AM2008/2, Transcript of Proceedings [2008] AIRCTrans 714 (12 November 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996

JUSTICE PRESIDENT GIUDICE
VICE PRESIDENT LAWLER
VICE PRESIDENT WATSON
SENIOR DEPUTY PRESIDENT HARRISON
SENIOR DEPUTY PRESIDENT WATSON
SENIOR DEPUTY PRESIDENT ACTON
COMMISSIONER SMITH

AM2008/2 AM2008/3 AM2008/4 AM2008/5 AM2008/6 AM2008/7 AM2008/8 AM2008/9 AM2008/10 AM2008/11 AM2008/12

s.576E - Award modernisation

Award Modernisation
(AM2008/5)

SYDNEY

10.01AM, FRIDAY, 31 OCTOBER 2008

Continued from 30/10/08

Hearing continuing

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN SYDNEY

PN2500

JUSTICE GIUDICE: We will deal with the exposure draft in relation to what I might call the hospitality group and it might be useful to take appearances so we have got an idea of who is here today. I will start with Sydney.

PN2501

MR SWANCOTT: I appear for the Liquor, Hospitality and Miscellaneous Union.

PN2502

MR K HARVEY: I appear on behalf of the Australian Services Union.

PN2503

MR R CLARKE: I appear for the Australian Hotels Association.

PN2504

MR T MCDONALD: I appear for the Hotel, Motel and Accommodation and with me is MS SCOTT from that association and I also appear for the Restaurant and Catering Association of Australia and with me is MR HART from that association.

PN2505

MR D BROANDA: I appear on behalf of the Australian Workers Union and the Australian Workers Union of Employees Queensland.

PN2506

MR M EASTON: I seek to continue the leave of the Commission to appear.

PN2507

MS J MINCHINTON: I appear for the Queensland Hotels Association Union of Employers.

PN2508

MR T EDWARDS: I appear for the Australian Hotels Association of South Australia and we will be appearing with MR CLARK from the Australian Hotels Association nationally.

PN2509

JUSTICE GIUDICE: That's a state body, is it?

PN2510

MR EDWARDS: Yes, a South Australian body, sir.

PN2511

MR S MAXWELL: I appear on behalf of the Construction Forestry Mining and Energy Union.

PN2512

MS S BISSETT: I appear for the Australian Council of Trade Unions.

PN2513

JUSTICE GIUDICE: Mr Clarke.

PN2514

MR CLARKE: Only to say that the QHA and the AHA South Australia appear to assist with the transitional arrangements.

PN2515

JUSTICE GIUDICE: We need all the help we can get, thank you. Who have we got in Melbourne? Mr Cameron, is it?

PN2516

MR C CAMERON: I appear for the Recruitment and Consulting Services Association.

PN2517

JUSTICE GIUDICE: Yes, Mr Cameron, thank you. Has there been any discussion about the order this morning?

PN2518

MR SWANCOTT: Yes, your Honour, what's proposed is that I would speak briefly for the purposes of handing up a partially revised scope clause, then
Mr Broanda who has a very brief submission to make would like to make that submission so he can then go back to Queensland.

PN2519

JUSTICE GIUDICE: Yes.

PN2520

MR SWANCOTT: Then it's proposed that the employer interests speak followed by the union interests. It's proposed that I go second last and the ACTU go last. Thank you, your Honour.

PN2521

JUSTICE GIUDICE: Yes. Well, you go ahead, Mr Swancott.

PN2522

MR SWANCOTT: Thank you, your Honour. Your Honour, there are two submissions and I won't take you to them which in our view expose some difficulties in the drafting of the exclusions in the scope clause of the exposure draft and in particular clause 4.5. Your Honour, I hand up copies of revised clause 4.5. If I can indicate to your Honours that the underlined words at the beginning of clause 4.5 and in the middle of that clause 4.5 are the new words. The purpose is to reshuffle the exclusions. The first group are institutions if you like and the second group are activities and the intention is to group them so that the exclusions are clear. But it's employees engaged in or in connection, for example, with contract cleaning in paragraph (k) who are not covered by the award and their employers.

PN2523

If I take you to, for example, paragraph 4.5(b), the intention is that direct employees of boarding schools engaged in say catering activities or a combination of activities would not be covered by the award, but should there be contract catering facilities in a boarding school or a residential college then the contracting catering employer would be. So your Honour, the intention is to make it clear that the catering employees who supply to another business covered by this award, this proposed award, but direct employees of a business outside of hospitality are not. Thank you, your Honour.

PN2524

JUSTICE GIUDICE: Yes, thanks, Mr Swancott. Mr Broanda.

PN2525

MR BROANDA: Thank you, your Honours. I will be very brief with my submissions. The AWU and AWUEQ are to rely on the written submissions supplied. There are a couple of oversights however in our written submissions. The first is in relation to the exclusions that have just been briefly talked about by the LHMU. The Bench might be familiar with the AWUs position in relation to the status, the constitutional status of local government throughout Australia. Without rehashing that argument here and without enlivening the argument, where reference is made to exclusion on the basis of legislation given effect to or giving rise to local government, in Queensland there are actually two Acts of Parliament.

PN2526

The first is the Local Government Act which is referred to in both the exposure draft and the clause which has been provided by the LHMU the reference there is to the Local Government Act 1993 and that does not include the Brisbane City Council. The legislation giving rising to the Brisbane City Council is called the City of Brisbane Act 1924. Our primary position is local governments are not capable of being in the federal jurisdiction, however on the basis that we don't want to have that argument again here, where there's a reference to exclusion on the basis of state legislation that additional Act of the Queensland Parliament should also be referred to.

PN2527

Your Honours, there's also an issue in relation to the definition clause at 3.1. There's a reference to appropriate level of training that some of the parties have addressed in their written submissions. In short, there's a reference to the Australian Hospital Review Panel and Tourism Training Australia in terms of what is an appropriate level of training for classification structure purposes. Those two entities don't exist and haven't existed for a number of years. I understand the LHMU will be making some comprehensive submissions on the issue. The AWU and the AWUEQ support the LHMU's submissions in relation to a correction for that issue.

PN2528

Just finally, your Honours, the AWU and AWUEQ have put in those generic apprenticeship and traineeship classification and wage systems across all the industries. In this industry the AWU and AWUEQ rely on those apprenticeship and traineeship submissions, save for the percentages. We seek to substitute the percentages that are in the draft exposure award for the percentages that are in the AWUEQ submissions and otherwise commend the balance of those provisions in our written submissions to you. They are the extent of the submissions I propose to make this morning unless there's any questions.

PN2529

JUSTICE GIUDICE: Thanks, Mr Broanda.

PN2530

MR BROANDA: Thank you.

PN2531

MR MCDONALD: Your Honours and Commissioner, I represent two significant employer groups, the Restaurant and Catering Association which represents an industry consisting of 242,500 employees and the HMAA which represents an industry which employees 95,000 people in Australia. These industries have become very large industries over the last 30 years or so and when one thinks of modernising awards in our submission we say it's appropriate to consider the changing nature of the Australian workforce. So that industries that have traditionally had strong industrial past that have been the subject of a lot of attention by the Commission aren't necessarily the size of the industries that they used to be or necessarily the industries of importance to Australian that they used to be as compared to the industries I represent.

PN2532

If one considers say the accommodation sector, the Commission made an award for that sector in 1973 being the Motels Accommodation and Resorts Award. That industry now has 6668 accommodation establishments, a very significant growth in these particular industries. If one looks at some traditional industries that have been given a lot of attention by the Commission, as I mentioned they're not of the size that these industries are and if I just look at mining as an example and if I could refer the Commission to the Australian Bureau of Statistics as to the numbers of employees that are in the mining industry and we understand that the way that the Commission is approaching the mining industry is to look at mining, coal mining and also quarrying industry.

PN2533

In coal mining there's 26,491 employees as at 2006/2007, in metal ore mining, 33,617 and in quarrying, 12,260. The industries that will be subject to their own awards in respect compared to these industries are something like 10 times as small as compared to restaurants or five times as small as compared to accommodation. We don't say by that that it's in any way inappropriate for those industries to have their own awards, they are important industries. But we say that the industries that I represent are no less important in Australia and in terms of employment they are very significant.

PN2534

The other point that we make is that in terms of how these awards regulate employment they're particularly important. In both of these sectors people are generally are award reliant so whatever happens in these awards will have an immediate impact in workplaces and I'll come to that in due course when we talk about the sorts of cost considerations. But these types of considerations are a lot larger in awards and industries where people are far more award reliant. Both industries have distinct positions, if it pleases, so I'll deal with them separately. In relation to the restaurant and catering sector, we made our general submissions before his Honour Senior Deputy President Watson. A provisional view was formed that the Hospitality Award might be an appropriate instrument and we were asked to comment about whether the exposure draft would be an appropriate draft for an award covering this sector.

PN2535

We were asked whether minor modifications could be made to that award or to a general Hospitality Award to suit the restaurant and catering sector and, with respect, we would seek to persuade the Commission that that's not an appropriate course and that the course in this industry is for a separate Restaurant and Catering Award. We have of course had regard to what the Commission has put in the exposure draft and we've incorporated a number of elements in the revised draft that we've put before the Commission in these proceedings.

PN2536

JUSTICE GIUDICE: Which draft is that? Is that the one filed yesterday?

PN2537

MR MCDONALD: That's the Hotel Motel and Accommodation Association filed a different marked up version.

PN2538

JUSTICE GIUDICE: I'm sorry, yes.

PN2539

MR MCDONALD: The restaurant and catering one is the same document that was filed by the timeframe, yes. On the last occasion the Restaurant and Catering Association put various propositions as to why a separate award was appropriate for that industry. I don't seek to go through that again. We rely on the submissions that were made before Senior Deputy President Watson but we do note that what's been proposed by the association would reduce 23 awards applying in the industry to a single award for restaurant and caterers. We also say that the industry is one deserving of its own regulation and we say that not only in terms of how the industry is now but that in the future that the Commission would have regard to the particular circumstances of the restaurant and catering industry in the way it deals with the award rather than perhaps a number of other interests.

PN2540

The association also says that in relation to the Hotels Award being used as a basis for the award for the restaurant and catering industry that that's an inappropriate course. The Hotels Award has had no regard to the circumstances of the restaurant and catering industry. It's a product of its own history and there's no particular community of interest between hotels and restaurant and caterers and they're probably far from it.

PN2541

SENIOR DEPUTY PRESIDENT WATSON: Mr McDonald, there's some commonality between the federal Restaurant Award and the federal Hotels Award, isn't there?

PN2542

MR MCDONALD: There is, your Honour. Your Honour, in relation to what occurred in Victoria just before the Victorian industrial relations system was dismantled there was a big case that was mounted by the Restaurant and Catering Association and various other organisations in that state to review that award and the Commission, while of a mind to address the concerns of the employers in that case, was prevented from doing so in essence by the changes that happened to that system and so then that award was brought into the federal system. But it is correct that there are some similarities.

PN2543

If I could briefly take the Commission to what occurred in Victoria just to address that point briefly, there's a folder of some references that I put before the Bench. The relevant decision of the Victorian Industrial Relations Commission is at tab 3 and is dated 25 February 1993. The Commission will note that there are various applications by VECCI and to vary the Restaurant and Catering Accommodation Award and at page 8 the Commission gives it decision in the last paragraph. The Commission states:

PN2544

In all the circumstances we have decided that it would not be appropriate at this stage to vary the award as sought by VECCI. Having regard to the substantial case of modernisation restructuring of the award presented by the employers, the Commission would have been prepared to give consideration to measures to address the needs of employers and employees in the industry and to promote greater flexibility and efficiency consistent with the structural efficiency principle and other relevant wage fixing principles. In terms of VECCI's application, these measures would include many similar to those returned by the Commission, restructuring of the awards in the retail industry.
In relation to weekend penalty rates this would mean the conversion of these rates to flat amounts and reducing them over time.

PN2545

The Commission goes on. But that didn't occur because the Commission wasn't continued. But that process that was occurring in Victoria at that time was also just about to occur in New South Wales, and there was a major arbitration before his Honour, Marks J, in the New South Wales Industrial Relations Commission over some 42 days where there was a thorough going analysis of the industry and an award was made which, in our submission, is appropriate for the circumstances of this industry and is the most modern industrial instrument that operates in the hospitality area.

PN2546

Indeed, I go so far as to say if the Commission was of a mind to make one general Hospitality Award it would be far more logical to base it on the Restaurant and Catering Award given the analysis that's been made of that award and the attention given to it, and it applies to a much larger number of people, and so the Hotels Award, which I think covers some 80,000 employees in pubs, whereas there's 242,000 employees covered in restaurants and, of course, New South Wales is a very substantial portion of that workforce.

PN2547

And that Restaurant and Catering Award from New South Wales that I referred to, there was a Restaurants Award which is now a NAPSA, that was the subject of the extensive arbitration. There was an appeal, there was agreement with the union to dispose of the appeal which resulted in the award as made, and then that was flowed on by agreement with the union to the Caterers Award and also the Canteens Award in New South Wales.

PN2548

If I could take the Commission to the draft award that's been proposed by the Restaurant and Catering Association. Perhaps before I do so, I have Mr Hart with me at the bar table. He has given statements. There was an over arching statement that was filed earlier in the proceedings and two recently filed statements, one dealing with costs and the other dealing with aspects of competency, and there was a recent submission from the LHMU on the same point. Given the lateness at which those documents came in and the extensive nature of the competency standards issue I could put Mr Hart in the witness box and take some evidence from him if that was something that suited, or they're happy that those statements to be read, and I'll proceed on that basis.

PN2549

JUSTICE GIUDICE: Well, our general view in relation to statements is that we'll regard them really as submissions and we won't accept them unquestionably, but we'll give them the weight we think appropriate in light of all the material before us.

PN2550

MR MCDONALD: If it please. If I could turn to the draft award that's proposed, the draft award dated 10 October, and I ask the Commission to note that the award we propose is some 20 pages as compared to the award that's proposed which, counting the AHA pages, take into account the transitional arrangements and so forth, covers some 69 pages of small type. We say that this document as a general proposition is a far simpler document and far easier for people to understand and reflects a document that the industry is currently applying.

PN2551

Going very briefly through some of the clauses of the document, definitions and interpretation, there's a special clothes definition which relates to the uniform allowance. That's something that's contained in the New South Wales Restaurants Award. The Hotels Award refers to uniforms being coats, dresses, caps, aprons, cuffs. That is something that, in our submission, relates to a different time, whereas special uniforms these days in the industry are somewhat different.

PN2552

In relation to the application clause, from a very quick read of the clause proposed by the union this morning it has somewhat similar effect, in that it applies to independently operated restaurants and then it also applies to caterers wherever that work is performed. We don't see any particular reason for the various exclusions that are proposed by the union in their document. We say the award should continue with the sort of coverage that it's had in the past so that it continues to apply to all settings where the employers under this award work.

PN2553

Then there are the standard provisions in clauses 5, 6, 7, 8, 9 of the award. When it comes to the types of employment there are differences which are differences related to the nature of the industry. In respect of full time employment there is an average of 38 hours per week. Those are averaged over a month, but there's also a provision for seasonal employees where hours can be averaged over a period of 12 months, and I'll come to that shortly.

PN2554

In relation to part time employment it's a different situation to perhaps that existing in hotels in that these employees are generally covered by state awards. There haven't been the same restrictions on part time work that there have been in some federal awards, in some ways the result of the terms of the federal legislation. But these employees are now under pretty flexible part time arrangements, those arrangements are mutually suitable and we say that there should be no reason why people who are under existing part time arrangements shouldn't be allowed to continue on with their employment under a modern award.

PN2555

In relation to casual employment we have in there the 25 per cent loading that the Commission has determined. We note that that is an increase on the number of the loadings that currently exist in the states. With apprentices and trainees we have largely adopted the provisions of the New South Wales award, however we have increased the apprenticeship rates somewhat to levels somewhere between what currently exist and what's been proposed with the Hotels Award, but there's a very significant difference between the rates for apprentices that currently apply in the Restaurants Awards throughout the states and those of hotels.

PN2556

There's also a lot more apprentices of course employed in the restaurant industry, and the restaurant would like to continue to do that. Similarly with junior employees, generally in pubs you're not going to find junior employees, but in cafes and so forth junior employment is a very regular occurrence, and we say it's appropriate for the award to take into account the different types of environments and that these areas are conducive to junior employment. There shouldn't be prohibitions on junior employment in this industry and there should be, in our submission, the usual types of junior apprentice at the junior rates that apply in the current state awards applying to restaurants, cafes and caterers.

PN2557

In relation to the probation period and the abandonment of employment they're fairly standard provisions, they're not currently contained in the state awards, but they note they have featured in some of the draft exposure awards that have been produced by the Commission. In relation to termination of employment we seek the standard provisions. I do note that in relation to the job search entitlement we had sought to restrict that to redundancy, but we note that that is inconsistent with the current standard and we do not press that.

PN2558

In relation to classifications and minimum wages we propose the existing classification structure from the New South Wales award. That's a seven level unitary classification structure. I'll come to that in due course, but we ask the Commission to note it's a fairly simple classification structure expressed over some three or four pages and it covers all employees in a restaurant, and the emphasis really is on waiting and cooking duties, those being the types of duties that are performed in a restaurant.

PN2559

There's nothing in here about gaming and so forth which comprises much of the Hospitality and General Award which is based on the Hotels Award.

PN2560

SENIOR DEPUTY PRESIDENT WATSON: Mr McDonald, just to return to juniors, is there any legal issue about a person who is under 18 and the service of alcohol?

PN2561

MR MCDONALD: I'm sorry, your Honour?

PN2562

SENIOR DEPUTY PRESIDENT WATSON: Is there any legal issue between persons under 18 being involved in the service of alcohol?

PN2563

MR MCDONALD: Your Honour, there may well be in some states in relation to people behind the bar, but we're not necessarily wanting to seek to cavil with any restrictions under licensing laws. But there will be situations where a junior employee might take a meal and a drink from the bar to the table, and we say that there's no reason why that shouldn't be allowed to occur. But if there are restrictions in licensing as to where some juniors could be employed they of course have to operate in accordance with their terms.

PN2564

We say traditionally in terms of hotels it's understandable that when they were traditionally pub type environments that you wouldn't have junior employees working behind the bar, and there are also prohibitions in terms of people drinking under the age of 21 and so forth which I suppose came into it also. We say that this structure is a pretty simple sort of structure. Someone can start off in a restaurant, learn the ropes for the first three months in the grade 1 classification. It also covers people who do kitchen hand type work and general cleaning. Someone can move on to some very basic sort of waiting duties, so they could take food for example from the kitchen to the table, they could take orders at a snack bar and serve food.

PN2565

In relation to the grade 3 that's a waiter who will take orders from the table and so forth. Then a grade 4, someone could progress to a specialist type of waiter in a fine dining restaurant, someone like a sommelier for example would be a grade 4. And then there's also a grade 5 which is the trade level, a grade 6 which is a supervisor type person, and then a grade 7 who can supervise other trade qualifications. But we say it's just a very targeted classification structure that restaurateurs, café owners and so forth are able to pick up and understand.

PN2566

Now, I don't propose to go to this with the Commission unless it desires it, but the Commission would be conscious of the many pages devoted in the Hospitality or Hotels Award to the various classifications contained in that award. There are some 61 classifications in that award and various levels and grades. Some parties have tried to address it in their submissions and tried to make it clearer, but we say it's very confusing.

PN2567

In relation to the competency standards for which we're asked to have reference, if I can just show the Commission the volumes of the competency standards to which we would have to make reference to put in place the type of structure from the Hospitality Award. Those volumes are a complete set, it's not just one volume that we'd need to give consideration to. I'll come to that in more detail a little bit later on.

PN2568

But this is a structure that people understand and use, and in this industry we say that's tremendously important because people struggle with their award obligations. It is clear on the record with the various Workplace Ombudsman investigations and so forth that go on. People need to have an award that they can read and understand and which can be enforced, and one that people believe is appropriate to follow as being relevant to their circumstances. This type of classification structure would facilitate that.

PN2569

And in terms of determining a classification structure for the industry and rates of pay. We say the appropriate course is to first work out what's a classification structure that suits the operational requirements of the employers and the needs of employees, and then do a minimum rates adjustment exercise in relation to those rates and make sure that they're comparable to rates in other awards that are also properly fixed. And that's what's happened here. And as I understand what's been put by the union, they want the so called Merriman relativities and then frame the classification structure around that. We say that that's not an appropriate course, with respect.

PN2570

When one turns to minimum weekly wages there's just a wage attached to a particular grade, whereas in the Hospitality Award there are a whole number of different levels associated with the particular grades from various different streams that one would have to grapple with. And if I can also refer to clause 19.10, again an existing provision that says if there are classifications or duties that are not currently covered in the grading structure then they can be accommodated within it.

PN2571

So that's a catch all to ensure that all employees employed by the restaurants and caterers can apply this award and, as I understand it, that would all be broken up for example if there were maintenance people and so forth, they would have to be covered by different awards on the basis of what's being proposed by the union in their coverage clause I think.

PN2572

The allowances are fairly standard sort of allowances. Again, they're existing allowances contained in the New South Wales award and other state awards. Similarly the mixed functions clause is fairly standard. The payment of wages clause is perhaps a simplified version to those that exist in some of the state awards which, in some cases, comprehend agreement for fortnightly pay or to pay casuals other than by a per engagement basis. We say that a lot of those types of provisions were relevant when those changes to payment of wages were introduced, but now that they are introduced a more simpler formulation is appropriate.

PN2573

There's also a provision about cash shortages, which is a current standard in the industry. In relation to seasonal workers the restaurant and catering industry is very much influenced by seasonal factors, particularly in some regional areas, coastal resorts, snowfields and so forth unlike, say, an accommodation establishment which is going to be open throughout the year. In some of those areas there are very down months and they close for some of the period, but then when things are busy the employees work more hours.

PN2574

This type of provision, while somewhat novel, enables employers in this industry to provide permanent employment to people which they wouldn't otherwise be able to do because of seasonal factors, so we ask for that averaging over the course of the year to take that into account. Of course the removal of that type of provision means that those people who currently have permanent jobs in those regional areas would no longer be available to work and would have to become casuals under the new award because you couldn't have that averaging type process.

PN2575

In relation to superannuation we note that there are various standard provisions as to that. We don't seek that much be said about superannuation other than a reference be made to the relevant legislation. We do note that Host Plus is a fund that's used extensively in the industry although other funds are also used. We do note in the proposed Hospitality Award that the requirement to pay superannuation during periods of workers' compensation, that's not currently something that occurs in the industry and would of course mean an extra cost to the industry if it was to be introduced.

PN2576

In relation to the ordinary hours of work we seek a span of 6 am to 12 midnight, that being the current span of hours that operates in the industry. It's different, say to hotels, where there might be a continuous operation, they're open seven days a week throughout the year. In this industry people don't work 24 hours continuously. Generally restaurants are open primarily at meal times, some will open throughout the day but have the peaks at meal times, but they generally don't operate 24 hours, and many will only operate five or six days per week depending on the type of establishment.

PN2577

There's also a make up time provision which is the existing make up time provision in the New South Wales award. It's different to the one in the Hospitality Award that's proposed, which I think is the one from the Hotels Award which was when the first personal carer's leave case, not the most modern provision as to make up time. We say in relation to make up time and also the time off in lieu of overtime provisions that those types of personal carer's leave provisions are appropriate to continue in the award.

PN2578

And, again, if those types of flexibilities are removed it does make it difficult for employers in this industry to offer people employment on a permanent basis. In relation to rostering it's a fairly standard type of provision that the rosters will be alterable on seven days notice or by mutual consent. In relation to meal breaks it's different to, say the Hotels Award, in that there's a provision for a break after six hours. And the reason for that is that in catering there's a standard length for a function of six hours generally, so if someone is, say working on a wedding that might go till 11 o'clock at night they might receive their break after five hours at 10 o'clock at night. In a lot of circumstances they'd rather just work on and finish off in the six hour time slot.

PN2579

In relation to penalty rates we seek to continue existing penalty rates that apply in most areas, that being time and a quarter and time and a half, and double time and a half on public holidays. We note that in the Hotels Award there's a provision for a time and a quarter, time and three quarters on a Sunday and double time and three quarters on a public holiday. We seek to maintain the existing provisions.

PN2580

SENIOR DEPUTY PRESIDENT ACTON: Mr McDonald, it seems to me you're simply going through your award, proposed award, which we are quite capable of reading. I'd be more assisted if you would address us on what are your difficulties with the position adopted by other parties.

PN2581

MR MCDONALD: I'm sorry, your Honour, I didn't catch that.

PN2582

SENIOR DEPUTY PRESIDENT ACTON: I'd be more assisted if you would address us on what your position is on the position adopted by other parties as opposed to just going through you draft award, which we've read.

PN2583

MR MCDONALD: Yes, your Honour. Your Honour, the draft award, the reason I went to that was that it was a fairly short award and I thought it useful to give it some context in terms of highlighting the differences. As I understand broadly what's being put by my friends is that at the start of the modernisation process the union was wanting an award that would apply to restaurants and caterers, another award that would apply to hotels et cetera, to have regard to what the Bench has put and they've supported the Hotels Award now being used as a modern award. But there's not really any controversy I think about that from my friends about using the Hotels Award. That's the award that they currently apply.

PN2584

So in terms of commenting about what they have to say I can't really. I think what I am trying to do though is to distinguish the restaurant and catering industry from the hotel industry and say why they're different and seek to address the Commission about whether some minor modifications being made to the Hospitality Award would be sufficient to accommodate the circumstances in this industry, and I suppose I'm trying to persuade the Commission that it would not be. But in terms of going through the award I think that concludes all the industry relevant provisions.

PN2585

But the point I make from that is that other than provisions that are standard as between, say the Hotels Award and as between the Mining Awards, on all the other areas that there's content in this award its different and needs to be different because of the nature of the industry from that Hotels Award. If I could turn briefly to the evidence that has been filed, and the Restaurant and Catering Association's officers have prepared various statements from a range of restaurateurs, café owners in a mix of settings, also from caterers, to try and give the Commission a feel for the types of businesses that would be covered by this award.

PN2586

If I could briefly take the Commission to some of those statements. There's a statement of Marmaduke Simon Terry from the Garden Court Function Centre in Wagga Wagga. He's a caterer who operates a function centre there. One of the things that he in particular points out is that they can only operate when business comes in the door when there's a particular function, and some of those functions aren't for the six hour minimum that's provided for in the Hotels Award. So that if they weren't able to have the flexibility to - - -

PN2587

SENIOR DEPUTY PRESIDENT WATSON: Mr McDonald, sorry, again, it's not necessary for you to simply go through material which you have filed and that we've read and are capable of reading. The purpose of the additional submissions today is really to address new and different issues rather than simply go through material that's already before us.

PN2588

MR MCDONALD: Yes, your Honour.

PN2589

JUSTICE GIUDICE: Apart from anything else, if any other approach is adopted we'll never finish.

PN2590

MR MCDONALD: Yes, your Honour. With respect, this industry sees itself, rightly or wrongly, as a very important industry, and in terms of the nature of the process I suppose it doesn't lend itself to long decisions and so forth. But other than I think what's been put as could people in effect live with the Hospitality Award based on the Hotels Award, nothing much really has fallen from the Commission as to why the industrial interests of this industry shouldn't have a greater consideration than what's in the Hotels Award.

PN2591

I don't seek to say that with any disrespect to the Commission because the task before the Commission is an enormous one, but these people see themselves as significant employers, they, with respect, there are industrial interests that they've fought so hard for over the years, and the particular states are going to be changed in a substantial way they would like to, I suppose, put some evidence before the Commission or get some reasons for why that's not going to occur. And I stress, I don't say that with any disrespect to the Commission because the Commission has an enormous task before it that its got to achieve. But in terms of explaining that to major industries it's somewhat difficult to get that across.

PN2592

Now, there was a statement that was filed by Hunter Valley Restaurant Management I think, which certainly wasn't a statement filed by the association, not one that we associate ourselves with, but its fair to say that there is a lot of concern about what impact this will have. I don't take the Commission through those but I do seek to highlight that concern. If I could take the Commission to some of the cost impacts that would arise from the Hotels Award being imposed on this industry also.

PN2593

These are highlighted in the evidence of Mr Hart from the Restaurant and Catering Association, and if I can go to paragraph 2 of that statement, this being the recently filed one.

PN2594

JUSTICE GIUDICE: Yes. What date was that filed?

PN2595

MR MCDONALD: I'm sorry, your Honour, this was in fact filed yesterday.

PN2596

JUSTICE GIUDICE: Yes.

PN2597

MR MCDONALD: In relation to costs there are a number of costs listed in paragraph 2. That doesn't include the costs of translocating to the new structure, so that, for example, waiters in New South Wales, the main group of waiters being employed under level 2 of the existing award would have $16 increase or go into the new structure. There would be some waiters who would be receiving a decrease in pay for more skilled waiters, but it's unlikely that those decreases would be given effect to.

PN2598

In relation to casual loadings there will be an increase in South Australia from 20 per cent to 25 per cent, from 23 per cent to 25 per cent in south east Queensland. We had adopted in our proposal a loading of 25 per cent and in doing so reflected the standard from the Commission. But we do note that there would be other additional costs that would be placed on casual employment if the award was to come in its existing terms. For example, there will be an increase in the penalty on a Sunday for permanent employees, there will be an increase for penalty for casuals who work on a public holiday from 250 per cent to 275 per cent, and also they'll be affected by the night allowance that's been proposed by the Commission.

PN2599

As I said in relation to permanent employees, there will be an additional penalty on a Sunday to take the loading from 50 per cent to 75 per cent, an additional evening penalty after 7 pm of some 10 per cent. In relation to that there's a lot of confusion that's arisen from the draft award. It was expressed as being .025 per cent of the standard rate. Now, upon further consideration there is actually a definition of the standard rate which refers to a weekly rate and if you work it out that way it comes to around about 10 per cent. Some people have read it as being 25 per cent, other people have read it as being .025 per cent of the weekly rate, which was an allowance of 5 cents to 8 cents an hour, and so some people have said in the statements, for example, well, that would be more of an administrative headache than anything else to put in place such a low allowance, but if there was to be an allowance, with respect, it might be easier for that allowance to be expressed in monetary terms.

PN2600

JUSTICE GIUDICE: Well, the point of the percentage is to provide for automatic adjustment which is one of the requirements of the request.

PN2601

MR MCDONALD: Yes, your Honour.

PN2602

JUSTICE GIUDICE: So, if I could just make a general statement to clarify the position, those percentages are generally intended to be a translation of an existing monetary allowance into a percentage so that whenever the wage rate alters, the standard rate alters the allowance alters without the need for a separate variation.

PN2603

MR MCDONALD: Yes, your Honour.

PN2604

JUSTICE GIUDICE: That's the principle we've been looking at and some people have had difficulty with that generally but others have had difficulty with it in relation to what had previously been expense related allowances which have usually been adopted by reference to the CPI or something of that nature, but that's the proposal that we've put up for consideration. We've got lots of feedback about it.

PN2605

MR MCDONALD: Your Honour, one of the reasons I point that out is that when one reads some of the statements and some of them aren't so concerned about the night allowance, that's because they think it's around about 4 cents to 8 cents an hour, but when it's considered as around 10 per cent an hour that elicits somewhat greater concern.

PN2606

SENIOR DEPUTY PRESIDENT WATSON: And some of the statements filed on behalf of your client - - -

PN2607

MR MCDONALD: It is, your Honour.

PN2608

SENIOR DEPUTY PRESIDENT WATSON: - - - make that calculation.

PN2609

MR MCDONALD: That's one example that is in the statement of Mr Doyle, for example. There are also increases in the rates of pay for apprentices that would be very significant increases and there would also be significant increases in junior rates, and Mr Hart makes the point that average net profit is only 3.8 per cent, the industry is very labour intensive being 33.8 per cent, and all other things being equal if the types of cost increases that were imposed by the Hospitality General Award were put in place there would be no profit, so in terms of the economic sustainability point, all other things being equal, if one imposed those increases on restaurants, as things currently stand, there would be - it would economically unsustainable for a large majority of them, particularly in those states that are most affected, such as New South Wales and Queensland. Now, it maybe, for example, that it could be said, well, those restaurateurs can just put their prices up or they put in place surcharges to deal with the weekend penalties but there's some question mark about whether that could be done and, as noted in a lot of the statements, there considerable resistance from people to those weekend surcharges and so forth being in place and the trend has been to take them away but, in any event, even if they could pass on the increases as a result of these increased costs then that obviously has other consequences in terms of inflation and so forth, but if one is to be sustainable then the only way they could do that is in some way try to change their costs, their labour costs. For example, there was the statement from the cafe in the shopping centre about how they would manage things, about which people they would make redundant and how they wouldn't do table service to try and cope with the increased costs, but in these small businesses it's a fact of life in terms of trying to deal with these increased costs, it has a very immediate impact in the way that it's not going to have in other industries. We ask the Commission to give consideration to that.

PN2610

SENIOR DEPUTY PRESIDENT WATSON: It does raise a question,
Mr McDonald, given the matters in the second paragraph in Mr Hart's statement apply currently in Victoria of how restaurants in Victoria were sustainable.

PN2611

MR MCDONALD: I'm sorry, your Honour.

PN2612

SENIOR DEPUTY PRESIDENT WATSON: Given that the matters in paragraph 2 apply currently in Victoria as to Victorian restaurants, it does raise a question of how restaurants are sustainable in Victoria.

PN2613

MR MCDONALD: It does, your Honour, but in relation to Victoria there maybe a situation where the cost impact is not going to be a strain in Victoria. Where the cost impact is significant, people have got a view of things as they find them. They still have to make a profit to keep the business open, so if a business in New South Wales has these cost increases they've still got to deal with them in some way. It's not really relevant to them, with respect, as those costs of pay in Victoria. It's still got to be dealt with in some way in terms of the business and Victoria, of course, is only one state, and when one compares the other states they're very different sort of interests. And the other thing that I think has to be said about Victoria is that it's not something that's been considered, it's something that is a bit of an accident of history that it has the types of conditions that it has, it's not subject to - it's not because of any deliberate efforts by this Commission or the Victorian Industrial Relations Commission, in fact, it's probably the opposite, and where these things have been considered, as it were, after a proper case after hearing evidence from the industry, a different conclusion has been arrived at.

PN2614

JUSTICE GIUDICE: Do the restaurants that you represent compete with hotels in relation to food?

PN2615

MR MCDONALD: Some hotels do sell food, your Honour, as do some shops and other places but whether you could necessarily say they compete, I suppose they do in some areas but I don't think the restaurateurs would say that they offer the same dining experience as one might find in a pub and I think that they will see themselves as being quite different. There will be some areas on the fringes though that are different. Certainly they're not competing with pubs and the like, although some pubs have, of course, branched out but very different types of service standards, as a general rule, will normally apply. For example, service to table is something that you might find in the restaurants. It's probably unlikely that you're going to find that in a pub. They tend to operate in different ways and in terms of the way that they operate their food and beverage function, it tends to be to support other functions within the organisation. So, if you go to the casino you can line up for the smorgasbord at 3 o'clock in the morning and get a full serviced dinner but you're not going to be able to go to many restaurants and do that simply because the casino can offer that service to bolster their gaming activities and that's one of the other key points of difference we say exists, that the restaurants are there because of the food and the service, whereas in relation to gaming establishments and pubs they're there for other reasons and that's where they derive their revenue.

PN2616

SENIOR DEPUTY PRESIDENT WATSON: Mr McDonald, an institution such as the Argo Hotel in South Yarra in Melbourne which provides bar service but it's major focus seems to be a restaurant and bistro activity, would that be under the Restaurant Award or the Hospitality Award?

PN2617

MR MCDONALD: Your Honour, I don't know, I'm sorry, because I'm not familiar with the - - -

PN2618

SENIOR DEPUTY PRESIDENT WATSON: Yes. I mean, it's essentially a hotel but it has significant emphasis on dining.

PN2619

MR MCDONALD: That maybe the case, your Honour, there's some hotels that will offer that but, in the main, they're set up in a different way to restaurants.

PN2620

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN2621

MR MCDONALD: Just in the same way that some retail establishments will offer cafes and so forth that will come under the retail award and in some cinemas you can get food and maybe a cafe style meal or even something more substantial and they will come under presumably the Cinema Award, but there are a number of contexts in which food is served, even in agricultural settings, of course, there'll be meals prepared for the employees and so forth that will be covered by the Pastoral Award, let's say, or any modern award that's made by the Commission. So, there are a number of settings in which food and beverage is served, not only in relation to areas that would be covered by these awards.

PN2622

The approach we have suggested to how awards should be structured in the industry is having regard to what the principle function of the employer is, so that if the principle function of the employer is food and beverage service then an award should be structured around that. If the principle function is gaming then the award should be structured around that and it shouldn't, of course, exclude food and beverage function but it should recognise that that's not the main reason for that establishment being - and what stems from that, we say, is different operational requirements that also have to be taken into account.

PN2623

If I can briefly deal with why we say the contents of the award is appropriately quite different from the Hotels Award, I've briefly gone to the minimum wages. We say they're properly fixed on the basis of a classification structure that works for the industry. In relation to junior rates, we say that compared to other industries what we're proposing here are reasonable junior rates and that the junior rates that have been set in hotels are not appropriate because they're designed for different settings and probably, if any effect, deter the employment of juniors.

PN2624

Apprentices, again, we say we'd like to continue apprentice wage rates which continues an incentive for apprentices to be employed. If there were increases of the kind proposed to take it to the Hotels Award then this industry would probably employ as many apprentices as are employed in that industry. In relation to the skill based classification structures and career path, I refer the Commission to our submissions about how the classification structure works in this industry. It's really a more modern type of way of working, whereas the hotel structure is designed for a very old way of doing things where the European brigade type of situation where everyone had titles and there was a very heavy structure within the restaurant, so that someone would take the food from the kitchen to another spot and then someone from that spot would then take it to the customers at the table and so forth. We say that highly structured type arrangement might be suitable for major international hotels who have all the infrastructure to try and deal with it but it's not something that the average person would be able to deal with or understand.

PN2625

In particular, where a lot of the problem, in our submission, starts with the classification structure is the introductory grade. If I can briefly take the Commission to that introductory grade that's proposed. There's a definition of appropriate level of training on page 3 of the exposure draft in clause 3.1 and there's the reference to a training clause accredited by the Hospitality Review Panel. Well, that's now gone by the wayside, it's defunct, just because there have been so many changes in the way that training is delivered and the competency standards and so forth, and then the employees skills have been assessed to at least the equivalent to those attained through those courses which no longer really exist, although there are emanations of them. So, let's say if one was to look at employing someone to do some very basic functions in a restaurant, if I can take the Commission to page 34 being the classification definitions, so say if someone in this introductory classification applies to some people but not others, depending on the particular stream and the grades and the levels, but let's say that a caterer wanted to have someone help pick up glasses for a function, employ them on a casual basis, maybe a student, they could look at the introductory level and then there's the question of what the competency requirements of level 1 are, so that it would have to be some consideration as to how do we find the competency requirements of level 1. And there were various competency standards at the time, now things have changed a bit, but in terms of the folders which I've referred the Commission to, volumes of competency standards, one could go to that to try and ascertain what this competency standard or competency standards are for level 1. So, one would consider that and then there would be an assessment made about whether one could move to grade 1 and such an assessment would be conducted by appropriate assessors and at the time that the Hotels Award was put in place a structure was put in place. I think it was an organisation called "Access" to do qualified skills assessment, and they'd come out and they'd do an assessment against the competency standards as to whether your cook should be grade 3 or grade 4 under this structure. That would cost about three and a half thousand dollars to be done and then they would go through - they'd conduct the assessment and you'd know then where your cook was assessed to be at work, but we say in a restaurant that's terribly artificial or in a catering type of situation. There's no reason why someone just couldn't be employed to pick up glasses or help out at a low level with a function, learn the ropes and then after a period of time, we say three months, be able to move on to other things once they understand how the restaurant works, but we say that's completely artificial that type of arrangement, and then because you've got this introductory classification every other classification is in effect bumped up a notch which has resulted in extra costs. Also you'll have in some areas the classifications being compressed, so that in relation to waiters there are less levels of waiters under this award. So that if someone progresses to being a specialist waiter in a fine dining environment, they can go onto another level under our proposal and they do, but under this proposal would have to sort of come back to a different type of arrangement where you have this, what we say is a very artificial introductory level, the arrangement of someone then taking - - -

PN2626

SENIOR DEPUTY PRESIDENT WATSON: But, Mr McDonald, that introductory level is very common in structures across various awards it appears and it was a deliberate and considered element of classification structures during the structural efficiency principle - - -

PN2627

MR MCDONALD: Your Honour, we don't quibble with the appropriateness of an introductory level and those introductory level concepts are contained within our structure at level 1 which refers to rather than this sort of structure training outside or bringing in independent skills assessors, it simply involves someone learning the ropes for a period of three months and after that moving onto other duties, and at that introductory level there are also other basic functions, such as, say, picking up glasses. If someone was just employed to do that they could be the grade 1 or the introductory level of the award but there wouldn't be the requirements that exist for introductory level under this award for those types of people. We don't say there's anything inappropriate, we say it's entirely appropriate, people need to learn the ropes of the enterprise but it's not necessarily going to be going back to some competency standards that are going to be of value to that employer in terms of the person picking up glasses. In this industry they want people who can understand the nature of the restaurant and what's going - and progress through the levels on that sort of basis. Justice Marks in the New South Wales case took a view that it was of such - the classification was entirely artificial and wasn't prepared to award it. We ask the Commission to take a similar approach.

PN2628

In relation to the types of employment, I dealt with the different situation that applies in restaurant and catering establishments, particularly having regard to people coming from a different point in relation to part-time employment and those part-time arrangements being upset, if it was the case that the Hotels Award had to observed for those people.

PN2629

VICE PRESIDENT LAWLER: Mr McDonald, I'm still rather confused about what your problem is with the introductory level and level 1. You took us to the definition of appropriate level of training in clause 3.1.

PN2630

MR MCDONALD: Yes, your Honour.

PN2631

VICE PRESIDENT LAWLER: And then talked about the cost of up to $3000 of having training delivered to employees at restaurants, but the definition in 3.1 is specifically confined to casino gaming, it doesn't have any application to - I'm sorry, I just read that. So, your fundamental problem is here that the structure of the award as you read it imposes a training obligation on restaurants and you say this isn't appropriate.

PN2632

MR MCDONALD: No, your Honour, it is decidedly different to that. If we say that - it's not so much the training obligation that we resist, although we do say that it's a bit artificial to suggest that if you wanted to pick up someone in a function there would be a structured training arrangement through some sort of external provider or even internally from the knowledge of the competency standards for some small business and mostly businesses are very small. When the Hotels Award was introduced in some of the major international chains they did have people who were skilled up to do their own assessments of the workforce to try and work out the grades. But in most cases one would have to go outside to get those people and that's what this requires.

PN2633

So that if you just want to someone to pick up the glasses you've got to have recourse for these types of competency standards. You've got to have recourse to independent skills assessors and of course it's something that does seem to be a bit odd and it hasn't been utilised in the industry as it was designed to do simply because it's not workable type of arrangement.

PN2634

VICE PRESIDENT LAWLER: I understand from Mr Hart's most recent statement he gives a whole list of examples of specific establishments and identifies the percentage cost increases that those establishments face as a result of the exposure draft or the calculations that have been done, but that's a different issue from the one you're talking about at the moment, isn't it, increased costs?

PN2635

MR MCDONALD: It is, your Honour. There's some raw costs but then there's costs of trying to move to a structure that doesn't work for the restaurants and one that they don't currently apply and that's the type of thing that I'm seeking to take the Commission to. It's not so much that they've got the - well, the cost is important. It will mean that a number of businesses won't be sustainable but the other thing that's important is this extra layer of regulation which we say is also contrary to - - -

PN2636

VICE PRESIDENT LAWLER: But why doesn't this award simply allow the hypothetical restaurant you're talking about to just engage somebody at grade 1 as a person to pick up glasses and do the other things identified, food and beverage attendant grade 1?

PN2637

MR MCDONALD: Your Honour, I suppose what we're submitting is that there's a recognition that there needs to be something at an introductory level. We're just saying that what we propose is a more practical introductory approach than what's proposed here and what you say is right, your Honour, you wouldn't pick up someone at an introductory level to do these types of jobs but that's what the introductory level is designed for. It's not designed for other more sophisticated jobs like say a clerical job. You can't use the introductory level for those types of jobs. The introductory level is mainly for that grade 1 level.

PN2638

So if say a clerical employee level 1 under this award isn't fact a grade 1, I think they're a grade 2 or 3, so the introductory level doesn't apply. But the other thing that has to be grappled with is that the underpinning infrastructure if you like for this classification structure has since moved on. The competency standards are approached in a different way. The documents that are referred to, the Hospitality Review Panel, the assessment approach through a company called Access, they're no longer in existence.

PN2639

SENIOR DEPUTY PRESIDENT WATSON: Mr McDonald, the parties have past beyond time ago and the AHA I think was first off the mark indicating that that was no longer appropriate and the union has similarly followed that and proposed an alternate definition. So we've past the definition in the - or the parties have, in the exposure draft, haven't they?

PN2640

MR MCDONALD: But your Honour, we still get to the point of even if the parties that currently apply that award are okay with it and they're used to having that type of structure, restaurant and caterers of course employ far more people, are not used to if and they will now have to come to grips with this and maybe over time they've worked out how to deal with the particular competency standards that were around at that time and maybe they've made adjustments for that. But we come to it new, we don't currently observe this structure.

PN2641

We've noted in relation to the penalty rates that the penalty rate on a Sunday would be increasing from time and a half to time and three quarters. We say in relation to that the Hotels Award penalty rates aren't necessarily appropriate penalty rates to apply to this industry. The Commission when considering this industry has determined that to be the case in relation to the decision of Marks J. The prevalent penalty rate on a Sunday is time and a half. The evidence is pretty clear about the impact of the penalty of time and a half already and we say that to increase that penalty is unwarranted and that the Hotels Award penalty rate structure is a product of its own history and part of that history, for example, is that going back to the pre war years employees behind the bar got double time on a Sunday and then when the Commission again was faced with looking at the penalty rate structure under that award he had to deal with that in some way when he was trying to assess what the penalty rate was on a Sunday; because you had a double time penalty, you had other employees of time and three quarters.

PN2642

He also had a situation where he was looking at a revision of the Saturday penalty as well. So he made a decision in relation to that award based on the evidence in relation to that award about what an appropriate penalty was and he quite clearly in his decision has specific regard to that award. The history of that award is not the history of the Restaurant and Catering Award and we make the point that to increase the penalty on a Sunday in such a substantial way has its only basis in the Hotels Award and we say that that's not appropriate and we say it's appropriate for the Commission to look at the circumstances in this industry and decide what type of penalty rate is appropriate, or alternatively, look at other considerations by state tribunals as to the penalty rate that is appropriate.

PN2643

We say the same in relation to the penalty of an evening. Just because there is this penalty rate of an evening in relation to the Hotels Award which had its origin, we say, in relation to the 6 o'clock school where it was established and simply weren't open after 7 o'clock of a night to serve alcohol is no longer appropriate. Well, whether it's appropriate or not for the Hotels Award, it's not appropriate to flow on that type of provision from the 1940s on to the Restaurant Catering Award. In our submission that makes no particular sense. Contained in the references is the decision of Commissioner Morrison where he deals with some of these issues. If I can very briefly take the Commission to that and I'm conscious of the time.

PN2644

At tab 5 is an extract from Commissioner Gay's decision where he makes it clear that his decision on penalty rates is a product of that award's history and not setting any general precedent and then at tab 6 there is the decision of Commissioner Morrison in 1948. The provisions in relation to evening work are at page 417, the last paragraph of that page, hours of work where it states that:

PN2645

In New South Wales the licensing awards allowed for work between 10 am and 6 pm.

PN2646

And on the next page or page 420, Conciliation Commissioner Morrison noted that at that time that double time penalty had firmly been established in relation to employees behind the bar. But then he made it clear that in the back of house the position is different to behind the bar and page 420 states:

PN2647

In the back of the house however the position is different. The public interest must be respected. Hotels are used for holiday purposes over weekends ...(reads)... rostered from time to time to work on Saturdays and/or Sundays.

PN2648

And he then proposed to grant a different penalty rate for the back of house work. But the Sunday penalty we say has always been influenced by a very early fixation of the double time penalty in relation to (11:19:53) and that influence is the structure of the award as it is today. In relation to the decision of the Full Bench of the Queensland Industrial Relations Commission of the Hotels Award they took a different view of the penalty rates and they decided in that state that time and a half was more appropriate on Sunday and the Full Bench decision is at tab 1.

PN2649

In relation to shift work we say that unlike hotels there's no 24 hour, seven day operation. There's no reference to shift work in the award and the award's never been traditionally regarded as a shift industry. But we say any shift work definition would be inappropriate to include in this award. In relation to annualised salaries there's a 25 per cent premium for the continuation of the annualised salary arrangements that currently exist in the industry but in our submission the basis for a 25 per cent increase in the costs of salaried employees' wages has no particular rationale. It may have a rationale if one was to say that by the payment of the 25 per cent that that (11:21:10) costs but the way that it works under the Hospitality Award or the Hotels Award is that one gets paid 25 per cent but one also then has to keep track of the hours of work, overtime and penalty rates and make up any shortfall.

PN2650

Another cost arises in relation to leave loading. At the moment leave loading is only available after 12 months of employment. There's a high turnover rate in the industry so there would be many people who under the proposal would receive the loading when they would not otherwise if they continued for the 12 months as provided for in the existing award. So from all that we say that to apply to the Hotels Award this industry wouldn't, in the context of this industry, may be a simple to understand document. It wouldn't be easy to apply and it would increase the regulatory burden. In terms of the fair and enforceable safety net, our proposal would provide that. It's had Commission consideration and it's been deemed to be a fair and reasonable award.

PN2651

There hasn't been the same consideration of the award federally and indeed that didn't happen partly because of what happened with the industrial relations changes in Victoria.

PN2652

SENIOR DEPUTY PRESIDENT WATSON: Can I ask you in relation to that, that was the decision in 1993. Commissioner Gay delivered a decision in relation to the federal Hotels Award in 1993, but why was no action taken by the RCA to agitate that issue in respect to the federal Restaurants Award?

PN2653

MR MCDONALD: Your Honour will recall that after the changes that took place there were no penalty rates that were applicable of course to restaurant and caterers in Victoria. Then there was the award made which I understand was made to a limited number of respondents in similar terms to the old Victorian award which would otherwise have been changed and then of course common rule happened. So in some ways it's a bit of an accident of history that the Victorian award has turned up and it turned out in the way that it has and as the Victorian Commission said, they probably would have gone down the same path as New South Wales had that opportunity been given to them.

PN2654

SENIOR DEPUTY PRESIDENT WATSON: Well, I don't think they did say that. They indicated they would convert some rates of flat amounts and reduce them. They don't indicate by what degree. I mean Commissioner Gay did a similar thing in relation to the Hotels Award federally.

PN2655

MR MCDONALD: Yes, your Honour. In terms of the structure of the penalty rates that they were considering at the time, as I understand it, they're the same penalty rates that are in the award now. So what they said was that in relation to the penalty rates as they existed in the award now they would have reduced them on the basis of the case that was presented.

PN2656

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN2657

MR MCDONALD: And in terms of restaurant and catering, because there hasn't been that behind the bar double time penalty, the penalty rates have always generally been lower on a Sunday anyway. In terms of there being a sustainable modern award system, in our submission that's more likely if the Commission was to adopt an approach that the parties themselves see as being an appropriate structure for the industry and there was no issue as between the union and ourselves that a Restaurant and Catering Industry Award was appropriate. We say that there's nothing in the Minister's Request or the Act that would require the Commission to eliminate all the Restaurant and Catering Awards and that the proposal that the 23 awards be rationalised into one award that we make is a reasonable and goes sufficiently far to deal with the consideration of reducing the multiplicity of awards in the system.

PN2658

We say that should (11:25:21) itself. It should be something that's done to improve the type of award regulation that exists and we say that the proposal that we make will do that by simply opposing the Hotels Award (11:25:33) couldn't be satisfied that that would have that effect. If it please.

PN2659

JUSTICE GIUDICE: Thank you, Mr McDonald.

PN2660

MR MCDONALD: Your Honour, the next industry I have to deal with is the accommodation industry and I'm content to do that now or I'm content to do that later if that is more convenient.

PN2661

JUSTICE GIUDICE: No, I think go ahead now.

PN2662

MR MCDONALD: Thank you, your Honour. The Hotel Motel and Accommodation Association is an umbrella body which covers the Motor Inn, Motel and Accommodation Association of Australia, a registered organisation of this Commission, and also the Motor Inn, Motel and Accommodation Association of New South Wales, Queensland Motor Employers Association and the Industrial Organisation of Employers, the Queensland Motel Employers Association. The accommodation industry has sought an award that applies to the accommodation industry and the approach that's taken is that the awards in this industry should be structured on the basic of the ANZIC codes which have regard to the principal function of the employer and where the principal function is accommodation we say a separate award should apply.

PN2663

If an establishment's principal source of revenue or the majority source of revenue is from gaming or from liquor sales, then we say that it's appropriate that a different award apply.

PN2664

COMMISSIONER SMITH: I'm sorry, I don't understand that in the context of a safety net for employees, the revenue source for the employer you say affects the safety net for the employees?

PN2665

MR MCDONALD: It affects the operational requirements of employers, your Honour, so that if someone's main revenue is from gaming for example such as say the casino, then the operational requirements are going to be different and their food and beverage offering will be there to support the principal function of what they're doing, as will be their accommodation. So that it's appropriate that an award be structured around the requirements of the casino as a gaming establishment rather than the casino as some other type of establishment. As we say, if an accommodation establishment is set up just to provide accommodation, that's what it's all about, so the operational requirements are going to be different.

PN2666

I gave that example before about say food needing to be given at 3 o'clock in the morning and they are different types of operational requirements. So it will affect what an appropriate safety net is also for employees, as well as - - -

PN2667

COMMISSIONER SMITH: Well, I'm not sure about that but go on.

PN2668

MR MCDONALD: If one was to use that restaurant example, we say that there shouldn't be the ability to work ordinary hours between midnight and 6 am. If one was structuring an award that also applied to the casino's food and beverage functions then you'd say that there should be a different spread of hours. So you'd have the spread of hours that encompassed work at 3 o'clock in the morning as well as during the day. So in terms of how that would - there would be operational requirements that employers should have to take account, of course have to take into account the requirements of the employees because to .... make provision for the casino you'd have to extend the spread of hours for restaurant and catering employees.

PN2669

So it's really a question of how far you compromise the conditions to accommodate the circumstances of other industries and we say that the line should be drawn at a different line or a different spot to the General Hospitality Award. With the Accommodation Award, we say again like the Restaurant and Catering Award it's a far more straight forward document. It takes into account what's in the existing Motels Award which has been in place since 1973. It looks at the existing provisions, the existing various state awards that apply to the industry and it seeks to put those in as well where they're existing conditions. So for example, there's a multi hiring flexibility in the Queensland award which we seek to continue as well as other provisions in the Motels Award.

PN2670

Again, I dealt with that Accommodation Industry Award in detail and I don't seek to go through that again, but we say it's a far more straight forward document, it's about a quarter of the size of the proposed Hospitality General Award, it reflects what people in the industry currently do, it reflects the existing provisions of awards of this Commission, and we say it's a big enough industry to suggest that it's appropriate to continue regulation by way of an existing award.

PN2671

The key tenets that are contained in that document are not reflected in the Hospitality Award. I'll go through some of those. By referring to the Hospitality General Award I don't seek to suggest that I'm in any way moving away from the notion that an existing Accommodation Industry Award should be continued, but I do seek to highlight some of the areas of cost and over regulation which we say would arise from the accommodation industry being placed under the General Hospitality Award.

PN2672

SENIOR DEPUTY PRESIDENT ACTON: Mr McDonald, a submission was put in yesterday which in essence made some changes that you want to the Hospitality Industry General Award, is that right?

PN2673

MR MCDONALD: No, your Honour. The documents that have been filed, on 10 October we - well, earlier in the piece we filed an Accommodation Award which was when we put the submissions in relation to that before Senior Deputy President Watson. That's our first proposal, that is what we ask the Commission to make. In relation to - and there were submissions in support of that. We have also in these later submissions sought to address the exposure draft that's been produced by the Commission, but in terms of the issues that we raise now in relation to the exposure drafts there are also issues that were in some respects raised in the context of wanting a separate Accommodation Award.

PN2674

Another example, the penalty rate structure that we have in the Accommodation Award we also, in relation to our comments on the General Hospitality Award ask for the same penalty rates in the General Hospitality Award. The document that was filed yesterday didn't change any of the substantive things that were being sought. There were a few minor matters that we dropped off on, but there were a few notations simply to make matters clearer. So our first position is an Accommodation Award. If the Commission finds against us on that then we ask that changes be made to the General Hospitality Award.

PN2675

SENIOR DEPUTY PRESIDENT ACTON: As per your submissions yesterday?

PN2676

MR MCDONALD: In the marked up submission. But there had been an earlier submission which is unaltered.

PN2677

SENIOR DEPUTY PRESIDENT ACTON: Yes.

PN2678

MR MCDONALD: At page 5 of the submissions in support of the draft award we deal with some of the detail of those items. I won't go back to the training issue, but we do say that the classification structure that's proposed in the Accommodation Industry Award, being the Accommodation Industrial Award structure from Queensland, is a far more straight forward structure, it's simple to use and it's one that is preferred, and we submit that's a more appropriate one than the Hospitality Award. In relation to the definition of liquor servicing
employee - - -

PN2679

SENIOR DEPUTY PRESIDENT WATSON: Mr McDonald, it's not necessary to simply go through page 5, we've got that. Again, you should focus on the purpose of the additional submission.

PN2680

MR MCDONALD: Yes, your Honour. I don't repeat what's there but I do have some matters of new detail. In relation to part time employment there's a very high level of part time employment in the accommodation industry which is different to the type of part time employment that is currently in pubs and so forth. 12.2 per cent of the industry is part time, and there would be a problem if the employees who are currently employed part time under the award had to go to a more rigid part time arrangements and those part time arrangements couldn't be continued.

PN2681

There's a particular issue in relation to the coverage of managerial employees. Managerial employees were subject to a reviewed award a few years back. There was an issue about how far coverage of the Hotel Managerial Award should go. The Motor Inn, Motel and Accommodation Association intervened in those proceedings and it was made very clear that the award for hotel managers wouldn't extend into accommodation establishments, and we ask for that arrangement to continue. That's within the decision of Senior Deputy President Lacy, and that's to be found at tab 4 of our references.

PN2682

And I refer to page 3, paragraph 8, and it's said at the end of that paragraph that Mr Cooper on behalf of the Club Managers Association that the definition of hotel in the new award was not intended to operate differently from the definition in the 1974 award and it was not intended to cover members not licensed as a hotel, and that the parties to the award would be the AHA and the CMAA. So in relation to hotel managers at the moment the Hotel Managers Award applies to members of the AHA and it doesn't apply to the accommodation sector, so we ask that that be continued.

PN2683

There is a definition of hotel that's contained in relation to managerial staff in the draft award, but in our submission it's one that could be expressed in clearer terms. But in effect the Hotel Managerial Award of 1974 applied basically to pubs, and we say that that should continue. The wording that we've proposed is that this classification shall only apply - this is on page 47 of our marked up version - to establishments whose main source of revenue is derived from the sale of liquor and/or gaming and who are members of the AHA. We say that that reflects the status quo.

PN2684

In terms of the definition of hotel that was put forward by the Commission we don't necessarily criticise it, but it wasn't clear as to whether it was to be read in a narrow sense in that it applied only to people retailing to the general public and other retail licensed establishments being the traditional notion of a pub, or whether it was to be considered in some broader term. But we say that type of definition is clearer or reflected in the status quo. We don't understand that the Club Managers Association is seeking to move away from the agreement reached in relation to the proceedings before Senior Deputy President Lacy.

PN2685

There are a number of new allowances. There are allowances for forklift drivers for example, first aid allowances, there's allowances for working late, there's allowances for working early and there's also night allowances that have been introduced. So at the moment under the Motels Award there's a night allowance for permanent employees. It doesn't apply to casual employees as it does under the Hotels Award. There is a provision though about - and there's no provision about having to pay for the conveyance home, whereas that's proposed to be included. And we say those things are extra costs which aren't warranted, and in terms of those employers under state awards they're not currently applying those evening allowances that are in the federal award.

PN2686

In clause 28 we say that the hours provisions are restricted, in that there's got to be a six hour minimum for full time employees. We have submitted that the four hour minimum is more appropriate. And in relation to part time employees we seek a two hour minimum start. At the moment the Hotels Award has a three hour minimum start for part time employees and a two hour minimum start for the casual employees. We say that that has the effect of encouraging the use of casual employees over part time employees.

PN2687

In motel type situations, particularly small motels, there's a problem with people walking away from the front reception for a meal and arrangements are made for people to have meals on the job, we ask that the meal break provision also reflect that. In relation to the Sunday loading, the Sunday loading is 150 per cent in Queensland and in Western Australia and we propose that that be continued. The Hotels Award has that loading of 175 per cent which we say is a product of its own history and not appropriate for general application.

PN2688

In relation to late night, early work allowances, that's extended to casual employees. That will be a very significant cost and in the order of around about 10 per cent of businesses in accommodation. We say that it's appropriate for an Accommodation Award to reflect the fact that they need to be open for extended hours and that a night allowance like as occurs in Queensland is not appropriate here.

PN2689

There is also an increase proposed to the public holiday penalty rate for casuals to take it to 275 per cent. That's an increase from 150 per cent in South Australia, 250 per cent in Queensland, 150 per cent in Western Australia, and in Tasmania it's 200 per cent. We say that those types of cost increases have no particular rationale behind them. In relation to clause 34.1 where it's sought that there be a definition of shift worker which would provide for an extra week's leave for employees regularly working Sundays and holidays, we say in relation to that that this is not a shift industry, it's never been recognised as a shift industry. The regime of hours under the award was an ordinary hours one.

PN2690

And there are previous Full Bench decisions which have looked at this type of situation and decided that an extra week's leave is not appropriate. That's in fact in relation to the Hotel and Retail Liquor Industry Award, and that's to be found at tab 2 of the authorities to which I refer. I refer to the second page of the copy, being page 329, where the union was seeking the extra week's leave to be extended to the hotel and retail liquor industry. And it's noted on that page that it's not a continuous shift industry and it's not been defined as a shift industry as such, and the development of the award hasn't been one along shift work lines.

PN2691

And then over the page on page 330 at the end of that section the Full Bench states that:

PN2692

The granting of this claim, even in modified form, would be an unwarranted departure from the standard established by the Commission and observed by other industrial authorities in Australia. Accordingly it's refused.

PN2693

We don't understand that there's been any Full Bench decisions since that has sought to revisit that extra week's leave, so that on existing principles there is no reason why the extra week's leave for a seven day shift worker should be applied to this industry. In relation to public holidays it's been proposed that people get paid or can take an extra day off if a public holiday falls on a day that they wouldn't ordinarily work. Now, this is an existing provision in the Hotels Award. We don't understand it to be consistent with section 56 of the National Employment Standards, which seems to make it clear that public holidays are only paid for days that the employees are required to work.

PN2694

If I can very briefly take the Commission to section 56 of the National Employment Standard, and it's made clear in the note at the bottom of section 56, it says:

PN2695

If the employee does not have ordinary hours of work on the public holiday the employee is not entitled to payment under this section. For example, an employee is not entitled to payment if the employee is a casual employee who is not rostered on for the public holiday or is a part time employee whose part time hours does not include the day of the week in which the public holiday occurs.

PN2696

This has always been a confusing area under the Hotels Award in circumstances where the Hotels Awards traditionally referred to days off as being rostered days off. Over time that's derived perhaps a different meaning in the context of 19 day months and RDOs in that situation. Well, we say it is confusing and it's appropriate that there be a distinction drawn between the two types of days off. And in terms of the definitions that we propose we put forward a definition of accrued day off which would clarify that. But rather than giving an existing entitlement to public holiday clause for people to get public holidays on days that they wouldn't ordinarily work, we say it's more appropriate that the notation from the National Employment Standards be in there to make that clear, and also be made clear by the definitions in the award that rostered day off and an accrued day off are different types of things.

PN2697

There is also in schedule A consideration to the hotel managers. Again we say we repeat the issue that we raised in the context of hotel managers being referred to in the body of the award. There is also an overnight stay provision which is not in the Hospitality Award. In the unions submissions they indicated that they didn't have a difficulty with it. The overnight stay provision enables employees to stay overnight to be available in situations such as emergencies and so forth, and they get a fixed allowance for doing that and it's not treated as ordinary hours. We say that there's no reason to not repeat that same provision, it's an existing provision of the Motels, Accommodation and Resorts Award which was inserted by Commissioner Lawson with the union's consent only a few years ago.

PN2698

In terms of the parties bound issue, and we appreciate that this has been dealt with in more general matters, but we are certainly not opposed to being listed as a party to the award, and in respect of hotel managers we can see how it might assist if it's made clear that hotel managers who are members of the AHA - in establishments who are members of the AHA are covered by the hotel managerial provisions but not those who are members of other associations.

PN2699

SENIOR DEPUTY PRESIDENT WATSON: How can you have an award provision which is referable to management of an organisation?

PN2700

MR MCDONALD: Your Honour, that's how it currently operates. I understand that that's a matter that's still under consideration by the Commission, and will turn in some respects on the type of legislation which is ultimately put in place. We say it's been able to work currently and it's a suitable distinction that reflects the agreement of those organisations to that type of award which was in the agreement, of a culmination of those.

PN2701

Your Honours and Commissioner, that would conclude our submissions, but we do emphasise that we seek an Accommodation Award, and our comments in relation to the exposure draft put in the alternative at least.

PN2702

JUSTICE GIUDICE: Yes, thanks, Mr McDonald. Mr Easton?

PN2703

MR EASTON: I think I'm next by arrangements from the front bar table, your Honour. I've tried to be brief all week, and today I can be even briefer. My clients' membership has a substantial coincidence with Mr McDonald's clients' membership, and the root of the concerns that are outlined in our written submissions that are filed really come down to the differential between the Hotels Award and the clamping on of the restaurant and catering industry for not wanting to avoid a loaded term, but clamping on restaurants and catering onto the Hotels Award.

PN2704

We would respectfully submit that that's a bad fit. We would support the proposed Restaurant and Catering Award in the terms proposed by the RCA. Whilst restaurateurs might have some comfort in knowing that we're moving to a national modernised award system, and when the rubber hits the road for many of those operators we respectfully submit that the increases in their labour costs that will result from clamping them on to the hotels arrangements would not be making an award that has economically sustainable terms and promoting flexible modern work practices.

PN2705

There are two ticket that are bigger than the other ticket items for us. Firstly, in relation to arrangements for part time employees working additional hours. The exposure draft has those additional hours at overtime rates, whereas we advocate that those additional hours to be at casual rates which reflects the current arrangements, at least for New South Wales. We would submit for those part timers, in one sense it's a victimless crime if they're voluntarily working extra hours to get access to those extra hours.

PN2706

I notice Mr Hart's statement filed on 30 October, at paragraph 5 contains some statistics that 20 per cent of staff are full time, 16 per cent part time and 58 per cent casual. If there was incentives to move some of those 58 per cent of casuals into part time employment then we'd respectfully submit that whatever incentives there might be to do that would evaporate if the employer understood that if they wanted that part timer to work some additional hours over the roster then they'd have to incur overtime penalties for it. The second bigger ticket item is in relation to penalty rates. We say that they're not appropriately flexible and applicable to the industry in which they'll operate if the restaurant and catering employers are clamped onto hotels and again from the same paragraph - - -

PN2707

SENIOR DEPUTY PRESIDENT WATSON: Mr Easton, can I interrupt you for a moment. You're repeating what Mr McDonald has said in terms of clamping things onto the Hotels Award.

PN2708

MR EASTON: Yes.

PN2709

SENIOR DEPUTY PRESIDENT WATSON: I'm concerned about the apprehension because regard has been had to a range of awards, including the. Liquor and Accommodation Industry - Restaurants (Victoria) Federal Award.

PN2710

MR EASTON: I'm sorry, your Honour, I'm - - -

PN2711

SENIOR DEPUTY PRESIDENT WATSON: The concept that - - -

PN2712

MR EASTON: I'm struggling to hear your Honour, sorry.

PN2713

SENIOR DEPUTY PRESIDENT WATSON: All right, I'll start again. I'm concerned with your references to clamping an award onto a Hotels Award. It's not a well founded concept because regard has been had to a range of awards within the hospital industry, including the Liquor and Accommodation and Restaurants Award, federal, and the proposition that seems to be coming from
Mr McDonald and yourself that the draft award is simply a hotels award is not one which from my point of view is well founded.

PN2714

MR EASTON: Then perhaps I would need to apologise for using that very broad term. In essence I'm referring to the application principally of penalty rates and key conditions that are outlined in our submission which appear to be coming from the Hotels Award and if the people I'm referring to are brought into that proposed award then those conditions apply to them, and for my loose terminology I do apologise but I take it that your Honours and Mr Commissioner understand the effect of the submission I'm hoping to briefly put.

PN2715

SENIOR DEPUTY PRESIDENT WATSON: Thank you.

PN2716

JUSTICE GIUDICE: Well, it's got some consequences, of course, because it means in relation to some people in the accommodation industry, for example, the proposal involves a reduction in the existing entitlements, an issue that doesn't seem to have been addressed by your or Mr McDonald.

PN2717

MR EASTON: Indeed, your Honour, and that's part of the dilemma I'm glad I don't have but unfortunately your Honour and the members of the Bench do. There's been lots of references to I think overs and unders and various balancing arrangements over the last couple of days. I don't have a submission that I could say to put to that, it's not an easy answer, but where, for example, Mr Hart, if his statistics are right, at 5(b), that 36 per cent of hours are worked after 7 pm, Monday to Friday, 22 per cent were worked on Saturday and 17 per cent on Sunday, that would make 75 per cent by my maths of the hours that are worked in restaurants each week in those timeframes where the differential and the proposed increase in penalty rates will impose substantial increases in the labour costs for restaurateurs and caterers and that's where, as I say, that the rubber hits the road and it would be ideal to have an even smaller number of awards but - to separate the hotels from catering and restaurants. That's all I propose to say, unless there's any questions.

PN2718

JUSTICE GIUDICE: Thanks, Mr Easton. Mr Clarke.

PN2719

MR CLARKE: Thank you, your Honour. Your Honours, the AHEA is pleased to make further submissions in response to the exposure draft this morning, the exposure draft being released on 12 September. In making these submissions we continue to rely on the material we previously filed. This applies to material filed by branches of the AHEA and this morning I am speaking on behalf of the branches, albeit the South Australian and the Queensland branch are here to address these specific concerns with regards to the transitional arrangements.

PN2720

We do have concerns with the exposure draft and these are probably best summarised in terms of the exposure draft, we don't think brings as new an approach as we would have liked to the award. We still believe this can be done without prejudicing employers and employees in the way that the award affects them, and we feel, I suppose, somewhat limited in the way we feel we can respond to the exposure draft because we don't understand some of the rationale and some of the decisions that were made in putting that exposure draft together. I don't think we stand alone in making those comments, and reading through the submissions that has been the common theme.

PN2721

We do not intend to deal in detail with the submissions that we made or in the response Hospital Award we lodged with the Commission on 10 October. We do say though that the modifications comments we made, particularly in our response Hospitality Award, go a fair way to assisting the Commission in putting together a more user friendly document and in most cases, unless indicated, without substantially the underpinning conditions. And I'll take you to a couple of examples of those, and that's the modification of the awards classification structure, so that each employee fits into a level rather than fitting into a grade which then fits into a level. This structure - this proposition is already found, I understand, in the South Australian Hotels Award so that everyone is at a particular level within the industry, rather than sort of being a cook grade 2 who is a level 3. That sort of cleaning up exercise, we say, goes a long way to assisting the user friendliness of the award through the classification and wages section without changing anyone's conditions whatsoever.

PN2722

Payment of wages. We've suggested that it be based on the payment of wages section that comes out of the retail exposure draft. The payment of wages, we say, in the exposure draft reflects a time when wages were primarily paid in cash, not by EFT payments which now occurs most of the time, but not all the time, and it's not dissimilar to the retail industry in that regard and so we're inclined to go with that. Once again, we say that doesn't change in any significant way underpinning conditions.

PN2723

Modifications to ordinary hours of work, and there is some disagreement here with the union, but we do see this as saying it should apply to all permanent employees, rather than just under its current construct, it applies really to full-time employees and it will sort of go to a long way to what we have to say in a lot of other areas that the award is sort of constructed in the exposure draft, not unlike the Hospitality Award currently is but really sort of part-timers and casuals are dealt with up the front but we say the part-timers should be brought into the ordinary hours section and there should be - it should be simplified in its format without changing the important conditions with regards to hours of work, days of work, et cetera.

PN2724

I'm just picking up some comments about the allowance calculation. We agree completely with the percentage position adopted by the Commission. I think the confusion that people are having is that that percentage calculation is at the moment calculated off a weekly rate of pay, when we would say that could be, and we've made suggestions in our response exposure draft, if once again like in the Retail Award, if there was an hourly standard rate of pay calculation, which doesn't appear in our draft at the moment, then those allowances could be expressed as an hourly amount, the percentage of them, and we do say it's an important point because we have the same confusion. The phones rang the day the exposure draft was released trying to understand how the penalties worked. So, once again, we sort of point to the Retail Award where if we had a - they've got a different construct than what we've suggested but what we are suggesting is that we have a standard rate of pay which is weekly and a standard rate of pay which is hourly and that - - -

PN2725

SENIOR DEPUTY PRESIDENT WATSON: That would be in the classification rate table or in the - - -

PN2726

MR CLARKE: That would be in the definition. At the moment there's a definition for standard hourly rate.

PN2727

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN2728

MR CLARKE: To, say, have a definition for hourly standard rate and then that would mean that you could then sort of having those percentages flowing back to that hourly standard.

PN2729

SENIOR DEPUTY PRESIDENT WATSON: And you'd identify both the weekly and annual in the wages table - sorry, and weekly and hourly.

PN2730

MR CLARKE: And we say that we've done that in our response award where we've sort of said hourly standard rate of pay, rather than just standard rate of pay, because, I mean, it is confusing.

PN2731

SENIOR DEPUTY PRESIDENT WATSON: I was just trying to establish what it would look like in that sort of - - -

PN2732

MR CLARKE: Yes.

PN2733

SENIOR DEPUTY PRESIDENT WATSON: Yes.

MR CLARKE: So, it's these sort of, what we call, simple or solutions that will assist the parties and we note the LHMU from their submissions has agreed to some propositions we've put with regards to the penalty rate structure. They just help clean up the award a lot without, once again - well, certainly with regards to penalty rates without changing current conditions. And along with that theme we're suggesting that the transitional arrangements be in schedules, rather than being woven in amongst the award conditions, and the reason we say that, and certainly I'll get my colleagues from South Australia and Queensland to have a few words to say in a minute, but we say that it will be much easier at branch level if people can sort of pull out the particular transitional arrangements that may apply in South Australia, that may apply in Western Australia, that may apply in Queensland and be able to educate their specific members on it without interrupting, so as to speak, the general understanding of the federal award.

PN2734

We've actually had some discussions with the LHMU in the last day on this and I suppose we - the current transitional arrangements that appear in the exposure draft have not been discussed in detail with the LHMU but we'd still see an opportunity over the next month, depending on how the Full Bench was minded to discuss those in more detail and hopefully come to a situation where we could put forward agreed positions with regards to transitional arrangements using a schedule approach and, if necessary, and if we couldn't reach agreement, asking the assistance of the Commission, not the Full Bench but the Commission, to give us some assistance in settling those and providing those to you so that they could be an agreed position coming into the published version of the modern Hospitality Award.

PN2735

JUSTICE GIUDICE: We've indicated to some others that we are open to receive material like that but obviously there are limits because the drafting will have to well advanced over the next few weeks.

PN2736

MR CLARKE: Yes.

PN2737

JUSTICE GIUDICE: So, with that caveat, we encourage people, if there's prospect of reaching agreement on matters that might assist us, to go ahead with that.

PN2738

MR CLARKE: We'll take that approach. Thank you, your Honour. I might just ask my colleague, Mr Evans to say a few more words and give just a bit of detail before I complete my submission with regards to - - -

PN2739

JUSTICE GIUDICE: Yes.

PN2740

MR CLARKE: And Ms Minchinton as well from Queensland.

PN2741

JUSTICE GIUDICE: Yes, very well. Yes, Mr Evans.

PN2742

MR EVANS: Thank you, your Honours. I appreciate the chance for the state, especially to come along and put some views to you about the impact of draft award. I have no problem coming up with the draft of the modern award, we think that's logic with the system we're going into, but the issue, as we clearly identify, and primarily, your Honour, I refer you to the AHEA's submission of 10 October and the three transitional schedules that we've attached to that. In South Australia, Western Australia and Queensland there are eight awards that are NAPSAs. Those awards have not had any coverage of any federal award coverage or the national Hospitality Award that has been in place and which was used as the award certification test case decision by this Bench in 1998.

PN2743

Now, my intention, sir, is really just to reaffirm the need for those transition arrangements from a South Australian and a WA perspective. Our WA colleague unfortunately couldn't make it but they have sent you very detailed submissions, including one again last night for a one pager, of the clear cost comparisons between if they transferred now or from 1 January 2010 from the NAPSAs, the four NAPSAs they have in that state, over to the industry award of the impact that they will have on the range of their members of that state. Our WA branch has 85 per cent coverage of all the hotels and some restaurants in that state, so the impact, particularly in terms of the penalty calculations, and we operate over a seven day business, are clearly identified in those submissions of our WA branch, which I would ask you to strongly consider.

PN2744

Ms Minchinton will cover the specific issues from Queensland in terms of the impact to Queensland. My role really is ensure and seek your support following on from the discussion, the position of Mr Clarke just then and our discussions with Mr Swancott yesterday, who I also identify in the LHMU submissions of 10 October, 20 October and 28 October to this Bench, is that they have included a schedule as well for transition, so we would say that there is a similarity that the transition arrangements do apply for state NAPSAs to be covered from 1 December when you hand down your award.

PN2745

Certainly in terms of we have a general intent from the LHMU and the AHEA about transition schedules but we clearly have a little bit of difference in content at this stage, but I think following on the discussion we had yesterday with
Mr Clarke and Mr Swancott that there is room for us certainly in two options I suggest to you to consider. One is the option to put something to you by the end of November, if that's possible, or slightly earlier, your Honour, acknowledging your heavy workload, and I do appreciate that, or the position that I was going to put to you from a South Australian perspective and a NAPSA perspective, would be that the South Australian, Western Australian and Queensland transitional schedules that we have put in our document for you, would you be prepared to put them into your document from December 2000 - sorry, 19 December 2008, with the clear right reserved on the LHMU and the AHEA to discuss and fine tune those intents prior to 1 January 2010. Now, the reason that I ask that is that a number of provisions that we have contained in those transition schedules have
been around for a very long period of time and one that I will highlight specifically is in South Australia, we are the only state under the Hotels Clubs Award or the Motels Award that has a 50 per cent casual loading. There is no other award that I am aware of, certainly in South Australia but also in Australia, that has 50 per cent casual loading. That rate has been applied by hotels in South Australia since 1931, both my members of hotels, the LHMU members, the workers, they are used to that, they get that rate. That rate applies seven days a week, 18 to 24 hours a day, operation of our facilities. That applies to all the hours whether your work midday on a Monday to midnight on a Saturday or Sunday. It's a very comfortable rate for my members, they know where they stand, they know how to calculate it. It doesn't cover anything else as far as penalties or anything. Of the 66 per cent of our employees who are casuals in South Australia we have a very high regard of those who stay on and keep working on that and we have a lot of people who therefore accrue long service leave. In South Australia that is seven years. They then get that 50 per cent loading for their long service leave entitlements. They also get it for their superannuation entitlements.

PN2746

So, from a workers perspective, from the LHMU members perspective in South Australia that adds a significant bonus. To not allow those arrangements to stay in South Australia for the five year maximum period would be clearly a disadvantage for my members and a disadvantage for the members of the LHMU. We would ask you to strongly consider to give us a full five year period of transition for those arrangements that we've identified in our documents.

PN2747

SENIOR DEPUTY PRESIDENT HARRISON: Would you assist me so that I have a better understanding, for example, the position in South Australia, I know you're going to try and work on this, but what is your latest transitional schedule proposal for South Australia? Where will I find that?

PN2748

MR EVANS: It's in our document of 10 October.

PN2749

SENIOR DEPUTY PRESIDENT HARRISON: Yes.

PN2750

MR EVANS: It's S8TS1.

PN2751

SENIOR DEPUTY PRESIDENT HARRISON: Yes, I'm scrolling and scrolling, I'm trying to find it.

PN2752

MR EVANS: AHEA submission, sorry.

PN2753

SENIOR DEPUTY PRESIDENT HARRISON: Yes.

PN2754

MR EVANS: Sorry, your Honour, the AHEA submission - - -

PN2755

SENIOR DEPUTY PRESIDENT HARRISON: I think I'm in the right document, where is it? Where is it?

PN2756

MR EVANS: It's at the back of the submission.

PN2757

MR CLARKE: Your Honour, it should be - we filed a submission and a response to the exposure draft and the transitional arrangements are at the back of the response to the exposure draft, in the response award we filed.

PN2758

MR EVANS: It starts at page 9 of 49 of the documents, your Honour.

PN2759

SENIOR DEPUTY PRESIDENT HARRISON: Yes, proceed.

PN2760

MR EVANS: Thank you. Consequently it would be considered that also if we had a stand alone document so that with the award that you prescribed to us on 19 December that at the back there are schedules that says South Australian arrangements, Queensland and WA, anyone who goes in there will go straight to those areas so it would make it simple and easy to find. A lot of hoteliers in South Australia and other states, I would suggest, and I'm sure you have found this in your experience, that would know that once they've been using a document for such a period of time, a provision, they know where they are, it's easy to go straight to it. So I would ask that you consider putting transitional schedules at the back specific to each state.

PN2761

JUSTICE GIUDICE: So is the proposal in effect that the existing South Australian arrangements should simply continue for five years?

PN2762

MR EVANS: No. We have identified, your Honour, the items that we think must stay. We've allowed a number of them to flow because - - -

PN2763

JUSTICE GIUDICE: But there are a lot of them.

PN2764

MR EVANS: There are a lot but there's only five caught items in the structure that we've identified, casual loading, the overtime provision, the special rate from 7 pm to 7 am, the classification structure for the clerks for example. We have a separate Clerks Clubs, Hotels and Motels Award. That award is five levels with two increments at each level for 10. When we translate that over, sir, to the hotels, clubs structure there's only four grades. I have done a one page comparison for you which I can provide to you now which shows to you if you translate those 10 increments over to four there will be some who won't fit at this stage and clearly we need time to adjust for that to move over.

PN2765

So we would seek your assistance by providing those protections for us for that period of time. Also in that translation we have offered to you the chance of a phasing in period also to allow that to phase over in over a period of time so the cost impacts that might be there for both the employees and for employers are phased in and evened out over a period of time that don't come with one hit. My WA compatriot has indicated to us that they put two options to you, one is let it all stand for five years or the second option is a phasing in. While I'm comfortable with either I think the pragmatic reasonableness of what the intention of the Minister's Request for modernisation and particularly when you look at part 2(c) and part 2(d) of her Request that it would be reasonable and not bad for either party.

PN2766

Particularly when I look at your suggestion for the retail savings provisions clause which identified I think at paragraph 34 of your statement that it would be reasonable to do it so there is no significant impact. So if you allowed us to have that four/five years we can bring people in calmly and easily into it, particularly with those significant provisions, your Honour. I am also quite comfortable that if we were able to work with the LHMU in that period of time, in fact we want to work with the LHMU so that we can ease those arrangements in and also the ASU because of the clerks clubs, hotels structures. That would allow it to be done pragmatically and reasonably with all the parties and also work with you.

PN2767

So for example, if you're prepared to consider my principal position of providing those transition schedules that we've tabled to you in our 10 October submission into your document of 19 December, I would very happily have right to reserve with the LHMU, the ASU and the parties to work with the Bench to fine tune those provisions to be detailed specifically to apply by January 2010. Because we had the ability now to know that the transitional schedules are going to be in there with the range of items that were going to be protected, then that would bring some ease and comfort to both our members and the LHMU members and the ASU members now and then we can fine tune the detail because there is still some work to be done and I think that would help us significantly.

PN2768

I am very award of the amount of submissions you've had. I strongly seek that you consider our transition provisions because of the eight awards that really have got to come into the federal structure and they haven't been there before there are a number of issues which are identified. Your Honour, I've got the one page if you would like it just on the identifying of the transition for the clerical structure, the 10 increments over to the four grades into the hospitality structure. I also identify that as was raised by Mr Clarke then about some simplicity of the terms, the level term and the grade term we've got. The levels in the structure you've got clerical grades, if there was some way of just having simplicity in terms that would be helpful.

PN2769

Also in closing before I hand over to Mrs Minchinton, all the provisions that are in the eight awards that have been identified in our translation schedules SA, WA and Queensland in our document, all those provisions are being maintained and accords with established test cases and provisions. The awards have been upgraded by the 89 SEP MRA provisions of this Commission and flowed onto the states. They've been flowed in the state wage cases. So all those NAPSAs awards that you are considering are totally up to speed, up to date and maintained. So with respect, if there are any further questions from the Bench I'll hand over to
Mr Minchinton.

PN2770

SENIOR DEPUTY PRESIDENT ACTON: Mr Evans, some of the employers have suggested in terms of transitional provisions that terms and conditions of employment as at 31 December 2009 be preserved for existing employees and with respect to new employees the terms and conditions under the modern award apply, perhaps even with the phasing in arrangement where there's an increase or additional terms and conditions of employment for the employer. What do you say about that proposition?

PN2771

MR EVANS: Your Honour, that's a real practical problem, isn't it? In one way, yes, you bring your new ones on that what's in there but then that's not fair and equal to say the work they're doing for people who are already there and be translating over. From a pure simplistic employers' perspective I'd probably say people are all in the same boat until the end of the transition period because a lot of employers have difficulty in coping with two different things and I'm sure that some of the employees who are employed, new employees after 1 January 2010 would not be happy if they're getting something different to the person doing the same job when they're pulling a beer over the bar.

PN2772

It's not a simple answer, I agree with you. From a simplistic perspective I'd say leave them all on the same until the end of the transition so that my members know exactly where they stand with both the new employees and the translated employees. The union would know where everybody stands with them, et cetera. Unless we can work out some way that maybe the phasing in is the best way that would help both then that way that might be the simplest way. But it's a question we don't really want any more disputes at the workplace and I think that's the practical side of me keeping way, if we keep them all on the same sheet that would be the easiest way to go.

PN2773

But whichever way we go I don't think we're going to make everybody happy, are we? I think we're going to have some disputes and disagreements whichever way we go but I'd probably - bearing in mind I get involved in lot of disputes, as you do as well, it would be nice if we could just keep it as simple as we could and that was why I put it that way. But again, I'd be very prepared to work with the LHMU and the ASU on that so that we could work together to work out how best we can make sure it - we don't want too many disputes. I don't think I've really answered the question unfortunately. Thank you.

PN2774

VICE PRESIDENT LAWLER: Mr Evans, I take it the best solution from your members perspective to at least one of the key aspects of the problems you've identified would be to adjust the modern award to provide employers with an option to either have a penalty rate regime in relation to casuals or just the one all up 50 per cent loading?

PN2775

MR EVANS: We've been discussing that already, your Honour. Some of my members have looked at that and as I said, maybe that's something we should consider, that we could do the 25 on the penalties rather than the flat 50. That is an option we could consider. It's an option that has been discussed, I've been pretty to open to you. Some would say in a way that would help recruiting people for the weekend because if you've got a flat rate during the week - or say a flat rate at 25 and then go that way. But again it will bring a bit of complexity in terms of the calculations, all that sort of process.

PN2776

VICE PRESIDENT LAWLER: I must have misunderstood you then because I thought that you were saying that your members were in fact rather attached to the simplicity of the all up 50 per cent loading.

PN2777

MR EVANS: They certainly would prefer that at this stage but I would have to be honest with you to say that some have asked me the question about the 25 and the penalties during the week. But certainly my clear directive from my council is very much keep the simplistic approach of 50 all the way through.

PN2778

VICE PRESIDENT LAWLER: Thank you.

PN2779

MR EVANS: Thank you. Unless there's no further questions I'll hand over to Ms Minchinton.

PN2780

MS MINCHINTON: May it please the Commission. The Queensland Hotels Association Union of Employers or QHA as it's commonly known is a peak industrial body for the hotel and hospitality industry with over 800 members in Queensland. This represents a 70 per cent market share. QHA has been watching the award modernisation process to date and wishes to make the following submission with regards to the transitional schedule proposed in AHA's submission dated 10 October. I do have some documents which I'd like to hand up.

PN2781

These submissions relate to the transitional schedule as mentioned in the AHA's submission as it relates to Queensland the employers who will be impacted by it. In Queensland there are a number of NAPSAs that do apply in the hospitality industry as well as the current federal Hospitality Industry Accommodation Hotels Resorts and Gaming Award 1998. QHA members based in south east Queensland are actually covered by the federal award. As noted in the written submission of 10 October by the AHA, the transitional schedules for Queensland are sought given we believe there is a financial impact that the proposed Hospitality Industry General Award 2010 will have on employers.

PN2782

Two of the main NAPSAs that currently apply to our members in Queensland are the Clerical Award Hotel Resorts and Certain Other Licensed Premises Award State South East Queensland 2002 and the Hotel Resorts and Certain Other Licensed Premises State Excluding South East Queensland 2003. With regards to the first award I've mentioned, the Clerical Award, it has applied to employers in the hospitality industry for a considerable time and historically the award has applied to establishments as defined category A and category B establishments which are licensed premises as per the Queensland Liquor Legislation.

PN2783

It applies in south east Queensland to clerical and front office staff only for our members given that the federal award does not actually apply within the south east Queensland to front office and clerical employees. The reason why this NAPSA has applied for such considerable time is due to a determination many years ago that the federal award would not actually apply to clerical and front office wages and conditions in the south east Queensland area. Therefore our south east Queensland members have been referring to a state award and therefore slightly different ways of working out penalty rates for their clerical and front office staff for some time.

PN2784

With regards to the second award I mentioned, the Hotels Award and Certain Other Licensed Premises Award State, this is an award that applies outside of the south east Queensland area and again as with the first award, it's applied for a considerable time. The award defines category A and category B establishments similar to the Clerical Award and the background to why this award applies to our members is that there was a determination with regards to union coverage that the federal award would only apply within the south east Queensland area and therefore this award applies outside of south east Queensland area which is in fact north of the Bundaberg area.

PN2785

The implications we believe are the same as for our south east Queensland members which is that we have differing hourly pay rates, we have different casual and weekend loading arrangements, different ways of working out the overtime. For example, in the federal jurisdiction there's time and a half for the first three hours and double time - first two hours I should say, and double time after that. In the state system in Queensland the double time kicks in after three hours. So there are slight differences that do actually represent an increase in costs for our members.

PN2786

With regards to the document I've handed up I don't propose to go through it in its entirety. I just wanted to highlight one aspect of which is the wages where the document - what we've done is undertaken an hourly comparison in a table to detail what the wage differences will be and on the main there is an increase for employers under the proposed federal award. In terms of the other aspects of it, as I've mentioned, there are some different ways of working out overtime. Penalty rates differ, for example, on Sundays and on all public holidays and these all represent a cost for our members and for hospitality employers subject to the new proposed award.

PN2787

I will note that from the documents that we've provided some of the differences might not appear to be substantial but certainly for our members over a period of time with the number of staff it does add up to a considerable extra cost for them and for this reason we have submitted the Queensland transitional arrangements to allow our employer members the time of a five year period to get used to what the increased costs will be for them once the proposed federal award takes effect. With regards to the wage rates we have proposed a staggered structured increase over time based on a percentage of the federal award and we believe that that represents a slow but structured increase so that at the end of the five year transition period our employer members will be up to speed where the proposed Hospital Award increases are. If it pleases the Commission.

PN2788

JUSTICE GIUDICE: Thank you.

PN2789

MR CLARKE: Thank you, your Honours. Just dealing with a couple of matters that arose. I think there was an indication the schedules might be a little bit too fulsome at the moment. We'll have a look at that. Secondly, just in relation to the transitional arrangements, it's certainly our view that they should apply to all, not to some within the workforce and that's a very clear view the AHA would bring forward, that it would make it very difficult if we were to have transitional arrangements applying to new people - sorry, transitional arrangements applying to current employees and the modern award applying to new employees.

PN2790

I really think that, you know, any reflection of what's happened with bargaining over the last 10 years, when that happens it just creates problems in the workforce that can be satisfactorily dealt with by treating everyone one the same in the knowledge that a new dawn starts for everyone in five years time, so it would be our very firm proposition. Also coming out of that and this comes to some of the union comments and I think it's in the ASUs, by reading of their submission that there would just be a sort of catchall phrase that say any overs that employees need to identify and make good so as to speak and I'm summarising. But we're much more in favour of a prescriptive approach and that's why we've put a more prescriptive approach.

PN2791

We believe that the parties - we've certainly done a lot of work. We've had a lot of discussions with the LHMU to try and identify those areas, albeit we recognise there's more work to do, particularly with the LHMU. We believe we've done it comprehensively. We know there's more input to come from the LHMU and we believe that exercise will catch all situations. If that presents some concerns to the Commission we'd rather have a catchall phrase at the end of the prescription to say if anything's missing that needs to be dealt with, but we believe that that can be done as part of this exercise. I've had a chat to my - - -

PN2792

SENIOR DEPUTY PRESIDENT HARRISON: In these schedules, where would I find some ability to adjust them during the five years?

PN2793

MR CLARKE: I suppose there's a couple of different - in WA, Western Australian branch and unfortunately couldn't be here today, they've put forward one lot of schedules that are a phasing schedule and we actually sent them in a separate submission. On 10 October we lodged three submissions and it's in a completely separate submission just saying these are the alternate phasing typing arrangements for WA.

PN2794

SENIOR DEPUTY PRESIDENT HARRISON: Let me make my question clear.

PN2795

MR CLARKE: Yes.

PN2796

SENIOR DEPUTY PRESIDENT HARRISON: I'm not talking about the various ways of reflecting a transition. What I’m trying to understand is that if we were to place these transitional schedules in a modern award, where within them is there any adjustment of the amounts of money paid to the employees during those five years?

PN2797

MR CLARKE: They're within the arrangements in most cases, if I'm understanding, that in WA's case they've gone for two different approaches. I suppose that's the - so that South Australia has the phasing as it goes. It has the phasing in regards to wage type related areas, but in other areas like this 50 per cent casual loading it seeks to hold that wholeness because it's really - it's a different proposition to phase out, say a casual loading. I think there's a strong desire from the branches to hold on to their part time arrangements. And so they're the sort of things what can be phased there has been phasing arrangements put, albeit we acknowledge they need to be worked on, and what can't be phased we'd seek to hold for the five years.

PN2798

And we understand that much of this depends still on the shape of the published Hospitality Award. I've had a chat to my friend, Mr Evans. The AHA would be - one way to deal with 50 per cent casual loading we acknowledge is to have 50 per cent casual loading to distinct enterprises within the modern Hospitality Award, ie, you pay normal rates during the week, you either elected to be an organisation that paid normal rates during the week and then picked up the weekend penalties, or you elected to be an organisation or an employer that paid the 50 per cent casual loading, and that would go a long way, Mr Evans recognises, to addressing his concerns.

PN2799

So it's certainly a proposition that we put forward, albeit that like everyone in the industry our main concern really is how we can increase further employment within the employment, and I'll address that in a moment.

PN2800

SENIOR DEPUTY PRESIDENT HARRISON: I'll have one more go and I'll completely accept that it is the way I'm putting the question. That is the problem and not - - -

PN2801

MR CLARKE: I'm trying to understand, your Honour.

PN2802

SENIOR DEPUTY PRESIDENT HARRISON: Forget about transitional in terms of phasing. But in your transitional provisions where you're asking five years for an existing NAPSA, certainly for the NAPSA provisions to remain, and take a transitional provision that they can remain right up to midnight, 31 December 2013. And let's say you have a figure in here, a current NAPSA figure of $10. Is that going to be adjusted at all from - - -

PN2803

MR CLARKE: We recognise those figures would be adjusted.

PN2804

SENIOR DEPUTY PRESIDENT HARRISON: Where do I find that in the transitional provisions?

PN2805

MR CLARKE: They're the sort of - I mean, those figures that would ordinarily be adjusted we recognise, and that's something - - -

PN2806

SENIOR DEPUTY PRESIDENT HARRISON: Where is it in here that you recognise that they will be adjusted?

PN2807

MR CLARKE: So it's a comment that I take on notice as we continue our discussions to ensure that that is recognised. I'm not saying it is recognised, it may have been. As an organisation we're not here trying to hold back people's entitlements over the next four years. We just ask that they transmit in a fair and proper fashion over the four years, and we'll take that comment on board as well as we look at the transitional arrangements over the next few weeks.

PN2808

Just with regards to what we call the balancing off approach with regards to how this award is constructed, we believe at the moment that the award, when we talk about a - - -

PN2809

JUSTICE GIUDICE: Mr Clarke, I'm bound to say this to you. We've said it to a number of other people. This consultation is not for the purpose of rehearsing matters that have been or could have been put in the written material. It's for the purpose of allowing you to deal with issues which have arisen from other parties' written material and submissions, so we don't want to hear you putting things which we can quite easily read in your material. A reason for that is we have a lot of parties who wish to be heard and unless we impose some discipline this process will be endless.

PN2810

MR CLARKE: I understand that, your Honour. I think I'll just deal with it in the context of the Australian Government's submission?

PN2811

JUSTICE GIUDICE: Yes.

PN2812

MR CLARKE: Because that's something that we couldn't do, because I think it does add very important clarification to this point. And I refer particularly to paragraph 19 of the Australian Government's submission about the Government stresses the importance of creating modern awards which balances the overall impact on employees and employers. In particular it is important the Commission take into account the overall costs of benefits that may accrue to employers and employees through each modern award.

PN2813

Now, I understand that those submissions were made with regards to the Government's concern with the redundancy. But I think the principle, or we say the principle is important and it does, we say, give some further guidance with regards to paragraph 2 of the Request.

PN2814

JUSTICE GIUDICE: How does the Government's submission give us guidance?

PN2815

MR CLARKE: How does the Government's submission give you guidance? In our view the Government wrote the Request, in our view the Government has provided a submission on the Request that is a view that we've adopted and it's a view that we've adopted throughout the consultations, that this needs to be a balanced approach to the way we address costs because unless it is a balanced approach businesses will be affected. We're not seeking to affect anyone through the exercise, but we need to come out we say with that balanced approach. So it's not a new position from the AHA, and we haven't sort of put forward propositions that are stripping Commissions away in our view, but it does give further - it further enunciates the view that we've held and we've held throughout.

PN2816

I won't deal with it in much detail but when we look at that balancing off approach we are extremely concerned about the area of shift workers. But we have dealt with that. And I suppose we're concerned with it in the context it's not a pre-existing condition in the way it is, so it is something that is going to increase costs within the industry, and hopefully this industry will move more towards permanent employment in the years ahead. The extra concern we raise is that it does create another bar towards permanency of employment.

PN2817

SENIOR DEPUTY PRESIDENT ACTON: What's the level of turnover in the industry, Mr Clarke?

PN2818

MR CLARKE: The level of turnover within the industry is significant. I mean, you know, certainly within the first year I think. I mean, look, we've had discussions with this on other aspects with the LHMU. There's people who choose the industry for a career and want to work through the industry, and some who choose the industry as a career and then leave it. There's a significant amount like in other areas within the industry that choose the industry while they're studying or doing other courses, and we recognise that, but we still that there's an opportunity for more.

PN2819

I'm not sure of the context of the question, but we certainly see the people that are even coming through the industry on a sort of study type basis, that those sort of people would prefer to be employed in a part time capacity if it was more readily available within the award model. And it's certainly our position - I mean, it's certainly the area of almost most concern for the AHA that the part time provisions that are currently in the federal Hospitality Award appear in the exposure draft of the modern Hospitality Award.

PN2820

It's why we've sought guidance, we've relied on the mining and rail part time provisions, as seen as something that's appropriate for this award. I mean, we made the comment in our submission, and I can further go into it, but look, the LHMU may not agree with the solution for us on this, but everyone agrees that there's too much casualisation in our industry, that everyone agrees that there should be better training opportunities and better career pathing. That's just an agreed position within the industry.

PN2821

We don't agree on how to fix that problem, but certainly from an employer's perspective - and I don't think the AHA is alone from my read of submissions in the services sector generally - that something that will go a long way to be able to provide more opportunity for training and career pathing and career development in the industry is a less rigid regular part time employment structure. That's albeit recognising that there needs to be a regular part timing structure. We think the Full Bench has achieved that in the way it's approached the Mining Award, or the exposure draft of the Mining Award, and we encourage you strongly to pick it up in this award.

PN2822

It's sort of like we've got a sick patient, and everyone knows the patient is sick but we keep feeding it the same medication in our view. And that's not to say that the medication in itself will fix the problem, but in order to assist with fixing it, and it's not the only cure and we don't stand here today saying it's the only cure, but we say it will be of major assistance to allow this industry in its ability and in all the work that the associations recognise in starting to fix the problem from an award perspective.

PN2823

Just touching on some matters coming out of the LHMU's submissions. We haven't touched on the maintenance or repair work classification so we've fallen away from that. We actually support the draft clause provided by the LHMU at the start of the day. So that might assist the Full Bench. We agree with the LHMU that the default superannuation ought to mention In Trust Super rather than Host Plus Queensland, and that's in clause 27.4 of the exposure draft. We don't agree that there needs to be other default super funds within the award.

PN2824

The AHA does agree with the LHMU that the employer must make super contributions for the employee who earns $350 or more in a calendar month, but that's a pre-existing award condition and we don't oppose its inclusion. We are very opposed to the proposed wording suggested by the LHMU regarding the payment structure for annual leave for New South Wales hotels. And I'm referring to their original submission, paragraph 11, and it's numbered clause 34.4. We have had some discussions with the LHMU on this, but just to make our position as clear as it can be on this, that any reading of that proposed clause at paragraph 11 of the LHMU's submission would make any person think that any hotel worker in New South Wales was entitled to annual leave based on their penalty rates.

PN2825

There's a very small percentage of people who would be currently entitled to that clause. We say it's a state based differential, we say it might be appropriate for the transitional arrangements. We wouldn't oppose its inclusion in a different form in transitional arrangement, but the last thing we'd like to see is some sort of thinking that any hotel worker in New South Wales would get a loaded rate on annual leave payments. We certainly oppose the LHMUs call for a clause on leave for consultation meetings to be included in the modern award.

PN2826

SENIOR DEPUTY PRESIDENT WATSON: You don't adopt the Government's position in respect to that, Mr Clarke?

PN2827

MR CLARKE: No. We can't always agree with them, your Honour. Just with regards to - I'm skipping over the LHMU's supplementary submission, I'm going to their further supplementary submission lodged earlier this week which does have some - it does have a suggestion in there effectively the level of training classifications. I don't want to say a great deal on it this morning because in a lot of ways I'm unable to because of the timing with which the suggestion has come forward.

PN2828

I would say that the AHA properly suggested in the exposure draft a new definition for appropriate level of training recognising that the current wording is somewhat defunct. That's now recognised by the LHMU. We say that these things could have been discussed much earlier and probably should have been recognised much earlier, that the appropriate level of training definition needs to change. We take the Bench to the appropriate level of training definition we put in our original suggestions to the Full Bench back in August about an appropriate level of training that doesn't change existing entitlements and recognises the new training structure as more appropriate in a modern award.

PN2829

We are certainly not opposed to having discussions with the LHMU on a range of issues with regards to classifications and training. It should be known that we do have severe concerns with regards to the current training models I think. Information suggests that an audit of training providers recently showed that 95 per cent of them weren't meeting the training packages that they were meant to be. So that would have grave implications if training was then hooked to qualifications where, firstly, there needs to be done significant work in the area of providers.

PN2830

The Asian Women at Work, we just want to take you quickly to their submission. We actually agree with their comments at paragraph 19, that flexibility clauses alongside existing facilitative provisions in awards is confusing and, separately, having a different set of rules for a range of different processes and systems for negotiating changes in individual arrangements is not helpful. We agree with that. We don't agree with their collective based solution. We do say - and this goes to make up time as appears at 28.8 of the exposure draft. We do say that reliance should go to the award flexibility clause, it should be given the oxygen it needs rather than having these sort of provisions scattered throughout the award.

PN2831

The AHA supports the modernisation of awards and, as stated in August, our August consultation, our members have really looked on this process with real interest in the hope the process delivers a more user friendly award containing a fair and appropriate minimum safety net. Our members do see the process as an opportunity to assist with the development of productivity in the industry while balancing employees' work and family responsibilities.

PN2832

We say for the reasons set out in our submissions and our proposed award this can happen in a way that balances the overall impact on employers and employees. We say this is an essential component when the last three years can show what happens when one side takes from the other, and we want to make sure - that's why we say and that's why I've gone to the Government's submission - that the balanced approach is very important considering all the movements that are being proposed at the moment coming into the industry.

PN2833

And my friend, Mr Evans touched on it briefly, that South Australia and WA, the current award does not apply in those states at all, and those people coming in on any reading face significant cost increases, as we already do face some cost increases as a result of the shift workers annual leave loadings, and those things need to be balanced out we say in some way, not necessarily in a financial way, but in some way that will assist this industry move forward using a better model than it has been able to in the past. If there's no further questions?

PN2834

SENIOR DEPUTY PRESIDENT WATSON: Mr Clarke, it's not so much a question. You mentioned the 28 October supplementary submission of LHMU. If you did propose having further discussions about the training/classification with the union, for my part it would be best if that were done quickly, and anything additional you wanted to say was put to the Full Bench as quickly as possible.

PN2835

MR CLARKE: It's not something that we can see is part of this exercise for the very reason that we'd see significant change to the way the classification structure is modelled in order to fit training properly in with the classification structure. I think that that needs to be clear. And in the past we've looked at different models of classification structures and we're more than open to looking at them further, and it's not something that we could - well, it's something that we could achieve in the next month, but I don't think my friends at the LHMU will be inclined to agree to it.

PN2836

I mean, it is our belief that in the future that people do need to be hired within a business and do have the training across the business, but it's not something we see as being able to be addressed in the next four weeks.

PN2837

SENIOR DEPUTY PRESIDENT WATSON: Well, I'm grateful for that clarification, thank you.

PN2838

JUSTICE GIUDICE: Yes, Mr Swancott? I'm sorry, yes, Mr Maxwell?

PN2839

MR MAXWELL: Your Honour, our only concern in regard to this award was whether or not the maintenance trades were to be included. We've dealt with the matter in our submission.

PN2840

JUSTICE GIUDICE: Yes, we understand your position fairly clearly I think, Mr Maxwell.

PN2841

MR MAXWELL: Fairly standard, your Honour. Your Honour, we would support the amended application clause as proposed by Mr Swancott, but if that isn't adopted and maintenance trades are included then we provided the relevant details that would have to be included in our written submission, and we would rely on paragraph 70 of the Commonwealth's submission. If the Commission pleases.

PN2842

JUSTICE GIUDICE: Yes, thanks Mr Maxwell. Mr Harding?

PN2843

MR HARDING: Sorry your Honour. I'm aware that there's a gentleman in Melbourne. I'm not sure whether he wanted to speak first.

PN2844

JUSTICE GIUDICE: It may be, yes. Mr Campbell isn't it? Mr Cameron?

PN2845

MR CAMERON: Yes, thank you your Honours. In representing the Recruitment and Consulting Services Association as outlined yesterday we represent a large number of what we call on-hired employees. As I mentioned and maybe for the virtue of educating those who are in Sydney today our interest extends to my client employees who of course in many circumstances are employed by employment agencies that cross many industries. We haven't made a written submission in relation to this particular exposure draft mainly because of our, one, limited resources but also because our industry is every industry.

PN2846

However with fear of upsetting the applecart, but I suspect there are a few apples on the road already, I hope to be able to provide I guess guidance as to how this particular exposure draft may well be read and interpreted by those who are employing on-hired employees who from day to day may well be employed on one assignment in the hospitality industry but then may well be employed in other industries on separate assignments on other days.

PN2847

I simply go to a few points and I won't take up too much time of the Full Bench. However I do state again that in relation to application clauses across all awards and specifically this one it would be helpful to us to have it quite clear for those lay persons indeed who might be reading an award such as this for the first time as to whether the term "engaged in" actually does extend to those employers of on-hired employees who are providing services to the hospitality industry. Whilst I accept that it's highly likely that the term "engaged in the industry" does cover on-hired employees it might for the purposes of clarity be worthwhile clearing that up as to on-hired employees within this exposure draft.

PN2848

The other thing I add is in relation to clause 12.2 of the exposure draft where there is a reference to the payment of wages being done or the default position being made at the end of the engagement. This similar to other awards I guess is sometimes not always helpful for those parties who may well be new to this particular award and we would propose that a default position - and it may well be that there needs to be a specific provision for on-hired or indeed as we generally call them temporary employees and it provides that payment can be made at the end of the week or within a three day period of the end of the week, because of course with many on-hired employees against casual it's always difficult to determine what is the end of the engagement period.

PN2849

In relation to the conversion clause similar to other awards we indeed oppose the introduction of a conversion clause for the reasons as to administrative costs and the fact that not many on-hired casual employees take up the opportunity to become a permanent employee with an employment agency. We also state that there is I guess superannuation funds. If we go to the default provision 27.4 that whilst we respect there are some superannuation funds that are quite particular to the hospitality sector there is one fund principally that is utilised by on-hired employees called RecruitmentSuper that provides a great deal of facilitation and portability for those employees that may work part of their time in the hospitality sector and other parts in other sectors. So we would ask that I guess those default provisions be removed for at least RecruitmentSuper which is a generic I guess across industry fund be recognised for that purpose.

PN2850

JUSTICE GIUDICE: Why wouldn't that be covered by 27.4(c)?

PN2851

MR CAMERON: It could be but it would only apply to those employees as I understand it your Honour that would be employed prior to a specific date as opposed to those who would be employed after that date.

PN2852

JUSTICE GIUDICE: No. It refers to the employer contributing to the fund before a certain date.

PN2853

MR CAMERON: Yes. Of course there would be a number of entrants I guess your Honour to the industry who may well choose to utilise the portability of RecruitmentSuper Fund who may well have not been in existence prior to that date and now would be employing people. There is a relatively low barrier to entry within the on-hired employment services industry and therefore they may well want to contribute to that one centralised fund and in many cases for employees working across multiple industries there's a great advantage in them not having to necessarily roll over their funds at the end of each engagement depending on the industry within which they're working. If it please the Commission.

PN2854

Finally I go to the point which we made in our general submissions and it's probably well highlighted by the casual employment provisions here in the determination of penalty rates for the performance of work on ordinary hours and indeed extraordinary hours. I simply want to raise, and I'm not sure I always have the answer, but this is a very good example in the draft exposure award whereby the amendment of calculating rates of pay for casuals for working extraordinary hours is quite different to many other awards. Indeed the percentages are based on a base rate where in many other awards of course we talk about time and a half and double time being applied to the going rate of pay and were not necessarily always aware of whether that rate of pay is inclusive of the casual loading or exclusive of it.

PN2855

I wonder however in simply trying to provide a solution here your Honour that, again without wanting to upset the applecart with many of our members, again remembering that some 4 per cent of Australia's employed workforce are indeed on-hired employees - I wonder whether there's an opportunity to actually provide a schedule within the award which actually calculates out the rates of pay for both ordinary and extraordinary hours of work. Many of our members have great difficulty from award to award actually determining what is the correct calculation of casual rates, as I say both ordinary and extraordinary, and in many cases it's quite even difficult for us representing the RCSA to actually provide a consistent view.

PN2856

So I simply put to the Full Bench that there may be a good opportunity here to actually provide the actual - the dollar rates. This is a system that is used within the Clerical and Administrative Employees Temporary Services Award in New South Wales, it's a NAPSA, and because of some of the difficulties when it comes to calculating out casual penalties and the like it's far better that those actual rates are calculated out and it means there's got to be a far higher level of compliance. I simply make that short submission and have gone over some ground that we've previously made submissions on your Honours but I thought it important to raise it for what is a relatively unique aspect of not only the hospitality industry but of all industries. If it pleases the Commission.

PN2857

JUSTICE GIUDICE: Yes, thanks, Mr Cameron. We'll adjourn now until 1.45 and this afternoon we'll sit from 1.45 to 4.15.

<LUNCHEON ADJOURNMENT [12.58 PM]
<RESUMED [1.46PM]

PN2858

JUSTICE GIUDICE: Yes, Mr Harvey.

PN2859

MR HARVEY: Your Honour, I'm next for the jump. Your Honour, I promise to be brief, in fact, I only want to talk for five minutes at the maximum, your Honour. One of the reasons for that, your Honour, is that in the written submissions that have been filed with regard to this industry sector by the other parties is there's been no substantive submissions that I've been able to identify that specifically deal with any particular issues with regard to clerical employment, other, of course, than those in the ASU's submissions, and there have been some references today, this morning, regarding clerical NAPSAs in Queensland, South Australia and Western Australia and our proposals with regard to transition or translation arrangements, with regard to that. So, there's nothing substantial that I need to respond to in the written submissions filed on 10 October.

PN2860

In the ASU's submission, which I don't intend to rehash, your Honour, but our submission deals principally with the issue of again the clerical classification structure and I won't repeat that but we do continue to rely on those submissions and press them strongly. Yesterday afternoon, I think it was His Honour Vice President Lawler, asked me a question in the context of the discussion we were having about the appropriate balance between occupational and industry awards and I think his Honour said to me or asked me, posed me a question, "Isn't it what's in the award that matters, you know, Mr Harvey?" and I hope I haven't paraphrased his Honour incorrectly, and I gave a rather longwinded answer which again I'm not going to repeat, but certainly when it comes to the looking at the content of industry awards from our point of view where clerical employment is to be included we definitely say that the answer to his Honour's question on that point is yes, you know, what's in the industry award as far as clerical employees is very important and that's why we are more than a trifle concerned, without bordering on the depressed end of that scale with regard to the position with regard to the exposure draft of this award.

PN2861

It's been referred to already today but the Commonwealth Government's submission at paragraph 70 includes this remark or this submission that, "Where the Commission includes the same occupation in more than one industry award it is desirable, so far as practicable, the terms and conditions for that occupation are consistent across the relevant industry awards, " and we certainly support that submission with regard to the clerical occupation. That submission is not substantially really different to the observations made by this Full Bench itself in the statement issued on 12 September when they drew the attention to the parties of what was in the clerical award by way, particularly of a structure but other terms and conditions as well, and said that the parties would be assisted by having regard to what's in the Private Sector Clerical Award but unfortunately, in our respectful submission, your Honours and Commissioner, this is not so far what has occurred in this particular industry sector.

PN2862

His Honour Vice President Lawler also asked me yesterday when I was talking about the impact on the value of women's work if we lost the occupational award as an award of significance, significant application, he asked me, you know, what the sort of implications for that would be or why we thought that, you know, that was something that necessarily flowed and I was reflecting on that question overnight and things always come to you afterwards that you thought were good to say at the time, but I think it's appropriate in the context of this award as well but that hospitality is already emerging as an example of the problem that we have with sort of trying to flow what we say is an appropriate safety net classification structure and rates of pay for clerical admin employees established in an occupational award into a particular industry award. And I was reflecting, because somebody made the remark yesterday afternoon, that the case in New South Wales which inserted a clerical classification structure took three years. I think the process overall of applying a decision of this Commission in the early '90s to just about eight awards in seven different jurisdictions took actually nearly, you know, ten years, but we sort of got it right.

PN2863

We ended up with a reasonably similar structure around the place with reasonably similar rates of pay and key classifications and things like that. And then there are circumstances in which we find that we have to do it again now in the context of award modernisation, hospitality is one of those, and that's one of the other reasons why we think we don't want to do this 106 times, depending on how many industries we think at the end of the day that there will be in terms of modern awards. So that's also a partly additional answer to the question I gave Vice President Lawler yesterday but as applied in this industry. So we press our submissions strongly but that's all I will say about that today, your Honours and Commissioner.

PN2864

We noticed some submissions this morning with regard to the preservation and transition of various terms and conditions in state NAPSAs and that's one area that affects the ASU and its members greatly because of the existence of those NAPSAs in Queensland, South Australia and Western Australia. We noted with some sympathy the submission from the employers, Mr Evans, I think it was in regard to the Clerks' (Hotels and Motels) Award in South Australia and we understand the reasons for the submission, at least with regard to the, you know, the clerical classification structure that applies in that award, because we would say that it is a superior one to the one that's in the hospitality exposure draft award at the moment and we know the work that went on in South Australia to insert that - to develop that structure, firstly, and put it in the award, so we understand why they want to hang onto it for the five years. We can't, at this present time, support that submission, although, as I say, we understand it. We would actually just prefer that the Full Bench follow the approach that this Full Bench has already followed with regard to, say, the Retail Industry Award, which will be dealt with again next week, that is, to insert the five level structure that was in the Private Sector Clerical - is in the Private Sector Clerical Award into this award, so we would press that again. We have some qualifications that I took the Commission to yesterday with regard to the rates of pay at various levels of that structure but, in principle, we think that the statement that's in the Commonwealth's submission at paragraph 70 and the sentiment that was in the Commission's own statement of 12 September should be followed.

PN2865

With regard to transition, your Honours and Commissioner, we just say that the work that's been done on transition at the moment by the employers, I think it's been noted this morning, it's only been to preserve, you know, or transition from lower rates to higher rates. It needs to be looked at the other way as well. The ASU supports both the ACTU and the LHMU positions with regard to transition and translation. That's what we proposed ourselves in the Private Sector Clerical Award but we think we need to know what the final terms and conditions and particularly the final classification structure is before that can be done finally, but we have proposed some principles with that which I think are completely in line with the ACTU and LHMU position on that and we support that.

PN2866

We support the brief submission this morning made by AWU in Queensland with regard to local government. The exclusion for local government is appropriate and there may well be a little issue, as they noted, with regard to the Brisbane City Council because it is a separate set up under separate state legislation in Queensland. And one final remark, your Honours and Commissioner,
Mr McDonald this morning, I think, when he was talking about the accommodation part of his brief said that it wasn't normally a shift industry, it wasn't regarded as a shift industry but as, I think we've pointed out before and we've mentioned it again in our submissions, clerical workers in Queensland and South Australia at the very least are certainly considered to be shift workers and they have shift provisions in the clerical NAPSAs there.

PN2867

That's all I wish to put to the Full Bench this afternoon, your Honours, unless there's any questions.

PN2868

JUSTICE GIUDICE: Thank you, Mr Harvey.

PN2869

MR HARVEY: Thank you, your Honour.

PN2870

JUSTICE GIUDICE: Yes, Mr Terzic.

PN2871

MR TERZIC: Your Honour, I would rise to support the LHMUs proposed exclusion of maintenance in clause 4.6 and also just to have it recorded we stand by our assertion that maintenance has never been catered for in its pre-existing Catering and Hospitality Award. If the Commission pleases.

PN2872

MR HARVEY: Your Honour, I have a few matters to go to.

PN2873

JUSTICE GIUDICE: Yes.

PN2874

MR HARVEY: Firstly, like Mr Terzic, if I could express support for the amendment proposed by the LHMU with respect to the exclusion of maintenance trades. That's something that the CEPU supports, otherwise the CEPUs concerns with respect to the exposure draft essentially relate to the classifications of casino equipment technicians and they're provided for in clause 19.3. The casino equipment technicians are grades 2 and 3 and employees who maintain electronic gaming equipment, grade 2 includes an electrical trades person and grade 3 is a higher grade.

PN2875

The CEPU has members who are employed directly by Adelaide Casino who would be bound by this award if it were to be made in terms of the exposure draft. Those gaming technicians are currently covered by the South Australian Metal Industry NAPSA which applies there, so in order to allow the CEPU to continue to effectively represent members such as those we have at Adelaide Casino, if casino equipment technicians are to be included in the final award, we would seek to be covered or bound, whichever the expression ultimately is, by the award.

PN2876

Aside from that, the CEPU has some concerns about the existing apprenticeship clauses, in particular clause 19.4 of the exposure draft, doesn't provide for apprentices for casino equipment technicians and we would submit that if casino equipment technicians are to be included in the award that the award should be amended to provide for such apprentices. Your Honours, we - - -

PN2877

JUSTICE GIUDICE: You've dealt with this in your submission, haven't you?

PN2878

MR HARVEY: Only very briefly, your Honour, and that was not specifically in the context of casino equipment technicians though. I don't think - I apologise, I came late to this particular industry with respect to the CEPU.

PN2879

JUSTICE GIUDICE: Well, the idea is the submission covers the issues and then any supplementations to be dealt with in the oral submission.

PN2880

MR HARVEY: Sorry, your Honour, I had not much further to on. I'm aware
that - - -

PN2881

JUSTICE GIUDICE: That's what everybody says. Go ahead.

PN2882

MR HARVEY: Your Honour, we would also seek that clause 13 be amended to include at the least payment for apprentices who are undertaking training as part of their training package. In relation to allowances and casino equipment technicians we note that the current tool allowance at clause 20.1(b) of the draft applies only to cooks. Again, if casino equipment technicians are to be included, casino equipment technicians supply and use tools in their employment, in those circumstances we would say that it would be appropriate that a tool allowance is also provided there.

PN2883

Your Honour, in this respect we generally rely on the paragraph 70 of the Commonwealth's submissions which have been referred to by a number of other parties, and we submit that the casino equipment technicians are a classification that has comparable classifications in other awards including the proposed Manufacturing Award, and on that basis we would seek a classification structure and allowances which are consistent with that. If it pleases.

PN2884

MR KENTISH: Your Honours and Commissioner, if I could just answer very briefly in relation to a question that was raised about the Victorian Restaurant Award. I sought instructions over the break. Apparently before the award was common rule in 2005 there was a very high incidence of AWAs recorded in the Victorian restaurant industry. Apparently there were 9597 AWAs concluded. So those employers were not then affected by the award when it was common rule.

PN2885

JUSTICE GIUDICE: Well, what was the standard for the no disadvantage test for the AWAs?

PN2886

MR KENTISH: I'm not sure that there was. That would have been pre the fairness test, your Honour.

PN2887

JUSTICE GIUDICE: Yes, but AWAs always had a requirement for a no disadvantage test prior to that didn't they?

PN2888

MR KENTISH: Yes, your Honour. And, your Honour, if I could also indicate that there's also a very high churn in the industry which was dealt with in the evidence of Mr Hart. There's an exit rate of 17.4 per cent and 19.2 per cent of new entrants. Given over the last two years the award in Victoria hasn't extended to new businesses it would probably be the case that the majority of businesses in Victoria, as we understand it, would not be subject to or applying that award.

PN2889

SENIOR DEPUTY PRESIDENT WATSON: I'm sorry, I don't understand.

PN2890

MR KENTISH: As I understand the transitional provisions under the legislation, your Honour, if a new business is established post March 2006 then the award would extend to that. Of course the pay scales would extend to those. So that given there's a changeover in the industry around about 20 per cent a year - - -

PN2891

SENIOR DEPUTY PRESIDENT WATSON: Sorry, the award wouldn't extend to them?

PN2892

MR KENTISH: Yes, your Honour.

PN2893

SENIOR DEPUTY PRESIDENT WATSON: Well, the Fair Pay Commission standard would and the common rule award would in respect to other matters would it not?

PN2894

MR KENTISH: I don't understand the common rule award to extend to new businesses past March 2006, your Honour, other than transmission of business type provisions, but other than that it would not as I understand the transitional provisions.

PN2895

SENIOR DEPUTY PRESIDENT WATSON: Very well.

PN2896

JUSTICE GIUDICE: The 20 per cent turnover is roughly, it is a bit misleading anyway. It doesn't mean that the whole industry turns over in five years because you get churn in the same section.

PN2897

MR KENTISH: Your Honour's obviously correct, thank you.

PN2898

JUSTICE GIUDICE: Mr Swancott, just as you're about to start I think I'll mark a couple of the documents that were handed up this morning.

EXHIBIT #LHMU1 REVISED CLAUSE 4.5
EXHIBIT #AHASA1 DOCUMENT RE TRANSITIONAL ISSUES IN SOUTH AUSTRALIA
EXHIBIT #AHAQ1 NOTES RE TRANSITIONAL PROVISIONS FOR QUEENSLAND

PN2899

MR SWANCOTT: Thank you, your Honour. I should be very brief. The LHMU has put detailed submissions in relation to these consultations. We filed them on 10 October, 20 October, and further submissions on 28 October. We rely on those submissions and I don't intend to go through them or to summarise them or, in fact, unless asked to canvass the material in it. What I propose to do today is respond only to issues that have been raised today that haven't been dealt with by the LHMU in its written submissions.

PN2900

Now, the first thing that we want to do referred to in relation to the employers' submissions generally about the nature of the industry, the broadly defined hospitality industry we're dealing with, is that in our submissions, in our written submissions we've tried to define the industry and observe that there are effectively three classes if you like of employees in the industry. There are those who are transient and, as you heard this morning from, for example, South Australian Hotels Association, young students, people who are in the industry to earn money while they pursue either training or their preparation for other activities in life.

PN2901

Then there's a middle group, which is a group that has chosen hospitality or one of its branches, cooking, waiting, being a sommelier, whatever, as their chosen career and who are training, gaining qualifications with the intention of staying in the industry. And then there's the third group, a group that has been involved in the industry for many years that doesn't have formal pieces of paper, formal qualifications, but who have the skills and the experience and who have the intention to remain in the industry exercising those skills and experience.

PN2902

The classification structure that we have proposed as amended in our most recent submissions of 28 October comprehends and makes provision for all three of those classes of employees. It provides a safety net for those who come in and out of the industry either on the way through to another job or for the purposes of supplementing income. It provides a career path for those who undertake formal training, acquire the qualifications that go with that training, and there's material that's been put up by the LHMU by other parties on the restructuring of the training package under the heading of SIT07, took place in the period 2006-2007.

PN2903

Now, we have sought in our proposed translation schedule to comprehend both the present and the future impact of that new training regime and reflected in the award classification structure. And the third element that we've sought to make provision for is assessment of, if you like, recognition of existing skills without formal qualifications in the event that there is a dispute about the proper classification of a person in that category with their employer. And the process we see is that on 1 January 2010 there will be a new classification structure flexible and capable of applying to any employee in any of the branches of the hospitality industry depending on which of those three segments they come from.

PN2904

The process we recommend in the schedule is for employees prior to 1 January 2010 to negotiate with their employers on the appropriate place for them in the new classification structure. Now, for many employees that will be the place they're on now because that structure, as the Full Bench knows, is widespread across federal hospitality industries and is reflected in many NAPSAs as well in the hospitality industry broadly defined.

PN2905

But for other employees there will be a discussion needed as to what is their appropriate place in the new classification structure and, flowing directly from that conversation, what is the appropriate minimum rate of pay that applies to those employees? And it's on that basis that the general translation schedule has been put forward by the LHMU.

PN2906

Now, your Honour, there are of course a number of transitional arrangements that are also required as a result of the legislation and the Request. Without taking you to it, paragraph 12 of the Request contemplates the transitional arrangements. The LHMU has taken an approach which says that in relation to the reclassification exercise that I've referred to that there should be, we accept, provision for any cost impact of the translation to be phased in, to be cushioned. Then there's another class of transition provisions, and they are the provisions that are state based differentials or special arrangements that might exist limited to the boundaries of a state.

PN2907

Within that class of transition provisions different approaches have been taken to date. For example, in respect of a number of those types of conditions or allowances the LHMU has sought to preserve them for the maximum five year period with the intention that in that period they will be dealt with by the parties that had direct relationship with them or, to borrow a phrase from another context, if they reached the drop dead date without any action having been taken then they will in fact disappear. The encouragement, in other words, of that approach is towards enterprise bargaining and resolving issues at the enterprise level.

PN2908

And in that context can the LHMU suggest to the Bench that a lot of the submissions that have been put by my friend, Mr McDonald, have been based on the needs of particular enterprises. The submissions deal with the circumstances of particular enterprises and, in our view, the Request and the legislation encourages a fair minimum safety net which then allows the enterprise to sort out their situation according to their needs.

PN2909

VICE PRESIDENT LAWLER: But doesn't Mr McDonald point to those enterprises as representative of the impact and through the particular statement of Mr Hart says, look, here are a series of impacts that have been calculated for particular establishments, and if this modern award is implemented as per the exposure draft then most of these businesses are going to go out of business because of increased costs.

PN2910

MR SWANCOTT: Well, that would be the case, your Honour, if they were implemented on one date in total perhaps for some of the enterprises in the hospitality industry. But there are two things about that. That's not what's being proposed necessarily. We - because I was about to come to the second approach that's been taken to transition matters, and that is the step by step phase in approach that's been put forward, for example, by the AHA in South Australia. There are ways of cushioning those elements as well.

PN2911

Mr McDonald hasn't addressed any of the written material put by the LHMU on phasing in and cushioning the approach. In fact he hasn't addressed transition issues as well. Now, I don't criticise him necessarily for that because he's still fighting the good fight for the separate awards for the two sets of interests that he represents, which has clearly inhibited any action as contemplated by the Commission in its statement of 12 September, which encouraged the parties to address the issues of transitional arrangements.

PN2912

Now, your Honour, the issue about whether there should be a fair minimum rates regime, a fair safety net for employees is a parliamentary decision that's been made and produced. The Commission's been given that job of ensuring that's to happen. Now, if employers who previously in the state systems are dragged into the federal system and required to meet the federal system minimum standards of fair minimum rates and penalty rate structures that have been assessed by Full Benches of this Commission to be reasonable and appropriate for the industry as broadly defined, then that's not a - a large part of that attack should be directed at the legislature, certainly not at the Commission.

PN2913

The issue about the industry having a cost impact on it from - even if a gradual cost impact on it from being brought up to federal standards also exposes the fact that in some state jurisdictions standards have been well below those that have been applicable federally. Now, the standards that the restaurant sector, or the restaurant half of the Restaurant and Caterers Association is objecting to, apply to restaurant employees in Victoria, in the Australian Capital Territory and in the Northern Territory in federal awards of this Commission. I'm sorry, I withdraw that.

PN2914

We say that what has been proposed in the LHMUs submissions is that the exposure draft be implemented in the sense of being a one industry award but with suitable safeguards to preserve employers that, if they were forced to go onto on day one in total, which is not being proposed by us, are a difficulty. Now, your Honours, I'll just refer briefly to the submissions of Mr Harvey of the ASU. We agree with those submissions and, in particular, his reference to the Commonwealth's recommendation that the Commission look to standardise
Classifications, and we've adopted his proposal that that should also apply in the clerical area and the clerks in the hospitality industry should be no worse off than clerical workers generally.

PN2915

In relation to Mr Kentish's proposals concerning the Adelaide casino, Adelaide casino employees generally are covered by an enterprise agreement but it is our understanding that the technicians to whom he referred are specifically covered by the South Australian Metal Industry Award and it was perhaps for that reason that the conditions relating to them escaped our notice in the preparation of our materials. We have no objection to the CEPUs proposals that the rights and benefits applying to those employees be preserved in the modern award. Your Honours, it's my view that I have dealt with everything in substance in - or the LHMU has in its written submissions, unless there's anything questions I propose to close.

PN2916

SENIOR DEPUTY PRESIDENT WATSON: Just on that last issue, the casino technicians, how do we deal with that where there are currently technicians in other casinos covered by the Hospitality Award who wouldn't be benefiting from those additional entitlements?

PN2917

MR SWANCOTT: Your Honour will recall that there are classes of allowances, for example.

PN2918

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN2919

MR SWANCOTT: There are those that are state based that we've put in the transition provisions and there are those that we have identified that are above the exposure draft amount which we've put into clause 20 of the allowances clause of the award. Now, to the extent that there are differences and I haven't analysed them, I'm taking Mr Kentish's word for it, that there are differences which would disadvantage employees in South Australian casinos were the exposure draft to apply to them, then our view is that they should be identified and placed in clause 20, the allowances clauses, and that, for example, is what we've done with the agreed - or the relativities that were established for catering workers working at airports and they were considered in the award simplification a couple of years ago, my memory is by Senior Deputy President Acton

PN2920

It was accepted that the relativities established and agreed as part of the structural efficiency process were appropriate for that work. We have compared those rates of pay for that work to the rates of pay in the exposure draft. We have identified the margins and expressed those as allowances in clause 20 and that's what I expect would happen with casino workers in relation to allowances and/or margins, wage margins.

PN2921

SENIOR DEPUTY PRESIDENT WATSON: Generally or just South Australia?

PN2922

MR SWANCOTT: Well, those that can be identified and those that are brought forwarded only.

PN2923

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN2924

MR SWANCOTT: I'm not going to be the one that says I've got everyone. I mean the interest of the parties affected by state awards or NAPSAs that are going to be brought into the federal system in the first in the first place I would suggest rests with them, but to the extent that we can help we will, but no liability accepted.

PN2925

SENIOR DEPUTY PRESIDENT WATSON: Yes, thank you.

PN2926

JUSTICE GIUDICE: Mr Swancott, could I ask you a question, it's just really a factual question I suspect. The penalty rate structure that was introduced by Commissioner Gay or at least revised by him and lived on as it were.

PN2927

MR SWANCOTT: Yes.

PN2928

JUSTICE GIUDICE: That provided for certain flat dollar amounts in terms of penalties.

PN2929

MR SWANCOTT: Yes, your Honour.

PN2930

JUSTICE GIUDICE: Was it intended at the time that those penalties would be - those dollar amounts would be varied and have in fact been varied?

PN2931

MR SWANCOTT: No, your Honour. Your Honour must have been not paying attention on that day during the award simplification case. But it was established in that case that they had been superseded by time. In other words, they were set at dollar amounts and they were to stay at those dollar amounts until the 25 per cent exceeded them.

PN2932

JUSTICE GIUDICE: Yes.

PN2933

MR SWANCOTT: And it had by 1997 and in which case it was removed as an obsolete reference.

PN2934

JUSTICE GIUDICE: Yes, thank you. Yes, Ms Bissett.

PN2935

MS BISSETT: Your Honour, the ACTU rises just to make a very short submission in support in particular of the material filed by the LHMU on 28 October with respect to their proposal on determining the relationship between the Australian Qualifications Framework, the hospitality industry training package and the minimum pay levels. The ACTU has for quite some time been a very strong advocate of the Australian Qualifications Framework and role that it can play within award systems but we say that the proposal that the LHMU have put forward in this particular circumstance is not particularly radical or so totally out of the box that it is actually worthwhile of consideration by the Bench in this particular matter.

PN2936

We say that the use of the training package in existence in determining the appropriate level of training as it's defined in the proposed exposure draft actually assists in aligning the qualifications and wage levels within this particular industry and actually deals effectively with the classes of employees that Mr Swancott identified earlier, in particular those employees who have chosen hospitality as a career and have actually embarked upon the training that's available in recognition of qualifications and skills and competence that's available under that particular training package. The appropriate link between the qualifications and classifications as has been proposed ensures appropriate remuneration and recognition of the skills of the employees within the industry.

PN2937

Of the training package it is worthwhile noting that it has been subject to substantial review by all of the parties in the industry over the last few years. The process of developing and amending training packages is a cooperative process and it has been endorsed by the industry, by employers and unions within the industry and in that respect it has standing and it has status we say and that in that respect in terms of the use to which the LHMU propose to put that training package we say that that is an appropriate thing to do and we endorse in that respect the LHMUs submissions on that matter. If the Commission pleases.

PN2938

JUSTICE GIUDICE: Thanks, Ms Bissett. Are there any other contributions in relation to the hospital industry exposure draft?

PN2939

MR P PEARSON: Yes, your Honour. I appear on behalf of the Restaurant and Catering Association of Victoria. I wish to just shed some light as to the application of the awards in Victoria, particularly given common rule, and shed some light on the use of - - -

PN2940

JUSTICE GIUDICE: Just a moment. Mr Pearson is it?

PN2941

MR PEARSON: Yes.

PN2942

JUSTICE GIUDICE: Can you just wait a moment?

PN2943

MR PEARSON: Not a problem.

PN2944

JUSTICE GIUDICE: Yes, what it is, Mr McDonald?

PN2945

MR MCDONALD: I'm sorry, your Honour. There has been some communication with an employer of the Australian Catering Association during the break and there was some suggestion that they may attend the Commission to add to some matters but those matters I think have already been dealt with in our submissions but unfortunately we weren't able to advise them of that. So it may be that they do not wish to continue with - - -

PN2946

JUSTICE GIUDICE: Yes. Well, Mr Pearson, it's been suggested that the reasons for your being here no longer apply.

PN2947

MR PEARSON: Okay.

PN2948

JUSTICE GIUDICE: But it's of course a matter for you.

PN2949

MR PEARSON: I humbly respect Mr McDonald's submission and I also believe I can possibly shed some additional light as to some of his comments regarding common rule application post WorkChoices implementation as well as the use of workplace agreements at a time of common rule being introduced in Victoria which I believe will go to establishing what industrial instruments have actually provided the bulk of coverage in the state of Victoria for the restaurant catering sector and the - - -

PN2950

JUSTICE GIUDICE: How long will that take you?

PN2951

MR PEARSON: I would only need five minutes of the Commission's time.

PN2952

JUSTICE GIUDICE: Yes, well, go ahead.

PN2953

MR PEARSON: Thank you. I wish to firstly address the timing of the common rule. The statistics from the Workplace Authority have indicated that prior to the implementation of common rule in Victoria and in the months following its implementation the use of Australian Workplace Agreements in Victoria increased by over 100 per cent from 6150 in the September quarter to 11,500 in the December quarter. In March 05 quarter for the use AWAs has increased to 14,700. At that time the Restaurant and Catering Association of Victoria had a strong relationship with Office of the Employment Advocate in establishing restaurant and catering templates for members to use as well as the general operators to use.

PN2954

JUSTICE GIUDICE: Can you tell me, Mr Pearson, what award the template was based on?

PN2955

MR PEARSON: The award would have been tested against the Liquor and Accommodation Industry Restaurant Victoria Award which was to be common rule.

PN2956

JUSTICE GIUDICE: Yes.

PN2957

MR PEARSON: And also the Catering Victoria Award which was to become common rule.

PN2958

JUSTICE GIUDICE: Yes.

PN2959

MR PEARSON: In the establishment of those templates the provisions actually allowed for employers to employ part time employees in a much more flexible manner than what was provided for in the award. It also provided that a quasi casual type of employment for employees engaged on a part time basis with the loading in of annual leave and personal leave and that largely was to keep the costs down because the casual loading was seen as almost unbearable for many of the employers. The introduction of the WorkChoices legislation also meant that the use of AWAs increased, particularly with regard to accessing the 20 per cent casual loading.

PN2960

This is largely because prior to the common rule a sector age minimum wage order applied which was simply a flat Monday to Friday rate which covered most businesses. Since the introduction of the WorkChoices legislation Victoria has also been one of the major users of Australian Workplace Agreements and this is what many of our members have actually used rather than, as has been suggested by the LHMU, the Restaurant or Catering Award in Victoria and I would put to the Commission that not the award but actually industrial instruments such as Australian Workplace Agreements and collective agreements have provided the bulk of coverage for employees and employers in Victoria since the introduction of common rule.

PN2961

I also wish to provide information as to the importance of our members as to the Australian Workplace Agreements and their use. Surveys that we have recently done have shown that 95 per cent of our members have used that template. We have represented over 33 per cent of operators in Victoria so there is obviously quite a significant chain of industries in Victoria. I would also put to the Commission that as Mr McDonald mentioned earlier as to the application of the common rule since the introduction of WorkChoices that we received advice from the Workplace Authority that a constitutional corporation that begins operation post 27 March 2006 is not bound by the penalty rate structures of the award but solely by the Australian Fair Pay and Conditions standard and the minimum wage allowance.

PN2962

This paints a picture, your Honour, that the restaurant industry in Victoria, although possessing a federal award, when it comes down to the operations of day to day functions large amounts of operators have not been down by that award but has actually operated under the terms of the Australian Workplace Agreement and the transitional employment agreement in recent times and increasingly so the use of employee collective agreements. That is my submission to the Commission, unless you want me to add anything or have any questions.

PN2963

JUSTICE GIUDICE: Thank you, Mr Pearson.

PN2964

MR PEARSON: Thank you.

PN2965

JUSTICE GIUDICE: If there are no other contributions in relation to that draft we'll move onto metals and we'll give you a few moments to re-arrange yourselves. I think it might be useful to quickly take some appearances so that we know how many people we've got.

PN2966

MR B TERZIC: I appear on behalf of the Australian Manufacturing Workers Union.

PN2967

MS S TAYLOR: I appear with Mr Terzic but I won't necessarily be adding to the contribution today.

PN2968

JUSTICE GIUDICE: Any other union appearances? Mr Maxwell.

PN2969

MR S MAXWELL: I appear on behalf of the CFMEU.

PN2970

MR N SPEERS: I appear on behalf of the Australian Licensed Aircraft Engineers Association.

PN2971

MR A KENTISH: I appear for the CEPU.

PN2972

MR M MEAD: I appear on behalf of the Australian Industry Group and with me is MS S EDWARDS.

PN2973

MS J LEE: I appear for the Australian Business Industrial and I have with me MS C GOULDING:

PN2974

MR J ARTIS: I appear on behalf of the Association of Professional Engineers, Scientists and Managers Australia.

PN2975

MR C CAMERON: I appear for Recruitment and Consulting Services Association.

PN2976

MR M EASTON: And I'm still here, your Honour.

PN2977

JUSTICE GIUDICE: Yes, Mr Easton.

PN2978

MS LIU: I am representing Asian Women At Work.

PN2979

JUSTICE GIUDICE: Thank you. Yes, well, Mr Terzic, perhaps you might start. Has there been any discussion about the order?

PN2980

MR TERZIC: Yes, there has been agreement as to who will go first and I suspect it might be extend the courtesy that I have been granted and allow anyone that's got a very brief submission who wants to go elsewhere to make it ahead of the majority submissions but after that the union will go ahead of the AIG.

PN2981

JUSTICE GIUDICE: Yes, very well.

PN2982

MS LIU: If the Commission pleases - - -

PN2983

JUSTICE GIUDICE: How long will your submission take?

PN2984

MS LIU: Sorry?

PN2985

JUSTICE GIUDICE: How long will your submission take?

PN2986

MS LIU: It's about 10 minutes.

PN2987

JUSTICE GIUDICE: 10 minutes, very well.

PN2988

MS LIU: My name is Ms Liu and I am here representing Asian Women At Work. I'm a community worker working with Chinese women who work in a range of industries including metals and associated industries. Asian Women at Work supports the submissions of the AMWU and would like to express the concerns in relation to the many migrant women that work in these industries. Asian Women At Work has contact with many Asian women working in the metal industry and the associated industries through both our members and through women who call us for assistance when they have a problem. The businesses these women are working are both small and large businesses.

PN2989

Many of the issues you have heard Asian Women At Work is what in our submissions regarding the TCF industries are also repeated in the industries we are addressing today. While not as widespread as in the TCF industries we have contact with come migrant women, night workers who are only paid $10 an hour who are not paid for overtime or working in places without proper heating or cooling and who receive not sick pay or holiday pay and no casual loading.

PN2990

In award compliant workplaces the single biggest issue is bullying and harassment for supervisors and employers. It is very common and our non-English speaking members find this very stressful as they are easy targets. They ensure how to speak for themselves in English. They are not competent to defend themselves in English. They do not believe they can speak up for themselves to someone in
authority because of their own culture background. They often don't fully understand what is going on. Underlying all this is also a fear that they might lose their job, so they had better stay silent and take the abuse. Many of our members have experienced abusive supervisors who randomly pick on them when the supervisor is having a bad day. Everyone is watching to see the mood of the supervisor to know what the factory atmosphere is likely to be today.

PN2991

Everyone is on edge all the time because of the lack of predictability. Some women suffer greatly from stress because of the bullying environment. Some have difficulty sleeping at night because of the bullying they have experienced. In some cases bullying and harassment is also associated with discrimination as the Chinese or Vietnamese or non-English speaking background workers are targeted. In many workplaces non-English speaking background women are pushed to work faster than others. In one workplace the supervisor would go around to the Chinese worker and say quietly, "You will be in trouble if you don't work faster," while the English speaking background workers are allowed to chat to each other and work at their own slow pace.

PN2992

In another workplace the Chinese woman were even paid at a lower rate of pay than their English speaking colleagues. There was a group of migrant workers employed at the same time, the Indian could have been a woman who had good English and were paid at a higher rate than the Chinese women and other non-English speaking background women. In one recent case we assisted a woman in the workplace where there had been a large number of non-English speaking background women workers but they slowly all got sacked. This woman we assisted was the last one to be sacked. It is common for any Asian women to be told not to talk to each other and especially not to talk to each other in their own languages. They have to just work all day quietly and not having any conversation with other workers around them.

PN2993

In some workplaces if you don't do overtime you will be sacked. The boss insists you do overtime and you are told that you will be sacked if you don't. When you work on the production line you should be allowed to take five minutes every hour or two to protect your health. Some women are not allowed to take any breaks between morning tea and lunch. A lot of our members have back pain as a result of the repetitive work they do without adequate rest breaks. These migrant women workers need a strong safety net and support from unions and other special provisions to protect them. We ask that the same special provisions given to TCF workers are also included in this Metal and Associated Industries Award to protect vulnerable migrant women workers like our members. In the circumstances I have these migrant women workers are not in the position to negotiate with their boss about the contents of a flexibility agreement that maybe offered to them. Only this week I have been again supporting a women in a case where she signed an agreement at the time of her employment because she felt she had to even though she did not understand the contents of the agreement.

PN2994

The Metal and Associated Industrial Award need to have additional safeguards to protect migrant women workers. We ask the Commission to include requirements for translation of any flexibility agreements into the first language of the non-English speaking background workers to ensure they can understand the contents of the agreement and they have some understanding of what they might be losing and gaining through the agreement. Under this award workers should be specifically given time to take away any agreement to seek information and advice from other people signing it. It must be a requirement for employers to tell workers they can have one week to consider the agreement and, as we have said before, someone should be checking these agreements to ensure they do actually comply with the standards required within the award.

PN2995

Employers who used AWAs to alter working conditions were found to not even manage to comply with those minimum standards. The possibility of employers wittingly or unwittingly using flexibility agreements to disadvantage workers in the workplace is quite real and migrant women workers may not realise they are being exploited or may not be too scared - or may be too scared to act on their behalf, that is in fact for all the reasons we have previously explained. Workers and the boss are not on equal status. Asian women have a strong sense of the boss power, they have no capacity to stand up to the boss. For the reasons to fear that migrant women workers will be disadvantaged under this new award is confusion at potential erosion of the safety net created by the overlap in the individual flexibility provisions and the individual facilitative provisions under the individual facilitative provisions.

PN2996

Migrant women workers need clarity, not confusion, and we suspect employers will be better employers with clear cut lines too. Under the draft award an employer could vary hours of work using individual flexibility provisions or individual facilitative provisions and there are different cut lines and standard for how to go about doing either. Worse, it is not clear whether the no disadvantage test for flexibility agreement will be compared to the full award protections or to the agreements that they hope will be made through facilitative provisions. Flexibility on top of flexibility could be used to erode the safety net so greatly needed by migrant women workers with minimal, if any, capacity to negotiate. We support the MWUs position that there should be no overlap in matters that can be dealt with by a flexibility agreement and matters that can be dealt with by facilitative provisions.

PN2997

Finally, I would like to address union representation. Our members want and need to have unions free to represent them because they have limited capacity to negotiate for themselves. They think, "My English isn't good, I don't really have the power if I try to negotiate myself out of trouble because the boss might decide I'm a troublemaker." Our members don't fully understand the current award provisions, they don't fully understand their rights in the workplace. They don't understand how the industrial relations systems work in Australia. This is on top of their limited English language skills and low confidence, so they don't know how to negotiate something better or how to negotiate it to even maintain award standards in any alternative arrangement. That doesn't mean they don't have a sense of what is fair and right. Some workers have said to us no workers accepts these conditions back home in China but they do not have a measure of what they should expect from a work environment in Australia. Many have had such poor experiences their expectations are low.

PN2998

When workers ring us with problems in their workplace one of the things we ask them, if they are in a union and if there are union members in their workplace. Obviously if you are a union member this has an impact on where we refer them to for assistance. There are a lot of migrant women who don't know what a union is and how to contact a union. Others will say, "No, there is no union in our place, in our workplace. The boss won't let us join a union." These women are familiar with enterprise unions in their home country and don't know about the industrial unions in Australia. Still others will say, "The union is not allowed to contact us. If I join I will be picked on." They are scared to associate with a union for fear of losing their jobs. This fear of losing their jobs paralyses people and stops them acting and their bullying, harassment and discrimination that were their experiences makes this even stronger. But migrant women workers want the union to speak on behalf of them and negotiate for them and protect them in the workplace. The unions are the experts who understand the law and how to protect workers. They want these experts on their side. Workers want the union to be checking up on their workplaces and making for the boss follows the law. They don't want unions and the government waiting for workers to complain before they do anything. They want corrective support because they are fearful and uncertain.

PN2999

In one of the stories in our booklet, "Cries from the Workplace," a migrant woman metalworker talks of the good conditions they have because of the collective agreement the AMWU negotiated for them but she worries about what would happen when the agreement ends. In order to address the issues outlined here, it is important that the modern Metalworkers Award is clear then unions can represent workers in consultation processes and dispute resolution processes. Unions should be informed of the changes in the workplace and change to employment agreement arrangement in the workplace so that they can be involved in representing the worker. Unions should be clearly allowed to take disputes on behalf of workers without having to name the workers who have requested intervention. We support the AMWUs wording for the majority of facilitative provisions, consultation and dispute resolution as a vital mechanism to protect vulnerable migrant women workers.

PN3000

In closing, Asian Women Workers Action Group would like to thank the Commission for its time in attending to our concerns and for its action to ensure these modern awards provide a strong safety net and do not leave migrant women workers even more vulnerable than they were before. Thank you.

PN3001

JUSTICE GIUDICE: Thank you, Ms Liu. Ms Lee.

PN3002

MS J LEE: I appear for Australian Business Industrial. In line with my colleagues submissions from the AMWU I would like to put on a short five minute submission, if my colleagues are agreeable.

PN3003

JUSTICE GIUDICE: Yes, of course.

PN3004

MS LEE: Thank you. Australian Business Industrial, otherwise ABI, has filed written submissions in relation to this exposure draft and also a month after the exposure draft. ABI will not be addressing the submissions that it's already put on in accordance with the directions of the Bench and will just be addressing some matters that have been raised in the written submissions before the Bench today.

PN3005

Just one minor issue before I go onto my submissions, it appears that a typographical error has crept into ABI's written submissions. If I may correct that on record. At paragraph 4 of the written submissions in respect of this particular award it currently reads, "In keeping with the objectives of a modern award the definition of manufacturing and associated industries and occupations should be simple and easy to apply while at the same time not expanding award coverage beyond those not currently covered by awards." The word "beyond" should be replace with the word "to".

PN3006

If I just turn now to my submissions. The first submission I'd like to address is in respect to parties bound and both AIG and the MTFU have proposed that registered organisations should be bound by this award and name specific organisations which should be bound. In reply ABI submits that there is good reasons why this should not be the case. In particular, in its 10 October submissions the Australian Government provided some detail on how it saw modern awards will operate in the workplace relations system. Amongst other things, it appears that the Government's intention is to discontinue the concept of parties being bound by awards. This seems to be replaced with two key concepts which better reflect what they say is going to be the new modern workplace relations system. As ABI understands what the Government's written submissions say, these concepts concern the manner in which an employee and an employer organisation fall within the scope of the award and also the manner in which the award regulates the rights and obligations of the employer and employee.

PN3007

Accordingly, it is ABI's submissions, having regard to what the Australian Government has said, that the question of binding organisations or, more precisely, whether this award should operate as one instrument is probably best left until the Government's substantive legislation is available and the consequences of binding organisations is known.

PN3008

I now turn to dispute resolution. The MTFU has proposed a new dispute resolution clause which provides for an express right for an employer to be represented by a union. In ABI's submissions we submit that the proposed amendments by the MTFU are not necessary as the current dispute resolution clause does not prevent unions from representing employees.

PN3009

With respect to apprentices, WA Commerce has put on a number of submissions in relation to apprentices under the modern award that we would like to address. Firstly, in relation to wages for apprentices, WA Commerce has highlighted that the proposed wages for apprentices in the modern award are based on the highest level of schooling completed by the apprentices. Under their analysis the apprentice wages contained in WA NAPSAs do not differentiate between the highest, between the completed years of schooling and only provide for adult and junior wages.

PN3010

WA Commerce has proposed the adoption of the more traditional arrangement for apprentice wages that does not differentiate between the completed years of schooling, or they alternatively propose a reasonable transitional period should be provided in this award. ABI is supportive of continuing of the existing apprenticeship arrangements that were entered into under a NAPSA subject to a phasing in period of those arrangements. In addition, WA Commerce has also proposed the deletion of clauses 15.4, 15.5(b) and 15.5(c) of the exposure draft. These clauses essentially provide that an apprenticeship is one which is approved by a relevant state training authority and is consistent with training packages approved by the Manufacturing Industry Skills Council and the National Training Quality Council. ABI supports the deletion of these clauses. We submit that it is inappropriate for the definition to refer to industry skills councils and the coverage of the award has not yet been finalised. However, if the view is taken by the Commission that a definition of apprenticeship is appropriate, we submit that the definition should be limited to a state training authority with the responsibilities for the apprenticeship.

PN3011

In respect of annualised salaries, ABI submits that annualised salary arrangements in modern awards are appropriate as they reflect flexible modern work practices and if the annualised salary arrangements in the modern award are not expanded beyond the supervisor, trainee, automatic classifications, we submit that it will increase the cost to employers who currently have or they wish to have annualised salary arrangements for employees that fall outside those classifications. We have proposed in our written submissions an annualised salary arrangement clause that is generally available to all employees under the modern award. However, if the Commission isn't minded to grant all our salaries to all employees under this particular award, then we would submit that those arrangements should be classifications C10 and up.

PN3012

That concludes my submissions, unless the Bench has anything it wants to question.

PN3013

JUSTICE GIUDICE: Thank you, Ms Lee. Yes, Mr Easton?

PN3014

MR EASTON: Your Honour, mine are short submissions, I might jump in because I'm in Brisbane on Wednesday, if I may?

PN3015

JUSTICE GIUDICE: Yes, by all means.

PN3016

MR EASTON: My clients made two lots of submissions, and they've noticed over the last three days the Full Bench's tolerance for people simply repeating them has understandably shrunk so I won't. There's a couple of matters to raise though. In our submissions we raise a concern about the Metals Award and conditions being used as an occupational award as well as an industry award. We raise concerns about those matters. There's been in the joint document some tinkering about where the occupations that we have identified appeared. We don't see that that changes the substance of the award and therefore the substance of our concern, the concerns outlined, as I say, in the submissions.

PN3017

We make a submission about the dispute resolution training provisions. We see that that's still contained in the joint draft. We still oppose it. The Metals Award seems to be the only pre reform award identified on the website that has this provision in it, and when looking at the award itself there's various hotlinks that takes you back to the decision of his Honour, Munro J in print PR903193, where he, after considering the particular circumstances of the industry found that he was convinced that it would be appropriate for that award to have what he described as the recycled tutor leave, and in so doing applied the principles that go back all the way to 1988 with the Business Equipment Industry Award, and that is that applications for trade union training leave or dispute resolution training be assessed on a case by case basis.

PN3018

By administrative arrangement effectively that provision is being inserted brand new into a whole range of awards where it wasn't previously. We would say that that is not appropriate and whilst theoretically possible is not within what we see as the purpose of the modernisation process. There are significant consequences for applying the Metals classification structure to industries that have gone away and developed their own classification structures over the years. Those difficulties still remain after looking at the joint document, and we note in the joint document that AIG proposes to remove the redundancy for small employers, which is consistent with our submissions filed, and we of course support that.

PN3019

The only other matter that isn't in our submissions but we ought comment up in the draft is the proposed clause 4(a) in relation to registered organisations bound by the award. We say that that's a matter too early to determine in light of the legislated changes to come, and so that clause shouldn't be inserted. But of course, in the alternative, if the Bench is of a mind to put a clause in there then we'd like to be in it. We're not at this stage a named party to the award, but that doesn't seem to be, by this process and by the Act and the use of corporations power, that doesn't seem to be an obstacle to having us identified as a party to the award if the Full Bench was of a mind to include such provision in the award.

PN3020

The balance of our written submissions to a large degree arise out of transition arrangements where we see real concerns about persons moving from particular sub industries or industries into this proposed award. I don't wish to devalue those submissions by not talking to them but they are kind of clumped together in that way and can be simply read by the Full Bench as opposed to being recited by me. But a common symptom of those is that we say that they're provisions that ought to be continuing on and they arise out of the transition.

PN3021

JUSTICE GIUDICE: Thank you, Mr Easton. Yes, Mr Kentish, you've got a short submission have you?

PN3022

MR KENTISH: Yes. I certainly won't be repeating our written submissions because we do intend to rely on them, if the Commission pleases. Your Honour, the CEPU today just wished to express general support for the draft award put forward by the AIG and the MTFU. That support is subject to the exclusions going to scope for electrical contracting and transmission cables, which we understand are in draft clauses 4.5(3) and 4.5(g). If it pleases, we have nothing further.

PN3023

JUSTICE GIUDICE: Thanks Mr Kentish. Mr Maxwell, are you a short submission on this occasion?

PN3024

MR MAXWELL: Yes, your Honour, I am intending to be very short. Your Honour, the CFMEU has identified a number of issues that we seek should be included in the modern Manufacturing Award in our written submission, and that's dealt with on pages 7 and 8 of our written submission. There are just some minor matters - sorry, brief matters I wish to raise with the Commission.

PN3025

The first, in the AIG's submission there seems to be an assertion that the CFMEU is seeking to use other awards to expand their coverage to the detriment of the manufacturing industry. We reject that assertion. All we are seeking to do is protect the existing conditions of our members and the awards that apply to them and, where appropriate, include them in like minded awards, noting that there are significant differences between a number of the Building and Related Industries Award compared to the Manufacturing Award in areas such as overtime, annual leave, personal leave, shift loadings, et cetera, and that's where we seek to maintain the difference.

PN3026

We note that the AIG again refers to the issue of maintenance trades, and we have dealt with that in our written submission where we seek to make a distinction between the metals and electrical maintenance trades as opposed to the building maintenance trades and the issue of which is the appropriate award and conditions that relate to them. The AIG has supported the removal of the small business redundancy provisions from the draft award that has been put forward. Again, we rely on our written submission where we have identified some of the awards which will be covered by the Manufacturing Award, in particular those parts of the Engine Drivers and Firemen's ACT Award that had an existing entitlement for employers of small businesses to redundancy pre 1996, and that that should be protected.

PN3027

We also deal briefly with the superannuation clause. In the AIG submissions they refer on page 52 that the superannuation clause is agreed. The only change we seek there is the inclusion of CB as one of the default funds. That is an existing default fund in the Engine Drivers and Firemen's ACT Award. On page 67 of the AIG submission they put forward a public holiday substitution clause where they seek that a public holiday may be substituted by agreement, but they also seek to impose a right of the employer to decide on a substitution day for employees.

PN3028

We oppose that as a general rule without appropriate penalties being applied. In a number of cases where there is requirement by an employer for an employee to work a public holiday a common provision is that in addition to the payment of the penalty rates for work on a public holiday the employees also get an additional day. And if there is a mind to insert a provision as sought by the AIG we would seek those additional conditions to apply.

PN3029

The final matter we would raise is in regard to personal leave, which again is a matter we have dealt with in our written submission. We submit that the reliance on the NES in regard to personal leave is a reduction in existing conditions compared to the Engine Drivers and Firemen's ACT Award, where there is an entitlement to sick leave after the first month of employment and then there is an annual entitlement on an employee's anniversary date. Other than that we would generally support the submissions of the AMWU and the rest of the draft award as consented between the parties. If the Commission pleases.

PN3030

SENIOR DEPUTY PRESIDENT ACTON: Mr Maxwell, my recollection is that you sought the deletion of clause 18 concerning trainees.

PN3031

MR MAXWELL: Your Honour, I think reference to that was in relation to the National Training Wage Award.

PN3032

SENIOR DEPUTY PRESIDENT ACTON: Well, clause 18 deals with trainees and it provides that the terms of the award apply to trainees covered by the national training wage. It also deals with other provisions, reasonable time off, et cetera. You propose a specific clause, and I'm not sure what you mean by a specific clause.

PN3033

MR MAXWELL: Your Honour, in regard to that the argument we are putting forward is that we believe that the training arrangements to apply to a modern award should be those specified in the modern award and not refer to another document. So where there is a reference there to the national training wage provisions we say that the actual provisions to apply to the trainees should be contained within the award rather than in reference to another document.

PN3034

SENIOR DEPUTY PRESIDENT ACTON: Thank you.

PN3035

MR MAXWELL: Thank you, your Honour.

PN3036

JUSTICE GIUDICE: Thanks, Mr Maxwell. Mr Terzic, there may be some short submissions in Melbourne, but we seem to have temporarily lost partial contact. If we look at it from this angle we can't see anything. Well, you go ahead I think, Mr Terzic.

PN3037

MR TERZIC: Thank you, your Honours and Commissioner. The structure of the submission will be that we'll start with a brief preface and then it will deal with eight rather discrete issues. And the way the issues will be presented will be in order of importance to the AMWU with the more important issues being dealt with earlier and the less important matters dealt with later.

PN3038

By way of preface, we observed, unlike for example the Rail and Coal Awards, a significant number of employees covered by this award will have their actual pay and conditions covered by the award. It has a significant proportion of award reliant employees. Indeed, in a supplementary submission filed on 28 October the AMWU submitted some unpublished ABS data that gives some figures, and they come from ANZIC, 93 subdivision manufacturing. The highest grouping there is in a category called other manufacturing and it stands at 32 per cent of such employees dependent on the award for setting their pay, but in contra distinction in machinery and equipment manufacturing the figure goes down to 5.6 per cent.

PN3039

JUSTICE GIUDICE: What part of the submission is this in?

PN3040

MR TERZIC: This is the submission of 28 October, it's attachment 1.

PN3041

JUSTICE GIUDICE: Attachment 1, yes. The version that I'm looking at seems to have a problem with it. It seems to cut off the table.

PN3042

MR TERZIC: Yes, I saw that in the version that's on the website. You can scroll across, but the other figures there are for other forms of instruments, collective agreement, et cetera. The award figures are visible.

PN3043

JUSTICE GIUDICE: Are visible?

PN3044

MR TERZIC: Yes. And you'll see there, your Honour, 32 per cent for other manufacturing and 5.6 for machinery and equipment manufacturing.

PN3045

JUSTICE GIUDICE: Yes. Well, I can't see that to be honest, but anyway we can check it later.

PN3046

MR TERZIC: Yes. Well, what this shows is that some employees can bargain, some employees can't, and it's important not to disregard those who can't to cater for those who can. And I make these preparatory remarks as context for what follows. The eight issues, I'll read them out ahead of going through them in some detail. The first is states occupational awards, number 2 is the idea of bringing other industries into the Manufacturing Award, number 3 is the issue of professional engineers and scientists, number 4 is award flexibility, number 5 is small business redundancy, number 6 is the transitional provisions, number 7 is the Australian Workers Union Queensland submission on premises, and number 8, the last, is superannuation.

PN3047

So perhaps the greatest importance to the AMWU is its advocacy of strong occupational awards, and in this regard we've found support from other groups. Indeed, in yesterday's Australian newspaper one group saw fit to place a paid advertisement supporting the benefits of strong occupational awards. I've made a copy of that advertisement, I think I'll hand it up.

PN3048

JUSTICE GIUDICE: What is it? I think we've already got it haven't we? It's on the website.

PN3049

MR TERZIC: Is it? If you've already got it I won't give you another copy. But it's interesting to note that there are various aspects to support strong occupational awards. We might have some reasons, but apparently it can benefit pay equity, and we find ourselves in the company of such groups as the Country Women's Association and the Nurses Union, among others. But perhaps more pertinent to this award, we were supported strongly on this concept by the Australian Industry Group, and the relevant submissions there are in there 10 October written submissions starting at paragraph 31 and again in their more detailed submission going to this award at paragraphs 313 and following.

PN3050

The AIG contends that the occupational awards seems to be the best fit for the existing way in which industry regulation is currently maintained by awards. This Commission would know that the Metal Award has a long history of being an occupational award. It has regulated metal trades grades for over a century. The award grew up and expanded as a compilation of many trades awards, and it's a historical figure that that system is part of the Australian industrial landscape. It is something that is capable in the legislation and the Request. It accords with reality, with the Act. There is every good reason to maintain a situation where the occupational status of the award was maintained.

PN3051

However, the belief of the parties is the way that the award has been framed and its scope, the occupational application of the award has been diminished, it's been delegated to a residual award.

PN3052

COMMISSIONER SMITH: Is there any industry that it wouldn't go into, Mr Terzic?

PN3053

MR TERZIC: I beg your pardon?

PN3054

COMMISSIONER SMITH: Is there any industry the award would not travel into?

PN3055

MR TERZIC: That would depend on how other industries' awards are framed. Currently the way the award is framed it would have a residual effect if another industry's award allows - - -

PN3056

COMMISSIONER SMITH: No, I mean if your submission was successful is there any industry it wouldn't travel into?

PN3057

MR TERZIC: Yes. The gravamen that we propose is that where industries have an existing pattern of coverage of maintenance, metal trades, engineering workers, et cetera, that will remain. So, for example, the coal industry, the main Coal Award in the exposure draft for the coal industry maintains that exclusion, also in the rail industry, also in metalliferous mining. But in many other industries to come the question might become contentious. We seek to establish at this juncture the strong occupational standing, maintain the strong occupational standing of the Metal Award. And as we say, we are not alone in that, we are supported by the Australian Industry Group and the Australian Council of Trade Unions one would expect notionally on behalf of the trade union movement has supported this principle.

PN3058

Not only do they support the principle broadly but in their submission they have devoted a separate part to endorsing the Metal Award continuing to apply throughout other industries. So the question then is how can the problem be rectified as the parties have identified? Well, in the exposure draft some careful alteration to the wording sets the balance just right, and on behalf of the AMWU, and I think on behalf of the other parties we commend the alterations as will be found in the response to the exposure draft that was filed.

PN3059

Another issue that is quite related to this is the operation of overlap. And I found some intellectual merit in the way that the CEPU and NECA created a taxonomy of how overlap can be dealt with. It was done at paragraph 2.4 of their submission, and they set up three propositions on how overlap could be dealt with. The first is simply to eliminate overlap. The second would be to allow for overlap but there would a pre ordained primacy rule. And the third would be to allow for overlap but there would be primary depending on the facts in each situation.

PN3060

It appears that what the Commission has done, whether deliberately or not, has adopted the proposal in line with the third, that is, overlap may occur and it then becomes a matter of determining which award is more appropriate depending on the facts.

PN3061

VICE PRESIDENT LAWLER: Your categories two and three are not mutually exclusive. The facts are always going to be relevant.

PN3062

MR TERZIC: Well, your facts enliven the law without a set of facts or factual circumstances. There is nothing to apply the award to. But in having primacy depending on the facts, what can be accommodated is some consideration of merit or it would allow for a decision maker being faced with this question some discretion as to apply one award over another, and it appears that the Commission's approach does tend to beg an administrative law question; which award is more appropriate than another?

PN3063

And also in the CEPU NECA submission there's a worthwhile passage from a decision of the Federal Court, a decision of Marshall J, HSU v North Eastern Health Care. The author of the report, who is Mr Wood, bolded various parts of it but he didn't bold one part that I think is most pertinent to the question at hand. The relevant passage, I'll just read it out, from Marshall J. He says:

PN3064

The situation where two awards govern the terms and conditions of employment of certain employees, whilst relatively unusual, is not an unknown one. In those circumstances the employer is obliged to accord to its employees the better conditions in respect of the matters dealt with in the awards, thus obeying all its obligations.

PN3065

I just end the quote to say the significant passage is:

PN3066

It's not the function of this court to determine which award is more appropriate.

PN3067

Well, that might not be the function of the court now, but if the Commission goes ahead with the existing clause it might be the function of the court later. And in respect to the overlap issue the AMWU supports the ACTU approach. The AIG continue to advocate an approach that was used with the compounding of common rules, or the pronouncement of common rules in Victoria. But the one feature of the AIGs approach that perhaps does have some merit to it is the idea that the issue of which award being more appropriate is rendered to the Commission to decide.

PN3068

As submitted, it seems to be more of an administrative law decision based on some degree of discretion being applied to the facts. So it's not an issue that could be dealt with through a dispute resolution clause. It might be something for the Commission to consider, to giving itself some sort of power to decide which award is more appropriate than others depending on the prevailing facts when this issue arises.

PN3069

JUSTICE GIUDICE: That might be a bit of a difficulty mightn't it? It might be difficult for the Commission to give itself such a power unless the legislature gives it to us.

PN3070

MR TERZIC: Well, that's a very true observation. But it seems throughout this whole process the Commission has been thrown a fair bit of rope to decide how to deal with certain issues that normally are the function of the legislature. The Commission was given a fair degree of discretion to decide how to deal with disputes under the dispute resolution clause. There is a bit of putting the cart before the horse, but I'm sure if the Commission was to give this matter some serious consideration and raise the appropriateness of the Commission having the power to make such pronouncements or determinations it might be something that the legislature will take seriously. It seems like the court doesn't want to do the job, or so it says like Marshall J.

PN3071

JUSTICE GIUDICE: The overlap provision that was agreed by AIG and the unions - - -

PN3072

MR TERZIC: The first time around.

PN3073

JUSTICE GIUDICE: Yes. That also seemed to involve some kind of value judgment didn't it?

PN3074

MR TERZIC: The first one was essentially the recycling of the common rule provision that allowed for determinations which would apply. Perhaps where that didn't find favour with the Commission in the way I've perceived the Commission's approach, which is to look forwards, not backwards at what went before, that might have been where that fell down because it was a matter of looking at which awards applied in the past and carry on past practice. The Commission's model has decided to be forward looking, but ultimately AIG is wedded to it's backward looking approach.

PN3075

The AMWU has given careful consideration to the Commission's formulation and said that if it included reference to occupational awards as well as industry awards as being the more appropriate that would be something we could live with. But we'd make the further submission that having the Commission the power to decide which is more appropriate in the event of there being disagreement, that might perfect it again.

PN3076

JUSTICE GIUDICE: Yes, well, that would be useful if that determination could in fact give legal certainty about which award applied.

PN3077

MR TERZIC: Yes, it would be a matter for the legislature to craft to give those decisions - what status would they be? Would they be part of the award or would they be a ruling that would be binding that would then say have effect on what pay and conditions actually apply to particular work?

PN3078

JUSTICE GIUDICE: Yes. Well, that's the sort of issue, yes.

PN3079

MR TERZIC: Yes. It's something that - it's a disadvantage we all labour with, the Commission and the parties, of not knowing what the legislation looks like. We just have to go ahead. If sensible ideas emerge from this process perhaps the legislature will take note. We can only hope. The next issue is other industries. And I would observe that so far the proposed award for these industries covers a considerable array of occupations from technical workers to supervisors to fitters, electricians. If the AMWU's submissions were adopted it would also cover land surveyors, et cetera.

PN3080

But also in respect of industries, the industries covered go from stoves to ship building, aircraft to X-rays, and in addition we've thrown in rubber, plastic and cable making, glue and gelatine abrasives, space tracking, and we're not finished there. Stage two contemplates further industries going in, broom and brush making, chemical - - -

PN3081

JUSTICE GIUDICE: Can we contemplate an intergalactic award?

PN3082

MR TERZIC: Pardon?

PN3083

JUSTICE GIUDICE: An intergalactic award.

PN3084

MR TERZIC: It won't stop. It won't stop on this plant, your Honour, no. It just goes on. But so far what the exposure draft has done is its been very - perhaps this is not the kindest word - it's been very brutal in accommodating a broad range of conditions. The parties in earlier drafts have sought to maintain some inter industry and inter occupational distinctions but the Commission in this award has managed to set one set of conditions of what apply across the board. There appears to be very little scope for any allowance for a particular industry to maintain a particular set of conditions. We've tried to, both parties, the employers and the unions, have tried to insert as much but we don't seem to be having much luck. Now, in some respect the more industries that are to go into this award the more difficult it will be to accommodate disparate conditions and we implore the Commission to become more lenient in this and to perhaps set up a separate part or schedule which allows for particular industries to maintain particular conditions that are suited to those particular industries or occupations.

PN3085

Perhaps the most stand out clause that remains problematic and hasn't been dealt with yet is accident make up pay. Currently in the Manufacturing Award accident make up pay is there for the Rubber, Plastic and Cable making Award and for the Metals Award there is a stand alone Victorian Award. But apart from that there is no general entitlement to accident pay. The union, not surprisingly, would like to see that entitlement spread throughout the whole award and submissions that have been made to that extent. I must confess some back of the envelope work on this and it appears that the cost wouldn't be significant and depending on the cost and the way other conditions are rounded out it might be that the making of accident pay, a universal entitlement at what seems to be the more common rate of 39 weeks, might be quite achievable and accident pay is a benefit of considerable utility to injured workers.

PN3086

It prevents them from suffering a loss of income at a difficult time. Now, when I addressed the Commission in another industry consultation I think it was the metalliferous mining, I might have held you in suspense by identifying iron steel as an industry that hasn't been catered for so far. The AMWU has consulted with the Australian Workers Union on this. We have not found agreement on how it will be dealt with but ideally we suggest it would either have a stand alone award or would be folded into this award. That's something that will need to be decided sooner or later but at the moment it's just not dealt with. And I would reply to the submission made by the Ski Association. The Skiing Industry Association may take the view that to consolidate a separate Skiing Industry Award would be made.

PN3087

The AMWU has various member at various ski resorts who are employed as maintenance trades repairing ski lifts and other ski equipment. We say that this award should cover such employees. The third issue is professional engineers and scientists and perhaps to sum up the way this issue has been dealt with, it seems to have been put in abeyance again and again and again. The AMWU continually advocates for the inclusion of classifications that would cover professional engineers and scientists in the metal industry and we have given the reasons for that a few times. Essentially we say it adds some integrity to the classification structure. It will allow a benchmark classification structure from C14 to C1.

PN3088

We don't see any need to fragment that achievement of the structural efficiency principle but you can read earlier submissions on this. We contain to maintain our strong advocacy for that vertical integration and also we again just note that there is a strong linkage between the technical grades being encompassed in this award from draftsman, land surveyors, technicians, et cetera, and the professional grades. They work together side by side and this provides a linkage and also provides a proper work value assessment of how both groups is properly compensated for and particular levels of skills and training.

PN3089

On the fourth issue, award flexibility, ideally we would like to see no award flexibility clause but we won't hold our breath. I don't think there's anything I can say here to have the Commission disavow itself of what's been done already. But we do point out that a provision from the current award facilitative clauses entitled additional safeguard has been left out of the exposure draft. We implore the Commission to reinstate it. But nonetheless, the AMWU will continue to oppose the notion behind the award flexibility clause. We were particularly moved by the submission made by Ms Liu from Asian Women At Work and going back to the earlier context I made, there are award reliant employees.

PN3090

We do say clauses such as this do provide scope for workers to have their conditions stripped away and while I won't go through it in any length I will hand up to the Commission some material that just highlights the dangers here. Whilst I said I don't expect the Commission to revert to what it's already done, wherever safeguards can be included we suggest they should be. Sometimes timing is everything. It's quite fortuitous when you wish to make a point and what falls on your lap at the last minute is a report that supports the point you're taking to make. It was just yesterday that this report was published. I haven't handed up a complete copy, they're just extracts. But there written on the second page there's a website where the full report can be downloaded.

PN3091

This is a report put together by the Workplace Research Centre which is an associated head or part of the University of Sydney and it makes for instructive reading on bargaining and awards.

EXHIBIT #AMWU1 REPORT FROM THE WORKPLACE RESEARCH CENTRE

PN3092

MR TERZIC: Thank you, your Honour. I'll just point out some interesting passages. On page (vii) in the executive summary, about two thirds of the way down the page there's something that says, "Implications for policy", which is what this Commission has to undertake from time to time -

PN3093

The role of awards, awards remain centrally important for most employees. This includes many earning in excess off $100,000 per annum. Given ...(reads)... every four years as currently proposed.

PN3094

The latter I'm not sure much can be done about. And then this report does give some assessment as to the number of award reliant employees and it appears the figures that have come out of this research are at variance with those from the Australian Bureau Statistics. They can be found at page 22 where there's table 3.1, pay instruments ABS and Australia at Work. It seems that the ABS came out with a figure of 20 per cent in the same year this report came out with 33.4 and then if I could ask the Commission to turn to page 36 and I won't read it all and I seek for it to be adopted as part of the submission, but there is some analysis of the nature of bargaining and capacity to negotiate enterprise agreements for everyone. And on the following page - - -

PN3095

VICE PRESIDENT LAWLER: Is there any explanation for the variance between the ABS figures and the research figures that have been produced by these researchers? It's quite vast, isn't it?

PN3096

MR TERZIC: Yes, it seems that way. The methodology for this report is I think a series of telephone interviews over about 8000 respondents. That would be statistically valid. I'm not sure if the ABS is a methodology, that would be usually spelt out in the various reports.

PN3097

VICE PRESIDENT LAWLER: And usually statistically valid.

PN3098

MR TERZIC: Absolutely. So what is said in this is that in many instances employees simply don't know or they're not sure and some qualitative research anecdotal comments are scattered throughout this and I think the relevant page comes from the scientist who claimed he didn't know. So it can be a complex question and it might just be the way people report what covers them is just wrong, that they don't know. But if people don't know across the board one would imagine that the misinformation would carry on through the statistics. Your Honour, simply I'm at a loss to explain. There might be more on it in the report. I haven't read it thoroughly.

PN3099

Just at page 37 there's a quot there in italics and this is on employees negotiating changes or alterations to their employment and it comes out of some qualitative issues and the quote there is:

PN3100

I guess I'd be a bit nervous negotiating my own contract. I guess you've got to be confident enough to actually to do it. I think ...(reads)... confident enough to actually do it. Male 37, fitter.

PN3101

And then the report goes on to say clearly -

PN3102

Protection for vulnerable and intimidated would be greatly welcomed by many workers.

PN3103

I end the quote. Another suggested change that might improve the operation of the award flexibility clause that we advocate is to add a requirement to clause 7.5(c) of the exposure draft so that it would have to be set out in how overall remuneration and pay is affected by the changes. In other words, some sort of ledger. An ancillary issue is annualised salaries. The AMWU is not a supporter of annualised salaries but we think the Commission got it right in the exposure draft in limiting annualised salary arrangements to supervisory employees and that's found at page 28 of the exposure draft.

PN3104

The AIG want to push it down to employees at level C9 and higher and I think it's the submission from the Australian Business Industrial who want it at C10. We say that the overall test for when annualised salaries could be introduced, we prefer them not to be introduced, but where they could is where there are arrangements already in place that generally contemplate such a thing. The fifth issue is small business redundancy. I just want to take a different slant on the arguments that have already been put in relation to this and we observe that the Ministers of the Crown wear various hats. They can be a member of parliament or a senator and they engage in political discourse and debate but a Minister of the Crown is also a part of the Executive of Government and when part of the Executive a Minister can do certain things to change legal instruments and effect decisions of departments.

PN3105

The Request which is not a legislative instrument which can be changed easily, is not subject to the strictures of the Legislative Instruments Act 2003. It's not a disallowable instrument that can be overturned by the senate. It can be changed very easily. If the Minister really wanted small business redundancy gone, the Minister could have done so at the stroke of a pen. Instead what the Minister has done in this regard is she has engaged in public debate and she has made a submission that is to be considered on the merits like the other submissions that have been put in this matter. The fact that the Minister is part of government should not enter the debate.

PN3106

The Minister could have done so with the appropriate weight to put the question out of doubt. We say in determining this matter the Commission should do nothing more than consider the merits of the arguments propounded in the Commonwealth's submission as opposed to the arguments in reply. I'm not going to repeat them. They were done very ably by Ms Bissett. And also take stock of the fact that the Commission looked at this very closely in 2004 and came up with what we say is the appropriate balance.

PN3107

The next issue are transitional arrangements and there appears to be somewhat of a consensus among parties to defer this issue. But looking at it, there are two possible approaches or a combination of these two possible approaches. One is to make a general pronouncement on how transitional provisions will work or the other is to go for specific provisions. The ACTU has suggested an approach at page 31 which would effectively incorporate a savings clause that would keep employees existing conditions where they are but allow them to move up to improve conditions in a phased manner, if that's what occurs. It would be ultimately for the Commission to decide the period and the manner in which such phasing would occur.

PN3108

We commend that approach but again as with accident pay, there is yet to be any sort of empirical research on hour alterations in pay and conditions will translate to why the increased costs for employers or reductions in wages or potential reductions in wages for employees. In short, I've raised these propositions for further thought and consideration but apart from what the ACTU has said we'll leave it there. The seventh issue was the Australian Workers Union Queensland's submission on apprentices. Well, in that regard we observed immediately that the AWUs submission is flawed. If there was something wrong with apprenticeship provisions as they say that problem would be apparent now.

PN3109

It would have been apparent before. They're saying the exposure draft can't accommodate the Queensland system of apprenticeship regulation. Well, it does now. We fail to see how maintaining the status quo will create a problem. At any rate, I've noticed that the AWU seems to be retreating from that submission. We say the best thing for the Commission to do is ignore it. The last issue is superannuation and in the existing Metal Industry Superannuation Award clause 8 requires, and I won't read the whole clause, just the relevant part:

PN3110

An employer must, in accordance with the governing rules of the relevant fund, make such superannuation contributions -

PN3111

et cetera. The words:

PN3112

in accordance with the governing rules of the relevant fund were left out of the exposure draft.

PN3113

The significance of those words is that for the main superannuation fund in the industry the governing rules of the fund require the contributions to be made monthly. Under the Guarantee Legislation contributions are to be made quarterly. We support more frequent contributions for various reasons but perhaps the main reason is that in the union's experience one of the first signs of the company being in a poor trading condition, perhaps moving into insolvency, is the cessation of payment of superannuation contributions. I guess it would be a bit hard for an employer to stop paying wages. That would be noticed immediately. For most employees the stopping of payment of superannuation is something that's more subtle and might not be noticed immediately.

PN3114

So it is a good indicia of the economic health of employers and allows employees to make the necessary arrangements to ensure that their accrued entitlements can be best protected. Moreover, the problem is more acute because the Government Employee Entitlement Protection Scheme, GEERS, does not cover unpaid superannuation entitlements. So regular payment of superannuation is definitely in employees' interests. So the retention of those words would require in effect more regular payments. You would have it in the award. It would be an obligation that would be enforceable whereas default of the requirements under the Guarantee Legislation are matters for the Tax Office. They can be attended in a tardy way. This would give the employees standing to do something about this problem when it occurs. We would commend that alteration. If the Commission pleases.

PN3115

SENIOR DEPUTY PRESIDENT ACTON: Mr Terzic, clause 24 of the proposed amendments there's some suggestions by the Metal Trades Federation of Unions at clause 24.3(b)(iv) and (v) - - -

PN3116

MR TERZIC: Your Honour, could you tell me what page you're on?

PN3117

SENIOR DEPUTY PRESIDENT ACTON: 39 and 40.

PN3118

MR TERZIC: Yes.

PN3119

SENIOR DEPUTY PRESIDENT ACTON: I'm just wondering the source of those proposals?

PN3120

MR TERZIC: I wasn't engaged in this part of the exercise. Can I take that question on notice and respond? I'll take some instructions.

PN3121

SENIOR DEPUTY PRESIDENT ACTON: Yes. I've got a similar question in respect of clause 24.3(d).

PN3122

MR TERZIC: Yes, Ms Taylor will take notes and - - -

PN3123

SENIOR DEPUTY PRESIDENT ACTON: And clause 29.3 proposed and the addition of the classification structure for technical workers at clause 8.4, I'm just wondering about the source of that as well?

PN3124

MR TERZIC: We will give a response shortly.

PN3125

SENIOR DEPUTY PRESIDENT ACTON: Thank you.

PN3126

MR TERZIC: Thank you.

PN3127

MR J ARTIS: I appear for the Association of Professional Engineers, Scientists and Managers Australia.

PN3128

JUSTICE GIUDICE: Yes, Mr Artis.

PN3129

MR ARTIS: If I could perhaps go next. In the Commission's statement of
12 September 2008 accompanying the publication of the exposure drafts for award modernisation priority industries you determined that professional engineers and professional scientists are not included in the draft Manufacturing Award and that they will be considered at stage 3 of the award modernisation process. The association supports this approach and we look forward to our participation at that time. The effect of this decision is that the draft exposure award for the manufacturing and associated industries has minimal impact on the association.

PN3130

The only interest being in the trainee professional engineer and scientist provision at clause 28.3 which is currently in part 6 of the Metal and Associated Industries Award to which we are jointly respondent with the AMWU. But that said, subject to the publication of the exposure draft the AMWU in its submissions to the Commission has raised a number of issues in which the association has an interest and which we wish now to briefly address. The issues we have identified are the inclusions of a scientist's classification in the Manufacturing Award, the inclusion of professional engineers in the space tracking industry, the addition of provisions regarding land surveyors and the addition of a provision for a trainee architect.

PN3131

If the Commission pleases, the association submits as a general proposition that all of these matters are best addressed at stage 3 of the award modernisation process when professional engineers, professional scientists and the technical and scientific services group of awards will be considered by the Commission. When the Commission determined that professional engineers and professional scientists are not included in the draft Manufacturing Award and will be considered in stage 3 of the award modernisation process, understandably the association took that to mean all professional engineers and scientists, including the scientists under the drafting of Action Planners and Technical Workers Award and engineers in the space tracking industry and we believe that this is the appropriate course of action.

PN3132

Issues raised by the AMWU can be addressed at that time. We would submit that with respect to the scientists' classification originating from the drafting Production Planners and Technical Workers Award that that award currently has limited application. It does not apply to professional scientists who are bound by another award of the Commission. When the award was made there was already in existence and currently is an award covering professional scientists, namely, the Scientific Services Professional Scientists Award 1998. The association acknowledges that there is an issue here but that the inclusion in the scientists classification as sought by the AMWU in a modern Manufacturing Award at this stage would extend its application well beyond its current application and it would pre-empt the consideration of professional scientists at stage 3 of the award modernisation process as already determined by the Commission.

PN3133

With respect to the inclusion of professional surveyors the association does have an interest in this matter but not discussions have taken place between ourselves and the AMWU, the other award respondent about their inclusion in a modern Manufacturing Award and the specific have become known to us only as of 10 October through the submissions on the exposure draft. There are a number of possible ways to deal with professional surveyors. The logic of their location in a modern Manufacturing Award is not immediately apparent. Other possibilities include location within another perhaps more relevant industry or as part of an expanded modern occupational award, or a stand alone modern occupational award for land surveyors.

PN3134

The stand alone option is the association's preferred option. The association believes that an open mind should be kept on the possibility that a small number of well recognised modern occupational awards which are simple and easy to understand might be a preferable final outcome to complex mega industry awards with multiple salary schedules. The association submits that the best time to consider these issues would be at stage 3, after the stage 2 Manufacturing Awards which will roll in another lot of salaries and conditions of employment provisions into the proposed modern Manufacturing Award has been considered and when all scientific and technical and services awards will be considered.

PN3135

The AMWU has included as clause 28.4 of their amended exposure draft a provision for trainee architects taken from clause 5.1.1(g) of the Drafting and Production Planners and Technical Workers Award. The association is respondent to the Technical Services Architects Award which also has a provision providing a sliding scale payment for students of architecture. Because of the possibility of overlap the association is again of the view that the appropriate time to consider the location of this clause is stage 3 when the Technical Services Architects Award will be considered. Essentially this award contains a student architect provision and the two should be considered together in stage 3. That's all I wish to submit, your Honour, unless there are any questions.

PN3136

JUSTICE GIUDICE: Your proposal is that any classifications that might relate to professionals or professionals in training simply not be included at this stage.

PN3137

MR ARTIS: Not at this stage.

PN3138

JUSTICE GIUDICE: Yes.

PN3139

MR ARTIS: Not at this stage, your Honour, because there are - it could pre-empt and there are applications in relation to the professional awards which are to be considered in stage 3.

PN3140

JUSTICE GIUDICE: Yes. Yes, thanks, Mr Artis.

PN3141

Mr Mead.

PN3142

MR MEAD: Your Honour, I note the late hour of the day and I think even if I were to deliver my submissions as rapidly as possible, it's my understanding that the Bench is seeking to adjourn at a quarter past four today.

PN3143

JUSTICE GIUDICE: We will be.

PN3144

MR MEAD: With the Bench's indulgence, I can advise that I am available on Wednesday to provide these submissions. I feel that perhaps the submission will go for approximately half an hour.

PN3145

JUSTICE GIUDICE: Yes.

PN3146

MR MEAD: It would be my - - -

PN3147

JUSTICE GIUDICE: The question really is whether there are other submissions in relation to metals that might come out of the woodwork between now and Wednesday. Do I understand that you're the last? Possibly Mr Cameron might have a few observations as well but I don't know whether there are any other people who wish to make a contribution. Yes, perhaps we might hear from you,
Mr Speers, and that might solve the problem.

PN3148

MR SPEERS: Thank you, your Honour. The ALAEA have supplied yesterday afternoon an outline of submission. I'm not sure if that's made it through or not.

PN3149

JUSTICE GIUDICE: It's made it through. I'm not sure if it's on the website yet though.

PN3150

MR SPEERS: I've got copies.

PN3151

JUSTICE GIUDICE: Yes.

PN3152

MR SPEERS: Also given the feedback I've picked up today that there's very little tolerance for going over the outline of submissions I won't go on for very long because there's not much time and I understand the Full Bench doesn't want to repeat the submissions. I suppose I just want to generalise that the ALAEA, in terms of aircraft engineering, we've been sort of giving the matter further consideration in terms of the award modernisation process and where, in particular, our Aircraft Engineers (General Aviation) Award 1999 fits in terms of covering aircraft maintenance engineers and also some related technical workers in the aircraft industry.

PN3153

Our earlier thinking was outlined in our submission on 28 May by Mr Gary Norris about, I guess, supporting a specific aviation industry modern award for aircraft maintenance engineering but upon reviewing the draft Manufacturing and Associated Industries and Occupations Award we think, and relating that back to the General Aviation Award, it appears to our organisation that there maybe a more practical path to go down the route of seeing if we can become one of the organisations bound to that modern award in terms of the - particularly the clause would be 4(a), but then from that point of view we would be looking to see if we can obviously get the occupations and some of the industry specific terms from the General Aviation Award covered under the scope of the Manufacturing Award and we've been having initial discussions with Ms Taylor and through the ACTU made our views known to some of the other affiliates and I guess that's a matter that's still being discussed by some of them, but we note also that some of the other technical classification workers in the maintenance functions of the aviation industry would also have capacity for coverage under the modern manufacturing award.

PN3154

So, in seeking to become a party, I guess, to that award we would, as I say, we would be seeking to try and maintain some of the specific industry specific conditions that go to terms and conditions for aircraft maintenance engineers and the licensed aircraft maintenance engineers. Some of those things are, you know, some of the complexities to do with things like licence pay and specific things on safety incident and accident investigation procedures in the airline industry. Our written submission outlines the details in regard to also the competency based structure that has been established by consensus, as I understand, and the aviation standards are by the 4:05:40 Aero Sector Skills Sector Committee which could fit in the modern award.

PN3155

The ALAEA also understand that the AIG submission which is - that will be coming next week I guess or later but also I think I've noticed that their submission apparently identifies the overlap of the general aviation award by noting that aircraft and components in the Manufacturing Award would incorporate the scope of the Aircraft Engineers (General Aviation) Award.

PN3156

So, in conclusion, your Honour, the ALAEAs preference would be to certainly further investigate the possibility of us coming in under the manufacturing modern award and entering into a process for incorporating the occupations from the general aviation award and particular terms. If that path were not available the ALAEA has concerns about the issue of overlap, which was recently elaborated on, and concern about whether there would be a process for - we would be seeking some sort of process, I guess, to see if we could get some isolation of the aviation sector components if it turns out we couldn't go down the path of the modern award in the manufacturing award in terms of protecting, I guess, our workers and our members, and noting, I think, that the aircraft industry is noted at stage 2 and of course there's that separation with airline operations being in stage 3 but, as I say, your Honour, the submission that was lodged yesterday afternoon covers a lot of the points there so I won't elaborate.

PN3157

JUSTICE GIUDICE: Well, in the normal course you would expect that the ALAEA would be dealt with along with the aviation - I think it's airline operations, isn't it?

PN3158

MR SPEERS: Well, our initial thinking, that's right.

PN3159

JUSTICE GIUDICE: Yes.

PN3160

MR SPEERS: You've got stage 2 covers aircraft industry, which is sort of the maintenance and repair of sort of overhaul of aircraft but then you've got stage 2 which has this sort of distinction between - from our point of view there's maintenance issues that go to airlines but there's a bit of - certainly there's some grey areas there and a real question about whether there is an adequate safety net, particularly in the airline operations sector so - - -

PN3161

JUSTICE GIUDICE: Well, in any event, this is really by way of forewarning, isn't it? You don't propose that there should be any - that the ALAEA classification should be brought within the Manufacturing Award at this stage, do you?

PN3162

MR SPEERS: Well, our thinking was the we wanted to note that that was a changed thinking and in recent consultations we've had we, you know, our organisation has come to the view that perhaps that would, you know, maybe a more - maybe a better path to go down.

PN3163

JUSTICE GIUDICE: That could - - -

PN3164

MR SPEERS: So, I'm not sure in terms of time whether we've got to pick that up in stage 2 or - - -

PN3165

JUSTICE GIUDICE: Yes, well, it could be done in stage 2 or stage 3.

PN3166

MR SPEERS: Right, can be done, yes.

PN3167

JUSTICE GIUDICE: The reason I say that is because, firstly, it appears that the proposal hasn't been developed to a great extent but, secondly, would the employers in the industry be aware of this approach?

PN3168

MR SPEERS: There's been some limited consultation with them, the AIG, but only very limited, your Honour.

PN3169

JUSTICE GIUDICE: Yes. Very well.

PN3170

MR SPEERS: We've certainly raised the prospect of concerns about where it would fit. We've raised and had discussion about whether we do sort of have an aviation industry specific sector or fold into one of the broader awards and I guess our basis position is, of course, not wanting to end up missing the boat, so to speak.

PN3171

JUSTICE GIUDICE: Yes.

PN3172

MR SPEERS: Thanks, your Honour.

PN3173

JUSTICE GIUDICE: Thanks, Mr Speers.

PN3174

MR CAMERON: Your Honour, if I might very quickly, given the time, just in relation to on-hired employees we further seek clarity as to the application of this particular award. I think it's a little bit clearer here because it refers to the occupations it covers as well as within the industry. As to whether it applies to the employees of on-hired workers supplied to the industry. Of course, we oppose the casual conversion provision.

PN3175

Finally, in relation to superannuation this clause endeavours to deal with circumstances where the majority of employees are not supplied or work within the manufacturing industry whilst it endeavours to, I guess, deal with circumstances that might be applicable to on-hired employees where of course they are still a minority of the total number of employees. The difficulty with employees of on-hired employees is that from one day to the next, indeed one hour to the next, whether they are a minority or a majority may well differ, so whilst we appreciate the attempts we would prefer that, I guess, that those default provisions were removed.

PN3176

Finally, also, in terms of the clarification of the overtime calculation for casual employees, whilst having worked for the Australian Industry Group and relied in many years gone by upon a decision of Justice O'Mara I think of 1934, for the purposes of those who are new to this award, in future of course everyone will be new, but for the purpose of clarity we would ask that it is very clearly defined how overtime and shift loadings would be calculated for casual employees, especially in relation to the compounding of casual loadings. If the Commission pleases.

PN3177

JUSTICE GIUDICE: Yes, thanks, Mr Cameron.

PN3178

MR MEAD: Your Honours, there is perhaps one matter that might be able to be dealt with as it is largely independent of my broader submissions in relation to manufacturing and associated industries. It should only take two or three minutes.

PN3179

JUSTICE GIUDICE: I think in the circumstances, Mr Mead, we'll adjourn now and we'll resume at 10 o'clock on Wednesday, 5 November, in Melbourne but there will be a video link to Sydney. It won't be in this courtroom though but it will be on the hearing list, the location. Yes, we'll adjourn.

<ADJOURNED UNTIL WEDNESDAY 5 NOVEMBER 2008 [4.11PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #LHMU1 REVISED CLAUSE 4.5 PN2898
EXHIBIT #AHASA1 DOCUMENT RE TRANSITIONAL ISSUES IN SOUTH AUSTRALIA PN2898
EXHIBIT #AHAQ1 NOTES RE TRANSITIONAL PROVISIONS FOR QUEENSLAND PN2898
EXHIBIT #AMWU1 REPORT FROM THE WORKPLACE RESEARCH CENTRE PN3091