C2008/101, Transcript of Proceedings [2008] AIRCTrans 407 (29 July 2008)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 18790-1

COMMISSIONER LARKIN

C2008/101 C2008/102 C2008/103 C2008/104 C2008/105

cl.29 Sch. 6 - Variation of transitional awards - general
Application by Media, Entertainment and Arts Alliance
(C2008/101)

cl.29 Sch. 6 - Variation of transitional awards - general
Application by Media, Entertainment and Arts Alliance
(C2008/102)

cl.29 Sch. 6 - Variation of transitional awards - general
Application by Media, Entertainment and Arts Alliance
(C2008/103)

cl.29 Sch. 6 - Variation of transitional awards - general
Application by Media, Entertainment and Arts Alliance
(C2008/104)

cl.29 Sch. 6 - Variation of transitional awards - general
Application by Media, Entertainment and Arts Alliance
(C2008/105)

SYDNEY

2.11PM, MONDAY, 14 JULY 2008

PN1

MR M RYAN: I appear on behalf of the Media, Entertainment and Arts Alliance in all five matters, Commissioner.

PN2

MR S MARRIOTT: I appear in matter number C2008/101 on behalf of the Australian Federation of Employees and Industries.

PN3

THE COMMISSIONER: Yes, thank you. No other appearances on the files at all?

PN4

MR RYAN: I only understand, Commissioner, that there has been some communication between the Confederation of ACT Industry to your office concerning the first matter.

PN5

THE COMMISSIONER: 2008/101?

PN6

MR RYAN: Yes, from a Mr Greg Smith who is a senior workplace relations adviser for the ACT and Regional Chamber of Commerce and Industry, indicating that they have no objection to an order being made varying the award in the terms sought.

PN7

THE COMMISSIONER: Just a moment please. Yes, is that the only correspondence on any of the files, Mr Ryan, that you know?

PN8

MR RYAN: That I have received. Commissioner it might be appropriate to note that you made an order for substituted service in relation to this matter and four parties were served with that notice. If I can hand up a statement as to service from Claire Montgomery, who is a - - -

PN9

THE COMMISSIONER: Sorry, a statement as to service?

PN10

MR RYAN: From Claire Montgomery, who is an alliance federal industrial officer.

PN11

THE COMMISSIONER: Yes.

PN12

MR RYAN: I don’t think I did substituted service on this file, did I?

PN13

MR RYAN: On this particular matter you did, Commissioner. There’s an order dated 23 June allowing us to make substituted service to MacArthur Aus Group Consulting, Employers First, Confederation of ACT Industry and CA1 Services Pty Ltd.

PN14

THE COMMISSIONER: Yes, thank you Mr Ryan, I’ve found that now. Yes I’m sorry Mr Ryan, please continue.

PN15

MR RYAN: Your Honour, in relation to the Theatrical Employees Recreation Grounds & Race Day Racing Officials NSW and ACT Award 2000 Transitional, this application seeks to increase rates of pay to give effect to the 2005 safety net adjustment and the 2006 and 2007 Full Bench decisions in relation to transitional awards.

PN16

The award itself sets out how rates of pay are to be adjusted and in relation to the 2005 decision that gave an impact of 50 cents per hour. In relation to the 2006 decision, it was either 70 cents or 90 cents, depending on the rates of pay, whether they were above or below $700 per week. For the 2007 decision it was either 20 cents or 30 cents per hour, depending again on whether they were above $700 per week.

PN17

If I could hand up and tender a copy of the draft order to give effect to those increases, Commissioner.

PN18

THE COMMISSIONER: That’s the same copy that was attached to the correspondence from the Confederation?

PN19

MR RYAN: Yes, it was.

PN20

THE COMMISSIONER: Yes.

PN21

MR RYAN: There was a slight variation to the draft, removing reference to the Australian Fair Pay Commission and inserting the correct Commission print numbers for those decisions in 2005, 2006 and 2007. That was the only change, Commissioner.

PN22

THE COMMISSIONER: Yes, all right. We must dispense with this. In regards to the other awards, Mr Ryan, I’ll hear your submissions or any material you tender for all of them. But because Mr Marriott is only appearing in this particular one we might handle that separately, and then we’ll allow him to be excused from the hearing room.

PN23

MR RYAN: I appreciate that, Commissioner.

PN24

THE COMMISSIONER: Yes.

PN25

Yes, Mr Marriott, your submission?

PN26

MR MARRIOTT: Yes, well Commissioner we have had the opportunity to inspect the amended application that has been tendered to you today. It is consistent with the Act and with the decisions handed down by the Commission in 2005, 2006 and 2007. That being the case, we are happy to consent to the variation as sought by the MEAA.

PN27

THE COMMISSIONER: Yes, thank you Mr Marriott. I will have the draft orders checked to ensure that the calculations are correct, gentlemen, and if anything arises in our checking, you will be notified in that regard prior to me signing off on any orders, if the applications are granted.

PN28

Mr Ryan, do you have anything further to add at all?

PN29

MR RYAN: No thank you, Commissioner.

PN30

THE COMMISSIONER: Yes, thank you Mr Ryan.

PN31

Yes, well I’m satisfied that the application lodged by the Media, Entertainment and Arts Alliance to vary the Theatrical Employees Recreation Grounds & Race Day Racing Officials NSW and ACT Award 2000, a transitional award, is in accordance with the requirements of schedule 6 of the Act and Full Bench decisions in wages and salary review.

PN32

The transitional award will be varied in the manner sought in the draft order, subject to the Commission’s checking of those figures. The order to be issued will come into force from the first pay period, to commence on or after 14 July 2008 and it shall remain in force for a period of six months.

PN33

Mr Marriott, you are excused. Thank you for your attendance in the Commission.

PN34

MR MARRIOTT: Thank you Commissioner.

PN35

THE COMMISSIONER: Yes, Mr Ryan, we might have you address all of the other four files that I have and there is correspondence on C2008/105 from the Victorian Employers Chamber of Commerce and Industry, stating that they don’t oppose the application to vary that particular award, which is the Entertainment and Broadcasting Industry Recreation Grounds & Race Day Racing Officials Victoria Award 2000, being a transitional award. But they do make a number of comments in relation to that application and I think it’s predominantly to do with calculations. But when we get to that award I’m sure you will address that for me, Mr Ryan.

PN36

MR RYAN: Yes, and I understand that Ms Montgomery has changed the draft order to reflect that discussion she had with that body, Commissioner.

PN37

THE COMMISSIONER: Okay then. Yes, whenever you’re ready.

PN38

MR RYAN: It might just be easier for my own convenience, Commissioner, to go through them briefly, award by award, because they do cover different amounts.

PN39

THE COMMISSIONER: Yes, however you choose to do it.

PN40

MR RYAN: So we might jump across the country and go to Western Australia, which is the matter C2008/102, Commissioner.

PN41

THE COMMISSIONER: Yes, I have that.

PN42

MR RYAN: Commissioner, this is an application to increase the rates in that award by the 2002, 2003, 2004 and 2005 safety net adjustments, and also in relation to 2006, 2007 Full Bench decisions in relation to applicability of the Fair Pay Commission to transitional awards.

PN43

In the case of this particular award all rates have been increased by $3.40, as all rates are under the $700. So there’s a standard application to that award of a set figure which is done in accordance with how the award has been varied in the past.

PN44

So if I could firstly hand up a statement of service in this particular matter and also a draft order reflecting the change to the rates of pay, if the Commission pleases.

PN45

THE COMMISSIONER: Yes, thank you.

PN46

MR RYAN: Commissioner, we would seek that the award be varied in terms of the draft order with effect from the first pay period commencing after today’s date.

PN47

THE COMMISSIONER: Now you don’t round the figures up, the hourly rate, up at all, Mr Ryan. Did you say that to me in the submissions, I’m sorry?

PN48

MR RYAN: No, Commissioner. For my sins I’ve been given the responsibility for these awards in relation to award modernisation.

PN49

THE COMMISSIONER: Well lucky you, Mr Ryan.

PN50

MR RYAN: Yes, I must have been a very evil person in a previous life, I suspect.

PN51

THE COMMISSIONER: Yes.

PN52

MR RYAN: Having looked at these awards for the first time in any detail in recent weeks, each award has a different method of adjusting rates set out in the award. For example the New South Wales and ACT award, which we dealt with previously, does have rounding in it and that’s set out in clause 7 of the award. In the case of a number of the awards there is no rounding.

PN53

THE COMMISSIONER: These are all hourly rates, aren’t they?

PN54

MR RYAN: All hourly rates, because they all relate to casual employees, Commissioner.

PN55

THE COMMISSIONER: Yes, that’s right. They’re not weekly rates.

PN56

MR RYAN: No, they’re required to attend, you know, on the day of the supporting declaration - - -

PN57

THE COMMISSIONER: Yes, okay. Yes, now I understand. Yes.

PN58

MR RYAN: So they’re all different so in the case of this particular award, one divides the weekly increase by 38 and then applies the 20 per cent casual loading in the award to it. While there are odd figures all the way through, they end up being the end figure of $3.40, when you add the various increases together. I think that may even be attached, the method of calculation Commissioner, to the statement of service.

PN59

THE COMMISSIONER: Yes, and of course that’s their casual rates. There’s no actual loading figure.

PN60

MR RYAN: No.

PN61

THE COMMISSIONER: No, there’s just a casual rate.

PN62

MR RYAN: It says somewhere in the award here that the rate is the hourly rate divided by 38.

PN63

THE COMMISSIONER: Yes.

PN64

MR RYAN: Plus your - - -

PN65

THE COMMISSIONER: Yes, because you don’t have a permanent rate.

PN66

MR RYAN: No.

PN67

THE COMMISSIONER: Which you add a casual loading to.

PN68

MR RYAN: No.

PN69

THE COMMISSIONER: Yes. Thank you for clarifying that for me, Mr Ryan. So that’s the Western Australia.

PN70

MR RYAN: The Western Australia award.

PN71

THE COMMISSIONER: Which is the next one you want to talk about or put your submissions on?

PN72

MR RYAN: I think we’re off to Queensland, Commissioner, which is matter 103.

PN73

THE COMMISSIONER: This is a substantial increase.

PN74

MR RYAN: Yes.

PN75

THE COMMISSIONER: Yes.

PN76

MR RYAN: It seeks to have the increases since the 2001 safety net through to 2007.

PN77

THE COMMISSIONER: Yes.

PN78

MR RYAN: Which, when applied to the award, increases hourly rates by $3.90 in total.

PN79

THE COMMISSIONER: But this award does have weekly rates though?

PN80

MR RYAN: It has, if you like, a pretend weekly rate because again - - -

PN81

THE COMMISSIONER: A pretend weekly rate.

PN82

MR RYAN: It’s all casual employees again, so it says, “Here’s how you do it”, which is you get the commissions increased. For example the $15 given in 2001, which was a weekly increase; you divide that $15 by 38 and then add a 20 per cent loading which gives you an hourly increase of 47 cents in that particular example.

PN83

THE COMMISSIONER: Look I’m sorry, I’ve interrupted your submissions. You have material in relation to service.

PN84

MR RYAN: I do, Commissioner. If I could tender both a statement as to service from Claire Montgomery, an officer of the alliance, and also if I could tender the draft order to give effect to those increases, Commissioner.

PN85

THE COMMISSIONER: You weren’t contacted at all by the respondents to the award, because there’s no sub-service on this, Mr Ryan.

PN86

MR RYAN: No, everybody was sent their own individual application by registered post.

PN87

THE COMMISSIONER: Yes.

PN88

MR RYAN: There was no correspondence received back in our office from any of the respondents.

PN89

THE COMMISSIONER: Yes.

PN90

MR RYAN: Or any organisation acting for a respondent, Commissioner.

PN91

THE COMMISSIONER: You see my logic for not granting sub-service or signing some sort of sub-service orders was the amount of the increase in the award.

PN92

MR RYAN: We understand that, Commissioner.

PN93

THE COMMISSIONER: Yes, and of course I thought I may have received some submissions in regards to phasing, especially with this particular award. I must say from our perspective we haven’t heard cooee from anyone.

PN94

MR RYAN: No, no. We have only, as you say, reflected what has happened with you, Commissioner. We’ve only had correspondence and discussion with New South Wales and Victorian employers.

PN95

THE COMMISSIONER: Yes.

PN96

MR RYAN: So again, Commissioner, in relation to the Queensland award we would be seeking that the award be varied in terms of the draft order, operative from the first pay period commencing on or after today’s date.

PN97

THE COMMISSIONER: The draft order only reflects the 2006 and 2007 decision.

PN98

MR RYAN: I think in that case - and I assumed - - -

PN99

THE COMMISSIONER: I have got the right draft order, haven’t I?

PN100

MR RYAN: It should be - - -

PN101

THE COMMISSIONER: No I don’t. This is Victoria.

PN102

MR RYAN: In that case I would be - - -

PN103

THE COMMISSIONER: The statement of service is Queensland award.

PN104

MR RYAN: Yes.

PN105

THE COMMISSIONER: The draft order is the Victorian award.

PN106

MR RYAN: In that case I had better hand up the draft order for Queensland.

PN107

THE COMMISSIONER: Well, can I give this back to you and you put this all together correctly for me?

PN108

MR RYAN: Yes. Yes, they’re corrected, Commissioner.

PN109

THE COMMISSIONER: Yes, and of course the draft order you have just handed up is the draft order that was forwarded to all the respondents?

PN110

MR RYAN: It was, Commissioner.

PN111

THE COMMISSIONER: Yes, all right. Okay, and of course this draft order would be subject to checking of our calculations as well.

PN112

MR RYAN: Yes. I think what I might do at the end of this hearing is hand up a document that we have used to show how the various awards were increased, with the amounts.

PN113

THE COMMISSIONER: That would be of assistance, thank you. All right, where are we off to now? We have left Queensland.

PN114

MR RYAN: The great state of South Australia, Commissioner.

PN115

THE COMMISSIONER: Yes, lovely state.

PN116

MR RYAN: Commissioner this is an application to vary the South Australian award to give effect to - the same as Queensland, 2001 to 2007 increases. So again the award rates would be increased by $3.90 per hour, and if I could hand up a statement of service and a draft order.

PN117

THE COMMISSIONER: 2002 to 2007?

PN118

MR RYAN: I think there’s actually a mistake in the draft order, Commissioner. That should be 2001 as well as 2002.

PN119

THE COMMISSIONER: Well the application that came in was 2002.

PN120

MR RYAN: Then I would seek - - -

PN121

THE COMMISSIONER: That’s what is marked on the file.

PN122

MR RYAN: Yes, I would then seek, Commissioner, that that application be varied to reflect the actual nature of the application.

PN123

THE COMMISSIONER: Let me just ensure that that is what - no, that’s right. Yes, it was there. All right, the respondents to the award, though; they received material relevant?

PN124

MR RYAN: Yes they did, Commissioner. I take that back, Commissioner. That award should only be varied from 2002 onwards, looking at the Commission’s copy of the award.

PN125

THE COMMISSIONER: Yes, and also your draft order is 2002 as well.

PN126

MR RYAN: Yes. In that case could I just red flag that particular one for your unfortunate associate, just to make sure that what has been applied to that particular award does not seek to double count the 2001 decision.

PN127

THE COMMISSIONER: Yes, and your calculations that you’re going to hand up later relevant to this award - - -

PN128

MR RYAN: Might have a mistake in it.

PN129

THE COMMISSIONER: It may have the 2001?

PN130

MR RYAN: The 2001, but I’ll check that when Ms Montgomery is back in the office tomorrow. But if I can just flag that now to make sure there is no unnecessary work needs to be done on the part of your associate on that.

PN131

THE COMMISSIONER: Yes. Well considering that things will have to be checked, if all the applications are granted we won’t be signing off on any orders until tomorrow. But of course our operative date if the applications are granted would be today’s date.

PN132

MR RYAN: It might just be a mistake in the document that I’ve been given as the calculations because as you rightly point out, the application only does seek from 2002 onwards.

PN133

THE COMMISSIONER: Yes.

PN134

MR RYAN: But the paper I’m reading from notes 2001 on that, so I will just mark that document which I will give up at the conclusion.

PN135

THE COMMISSIONER: Yes ,all right then.

PN136

MR RYAN: So subject to checking the actual figures, Commissioner, we would seek that the award be varied, operative from the first pay period commencing on or after today’s date. So if you could clarify that issue concerning the calculations not including the 2001 increase.

PN137

THE COMMISSIONER: Yes, because it was minimum rate adjusted in 2001, wasn’t it?

PN138

MR RYAN: Yes, it was. I’ve just checked that.

PN139

THE COMMISSIONER: Yes that’s right. I can see it in the award. Yes, all right, so subject to checking on that.

PN140

MR RYAN: The final award, Commissioner, is the Victorian award.

PN141

THE COMMISSIONER: Yes.

PN142

MR RYAN: Which I understand that you have received, as we have, correspondence from a Mr Eberhard from the Victorian Employers Chamber of Commerce and Industry, concerning the calculation of figures and also the wording of the draft order.

PN143

THE COMMISSIONER: Yes. Yes, I see.

PN144

MR RYAN: Now, I think the only issue there with the calculations was that one of - an issue concerning this particular award, which does have, unlike the other 25 per cent, casual loading that previously had a 40 hour week as well. So with the Australian Fair Pay Standards, the third hour becomes the standard and he points that out in his correspondence, Commissioner.

PN145

So if I could tender a copy of a statement of service from Claire Montgomery of the alliance, and also tender a draft order reflecting the discussions between ourselves and Mr Eberhard.

PN146

So again, Commissioner, we would seek that the award in question be varied in accordance with the draft order, effective from the first pay period commencing on or after today’s date and the upshot there is that this award only seeks to give effect to the 2006 and 2007 decisions; which gives an increase of hourly rate of $1.24.

PN147

Finally, Commissioner, if I could tender how the calculations were done which I certainly hope will be of assistance.

PN148

THE COMMISSIONER: Yes.

PN149

MR RYAN: It’s certainly not meant to confuse. If the Commission pleases.

PN150

THE COMMISSIONER: Yes, thank you Mr Ryan. Yes, you are going to check though file C2008/104, the South Australian one?

PN151

MR RYAN: Yes.

PN152

THE COMMISSIONER: Because in your calculations I can see there is a 2001 increase.

PN153

MR RYAN: Yes.

PN154

THE COMMISSIONER: But that’s fine. That is something that will have to be checked as well. Thank you for those submissions, Mr Ryan.

PN155

On the basis of what I put earlier on the record, that all the draft orders will be subject to checking by the Commission, and no orders will be signed until that process has been completed and if there are issues, the parties contacted in regards to that.

PN156

The applications before me by the Media, Entertainment and Arts Alliance seek to vary the entertainment and broadcasting industry awards in relation to awards operative in Western Australia, Queensland, South Australia and Victoria; to apply wage increases provided for by the wages and allowances review decisions of the Commission.

PN157

On the basis of the material before me I’m satisfied that the applications are in accordance with the requirements of schedule 6 of the Act, and the Full Bench decisions in relation to those wages and allowances reviews. They are transitional awards and the transitional awards will be varied in the manner sought by the draft order, again subject to checking. Those orders shall be operative from the first pay period to commence n or after 14 July 2008 and they shall remain in force for a period of six months.

PN158

If there’s nothing to go further?

PN159

MR RYAN: No thank you, Commissioner.

PN160

THE COMMISSIONER: Thank you for your attendance, Mr Ryan. The Commission stands adjourned.

<ADJOURNED INDEFINITELY [2.39PM]