C2004/396, Transcript of Proceedings [2005] AIRCTrans 93 (10 January 2005)

AUSCRIPT AUSTRALASIA PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N 15994
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT HARRISON

C2004/396

MEDIA, ENTERTAINMENT
AND ARTS ALLIANCE

and

AUSTRALIAN ENTERTAINMENT
INDUSTRY ASSOCIATION

Notification pursuant to section 99 of the Act
of an industrial dispute re penalty rates for
Christmas Day 2004 and New Years Day 2005

SYDNEY

10.10 AM, THURSDAY, 23 DECEMBER 2004

PN1

THE SENIOR DEPUTY PRESIDENT: I will take appearances first here in Sydney.

PN2

MR M. RYAN: If the Commission pleases, I appear for the Media, Entertainment and Arts Alliance and with me is MS M. JONES.

PN3

THE SENIOR DEPUTY PRESIDENT: Mr Ryan.

PN4

I will now take appearances in Melbourne.

PN5

MR D. HAMILTON: If your Honour pleases, I am from the Australian Entertainment Industry Association and with me is MS S. DALEY.

PN6

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Hamilton, I would be happy if you would remain seated, given that this hearing is by way of the videoconference link. This is a notification of dispute under section 99 of the Act, when it was received in the registry it was noted that an urgent hearing was requested. Mr Ryan?

PN7

MR RYAN: Thank you, your Honour. Firstly, I thank you for bringing this matter on at short notice. We only became aware of a document sent out by the employer group to its member just a couple of days ago concerning the payment of penalty rates over the Christmas and New Year periods. The disputes concerns, your Honour, the relationship between gazetted public holidays in the various States and Territories and the substitution provisions of the award for both full and part-time employees and whether as well, casual employees are subject to the substitution provisions or whether they stand alone and are entitled the days which are gazetted by the various governments as public holidays.

PN8

Can I say that it is a mixed bag what has happened in the various States and Territories in that particularly in New South Wales, Victoria, Western Australian and the ACT there are additional public holidays and for way of example, if I could just stick to New South Wales, your Honour because that has the same principle involved; the situation in New South Wales is that Christmas Day itself is a gazetted public holiday, the Boxing Day holidays is on Monday 27 December and the government has gazetted an additional holiday on Tuesday 28 December.

PN9

If I could deal with the situation concerning the small number of full-time and part-time employees, it's a matter of some notoriety, your Honour that the vast bulk of employees in the industry are casuals by an overwhelming number but if I could just quickly deal with the situation, as the award stands, for the situation we face as of this year where both Christmas Day and Boxing Day are on the Saturday and Sunday. The award provides that if Christmas Day falls on a Saturday or Sunday, employees will be entitled to a holiday in lieu on 30 December; if Boxing Day falls on a Saturday or Sunday, then the holiday in lieu is on the 28th.

PN10

THE SENIOR DEPUTY PRESIDENT: Clear enough so far.

PN11

MR RYAN: It is but we do have a problem in that members who actually work on the Christmas Day will have their public holiday substituted to the 30th and not receive additional payment, as the award stands, on 25 December; similarly, the Boxing Day holiday is Monday 27 December which isn't a substituted day under the award but the additional holiday the 28th is an a substituted day for Boxing Day, so it's a mishmash, if you like. On one reading of that, they would miss out on the additional day and it is certainly my reading of the various test case provisions, your Honour that the intention was to have a safe net of 11 public holidays, including Easter Saturday but to provide for additional days to be added to that when a government in its discretion proclaims additional public holidays.

PN12

That is picked up in the award itself in clause 27.6:

PN13

If in a State or Territory of employment all days are declared public holidays, as listed in this clause, weekly employees will also be entitled to paid leave for those extra days and casual employees will receive the penalties as outlined in clause 27.6.

PN14

Which is in this case, double time. So the substitution days, I mean, the intent of the award I think, is proper and in keeping with the test case provisions to allow substitution and to pick up the right where there is an additional public holidays gazetted, for employees to receive the benefit of that as well. The problem arises with the method by which substitution interacts with the gazetting of the additional day and it is compounded by the advice given to the employers stating that:

PN15

The public holidays are the 27th and 28th and that people who work on the 25th and 26th don't receive additional payments.

PN16

Now, the same thing happens in New Years, your Honour in that - - -

PN17

THE SENIOR DEPUTY PRESIDENT: And when you say, don't receive additional payments, what do you mean?

PN18

MR RYAN: That they just receive the normal rate of pay for work on Saturday or Sunday, no public holiday rates and the situation arises again on New Years Day where a number of governments have gazetted the 3rd as an additional public holiday and New Years Day itself is also a public holiday.

PN19

THE SENIOR DEPUTY PRESIDENT: This award has the normal penalty rates work on a Saturday or Sunday, does it?

PN20

MR RYAN: They have penalty rates not for - no, they don't, your Honour.

PN21

THE SENIOR DEPUTY PRESIDENT: I see, it's ordinary time can be worked and single time - - -

PN22

MR RYAN: Single time.

PN23

THE SENIOR DEPUTY PRESIDENT: - - - and yes, I see. All right, so - - -

PN24

MR RYAN: That is the situation with the problem we face with the, as we see it, full-time and part-time employees.

PN25

THE SENIOR DEPUTY PRESIDENT: But just so I understand then, the employee who works on Christmas Day would under the award, have been entitled to 30 December as a holiday?

PN26

MR RYAN: Yes, your Honour.

PN27

THE SENIOR DEPUTY PRESIDENT: Who works on the Sunday would be entitled to the 28th.

PN28

MR RYAN: Yes, your Honour.

PN29

THE SENIOR DEPUTY PRESIDENT: But the 28th is an additional holiday already.

PN30

MR RYAN: Yes, your Honour.

PN31

THE SENIOR DEPUTY PRESIDENT: And if that's then additional holiday and if 27.6 applies to that, the 28th then goes out to another day again, does it?

PN32

MR RYAN: Yes, your Honour.

PN33

THE SENIOR DEPUTY PRESIDENT: And what happens, the employee ends up working those three days without accruing any penalty rates.

PN34

MR RYAN: They would only get a penalty rate if they worked on a strict interpretation on the 28th and 30th.

PN35

THE SENIOR DEPUTY PRESIDENT: Yes because they would be working on a holiday on those days.

PN36

MR RYAN: Yes but and we say that everybody is entitled to three public holidays by way of New South Wales gazettal.

PN37

THE SENIOR DEPUTY PRESIDENT: Well, what are you asking?

PN38

MR RYAN: We would be saying, your Honour that Monday the 27th should be deemed to be the additional holiday because the 28th was the additional holiday in New South Wales by government gazette is a substituted date and - - -

PN39

THE SENIOR DEPUTY PRESIDENT: But tell me, what is the effect of me deeming something to be an additional holiday? If people have it off, well, so be it and if they work - - -

PN40

MR RYAN: They either have it off without loss of pay or if they are required to work, then they pick up the penalty rates provided by the award, your Honour.

THE SENIOR DEPUTY PRESIDENT: For a public holiday.

PN41

MR RYAN: For a public holiday.

PN42

THE SENIOR DEPUTY PRESIDENT: Yes. Now, you were going to go to the casuals.

PN43

MR RYAN: The casuals we say, in keeping with one of the test cases which looked at casuals, you may recall there was a bit of scramble, your Honour, when the public holidays test case first came through, the first one really dealt with the situation of substitution for full-time employees or Monday to Friday workers basically and there was subsequent additional test cases which dealt with the situation of part-time employees, people who worked non-standard Monday to Friday weeks and also, the situation with casuals. In print L9178 a decision of the Full Bench which dealt with the situation of, amongst others, casual employees, that's what I rely upon, your Honour, it came to a conclusion concerning casuals that:

PN44

Casuals who are employed on prescribed holidays should be paid at the relevant holiday rates but exclusive of any augmentation of the casual loading.

PN45

We don't worry about the second part but we say that in relation to casuals, the substitution provisions don't apply and that if a casual works on any gazetted public holiday, then they should receive the additional payment set out in 27.8. So we say the effect of that would be, your Honour, that if they worked on the actual Christmas Day of the 25th they would receive penalty payments on Monday the 27th and on Tuesday the 28th, would be the three days. That flows I think, from the lead in to the public holidays clause in the award 27.1, it starts off:

PN46

Full-time or part-time employees.

PN47

And then there is a list of days and then 27.2 sets out some other days; 27.3 picks up what is the eleventh public holidays in the various States and Territories and then 27.4 deals with substitution; 27.5 deals with substitution for Christmas Day and New Years Day and Australia Day and then 27.6 talks about additional public holidays and it is important to note there, there is a distinction made in that between full-time and part-time as to what they are entitled to. At the end of it you will see:

PN48

And casual employees will receive the penalties outlined in 27.8.

PN49

Then 27.7 deals with how a weekly employee is compensated for working on a public holiday and then 27.8 deals with:

PN50

Casual employees will be entitled to receive double the permanent hourly rate for work on a public holiday.

PN51

And we would say that is fairly clear that it is the actual public holiday gazetted by the governments that triggers the payment of additional rates for casuals and that the substitution provisions, in keeping with the test case provision, mean that as the cards fall by way of how the various State and Territory governments have gazetted days, then if you are lucky enough to be in Victoria, then you pick up three days, if you are very lucky and live in WA you get four days, in other cases you only get the two.

PN52

THE SENIOR DEPUTY PRESIDENT: And you say if casuals work on an of those days they receive double the permanent hourly rate?

PN53

MR RYAN: Yes, your Honour.

PN54

THE SENIOR DEPUTY PRESIDENT: Yes, I understand.

PN55

MR RYAN: And that again, is contrary to - - -

PN56

THE SENIOR DEPUTY PRESIDENT: Well, what do you understand the employers have been advised to do where there are casuals?

PN57

MR RYAN: I can only see here that it's just a situation of they have picked up halos bolas the standard substitution, your Honour of making the 27th and 28th the two days which attract penalty payments and that that is the 27th and 28th.

PN58

THE SENIOR DEPUTY PRESIDENT: You read into that not the 25th and 26th?

PN59

MR RYAN: No and that specifically says that is not the case.

PN60

THE SENIOR DEPUTY PRESIDENT: All right, yes. Now, on your instructions, what is this direction that you are reading from or you understand has gone out?

PN61

MR RYAN: It is a circular to all members and it is AEI circular number 29-04 10 November:

PN62

Circular to all members, public holidays, Christmas and New Year 2004/2005.

PN63

THE SENIOR DEPUTY PRESIDENT: All right.

PN64

All right, Mr Hamilton, what do you know of this matter?

PN65

MR HAMILTON: Sorry, your Honour?

PN66

THE SENIOR DEPUTY PRESIDENT: Mr Hamilton, what do you know of this matter?

PN67

MR HAMILTON: Thank you, your Honour, your Honour that circular did go out from our organisation, our approach has been to provide the public holidays to those employees, whether full-time or casual on the substitute days if those substitute days were applicable, this year Christmas Day and Boxing Day being Saturday and Sunday, the substitute public holidays being the Monday and the Tuesday. Just on that, your Honour, the award in the simplification process seems to have 30 December as the substitute day rather than the 27th, in the award immediately prior to the 1998 award, if I could refer to that, the 1997 award which was a restructuring of the 1983 award and Commissioner McDonald on 11 April 1997 set out clause 10 in that award the public holidays and the standard public holidays test case award, sorry, provisions in that variation, that was print N9936; in clause 10.C in the 1997 award, the substitute days are the 27th and 28th, if the Christmas Day and - - -

PN68

THE SENIOR DEPUTY PRESIDENT: I think it is much too late in the day for me to - - -

PN69

MR HAMILTON: No, I was just bringing it to the attention of the Commission.

PN70

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, it's much too late in the day for me to do anything, other than try and make sense of clause 27 in the context of this dispute. It may well be an application needs be made in the New Year to re-visit what might have been seen to have gone wrong at some state, maybe the simplification process, I don't know and I haven't overlooked the fact that even though you are the representative of employers, there are a number of respondents to this award. I don't know if you have full coverage of all of the employers but they are all entitled to be informing themselves on the words in the award at the moment, to try and figure out how they should be paying their employees.

PN71

So I think again, given the lateness of the hour and given other commitments I have, pressing commitments I have today, I really do need to bring this matter to a head, as to what if anything I can do, Mr Hamilton.

PN72

MR HAMILTON: Yes, your Honour.

PN73

THE SENIOR DEPUTY PRESIDENT: So, will you tell me how you say the position of, well, I have to say thus far, the position of casuals seems a little clearer to me than part-time or full-time, I don't think I have completely absorbed how the award applies to part-timers and full-timers but could you maybe assist me with your interpretation of how casuals will be dealt with over this period.

PN74

MR HAMILTON: Yes, your Honour, your Honour, the casuals will be paid ordinary pay for working on the Saturday and the Sunday.

PN75

THE SENIOR DEPUTY PRESIDENT: Yes, the 25th and 26th.

PN76

MR HAMILTON: Yes, the 25th and 26th and when they work on the 28th and the 30th will be paid the public holiday rates as set out in clause 27.8.

PN77

THE SENIOR DEPUTY PRESIDENT: All right, well, that is what I can't follow at the moment, so just let me look at this again. Yes, I don't see how that is right, Mr Hamilton, again run that past me again, why doesn't a casual employee have an entitlement if working on the 25th, 26th, 28th or 30th to be paid in accordance with 27.8? Tell me that again?

PN78

MR HAMILTON: Your Honour, our interpretation is that the public holiday for the Christmas Day is the 30th and the public holiday for Boxing Day is the 28th and - - -

PN79

THE SENIOR DEPUTY PRESIDENT: I suppose the problem I have is this, I don't know how you get rid of Christmas Day being a public holiday, it always is, isn't it?

PN80

MR HAMILTON: That is correct, your Honour.

PN81

THE SENIOR DEPUTY PRESIDENT: Yes, it always is and any public holiday you get the penalty rate, as I read it, the fact that there is an ability to substitute for the purposes of taking off for leave well, that is attended to in 27.5 and the day one may have for leave is identified but I am not entirely clear how one does away with the Christmas Day always being and continuing to be a public holiday. That is a problem. Obviously I haven't had a long time to consider the question of interpretation here and so I am really thinking out aloud but that is the way I am looking at the clause at the moment.

PN82

Should I adjourn for a short time and sit in a quiet place and read this whole clause yet again, the whole clause again and maybe we can all do that, would that be a wise thing to do? Mr Ryan, I just don't know if time is going to allow me to come to grips with the manner in which this clause applies to full-timers and part-timers.

PN83

MR RYAN: Look, I appreciate that, your Honour and - - -

PN84

THE SENIOR DEPUTY PRESIDENT: That's seems more complex.

PN85

MR RYAN: And that is something we can re-visit, if needs be, down the track, I am just concerned that the situation of casuals where they haven't got the ability to get a day in lieu or something down the track.

PN86

THE SENIOR DEPUTY PRESIDENT: Yes, my current thinking is full-timers and part-timers, the clause will operate how the clause operates and if it visits what is perceived to be a disadvantage upon them, had one been ensuring that all test case provisions were attracted by them, well, the difficult answer might be, so be it, that's the effect of the clause but I do want to think about casuals. Is there anything more, Mr Ryan?

PN87

MR RYAN: No, I think my basic point is that 27.8 stands alone as the actual gazetted public holidays that the casuals get, they don't get caught up in the substituted days, is my view, your Honour.

PN88

THE SENIOR DEPUTY PRESIDENT: Yes, I understand. I will adjourn just for a short time. I prefer you don't leave the vicinity of the court room but if you need to have private discussions amongst yourselves, well, you can apply the mute button but I will come back into court in a few minutes. The Commission now adjourns.

SHORT ADJOURNMENT [10.32am]

RESUMED [10.36am]

PN89

THE SENIOR DEPUTY PRESIDENT: The preliminary view that I expressed earlier is now my considered view insofar as casuals are concerned. Where does that get us, Mr Ryan?

PN90

MR RYAN: I think there will be a small number of people who are working on Christmas Day, your Honour who would be grateful for that view.

PN91

THE SENIOR DEPUTY PRESIDENT: But that is all it can be and given the lateness of the hour, it can be no more than it being an issue that comes to me under section 99 in the context of a section 99 if I was to observe a view about casuals, give my interpretation to the manner in which casuals should be paid, that that would be my interpretation but what do we do now?

PN92

MR RYAN: Well, I would hope Mr Hamilton, having regard to the relationship our organisations have with each other, it is a professional one, would be able to advise his members of your views.

PN93

THE SENIOR DEPUTY PRESIDENT: I don't know how far I am going to ask Mr Hamilton to do anything again, given the lateness.

PN94

Mr Hamilton, do you want to say something?

PN95

MR HAMILTON: Your Honour, could you just clarify something in your interpretation of that?

PN96

THE SENIOR DEPUTY PRESIDENT: Yes.

PN97

MR HAMILTON: Is that where Christmas Day has been gazetted as a public holiday?

PN98

MR RYAN: Yes, all we are after, your Honour is - I just gave the example of New South Wales.

PN99

MR HAMILTON: Because New South Wales I think, is the only State that has gazetted the 25th as a public holiday, Victoria hasn't.

PN100

MR RYAN: According to our information, David - - -

PN101

MR HAMILTON: Go for your life, mate, I know Victoria hasn't.

PN102

MR RYAN: All right, no, that is correct, the situation in New South Wales is that the 25th, 27th and 28th are public holidays; in Victoria it's the 26th, 27th and 28th; South Australia it's the pure 27th and 28th, there is nothing on Christmas Day or the actual Boxing Day, now as we said, we take the cards as they fall, David.

PN103

MR HAMILTON: No, no, that's fine.

PN104

MR RYAN: The ACT is the same as New South Wales; WA has gone very generous before the election, they got the 25th, 26th, 27th and 28th; Tasmania again, is purely the 27th and 28th and that's the same in the Northern Territory.

PN105

MS DALEY: Queensland?

PN106

MR RYAN: Yes, I missed, yes - and Queensland. So that's the same as New South Wales, the 25th, 27th and 28th.

PN107

MR HAMILTON: All right.

PN108

MS DALEY: Okay.

PN109

THE SENIOR DEPUTY PRESIDENT: I have to say, Mr Ryan, my inclination is to do little more. What you may persuade Mr Hamilton to do and what would be reasonable given the lateness of the hour, is really such as to not incline me to reduce this interpretation that looks like a recommendation directed to Mr Hamilton. The fact is your members do not lose an entitlement to be paid in the event they are incorrectly paid but as well know, that might be another place and another day or it might be an issue that can re-visited again in the New Year in the context of re-enlivening this dispute to consider circumstances of employees that you say were not properly paid. But for today, I don't think I would go much further, do you press for me to do so?

PN110

MR RYAN: I am always reluctant to press a member of the Commission to do something they don't want to do, your Honour, so I won't.

PN111

THE SENIOR DEPUTY PRESIDENT: It's always a difficult brief isn't it, Mr Ryan?

PN112

MR RYAN: Well, I always know this, your Honour, I will be back before you some time in the future, so I don't press for something that with a bit more time I would have pressed for.

PN113

THE SENIOR DEPUTY PRESIDENT: Mr Hamilton, it may not be the interpretation that fits happily with what you had believed however, it is mine on the submission made today but I do not propose to do anything more than I have done thus far and make that observation. The transcript of this hearing has been prepared here in Sydney and in the New Year it will be available but I make no recommendation to you however, I am sure that Mr Ryan will try and persuade you about what might be the consequences of the observation I have made. Before I adjourn, Mr Hamilton, do you wish to say anything?

PN114

MR HAMILTON: No, your Honour, I will have to seek instructions from my principals and I think I will leave it there.

PN115

THE SENIOR DEPUTY PRESIDENT: Yes. Happy Christmas to you all, the Commission now adjourns.

ADJOURNED INDEFINITELY [10.41am]