C2005/5894, Transcript of Proceedings [2006] AIRCTrans 560 (5 April 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 14591-1

COMMISSIONER THATCHER

C2005/5894

APPLICATION BY LIQUOR, HOSPITALITY AND MISCELLANEOUS UNION-WESTERN AUSTRALIAN BRANCH
s.113 - Application to vary an Award
(C2005/5894)

PERTH

1.41PM, TUESDAY, 21 MARCH 2006

Continued from 16/3/2006

PN1

MS E PALMER: I appear on behalf of the LHMU.

PN2

MR J UPHILL: I continue my appearance on behalf of Chubb Security Personnel.

PN3

THE COMMISSIONER: There has been a number of photocopies that were emailed or received I think from the LHMU, as to the nature of the claim and what parties have attempted to do I think, is to incorporate those into a draft document which was emailed to both yourself and to Mr Uphill this morning.

PN4

MS PALMER: Yes.

PN5

THE COMMISSIONER: That doesn't mean to say that the Commission endorses them. We were just trying to put them in the format for ease of reference. So that's the document I'm looking for. As I understand it, if that is what you say, it's necessary for you, Ms Palmer, to seek leave to amend your application in a number of respects. Just tell me if I'm right because my understanding is that that would be in respect of the new 10.1.6(b), the new 10.3.3(b).

PN6

MS PALMER: Is that 10A.3.3?

PN7

THE COMMISSIONER: Yes, 10A, that's right - 10A.3.3(b), and moving right over, it's the new 23.2A.4, which I think is unremarkable except for the last sentence.

PN8

MS PALMER: That's correct.

PN9

THE COMMISSIONER: Is that what you're seeking, leave to amend your application in that respect?

PN10

MS PALMER: Yes. Actually there was another matter. It might have been amended in the previous hearing. That was 19.11, carry over of - -

PN11

THE COMMISSIONER: Yes. I think I amended that on that last occasion.

PN12

MS PALMER: You did? Right.

PN13

THE COMMISSIONER: Leave is granted to amend in those three respects.

PN14

MS PALMER: Thank you.

PN15

THE COMMISSIONER: I think on the last occasion Mr Uphill foreshadowed he wanted to make some general submissions and it would seem to me that without relieving the union of the onus to make out its case, the best way of proceeding might to hear from you Mr Uphill, hear from Ms Palmer on that general issue and in the light of what takes place - and I'm not sure what will take place, we can then look at the - if something - depending on what happens we can look at the individual nature of the individual clauses. Is that acceptable?

PN16

MS PALMER: Yes, that is acceptable, thank you.

PN17

THE COMMISSIONER: Okay, then, Mr Uphill.

PN18

MR UPHILL: Thank you, Commissioner. I might deal with the threshold issue that we wish to put. Firstly, I observe that this is an application pursuant to section 113 of the Workplace Relations Act which seeks the insertion of family leave provisions and it's an amendment that is certainly capable of being dealt with under that section of the legislation. As has already been noted, the onus is very clearly on the union to demonstrate why there ought to be a change to the award and for Ms Palmer to make out her case. But we do put forward the threshold issue and that is that we are opposed to the award being varied. We're opposed to any variation to the award related to family leave provisions.

PN19

THE COMMISSIONER: Did you limit that to the family leave provisions?

PN20

MR UPHILL: I should perhaps more correctly say and also the notice of termination provisions. We do have a specific objection to the content of that change and it may be more appropriate if I indicate that we have a total objection to any variation to the award. That is an objection based upon section 111(1)(g) of the existing legislation. There are essentially three elements to our objection. There may well be some elements that overlap but the principal area of objection is first being in regard to the public interest. Secondly, we say that there is no need for amendments to the award. Thirdly, we say that amendments to the award and not desirable.

PN21

I might start with the public interest argument. The applicant union is I think likely to rely on the existence of various Full Bench decisions related to family leave provisions to establish that there is a test case standard that they wish to have inserted into this award. On the face of it, that might seem to be a fairly attractive argument and while we obviously need to take account of Full Bench decisions, in my view we need also to consider the wider public interest, and especially how that wider public interest impacts on the claim. What I say is that the public interest factors are far broader and outweigh, in my submission, the practice that there may have been in this Commission, for single Commissioners to follow Full Bench decisions.

PN22

The reason for that is that the public interest considerations are specifically contained within the existing Workplace Relations Act 1996. However, of course the practice of giving effect to Full Bench decisions is not an obligation that arises under the legislation as such and so that's why we believe that the public interest considerations are far broader than those considerations that flow from giving effect from Full Bench decisions.

PN23

THE COMMISSIONER: Mr Uphill, are you familiar with the High Court decision in Phonograms case?

PN24

MR UPHILL: Not offhand, Commissioner, no. If I can develop that argument a bit further - and what we say, Commissioner, is that the public interest is reflected in decisions of parliament, and while I'm not here of course to debate the advantages and disadvantages of the new Work Choices legislation, it is legislation which nevertheless does take effect next Monday and that Work Choices legislation is clearly a decision of parliament and I would submit that it's a manifestation of the public interest. So it's necessary to consider the legislation and what it involves.

PN25

Commencing that review, I think it becomes clear that anyone looking at that legislation that things such as personal leave, carers leave and parental leave become part of the Australian Fair Pay and Conditions Standard. They're extensively dealt with at sections 93 to 94 of the legislation. Those two sections are very extensive in entitlements and issues that relate to those three types of leave. It's also - - -

PN26

THE COMMISSIONER: I didn't bring my Act around with me but there's also provision in the Act, isn't there, for certain aspects of those provisions at least to be carried forward in awards. I think it's conditional.

PN27

MR UPHILL: Absolutely. I don't quarrel with that but it's a question of how they're carried forward and I need to address that in my submissions.

PN28

THE COMMISSIONER: I see.

PN29

MR UPHILL: Matters such as personal, carers leave and parental leave are to be removed from awards as Work Choices legislation very clearly indicates that they are not allowable award matters and that's to be seen at section 116 of the Work Choices legislation.

PN30

THE COMMISSIONER: You're not saying they should be removed from awards, you're saying new awards won't be containing those provisions?

PN31

MR UPHILL: I'm saying that in the not too distant future those provisions will be removed from awards. They are no longer allowable matters.

PN32

THE COMMISSIONER: Yes.

PN33

MR UPHILL: The provisions related to personal leave, carers leave and parental leave that are currently found in awards of this Commission will be preserved temporarily, and they'll be preserved until a decision is taken as to how they will be removed and that's what is said in section 117 of the Work Choices legislation. It is perhaps a little ironic that we're here this afternoon to decide today or in the next few days whether or not there should be amended personal leave, carers leave and parental leave provisions that go into this award, and yet at the same time there is an award review task force that is currently deciding how those types of provisions will be removed from awards if as a result of these proceedings they are in fact inserted or amended clauses are inserted into the award.

PN34

That award review task force is due to report very shortly. It's due to report at the end of this month, so within nine or 10 days it will report and a decision will be made by the Minister as to how to give effect to the recommendations of that review task force. Section 117B of the Work Choices legislation indicates that a preserved award entitlement - - -

PN35

THE COMMISSIONER: Sorry, what's that, 117 - - -

PN36

MR UPHILL: Section 117B indicates that a preserved award entitlement continues if it is more generous than the Australian Fair Pay and Conditions Standard. One of the preserved award entitlements - and the issues are those three issues that concern us today: the personal, the carers and the parental leave. So they are clearly preserved award entitlements. They continue if they are more generous than the Australian Fair Pay and Conditions Standard.

PN37

THE COMMISSIONER: So your solution is not one of jurisdiction. Your submission is one of discretion, is it, that in weighing this matter up I should give considerable weight to the fact that Work Choices legislation is coming in from next Monday?

PN38

MR UPHILL: That's right, yes. Regulation 10.3 of the legislation indicates a definition of what is more generous - the words "more generous" - how they are to be interpreted. The words "more generous" only relate to the quantum of leave that there might be in a leave entitlement. They don't relate to all of the other factors, factors such as - well, one of the issues which is going to be in dispute this afternoon, that's the length of notice to be given when a person is returning to part-time employment after maternity leave.

PN39

So, all of those types of peripheral issues are not matters that will be preserved as part of the Work Choices legislation. I deliberately go through these issues because - - -

PN40

THE COMMISSIONER: I'm just trying to get this clear. When you just said that that's going to be disputed, that's because it's disputed that it won't flow on? There's no dispute that what the union sought is a length of time similar to the model clause.

PN41

MR UPHILL: Absolutely.

PN42

THE COMMISSIONER: So you're making the point that it's not just once - your objection is not just about the quantum, it's about these other ancillary arrangements, is it?

PN43

MR UPHILL: Yes.

PN44

THE COMMISSIONER: Because I notice that the award as it currently stands, for example, has 12 days when the union refers really to 10 and two or similarly there's no really - as far as family provisions go, sick leave and parental leave, there's no change in the quantum.

PN45

MR UPHILL: No, that's right.

PN46

THE COMMISSIONER: They're already in the award.

PN47

MR UPHILL: Yes, that's right and if the award had have provided a greater entitlement then that would be preserved under my understanding of the Work Choices legislation.

PN48

THE COMMISSIONER: I'm just trying to understand your public interest argument because the union isn't really asking for say additional lengths of time or lesser lengths of time that the employer may be required to give notice to terminate an employee's service. It's the same. And in respect of what I call personal leave or parental leave the union is not seeking any changes to the quantum of what's already in the existing award. So your argument somehow or other has to be other than the quantum in those areas.

PN49

MR UPHILL: Right. I'm obliged to take account of what will happen with the quantum over future months. But certainly I recognise that the existing award clauses are very comprehensive and we would say that there is really no need for them to change. There is no benefit to employees, we say, in making the amendment that the union is seeking to make here today. That has regard to all of what might be termed peripheral issues to the quantum. If those peripheral issues that the union seeks to put into the award are subsequently put in, in my submission they will only be temporary changes to the award. The Work Choices legislation will effectively remove those in the not too distant future and it seems to me it's not in the public interest to do something which really does, in my submission, circumvent the intent of the Work Choices legislation.

PN50

I might turn to the second aspect of our submissions and that goes to whether or not there's a need to amend the award. It obviously focuses upon some of the issues that were discussed a little while ago. What we say Commissioner, is that there really is no need to change the award provisions. We don't believe that the union will be able to bring any evidence or demonstrate any problems with the award as exists at the moment and clearly, in our submission, the award clause is appropriate for the industry that we're considering here this afternoon. The existing award provisions are perhaps worthwhile just very quickly considering. Firstly, clause 21 deals with personal leave.

PN51

THE COMMISSIONER: So I'm looking at the award?

PN52

MR UPHILL: Yes. Clause 21 deals with personal leave. The first part of that, clause 21.1, talks about the availability of personal leave, a range of issues, sick leave, bereavement leave and carers leave - nothing particularly special about that. As you observed a while ago, it talks about 12 days personal leave in the first year of service and subsequently and there's also in 21.14 reference to the accumulation of personal leave without any limitation. If we go through the remainder of the - - -

PN53

THE COMMISSIONER: But there is a difference there, isn't there, because this is 12 whereas the union's application wants - it's not just asking for 10 plus two for bereavement, it's 10 plus two for bereavement on each occasion. So it could be 12, it could be 14, it could be 16, depending upon how many people die, isn't it?

PN54

MR UPHILL: The existing award, 21.4 talks about two days personal leave as bereavement leave on each occasion so it could be 2, 4, 6 if you're unfortunate enough to lose family members.

PN55

THE COMMISSIONER: I'm looking at 21.1.2(a) and I'm assuming, and I understand that that 12 includes two for bereavement because the union is seeking that that goes back to 10.

PN56

MR UPHILL: Yes. But I also note, Commissioner, that 21.4 of the award dealing with bereavement leave itself talks about two days personal leave on each occasion, so I'm not sure that there's much of a difference there.

PN57

THE COMMISSIONER: Isn't that coming out of the 12?

PN58

MR UPHILL: Absolutely, yes.

PN59

THE COMMISSIONER: So what I'm trying to say is if you had three bereavements you'd only end up with six days for what we call sick leave and carers leave, whereas under the union's application, as I understand it, perhaps they would still get the six days for bereavement leave but they would have the 10 days for what we call sick leave and family/carers leave.

PN60

MR UPHILL: That may well be the case, Commissioner.

PN61

THE COMMISSIONER: I'm just trying to show that I think there is an increase. I think the union is seeking a flow on of the Full Bench decision, as I understand it.

PN62

MR UPHILL: Yes.

PN63

THE COMMISSIONER: It does have some benefits in quantum. I didn't mean to mislead you earlier when I was referring to the increases. I think there is an increase here.

PN64

MR UPHILL: Yes, okay. Certainly there is a discrepancy when we come to look at 21.5, carers leave. The award talks about employees are entitled to use up to five days personal leave and the Full Bench decision I think talks about 10 days. So there is a discrepancy there. It is the only change as part of the claim was to increase the carers leave to 10 days rather than five. I may well have a different attitude to that aspect that the claim goes a lot wider than that. I think the submission from - the purposes that I wish to demonstrate is that the clause in the award is not a clause which is well and truly out of date. There may well be issues where there is an opportunity for a higher entitlement, but I think also there needs to be some information about the circumstances of the industry and whether or not this is a fundamental issue in the issue.

PN65

THE COMMISSIONER: Yes.

PN66

MR UPHILL: And it's my submission that it is unlikely that there is any pressing need, in our view, to amend the existing award provisions. The parental leave clause in clause 23 is fairly extensive, it runs for a number of pages. It not only deals with maternity leave, parental leave, adoption leave, but also a range of other factors which relate to transferring to a safe job, returning to work after a period of parental leave, all of those sorts of issues that are contemporary arrangements and entitlements for employees who need to take parental leave. The point I make, Commissioner, is that the award clause is in a condition which indicates on my perusal of it that it's not a bad clause. It has served employees and the industry fairly well and it's not one that, in my submission, calls out for some radical changes.

PN67

We would submit that it would be enormously difficult for the union to find any person who would benefit from the clause that they seek to insert going into the award. We suggest that while the union may wish to pursue this change because of policy considerations - - -

PN68

THE COMMISSIONER: Which clause are we talking about?

PN69

MR UPHILL: The clauses related to personal leave, carers leave, and also parental leave. We say that it will be hard for the union to demonstrate that there will be employees who will gain from those clauses given, as we said earlier, that these clauses will be fairly temporary in their duration, that the effects of the Work Choice legislation will be such that in our opinion there is very little point making the changes that the union seeks to have incorporated within the award.

PN70

There is also the question of the desirability of making the changes that the union seeks. This is the third aspect to our submissions. The provisions that relate to leave, whether it's personal leave, carers leave or parental leave, are extensive provisions. They run to some dozen pages or so. We don't see that that is an appropriate way to deal with the issues. There may well be other ways to deal with it but we don't believe that those provisions ought to be matters that come into the award, especially given that the award itself, which contains a whole range of issues, does so in a comprehensive way in a lot shorter detail than what it would seem to be the union has been able to suggest by way of provisions that deal with what are leave entitlements of a fairly confined nature.

PN71

THE COMMISSIONER: I understand your first point, public interest, Work Choices coming, consideration should be given. Your second point is that the award stands well, it's not a bad clause and it's going to be hard for the union to demonstrate that the employees will benefit. I understand that point.

PN72

MR UPHILL: Yes.

PN73

THE COMMISSIONER: I'm having trouble grasping this third point about desirability.

PN74

MR UPHILL: Commissioner, I suggest that there may well be other ways to achieve the result that the union seeks. We say as a matter of convenience it is not desirable that we substantially add to the award in a way where we're adding a dozen pages on an issue which is relatively narrow and we're adding clauses which may well be difficult, not only for employees to comprehend but also for employers to comprehend. We say that the award up until now has been able to deal with a far more significant range of employment issues in a lot more condensed fashion and in our view it's not desirable that we further complicate the award by inserting provisions which are, in our view, cumbersome and ought to be able to be dealt with in a far more concise way.

PN75

The main submission, Commissioner, is of course that there should not be any variation to the award for the three reasons that I have outlined. I'll perhaps stop there and see if that's an appropriate time before moving on to deal with the content of any award variation to perhaps at this stage see whether or not it's appropriate that Ms Palmer respond to those submissions.

PN76

THE COMMISSIONER: What's your attitude that the Commission deal with that as a preliminary issue and then, subsequent to which way it goes, if that submission is accepted we all go home; if that submission is not accepted there needs to be detailed submissions in respect of individual clauses.

PN77

MR UPHILL: We're happy to have the preliminary matter dealt with first.

PN78

THE COMMISSIONER: We'll proceed on that basis. Ms Palmer, what I'm seeking is that you might respond to the general issue that the application be dismissed in its entirety in that the award should not - there should be no flow on of the various test case decisions.

PN79

MS PALMER: Yes, I would agree that it should be dealt with as a preliminary matter.

PN80

THE COMMISSIONER: Good. Are you in a position to respond now to Mr Uphill's submissions on that matter?

PN81

MS PALMER: Yes. Could I request a short adjournment of about 10 minutes?

PN82

THE COMMISSIONER: 10 minutes. Yes, I can accommodate that. I'll be back in 10 minutes. Thank you very much.

<SHORT ADJOURNMENT [2.11PM]
<RESUMED [2.32PM]

PN83

THE COMMISSIONER: Thank you. Yes, Ms Palmer?

PN84

MS PALMER: I'd like to address each of the respondent's arguments one by one.

PN85

THE COMMISSIONER: Yes, Ms Palmer.

PN86

MS PALMER: But first I'd like to note that while he made arguments with respect to personal leave, parental leave and annual leave, none of his arguments seem to relate to termination and redundancy.

PN87

With regard to the argument that it's not in the public interest to allow these variations to the remainder of the application, I find it curious if the application would be of no benefit to anybody and only be temporary why there's a need to object and why it would be a detriment to the public interest for these variations to occur. If we're going to have regard to Work Choices, Work Choices clearly provides for the preservation of these entitlements, thus it is not contrary to Work Choices to include them for as long as they are preserved.

PN88

We have no way of knowing how and when preserved entitlements will be dealt with. That is a future thing. The award review task force has not issued its recommendations on how and when that will happen so we should assume, as per the provision in Work Choices, that these entitlements should be included and allowed to continue for as long as they are preserved. The issue at hand is that the Commission use its powers it has now to flow on the decision of the Full Bench.

PN89

THE COMMISSIONER: I was just thinking about the National Wage Case. The Commission did make a decision that it wasn't going to proceed because of the Work Choices legislation, didn't it? Why is that different to this one, do you say?

PN90

MS PALMER: I have to admit I'm not familiar with what happens with wages. I just know that these entitlements, parental, personal leave and annual leave, are preserved entitlements and that the Act intends for them to be preserved entitlements and allows for that to happen.

PN91

THE COMMISSIONER: I think I hear what you're saying. In the National Wage Case there was a clear understanding that something was going to happen very shortly, a timetable for that whereas you're saying in this respect it's a bit unknown?

PN92

MS PALMER: Yes, that's correct.

PN93

THE COMMISSIONER: I see.

PN94

MS PALMER: I believe that the Commission has a duty to exercise its jurisdiction in accordance with the legislation current at the time of the hearing. I don't think that the future legislation puts on the Commission an obligation to curb its current powers.

PN95

THE COMMISSIONER: I don't think that was his argument though. I think his argument was not that I didn't have the jurisdiction, he was saying that that should be taken into account because it's coming next Monday, so in the exercise of jurisdiction one should have regard for that and give great weight to that, and you're saying one shouldn't.

PN96

MS PALMER: I just believe that the legislation has not commenced and it would be inappropriate for the Commission to act as if it has, particularly given that the Act does allow for the preservation of these entitlements and so I think that the intentions of the Full Bench should be given regard to so that they can form part of those preserved entitlements and part of the minimum safety net. I mean, if anything, perhaps Work Choices is reason to expedite the matter to ensure that the employees covered by this award enjoy the provisions of the test cases as intended by the Full Bench and as has happened in similar applications heard as recently as last Friday, less than five days ago.

PN97

If we are having regard to the new legislation section 44D asks that the Commission take account of the Family Responsibilities Convention particularly section 44DB, helping workers to reconcile their employment and family responsibilities. Section 44A does ask that the Commission take into account the public interest and one of the ways that it defines the public interest is to ensure that the objects of the Act are met. Section 115 of the new Act which deals with awards says that:

PN98

The object of the legislation is to ensure that minimum safety net entitlements are protected through the award system.

PN99

This application seeks to flow on the effects of two Full Bench decisions that set new minimum standards to ensure that these standards become part of that minimum safety net as is the intention of the Full Bench.

PN100

Just to summarise on that point of public interest, it's not contrary to Work Choices if we're defining public interest in terms of what the parliament has legislated with Work Choices to include these provisions for as long as they are preserved. In terms of whether it is necessary or desirable to make these variations, the respondent suggested that it would not be necessary and that it would not be of any benefit in terms of personal leave. It is of benefit in terms of how personal leave is accessed. So, for example, for carers leave it's accessing 10 days instead of five days. For sick leave it's accessing the full entitlement and also there is a new provision regarding casuals and the rights of casuals.

PN101

In respect of the parental leave and annual leave clauses, the respondent suggested that these clauses are comprehensive, contemporary, not a bad clause, and not in need of any radical changes, which is why the only changes that we are making are to add a couple of additional clauses, parental leave, the right to request, and communication during parental leave, and annual leave, taking annual leave in single days, and the carry over of annual leave. All of these amendments are as per the standard so it's not a radical change. It is recognising how comprehensive the existing clause is.

PN102

In terms of the criticism that the format of the clauses, particularly personal leave, is cumbersome and not an appropriate way to format the clause, the clause has been formatted as per the Full Bench standard. This is how the Full Bench considered it would be an appropriate way to deal with personal leave. Furthermore, this application was filed on 12 December and there was time to negotiate on the format of a clause if the respondent had chosen to do so.

PN103

THE COMMISSIONER: What did the applicant do about conferring with the respondent?

PN104

MS PALMER: I contacted the respondent some time around Christmas and spoke to Daniel Lee and I was under the impression that they would get back to me. They didn't do, and then I contacted Mr Uphill prior to the hearing on 9 March.

PN105

THE COMMISSIONER: It's always good when you're making these contacts and "under the impressions" to confirm them in writing, I think. I have been around in the industrial relations scene for a long time and - - -

PN106

MS PALMER: They were actually sent by email.

PN107

THE COMMISSIONER: - - - now we can confirm these things by email.

PN108

MS PALMER: They were by email. I do have the emails in this file.

PN109

THE COMMISSIONER: Yes.

PN110

MS PALMER: Would you like them?

PN111

THE COMMISSIONER: No, I don't want to see the emails. No, I'm just looking for you to continue with your submission, that's all.

PN112

MS PALMER: Sorry. No, I have nothing further to say.

PN113

THE COMMISSIONER: I think what I'll do is just take 10 minutes and just think about it and if it's possible I'll come back and tell you which way I'm going. Thank you. This matter is adjourned until I'm back in a while.

<SHORT ADJOURNMENT [2.40PM]
<RESUMED [2.52PM]

PN114

THE COMMISSIONER: Thank you. I have given consideration to the matter and I have made a decision which I'll just record in the transcript.

PN115

The LHMU has made an application pursuant to section 113 of the Workplace Relations Act 1996 to vary the Security Officers Western Australian Award 2002. Chubb Security, a major respondent to the award, has submitted that the Commission should refrain from varying the award to adopt arrangements that flow from the redundancy cases decisions and the Family Provisions decision. Having considered the submissions and my statutory responsibilities, including section 90 of the Act, I can indicate that I'm not persuaded by the arguments advanced in respect of the first submission from Mr Uphill. I intend to proceed on the basis of the legislation that exists today.

PN116

In any case, his submission ignored aspects of the union's claim that it will not be affected by the Work Choices legislation, for example, increased redundancy payments for large employers. Also, I'm not convinced that the provisions that relate to annual leave, personal carers leave and parental leave on which he focused will not, at least in certain respects, be regarded as being more generous that the Australian Fair Pay and Conditions Standard.

PN117

In respect of his second submission, I do not accept that there will be employees who would benefit from the provisions. Some examples are in the increased quantum of carers leave, new entitlements for casual employees, increased redundancy standards and more flexible annual leave entitlement. Also I do not find the last argument convincing. Most of the clauses sought are similar to those in the model clause provisions and those that appear in many other awards. If I felt that there were any cumbersome or difficult to comprehend provisions that should be raised in the context of consideration in respect of any clause or offending clause or subclause.

PN118

Therefore, I have decided to exercise my discretion to dismiss the objection to a general flow on of those test case standards to the award. Of course, in saying that I'm open to hearing argument why any of the particular provisions sought by the applicant should not be granted or should be modified given - and I won't go into those in full but obviously clause 30 of the redundancy case supplementary decision provided for variations to the model clause provisions to be permissible and it said:

PN119

Generally, only when the variation is necessary in order to accommodate the individual circumstances of particular industries or for drafting clarity in a particular award context.

PN120

Also, the agreement arising from conciliation with peak bodies in the Family Provisions test case set out at clause 3 of appendix A that whilst the model provisions are set out, the rights of all employees are reserved to seek to tailor such provisions to existing award structures and concepts including to avoid a diminution of access to leave for caring purposes. Unless either of the parties makes a request to the contrary I will not publish a written decision with detailed reasons. However, at this stage it is appropriate to indicate that my reasons also include but are not limited to the following seven.

PN121

Firstly, section 106 of the Act which provides that:

PN122

After principles about the making or varying of awards have been established by a Full Bench, the power of the ...(reads)... of the section or are consistent with principles by a Full Bench after the commencement of this section.

PN123

Secondly:

PN124

Principle 4 of the Statement of Principles attached to the Commission's safety net review -

PN125

And I won't go into that further. I'm sure that the advocates know what I'm talking about there, to the effect that if there is to be a disagreement about a Test Case Standard, a party should make an application pursuant to 107 and no such application under 107 has been made by Chubb Security.

PN126

In respect of following Full Benches generally, I had regard to the decision of the High Court in Phonogram's test case decision, which is a 1982 decision. It appears in 148 CLR at 600 where I think the general gist of that to me is that a Commissioner should have regard to what a Full Bench might determine and have particular regard to that in relation to as to whether or not Full Bench decisions should be departed from because consistency is an important protection for those affected by orders and proceedings of the Commission.

PN127

Fourthly, the issues that had been raised by Mr Uphill are not unique to employers covered by the award. Many of the issues that have been raised would apply to other employers bound by awards of the Commission that have been and continue to be varied to reflect the test case standards. Fifthly, there has been no evidence to suggest that employers in the security industry elsewhere in Australia are not in a position dissimilar to employers bound by the award, although I would take it that I understand that that wasn't really an argument being asserted by Mr Uphill today. It was more based upon the timeliness I think in respect of the oncoming Work Choices legislation.

PN128

Sixthly, Chubb Security is not the sole respondent to the award, although it may be largely unconscious that there are also approximately 70 employer respondents to the award. Lastly, I'm not satisfied that the issues raised would outweigh the decisions of the Full Benches which have had regard to the public interest. On that basis I propose to proceed to hear the application on its merits based upon the individual clauses of the agreement.

PN129

MS PALMER: Could I please clarify the order of proceedings from now on?

PN130

THE COMMISSIONER: Yes. The onus is on you now to speak to the clauses that you wish to pursue and in particular any that - suppose at this stage any in particular that depart from the model clauses and I think I have highlighted at least two that I'm aware of, although Mr Uphill might raise more.

PN131

MS PALMER: Well, in general the application is, as we know, amending the award to implement the decision of the Full Bench in various test case decisions. The standard set out in the termination change and redundancy case improves wages and conditions primarily by extending the severance pay scale and by instituting a redundancy disputes procedure. That deals with workplace change. The standards set out in the workplace balance test case - it's to improve workplace flexibilities so as to enable employees to better balance in their family obligations with their work responsibilities within the operational requirements of the workplace.

PN132

This is achieved by altering the personal, parental and annual leave provisions. This variation is in accordance with principle 4 of the statement of principles and is pursuant to section 113 of the Workplace Relations Act. There are a few clauses in which we seek to - - -

PN133

THE COMMISSIONER: If I'm acting under principle 2. The Full Bench can go under 4 but I'll just be content with going under principle 2.

PN134

MS PALMER: Okay. There are a couple of places where we seek to amend - vary from the standard. The first - - -

PN135

THE COMMISSIONER: Yes, and I think I've alluded to the words of those Full Benches.

PN136

MS PALMER: Yes.

PN137

THE COMMISSIONER: So you should be very conscious that there is some significant onus on you to prove whatever that is.

PN138

MS PALMER: So with regard to the notice provision it's 10.2. The notice required to be given by employees - I mean terminating the employment, as you have mentioned, paragraph 30 of PR06/2004 indicates that the application of the standard should have regard to the circumstances of the industry. It is our argument that lengthy notice periods from the employee are not necessary - - -

PN139

THE COMMISSIONER: Sorry, which did you just - what are you quoting to me?

PN140

MS PALMER: Paragraph 30, that:

PN141

Variations can be made only when necessary to accommodate the circumstances of particular industries -

PN142

THE COMMISSIONER: Yes. So there are two things there, aren't there:

PN143

- only when necessary to accommodate the individual circumstances of particular industries or for drafting clarity.

PN144

MS PALMER: Yes.

PN145

THE COMMISSIONER: So we could rule out drafting clarity?

PN146

MS PALMER: In this instance, yes.

PN147

THE COMMISSIONER: Yes, when it's talking about this particular one.

PN148

MS PALMER: Yes. With regards to 10.2 you can rule out drafting clarity. I'm talking about the individual circumstances of the security industry.

PN149

THE COMMISSIONER: Yes.

PN150

MS PALMER: And my argument is - - -

PN151

THE COMMISSIONER: So the individual circumstances of the security industry which relates to employees covered by this award are such that there must be a departure from the model clause, termination provisions for employees.

PN152

MS PALMER: Yes.

PN153

THE COMMISSIONER: Yes, okay. I'll be interested to hear why this is so.

PN154

MS PALMER: Well, I would argue that in the context of the security industry it's neither necessary nor appropriate to expect employees to provide such lengthy notice periods. Workers employed in this industry are not of such a classification as to require them to participate in the training of replacement staff for greater than 2 weeks and, in any event, it is the employer's responsibility to induct a new employee into the job's routines and requirements.

PN155

Similarly, and this is crucial, it is not likely that they would be required to complete any project or task that would take more than 2 weeks as work is performed on a day-to-day basis. There is no carry over of tasks. Further, in this low wage high turnover industry suitably qualified replacement staff are not difficult for the employer to source. When an employee has resigned to accept a new position, placing an unreasonable burden on them restricts their trade unfairly and there is a risk that the new employer will not hold the job for an extended period which would unfairly disadvantage the employee.

PN156

A reciprocal notice provision thus places a harsh and unfair burden on the employee and the employer has a greater capacity than the employee to cope with the imposition of such notice requirements. So I guess the key points are that within the circumstances of this particular industry work is performed on a day-to-day basis with no carry over of tasks. There is no shortage, and there's no labour shortage that could pose a problem. They are really the two key issues.

PN157

THE COMMISSIONER: Can you sort of refer me to other federal awards covering the security industry where this has been taken into account in arbitrated decisions? Is there any precedence that I should be following?

PN158

MS PALMER: Not that I know of, no.

PN159

THE COMMISSIONER: Do you know whether the security industry federal award in other areas provide for similar notice periods?

PN160

MS PALMER: No, I'm sorry, I don't, but I do know that this is a standard clause in a number of awards to do with low wage high turnover industries such as some of the private health awards to do with aged care.

PN161

THE COMMISSIONER: If we could deal with these one at a time, perhaps I could just ask, Mr Uphill, are you consenting to this?

PN162

MR UPHILL: No, we certainly do not, Commissioner.

PN163

THE COMMISSIONER: I see. Thanks, Mr Uphill. I think I can indicate without any further - that whilst I appreciate the reasons you have advanced, I'm still mindful of the principles from departing from model clause provisions and I don't know whether you're aware of the Full Bench decision in Global Telesales Enterprise Award 2002 of the 4 October 2004, PR952256 which said:

PN164

In our view, agreed departures from the model clause which are designed to meet the circumstances of the particular award and which do not materially affect the application of the entitlements in the model clause should be Regarded as coming within principle 2(b) and accordingly do not require reference to the President.

PN165

Taking that into account in exercising my overall discretion, I must indicate to you that I'm not satisfied that I should depart from the model provisions. The reasons include that what is being sought is materially different to the Full Bench principles and it has not been agreed. Further, I am not satisfied that the variations are necessary to accommodate the individual circumstances of this particular industry because I really don't know - I haven't heard of any precedent within the industry and the grounds on which you have stated seem to me would apply generally to the bulk of awards. There are not too many awards covering employees where there is such significant induction or training as to require the lengthy periods.

PN166

So I propose not to agree to vary the award in the terms sought in that respect. Next one?

PN167

MS PALMER: And the next one is the definition of "continuous service" which - - -

PN168

THE COMMISSIONER: That's the one that was amended at this morning's hearing?

PN169

MS PALMER: Yes.

PN170

THE COMMISSIONER: That one substantially adopts the existing provision now, doesn't it?

PN171

MS PALMER: It does. The standard doesn't actually set out a definition of "continuous service". It refers back to the original award. So I don't know if the same test applies. It almost mirrors the original award.

PN172

THE COMMISSIONER: The existing award.

PN173

MS PALMER: Yes, sorry, existing award. The only difference is the removal of the words "in advance" so that with relation to unpaid leave - sorry, I'll give you the clause number. In the original award it's 10.1.5(b) that:

PN174

Periods of approved unpaid leave provided that it has been agreed in advance between the employer and the employee that the leave will be so counted as service.

PN175

We propose that the words "in advance" be removed. So it doesn't - - -

PN176

THE COMMISSIONER: It still has to be agreed, does it, provided that it has been - - -

PN177

MS PALMER: Yes, it still has to be agreed so it doesn't substantially alter the clause. It doesn't interfere with the right of the employer to object to that period being counted for the purposes of continuous service. It just gives the employee an additional opportunity for that period of leave to negotiate that with their employer that that period of unpaid leave would be counted.

PN178

THE COMMISSIONER: What about the second part?

PN179

MS PALMER: Again, the second part doesn't materially alter the clause in the existing award. It just seeks to make it explicit that if it is not agreed that unpaid leave will count as service that it will not constitute a break in service and this is really for the purposes of drafting clarity to avoid future disputes or unfair outcomes on the basis of the misinterpretation of the clause.

PN180

THE COMMISSIONER: Yes. I'm wondering whether it does actually alter anything because - - -

PN181

MS PALMER: It doesn't.

PN182

THE COMMISSIONER: - - - it has to be approved unpaid leave so you're putting it in for clarity.

PN183

MS PALMER: The second?

PN184

THE COMMISSIONER: Yes, the second one.

PN185

MS PALMER: Yes. It's just for clarity.

PN186

THE COMMISSIONER: What was the argument in support of the first one about the "in advance"? I understand that those words are being deleted but what's the argument - well, perhaps we might be able to see what Mr Uphill's attitude is but what is the - - -

PN187

MS PALMER: The reason for removing?

PN188

THE COMMISSIONER: Yes, "in advance", when it still, if it has - - -

PN189

MS PALMER: It provides the employee more opportunity to negotiate that with their employer. I think there's a real risk that an employee would be aware of the need to have secured agreement in advance at the time that they're taking unpaid leave and then we're talking about the time that they're being terminated and made redundant and there could be a significant break between someone applying for unpaid leave. They're probably not thinking that, "Way down the track I might be terminated or made redundant. I should check that this is going to be included as continuous service".

PN190

So it's just avoiding unfair consequences that could arise out of the employee not being aware of that requirement. It doesn't actually interfere with the requirement that agreement if come to, on whether it be counted. It just extends the period in which that agreement can be formed.

PN191

THE COMMISSIONER: Yes, and that provision is then - and the same argument is then mirrored in respect of the redundancy one.

PN192

MS PALMER: Redundancy, yes.

PN193

THE COMMISSIONER: Perhaps before hearing from Mr Uphill we'll just hear what other ones you might have. There's that one, yes.

PN194

MS PALMER: Yes.

PN195

THE COMMISSIONER: That's not really a departure from the principles of the Full Bench, is it?

PN196

MS PALMER: No.

PN197

THE COMMISSIONER: This is in respect of departure from the existing provisions in the existing award.

PN198

MS PALMER: Yes, that's correct.

PN199

THE COMMISSIONER: Any more?

PN200

MS PALMER: Yes, there are two more - no, sorry, there is one more, and that is returning to work part-time from a period of parental leave. It is clause 23.2A.4.

PN201

THE COMMISSIONER: This is to do with the right to request, isn't it?

PN202

MS PALMER: Yes, it is.

PN203

THE COMMISSIONER: And this is a departure from the Full Bench model clause provision?

PN204

MS PALMER: Yes, it is, on the basis that the decision says that the rights of all parties are reserved to seek to tailor such provisions and one of the reasons for that tailoring could be to avoid a diminution of access to leave for caring purposes.

PN205

THE COMMISSIONER: Do you think this is tailoring?

PN206

MS PALMER: Well, amending - departing from. Again, it doesn't substantially change the clause. It doesn't change the obligation of the employee to notify the employer within seven weeks of returning to work. It maintains that obligation. So we don't undercut the intention of the clause.

PN207

THE COMMISSIONER: But it places an obligation. It's an additional impost I suppose on the employer, is it, too?

PN208

MS PALMER: It is but I don't expect that it would be onerous for an employer to include that as part of their standard leave application and approval process. When somebody takes leave they have to go through some kind of process with the management to apply for and get approval for that leave.

PN209

THE COMMISSIONER: So an employee applies for parental leave - and nothing to do with right of request at this stage - but notwithstanding that they take some parental leave, an employer must notify the employee of an obligation that if they make a request under 23.2A.1(c) and that happens to be granted - - -

PN210

MS PALMER: That they must make that request prior to the seven weeks before the date they are due to return to work.

PN211

THE COMMISSIONER: No, I'm just finding it a little difficult to understand. Someone could apply for parental leave, in the normal course of events take a week - I suppose it's to do with the construction of the clause because the clause, the second sentence, if it's not read that somehow or other that it's only to apply where a person is granted leave under 23.2A.1(c), that might be different than "prior to the employee commencing parental leave".

PN212

MS PALMER: No, I'm sorry. Okay, maybe it needs to be redrafted because I think you have perhaps misunderstood me. This clause is to do with when somebody is already on parental leave. They've already been granted parental leave and if they wish - - -

PN213

THE COMMISSIONER: What, under?

PN214

MS PALMER: Under the basic entitlement of the award, which is under - - -

PN215

THE COMMISSIONER: So my wife and I have adopted a child and I'm off for seven days adoption leave - - -

PN216

MS PALMER: No, sorry, 23.2.1, so the 52 weeks. It's my understanding, and maybe I'm incorrect, that 23.2A.1(c), returning from a period of parental leave on a part-time basis until the child reaches school age only refers to - - -

PN217

THE COMMISSIONER: Yes, they have been out for a fair while. I mean they could be out for years, couldn't they?

PN218

MS PALMER: Pardon?

PN219

THE COMMISSIONER: They could be out for years. They're not out for seven days. They're on leave for a considerable period of time.

PN220

MS PALMER: I thought that was at the end of their 52 weeks that they could request to return to work part-time until the child reaches school age. I didn't think it was after seven days. If they're taking one week's leave I don't think they can request a return to work part-time. I think it's if they take their 52 weeks.

PN221

THE COMMISSIONER: I don't know.

PN222

MS PALMER: Yes. It's not clear because 23.2A.1(b) definitely refers only to 23.2.1.

PN223

THE COMMISSIONER: The intention is, is it, that if a person is granted leave beyond eight weeks the employer has an obligation to advise them that if they wish to apply for parental leave on a part-time basis they must do so no less than seven weeks prior to the date when they would come back.

PN224

MS PALMER: Yes. So if the employee is applying for a significant period of parental leave then at the time of that application being made and approved, the employer notifies them that if they wish to return to work part-time they must make that request no less than seven weeks prior to the date they were due to commence work.

PN225

THE COMMISSIONER: Okay. I think I have understood that. And the reason for that being - why are we tailoring that in respect of this industry?

PN226

MS PALMER: Actually, in this decision in the family there isn't a requirement that it be circumstances of the industry.

PN227

THE COMMISSIONER: Okay, sorry.

PN228

MS PALMER: It's to avoid a diminution of access to leave and so that's what we're trying to do. I just feel that this standard is overly onerous to the extent that it could potentially have unfair consequences in its practical operation, that if you're a woman on maternity leave with a new child you could easily miss this deadline and that in fact there's a real risk that you wouldn't even be aware of the deadline in the first place because many employees don't understand their award and there is a real possibility that a woman would not even be aware of this.

PN229

THE COMMISSIONER: Okay. So this is an argument based on a possibility that if this doesn't happen there would be a diminution of access to leave?

PN230

MS PALMER: Yes, that's correct a potential diminution.

PN231

THE COMMISSIONER: And are there any other ones that you say are departures?

PN232

MS PALMER: Not that I know of, that I can think of.

PN233

THE COMMISSIONER: Is there anything else you want to say at this stage?

PN234

MS PALMER: No, thank you.

PN235

THE COMMISSIONER: Thank you. Mr Uphill, as I said at the start we have had circulated something which reflects what the union had been seeking and hopefully that reflects the current standard but you can understand in matters of this nature the Commission generally asks the parties to confer on these arrangements and to seek agreement because things like 21.3, for example, which result in transposing provisions of the current award into a new provision, are matters which it is preferable for the parties to reach agreement on rather than the Commission just coming in and making variations.

PN236

Well, I can indicate to you that in the light of your submission I propose to, in principle, vary the award to reflect and flow on the Full Bench decisions. I'm wondering where we do go from here in respect of your ability in light of that to say whether or not there are provisions in here which are objectionable to you or whether I'll be sitting here sort of ruling on every clause. There is a timely issue here.

PN237

MR UPHILL: Of course, I understand that, Commissioner. I'm not proposing to go through each clause. I only wish to make submissions on the two issues that you have been discussing with Ms Palmer.

PN238

THE COMMISSIONER: Okay.

PN239

MR UPHILL: That firstly is in regard to the definition of "continuous service" which is - - -

PN240

THE COMMISSIONER: It's in two places - 10.1 - - -

PN241

MR UPHILL: It is, that's right, principally at 10.1.6(a).

PN242

THE COMMISSIONER: Yes.

PN243

MR UPHILL: There has been a minor change to 10.1.6(b)(ii). I have to say that - - -

PN244

THE COMMISSIONER: Sorry, 10.1.6(b)(ii), I don't have that. I'm looking at this thing which came - circulated this morning, is that right?

PN245

MR UPHILL: Yes.

PN246

THE COMMISSIONER: Which page is it on?

PN247

MR UPHILL: It's on page 2 at the bottom.

PN248

THE COMMISSIONER: 10.1.6(a), (b). Okay.

PN249

MR UPHILL: Yes. This is the clause that you discussed with Ms Palmers where the words - - -

PN250

THE COMMISSIONER: "In advance".

PN251

MR UPHILL: - - - "in advance" were removed. We don't believe there is any need to remove those words. We're not impressed by the argument that has been put forward by the argument. We would move that the clause functions quite adequately as it is. And over the page, at the top of the page, 10.1.6(b), Ms Palmer indicated to you that all it is meant to be is a further statement of what actually currently applies. We think that's right. It doesn't change anything and we just query whether or not there's any need for that to go in. It doesn't achieve anything, in our view. It just states what currently applies.

PN252

THE COMMISSIONER: What's the argument about getting rid of the words "in advance"? Because it does mean a difference, doesn't it? She's saying obviously it has to be agreed but when someone applies for leave they don't necessarily know they're going to be terminated or made redundant down the track and they don't necessarily have that in the foremost of their mind, you see.

PN253

MR UPHILL: So it allows agreement at some later stage.

PN254

THE COMMISSIONER: It's still an agreement.

PN255

MR UPHILL: Yes.

PN256

THE COMMISSIONER: I mean, I have some sympathy because of that - a person doesn't know, doesn't think, they're not - when they're off applying for leave or something they don't actually have that in the foremost of their minds and I'm sort of a bit inclined that way, if you don't take a really hard line with it, you see.

PN257

MR UPHILL: Commissioner, it's not a matter on which I'd die in the ditches over.

PN258

THE COMMISSIONER: Okay.

PN259

MR UPHILL: The other area is perhaps a matter of more fundamental objection and that's 23.2A.3. Fundamentally our view is that if there is going to be these types of provisions in the award then obviously they need to be mirror images, we say, of the Full Bench clauses unless there is a compelling reason to depart from it. In my submission, the reasons advanced by the applicant are far from compelling. The argument is really a general argument that was put up and that was that we need to make some changes to stop potential diminution of leave. That arguably is something that a Full Bench ought to have considered. It's not something that really goes to tailoring this clause to the circumstances of this industry.

PN260

It's a far more comprehensive argument and if that was to be addressed it really ought to have been addressed in Full Bench proceedings. But fundamentally we object to it because it does impose an additional obligation on the employer, one that we think ought not to apply. Our fundamental view, Commissioner, is that if the applicant wants to insert test case standards then it ought to do that. It ought not be in a position to pick the eyes out of what it likes or amend or add to the test case standard. It really has to accept that that Full Bench decision and the order that emanates from it in its entirety without trying to modify it in a way which is not really tailored towards the circumstances of the industry. If it please the Commission.

PN261

THE COMMISSIONER: Mr Uphill, before you sit down, regarding these clauses - clause 21.3, for example, which really doesn't do much - after the first clause doesn't do much other than try to adopt - well, the Full Bench decisions really say that this is about adopting the existing provisions and similarly a fair bit else of 21 is along those lines except of course for those provisions which are clearly spelt out in the model clause. Have you had a chance to look at that to be satisfied because - - -

PN262

MR UPHILL: No, I haven't, Commissioner. I focused on the issues which are in dispute. I can't say that the dozen or so pages have been checked as perhaps they should be.

PN263

THE COMMISSIONER: Yes. Well, they're all burning the midnight oil at the moment so I presume you have other matters too, not the least is a section 127 that's pressing me in the morning.

PN264

MR UPHILL: Yes.

PN265

THE COMMISSIONER: Thanks, Mr Uphill. I propose to vary the award in terms of the draft which was circulated this morning with the exception - but not adopting the - and, as I have said, I'm not accepting the notice by employer provisions which was in the union's claim and the amendment will continue with the model clause in respect of notice of termination by an employee. In respect of the definition of "continuous service" which appears in 10.1.6 and 10A.3.3 I propose to amend the award in terms of this document, and that is deleting the words "in advance" and including the provisions where periods of unpaid leave not counting to service will not constitute a break in continuous service.

PN266

In respect of the proposed 23.2A.4, I think there are some drafting difficulties with the provision as sought in respect of who that - when the employer would incur that obligation. Again, in being mindful of the Full Bench decision, the fact that it should generally be adhered to and the fact that Mr Uphill is only representing one employer, I have decided not to adopt the second sentence in the variation.

PN267

I propose that the award be so varied on the understanding that the provisions in clause 21 which don't reflect the Full Bench standard in the Family Provisions case do reflect the current award provisions. I intend issuing the order that I have made in writing this Friday and all I can say is that Mr Uphill, if there are any provisions in there to which you feel don't accurately reflect that, that you might confer with your counterparty tomorrow, Ms Palmer, tomorrow and unless I hear from you otherwise by close of business tomorrow, I'll be issuing an order in those terms. Ms Palmer, you're away tomorrow? Are you here tomorrow?

PN268

MS PALMER: No, I'm teaching on Wednesdays.

PN269

THE COMMISSIONER: Well, how do you suggest we handle this?

PN270

MS PALMER: I do feel that the application was on the respondent on 12 December and they have had sufficient time to - - -

PN271

THE COMMISSIONER: Yes, I understand all that. These are the Commission's awards and I just want to be satisfied because we're doing so many of these at the moment and I just want to be absolutely satisfied. I'm pretty confident in this document. The only one I think someone should throw their eye over is the previous sick leave provisions, quite frankly.

PN272

MS PALMER: Yes, the sick leave provisions?

PN273

THE COMMISSIONER: The sick leave provisions in the current award as to whether or not they are accurately reflected in this provision.

PN274

MS PALMER: Sure. I did actually cut and paste them from WageNet so they should be. I can go back and check it this afternoon and I'm sure Mr Uphill would appreciate a chance to check it as well. I'm not available tomorrow but somebody else at the union could be available.

PN275

THE COMMISSIONER: Well, you have been working on this one. How are you situated on Thursday morning?

PN276

MS PALMER: Yes, I'm available on Thursday.

PN277

THE COMMISSIONER: Can you undertake to contact Ms Palmer first thing Thursday?

PN278

MR UPHILL: Yes, I will.

PN279

THE COMMISSIONER: If I don't hear from anyone by Thursday lunch time the order will be issued in the terms that I have said. The order will come into effect as from today and will operate for a period of six months. Nothing further? Thank you. This matter is adjourned.

<ADJOURNED INDEFINITELY [3.35PM]