. And that is consistent with the - - -

PN49

MR GRINBERG: Hotels - - -

PN50

THE SENIOR DEPUTY PRESIDENT: - - - Hotels, Resorts, Hospitality Industry, yes.

PN51

MR GRINBERG: That is correct.

PN52

THE SENIOR DEPUTY PRESIDENT: Okay. Thank you.

PN53

MR GRINBERG: Now, the second major variation comes under clause 15 which is the hours of work clause. There are a few minor variations essentially in there to remove some ambiguity which exists and also to expand some of the options available to employees and employers alike. The first change is in clause 15.2. It says:

PN54

Each full time employee must be entitled to two full days off per week and this is defined as a normal rostered day off.

PN55

Clause 15 is essentially designed to govern the hours of work for full time employees and previously there was no specific reference in that clause to being the two normal rostered off per week being an entitlement of full time employees, rather it was the words "an employee". Also other variations include a new clause which is 15.3.5 providing the hours worked, 38 hours per week, being 152 hours per each four week period, with a minimum of eight normal rostered days off in a four week period. And the subsequent clause 15.4 which further defined - sorry, 15.5 which further defines some of the rules governing that expansion.

PN56

It removes ambiguity in that clause because previously clause 15 - the new numbered clause 15.3.6 "any combination of the above" there is a bit of ambiguity and confusion as to how the different combinations of hours of work as listed previously could be mixed and matched to come to 38 hours. So now the inclusion of the extra clause 15.3.5 will allow that - will remove that ambiguity and allow the extra flexibility. The grounds on which my application is made is that firstly it will provide uniformity in the entitlements of employment through the inclusion of the clerical and administrative employee classifications within the Federal framework. Currently as I mentioned earlier the employees are covered by schedule 1A of the Workplace Relations Act.

PN57

Secondly, the removal of the ambiguity in the hours of work clause for full time employees and thirdly any other reason the Commission deems fair and just. If I could just bring the Commission's attention to one minor typographical error. In clause 15.4 also under the hours of work clause. Clause 15.4:

PN58

The arrangement for working the average 38 hours per week is to be agreed between the employer and the employee from the alternatives in clause 15.3.1.

PN59

That should read 15.3. Your Honour, this application follows extensive negotiations and discussions with the LHMU who are also a party to this award and whilst consent has not been provided in a written format, it has been given verbally. Consistent with the order for substituted service all parties have been served with a copy of the original draft variation and application, however, it is only today that the variation to the draft order has been submitted.

PN60

THE SENIOR DEPUTY PRESIDENT: The dispute finding that provides necessary ambit to include the additional classifications that are in the award? The original dispute findings C30248 of 1993?

PN61

MS ILIAS: That is probably more a question that I may be able to answer, your Honour.

PN62

THE SENIOR DEPUTY PRESIDENT: Thank you. I don't care how it is answered as long as it is.

PN63

MS ILIAS: I would say I do not have that document obviously in front of me but the log of claims is a standard log of claims that are served on all employers when we are in the process of getting a dispute finding and roping them in to the appropriate award.

PN64

THE SENIOR DEPUTY PRESIDENT: That would be comparable would it to that which has led to similar classifications within the Hotels, Resort, Hospitality Industry, Accommodation - sorry, get it right Hospitality Industry Accommodation, Hotels, Resorts and Gaming Award?

PN65

MS ILIAS: Yes, your Honour.

PN66

THE SENIOR DEPUTY PRESIDENT: Very well, thank you. Yes?

PN67

MR GRINBERG: On these grounds, your Honour, it is my submission that there are sufficient grounds for the application as varied to be granted.

PN68

THE SENIOR DEPUTY PRESIDENT: Thank you for that. Ms Ilias?

PN69

MS ILIAS: Yes, your Honour. I would have to say that Mr Grinberg is totally correct we have had numerous discussions about the variations that has been proposed today. That we do in fact support those variations as they will make the award fundamentally clearer. It will cover the levels of employees that currently work in those establishments who are already covered under the award, but without a classification structure that best suits them. So by the insertion of this clause that actually gives them a career path structure as well in the clubs that they work. Also with the hours of work it will make it fundamentally clearer for the full time employees that there are a number of options for them to work their full time hours with clarity that they can have proper negotiations with their employer about how that will affect them on their day-to-day work life. If it pleases the Commission.

PN70

THE SENIOR DEPUTY PRESIDENT: Yes, thank you very much. Mr Eberhard?

PN71

MR EBERHARD: Your Honour, I have had some discussions with Mr Grinberg in regards to the application. I must admit I haven't really had an opportunity to read the whole application, but certainly given the comments that have been made by both Clubs Victoria and also the LHMU I don't think VECCI is in a position where we would be opposing the application. Given our limited understanding of it we are not in a position where we support it. So we are really in a position where we neither support nor oppose it, but having said that given the comments that have been made here today we would see that there should be no impediment for the Commission to make the order as proposed by Clubs Victoria in this particular matter. If the Commission pleases.

PN72

THE SENIOR DEPUTY PRESIDENT: Very well. I propose to adjourn for 10 minutes and hopefully be in a position to announce a decision.

SHORT ADJOURNMENT [2.23pm]

RESUMED [2.41pm]

PN73

THE SENIOR DEPUTY PRESIDENT: Yes, this is an application by Clubs Victoria Incorporated to vary the Licensed Clubs Victoria Award 1998 to introduce additional classifications, wage rates and to remove redundant time specific clauses dealing with allowances and to vary the hours of work provision to introduce additional options for the working of hours and to provide greater clarity in the operation of the relevant hours provision. The application is neither supported or opposed by VECCI on behalf of its members. I am satisfied that the application falls within the scope of the relevant dispute finding. The variation proposed would fall within the scope of the relevant finding. It seeks to add additional classifications comparable to those already reflected in the Hospitality Industry Accommodation, Hotels, Resorts and Gaming Award 1995, AW783479 are based on Ms Ilias' submissions on a comparable log of claims in each case.

PN74

It follows that the additional classifications would fall within the scope of the dispute and plainly the changes to the hours provision would fall within the ambit of the dispute. I am satisfied also that Clubs Victoria has served all respondents required with notice of these proceedings and the variation proposed. The proposal to vary clause 11.7 and the subcomponents of that clause amount simply to a removal of redundant provisions in that it removes those current provisions of the award setting out the rate of various payments at particular times following application of particular safety net adjustments and as such that variation is supported.

PN75

The variation to the hours provision provides both greater - provides a further option in respect to the working of hours. It seems to me to be consistent with the object of Part 88A the efficient performance of work according to the needs of particular workplaces and further to provide greater clarity in the operation of that provision. I am satisfied that that variation should occur. The final changes are to introduce additional classifications in respect to front of house and clerical employees. In this respect it is put that when the award was initially made there was no requirement for such classifications, but with growth in the industry and developments in the industry there is now a need for explicit award provision for those sorts of employees who are presently governed by schedule 1A of the Act in respect to employees in the State of Victoria.

PN76

The application in respect to wages involves an extension to the existing award which needs to be considered having regard for principle 11 first award and extension to existing award and May 2004 safety net review decision Print PR002004. In that respect the Commission is required to ensure that the variation is consistent with the award's obligations under Part VI of the Act and have regard to particular matters. In my view the extension of the classification structure to incorporate work presently not subject to a minimum award provision but to schedule A, is consistent with the objects of the Act directed to providing awards to act as a safety net of fair minimum wages and conditions of employment. And is generally consistent with the provisions of Part VI of the Act.

PN77

The specific matters that need to be considered are whether relevant minimum wage rates proposed are properly fixed having regard to relevant wage rates in other awards, the need for appropriate wage relativities between and within awards as to skill and responsibility and the conditions under which work is performed. The provision is an allowable matter within the terms of section 89A of the Act and the provision properly complies with the award simplification criteria in section 143 of the Act. Plainly wages is an allowable matter under section 89A of the Act and I am satisfied that the variation which is a fairly straightforward reflection of classification definition and wage rates meets the award simplification criteria of section 143 of the Act.

PN78

In respect to the appropriately fixed relativities, the parties have in effect incorporated into the award additional classifications within the same structure and relativities as appear in the Hospitality Industry Accommodation, Hotels, Resorts and Gaming Award 1995, AW783479. Accordingly the additional classifications are placed at the same level relative to other classifications as are reflected in the Hospitality Industry Accommodation, Hotels, Resorts and Gaming Award and in my view reflect appropriate relativities to be applied to the classifications within the Licensed Clubs Victoria Award 1998. The additional classifications thus placed within the classification structure then attract the wage rates adjusted up until and including the May 2004 safety net review decision as apply generally within the classification structure of the Licensed Clubs Victoria Award 1998.

PN79

In those circumstances I am satisfied that the wage rates for the additional classifications proposed properly reflect work value and relative work value as against the existing classifications within the Licensed Clubs Victoria Award and it can be approved on that basis. Accordingly I will issue the order in the terms of exhibit CV1 subject to the amendment in clause 15.4 wherein the alternatives referred to at the end of the clause refer properly to clause 15.3. The order shall come into force from the beginning of the first pay period to commence on or after 11 June 2004. It shall remain in force for a period of six months. I will now adjourn these proceedings.

ADJOURNED INDEFINITELY [2.52pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CV1 VARIED DRAFT ORDER REFLECTING NEW SAFETY NET VALUES PN10