AM2008/4, Transcript of Proceedings [2008] AIRCTrans 484 (28 August 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 18947-1

SENIOR DEPUTY PRESIDENT WATSON

AM2008/4

s.576E - Award modernisation
Award Modernisation
(AM2008/4)

MELBOURNE

10.03AM, TUESDAY, 12 AUGUST 2008

Continued from 11/8/2008

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Simpson.

MR HARVEY: Your Honour, before the proceeding commences would your Honour mind - you asked me a question and we were discussing yesterday the difference between the Queensland severance scale and the federal one and I have done my homework on that, your Honour, so that I can report back.

THE SENIOR DEPUTY PRESIDENT: Okay.

MR HARVEY: Just looking at the Queensland Accommodation Clerical Award 2005, there is notice with regard to termination of employment which is a standard range between one week and four weeks notice depending on years of service. Then the amount of severance pay which was recorded in the exhibit that we handed up yesterday ranging from four weeks pay for one year but not more than two years up to 16 weeks severance pay for more than 12 years, and I mentioned to your Honour that that was higher than what was in the federal standard and the NES but of course when you look - when you go and compare that scale of what’s in a federal award and in this case they used to be coined Clerical and Administrative Employees Award in Victoria, you see that the scale is simply different in as much as in that particular award arising from the Full Bench decision in the redundancy case, it actually maxes out at between nine and ten years service when you do get 16 weeks pay so that’s the same as the maximum amount in the Queensland scheme. But for 10 years and over the amount drops to 12 weeks pay under the federal redundancy arrangement. And as I recall, the reason for that, your Honour, was that it was assumed that employees made redundant after 10 years service would have got their long service leave paid out pro rata or in full so that that element of compensation wasn’t required after 10 years.

So if you’re an employee, 10 years and over service, under the federal system you get 12 weeks pay; in Queensland more than 10 years but not more than 11 years, it’s 14 and then it’s 15 and then it’s 16 years service so you sort of catch up at the end. So disadvantage or not disadvantage would depend on at what point in the process you were made redundant.

THE SENIOR DEPUTY PRESIDENT: Yes.

MR HARVEY: There are some other small differences, your Honour, between the ways the two schemes are expressed. I notice that in the Queensland awards the redundancy applies to everybody except certain employers are exempted and that is employers or companies that employ employees working a total of fewer than 550 hours on average per week including overtime. I think if you - and I once reported on this calculation - if you divide 550 by 38 hours standard week I think you get 15 employees so that sort of ends up being much the same in practice as the federal one. It’s just addressed in a different way and may apply slightly differently to various employers.

But in summary, your Honour, it’s a difference in the way that the two scales are constructed as to whether there may be or may not be a disadvantage to the employers.

THE SENIOR DEPUTY PRESIDENT: Thank you for that, Mr Harvey.

MR HARVEY: Your Honour, I have submitted electronic versions of the two exhibits handed up yesterday to your associate.

THE SENIOR DEPUTY PRESIDENT: Thank you for that. Now I can stamp your homework.

MR HARVEY: Thank you, your Honour.

THE SENIOR DEPUTY PRESIDENT: Mr Simpson.

MR SIMPSON: Thank you, your Honour. Your Honour, I have some brief submissions to add to the written submissions we filed on behalf of the AWU. The AWU has a very significant interest in the industry. As you would be aware, our interest in Queensland extends to all areas outside the south-east corner of the state. Now, because of the nature of - particularly the tourism industry in Queensland, that’s a very significant part of the economy. In Cairns, for example, we have five full-time officials - and a lot of their work is in connection with the industry - who maintain offices in places like Townsville and Mackay and even Airlie Beach which is arguably one of the most desirable union positions in the country, we have been told. But we need that presence because of our interest in the industry.

We have about - we have seven awards that we have direct sort of - within the scope of the discussion around the two awards as proposed that are clearly within scope and then there are some areas on the fringes which I’ll turn to a little bit later. They include - I will pick up - I’ll acknowledge that Mr Swancott from the Miscos has done a lot of work on the project so far and we commend him for that.

One area we just picked up is an area which is understandable. There are two awards which are very similar in title. The award reference in the draft Hotels, Restaurants Award is the Hotels, Motels, Resorts and Accommodation Award as far as the AWU interest in Queensland is turning. Actually, that’s the HMAA award. That’s the award which was created a few years ago which was a former industrial instrument. It’s a respondency-based award. It applies to employees working within hotels, motels and all the other facilities described in the award and members of the HMAA, as they were at the time of the making of that award.

The actual, for want of a better term, sort of mother ship award for the industry outside south-east Queensland is the Hotels, Resorts and Certain Other Licensed Premises Award. So it will need to be included within the draft. The other awards that the AWU has an interest in - or essentially is the sole union respondent to that - the Café Restaurant Catering Award - State (Excluding South-East Queensland) 2003, the Club Employees’ Award - State (Excluding South-East Queensland) 2003, the Boarding House Employees’ Award - State (Excluding South-East Queensland) 2003 and two - and they’re all common rule awards.

Then there’s the Offshore Island Resorts Award that Mr Pollard referred to yesterday which essentially was born of a former industrial agreement - and I’ll talk a little bit more about that shortly - which is a respondency based award applying to certain named employers. And then there’s an award which was made specifically to cover the Kingfisher Bay Resort on Fraser Island.

I’ll just address a few technical issues quickly, your Honour, before moving on. I would certainly agree with the point made by Mr Harvey yesterday. In Queensland there are - the awards, all awards historically have contained district allowances. Because of the large geography of the state the state Commission has always maintained certain allowances which only apply in certain parts of the state. They’re monetary allowances. We would support the submission yesterday that they should be included. Otherwise employees would be disadvantaged in that they would be having a benefit taken away if they weren’t.

Another technical point, your Honour, is the question of the naming of transitionally registered associations. The AWUEQ is now a federally registered transitional organisation - or association. I know that in certain other areas this issue has come up in the mining panel which - we were looking at this issue last week, your Honour. There was a general agreement that any TRA should also be mentioned as a party to the award, being a recognised registered association under the Act.

Albeit in the AWU’s case we have mirror federal rules in this industry, as between the federal AWU Queensland Branch and the Australian Workers’ Union of Employees Queensland, which is a transitionally registered association, albeit the work has historically always been done by the former state entity. So our submission would be that we believe that for completeness the TRA should be mentioned in the award. We don’t know, I guess, what the future holds in terms of the proposed new legislation next year. Certainly we know TRAs at this stage have a life until December 2009 and beyond that no one knows.

THE SENIOR DEPUTY PRESIDENT: Yes.

MR SIMPSON: Another area, a technical point which I have raised with Mr Swancott and I think it is being looked at, is a general exclusion for the aged care sector. I note that the proposed award excludes hospitals. Aged care is in a very similar boat in the fact that all aged care facilities or residential aged care facilities provide hotel services - kitchens, catering staff, cooks - and they have always operated within awards in the aged care sector, not in the hospitality sector. So I flag that because I think that would be - for a similar basis that you would propose to exclude hospitals you would exclude aged care being a massive industry which hasn’t crossed over in this area.

The two other areas I would like to flag on that front are racing and also theme parks as well. I’ll come back to theme parks. In relation to racing, we note that there has been a proposed Clubs Award. The Clubs Award draft has only really surfaced late in the day and we’re sort of not casting aspersions at people for that because the process is moving quickly. The award as it’s proposed by Clubs Australia and the LHMU, as we understand, or their competing positions on different clauses but there’s a general agreement there should be such an award. At the moment, on its face, would include the racing industry.

Mr Blandthorn briefly addressed this point yesterday. Essentially, the AWU position is this: in the Commission Bench examining the racing industry last week, the AWU proposed three Racing Awards: essentially an Animal Industry Award, secondly a Racing Clubs Maintenance Award, and thirdly, a Racing Clubs Race Day Award, the scope of which would cover race day officials and employees engaged in staging events on race day. That position is generally supported by employers so we’re fairly close to consent all round in racing.

If the proposed Clubs Award as it’s currently drafted was to get legs, as it were, it would massively disrupt what is largely a consent position established across the racing industry to this point between industry and unions.

THE SENIOR DEPUTY PRESIDENT: Mr Simpson, there are - - -

MR SIMPSON: The AWU proposes at this stage an exclusion for racing for the Clubs Award. That could say something along the lines of excluding employers and employees, operations and industries and occupations to which the Racing Industry Awards apply are exempted from coverage under this award. We note that there’s no suggestion that Racing Awards be proposed to be included within the scope of the proposed awards in this matter at clause 1.3.5 of the draft which does throw off an issue - and I guess it’s just the nature of the process we’re involved in but I think the way that the award is proposed to be structured to base respondency on the basis of historical award coverage has real merit because it does provide a context and understanding of the nature on which parties are bound to the award.

It does also throw out the issue of the fact where there areas where if the - well, it creates the clear impression that if an award isn’t referenced in there, therefore respondency doesn’t exist, which then creates the problem that if the award covers callings of workers that have historically been represented by another industrial organisation but a relevant award isn’t referenced, it could create confusion.

In relation to the issue of sportsground maintenance, essentially what we say is this: in the initial request for priority awards to be proposed that the Full Bench requested, the AWU proposed a Sportsground Maintenance Award. As I have already said, the AWU has proposed a Race Ground Maintenance Award in the racing area. Because we have also proposed in the priority listing a general - a Gardening and Sportsground Maintenance Award, there are two instruments there. Now, the Full Bench decided not to include that in the priority lists of 14, presumably because it didn’t meet some of the criteria such as the high prevalence of AWAs and other factors. But we are still intent on pursuing that award. And I think it’s fairly clear that we’ll need to because there are a lot of workers working in such environments.

The AWU is opposed to ground maintenance staff being included within the scope of the Clubs Award. An option that could be considered in relation to this problem is that consideration could be given to not creating in the racing industry a specific award for race ground maintenance workers but that you could actually have that work fall under the scope of a General Sportsground Maintenance Award as the AWU will be intending to pursue in any event. The AWU understands there is general support for a Sportsground Maintenance Award of general applications from other unions and employers. The debate here is about how far it extends.

The conundrum we would have though - if the Clubs Award as proposed did cover maintenance staff is that if you had a modern Race Group Maintenance Award and also a general modern Clubs Award, resulting from the award modernisation process then neither of those awards would actually cover employees who work in sportsground maintenance that were not employed by a registered or licensed club.

So our argument is that the club employees generally should fall under a General Sportsground Maintenance Award along with other sportsground maintenance staff who don’t work for licensed or registered clubs. That is the AWU view. Your Honour, in the alternative - and this is something I have had some discussions with Mr Swancott about and also a very brief discussion before we commenced this morning with Clubs Australia - if the Commission was not of a mind to do that, then the only other fair thing to do would be to create a Sportsground Maintenance Award that applied to such maintenance workers who don’t for registered or licensed clubs and include in a Clubs Award a schedule that reflects the same conditions of work because as Mr Blandthorn pointed out yesterday, there is a world of difference between the conditions that apply to sportsground maintenance staff at the moment. For example, in the examples he gave here in Victoria and in the proposed conditions that will apply in the draft Clubs Award. Now, they could be working in very close proximity to each other, essentially performing the same work in the same callings on vastly different pay and conditions which we think would not be an intended outcome of this process.

Your Honour, that’s all I have to say on that. In relation to the issues addressed by - - -

THE SENIOR DEPUTY PRESIDENT: Mr Simpson, sorry, can I take you back to - you suggested there is an emerging consensus around three awards in racing - animals, maintenance and race day.

MR SIMPSON: Yes.

THE SENIOR DEPUTY PRESIDENT: How does that comprehend, for example, the use of facilities, race facilities, Monee Value Racecourse, for dinners? I know I have attended some run by industrial relations societies and the like. How would they fall within the work - or within the award structures within that arrangement?

MR SIMPSON: Your Honour, I must apologise, I haven’t been the industrial officer representing the AWU in those matters. It’s been largely driven by Mr Blandthorn so I won’t pretend to know the answer to that question but I can certainly find it out for you and get that to you.

THE SENIOR DEPUTY PRESIDENT: Yes. If you wouldn’t mind. I can understand the race day activities in catering but they also seem to run as venue centres for general use outside of race meetings.

MR SIMPSON: Yes. All right. I’ll undertake to get that done today.

THE SENIOR DEPUTY PRESIDENT: Thank you.

MR SIMPSON: Your Honour, in relation to the issue of casual loading, I heard some fairly strong submissions from our friend from South Australia yesterday about the existence of a 50 per cent casual loading in South Australia. Well, I can confirm 50 per cent casual loading also exists in the AWU Awards in this industry outside south-east Queensland and has done so for a long time. All I’ll say on that is we support the submission that it should be retained. And I can confirm that it’s not just South Australia.

Your Honour, another area that we need to turn to our mind to is the issue of convention centres. These are a form of facility which has dramatically sprung up around the country in the last couple of decades. I have had some discussions with Mr Swancott about this and we’re trying to work our way through the issue. In Queensland convention centres are covered by the AWU on statewide basis and we have - we represent the workers at - there’s a major convention centre that’s been in Brisbane for a couple of decades and the Gold Coast built one about seven or eight years ago. We have a major facility at Cairns. These are standalone facilities.

Now, what we - I guess what we need to look at is the wording, the proposed wording in the draft award around clause 1.3.4(a)(i) where it looks at the industries or industrial pursuits that are proposed to be covered by the award. If you have it there, your Honour, it’s the last dot point where it refers to:

Restaurants, function areas and convention or like facilities operating in association with the above.

Your Honour, the situation we are in is that the expression itself is quite - could be quite broad. Generally, I think convention centres are understood to be these large standalone exhibition hall type facilities that we have. We have four major ones in Queensland that the AWU has agreements covering the workforce for. Now, the workforces that are found in these convention centres do fall across the position - the classifications as described in this award in that the sorts of workforce that you’ll find in a convention centre that are directly employed include food and beverage staff, front of house staff such as cashiers, people doing ticketing, cleaning, car parking attendants, security, often ushers, and then you’ll have technical staff, back of house staff, people who organise the lighting and sound and all those sorts of things which don’t appear to be in any way described in this proposed award. But there’s an overlap there.

I think the question we have to come to grips with is whether or not it’s proposed to bring these facilities within the scope of this award or excise them. At the moment, for example - and I’m really only talking from a Queensland perspective at the moment because from the AWU’s point of view we have pretty much exclusive coverage of convention centres in Queensland but I understand in other states it’s a bit of a pattern. I think MEA has an interest in the area as well interstate.

THE SENIOR DEPUTY PRESIDENT: Which awards operate in Queensland in the - - -

MR SIMPSON: Well, in Queensland there’s an award, your Honour, called the Theatrical Employees Award. Now, it - if you can just bear with me for one second. It’s scope says it will apply:

- to all employees for whom rates of wages are prescribed herein and who are employed in or in connection with picture shows, theatres, stadiums, circuses, skating rinks, theatrettes, dance halls, other halls and to employees engaged in or in connection with the entertainment customs and cabarets, clubs, hotels and any or all employers and employees.

Now, the classifications under that award don’t go to the catering staff. But I think what’s happened is that these workplaces all have enterprise agreements and comprehensive cover of the worksite. For the purposes of the no-disadvantage test in making those agreements I think for catering staff - I think the point of reference has probably been the Café Restaurant Award, the common rule award. In Queensland, in the south-east that would be an LHMU award. Outside it would be an AWU award.

But the issue is they’re out there and we need to work out how they fit. I don’t come here with a fixed view from the AWU’s point of view about how they will fit into the scheme but I flag this because we need to come to grips with it, your Honour. I think Mr Swancott and I are attempting to do that. If we were to seek to bring convention centres in, then I would propose that we would probably need to extend the scope of the award to pick up extra callings that aren’t currently described, such as those groups I have just talked about.

The award on its face does cover some of the workforce such as the food and beverage and certainly people taking tickets and - or people working in an administrative capacity but it’s certainly not adequately covering the field in terms of that workforce. Those places also tend to employ a small number of people in the engineering areas as well.

Your Honour, only a few points I wish to - in relation to the issue of the offshore islands raised by Mr Pollard yesterday, the history of the sector - he properly described as developing through the 1960s within industrial instrument in Queensland. He’s right to say it’s largely a Queensland - a very big industry in Queensland. The islands employ thousands and thousands of workers. The history of the arrangement there was there were industrial agreements which as you’re probably aware, your Honour - in Queensland under state legislation was sort of a hybrid of an award before the advent of enterprise bargaining. Parties could make them and agree on them and the Commission could grant them in Chambers, effectively, and they had general application once made.

That was the case with the offshore island resorts and then in the early 1990s they developed enterprise bargaining and there was an eEnterprise agreement struck with the industry covering about 10, 11 or 12 employers. Different islands jumped on and off through the 1990s, 2000s but up to 10 or 11 major resorts were a party to that as an enterprise agreement. As an agreement it annualised rates and was a very flexible agreement in acknowledgement, to some extent, of the unique nature of the way those island resorts operate largely as self-contained communities. The agreement covered essentially almost all callings working on the island.

Unfortunately, with the advent of Work Choices - and this is probably straying a little bit from the point, your Honour, but for the sake of completeness a number of the island resorts sought to use the legislation to actually believe it whether possible or not from Mr Pollard’s submissions seek even more flexible conditions than those already available and conditions were further reduced by a couple of the major resorts through agreement struck under the Work Choices legislation prior to the introduction of the Fairness Test.

I guess the issue that needs to be weighed by the Commission here, your Honour, is to what extent do the more flexible conditions applicable in a former industrial agreement that was converted into a respondency based award by the Queensland Industrial Relations Commission I think in 2003, should be allowed to continue to operate because the exercise undertaken by the QIRC was the legislation required that all industrial agreements at a certain point in time would simply lapse if they were not either converted into an award or the conditions reflected an enterprise agreement. So that promoted the move of the parties and the union to convert the Offshore Islands Industrial Agreement into an award that fixed conditions.

It has never been a common rule instrument but the AWU does acknowledge that there are unique features to the way the industry operates and I can’t help but wonder though, the 350 per cent staff turnover referred to by Mr Pollard may somehow be linked to the conditions of work applicable. So, your Honour, I guess that’s our view on that. Certainly we would very strongly oppose any suggestion that some of those flexibilities should make their way into common rule components of a new award. Whether or not the Commission thinks it’s appropriate to maintain those as a schedule in some form I guess is the question there. Certainly all those things can be done through enterprise bargaining.

The final point, your Honour, I wish to turn to is the question of theme parks. This again is a major industry in Queensland and it’s an area where we have very significant interests on a statewide basis. As you would be well aware, facilities such as Movie World, Dream World, Sea World, all these major theme park facilities all operate restaurants and all the various sorts of callings and facilities as described in this proposed award. I think the LHMU is generally agreeable with the view that there should be a general exclusion for that. I think there is a - there are federal awards. There is federal award coverage here and we just think that theme parks are just a different industry but to avoid any confusion we think we need to make sure that that’s clear in this document so there isn’t any confusion or overlap there.

THE SENIOR DEPUTY PRESIDENT: So you would see that as being a specific exclusion?

MR SIMPSON: Yes. Your Honour, I don’t have anything further at this point except to say that I think that the work that has been by Mr Swancott drafting has been good. We have participated in consultations to this point. Clearly there’s a lot of work to go and we appreciate the opportunity to make these submissions.

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Simpson. Mr Swancott.

MR SWANCOTT: Thank you, your Honour. I will attempt in about 30 minutes, I hope, to deal with the major issues that have arisen both in the written submissions that have been posted on the website and the oral submissions made yesterday and today. Our liquor hospitality division from the New South Wales Branch which has registered an interest in these proceedings will also make a submission after me on issues that are particularly relevant and important to them.

THE SENIOR DEPUTY PRESIDENT: Okay.

MR SWANCOTT: First, your Honour, I’ll deal with issues associated with the proposed scope of the award. Then I’ll move to particular issues that are attached to conditions of employment and the structure of the award. In the final part of our submission I’ll deal with the issues which I might describe as still being hanging in the air and for which further guidance, further discussion will be required.

In relation to the intention expressed in both draft awards put forward by the LHMU to provide within them classification coverage for all directly employed employees of the employers in the industries as defined, we acknowledge that there has been some confusion, and one might say some - the occasional heated word deriving from paragraph 42 of the Full Bench decision of the 20 June. Now, I’m not sure if you’d had that quoted to you as often as I have but I will quote it now so that I can explain what are some of the difficulties that have arisen.

The Bench at paragraph 42 said:

Whilst we considered the inclusion of other manufacturing industries on the priority list to be considered in conjunction with the Metal and Associated Industries Modern Award we have decided to limit the number of industries to make the initial task more manageable. However, consideration will be given to the expansion of the scope of a modern Metals and Associated Industries Award through the course of the award modernisation process.

The next sentence is the one that’s caused some difficulty:

On the other hand, we note that the proposed award, like the current Metal and Associated Industries Award, apart from being an industry award would also be an occupational award because of its coverage of the maintenance trades. One of the issues which will arise is whether it is more appropriate in a modern award context that maintenance and related classifications be included in the modern award made for particular industry in order to reduce the number of awards which apply to a particular employer.

Now, your Honour, we read that paragraph as in effect paraphrasing a submission made to the Full Bench by the AMWU; in other words, in recording the AMWU’s aspiration that the modern Metals and Manufacturing and Associates Industries Award would be a form of hybrid that was an industry award which would then have application across all other industries, or initially all other associated industries, but as we understand, it may in fact be intended to be wider than that, all other industries in which maintenance employees are employed.

We would be surprised if the Full Bench had at this point in the modernisation process committed itself in the manner suggested by the AWU - the AMWU, I’m sorry - in paragraph 6(d) of its written submission in relation to the hospitality industry modern award. In that paragraph the AMWU said:

The Full Bench accepted that the Metal Industry Award would continue to operate as both an industry and occupational award.

Now, that’s the AMWU’s submission to you, your Honour, interpreting the Full Bench decision.

In its pre-consultation consultations with other unions and with employer interests, the LHMU has canvassed a number of possible approaches to how directly employed tradespersons are covered in the context of - if I can call it HIMA - the Hospitality Industry Modern Award. To date there is no consensus in relation to the various options that have been put forward. It’s for this reason that the draft awards submitted by the LHMU as part of the pre-drafting consultation both carry the note that further discussion is needed.

The LHMU has in fact invited the CEPU, the CFMEU and the AMWU to assist in the drafting of appropriate descriptors should the LHMU’s preferred industry position be adopted by the Full Bench. In other words, without pre-empting a decision of the Full Bench we have sought to cover that option. We acknowledge that there are differences in the various options that have been canvassed and some of them are matters of great principle for some parties, or probably for all parties. Frankly, the parties involved in the negotiation of the text of HIMA would have been greatly assisted by a more definitive exposition of the Full Bench’s preliminary views on that issue but we take the decision as we find it.

We have made the point on a number of occasions that the issues relating to classifications and descriptors in modern awards are completely separate from the issues of representation, coverage and recognition. The award modernisation process should not be seen or be used as a vehicle for altering traditional demarcation lines or for disrupting longstanding coverage and union cooperation arrangements.

Our inquiries indicate that the great majority of, for example, maintenance work carried out for hospitality industry employers is on a contract or project basis. There are relatively few trade qualified persons other than those in the cooking trades and the waiting trades who are directly employed by hospitality industry employers. We note that this was confirmed in the oral submissions of the Australian Hotels Association and the offshore islands representative yesterday.

It’s been argued that the current status quo is that the Metal and Associated Industries Award, other federal awards with maintenance classifications and/or their common rule state counterparts applied to this handful of trade qualified maintenance workers who are directly employed by hospitality industry employers. We don’t agree with that assertion. In relation to the Hospitality Industry Award and the Motels Accommodation and Resorts Award, we think the interaction of the scope clauses and the classification clause mean that by force of section 109 of the Constitution state common rule awards have never had application in the four states covered by those awards and the fourth state being the south-east division of Queensland. I don’t extend that observation to the northern Queensland part necessarily.

The notion of the industry of the employer has always given the two federal awards dominance over federal occupation type awards where the employer is a named party to or otherwise bound by those awards. However, where the employer of a maintenance worker is a party to or otherwise bound by a federal or state occupational type award and supplies contract labour to work in or about a hospitality industry venue or site, the position is of course different.

In short, it’s our view that the Hospitality and Motels Award have always covered directly employed tradesperson through the catch-all “persons not otherwise provided for” classification in each award. Without taking you to them, your Honour, I refer you to a decision of Commissioner Cargill in 2001 in relation to the Hospitality Award which was an unfair dismissal case where the preliminary issue was whether the person was bound by a federal award or not. That’s at PR912787. In that decision Commissioner Cargill applied a decision of the Full Bench in relation to the Motels Award again on the preliminary issue of whether a person was bound by that award. That was in Dazmany Pty Ltd, trading as Sales Resorts, and that is at print P3536. In both of those decisions the analysis I have just put forward was the decision of the Commission.

Your Honour, the LHMU has approached award modernisation from the perspective that Par 10A of the Act and he award modernisation request give primacy to the development of awards which focus on the industry of the employer and only in limited circumstances make room for either occupational awards covering a multiplicity of industries or hybrid awards that cover both defined industries and also occupations engaged by employers appropriately defined as being part of other industries. That includes those unions and employer organisations.

We have been consistent in our approach in the various negotiations and consultations to which we have been a party. We have had some difficulty, as I explained, by not knowing for sure which way the Bench will ultimately determine the industry occupational hybrid argument. We have needed to protect our position in the event that the Full Bench accepts that occupational awards or that awards can apply across a multiplicity of industries in respect of occupations because my union represents cleaners, represents security workers, represents a range of other employees for whom there are clear occupational based classifications structures and minimum conditions and where those employees are found in all industries.

So, for example, if the Bench were to decide that maintenance workers - or the terms and conditions for maintenance workers were to be imported from an industry award and applied across other industries, then we would need to argue our position in relation to security workers employed by other than security contractors and cleaning employees employed by other than cleaning contractors.

We acknowledge that the Australian Services Union, with some qualifications, the Construction, Forestry, Mining and Energy Union, have endorsed the LHMU approach. We also acknowledge that the AMWU and the CEPU have maintained their principal objection to our position. The Club Managers Association and the Australian Workers Union have also endorsed, as we read it, the LHMU approach but also with qualifications.

The CFMEU does not - is not opposed to HIMA covering the CFMEU maintenance trades where the workers are directly employed by hotels and casinos, et cetera. CFMEU at page 5 of its written submission suggested that the HIMA coverage of maintenance be restricted to small carpentry, repair and renovation work but not involving structural alteration to buildings or structures. In oral submissions yesterday CFMEU confirmed this position on the basis that existing conditions of tradespersons are protected through utilisation of the proposed Division 8 of HIMA. We can accept this approach. I’m not sure that we would accept the adjective “small” because we think that the qualification stands without the adjective.

We accept the position based - or the approach of the CFMEU based on the submission of AHA yesterday that major structural work, for example, adding a new wing to a hotel, is rarely, if ever, undertaken by direct employees but by specialist contractors. We note that that was a similar position put by the offshore island people. Accordingly, we would clarify that the proposed exemption of contract maintenance in clause 1.3.4(b) of the HIMA extend to structural alterations to buildings on the basis that this would reinforce the contract maintenance exemption.

The CEPU yesterday criticised the LHMU draft award because in its view the draft did not provide for a skills-based career structure for electrical tradespersons. This was an unfortunate submission, from our perspective, because we had invited the CEPU to assist in that matter and the CEPU have not responded. However, the draft in fact does not include trade and post-trade descriptors and it has the notation that further discussion is needed on it. We believe that these can be developed reasonably quickly if the Full Bench so decides. We have also accepted as consistent with our position the CEPU proposal that the HIMA contain an exemption for contractors who install, repair and maintain electronic gaming machines in casinos and hotels.

In relation to the Transport Workers Union we confirm that it is not our intention that HIMA extend to in-flight catering for airlines. The LHMU and CWU are parties to a range of enterprise awards covering catering employees engaged on this work. The LHMU draft of HIMA applies to catering services at airports for passengers and visitors, not in-flight catering. So airport catering traditionally has been in the waiting area, either waiting to get on to a plane or waiting for people to get off, not the in-flight catering, or for what passes as in-flight catering. Airport catering was considered prior to Work Choices as a separate industry by the Commission and was always distinguished from in-flight catering. In-flight catering was part of airline services; airport catering was part of airport services.

Now, however, consistent with our position where a general caterer supplies an airline and those supplies are used for in-flight catering as an incidental part of that caterers business, we would expect that the catering provisions of HIMA would apply to the caterer and its employees for the reason that the caterer in that category is not in the airport catering provision but is in the catering industry. That’s clear.

In relation to the Motor Trades Association, we agree with AHA that it was never intended that HIMA apply to service station employees. We don’t disagree with the proposed exclusion which is referred to by the AHA at page 13 of his document yesterday for the reason that the employees involved are not, in our view, hospitality industry employees but they’re in the service station industry.

Your Honour, the AWU Victoria yesterday made reference to the LHMU position on golf clubs and bowling clubs ground staff employees. The position we have adopted and to which Mr Simpson has referred today again is consistent with our approach in all industries. We consider the industry in which the employee is employed to be the relevant enquiry. But at the same time we also stand by the principle that existing representation rights and existing conditions should be preserved and protected so that the AWU would be a party to the proposed racing and - sorry, Registered and Licensed Clubs Industry Award and would have its rights in relation to directly employed ground staff at bowling clubs and golf clubs and the like protected. The LHMU put this submission in its very first submissions to the Full Bench and we have been consistent on that.

Also, again consistent with our general position we accept the proposal from the AWU Victoria and from the Local Government Association in its written submissions that employees of local government should be excluded from the scope of the proposed Clubs Award.

THE SENIOR DEPUTY PRESIDENT: That’s persons directly employed by local government.

MR SWANCOTT: Yes. And there is a formulation in the local government written submission for an exclusion which in general we adopt. Your Honour, before the clubs and the racing industry - I’ll move to the racing industry. The current position with hospitality staff in racing clubs on racecourses, if you like, employees, for example, of the Australian Jockey Club, which was represented yesterday is that those employees are regarded as hospitality workers. They work under LHMU federal and state instruments.

There is an award of the Commission known and the Liquor Industries Racecourses, Showgrounds et cetera Casuals Award 1998 which is both a pre-reform award and a transitional award. The transitional award is AT787006. It’s a respondency based award with named racing clubs and trotting clubs and other clubs, the New South Wales, all of Queensland, Tasmania and Victoria. Now, the main wages and classification provisions of that award are also reproduced in the Victorian Catering Award and common ruled. So the provision of those classification descriptors and rates of pay are recognised, as I say, in Victoria as part of the catering industry and are so recognised by us nationally.

The situation is that many employees who are employed pursuant to those two federal awards are directly employed by the race clubs to do that work, although the vast majority of them are casual employees but they are direct employees of the race clubs. The LHMU does not intend that the Licensed Clubs Award proposed extends to race clubs generally but the other problem is that not all of the work that is supplied - that is done by hospitality employees on race days is done by employees of the club. It’s done by catering, external catering on an event basis or a day-by-day basis.

So, it seems to us that what there does need to be is provision in both awards covering the hospitality services at race meetings of the various kinds and it also seems to us that those provisions should, to the greatest extent possible, be the same so that they cover the employees of the external caterers and they cover the direct employees of the race clubs but they do so on a fair and safety net basis which is equal to those employees.

THE SENIOR DEPUTY PRESIDENT: So the Race Club Award you say should have hospitality, provide for direct employees?

MR SWANCOTT: I haven’t actually put it as hard as that. At the moment, the Race Day Award does not have hospitality provisions in it in the draft and that is pursuant to an understanding that the AWU and LHMU has had for many years. The difficulty that’s been posed by the AFEI on behalf of AJC and others yesterday, saying that those hospitality rates should be transplanted into the Race Clubs Award is that it raises the dichotomy. It raises the issue of those persons who are not direct - - -

THE SENIOR DEPUTY PRESIDENT: The caterers versus the directly employed.

MR SWANCOTT: Yes, the catering versus in-house dichotomy and that’s put forward by us as a possible solution without us being heavy on it because traditionally it is being seen as a hospitality function and people have lived with the - deriving those rates of paper from that award.

THE SENIOR DEPUTY PRESIDENT: Yes.

MR SWANCOTT: Or those awards. I move now, your Honour, to the AHA’s position yesterday. In relation to the scope clause of the award, the AHA proposed a clarification of the exclusion of contract cleaning from the scope clause of the award did not extend to companies operating exclusively in the hospitality industry to provide housekeeping services and we accept that this is consistent with the position we have taken that if the industry of the employer is genuinely within the hospitality industry then HIMA would apply to their employees. But of course if hospitality housekeeping was an incidental part of a major general cleaning company then that would be a big imposition.

Now, your Honour, I move now to general conditions matters and the structures proposed for these awards. We confirm our position that the case for separating out the motel accommodation sector into its own award is weak to the extent that status or sexual differences exist as between motels awards, federal motels awards and NAPSAs on the one hand the Hospitality Award, we believe that they can be identified and preserved during the transition period in an appropriate subdivision of the award.

It’s true that if there is inaction over the next 16 months or the following four years of the transition period, for some employers and for some employees there may be economic consequences. In other words, if we put the state occupational and conditional differences into schedules and then do nothing about them for five and a half years, then at the end of that period there may be consequences one way or the other. The Full Bench clearly still has the task of interpreting the award modernisation request and Part 10A of the Act, maybe with the help of the Federal Court at some stage down the track and the parties to propose modern awards will adapt their final position on the basis of the Full Bench’s interpretations.

The LHMU says that in the interim five-year period. Our approach to award modernisation seeks to ensure there is further discussion, further refinement. We don’t see yesterday and today as being the last shot in getting the terms of a modern award to apply in 18 months time together.

One of the areas of interpretation will involve the interaction of the legislation with the award modernisation requests. I’ll take one example and that’s the example of stand-down provisions. Now, in current Part 10 of the Act which operated continues to operate in relation to existing pre-reform awards of the Commission. Stand-down is identified as an allowable award matter. But in Part 10A of the Act, which will operate for modern awards in 17 months time, stand-down is excluded from the list of modern award allowable - allowable modern award matters.

Stand-down, however, is referred to in Division 7 of Part 12 of the Act as a minimum entitlement of employees and specifically in section 691A stand-down is permitted in particular circumstances if the section applies. As a matter - it’s not the easier section in the world to construe, section 691A but it’s clear from its terms that it operates in relation to awards, that is current awards rather than modern awards. The particular circumstances in section 691A are limited - they’re limited to a strike, a breakdown of machine or a stoppage of work for any cause for which the employer cannot reasonably be held.

Now, in the current hospitality award there are additional bases upon which stand-down can be effected and there are protections for employees. For example, if an employee turns up for work and the stand-down occurs after they’ve start then they’re entitled to a minimum of four hours pay which provision is not contained as a protection in the minimum of entitlement of employees division of the Act. I only raise that as an issue because on one view the section 691A will exhaust on 1 January 2010 because it’s expressed to apply to awards which are not defined to include modern awards. And as stand-down is not enumerated as an allowable modern award matter, it can’t be included as a term of a modern award.

The AHA, as I understood, has said that it’s incidental to the payment of wages or the way work is performed or some other head of power in Part 10A, section 76J, I think it is. That’s a matter that the Bench is going to have to come to terms with. In that respect, we adopt the analysis of allowable content in modern awards that was contained in the ACTU's written submission in relation to award modernisation, and specifically in relation to this award - or this industry.

Now, your Honour, in a number of the employer submissions, it seems to us that there are contradictory approaches that have emerged and I’m particularly referring to the written submissions of the major employer organisations, for example, the Western Australian Chamber, contradictory approaches to NES matters. On the one hand some argue that permissible terms can be imported into modern awards where there is no provision in the awards for them now; on the other, they argue that Part 10A matters that were clearly determined to be allowable award matters in the pre-Work Choices incarnation cannot be imported in the current award.

Now, that argument was put, for example, by WACY, section 515 of the Act would suppressed allowable award matters during the Work Choices period in effect extinguished them and such provisions like casual conversion, accident pay could not now be regarded as allowable modern award matters because they were killed off by Work Choices. But the ACTU analysis and that put forward in another proceeding earlier this week by the AMWU, which is that the effective repeal of sections 513 through to 515 resurrects the allowability of matters particularly those determined by Full Benches in the post-1996 period enables those matters to be brought back into the award as allowable award matters when they can be referenced back to a provision of Part 10A. I hope I have made that clear.

If I take, for example, casual conversion which was agreed by the Australian Hotels Association and the LHMU after lengthy conciliation and involving Commissioner Lawson to be an allowable award matter and an appropriate provision to include in the award, it cannot be said now that that no longer is an allowable award matter when the section suppressed its practical application in the past 18 months was in fact repealed in full by ..... fairness.

Now, the HMAA, Mr McDonald, is in a similar position where his client through its industrial wing, the NIMA, consented to a variation to the Motels Award for casual conversion on the basis that it was an allowable award matter and on the basis that it was appropriate for the industry to be itself representing. I know that Mr McDonald would not want to be put in the position of walking away from an agreement so solemnly given on behalf of his clients. I certainly know Mr Clarke wouldn’t.

Your Honour, another difficulty we face is that it doesn’t appear to us that many of the employers that have made written submissions have actually read Part 10A of the Act or have read the request closely. I take as an example of that part-time employment. The allowable award matter in Part 10A is regular part-time employment. Mr Clarke has dropped the adjective and has put forward a part-time employment provision, not a regular part-time employment provision which strips most of the protections away from employees, treats them as casuals but doesn’t pay them as such.

That's what we say the effect of the proposal is. And there is no warrant, in our view, in the request to break down the arbitrated protection for regular part-time employees in this award which came from the award simplification decision of the Full Bench way back in 1997 that's recorded in 75 IR 272 onwards. I know that. I heard that.

THE SENIOR DEPUTY PRESIDENT: We're all familiar with it.

MR SWANCOTT: Yes, your Honour. The AHA criticises the current regular part-time employment provisions framed by the Full Bench of the Commission as enshrining the right to have fixed or set rosters. We agree. And that was its purpose. Its precise purpose was to protect regular part-time employees from capricious or unfair rostering regimes that would have had the effect of preventing them than actually getting them work. Now, I turn to Restaurants and Caterers briefly, your Honour. And again I'm not sure that those representation them have actually read the comments of Professor Andrew Stewart three weeks ago in Work Force in which he suggested that anybody who came to this Commission with a log of claims, with an arm full of ambit service fee, would be treated as irrelevant because the process of this award modernisation is not about having another go at smashing conditions, it's not about having a fresh look at penalty rates.

We know the fresh look at penalty rates, we saw it during Work Choices, we saw the fresh look in the template AWAs that Restaurants and Caterers were flogging around the country, we read about them in the academic studies, for example the decision of the university, we saw them in the submissions of the House of Representatives inquiry in to the tourism industry and the fresh look of penalty rates proposed by Mr Hart and the Restaurant and Caterers is to take all penalty rates away to cut them out entirely. Because that's what they did when they were allowed to do it during the first 14 months of Work Choices and it was such a rort that the government had to back off, introduce a fairness test and one could argue it was such a rort that it ultimately brought that government down, or certainly contributed to it.

Now, we say that restaurant workers were exploited under Work Choices. We say that this is not the exercise to give their employees another go in exploiting them. In relation to apprentices, AHA propose that apprentices and issues associated with apprentices could be addressed in an appendix to this award. I understood that the Victorian Chamber also raised the prospect that this be dealt with comprehensively across all industries in the National Training Award. We have no objection to either of those courses. We acknowledge that in relation to the National Training Award, that's a matter much wider than the hospitality industry, but we do see merit in that approach.

THE SENIOR DEPUTY PRESIDENT: And that's the general training arrangements associated with this?

MR SWANCOTT: Yes.

THE SENIOR DEPUTY PRESIDENT: Yes.

MR SWANCOTT: Now, in relation to shift work Mr Clarke raised concerns about the definition the LHMU had put forward of shift work for the purpose of attracting the NES provision guaranteeing shift workers an additional week of annual leave. The definition we had adopted was that agreed between the Australian Industry Group and the Metal Trades Federation of Unions as appropriate for NES purposes. It's survived all drafts of that award including the final one put to the Commission. It has a clear meaning, in our view. It says that workers whose normal hours are able to be rostered over any days of the week and who are regularly rostered to work on Sundays are seven day shift workers and are entitled to the benefit of the NES and entitled to have that recognised in HIMA. By IMA in HIMA.

Regular doesn't mean occasional as suggested by the AHA at page 38. It clearly doesn't mean that. And we reject the definition put forward by AHA. It's an extreme definition. It would have no application and we note that it has no provenance either. There is no source for any of the elements of it at page 38. in relation to annual leave loading, we don't accept the AHA's suggestion that the Commission should modify the NES provision by imposing a 12 month qualifying period on access to annual leave loading. As we read the NES the concern raised by AHA is a real one, but it's a legislative matter not an award issue.

While annual leave loading is a modern award allowable matter, the rate of accrual of annual leave is an NES matter. It accrues progressively during a year of service according to the employees' ordinary hours of work. We agree with the implicit assumption in the AHA's submission that annual leave loading will also accrue progressively as it is applied to ..... annual leave loading would also accrue progressively as it is applied to accrued leave. But clearly, however, we disagree with the AHA's solution of the annual payment. In relation to public holidays, the LHMU does have a draft to include WA, South Australia and Northern Territory public holidays into that clause and to fix that clause up and it was an oversight that that wasn't included in the final draft forwarded to the Commission.

In relation to superannuation the LHMU supports the ACTU's written submission. I dealt with the issue of accident pay and in our view it is an allowable award matter. It's a reimbursement type allowance. It's a test case provision, particularly in relation to casuals in Victoria and in our view it should be included in the modern award. We also believe, and we support the submissions of the Australian Services Union, that differential redundancy provisions in the New South Wales and in Queensland should be acknowledged and recognised and protected in the modern award for those employees entitled to them. In relation to convention centres, I'm sorry I come to my notes from today, in relation to convention centres as with the AWU we don't have a fixed view on the fate of convention centres and theme parks.

That's a discussion that will be, we'll need to continue over the next day or so.

THE SENIOR DEPUTY PRESIDENT: That's presumably - - -

MR SWANCOTT: The intention of the - - -

THE SENIOR DEPUTY PRESIDENT: Sorry, Mr Swancott. But that's stand alone rather than the palladium room in Crown?

MR SWANCOTT: Yes.

THE SENIOR DEPUTY PRESIDENT: Or something of that nature.

MR SWANCOTT: I'm about to come to that. The intention of the scope clause of the award was to cover convention facilities that are operated in association with hospitality venues that fall within the scope of the award.

THE SENIOR DEPUTY PRESIDENT: Yes.

MR SWANCOTT: Now, I'm not sure if your Honour has been to Canberra Casino.

THE SENIOR DEPUTY PRESIDENT: No.

MR SWANCOTT: It's not many people go there. Well there is a convention centre attached to that. No sorry, there is a convention centre and a pub attached to that. They are, as I understand the arrangement, there certainly used to be when I investigated it some eight or nine years ago, the pub owned the convention centre and it operated in conjunction with the casino. And that's the kind of convention centre that would be caught by this award because the employees of the hotel do the service, do the cleaning work, et cetera, as part of their functions because of their association.

But a convention centre like the ECCA or the .....

THE SENIOR DEPUTY PRESIDENT: Jeff's Shed.

MR SWANCOTT: The Brisbane Convention Centre, which is stand alone, have their own employees brought in for that purpose and not associated otherwise in the hospitality industry would not be caught, is not intended to be caught, by the scope clause of this award. And if you look at that clause you will see that it as drafted, and it's on page 4 the last dot point, it refers to:

Restaurants, function areas and convention or like facilities operating in association with anything above.

So it's not intended to be stand alone. It's actually not intended to cover convention centres. It's to cover facilities. And again if one focuses on the industry of the employer, the theme park and the convention centre arguably are in tourism or some other sector of the industry and are not necessarily caught within the hospitality concept embraced by this award. I hope that's clear. But we will talk further about it because it does raise the question of where those employees end up, and there are many of them in theme parks, in convention centres, in the various states.

Now your Honour, I think if that might be a convenient point for me to conclude. I indicate that the LHMU has been careful in its, to the extent that it can be, in its drafting to try to define and limit the industries that we seek to be covered by HIMA and by its little brother, the Clubs Award, the Registered and Licensed Clubs Award. We have also been careful to adopt as template awards those that have provenance of the Commission, that have been through the rigours of award simplification, that have been tested against the requirement that they be minimum rates, safety net awards, which requirements continue of course to apply to modern awards.

We don't see that there's any room to use a state NAPSA, for example, as a template which derives from a different legislative structure and where there are different considerations, for example in New South Wales with industry settlements being able to be transferred into awards, were permitted during that period.

THE SENIOR DEPUTY PRESIDENT: Well, that's made clear I think in the New South Wales government, the nature of the instruments there.

MR SWANCOTT: Yes. And I was going to make reference to the New South Wales government submissions. So your Honour, as I indicated at the opening my colleagues from liquor hospitality division of the New South Wales branch also will make further submissions.

THE SENIOR DEPUTY PRESIDENT: Do they have a different view on the New South Wales NAPSAs? Yes, who have we got?

MR M HAWKINS: Thank you, your Honour.

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Hawkins. Yes, go ahead.

MR HAWKINS: Your Honour, just to preface my submissions today, we take basically the same view as our national office in terms of the submissions made today. We'd also like to make some further submissions and are aware the liquor and hospitality submissions are silent. We rely upon the national office's submissions to put forward our view. We support the views of both the LHMU and Clubs Australia and numerous other employer associations in terms of the segregation of awards, and in particular we would support that a licensed club award be separated from restaurant and catering additionally.

We are working with our national body to develop a national draft award and refining the award that's being submitted already by the national office and it's my understanding that further discussions are going to take place between our division and the national office in terms of putting forward our division's views on what we would like to see in that licensed club award. We'd also like to note the comments made by Clubs Australia yesterday in the benefits of part-time work provisions. It's particularly important in the club industry the flexibility of the part-time work provisions provide to the industry and to the employers. However, we'd like to qualify this support by saying that any part-time provisions that are included in a national licensed club award would be loosely based on the club employees' NAPSA in New South Wales.

We believe that's a strong basis for which part-time work arrangements can be done in a licensed club industry. And finally, your Honour, just reiterating that this division of the LHMU would like to continue to be actively involved interview the participation and the consultation in regards to a licensed club award and we'd obviously like to continue supporting our national office. So if the Commission pleases.

THE SENIOR DEPUTY PRESIDENT: Thank you for that, Mr Hawkins. Is there another branch? No, okay. Anything further or arising? I might say in relation to any draft, if there are any modification or updates reflecting further discussions between the parties they will be gratefully accepted, obviously as soon as possible. Yes, Mr McDonald.

MR MCDONALD: Your Honour, if this is a convenient point I seek to take the Commission to the draft proposals as to the terms of the award sought by Restaurant and Caterers and Hotel, Motel Accommodation Association if it please.

THE SENIOR DEPUTY PRESIDENT: Yes. A bit of consultation going on between you?

MR CLARKE: Sorry, your Honour. I just need to assist you on understanding the brief discussions I've had with the fellow employer groups, that the restaurants wish to discuss further their draft award with you. The clubs also wish, as I understand, to make some submissions on the draft award. This morning we would, as envisage, I mean yesterday just wouldn't mind, I've only got a couple of quick points to make, but I wouldn't mind holding them until I've heard from the restaurant and clubs so I can come back to the document and it's probably just mentioned by your Honour seeing if there's a way that I can put that document to further use for the Full Bench over the next week or so, whether it be by further discussions or an update.

THE SENIOR DEPUTY PRESIDENT: Very well, yes. So we're with
Mr McDonald, yes?

MR MCDONALD: Thank you, your Honour. Could I first briefly respond to some matters that were raised in the submissions of Mr Swancott. First off in relation to the separate award issue Mr Swancott, if I'm quoting him correctly, said that the case for separating out the Motels and Accommodation Award is weak and can be dealt with by an appropriate subdivision. Your Honour, I should indicate that we are not proposing a separating off. What we're asking the Commission to do is to do what it's always done in terms of keeping a separate award for accommodation. It made the first award, the Motels Award, back in 1973 and has continued on. So we're not asking for a change, your Honour. It is what's been put, in our submission, is a massive change in terms of completely changing the award regulation of the accommodation sector.

And in terms of how the union has approached this HIMA Award, it talks about approaching it on the basis of a principle function and again we say that you can't approach something on the basis of a principal function for some sectors of hospitality and not others. You either accept the proposition, you adopt the principal function test or you don't. So in our submission the four industries that make up the hospitality sector should have award structured around their principal function and it wouldn't be appropriate for the function of selling liquor or offering gaming services to be something that determines award regulation for others.

And without wanting to repeat my submissions from yesterday, it seems like a bizarre situation to say that half the hospitality industry, for example, it's covered by restaurant and catering awards should now have that industrial regulation completely disregarded. All that history disregarded. And the award made for the hotel industry should be picked up and applied. And that award for the hotel industry applies to a much smaller number of people than the awards supplying the restaurant and catering sector. And the other point we make is that when such a radical change is sought, it's not sufficient to put no reason up for such a radical change. It seems the only thing that's being put is that because the Full Bench in its decision had indicated that they were reserving their position on the issue of the number of awards and keeping them altogether in the priority list, that that somehow predetermined a result.

In our submission no decision has been made about how awards in this sector should be structured other than all these areas are going to be in the priority list. We say that's the reason for the union changing its position. It's a misguided one. We say that with respect. In terms of comments regarding shift work in the industry, in our submission in neither the restaurant area or in the accommodation area is there shift work. It's not shift work described in the award. The awards deal with day workers. And in our submission it's been accepted even in the hotels area by this Commission that there shouldn't be an additional week of annual leave because employees in this industry are not shift workers as such and certainly not seven day shift workers.

It is of course fair to say that over the years there have been agreements reached in some industries to put in place annual leave arrangements that aren't, that provide for extra relief that aren't based on seven day shift work formulas per say. There's certainly been no test case by the Commission where the standard in relation to an extra week of annual leave has been changed. It simply revolves around that seven day shift worker provision unless otherwise agreed.

THE SENIOR DEPUTY PRESIDENT: We're talking here, are we not, not about an award condition but a variation to the National Employment Standard?

MR MCDONALD: Yes, your Honour.

THE SENIOR DEPUTY PRESIDENT: Which defines shift work, is that the case?

MR MCDONALD: It is, your Honour.

THE SENIOR DEPUTY PRESIDENT: And you're suggesting in effect that a different definition than that contained in the National Employment Standard?

MR MCDONALD: No, your Honour. What we say is that the National Employment Standards provide for a definition to be put into the award as to a seven day shift worker relevant to that particular industry. But our point is two fold. One is that this isn't a shift industry like industries such as hospitals and so forth and it's been accepted as such by the Commission over the years and the way that the awards have been structured is to not to have shift work arrangements. But the second point is that even on the standard test of seven day shift workers in continuous process industries receiving an extra week of annual leave, that requirement would also not be met.

THE SENIOR DEPUTY PRESIDENT: Yes.

MR MCDONALD: Sorry, your Honour?

THE SENIOR DEPUTY PRESIDENT: So it comes back to if a modern award that applies, defines or describes the employee as a shift worker, that's the terms of the NES?

MR MCDONALD: That's right, your Honour. And these are not shift workers. I'm sorry, your Honour, I don't have a copy to hand up to you, but in relation to the hotel industry, that was dealt with a decision of the Full Bench of 15 July 1980 in 3389, the relevant extract to the Commission, I'll provide this to the Commission and the parties. But it's at page 330 where the Commission says:

In his decision of 7 February 1979 Mr Commissioner Brack expressed the view there is very little shift work as such within the industry. This view has not been challenged nor has anything been submitted to suggest that any of the employees could properly be regarded as seven day shift workers or any circumstances within the Hotel and Retail Industry Award which could justify an extension of this principal whereby the benefit of an extra week's leave is restricted to this class of shift worker.

And there was further consideration for a matter by a Full Bench in relation to the Theatrical Employers Sydney Convention Exhibition Centre Award 1989 in print M7325 on 1 December 1995. And in that case an extra week was being sought in relation to electricians employed at the convention centre on the basis that they regularly worked weekends. The Commission declined the claim on various reasons without taking an overall view of setting any new standards in relation to the matter. And the Full Bench's conclusion on page 16 was that:

In light of our decision that the test of regularly working Sundays has not been met on the material before us, we do not intend to determine the other relevant issues including whether or not the employees covered by the claim are `shift workers' or day workers rostered to work on some Sundays. Of course, the definition of "regularly working Sundays" and the scope of its application across categories of employees, is open to review in any test case. In particular we have nothing to say on the extent to which the concept of continuous process has evolved, ie. whether the requirement is a process where work must be continuous or whether it be a particular arrangement of shifts whatever the work that is being performed. We agree with the WA Nurses Full Bench decision which stated that it: "will leave to another Full Bench, at another time in an appropriate case, the responsibility to determine what minimum standards should apply generally in awards of the Commission."

So in our submission, your Honour, it's been accepted that there's not shift work in the industry as such and it's based on ordinary hours. It may be that in another industry such as the nurses that's mentioned there, there are different arrangements applying and that may be accommodated in those awards applying to nurses and in those other industries where that situation arises. But in our respectful submission it doesn't arise here. Mention was also made in relation to the part-time provisions and the model clause in the Hotels Award. In our submission there is certainly no statutory restriction on a flexible part-time arrangement being provided for in the award.

Sure it is that in award simplification there was a provision inserted in the Hotels Award at that time, but that model provision isn't one that necessarily should be transported to other areas in the hospitality industry. It was a model only and it can be amended. In relation to the Motels Award, for example, your Honour might recall a Full Bench agreed to an alteration of the part time provision so that people could mutually agree on working additional hours up to 38 hours per week. So there's certainly no statutory bar to that occurring. In fact when the Act was amended in the transition to award with fairness amendments where aware rationalisation provisions were taken out, one of the other provisions that was taken out was the requirement for part-time employment and the notation that the Hotels, Resorts and Hospitality Industry Award as a model clause.

I'll deal with that in due course when I refer to the particular provisions of the Awards that we seek. And your Honour, in relation to what had been put forward by the New South Wales union about part-time employees and something in the nature of the Club Employees Award being appropriate is a submission that we don't necessarily quibble with, although our provisions are not exactly in the same terms as that proposed or existing currently in the pub area. Your Honour, if I could turn to the terms of the awards that we seek, there's a summary by HMAA of the award that it seeks that was filed on 1 August.

I should just, your Honour, make some general comments about the approach that we seek to take to these awards in terms of how we frame these provisions. Our starting point has been in the comments or in the statement by his Honour the President of 29 April 2008, the award modernisation, paragraph 11 where he says:

Within each industry occupation the principal federal award will usually be the starting point for drafting. The drafting process may take into account the terms of other federal awards, not enterprise in the same industry. The Commission is required to take into account wage rates derived from state awards constituting NAPSAs as well as rates and transitional awards. Other terms in state awards may also be relevant.

In our submission it would be appropriate for the Commission to look at the existing award regulation in the industry, whether that be state or federal. Taking, for example, the Motels, Accommodation and Resorts Award, that is a federal award particularly in states other than Queensland and Western Australia and considerable regard should be had to that award in terms of determining conditions. In relation to Queensland, account should be taken that the award doesn't apply other than in a fairly limited way in south east Queensland so that the conditions under the Accommodation Award in that state should also be taken into account by the Commission in framing the award.

In relation to the Restaurants award, restaurants have generally been regulated by the state systems, although more recently there was the Victorian award put in place by the federal Commission. In our respectful submission account should be taken of those state awards and in doing so we've had regard to which awards cover, I suppose, the most number of people and that tends to be the New South Wales awards. We have also taken you to account how modern those awards are and some of those awards have been reviewed thoroughly by the Commission in more recent times and we say it's appropriate that more regard perhaps should be had to those conditions which are of a more modern character than other conditions.

In terms of the task before the Commission in creating these awards we say that that's pretty much covered by paragraph 11. It's akin to something of setting a first award where the consideration is to some extent existing rates of pay and conditions, however that is also influenced by consideration to efficiency and so forth and also the requirements as to what's to be included in modern awards that are set out in the Act. As to first award principals, your Honour, I don't say that the Commission is necessarily bound by this, but it may helpfully inform the process. I might just hand up a copy of the review of wage fixing principles August 1994, in [1994] 55 IR 144.

I refer to this, your Honour, simply because it's the last time that there's been a consideration of the first award principle as it appears in the wage fixing principles that apply to the onset of the 1996 legislation. If I could take the Commission to page 164 and at the second last paragraph on that page it says:

The Commission has decided to deal with first awards in an integrated way. The parties agree that a first award should initially be made as an interim award which prima facie the main consideration is the existing rates and conditions. However, they were not agreed about the scope of the exceptions to this prima facie position. The parties also agreed that in the making of the first award proper the main considerations should be that the award meets the needs of the particular industry or enterprise while ensuring that employee interests are also properly taken into account. The structural efficiency principles should be applied when making of a first award proper.

And I miss the next two paragraphs and then about point 3 the Full Bench states:

Having regard to the submissions of the parties of this issue and taking into account section 111(1)(d) the Commission considers that the prima facie position should be displaced where changes were made unilaterally to pre-existing rates of pay and conditions and where there was no genuine consent to such changes. We are not, however, satisfied that prima facie position should be displaced where the changes were made by a state industrial authority as defined in section 4 of the Act. The Commission endorses the agreement of the parties that when making a first award proper the main consideration should be that the award meets the needs of the particular industry or enterprise while ensuring that employees' interests are also properly taken into account and that structural efficiency considerations apply.

While not necessarily binding on the Commission we say that that is a suitable approach to take in this situation, your Honour.

THE SENIOR DEPUTY PRESIDENT: Subject to the application of the terms of the request.

MR MCDONALD: Yes, your Honour. Subject to section 576(a), but we say that they're not necessarily inconsistent.

THE SENIOR DEPUTY PRESIDENT: Yes.

MR MCDONALD: The Commission has the difficult task, of course, with the request and also with trying to piece together a number of different industries. And for the hotel industry they may have had an award that has had general application, the other industries have been regulated in different ways, particularly in restaurant industry by state awards and also account needs to be taken in Queensland in the accommodation sector which of course is not insignificant. If I could now turn to the HMAA proposed modern award and as I indicated, this is largely based on the existing Motels, Accommodation and Resorts Award with some changes taking into account Queensland provisions and to some extent other state provisions.

The coverage is essentially the same. It excludes businesses who are principally there for liquor or gaming purposes who derive their income from that. That's a finding a principal function type approach that I explained before. In relation to the application clause, it sets out the areas to which the award doesn't currently apply, such as boarding schools, hospitals and the like. It also then sets out various other exclusions that are proposed from the award. In particular it seeks that managers be excluded from the award. At the moment in the Motels, Accommodation and Resorts Award the Managerial Award doesn't apply to employees under that. It has no application to managers. There was a decision in relation to this when there was a review of the Hotel Managerial Staff Federal Award 1974 and there was an attempt to update that award.

The Motel Association intervened in those proceedings to make sure that the award wasn't extended beyond the pubs type area into a new Accommodation Resorts Award. And the pub managers on that occasion made it clear that that was not what they were intending. That was recorded in the Commission's decision of 21 February 2003 PR928053. There are other areas of exclusion also in relation to the operation of that award which is set out on that page 3 and 4. In relation to minimum wages, the wage rates that are proposed are those currently contained in the Motels, Accommodation and Resorts Award. The junior rates of pay are derived from the Queensland Award. That seemed to be a simpler scope that doesn't have as many levels as what the Motels, Accommodation and Resorts Award has.

The federal Motels, Accommodation and Resorts Award also has a different scale for juniors employed in the office and juniors employed outside the office and this attempts to reconcile those into one simple scale. So instead of starting, it starts at 18 years of age rather than 15 years of age, the junior clerical employees start at under the Motels, Accommodation and Resorts Award, and it would start at 17 years of age in relation to other junior employees under the federal award. There is provision in types of employment for salary employees. This is a feature of both the Queensland and the federal Motels Award, although the provisions are slightly different which I'll come to shortly.

In relation to full-time employees the standard provisions apply as to a 38 hour week. In relation to part-time employees we seek a more flexible provision which is akin to the Queensland award. In a Queensland award there is no particular requirement to set a minimum number of hours, so people can work within a range of hours. Under the federal Motels, Accommodation and Resorts Award it has something in the nature of the provision that's in the federal Hotels Award, but with a modification which makes it somewhat more flexible which I referred to earlier. And that modification is that people can agree to work beyond their minimum hours without payment of overtime up to 38 hours per week.

Now, a similar sentiment is or a similar provision is provided in that third dot point in relation to part-time employees with the right that there be a minimum number of hours given. Now, that wouldn't be the same as the existing federal Motels Award which has a requirement to set starting and ceasing times and days of work when someone is first employed. What it would require is simply that a minimum number of hours, let's say it's 20 per week, would be agreed. That would be given any week of the year. And then if further hours are available and an employee wished to work them, they could be worked up to 38 hours per week. So that's slightly less flexible than the Queensland award, but probably more flexible than the federal Motels, Accommodation and Resorts Award.

As I indicated yesterday part-time employment is much more of a feature in the accommodation sector because of the large numbers of room attendants that are employed and part-time employment generally suits that style of operation and also suits the type of people who generally like that employment. But it would be the reason that the federal Motels Award was changed I suppose was with some frustration that if a part-time employee wanted to get extra hours and there was work available that suited employing those people for, it seemed a shame to have to put someone else off or otherwise pay overtime dates for that work to be performed. Catering employee provisions are the same - - -

THE SENIOR DEPUTY PRESIDENT: Mr McDonald?

MR MCDONALD: I'm sorry, your Honour?

THE SENIOR DEPUTY PRESIDENT: Is flexibility you're seeking something that can be accommodated within the model flexibility provision?

MR MCDONALD: Your Honour, the model flexibility provision is very rigid in the way it's approached. It has set starting and finishing times. I mentioned set days of work having to be recorded. In relation to the way that this sector operates, trade changes from week to week, often season to season. Some properties might have a fairly definite trade such as in some properties in the CBD, but in areas say like a coastal resort there will be peak times of the year where employees work different hours to other times of the year. In a coastal resort there will be very few hours obviously in winter, a lot of hours available in summer. In a ski resort it would be quite different again.

Then there will be various events that might occur from time to time at a particular region that might boost numbers. So the argue of having a fixed rigid system and working exactly the same hours on exactly the same days on exactly the same times every week of the year really doesn't work in this sector. That's why that flexibility was sought. But the problem is because the provision is a rather inflexible one it means that there is a real deterrent to employ part-time employees on that basis. Now, in relation to the model provisions of course those provisions are only model provisions. They obviously have regard to the provisions of the Act and there was a certain level of agreement, as I understand it, between the hoteliers and the union as to how those provisions might go forward.

But if one looks at section 4 of the Act and the definition of regular part-time employees, in our respectful submission it wouldn't require such a restrictive provision to be put in place. In our submission the Act was designed really to encourage part-time employment being available to people rather than putting restrictions in the way of it. In relation to the definition of regular part-time employee under the Act it provides that it means that employees who work less than full-time ordinary hours, this is in section 4, has reasonably predictable hours of work and receives on a pro rata basis equivalent pay and conditions to those specified in the award or awards for full-time employees doing the same work.

But in our submission there's nothing, other than the recently predictable hours of work requirement, there is nothing there that says that there have to be set days, set hours. One takes the example of that accommodation property in a coastal area that might be busier in summer and holidays than it might be in winter. The people who work at that property at probably well aware of what the work patterns are and how things work. And it's reasonably predictable as to what the working requirements can be and that can be explained to people and so forth. So in our respectful submission there is no reason why there shouldn't be the ability for people to come to arrangements on part-time employment that suit them, subject of course to meeting the definition of part time employment in the Act and if there was no reasonable predictability at all about the work despite it changing, then it couldn't fall within that definition.

But we say there's no reason to go a step further and then put artificial restrictions, in our respectful submission, on how that work might be performed. If it meets the requirements of the Act no other restrictions need be placed on it.

THE SENIOR DEPUTY PRESIDENT: Other than the possibility of disadvantaging employees if it is inconsistent with the request.

MR MCDONALD: Yes, your Honour. But in our submission the operation of a restrictive part-time provision that makes it difficult for people to be employed in such an arrangement would disadvantage employees because if, for example, that type of provision was superimposed on a restaurant or on an accommodation establishment, it would mean that they couldn't offer part-time employment to their workers. So saying there's none in Queensland where there isn't this restriction, people who are currently working part-time would have to be casualised in order to meet the requirements of the Award. And that would seem to be a non arrangement whereby it seemed as though the intention of putting the part-time provision in there was to take away artificial restrictions like minimum and maximum hours of work.

THE SENIOR DEPUTY PRESIDENT: But where is the regularity reflected in the draft submitted by HMAA?

MR MCDONALD: Your Honour, that would be subject to the Act. In terms of the HMAA draft the regularity, the reasonable predictability, would be met by providing for a minimum number of hours. So an employee would always receive those hours. They would only work extra hours if that was desired. So if one takes the coastal - - -

THE SENIOR DEPUTY PRESIDENT: But that wouldn't reflect regular hours, or certainly not in terms of how the casual provision in the unfair termination is applied.

MR MCDONALD: No, your Honour. In our respectful submission it's reasonably predictable hours that is the requirement.

THE SENIOR DEPUTY PRESIDENT: Well, it's more than the number of hours, isn't it? It's also when the hours are work. There's some predictability within that.

MR MCDONALD: Your Honour, I think to some extent that's taken and one doesn't need to get to that level of detail in terms of reasonably predictable. I suppose the word predictable is preceded by the word reasonably. So there's not going to be a level of exactness about it. But if one was to take a narrow view of the part-time provisions of the Act, it would be something that would be of great disadvantage to the employees who currently enjoy part-time employment or who would like it in the future. And I suppose what we're not, we're in a different point in time in relation to the part-time employment debate, if I can put it that way, in that at the time of award simplification and so forth consideration was being given to part-time employment provisions that quite often were then designed to have provisions which deterred their use.

So in the Restaurants Award part-timers used to only be allowed to be women and they could only work between four and six hours a day and those sorts of restrictions over the years have been taken away and it's been accepted that
part-time employment is a legitimate form of employment to be made available. So when the Commission was considering in award simplification the review of part-time provisions, it was in effect a watering down of the restrictions that currently restricted on part-time to make it available. And it's understandable perhaps that a more prescriptive provision might have been put in place at that time because of the history of part-time employment in that particular consider being considered.

But now we're talking about a situation where there are flexible part-time provisions in the state awards or other instruments and the Commission is being asked to restrict those. In our submission in that sort of circumstance there is no reason to place any further restrictions other than those provided in the regular part-time employee definition of the Act. And that would allow the existing part-time arrangements to continue to operate and some of those might have a range of hours, for example, in which part-timers work, some of them might have a minimum number of hours that are guaranteed, but all those arrangements can be accommodated obviously subject to the provisions of the Act.

THE SENIOR DEPUTY PRESIDENT: Very well.

MR MCDONALD: But your Honour, we would be concerned for example if in the Accommodation Resorts Award that somehow that part-time flexibility that's being agreed in that award was lost as Mr Swancott reminded me in relation to the casual conversation that that was an agreement, a part of that agreement was to try and make part-time arrangements under the Motels Award more flexible and it would be a shame if that was lost. In relation to hours of work on page 5, your Honour, there had been a changed proposed in relation to full-time and part-time employee minimum hours. The provision otherwise reflects the provisions in the Motels, Accommodation and Resorts Award. In relation to full-time employees the award, however, provides for a minimum of six hours and in relation to
part-time employees it provides for a minimum of three hours.

It's common agreements in the industry for those four and two hours provisions to appear, but they're not currently in the awards in either Queensland or the federal award.

THE SENIOR DEPUTY PRESIDENT: What's the nature of the agreements you're referring to then, Mr McDonald?

MR MCDONALD: Collective agreements in the industry, your Honour. Some states, some federal.

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

MR MCDONALD: We do say it would be consistent somewhat with out submission, your Honour, though that regard be had to both awards as well so we appreciate there is some inconsistency in that position. In terms of split shifts, the provisions are in effect the same as clause 23.4 of the Motels Award. That is not as beneficial as the provision in the Queensland award which is for an 18 hour split. In terms of - and there is also a difference in the amount of allowance that is paid for split shifts and that's dealt with two pages on page 8. In the Queensland award the split shift allowance is 77 and a half cents. In the federal Motels Award there are three levels of allowance starting at $1.17 depending on the spread of hours.

We're proposing an increase to 77 and a half cents, $1.17 per day which is one of the levels currently provided for in the Motels, Accommodation and Resorts Award. We say instead of having three split shift allowances it makes more sense to just have one. In relation to rosters, that's the same as clause 23.9 of the federal Motels Award and it's the same in Queensland. In relation to meal breaks, that is similar to the federal Motels, Accommodation and Resorts Award in relation to an employee working more than six hours per day being entitled to a break of 30 minutes. There is also a provision for a paid crib rate of 20 minutes under the federal Motels Award if someone doesn't receive a meal break. We haven't included that provision because it's not generally used, but we don't have an issue with it.

In relation to the second part of that provision that comes from the Queensland award which enables people to finish work early if they wish rather than take a meal break, but that would be something that would be by agreement and we say that's a useful position in the Queensland award and one that's well utilised. In relation to the overtime provisions there is a similarity between the Motels Award and the Queensland award. The difference arises, there is a difference however in the number of hours that are worked for double time fixing for overtime and that is under the federal Motels Award that an employee has to work two hours Monday to Friday at time and a half and then receives double time.

We propose the same provision as in the Queensland award of time and a half for the first three hours and double time after that. In relation to penalty rates, your Honour, we propose the same penalty rates as appear in the Accommodation Award in Queensland. Those rates are not the same as the federal Motels Award in that the federal Motels Award provides for a 25 per cent penalty on a Saturday, a 75 per cent penalty on a Sunday and in relation to casual employees they get on a Saturday their casual loading plus the 25 per cent where as on a Sunday they don't get an additional casual loading in addition to the 75 per cent.

In relation to why we say that's appropriate, we say that the cost increase that would be visited upon employers in Queensland if they had to, say, substantially increase their rates of pay on weekends is completely unwarranted and we say that the submission, the provisions of that Queensland award are appropriate. The position in Queensland in relation to penalty rates in hospitality type industries tends to be different to what it has been in other areas. As I mentioned yesterday in relation to hotels, for example, when Commissioner Gay made his decision about what the penalty rate should be, he was very much considering where penalty rates currently sat and where they should come to.

If I could briefly refer the Commission to Commissioner Gay's decision. It's only a short extract which I will go to. Commissioner Gay's decision is print K7601 made on 6 May 1993. And in that case liquor employees had been used to receiving double time on a Sunday. And the Commissioner, in our submission, had to take that into account. At page 46 on about point 5 on the page the Commissioner says:

In reviewing the application of the SEP and the issue of negative cost cutting, I have in closely considering the submissions, formed the view that it was not the intention of the National Wage Bench to prevent a review of current penalty rates. In emphasising the importance of the parties to awards "ensuring that working patterns and arrangements enhance flexibility and the efficiency of the industry"(72) the 1989 decision gave as its first example the averaging of penalty rates and expression of them as flat amounts. This was put forward by the 1989 Bench not prescriptively, but in the contrary, "without limiting the opportunities for innovation".

The Commissioner then says:

It is with this view particularly in mind that I believe it is appropriate to examine penalty rates (and other loadings for out of hours work) in the context of each particular award, having regard for the industry and the development of its award provisions. Thus events in one award can be of little determinative effect elsewhere.

So your Honour, we take from that that one can't generally import the terms of that decision say on to restaurants or other parts of the accommodation sector. I should say or in the accommodation sector. In relation to the way that the Queensland Commission has approached penalty rates there was a decision in 1991 in relation to the Hotels Award in that state and the Hotels, Resorts and Certain Other Licensed Premises Award states excluding south east Queensland. And in that case the Commission was looking at the bringing together of various other awards that apply in north Queensland to have one general award that applied to the industry and in that case determined that a time and a half penalty was appropriate.

Of course it didn't have the provision there in the same way as in the federal Hotels Award about what the penalty was on a Sunday. And in that decision the Commission decided that the time and a half penalty was appropriate. I will provide a copy of this decision to the Commission. It's a decision of 12 December 1991 of the Full Bench, being Ledley CIC, Commissioners ..... and Fisher. Your Honour, the print doesn't have page numbers, but after reviewing the authorities the Full Bench came to the conclusion that:

It will be apparent from the conclusions reached from the evidence which are given earlier in this decision that the hotel industry is a seven day a week year round operation. Services offered to customers regardless of the day of the week are limited only by licensing laws whilst providing the service and the nature of the business, e.g. tavern, resort, hotel, country pub. Every class of employee is required to work on a Saturday or Sunday or both.

And the Commission also looked at how penalties have been set in the past about a deterrent element being involved in them and that that wasn't appropriate. But in our submission it shouldn't be taken that picking up the federal Hotels Award and applying it to another area such as the accommodation sector is really appropriate because as Commissioner Gay pointed out when he was fixing the penalty rates under that award, he was fixing it having regard to the history of that award and where people were at at that time. Now, in relation to that double time penalty on a Sunday, that's not something that's ever appeared in the Motels, Accommodation and Resorts Award because it's not designed for employees serving liquor.

So that under that award there was always a lower penalty regime that was in place. In Queensland, like in that decision by agreement with the union, the time and a half penalty was picked up on a Sunday. In terms of what might be a more modern award prescription, we say respectfully that the position being put by the Full Bench of the Queensland Commission is entirely appropriate to adopt because the circumstances under consideration in that decision in terms of the starting point for considering the penalty rate issue was the same as that in the Motels, Accommodation and Resorts Award here. And there is not the influence of what's happened in hotels in the past with bar people to influence what the penalty rates should be.

In our submission it's entirely appropriate that the circumstances of the accommodation industry and the awards that apply there be taken into account in determining penalty rates, not the Hotels Award, if it pleases. We say that in doing so it would meet the requirements of the Act in terms of not increasing cost to employers. Also there could be savings provisions to take into account the position of employees also so that they are not disadvantaged. Your Honour, we note that that penalty rate issue is an issue of some significance and in other circumstances might be evidenced and so forth. In the circumstances before the Commission at the moment it's got to choose really between two awards.

One that one penalty rate is proposed that has its origins in bar people in hotels. We say that it's better to look at an award that has its origins and accommodation in terms of determining the penalty rates. Now, if the union in the future would want to put some other case about why there should be changes to that, that is of course open to them. But in terms of the position - - -

THE SENIOR DEPUTY PRESIDENT: Well, we don't know that,
Mr McDonald. That's one of the mysteries of life as we know it.

MR MCDONALD: Yes, your Honour. But we do say that to change the penalty rates in terms of accommodation in Queensland would be an enormously significant change and such a cost impost could never have been comprehended and ruled out in fact by the minister's request. In relation to annualised wage arrangements under the federal Motels Award there is an annual salary type provision as an alternative to being paid weekly wages. There's a 25 per cent loading and certain clauses of the award do not apply. We repeat that here. That provision is also found in the Queensland Motels Award. However, in the Queensland Motels Award there is no further provision which is found in the federal Motels Award which requires, in effect, a reconciliation between whether the 25 per cent compensates as compared to if the award provisions were exactly applied.

We say that such a process is cumbersome and would prevent that provision working and there's been no problems in the provision working in Queensland without such a restriction. In relation to allowances, your Honour, on page 8 there is marked differences between the awards in Queensland as to late night allowances and their treatment and those under the federal Motels, Accommodation and Resorts Award. The federal award has an allowance of $2.37 as a minimum payment which applies between 7 am and 7 pm. In Queensland it's a different arrangement, an allowance applying between 10 pm and 5 am for casual employees and I think with some full-time employees it's after 8 o'clock.

There would be a disadvantage in relation to Queensland moving to the 7 pm to
7 am allowance regime. However, the Accommodation Award in Queensland in some areas doesn't apply to clerical employees. We go to what Mr Harvey has put that there's a potential for disadvantage in relation to shift penalties at night. So what we - we don't press that position, we seek to just retain the existing federal motel's provision of the 7 to 7 penalty. I mentioned in relation to the split shift allowance that the $1.17 we propose is not as high as some of the allowances in the federal Motels Award, but higher than the 77 and a half cents in Queensland. In relation to uniform allowance, we say it's appropriate that a sum of money be agreed for the laundering of uniforms having regard to the very different types of uniforms that might be provided.

We say that's something that can be appropriately dealt with by employers and employees. The provision about a receipt or the return of uniforms is something that's a provision of the federal award. In relation to the overnight stay allowance, this is also an existing provision of the federal award. One point that isn't made in that summary is the requirement that if people are not notified before the requirement to stay overnight, that there also be a meal allowance. In the terms of the award we will include that provision in there. So that will, in effect, reflect an existing provision of the federal award and also a provision of the Queensland award. In relation to lodging we reflect the existing $136.40 deduction from the federal Motels Award.

We also have a provision that the amount may be varied by agreement in writing between the employer and the employee to reflect the standard of accommodation and all meals supplied. The reason we seek to add that variance to the federal award is that in certain circumstances there will be employees who are not satisfied perhaps with a small motel room, they might want to accommodate a family, they might want to have a larger room and $136.40 per week wouldn't quite fit the circumstances. There are a range of accommodation establishments and a range of standards of those accommodation establishments and it allows employers and employees to come to an arrangement which best suits their circumstances as to the type of accommodation provided and the cost.

In relation to annual leave, that's obviously dealt with in the National Employment Standards, but there's provision for awards to cash out annual leave. We say it's appropriate for two weeks of annual leave to be available for cashing out where an employee requests it in writing and having regard to the protections under the National Employment Standards in relation to cashing out.

That of course is not an existing provision in either award, but the two weeks tend to be a feature of agreements in the industry. In relation to annual leave loading we said that the normal 17 and a half per cent loading applied, that’s in the Federal Motels Award and also the Queensland award. Something that we should have noted there is that as with the existing award provision it would apply after 12 months service. Some of these matters of detail your Honour we will correct in the award that we put to the Commission. In relation to page 10 there are a number of definitions, but there are two that I might just mention briefly your Honour and that is in relation to rostered days off and accrued days off.

Under the award there’s the term rostered day off is used interchangeably and it refers to days that the employees doesn’t ordinarily work, so if the employee works Monday to Friday their rostered days off would be Saturday and Sunday. This is of course used in another context where employees work a 19 day month and have the 20th day of the month as an RDO. What we’ve sought to do is distinguish between the two because it does get confusing particularly in relation to public holidays in trying to determine what the ordinary days of work are. So what we propose is that in that 19 day month type scenario that that be referred to as an accrued day off rather than a rostered day off to distinguish it from the rostered day off provisions of the award.

In relation to the classifications we seek to retain the existing provisions of the
Federal motels accommodation resorts award. We note that there has been - that we covered by that gardening grounds and qualified tradespeople. At the moment there don’t seem to be any particular issues with those there’s a general classification for example, of handy person which satisfies a lot of the requirements of the sorts of work that might need to be done in accommodation property. We have no particular difficulty in some more specific provisions for qualified trade’s people.

Under the trades level of the award, being level 4 there are examples of the types of trades that are covered such as cooking, butchery and so forth and its probably better if those examples weren’t there so that all tradespeople whether they be trade chefs or trade fitters, all be dealt with in exactly the same way. It’s not a big issue there aren’t problems with that at the moment and arrangements are made with the tradespeople and often that’s having regard to this award and there may be other awards that apply to them also.

THE SENIOR DEPUTY PRESIDENT: Do you support the proposition of the AHA that there aren’t that many directly employed can I say building or metals trades persons?

MR MCDONALD: Yes, we do your Honour and the more significant work would probably be performed by contractors. Contractors generally wouldn’t be covered by this award. We take the same view as the union in relation to the coverage of the award in that it covers people working in or in connection with a combination so that if a – if there was a contractor that exclusively did housekeeping and the accommodation sector, they would be in the accommodation sector, but if they were a contract cleaning company then they would be outside, in cleaning.

THE SENIOR DEPUTY PRESIDENT: Outside, yes.

MR MCDONALD: In relation to the way that the structure works there are provisions in the structure for multi skilling and so forth. We also seek that if the multi hiring provision as exists in the Queensland award, multi hiring being where an employee might work in a different section to pick up some casual work. So someone might be working as a handy person during the week but may want to work in the restaurant on a Saturday night as a casual employee then provision would be made for that. It would be framed in such a way though to avoid any disadvantage to employees in relation to casual overtime, it would be quite separate engagements.

In relation to public holidays, it is probably best to elaborate that in the context of the specific award provisions that we propose with that award that we expect to be able to file in the next few days we will have some explanatory notes in relation to public holidays. One thing that I should mention is that in the accommodation sector public holidays present a particular problem because they operate on weekends and indeed, every day of the year. So particularly where there’s substitution that occurs there’s always a problem if a holiday is substituted from a weekend to a week day, as to what happens in a combination because people working seven days a week, would like to ensure there’s no position where the people get paid twice for the one day and that sort of thing.

But it’s probably better if we elaborate that upon in specific award provisions and in our submissions. As I indicated where there are changes to conditions that result in any disadvantage to employees we support that there should be a general savings provision to ensure that there is no such disadvantage. But in all the provisions that we’re proposing in effect they’re taken from existing award, principally the federal award, but where we think there’s improved provisions in the Queensland award or more modern conditions then we have resort to that. I’ve not really mentioned much about provisions in the other states. There is in relation to general there is a simple scale in the – I’m sorry I withdraw that – in relation to Western Australia they do have different provisions.

In relation to Sunday though they have a time and a half penalty like applies in Queensland. However they do have a different structure and different casual wages and so forth but at least on a Sunday they would have time and a half also, albeit under a state NAPSA. If I could just have one moment please. Unless your Honour has any questions I may turn to the restaurant award?

THE SENIOR DEPUTY PRESIDENT: Thankyou Mr McDonald.

MR SIMPSON: I seek leave to withdraw.

THE SENIOR DEPUTY PRESIDENT: Yes, certainly Mr Simpson.

MR SIMPSON: I will provide that information by the end of the month.

THE SENIOR DEPUTY PRESIDENT: Thank you very much.

MR MCDONALD: Your Honour if I might hand up a decision of his Honour Justice Marks of 23 August 1996 regarding the restaurant employee’s state award in New South Wales. We’ve also refined the proposed award and I hand up an amended version of that your Honour.

THE SENIOR DEPUTY PRESIDENT: Yes, well I won’t mark the decision.

EXHIBIT #RCIA HC2 AMENDED DRAFTS RESTAURANT AND CATERING AWARD

MR MCDONALD: Your Honour this draft makes a number of changes to our earlier draft and in doing so what we’ve sought to do is to provide another option to the Commission. For example in relation to penalty rates, in our submission there is no basis at all for treating Saturday and Sunday differently and we don’t believe the penalty rates are appropriate. We have put in our earlier proposal, time and a half for a six day works being an appropriate way to deal with penalties and double time for a seventh day of work.

We recognise that there may be some gulf between that position and the current position in relation to some states, so what we’ve put forward is another option if you like for the Commission but in no way seeking to derogate from the view our particular preference for a modern award not to have penalty rates for weekend work.

THE SENIOR DEPUTY PRESIDENT: The simple fact would be wouldn’t it Mr McDonald that the sixth and seventh day would be very rare whereas Saturday and Sunday work would be quite common so it must raise the likelihood of significant disadvantage to employees?

MR MCDONALD: Yes, your Honour I suppose in terms of, part of the rationale for that is that in most areas people work, employers employ people for their five day week and that they are not subject to any penalties for doing so. In the case of restaurants the public expect that they are going to be open on weekends to service people, but at the same time they are penalised for opening on those weekends, unlike other employers who work, who have a Monday to Friday operation. So from an employer’s point of view they say that type of regime is one that’s unfair to them and that the more appropriate regime is just to enable five day a week type work which is the ordinary hours in which restaurants operate.

Generally they close perhaps on a Monday or Tuesday and then work a five day week. They see that as a more appropriate regime. But in relation to if the Commission wasn’t minded to that another option would be to simply look at the existing awards that apply in the industry and the penalties there and take the approach of which has the most modern penalty structure and preserving that. It may be that the process happened over a number of stages but an option that we put forward in this document is that the Commission look at the existing penalties in New South Wales and put those in the award and have the saving provision in relation to the penalty structures of other states.

In relation to the coverage of the award as I indicated yesterday it would apply to any independently operated restaurant on the basis of the principle function type arrangement. The award flexibility is in the same terms determined by the Full Bench. The types of employment are familiar, full time, part time, casual employees. In relation to ordinary hours we say an average of 38 per week over a period of 12 months is appropriate. The reason we say your Honour is that the industry is affected by seasonality. We say from the employer’s point of view it makes sense to be able to average hours so that employees can be given work all year round.

The other option of not averaging hours would of course be that employees be employed on a casual basis only at the times when they are busy. That also works for employees your Honour in the sense that in some circumstances employees might want to accrue days off, it’s not an uncommon provision for example that five days are accrued over the course of the year to be taken as an extra week’s leave and having a 12 month averaging would enable that to occur. Your Honour I may have slipped up – in terms of the proposal as to ordinary time work on weekends it would be time and a quarter on Saturday and time and a half in this document.

THE SENIOR DEPUTY PRESIDENT: That’s as per 13.1.1?

MR MCDONALD: That’s correct your Honour thank you. In relation to part time employees we have a fairly general provision of anywhere between three and 38 hours per week. As I indicated that would have to be subject to the requirements of the Act. But we say it’s appropriate to have as much flexibility for part time employees as possible, it’s desirable for employees to have every opportunity to take part time employment if they so wish and if it was a very fixed and rigid part time provision then it certainly wouldn’t be offered. The other complication in restaurants is the type of restrictions that are being proposed in this HIMA award don’t have any application currently in those states. So it would be putting restrictions on the employment of those people that aren’t there and maybe render satisfactory work arrangements not allowable any more.

In relation to casual employees that’s the clause that we propose reflects the provisions in most states. Some states have minimum hour’s engagements, but predominantly the two hour minimum is something that applies. In relation to the classifications and minimum wage rates it was set out in our submissions about the New South Wales classification structure applying and why that should apply and in particular there were quotes from the decision of his Honour Justice Marks in the restaurants award as to that. The classification structure that we propose here squarely reflects that. There was some confusion about that in the previous document.

Your Honour will see that classification structure is very much a restaurant and catering type classification structure, it is not something that is borne out of the hotel type arrangement. For example it doesn’t have the type of introductory classification that there is in hotels. There’s a very – there’s an introductory level in hotels that has requirements for structured training and so forth and in some of those places they may have HR type people and so forth who can put in place structured training arrangements and so forth. But in the restaurant sector of course it’s a fair bit more informal and that people are trained on the job and some jobs are not particularly skilled jobs in terms of particularly at the lower grade, they can be taught fairly easily.

So that is one of the differences, but then there are also differences of members you will find your Honour here provisions about people dealing with food and beverage and you’ll find those in other awards. But dealing with food and beverage is the reason for being for restaurants so there are different arrangements in there. I mentioned one of them for example in terms of waiting duties and how there are a number of levels of waiters because in the restaurants area, that is very much a career type position and people can move through those levels and there are also a number of levels of dining and so forth that have to be taken into account in the restaurant sector, it’s not just providing meals as an adjunct to something else.

The restaurant and catering classification structure is very much geared to that and you will notice your Honour it is just over a page and the award itself I think is in fact shorter than the classification structure that is proposed in the HIMA award. But the way this award is structured is a fairly straight forward type award and one that people can pick up and read and understand. One shouldn’t have to read through 20 odd pages to decide where they’re classified. They can pick this up and pretty quickly work out where someone should be classified and someone can work out exactly what they should be paid. Because the classification structure is different the wage rates are not the same, they are properly fixed wage rates but they are not the same as the wage rates that would exist in other awards in hospitality.

THE SENIOR DEPUTY PRESIDENT: Why should as a matter of principle, persons doing the same work be subject to a different minimum safety net classification rate in one award than another? If people are undertaking work at the same levels of skills and responsibilities?

MR MCDONALD: For this reason your Honour it should be the wages should be fixed and relativities precisely on the base your Honour says works, skill and level of responsibility, the level of skill, responsibility and the conditions under which work is performed. But in different settings that will vary. So that if one looks at a buffet at the casino, there are different skills in terms of the people dealing with the food at that buffet to what you’re going to find say in a fine dining restaurant and what a waiter might provide. Sure it is that they are both serving food, but they are serving food in quite a different way and exercising a completely different skill set. So in our submission the proper place to start is with the - - -

THE SENIOR DEPUTY PRESIDENT: Well one wouldn’t be serving customers the other would, so they presumably would fall within different classification. One would simply be replenishing, or someone is replenishing the buffet and other people are taking away dirty plates.

MR MCDONALD: Yes, your Honour and it may be in another situation people are just handing out meals and not providing advice about wine and so forth. But in terms of the type of structure that you might have in a pub, or a casino, where food is served it is going to be different to what you are going to have in a stand alone type restaurant and so there’s more consideration given to those sorts of things.

THE SENIOR DEPUTY PRESIDENT: So the minimum rates are higher in the restaurant award proposed?

MR MCDONALD: In some cases yes, in some cases say there’s a higher level for example of waiter that’s in restaurant award because of that fine dining situation.

THE SENIOR DEPUTY PRESIDENT: Yes.

MR MCDONALD: But there will be various settings where people are going to be serving food and beverage, or cooking there was some mention that you’re going to have farmer’s award provisions for a cook under that, but that cook is going to be very different person to what you have in a fine dining restaurant and it’s both are cooking food, but they might be cooking food in different ways using different ingredients, different levels of skill and so forth. So just because someone is a cook doesn’t mean that’s the end to it or just because someone is a waiter doesn’t mean that that’s an end to it.

It may be in some circumstances and say for example when maintenance was being talked about it might be in maintenance in a metal shop it’s appropriate to have a number of levels of tradespersons and so forth because that’s sort of a career in that area. But in another area like if there’s just one fitter employed ion an enterprise having a whole range of levels just really isn’t appropriate and you probably only need one. It’s a little bit the same with the way that restaurants are structured. They are structured around that food and beverage side of things. Whereas in other settings infrastructures around gaming or whatever. That is not to say that they don’t take account of the fact that people might do food and beverage work but it’s a bit more of a smaller consideration in those sorts of settings.

This classification structure was one that was developed after his Honour heard extensive evidence from employers and employees in the industry about what the appropriate way of working is and we say that’s an appropriate way of dealing with classification structures in awards. We submit it’s quite wrong to pick up a classification stream from another award and simply import it into another area and hope that it works. It’s more appropriate to consider what type of operational climates there are, what type of skills there are in a particular industry and work out the structure along those lines and then once looking at the structure then determine what appropriate wage rates they are relative to other sectors. That’s precisely the approach that was taken by his Honour in this case.

THE SENIOR DEPUTY PRESIDENT: Did Justice Marks have regard to the structural efficiency award, classification structure re-structure in the Federal Commission?

MR MCDONALD: Yes he did your Honour. He considered for example what had happened in the motels area and in the hotels area, in the clubs area and decided that it was more appropriate that there be a structure based around the requirements of restaurants. The relativities that his Honour awarded are set out at page 85. For example in relation to the introductory level, that was something his Honour considered in the hotels award, that’s at page 82. His Honour came to the conclusion at the bottom of that page that he couldn’t accept that that was workable in the context of the restaurants industry.

There’s a few pages where his Honour considers the particular position, and particular decisions of the Federal Commission in relation to for example introductory rates and comes to a different view having regard to the circumstances of the industry.

THE SENIOR DEPUTY PRESIDENT: So he’s applied at level 1 the introductory relativity to a non introductory position in the New South Wales award?

MR MCDONALD: Your Honour to an introductory position, so that he just said that the first three months is – that someone could be employed for the first three months while they are training in the grade 1 level.

THE SENIOR DEPUTY PRESIDENT: That’s the level 1 position?

MR MCDONALD: Yes, your Honour. There are a number of ways he thought that operational requirements for restaurants should be the starting point, but he certainly applied the structural efficiency considerations. He applied the minimum rates adjustment principle and that was from page 77 onwards. We say his Honour was in a – because his Honour had the benefit of so much evidence about what happened in the industry, he was in a very strong position to work out what he considered to be an appropriate classification structure and that classification structure was ultimately while there was an appeal, there was agreement reached that that should remain.

In fact that 99 per cent of the award should remain and not only that there was agreement subsequently to then apply that same classification structure in the catering award and also in the canteens award. In terms of the night penalty provision we seek to maintain the prevailing position that there’s no penalty of an evening paid in restaurants before midnight and we say that that’s appropriate because they’re the ordinary hours in which restaurants work and it wouldn’t be appropriate to put a penalty in for those hours. That’s pretty much reflective of most of the state award provisions I think except in I think Victoria has a different position, but the majority of people as set out in the supplementary submission handed up yesterday are employed on the New South Wales award and a large number also are employed under the Queensland award.

In neither case is there a penalty for work at night and I think also the position a similar position may well have prevailed before the old Victorian state award might have been rescinded. I’m not sure about the exact Victoria position, but in terms of the majority of employees that work in the restaurants industry they don’t have a penalty and traditionally not have a penalty for work at an evening. Your Honour in relation to rationale for no penalty at night that is conveniently set out on page 62 of Justice Marks decision at the paragraph in the middle of the page.

Basically to work in restaurants in connection with dinner and supper service the full time will commence work somewhere between 2 pm and 4 pm, if working a short shift they will have commenced around 6 pm and 7 pm. On this basis the late night or early morning work will as I’ve already said be an extension of their working. Such disability as they suffer should in my opinion be more appropriately compensated by using the traditional approach, namely by having regard to an ordinary times span of hours and providing for payment of overtime rates for work performed outside that span of hours. Bearing in mind that the time during which restaurants could be said to be ordinarily open it seems to me that the ordinary time span of hours should be between 6 am and midnight in any one day. This is the prescription in the current award, it follows that where an employee’s work is substantially performed between 6 am and midnight work performed either before or after those times should be regarded as overtime and overtime rates should be paid.

His Honour also did he included provision for permanent night shift type person, we don’t have any particular issue with that, but it doesn’t seem to be something that is generally utilised. So what we have sought to do is simply continue the provision of a 6 am provision as to late night penalties. Obviously if a penalty was introduced of an evening that would be a tremendous cost to the industry. In labour terms, that was talked about yesterday but in terms of what the particular effect of those restaurants who work at night would be subject to a night shift penalty that cost would be quite extreme.

So we say looking at the cost over all is one thing, but you’ve also got to look at the cost to an individual business which will vary depending on when they trade. But again with the requirement to put in or with the proposal to put in a night shift penalty we say that’s completely unfair on restaurants because it all dates back to this idea in hotels of having or pubs having a 6 o’clock swill and that’s the vestiges of it in the hotels award, that went out of date years ago, probably well before my time and it’s - - -

THE SENIOR DEPUTY PRESIDENT: That somewhat oversimplifies the rationale does it not? There are issues of social inconvenience associated with the time and all the traditional considerations and fixing of penalty rates. It wasn’t simply a 6 o’clock swill issue.

MR MCDONALD: Your Honour some of that history is in that hotels award is a bit cloudy but in terms of the origins of that provision it’s very much associated in that 6 o’clock swill provision so that it was a very regulated industry and that alcohol had to stop being served at 6 o’clock and then people would be out by 7 o’clock and there was to be a deterrent I would have thought that the people staying on after that in the award.

THE SENIOR DEPUTY PRESIDENT: Well that doesn’t explain the prevalence of similar provisions across a whole raft of industries, none of whom are subject to New South Wales licensing regulation.

MR MCDONALD: Your Honour that may be the operation of the provision may well have changed over time, but that is not to say that it is appropriate then to simply flow it on to another industry and it comes back to our argument about operational requirements. The operational requirements of restaurants are that evening work is something that is part and parcel of the industry at a dominant time when work is performed and to penalise that work or to say that there is some inconvenience associated with the restaurant sector in our submission would be inappropriate.

But in terms of what has been put there’s no justification for in the same way as it is put to us that this isn’t an exercise for re-examining penalty rates. It’s not an exercise I suppose for re-examining the penalties that might apply in restaurants at night. If one was going to impose a penalty on night work in restaurants such a radical change one would expect that a proper case would be presented and an understanding could be given to the Commission about requirement and the effect on employees. But that is not what is being proposed, or its simply being proposed that because it’s in hotels it should somehow apply to restaurants and we say that that’s no reason for such a change in our respectful submission.

The allowances in clause 9 are reflective of the type of provision that are in the awards currently. There are variances as to what the broken shift allowance should be and we haven’t chosen to put in a broken shift allowance because there is such variability between the various states as to broken periods of work. In relation tot superannuation we just preserve the standard notation in relation to that. The ordinary hours of work as I’ve indicated is 6 am to midnight. In relation to overtime the standard overtime provisions are sought, that is to work in excess of 38 hours. In excess of 12 hours on any one day, I should indicate your Honour that in the New South Wales hours of work can be up to 12 per day but any hours in excess of 10 per day would be by agreement and that would be by agreement between the employer and the employee.

In relation to penalty rates as I indicated your Honour would be put as an alternative proposition to the sixth and seventh day penalty, the time and a quarter and time and a half provision from New South Wales and that Sunday provision is the same as Queensland and also Western Australia. In our submission that’s the most modern consideration in the context of the restaurants industry as to what penalties are appropriate in that industry. If I could refer your Honour to Justice Marks reasoning as to that at page 47 of his Honour’s decision. There’s quite an extensive discussion of various cases and we rely upon that whole decision in relation to this, but if I can take the Commission to some brief extracts which we say in particular support our position.

In that case the Commission was considering existing provisions, this is at page 47 of 150 per cent for Saturday work and 175 per cent for Sunday work which is the same rate which is being proposed by the union for restaurants in this case. In that it was said at the bottom of page 47:

The thrust of the employer evidence was that if penalty rates were reduced on Saturdays and Sundays those that were not open on those days would be more likely to open and those that did open would increase their staffing levels. There would also be a review of the weekend surcharges which are charged by some restaurateurs and meet with public resistance. It was said that a reduction in penalty rates producing an increasing in staffing levels would thereby create enhanced employment opportunities. Lest there be some cynicism about this the evidence of those restaurateurs did open on weekends was that weekend trade could account between 50 per cent and 70 percent of the week’s business. In circumstances where there is competition amongst restaurateurs business at these peak times, it is not unnatural that consideration will be given to a level of service as a means of attracting and maintaining patrons. This would be especially so in tourist areas and or areas which are susceptible to seasonal trade.

Just missing the next paragraph:

As against this it was clear that some employers work on weekends because it suited them. This was particularly true in the case of students or persons working with a second job. There was other evidence of weekend work suited females with children, who would find it easier to arrange the children to be looked after on weekend days rather than on weekdays. Some employees such as Ms Rizardi preferred to have a weekday off because it was easier for her to do her chores, pay bills and things. One other point needs to be made and that is persons seeking employment in the restaurants industry must be aware that the restaurants busiest times are Friday evening and the weekends.

Going down to the last paragraph:

It is clear that therefore that persons accepting work in the restaurants industry are aware that weekend work will be a normal incidence of their employment.

In our submission this is Justice Marks reasoning in awarding the penalty rates that he has and those being adopted by agreement of the parties in New South Wales and elsewhere is a very important consideration. In terms of looking at penalty rates in the hospitality industry, when we talk about dominant awards, of course you’ve got nearly 40 per cent of employees in restaurants which is half of employees of hospitality background 250,000 under that award. That is not to say that the hotels award isn’t of course important, it is and it’s important for those hotels that are subject to it. But the number that are subject to it are not necessarily any more than say are subject to the restaurants award in New South Wales.

THE SENIOR DEPUTY PRESIDENT: The percentages of numbers of employees not employee hours I take it, bearing in mind different part time, casual incidences?

MR MCDONALD: That would be right your Honour and there’s more full time, one would have thought on that rational the numbers would – the number of staff hours would be greater I suspect in restaurants because in there’s much larger numbers of full time employees, than part time employees.

THE SENIOR DEPUTY PRESIDENT: In restaurants?

MR MCDONALD: Yes your Honour and I think in hotels it’s around about 70 for pubs, taverns, et cetera, it’s around about 70 per cent casual. So I mean you could speak those numbers, but I suppose what I’m suggesting is that it’s not - there’s no particular reason why you would say that the hotels award would somehow regulate penalty rates for other parts of the hospitality sector. The restaurants sector employs 240,000 to 500,000 in hospitality and the bulk of those are in New South Wales, so it’s just as relevant to look at an award made for the restaurants sector covering a large number of employees.

I suppose as a practical matter it’s logical to look at where the most number of employees affected by a change are preserving some of those conditions. In our submission it makes sense to look at the restaurants award in New South Wales as of course it does in relation to people in hotels to look at the hotels award because in relation to pubs and clubs that’s the dominant award in Australia. But in restaurants that’s not the case, the state awards have a lot of work to do. In relation to the other matters, there’s the requirement that there not be a penalty on a penalty. Restaurateurs are already concerned about having to pay penalties because inconsistent with the times that they operate that they certainly begrudge paying more than one penalty at any one time.

In relation to the taking of annual leave. There is a handwritten change there that the 17 and a half per cent loading would be payable following 12 months of service. That’s an existing provision of New South Wales Restaurants Award and I think it’s a provision that appears in a number of other awards. In relation to seasonal workers that’s something that was also awarded by his Honour Justice Marks in the States Restaurants Award in New South Wales. We say that that’s a very suitable salaried type arrangement to exist in this industry. It deals with the situation of where businesses are highly affected by seasonality and it enables them to employ people on the same wage rate all year around so that those people have a regular income, if they so wish it. The employer can maintain that employee all year round in quiet times as well as the busy times.

In our submission it is an existing provision and we say a sensible on and given the provision for current arrangements to be made in modern awards one that falls squarely within the provisions of the Act. The mixed function clause again is the clause arising from the New South Wales standard type of provision as is the consultation representation disputes settlement provision. In relation to transitions, we wouldn’t want any employees disadvantaged as a result of the making of the award. The approach that we’ve taken in terms of framing the award is that we recognise that in a number of areas there are going to be employers who are going to be up for increased costs.

So for example in South Australia the penalty rate on a public holiday is double time, rather than double time and a half. But given that most people don’t work in South Australia we’ve included that double time and a half. So I wouldn’t want to give the Commission the impression that there are no cost increases arising out of this award that will affect some of the states and it’s difficult when trying to amalgamate the provisions of various state awards to avoid that. But as far as possible we’ve looked at some offsetting of that. But in terms of employees they would not suffer any disadvantage under our proposal by the award that we seek.

THE SENIOR DEPUTY PRESIDENT: That’s existing employees?

MR MCDONALD: Yes, your Honour.

THE SENIOR DEPUTY PRESIDENT: But the safety net might be eroded for future employees for some?

MR MCDONALD: That’s correct your Honour for some it may be eroded for some it probably will be increased.

THE SENIOR DEPUTY PRESIDENT: Very well, anything else you want to say?

MR MCDONALD: If I may just have one moment? Your Honour I should apologise for not having this final document until today, Mr Hart from the restaurants and catering association has been very keen to make sure all the states positions are considered in all of this and all have a proper say in how the award should be structured and that took some time and wasn’t - - -

THE SENIOR DEPUTY PRESIDENT: The South Australians have agreed to your most recent submission?

MR MCDONALD: Yes. Thank you, your Honour.

THE SENIOR DEPUTY PRESIDENT: Mr Tait and Mr Clarke can I ask you how long you’re likely to require?

MR TAIT: No more than five minutes your Honour.

THE SENIOR DEPUTY PRESIDENT: Mr Clarke?

MR CLARKE: Subject to Mr Swancott I would expect he would have a few more comments.

THE SENIOR DEPUTY PRESIDENT: Yes, I was going to come to him.

MR CLARKE: Look, I’m five minutes.

THE SENIOR DEPUTY PRESIDENT: Very well, we may as well – is there anyone else who wishes to say anything further?

MR HARVEY: Your Honour I’d like to add something about shift penalties, it will only for two minutes.

THE SENIOR DEPUTY PRESIDENT: Yes, very well. All right we may as well carry on and conclude I think Mr Tait.

MR TAIT: Obviously it’s very hard to comment on some of the micro issues of award clauses without knowing the threshold issue of what award we’re actually looking at. But that being said I might just make one or two comments in relation to proposed clubs award put forward the Liquor and Hospitality Miscellaneous Union. I also note that a caveat that there needs to be further discussion and also compliment them in relation to the proactive approach they’ve taken with ourselves in relation to those discussions forthwith. So I daresay that will continue. There are a couple of issues in their award that does lead to our concern.

In particular in relation to the scoping clause where they talked about in clubs, we would obviously promote that it be by clubs. We do note there are exemptions that it does not include certain contractors, but obviously it doesn’t include all contractors and we find that as being very problematic in awards that does contain the scope of clause of in clubs instead of by clubs so we would very much push that point. Also in the scope clause we are somewhat concerned by the word engaged and we would obviously push the word employed, which obviously goes hand and hand with by. In relation to the pays to the award we apologise to the ASU there was definitely no intention by ourselves in relation to excluding that that was a pure oversight in that regard.

We also echo the concerns of the AWU with the problematic issue of full Federal registration and that’s something that obviously needs to be considered by all parties to this whole process as well as the Full Bench in that regard. We hope that there is obviously a fair bit of ambit in some of the clauses there and in particular we highlight the leave for consultation and the consultation representation clauses. Probably won’t push the point at this point in time, but highlight that that would be something that we would find very hard to agree to in its current form. In relation to junior rates, we strongly support this clause. We note that there’s a slight difference between the union’s clause and our clause in relation to rates of pay and we thought that could be worked through together.

We are concerned about certain part of the redundancy clause in particular including small employers into paying severance pay. It is something that we couldn’t contemplate the industry at this moment at the time, is going through massive rationalisation. In New South Wales alone we expect there to be a rationalisation of over 400 clubs over the next decade. This is due to a number of factors including the increase in the gaming machine tax and in relation to the restrictions and in relation to smoking within clubs as well as the restrictions in relation to gaming that clubs can access these days.

We’d also echo the concerns of Mr McDonald in relation to the definition of shift worker and I won’t go into that, but I think there’s been enough detail in that regard. Also in relation to part time provisions we note submissions that we’ve already put on record in this regard and also note the submissions of the New South Wales branch of the LHMWU in relation to its strong starts and in relation to supporting the maintenance of the current part time work conditions and what we put forward in our draft award. Obviously modern awards mustn’t disadvantage the employees or the employers. A change in this area we would say disadvantages both.

It would not only mean a return to casual employment in this industry and then certainly the case for both employees as well as employers but obviously we would note the loss over employee benefits in relation to part time work, such as annual leave, sick leave, redundancy pay, notice et cetera. Obviously in relation to the issue that we raised previously in relation to the greenkeepers, we maintain that should be based in relation to the industry as it has been historically rather than looking at an occupational award coming across our industry. It would cause huge problems especially in relation to multi skilling that I take your point yesterday in relation to greenkeepers that will work within the bar or greenkeepers that would work in gaming or somewhere within the club’s functions.

It’s a huge issue for the industry and we would obviously maintain that given that a lot of our administration is done by volunteers the need to maintain a simplified industry award, rather than having a number of different awards applying on our industry. We also note that the one twelfth on the casual loading should be offset somewhere else, if that is something that is to be pushed by the LHMU. Probably they are the main issues that we have at this moment in time, we look forward to further discussions with the union in relation to resolving those issues, but just highlight those at this moment in time. Nothing further your Honour.

THE SENIOR DEPUTY PRESIDENT: Yes Mr Clarke?

MR CLARKE: Thank you, your Honour. I just wanted to your Honour thanks for the opportunity to address just a couple of matters. I think the continuing concern is some of the comments made by the ASU particularly around the clerical level 6 but it goes to a wider problem here and particularly becomes an issue for us should the clubs form part of what is known as HIMA and that is the levelling up or sort of cherry picking for want of a better word, it might not be sort of cherry picking by going here and there, but if you are saying that the proposition is that we need to go to the highest – particularly as I understand it there is more work we’d like to do just in that document with regards to rates of pay that some of the rates around the club industry are significantly higher than us. So those elements of the LHMU submission continue to have significant concern for us.

I suppose it just goes to the ASU I think, there were some comments about it yesterday that this proposition that you can add a level to an award and then at the same time argue that there’s no extra cost. There just can’t be an argument that is sustainable in this Commission and it might be difficult to establish the cost, but it’s got to go into the bucket of overall cost as does everything. What we’ve done at the AHA is try to be as straightforward as we can in recognising areas that we say there’s extra costs coming in and we say the Commission might be mindful of in balancing out those extra costs in accordance with the request and that’s why we say that the union’s submissions in not even recognising that are a concern and are a very deep concern should say the clubs come ion and everyone’s awards go up.

It’s I understand the argument that there might be a need for clerical 6. What I don’t understand – it’s concern with a number of areas, is that that is looked at by looking at the scope of awards. But there’s no practical argument put why that needs to come into the hospitality award.

It’s more a sort of brush over all the awards without sort of making an argument why in the hospitality sector we need a level 6 and I think that that’s why I use that as an example and I don’t mean to be unkind to my learned friend from the ASU because I know he only spoke briefly but this does touch on a range of propositions that are being put forward. But in order for matters to be included in the award, we say that it is appropriate that it be explained clearly, why when you look at our industry those things need to be put in the ward.

THE SENIOR DEPUTY PRESIDENT: Presumably the argument is there is some new – there are some employees performing clerical work at the higher skill level and the justification is it is there for the higher level and rate is required to provide a fair minimum safety net rate that presumably would be the argument.

MR CLARKE: I suppose it’s very hard for me to rebut an argument that’s not there your Honour it is really – there’s been nothing put forward as to the level of that within the industry. So from where I sit and look I understand that this isn’t an evidentiary and I understanding that things are moving pretty quickly, but without sort of – you know in fairness to what we’re trying to achieve that without sort of giving an indication as to – without more detail for that I’m sort of left arguing I suppose with thin air.

THE SENIOR DEPUTY PRESIDENT: Well presumably the detail is in the classification definition for that higher level within a clerical award and whether there is any work undertaken of that higher level within your industry. I don’t know the answer to that.

MR CLARKE: Look your Honour to be frank neither do I. I don’t want – I’m not trying to be – my friend from the ASU – there are a number of other areas that this argument delves into. It more goes to the argument that if it goes in then there’s a cost and that cost needs to be borne in the overall bucket and I’m just more concerned by the suggestion that there isn’t a cost and I suppose this comes to the sort of consultation and the representation type provisions that the LHMU are seeking to come back in. Now I understand what part 10(a) of the Act says. I understand what part 10 of the Act says. What the LHMU is proposing is that some things come back in to the Act, into the award because they are now allowed to under the Act.

Now, and the AHA proposition is that these can’t come back into the award, we just say that if they come back in they’ve got to come back in, we oppose them coming back in and if the Full Bench is against us on that they’ve got to come back on the basis that there’s costs associated with those coming back in and that is the simple proposition because it is something that is being sought by the unions and I understand that it’s difficult to associate a cost to some of these things but they still need to go into what we’d say is the overall bucket. So it’s certainly not an argument that they are allowable under part 10(a) it’s just more that they are coming back in and particularly want to take account of.

Part time employment I think two of the big arguments before you and there’s a range of drop down arguments and there’s a range of difficulties I understand in the penalty rates and the classifications structure they are significant but two of the bigger ones are really part time employment and shift workers and I suppose we can’t add much more than the fact that we say the industry that the part time arrangements in the hospitality sector aren’t working at the moment, but the proposition we put does give the regularity that’s involved. I think that some guidance if you go to the club’s submission I think it’s 3.1 and 3.3 where they look at the statistics on part time employment in the club sector in the restaurant sector and the hospitality sector.

Informative as to what happens where you have restrictive part time employment provisions because you look at them and I can take you to them your Honour I’ve got them here somewhere. It’s showing that our part time provisions are running at approximately half or percentages are running at approximately half of what they are in clubs and restaurants and there’s a variety of reasons for those, but really I think what you’re hearing is that there’s more flexible provisions in other areas than there is in hospitality. You know if the restrictor of provisions are designed for them to get work we say it’s just not having that effect in the industry.

It is one of the very significant areas, it’s certainly something that our members would like to see more of part time employment and with the restricted provisions everything that we can see says that that will not happen. There will remain to be unfortunately a preference for casualisation for the award covered people, because of the restricted nature in a seasonal trade. It’s a little bit of a question that I find difficult because I’ve done so much work in the area through the services industry.

The services industry is just so different and this comes to shift workers as well to other areas and I touched on it in my earlier submissions that that difference that difference means that we need, we say proper regularity and we say that comes to guaranteeing their contract hours that gives them their contract hours but due to the seasonal nature of the uncertainty, due to the need to fill holes within the industry probably more than most other non service sectors, it’s important to have certainly a touch of regularity, in fact of more than a touch, I mean a guaranteed regularity in the hours, but to elevate that above full time employment is what we say is presenting the problem at the moment.

With regard to shift workers I think my friend Mr Swancott has sort of suggested – I don’t want to put words into his mouth but there wasn’t much basis for the suggestion we put forward with regards to our definition in the document we handed to your Honour yesterday. I just think it’s worth I’ll just quickly turn to the relevant part of that quickly. It’s at page 38, there are just a couple of comments that come out of this. That my learned friend Mr McDonald is right in saying that shift workers aren’t traditionally they are not currently in the hospitality award. That’s one of the starting points we say is relevant.

That we recognise that they are in the Australian Fair Pay and Conditions standard. That in the NES at 321 says that:

The modern award applies to the employees employment defines or describes the employee as a shift worker.

We say the award currently does that, so by doing this the Full Bench would be doing something that hasn’t previously happened in the hospitality award that our primary argument is that that shouldn’t occur, but if it is to occur, we’ve put together a proposition and the wording we’ve used for that proposition is based on the Australian Fair Pay and Conditions standard. What we’ve then done is picked 34 Sundays and 6 public holidays in the 12 month period for the – we’ve changed a number of items but one of them comes in at 34 Sundays. One of them is – look I don’t wish to take your Honour through it but it’s instructive to go to PR944613 it’s a decision of Commissioner Mansfield on 16 March 2004.

It touches on the decision its Western Power Corporation and the Australian Services Union. It refers to the decision referred to earlier by Mr McDonald in a similar area. We just say it’s instructive as to how we came at 34 Sundays. It does touch on an interpretation of the award, but it is instructive and we also say just to the suggestion that we made the figure up out of thin air I think it is also important that the Full Bench be aware of clause 25.1.3 of the Clubs New South Wales award where it says:

An employee works at least 30 Sunday’s annual public holidays in each
12 month period shall be entitled to additional one weeks’ annual leave.

So there are a number of areas we go to in putting our belief that if there’s a shift worker definition it needs some sort of – it needs clarity about Sundays and public holiday, it needs clarity about the fact that people are working rotating rosters that there is in the hospitality sector some guidance for the Full Bench on it, but most importantly people need the guidance as we said yesterday, otherwise they’ll be having discussions about regularity and it will that guidance I think is something that I think we are capable of determining. It is something that I’ll certainly be pursuing with the LHMU in the next few weeks if that system fails then by a decision on 12 September, by the Full Bench in the exposure draft.

Probably just on a small matter, we agree that the proposition put by the LHMU with regards to the CFMEU exclusion sought by the CFMEU. I suppose the only subject to what my learned friend Mr Swancott has got to say, I suppose we’ve developed a fairly detailed document at this stage, that document we’d always seen as a bit of a moving feast that may be able to assist the Full Bench in its deliberations. That the restaurants and catering association have today put forward a revised position with regards to the award conditions. We’re certainly prepared to update that document if it would assist. I know when I look at that document what we’d like to add as quickly as we could to that document is the wage rates across the industry, because I think it is instructive to the discussions around separate awards for clubs, hospitality and restaurants.

I do think that it is instructive. I note that there are a number of state awards that apply, but I’d certainly go to the leading awards in those areas, probably New South Wales and Queensland at least to try and sort of give a bit of an indication in one spread, or try and get as much, I propose to do that. We’ve also set down an industry meeting for next week. One of the real difficulties and we don’t hide from this from the employer’s side of these whole discussions is it’s very hard at this stage and I appreciate the Commission has got it’s own it’s very - we’re very – basically we’re going to at the same time we’re going to see an exposure draft of the award.

We’re also going to know whether it’s going to be one award, two awards, three awards or four awards, or as you said yesterday, 18 I think. It makes it difficult for us I suppose in that process and it makes it difficult for the Full Bench as well to put some propositions. But what we have intended to deal with, have a separate - - -

THE SENIOR DEPUTY PRESIDENT: That’s why the priority draft stage will allow the parties to better address, well to address the issues in context.

MR CLARKE: Yes, well that’s probably – that is probably the discussions we’ve had in the past and I suppose that it might be best, I suppose that given that view then we continue to present the material in the current form. Although the AHA would continue to try and engage with the LHMU in some of the areas that are contentious because they are big areas both for the LHMU and the industry and although joint positions may not be arrived at and aren’t determinant that they are arrived at, they might be instructed at the very least to the Commission and it’s something that certainly from the AHA’s point of view as we’ve said, someone is going to lose some skin somewhere in this process and we certainly stand ready, willing and able to have those discussions to arrive at some sort of instructive outcomes to assist the Commission. If that happens we’d advise that either by that document or differently to that document so that you’d aware of that accordingly.

THE SENIOR DEPUTY PRESIDENT: Well I am in fact so everyone is aware of it in a manner which will be posted on the website so everyone has knowledge of what’s happening.

MR CLARKE: Absolutely, and I understand that. If there’s nothing else?

THE SENIOR DEPUTY PRESIDENT: No, thank you Mr Clarke.

MR MCDONALD: Just very briefly your Honour I appreciate Mr Clarke is seeking to be helpful in terms of putting these comparison positions and outlining our position in support of this HIMA award. But I should say your Honour that of course we’ll speak to all parties, but we’re not interested in discussing a HIMA award we want awards for our industries as has been in the past and in terms of what positions are put in our positions described, we’re happy to put those positions in terms of our submissions. I don’t say it in any way as a criticism but I don’t want the perception to be that in some way we’re all talking together about an industry award. We’re not, we don’t want to. We all see ourselves as being separate industries, if the Commission pleases.

THE SENIOR DEPUTY PRESIDENT: But you’re talking at least, very well, yes, Mr Harvey.

MR HARVEY: Your Honour just very briefly with regard to the shift work I did mention yesterday and all of a sudden it’s become a bit more important this morning your Honour that there was, or there are shift work provisions in some of our awards, including one in Queensland and one in South Australia and Western Australia. I’ve listened to the submissions of the industry representatives this morning saying it was a no shift, summarising very briefly, that shift work as contemplated in other places wasn’t worked here. I go to the Queensland Accommodation and Clerical Award 2005 which is one of the ones referred to in ASUHC1.

Part 6 of that award deals with hours of work, breaks, overtime, shift work and weekend work and 6.1 headed hours of work says and I’ll just summarise this a bit but accurately, the ordinary hours of work is exclusive of meal breaks shall be an average of 7.6 hours in any one day or an average of 38 in any one week and may be worked on five out of seven consecutive days, such ordinary hours shall be worked between 6.30 am and 12 midnight on any day Monday to Sunday inclusive in accordance with a roster – which it goes on to say will be agreed upon by between each member of the association and the secretary of the respective branch of the union – such a roster shall provide for regular rotation of shifts.

So there’s no separate provision dealing with shift work otherwise within that part of the award, so we would submit that every employee and employer under the terms of this award is actually a shift worker as defined and as contemplated. In the wage rate clause there are provisions for additional payments for shifts finishing between 6 pm and 7 pm and for shifts finishing between 7 pm and midnight. So we would certainly say that in regard to you know clerical administrative employees employed under the terms of that particular award, and one or two others of the ASU that allow shift workers and employees to be entitled to the additional weeks’ annual leave, apart from anything else.

That’s all I want to say about shifts. Mr Clarke sort of provoked me slightly with regard to the submission that I didn’t put up a submission about the need for an additional level, and I don’t want to rehash all of that your Honour I don’t want to stretch anybody’s friendship. But I would just say that part of the submission at any rate that I put yesterday and I invite Mr Clarke to read the transcript at a later date was that there was already at least one award in this industry covering clerical administrative employees that has what he describes as an additional level, that is the Queensland Accommodation and Clerical Award.

So it’s not as I said yesterday, it’s not just one award we’re talking about but a number of awards which have been brought together in this industry and if that is the case then we need to classify everybody working in them, you know the new modern award properly you know. If they’re classified under a 6 level structure now in at least one award they need to have that full range available. That wouldn’t be available if we adopt the AHA’s submission of just having four levels and one with a clerical supervisor as well, they wouldn’t be able to fit into the award. They wouldn’t be able to have a properly fixed minimum rate reflected in that award. They’d be over the award or some other way that is expressed. So that was one of our submissions.

I accept in some respects Mr Clarke’s argument that we are talking from the bar table here, as to whether anybody is going to fit into the top level or not it would be a matter of fact which we would have to work out. But at least part of our submission is that there is already a more extensive structure at least one of the underpinning awards which we propose be brought into this modern award and therefore as I said yesterday, we need the classification structure for clerical administrative employees which provides the full range of skills to allow people to be classified properly and have a proper fixed minim rate of pay.

That’s our essential argument on that and we say the Victorian structure as opposed by the LHMU would do the trick in that regard and provide certainty that everybody could be appropriately classified and have a minimum rate of pay. So I invite Mr Clarke to contemplate that as the argument.

THE SENIOR DEPUTY PRESIDENT: Very well, Mr Swancott?

MR SWANCOTT: Your Honour I’ll be very brief you’d be pleased to know. I’m a little bit limited in the response I can make to the restaurants and caterers modern award. Unlike our relationship with the Clubs Australia and the AHA we’ve not had any discussions with them, we’ve had no hint from them of any of their thinking until 1 August when the material was posted on the website. We had one brief meeting very early in the piece with Mr Hart but nothing about the actual content of the award, and the document handed up today by Mr McDonald was handed to me after he was on his feet addressing it.

So I’d propose to put in a brief written response to that in due course. We’ve made our point at the opening and in the written submissions the cherry picking amongst NAPSA’s to achieve your most advantageous result was not what we saw the Full Bench instructions to parties to priority award modernisation consultations. That apparently hasn’t sunk through to everybody at this table. Your Honour in relation to - - -

THE SENIOR DEPUTY PRESIDENT: Are you referring to Mr Harvey’s reliance on the one higher clerical rate than another?

MR SWANCOTT: Well he was provoked into that and your Honour in relation to Mr Clarke’s identification of the issues of part time employment and the shift work issue and his invitation to continue discussions we will do that and we’ll also continue talking to Clubs Australia. To the extent that it is possible to reach either a consensus or a range of possible options, we’ll explore that, we appreciate that binds nobody.

THE SENIOR DEPUTY PRESIDENT: Yes.

MR SWANCOTT: Including the Full Bench but it may assist. There are some matters relating to penalty rates that we’ll address for example, as the Commission probably recalls although we haven’t had any mention of it today, the hospitality industry penalty rates regime was thoroughly tested in 1998 as part of the award simplification process. The penalty rate structure was taken as a second step in award simplification and rigorously examined by the Commission. There was no submission at that stage that there was a 6 o’clock swill allowance hanging over. Whereas one would have thought that that would have been an ideal position for an employer organisation to attack a penalty on that basis.

In fact I have done a complete history of penalty rates in hospitality industry including the night rate, I could do a Mr McDonald and get up and read it all to you but I’m not going to. Just to indicate that as Mr Harvey has correctly pointed out, and as Mr Clarke has pointed out, submissions from the bar table are one thing evidence is another. Now we can’t test a lot of these submissions here. This is not the method by which to do it and much as we all love rhetoric and twisting our arguments to suit our position, we would say that undercutting existing safety net issues that have been rigorously tested in evidentiary proceedings recently, on the basis of submissions from the bar table would be a very risky business in the eyes of the public. Thank you, your Honour.

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Thank you all for your assistance the Full Bench will consider what has been put carefully and we’ll present you with some further work on 12 September, but in the meantime any further developments can be conveyed to us in the normal way. I’ll now adjourn.

<ADJOURNED ACCORDINGLY [1.41AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #RCIA HC2 AMENDED DRAFTS RESTAURANT AND CATERING AWARD PN932