AM2008/72, Transcript of Proceedings [2009] FWATrans 583 (26 August 2009)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 20720-1

COMMISSIONER HARRISON

AM2008/72

s.576E - Award modernisation

Application by
(AM2008/72)





Melbourne

10.21AM, TUESDAY, 11 AUGUST 2009

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

PN1

THE COMMISSIONER: These are informal proceedings to some extent. It's an opportunity to speak and elaborate on your written submissions that you've made and we'll try and keep it as informal as possible I think so we make the most of the time. We might get some idea, we've got people in Sydney. We have Mr Nye, is it, and Mr Keats?

PN2

MR A NYE: Yes, Commissioner.

PN3

THE COMMISSIONER: From the union and Mr Makins.

PN4

MR D MAKINS: Yes, Commissioner.

PN5

THE COMMISSIONER: Is there any order you'd like to proceed in? Anybody got to get away sooner than the others?

PN6

MR D NELSON: If the Commission pleases, I appear for Minters, Webbs, Amalgamated Caskets and Invocare. So I've got quite a lot of people and their views are different. I'd be grateful if the Commission would allow me to go last.

PN7

THE COMMISSIONER: Thank you. Who wants to volunteer to go first?

PN8

MR D CLIFFORD: I can, Commissioner, if you like. I appear on behalf of the employer associations, those being the Queensland Funeral Directors' Association Limited, the Funeral Directors' Association of New South Wales Limited, the National Funeral Directors' Association of Australia Limited and the Australian Funeral Directors' Association Limited. Commissioner, I'll be guided by you a little bit as to how far you want me to proceed into discussing my submissions as well as other people's submissions. In terms of the elaboration of my submissions there's not a great deal other than stressing a couple of basic points.

PN9

When you have a look through the majority of the submissions put in there seems to be a couple of items that are more contentious than others.

PN10

THE COMMISSIONER: Yes.

PN11

MR CLIFFORD: I think it's fair to say they probably relate to the actual coverage of the funeral directing industry and then, if you like, the sort of nuts and bolts provisions of the various modern awards that have been submitted to date. So if it is that you simply want me to start, I will, or if there is anything in particular that you would prefer to be addressed on.

PN12

THE COMMISSIONER: I'd like to hear, during your presentation, why you think the annual leave loading should be removed.

PN13

MR CLIFFORD: Yes, and I'm happy to concede, Commissioner, that like other people, submissions in respect to that point in saying it's an item that the industry itself thought could be included as part of an increased rate, if you like, so that it's not something that ultimately needs to be an additional allowance and the purpose of doing it was for simplification and hopefully meeting what the modern award elements contain under 576A of the Workplace Relations Act. Commissioner, look, at the end of the day, the leave loading is something that's fairly generic across all the other modern awards and we acknowledge and concede that and I think it was just a matter of simplification as to why that was put.

PN14

THE COMMISSIONER: Thank you. If you'd like to give me an overview of your submission, thank you?

PN15

MR CLIFFORD: Yes. I think some of the important parts that come out of the submission lodged, if I can just categorise the employer associations as the associations, is that what you have in this submission is a large number of persons involved in the funeral directing industry who have, for several months, undertaken extension consultation with each of their members to finally come up with a draft. That consultation involved discussions between each of the associations obviously and discussions also then that flow on through the members. So there's been a particularly large part of the funeral directing industry that's been able to have input into the content of the modern award that was lodged with the submissions.

PN16

A couple of other important points to raise in relation to it, and I'm conscious of the relevant provisions under the Workplace Relations Act that still remain and those being those provisions contained in Part 10A(2) of the award modernisation provisions of the Workplace Relations Act, is that we have to create a modern award that's obviously reflective of what modern workplace practices are. It is not difficult to contend, in my view, that by consulting with the employers at the coal face, going directly to them and asking them what they want, we have been able to obtain and identify clauses and content in the modern award that are exactly that, reflective of modern award practices.

PN17

The modern award that we have submitted we contend also is easy to understand. It's uncomplicated. It seeks to focus solely on an industry and exclude a number of participants or contractors, if you like, to the industry and focus solely on what is the funeral directing industry, given that's effectively the name given to this modern award process by the Commission itself. Importantly because of the consultation process the modern award provided by the associations has had the benefit of taking input from a great cross-section, being small business, medium business and large enterprises to provide input into the content of this particular award.

PN18

Now, obviously there are going to be differences of opinion between small and large enterprises, but what we're going to achieve is to create and submit an award that is ultimately something that's reflective and palatable, if you like, for a whole range of the participants in the funeral directing industry. Finally in terms of just a general overview in relation to the modern award that's been submitted is that to a large extent it's consistent with the majority of the provisions that have been released and in various other modern awards by the Commission to date. Yes, there are obviously going to be differences and we've already identified one, and that's leave loading, that the funeral directing industry to date - sorry, Commissioner, I'm just thinking these thoughts through.

PN19

But I guess, as I was saying, there's obviously going to be differences and as I've said you've already identified one that is not consistent with the provisions in items contained in previous modern awards released by the Industrial Relations Commission, but the purpose of that, and I reiterate the first point that I made in relation to that, is that what we were trying to do is to create a modern award that was reflected of modern award practices. Commissioner, just finally and this is where I seek some guidance from you as to the further information that you would like from my point of view is I've already identified coverage and potentially the allowances being the nuts and bolts issues.

PN20

I'm happy to address one or both of those items now or wait to hear from what other people have to say before I address that.

PN21

THE COMMISSIONER: If you wish I'll give you some limited right of reply further on today.

PN22

MR CLIFFORD: Thank you, Commissioner.

PN23

THE COMMISSIONER: Mr Costa?

PN24

MR T COSTA: If it please the Commission, from the Australian Workers' Union. The AWU filed a draft proposal for the funeral industry. This proposal was sourced from the principal federal award, which is the Funeral Industry Award Victoria. In drafting this award we considered the industry standards provided in the other federal awards, in South Australia and the ACT, and we also considered the industry NAPSAs which exist throughout Australia. Our proposal contains footnotes to indicate the source of these provisions and I won't run through them here.

PN25

I'll use this opportunity to review the submissions of the other interested parties and I'll provide the following eight comments in relation to those submissions. Firstly, in relation to part time employees. The funeral associations represented by Clifford Gouldson Lawyers have proposed in their draft that part time employees shall only receive overtime entitlements when they work over 38 hours a week. This is not consistent with any of the relevant industry instruments and more appropriately and consistent with those instruments, overtime pay shall be provided when an employee is required to work outside of their fixed ordinary hours and this approach is consistent with the proposal of all other interested parties. It's also consistent with the majority of modern awards that have already been published.

PN26

Secondly, in relation to casual employees the associations have proposed a casual loading of 20 per cent. Invocare's and R H Minter's drafts do not contain any loading for casual employees. This approach is clearly inconsistent with the Commission's decision in all other modern awards which have stemmed from that decision in the Commission, during Stage 1, mandating a 25 per cent casual loading for all casual employees. Further, in regard to casual employees, the employers' proposals do not contain minimum engagement for casual employees. The AWU has proposed a four hours' minimum engagement for casual employees as all relevant federal awards have a minimum engagement for casuals.

PN27

The principal federal award and the ACT federal award contain four hours' minimum engagement, and the South Australian federal award contains two hours. The Queensland and New South Wales NAPSAs also contain four hours' minimum engagement and for this reason we say that casual employees in the bulk of the funeral industry are entitled to a minimum engagement of four hours as this is the status quo and it should be retained. Thirdly, in relation to allowances, the employers' drafts submit a number of allowances that are industry standards. They're included within the principal federal award. This exclusion could be because a number of the employers' drafts divide the industry into either casket making, and I refer to R H Minters' draft which, although having coverage for both funeral directing and casket making seems to be based solely on casket making from the look of classifications, we submit that certain allowances should be retained in the modern award as they remain relevant to the industry, and they currently exist in the principal federal award and other federal awards and NAPSAs.

PN28

These allowances include a safety clothing allowance, a residence allowance, attendance allowance, a travel/meal allowance, a vehicle allowance, an innoculations' allowance, uniforms and phone allowances. Fourthly, in regard to annual leave we note that the associations in Invocare's proposals do not contain annual leave loading and this was highlighted by yourself, Commissioner, at the beginning of these proceedings. Annual leave loading is a current industry standard. It's reflected in all the federal awards and the majority of the NAPSAs, the one exception being the New South Wales NAPSA, and for this reason we say that the status quo should be retained in the modern award.

PN29

We also oppose the cashing out of annual leave which has been proposed by Invocare in their draft. It's not currently a feature of the industry and so should not be included in the modern award. Fifthly, in relation to accident pay, RH Minter and the associations' proposals do not include accident pay. Accident pay is a feature of the principal federal award and we say it should be retained within the modern award. Sixthly, in relation to hours of work, the span of hours included in all the employers' drafts do not reflect any of the relevant existing industrial instruments. The associations' drafts contain a span of hours of 6 am till 10 pm. Invocare contains a spread of 6 am till 9 pm and RH Minter contains a spread of 5 am till 5 am.

PN30

All the federal awards contain a span of hours from 7 am till 7 pm. This is Victoria, ACT and South Australia. The spread of hours in the NAPSAs is 7 till 6in Western Australia, 7 am till 8 pm in New South Wales and 6.30 am until 6.30pm in Queensland. The AWU has sought to appropriately reflect these instruments by proposing a span of 7 am till 7 pm with the adjustment by agreement of up to one hour on either side. We think this is an adequate compromise. It reflects the industry standards and is consistent with the award modernisation request.

PN31

Seventhly, in regard to the span of days the association has proposed a span of Monday to Saturday. We say that a more appropriate span of hours should be Monday to Friday, which is consistent with the Victorian federal award and the Western Australia and New South Wales NAPSAs which represents, we would say, the bulk of the industry and therefore be retained in the modern award.

PN32

Finally, in relation to higher duties the employees have all proposed a higher duties allowance that requires higher work of more than one day for an employee to receive payment at that higher rate. We say this approach is inconsistent with the industrial instruments and we have proposed that in our draft for employees engaged in higher duties for more than two hours to be entitled to the higher rate for the full day of shift or shifts. This reflects the positions of the principal federal award in Victoria and the South Australia federal award. It is also consistent with the Western Australian NAPSA. Unless there is anything further, Commissioner, those are our submissions.

PN33

THE COMMISSIONER: Do you have a view about the proposal that the industry be regarded as a seven day a week industry?

PN34

MR COSTA: Commissioner, it's our view that the industry hasn't even been about a seven day industry and that this isn't the appropriate forum for that consideration to be taken. Our view is that the award modernisation request operates as a standardising of the relevant industrial instruments as they apply now and in order to be consistent with that we maintain that a Monday to Friday spread should operate and any other arrangements beyond that should be reserved for enterprise bargaining between the workers and the employers. It's not something to be considered at this stage and it's not something that's consistent with those instruments.

PN35

THE COMMISSIONER: Thank you for that. Yes, Ms Razon?

PN36

MS J RAZON: If it please the Commission, I appear for the LHMU. The LHMU supports the making of modern awards who cover employers and employees engaged in general industry operations. We are finalising our draft award and we have used the Funeral Industry Award South Australia 2003 as our template. This pre reform award was made by Commissioner Lewin in a contested award simplification proceedings. We expect to file a complete draft award by Friday, Commissioner. We make the following submissions in relation to the submissions by the other parties.

PN37

In relation to the AWU and the Funeral and Allied Industries Union of New South Wales we support their submission in relation to their proposed scope and hours of work. We have been liaising with both unions and reserve our position in relation to the remainder of the conditions that they have proposed. The LHMU notes that the employers are not in consensus in relation to most of the conditions in the award. I will address each employer group separately. In relation to the funeral directing industry our submissions relate to four areas. They are coverage, classifications, leave loading and allowances. In relation to coverage we note that the funeral directing industry excludes the following from the scope.

PN38

The business of solely transporting deceased persons between location which they say is more appropriately covered by the Road Transport and Distribution Modern Award. Secondly, coffin makers, who they say should be covered by the Joinery and Building Trades Modern Award 2010, and lastly, the employees who perform work predominantly associated with cemetery operations, who they say are more appropriately covered by the Cemetery Operations Industry Award.

PN39

As we stated in our initial submissions, Commissioner, we oppose the exclusion of employees said to be covered by the Road Transport and Distribution Modern Award and the Joinery and Building Trades Modern Award as these exclusions do not reflect our industry practices.

PN40

Moving onto the classification structure, we note that the proposed classification structure reflects the Queensland NAPSA and submit that the Commission should adopt the SA Federal Award classification for the reasons that the SA Award has been determined to meet properly fixed minimum rate principles of the Commission in relation to the hours of work. The LHMU submits that the span of hours proposed by the employers is too expensive and will result in the removal of current award protections.

PN41

In relation to leave loading, the LHMU opposes the Funeral Directors Industry's submissions that leave loading be removed. As your Honour pointed out the LHMU notes that the proposed minimum wages are in fact lower than the current South Australian Federal Award which also includes leave loading. The removal of such current protection would mean that employees would be worse off.

PN42

Lastly, in relation to allowances, we note that the exhumation allowance has been excluded, which we oppose, as such allowance is included in all current awards and NAPSAs.

PN43

Moving onto Invocare's submissions, in relation to coverage we oppose the exclusion of embalmers in the draft award. Commissioner Lewin in his judgment in the Funeral Industry Award (South Australia) 2003 stated in paragraph 12:

PN44

The material includes explanation of the craft in the nature of the skills and qualification of embalmers. In my view this material establishes that embalmer classification as a trade equivalent inappropriate as they are 100 per cent relatively benchmark.

PN45

The LHMU submits that the Commission take the same approach and include the embalmers in the award. The exclusion of embalmers will result in lowering the benchmark fro the funeral industry.

PN46

Secondly, in relation to hours of work, the span of hours proposed by Invocare is from 6 to 9 pm Monday to Friday. We submit that this is an ambit claim. It is too expensive and is designed to exclude the payment of overtime rates. Lastly, Invocare's proposed wages are lower than the wages contained in the South Australian and Victorian Federal Awards which will result in the detriment of employees.

PN47

I now address the submissions by R H Minters. In relation to coverage, we note that the embalmers are also excluded in R H Minters draft award and make the same submissions as previously mentioned. In relation to allowances, we note that R H Minters have omitted the following allowances, although they are included in current awards and/or NAPSAs: meal allowance, which is included in the Victorian, South Australian Federal Awards and the WA NAPSA; standby allowance, which is included in the Victorian, South Australian Federal Awards and the WA and New South Wales NAPSAs; exhumation which is included in all current awards and NAPSAs; the equal allowance which is included in the Victorian, South Australian Federal Awards and lastly, the first aid allowance which is included in the South Australian Federal Award.

PN48

If the Commission has anything further to add, those are my submissions.

PN49

THE COMMISSIONER: Thank you, Ms Razon. We seem to be going along the table, Mr Nelson.

PN50

MR NELSON: I thought it was agreed that I would go last.
\
THE COMMISSIONER: Ms Oppy.

PN51

MS C OPPY: Thank you, Commissioner. I just have a very brief submission in relation to superannuation. I'm appearing on behalf of Statewide Superannuation Pty Ltd and Asset Limited. Those parties have lodged written submissions on
24 July and they seek to rely on those submissions. Asset is seeking inclusion in this modern award on the basis that it was named in a default fund in the New South Wales NAPSA which was the Funeral Industry State Award 2005.

PN52

In respect of Statewide, it's being instructed by Alfred James and Sons Pty Ltd to seek an exemption from the requirements of the superannuation clause in this modern award in similar terms to that that was provided to Alfred James under the South Australian NAPSA. Just to give you a bit of background, Alfred James and Sons operates as a funeral director and they have provided their staff since 1968 with superannuation benefits in the form of a defined benefit fund and on this basis they're seeking exemption from the requirements of this superannuation clause and Statewide is actually the administrator of that fund so they have an interest, obviously, in this matter. I have extracted the relevant clause in the South Australia NAPSA if that's of assistance to the Commission, just to show how that exemption operated.

PN53

I don't have anything further to add. If you require any additional information, I can seek to get that to you at a later time.

PN54

THE COMMISSIONER: Thank you, Ms Oppy. In Sydney.

PN55

MR D MAKINS: Thank you, Commissioner. The Australian Federation of Employers and Industry have already made submissions in respect to this matter and they don't seek to repeat them today, other than to summarise the two main points, being the inclusion of coffin makers and assemblers within the coverage provisions of the modern award for the funeral industry and also the span of hours to reflect an industry need of Monday to Sunday.

PN56

Commissioner, if I could now briefly address a few points in respect of other submissions made in this matter. Specifically, Commissioner, in respect to the first points, I refer the Commission to the submission of Clifford Gouldson Lawyers on behalf of the various funeral directors association, specifically paragraph 10(a) and (b). Commissioner, it seeks to exclude employees engaged in the transportation of the deceased and employees engaged in the coffin making activity. Commissioner, in respect to those two paragraphs AFEI would say that the skill sets contained in respect of coffin makers is quite unique and special.

PN57

In making the submission, Commissioner, we would refer and support the submissions made by the Australian Workplace Strategies Group on behalf of the various coffin makers and specifically refer to paragraph 9 of their submissions where they in quite some good detail prescribe and outline what is involved in respect of making a coffin.

PN58

Secondly, Commissioner, we would say that the two types of employees described in paragraphs (1) and (b) of paragraph 10 have historically been regulated in the funeral Industry Award and should continue to do so. Specifically, Commissioner, we refer to the relevant coverage provisions within the New South Wales NAPSA, the Western Australian NAPSA and the principal Victorian Federal Award which all have coverage provisions pertaining and relating to coffin makers and assemblers.

PN59

We would further submit, Commissioner, that in attempting to place them in a Joinery Award which, where they have not historically been placed would potentially create some cost increases and certainly some administration difficulties in transitioning to what is quite understandably a very different sort of industrial regulation.

PN60

Commissioner, we would note and generally support Invocare submissions insofar as they relate to the requirements and needs of the industry to work over seven days. We would also note the social and operational benefits of weekend work in the industry. In addition to this, Commissioner, we would also state that there is industrial precedent for a span of hours of a Monday to Sunday within the industry and we would refer the Commissioner to the South Australian Federal Award and also the Queensland NAPSA as examples of states and jurisdictions where this arrangement of Monday to Sunday has worked very well.

PN61

Commissioner, just finally, in reply to my friend Mr Costa from the AWU who has submitted today that the submission of part time overtime provisions generally do not appear where an employee has to work up to 38 hours within the industry and specifically that submission was made in respect of the Funeral Directors Association's submission that part time need to work over 38 hours prior to overtime being paid. Commissioner, I would refer the Commission to the South Australian NAPSA, specifically clause 15.3.2 as an example of where this arrangement occurs and also in respect of the New South Wales NAPSA clause 5(viii)(c) where again a part time employee is required to work up to 38 hours prior to overtime being payable.

PN62

We would submit, Commissioner, that in light of the Award Modernisation Request that modern awards be easy to apply and promote modern flexible work practices, and given the industrial inclusion of part time up to 38 hours overtime provisions in states such as South Australia and New South Wales, we would submit that this would be an appropriate inclusion in a modern award within the funeral industry.

PN63

Commissioner, unless there are any further specific questions from the Bench, those are our submissions.

PN64

THE COMMISSIONER: Thank you, Mr Makins.

PN65

MR MAKINS: If I could seek the Commission's indulgence and ask to be excused at this stage.

PN66

THE COMMISSIONER: Certainly, thank you. Mr Keats.

PN67

MR N KEATS: Thank you, Commissioner. We'd start by dealing with matters of coverage, the matters that have been highlighted to you previously but first of all is the suggestion that casket or coffin makers should be excluded by previous people. We say that they have been historically covered by the industry and should remain in this industry. It's a very highly specialised part of work and we would generally support the submissions filed by the Australian Workplace Strategies in relation to their importance in the industry and their relationship to the industry.

PN68

In relation to the transporting of the deceased persons, we'd also join the relevant unions that they should be included in this industry. It's not a case of it's like going to pick up a package, things need to be done when you go to move a body. Usually there needs to be some preparation done, you might need to clothe or unclothe a body or certain material might need to be put together before it's moved. It's not as simple as just moving an item from A to B and there's particular skills that pertain to this industry that need to remain in the industry.

PN69

Directly related to how coverage might be decided by the Commission is the question of allowances. If casket and coffin makers are ..... in our submission, allowances dealing with tools, protective clothing and leading allowances and those found in clauses, in our draft, 14.1, 14.5 and 14.12. the other unions have already taken you to a number of the allowances that the employer bodies collectively want removed. We support the submissions of the other unions, that they need to be included. They are current provisions that provide entitlements to workers that should be retained and that this should not be seen as an exercise of putting out a wish list on behalf of one sector of the industry.

PN70

If I move then to the casual loading, the attempt by the employers to reduce it to 20 per cent or not put in any casual loading at all, should not be followed by the Commission. The Full Bench has, as a general rule, increased casual loadings to 25 per cent and that standardisation should also be brought across into this industry.

PN71

The next main area of contention is that of hours of work and as was rightly set up by Mr Costa appearing for the AWU, there's two halves of the issue. The first is the span of hours and the second is the span of days. Three of the employer groups want it to be Monday to Sunday, being the FDA, Invocare and AFEI. They rely upon only two instruments, the South Australian and the Queensland one. The vast majority of the industry works Monday to Friday and there's good reason for that. If I can refer mainly to New South Wales, the moving of bodies is not easy to do on weekend times because in public hospitals the medical staff rarely will certify a body to be moved on the weekend. Doctors rarely go to nursing homes on weekends to have bodies moved and when it comes to the actual funeral service, a lot of people of religious background don't wish to go to a funeral on the day they might otherwise be doing other church things. There doesn't seem to be a practical need driving the extension into Saturdays and Sundays.

PN72

In relation to the actual span of hours, New South Wales has the latest provision. It goes to 8 pm at night. On my instruction, though, it has never been worked and that, I think, reflects where the work gets done. If you're having a funeral service which leads to a burial, most places where the burials occur are unlit. You'll have grieving family near a hole in the ground without proper lighting, it's an Oh and S issue. A lot of cemeteries apply a rule of thumb of sunrise to sunset and we are not aware of any underlying need to be extended all the way to 10 pm at night. It doesn't reflect how the industry currently operates.

PN73

If I could then move to the provisions dealing with overtime, and I'll just do this in the sense that if we have an extended period of ordinary hours going from in the case of two of the employers, 6 am till 10 pm, then the overtime provisions are going to be watered down greatly. You'll see from our draft in New South Wales, because they're the provisions we've picked up, they're quite extensive, time and half after two hours, then double time, time and a half for the first two hours on Saturdays, then double time unless you're outside 7 am to 10 pm where it's double time for all hours. Sundays are all double time unless you're outside 7 am to
10 pm, when it's 2 and a half times ordinary hours. It's 2 and a half times on public holidays unless you're outside 7 am to 10 pm when it's triple time. all those strong benefits and rights that employees currently have will be lost if the ordinary hours are expanded out to the extent that the employers seek. We say that that's just going a bridge too far if the Commission allows the ordinary to extended that far.

PN74

Next is the question of annual leave loading. I think it's fair to say that this was an ambit claim by the employers. The majority of the industry has a 17 and a
half per cent. It should be retained in the modern award. Unless there's anything further, Commissioner, they're out submissions.

PN75

THE COMMISSIONER: Thanks very much, Mr Keats.

PN76

MS RAZON: Commissioner, apologies, my learned friend from Invocare pointed out to me that embalmers are not actually excluded in their award and we withdraw our submission in relation to that exclusion but our submission in relation to R H Minters in the exclusion in embalmers remains.

PN77

THE COMMISSIONER: Thank you. Mr Nelson.

PN78

MR NELSON: Commissioner, a number of matters that I'd like to deal with if I could primarily as a result of some of the matters that my friends have raised and the relate to the way in which the Invocare, the R H Minters, the H H Webb and Amalgamated Caskets draft awards were put together. Commissioner, I was very mindful of the dicta from the Full Bench and the draft awards that have been circulated so far and I thought it was pointless to reiterate allowances and other matters where we already know what the view of the Full Bench is. Unless we had some variation I decided, rather than waste this Commission's time which I know is very valuable, I'd leave those sorts of things out, unless we were at argument with them. I apologise if that has caused some confusion but I think it's a reasonable position to take.

PN79

If I could deal with the submissions on behalf of Minters, Webb and Amalgamated Casket Company and if I could say I'm sure that my clients are most grateful to AFEI for supporting our position, as we are most grateful to the unions who have supported our position about the inclusion of coffin and casket making in the draft award. My friend from the LHMU has indicated with some concern that what we've done is we've left embalmers out of the coffin and casket making. There are two parts in the Victorian award which this is based on, one is to do with funeral directing and one is to do with coffin and casket making. I thought it pointless, given that these particular clients, Webb, Amalgamated Caskets and Minters have no interest in being funeral directors to put an award in that covered both areas. Again, if I've caused confusion, I apologise, but it seemed to me to be an economical way to deal with the situation. It's my intention to rely upon the written submissions that have been made by my clients rather than go through a great deal of oral submissions. However, I do need to deal with some matters and there are a couple of housekeeping matters, one of which relates to amendments at page 10. There is a need to amend the Level 1 classification, but if the Commission pleases, what I'll do is forward that amendment. I wanted until such time as I appeared before this Commission to seek the Commission's approval.

PN80

The other one is to do with Schedule C Level 4 which might be of issue to my friends at the table. It should be read with qualifications, not without qualifications. With the Commission's approval I'll forward those changes. Now, my instructions are that coffin and casket making is a highly skilled occupation and certainly my friend from Mr Nye's organisation would seem to agree and I note that one of the other unions was kind enough to point out in our submissions just exactly how difficult it is to make a coffin. I bring that to the Commission's attention.

PN81

It's because it is such a highly skilled occupation and it has very close links with funeral directing that we've envisaged a classification structure which allows for a Level 5 employee. Now, this Level 5 employee, Commissioner, could be said to be at the apogee of the coffin and casket making business. This is somebody who can do absolutely everything that's associated with building coffins and caskets. In fact, Commissioner, it's a pity that we've not been able to do some on site inspections in this award modernisation process. I think you were involved in the cem and crem as well, I'm not necessarily sure you'd want to go to the cem and crems, but you might like to go and see how caskets and coffins are made and then you'd understand. I'm not making the offer to the Full Bench that we'd take them all. I don't think we could deal with all the Honourable members of that bench.

PN82

THE COMMISSIONER: I'll take it as an invitation I'll keep in mind.

PN83

MR NELSON: If you'd like to come I'm sure that all my clients would be happy to take you along. Now, other employees in this coffin and casket making area are also very highly skilled, but they're skilled in depth rather than broadly and that's what distinguishes them from employees who are employed in the timber and joining type areas, which is a suggestion that my friend made who's appearing for the associations, that they should be within that award. It's my reading of that award, if it's the appropriate award, and I'm not sure it is the appropriate award, my instructors haven't been able to find any other award that would be suitable, but that award envisages someone working in that area who has a wide scope and are able to do everything from building kitchens to making lounge suites, as it were.

PN84

Coffins and casket makers aren't like that. It's very detailed. The other matter which goes towards my submissions that this should remain within the funeral industry, there's a lot of sensitivity about the making of coffins and caskets. It shouldn’t be underestimated though and if you look at my submissions you'll understand, Commissioner, that there are lots of issues associated with way in which the deceased is dealt with. If coffins and caskets are properly made it can be quite embarrassing and there are some numbers of stories, apocryphal or not, about what's happened when the appropriate skills haven't been applied.

PN85

Further, Commissioner, if the Full Bench was minded to place coffin and casket making into this Joinery and Timber Trades and Building Trades Modern Award 2010, I'm instructed that there would be a significant increase in the cost of coffins and caskets. Now, my instructions from all my clients in this area, and they've gone into this in quite some considerable detail, is that the increase in coffins and caskets, if they were to be placed in that award, would be in the vicinity of 40 to $80 per unit. That's if my clients were able to maintain their profit margin. It would be unreasonable if they wouldn't, I would submit.

PN86

So of course that cost would have to be passed on. This is drawing a reasonably long bow, I'll admit, but there is some public interest argument as to where coffin and casket making should be placed. If placing it to the joinery award it would lead to higher costs. I actually believe there's an anomaly within that award and I've raised it with those who are responsible for the administration of award modernisation so that the matter can be raised with the President. There does seem to be a misprint, particularly in clause 24. It looks at an allowance for leading hands in the vicinity of 290 per cent which would make leading hands almost better paid than the members of the Commission. I don't ask for a comment on that. That was a cheap shot.

PN87

THE COMMISSIONER: Is this an anomaly you've detected in the draft joinery award?

PN88

MR NELSON: Yes. I haven't detected it, I must admit, but one of my instructors, one of my clients has found it.

PN89

THE COMMISSIONER: It sounds like an anomaly.

PN90

MR NELSON: Yes, and I've spoken to Mr Howe about the matter and he's going to deal with it.

PN91

THE COMMISSIONER: Yes.

PN92

MR NELSON: Now, I have to say that the Australian Federation of Employers and Industry, and I've already thanked them on behalf of my client, have indicated that coffins and casket making should remain within any modern award. The same with the Australian Workers' Union, to whom I'm grateful. The Liquor, Hospitality and the Miscellaneous Union, the Funeral and Allied Industries of New South Wales, they've also supported that coffin and casket making should stay within the modern award. In fact, I've been instructed that even the associations and my friend can say if I've got this wrong, that they're now neither supporting nor not supporting the inclusion of coffin and casket making into the Timber and Joinery Award. I don't know where they stand otherwise.

PN93

Also my - - -

PN94

THE COMMISSIONER: Mr Clifford?

PN95

MR D CLIFFORD: I can answer that very briefly, Commissioner. It is still the position of the associations that coffin and casket manufacturers fall outside the scope of the funeral directing industry and you've indicated that I have a right to respond to that at a later stage. I'll address that very briefly. The references in our submissions, particularly at paragraphs 10(a) and (b) that suggest alternative modern award coverage, it's not for us to obviously decide that so it's hardly the submission that that's where they ought to fall. It's an example that there might be other industry modern awards out there that are more applicable to that type of occupation.

PN96

THE COMMISSIONER: Thank you.

PN97

MR NELSON: I'm grateful to Mr Clifford. Also Invocare is silent on the matter of where coffin and casket making should sit and I'm sure there's good reason for that, but I have no instructions other than to say that they're silent. It's difficult to understand the association's position and, Commissioner, I've been disturbed in the award modernisation process that I've been in so far. This seems to become quite adversarial between some of those people making submissions and I don't mean this in an adversarial manner. It's just a comment. They say in the association's submissions that they are not persons engaged in businesses that are funeral directing in nature and character.

PN98

It's my submission that without coffins and casket makers it would be difficult to have funerals in the way in which we know today and without caskets and coffin makers it would be difficult for funeral directing to happen in the way in which we know it today. It's a symbiotic relationship and it's also an industrial reality that coffin and casket making should stay within the funeral industry. Now, Commissioner, I don't know how we're dealing with things that we hand up, but I do have a very important letter here from the Victorian Government. So I'd like to hand it up if I could and perhaps if I pass it to my friends at the bar table so that they can have a look at it. Would that be appropriate?

PN99

This is a letter from the Funeral Industry Ministerial Advisory Council and if you can see, it's headed up, "Voluntary Code of Practice for the Victorian Funeral Industry," and it's addressed to Ms Mandy Minter at RH Minter and that would tend to, on reading, indicate that the Victorian Government also supports my clients in suggesting that casket and coffin making is part of the Victorian funeral industry anyway, and I would submit that it would be appropriate for the Full Bench to take this letter into account when they're considering what's being done.

PN100

Commissioner, I don't know what we're doing with evidence, whether you actually regard that as evidence or if you intend to mark it. Whether it's by formally tendering it, how you'd like me to deal with it.

PN101

THE COMMISSIONER: Before I decide how to deal with it procedurally, how does this assist your argument about the rejection of - - -

PN102

MR NELSON: Minters are a coffin maker and this is a Voluntary Code of Practice for the Victorian Funeral Industry, so on that basis the funeral industry Ministerial Advisory Council which has some life of its own, as it were, but that life comes from the legislation that set it up. It should therefore be taken under some sort of notice.

PN103

THE COMMISSIONER: Perhaps the best way to deal with it would be to submit it as an addendum to your submissions which would then mean it would be up on the website for all to see and would be part of the - - -

PN104

MR NELSON: Alternatively, if you were to mark it, Commissioner, it would then form part of the transcript of this.

PN105

THE COMMISSIONER: I can mark it, it will be part of the transcript, but I think it would also gain wider coverage if you did submit it as part of the overall submission.

PN106

MR NELSON: Commissioner, if I could suggest as a compromise, I will submit it and also that we mark it.

PN107

THE COMMISSIONER: And I will mark it for the purposes of these consultations as exhibit N1.

EXHIBIT #N1 LETTER FROM VICTORIAN GOVERNMENT FUNERAL INDUSTRY MINISTERIAL ADVISORY COUNCIL ENTITLED VOLUNTARY CODE OF PRACTICE FOR THE VICTORIAN FUNERAL INDUSTRY

PN108

MR NELSON: Now, in relation to the RH Minter, H H Webb and Amalgamated Casket submissions, I've been instructed by my clients not to bring into contention any other matters that have been raised by the other parties other than those that we've raised, because my instructions from my clients are that they consider that those parties are as entitled as my client is to put their views to members of the Full Bench for consideration. My clients in this matter have great faith in the Full Bench and they know that they understand the industrial realities and they know that they'll exercise the wisdom of Solomon to provide an award which is appropriate for the funeral industry, not the funeral direction industry. If the Commission pleases, they're my submissions in relation to coffin and casket making.

PN109

If I could go on to Invocare. Invocare is the largest funeral directing business in Australia and that's detailed in the submissions. Again I've been through the business of reading the dicta from the Full Bench and I've looked at the draft modern awards and again I say that there's certain symmetry in the draft modern awards and it's not my intention to put positions or make submissions which would be at great variance with the matters where the Full Bench has already shown its intentions and that's why, as I explained in my previous submissions, that I've not gone through the business of commenting upon allowances and other matters where it's clear what the intention of the Full Bench is and that it would to have been useful in my submission to have gone down that path.

PN110

However I'm instructed to bring some matters to the attention of the Commission and also to make some comments by way of assisting the Commission which after all is our role in this award modernisation process on the draft awards that have been lodged by the various parties. My client says that it's absolutely fundamental that the funeral industry is required to provide a 24 hour a day, seven day a week service. My client says that it's essential that a modern award reflects the reality of the operational situation. The social and economic change that has occurred in Australian society in at least the last two decades has been canvassed by my client and is reflected in their submissions.

PN111

A lot has been made, particularly by my friends in Sydney, that there isn't the facility or the capacity to be able to operate seven days a week. Regardless of what happens, this award modernisation process isn't going to happen again for a long time in my view. If it does I'll be very surprised. It's taken 100 years almost to get to where we're at. There'll be variations, of course, but the underlying award, modern award should be able to stand the test of time. In the 20 years I've been acting in the funeral industry there's been a very great number of changes and I expect that those changes will accelerate and so that's why we ask the Full Bench is mindful of the possibility that this should happen on a seven day a week basis.

PN112

There's also a practical issue. My instructions are that nursing homes require funeral directors to remove bodies at all times because there aren't usually any holding facilities. So this means that the deceased have to be taken away as soon as possible. Now, my client isn't some sort of capitalist ogre, Commissioner, who is only interested in flogging the workers. Far from it. I'd draw the Commission's attentions to paragraphs 18 to 22 in my client's submissions which detail the position that work from Monday to Friday is normal and there is precedent in the Commission's decisions, and I think way back to some of the hotels and hospitality award matters of about 10 years ago where this concept was looked at, about a seven day a week operation.

PN113

Now, we say there work on Saturdays and Sundays isn't normal and if employees are required to work on those days, when they're not rostered for those days, then they should attract a penalty to compensate employees for working on those days. Much has been made about this issue of the spread of hours. It's a fact that there are employees in various businesses who work different hours because of their social needs, whether they have children or whatever, and in fact I know from experience with Le Pine here in Victoria, that there are facilities made available to employees who need to change their hours within the spread of hours to be able to meet their work/life balance commitments and I'm instructed by my client to stress that, but also that work/life balance shouldn't cost the employer and so that's something that's raised at 18 to 22.

PN114

Certainly there's nothing in our submissions that we preferred the payment of overtime in the normal circumstances that the Full Bench has envisaged in the other draft awards that we've seen. Further, my client's taken a different approach to classifications within the funeral industry. Now, this is what I would call a very modern approach. I'd probably call it a very modern approach because I helped to draft them and there'd be something wrong if I didn't, but these classifications that are in the Invocare draft award have been based on a team approach rather than a hierarchical classification approach.

PN115

The other classifications within the other submissions that have been made, draft awards that have been made, appear to be hierarchical in nature. What we say is that there are funeral director's assistants, there are funeral directors and there are embalmers and that they are all part of a team and that the only time a hierarchy would exist is when there's a requirement for supervision, and we commend that approach to the Commission. I note that the AWU in fact has quite similar classification structure within their draft award. They have a four award structure. Their second level is an employee who has body preparation skills or is an unqualified embalmer.

PN116

We would say that that can be easily accommodated into a three classification structure and I think that that's a very good point that the AWU has raised, that there are people who work within the funeral industry who do limited body preparation. Whether they should fit within the FDA classification is another matter and I think it's something that would probably rightly left to deal with in enterprise bargaining. Now, Commissioner, it's not been possible to directly relate the rates of pay that my client has proposed to the rates of pay that have been proposed by the other draft awards. That's because of this seven day a week, 24 hour a day operational structure. But it is certainly not the intention that my client's employees, who are their most valuable asset, would be in any way compromised.

PN117

Commissioner, I'd like to comment, if the Commission pleases, on some aspects of a number of the draft awards. Again, I hasten to add that these comments are in no way criticisms and that they're designed as properly our role is as advocates to assist the Commission in informing itself about the way in which this draft modern award should be dealt with.

PN118

The Funeral and Allied Industries Union in New South Wales, which I can't help referring to as Mr Nye's organisation because he has been so instrumental in the rise of that organisation, and I'm grateful to Mr Nye because what he has done within that award s he's raised the issue of residents in the funeral industry. Now, a resident is somebody who lives on the premises but if you recall, Commissioner, I said that I've seen great changes in the funeral industry in the last 20 years and one of the things that has disappeared to an extent is residents who actually live on the residence and they'd be available there to assist 24 hours a day seven days a week pretty well. I'm pretty sure that Mr Fowler who is sitting here with me, that he was a resident at one stage and lived on the premises and I think it's a feature of those people who have come through the funeral industry. Fortunately or unfortunately, I don't know, it's died out but Mr Nye's organisation is to be commended as the only organisation that has brought this to the Commission's attention and if that hadn't happened, it could have been a very regrettable omission.

PN119

This particular draft award has taken the standard rate approach for the payment of particular allowances which is based on the embalmer rate. It's submitted that the embalmer rate was the highest rate proposed in that award for an employee who is not a resident manager. Embalmers, as my friend from the LHMU pointed out in relation to Commissioner Lewin's considerations, when looking at the Funeral Industry Award, this is a employment category where there is great skill and there is also a need for qualifications. I say that it is inappropriate to use the embalmer rate as the rate for the standard rate. I suspect that I would hate to suggest that I'm putting words in the organisation's mouth, but there's a degree of ambit in using the embalmer rate. We've been accused of it - my friend from the associations and I have been accused of it and we say that perhaps in this case there is some ambit. We'll also say that the correct rate would be probably at a lower level, perhaps a conductor level, that sort of level, rather then the level where there are clearly recognised skills and qualifications.

PN120

There also seems to be an anomaly at 14.1 where the rate for exhumations at the middle level, that's after the deceased has been in the ground for a reasonable period but not a long period of time, seems to be in the vicinity of $400 and that would seem to me to be, on my instructions, too much. Probably around $100 is the appropriate level for an exhumation and I think, whilst it's an unpleasant thing, it's difficult to attempt to grade the payment that should be made for exhumations on the time that the deceased has been in the ground.

PN121

The AWU draft award, the AWU is a reasonably standard award on the whole. My clients don't have too much argument with it. The only matter that gives me some concern is this business of a minimum payment of two hours each time that the deceased is collected and this is at clause 25.4. The difficulty is, within two hours you may be able to collect three or four deceased people, depending upon their geographic location and you could end up with a situation where an employee - and there are two employees on most removal vans - would be paid for eight hours at double time rather than two hours at double time. That seems to me to be anomalous and I'm not sure if there's any ambit in that either, but if there is it's a good try. I think really, to base something on piecework which effectively that is, in the 21st century is probably difficult to stand by. However, apart from that, the AWU's draft award doesn't cause us too much concern.

PN122

The association's draft award, we've got nothing to say about the association's draft award. My instructions are that we are silent on it and that the matters that are raised by the association in the draft award, as well as all the other matters that have been raised in all the other draft awards are information for the Full Bench to consider and, as I said before, my clients have full confidence in the Full Bench's knowledge of the industrial realities of work in this industry in the 21st century.

PN123

Those are my submissions, Commissioner. Are there any questions? I must say if my friend has been given the right of reply, I think it should also apply to me and I suppose to all of those at the bar table as well. Are there any questions?

PN124

THE COMMISSIONER: No, Mr Nelson. Thank you for that.

PN125

MR NELSON: I'm grateful to the Commission.

PN126

THE COMMISSIONER: Mr Clifford.

PN127

MR CLIFFORD: Commissioner, I'm not sure that it's a right of reply because I haven't addressed the coverage provisions or the individual allowances in my opening submission in terms of the allowances raised by the other modern awards so if I could address those as well as some other matters.

PN128

Just taking up one of the last points Mr Nelson raises about the associations being accused of an ambit claim to a large extent by the members of the unions, that it's a bit of a case of the pot calling the kettle black, I would have thought. When you have a look at the allowances that have been included in both the AWU's Modern Award and the Funeral and Allied Industry Union of New South Wales Modern Award, what both submissions appear to have done is a trawl through every industrial instrument, being a pre-reform award or a notional agreement preserving state awards and decided, well, these are all the allowances that could possibly apply across the entire industry and they decided to input those allowances into their submissions and in many respects gone through and simply chosen the highest rate of each particular allowance to include in their submissions. I find it offensive, to an extent, that we're accused of putting in an ambit claim in circumstances where it's quite clear that other parties have, in my view, done that to a greater extent than if we can be accused of it.

PN129

One of the points raised, and I'm going to address the allowances now, but one of the points raised by Mr Keats when he was referring to hours of work and what have you, he mentioned that the associations have only relied on two instruments to identify that as being the span of hours that ought to be included in any particular modern award. Then Mr Keats goes on to rely solely on the New South Wales provision as being the benchmark for identifying what the span of hours ought to be. I'll come back to that point in relation to the span of hours, but it's an interesting point to raise in relation to the allowances as well because when you go through a number of the allowances, for example, inoculations, telephone call allowances, resident officer allowances, leading hand allowances, working in rain allowances and outside work allowances, you'll find in the majority of those allowances, they apply in one, sometimes two of the pre-reform awards and the notional agreements preserving state awards which, if you're looking at creating something that's modern, something that's applicable for the entire industry, it seems problematic to me that you include as part of your submission items that deal solely with one particular state or territory in Australia.

PN130

To say that those items are reflective of how the industry operates is in my view not correct. What the associations have done as part of their submissions and development of its modern award is to review all of those and identify those allowances that are consistent amongst the majority of the relevant industrial instruments and decided well, all right, they seem to be the relevant standard so that's how they were developed and that's why they are included.

PN131

The other point to make, Commissioner, is the whole point of this modern award process is to provide a fair minimum safety net and if you refer to section 576L of the Workplace Relations Act it says:

PN132

A modern award may include terms about the matters referred to in a subsection, 576J(1) or (2) or 576K only to the extent that the terms provide a fair minimum safety net.

PN133

It is contended by the associations that by identifying allowances that exist only in one particular state or territory and saying that is a fair minimum safety net then for the entire industry across Australia is not correct and what needs to - and I agree with Mr Nelson that it's obviously going to well handled by the Commission to identify and assess what are the ordinary allowances that apply across all of the industries and those are the ones that provide the fair minimum safety net, not individual items in individual states or territories.

PN134

I come back now to the span of hours and span of days submissions raised by both Mr Costa and Mr Keats as submissions, if I can summarise them and I don't think I'm incorrect in saying this as being - the funeral industry is not one that operates over a seven day a week period, is simply not correct. On a brief recollection from the three members of three of the associations sitting behind me who are representative and knowledgeable on the workings of the funeral industry from an employer's perspective, there isn't one that they can think of - one funeral directing industry employer that operates Monday to Friday and doesn't make arrangements to provide the full gamut of their services across a seven day a week period. Mr Makins and Mr Nelson have raised some other very valid points in relation to the span of hours and the span of days for the funeral directing industry and I don't choose to repeat those now, other than to say that the associations, I think it's fair to say, support those submissions that were made.

In terms of the coverage provision in the associations' modern award, I think it's important to make the point from the outset that the associations are not being antagonistic or trying to remove from the industry a type of work that does not have some relationship to the industry but there's a couple of important points to make and the main reason as to why this submission has been made is because it seems to us from a historical point of view, from a modern point of view and from a consistent point of view with the terms of the provisions of the Workplace Relations Act that that type of occupation actually falls within an industry that is not the funeral directing industry and I raise the following points in support of that, Commissioner.

PN135

Sorry, I also need to make the point before I start these submissions is, we're not seeking to detract from the importance, the skill level, the level of attention to detail that goes into creating coffins for the funeral directing industry. That is all accepted by the associations I think and it's a very valuable service that's provided to them, but what we are talking about here is a modern award process and if you have a look at the submissions provided by my friend, Mr Nelson, there are some issues raised in those submissions that (1) suggests that it's not reflective of modern award practices that cabinet and coffin makers be retained in the industry and secondly, there are concerns that are already raised in relation to coverage or there's a blurring of the lines, if you like, in relation to coverage as a result of the items raised in those submissions.

PN136

If I could take you to paragraph 6 of Mr Nelson's submissions, it states, as I recall, that the industry has progressed to the point that most funeral directors source their caskets and coffins from specialist manufacturers. It is submitted that this in itself means that coffin and casket manufacturers are primarily a service provider to the industry and not part of the industry itself. It's a tool of trade, if you like, that forms part of a craft or an item that forms part of the day-to-day management of a funeral director in the funeral directing industry. In addition, and this is where the problem I find in terms of the blurring of the lines for coverage which may cause problems in the future, and that is at paragraph 5 Mr Nelson makes the concession that some furniture makers now construct coffins and caskets. What happens to those people in those industries? You've got a situation where you've got people providing coffins and cabinets, who make that solely as part of their practice, then you have other people who are dabbling in it, so to speak. There appears to me to be a bit of a demarcation issue as to which modern award then those people fall under as part of this process.

PN137

The other point in relation to that is, if my memory serves me correctly, there's an pre-reform award called the Furnishing Industry National Award 2003. Its reference number is AP825280. Back in 2003 when that Furnishing Industry Award was made, coffin and cabinetmakers were - coffin manufacturers were effectively excluded, subject to a further order of the Commission from that particular award - or pre-reform award. On 24 March 2006 that was actually amended and it was inserted into that particular national - it was a national award at the time by Commissioner Blair, that a maker and/or polisher of coffins would be classified as a tradesperson level 1. there was obviously, if I can take my learned friend's submissions and adopt, from the LHMU, where arbitrated decisions are the best form of guidance, so to speak, it would seem to me that if it has been considered and ultimately dealt with as part of the furnishing industry and it might be that under the modern award process that's the Joinery Modern Award, I don't know, but it seems to me that there has been consideration of this issue and it's an item that actually does fall outside the scope of the Funeral Directing Industry Modern Award.

PN138

The final point to make in relation to that is, and if as part of our submissions, Commissioner, we handed up the submissions that we previously raised in relation to the cemetery and crematorium industries, and this point applies both to the coffin makers and also the people in the transport who transport coffins. There was a - and unfortunately I don't have the case with me, Commissioner. There's two cases that deal with this issue. When you look at section 576C(4), I think it is - sorry, Commissioner. I can come back and provide you with the relevant provision, but the reference in the Act as I understand it says that,

PN139

When modernising awards the Commission is to create modern awards primarily along industry lines, but may also create modern awards along occupation lines as it considers appropriate.

PN140

Now, the aim of this is obviously to promote or, as I understand it, the focus on creating modern awards primarily along industry lines. There's a decision in R v Isaac ex parte Transport Workers' Union where Gibbs CJ makes reference to and gives an example of items and contracting effectively or services provided to particular industries where he clearly creates a demarcation that those people ought not to be included in a particular industry award. The second one is Knox CJ and Gaven, Duffy, Powers, Rich and Stark JJs also made a similar conclusion.

PN141

If I can take the latter case for brevity sake and articulate what their Honours held in that case, it says:

PN142

The question whether a particular trade or business is or is not part of the coal and shale industry must in all cases be a question of fact. We hold that a steel and iron manufacturer who, for the purposes of his business, uses coal in its natural state or after it has been transformed by him into coke, is not engaged in the coal or shale industry and that his employees are not employed in or in connection with that industry.

PN143

It seems to me that that paragraph can easily be transformed over to this situation where you have cabinet and coffin manufacturing providing a particular product, which is used by funeral directors. You have people who transport deceased bodies primarily and if you look at our definition, that's the sole purpose of their occupation, is to deliver or effectively - for not wanting to sound crass - courier deceased persons between one location to another. It seems to me that to avoid any future disputation or blurring of the lines, so to speak, in respect to coverage in the future, that those two parts and obviously the cemetery operators as well, but I think that's been dealt with, those two types of occupations are better dealt with as part of other industries.

PN144

I take Mr Keats' point where he said that it's not simply a matter of when you're delivering a body from one location to another. It's not simply a matter of picking that person up and dropping them off at a further location. They actually undertake to do other duties. If that's the case then quite clearly, in my view, those people fall easily within the confines of the funeral directing industry award as it's proposed by the associations because they're not engaged solely in transporting a deceased body from one location to another. They're actually undertaking to do other work that would ordinarily be performed by either a funeral assistant or a funeral director.

PN145

In summary from that it appears to me from the relevant case law, making sure that we create a modern award that is not going to create disputation or demarcation issues in the future, that the occupations of cabinet and coffin manufacturing, the occupation of solely delivering a deceased person from one location to another and obviously cemetery operators, all of those occupations neatly fall outside this industry and neatly fit into other industries that have been identified by the Commission today.

PN146

Commissioner, just finally as a final submission in relation to this, I've been asked to reiterate the point and it's a particularly important point. It is no longer reflective of a modern funeral industry workplace that they operate solely between the span of hours between Monday to Friday. You've obviously heard submissions in relation to that. It is our view that it's primarily a 24 hour, seven day a week period for which people must be available to collect bodies or perform ordinary functions, and the obvious example of that is you don't choose the time at which you might decide to pass away. That is ultimately the crux of, I think, why it is necessary that you have a span of hours that operates Monday through to Sunday. Those are the submissions of the associations.

PN147

THE COMMISSIONER: Thank you, Mr Clifford. Yes, Ms Razon?

PN148

MS RAZON: Commissioner, if I might just reply, I'll be very brief, in relation to Mr Keats' submission in relation to the inappropriate use of the embalmers as a trade rate. I just want to clarify the LHMUs position. We note and support that Invocare is incorporating the embalmers as part of the award, but we do submit that the trade rate for embalmers should be - we rely upon Commissioner Lewin's judgment in Funeral Industry Award, where he made judgment to state that the trade qualification for embalmers should be the 100 per cent, to be a benchmark. Thank you, Commissioner.

PN149

THE COMMISSIONER: Thank you, Ms Razon. Mr Nelson?

PN150

MR NELSON: Your Honour, I was wondering if now might be a convenient time to seek a 10 minute adjournment. I'm in a position where I do need to take some instructions in relation to what Mr Clifford's had to say.

PN151

THE COMMISSIONER: Yes. I'll adjourn until midday, thank you.

<SHORT ADJOURNMENT [11.50AM]
<RESUMED [12.07PM]

PN152

MS OPPY: If the Commission pleases, I wonder if I might seek your indulgence to be excused from these proceedings?

PN153

THE COMMISSIONER: Yes, thank you.

PN154

MS OPPY: Thank you, Commissioner.

PN155

MR CLIFFORD: Sorry, Commissioner, I've just received some further instructions. If I could just make a very quick point. One of my clients, the Australian Funeral Directors Association Limited, would like to withdraw from its support in relation to the submissions relating to the exclusion of coffin manufacturers and transport workers, if you like, from the submissions I previously made.

PN156

THE COMMISSIONER: Mr Nelson?

PN157

MR NELSON: Commissioner, just for an abundance of caution, is my friend saying that the AFDA no longer supports the exclusion, did he say exclusion of coffin makers from the draft award?

PN158

MR CLIFFORD: That's right.

PN159

MR NELSON: I'm grateful, Commissioner. Commissioner, I have very short submissions to make and they relate to my friend Mr Clifford's position about paragraphs 5 and 6 in the RH Minter, H H Webb and ACC submissions. My instructions are, and we say that there's no conflict between the concept of the making of caskets and coffins sitting in two different occupational groups, as it were. I've not had the benefit of looking at section 576 that my friend's referred to. However, my understanding is that the remit that the Commission has, which is covered by that legislation, doesn't exclude having occupations within a particular industry which are necessarily covered by another award.

PN160

There are going to be enough demarcation issues as there are under the Fair Work Act. I mean, the Fair Work Act will probably take us back 20 years in terms of demarcations and I'm eternally grateful to the drafters for doing that. I'm sure it will be good for business. However, I don't see how in that environment there can be an objection, a substantive objection to say that you must be in one industry and that industry must cover you and that because you're in this occupation within a broader industry it can't be covered by another award. That would seem to me to be a recipe for industrial relations anarchy particularly as we are going into this new world of modern awards. I don't think there's any prohibition.

PN161

I just ask that the Commission take that on notice, and in relation to the coal and shale case which my friend has referred to, I'm not sure that it is anything other than at best an indicator that the Full Bench should take some notice of. It certainly isn't determinative. I say the case isn't necessarily on point, but the position that the Full Bench should take, is it's one of a myriad of decisions by the various courts that the Commission has to take into account in the making of those modern awards. They're the end of my submissions. I'm very grateful to the Commission for the assistance that you've given to us today. If the Commission pleases, thank you.

PN162

THE COMMISSIONER: The Commission is grateful for the input today. Unless there's some further - Mr Costa?

PN163

MR COSTA: Yes, Commissioner. I'd like to make just three brief points. They're not points of reply but to assist the Commission in relation to the submissions of AFEI regarding some facts. Firstly in relation to part time employees and the receipt of overtime, the AFEI suggested that the New South Wales NAPSA had specific part time provisions that instituted overtime payment after 38 hours of work during the week. It's our reading of the New South Wales NAPSA that there isn't provision specific to part time employees and that the NAPSA only provides for full time and casual employees. We also note in relation to the South Australian Federal Award that the AFEI suggested similarly that part time employees must be engaged for over 38 hours a week before receiving overtime payments.

PN164

Now, if I can take you, Commissioner, to clause 15.3.2 of the South Australian Federal Award, it states:

PN165

All work outside ordinary hours specified in clause 21, Hours of Work, shall be regarded as overtime and paid for as such in accordance with the provisions of clause 23, Overtime.

PN166

Clause 15.3.6 clarifies this and states:

PN167

The provisions of this award relating to overtime and penalty rates shall apply to part time employees.

PN168

Now, we say that this means that part time employees who work outside of their ordinary rostered hours will receive overtime payments, regardless of whether they work under or over 38 hours for that week.

PN169

Secondly, in relation to the spread of hours of work, the AFEI suggested that the South Australian Federal Award provides for a Monday to Sunday spread. Now, I can understand the AFEIs confusion and if I can take you to clause 22 of the South Australian Federal Award, it does at clause 22.2.1 state:

PN170

The ordinary hours of work prescribed herein shall be worked on any five consecutive days of the week from Monday to Sunday inclusive.

PN171

However this clause is subject to the clause 22.1, which states:

PN172

Subject to clause 23, implementation of the 38 hour week and subject to the exceptions hereinafter provided, the ordinary hours of work of full time employees shall be an average of 38 per week to be worked on one of the following bases.

PN173

Now, if we go to clause 23 and we look at clause 23.2.1(a), it states that:

PN174

By working a 19 day four week cycle of eight hours per day with .4 of one hour for each day worked accruing as entitlement to take a rostered day off between Monday to Friday in each four week cycle.

PN175

So we say that the spread is in actual Monday to Friday because of the implementation of the 38 hour week, and so we would say that the South Australian Federal Award actually does provide from Monday to Friday spread. We also note the submissions of the employers and the funeral associations which state that:

PN176

In order to modernise this award we should consider the social and economic changes in circumstances and take that into consideration for implementing the spread of Monday to Sunday.

PN177

Now, we'd say that a minimum standard was considered in the creation of the principal federal award in 2007 and in the creation of the ACT Federal Award in 2008, both of which contain a Monday to Friday spread of days. These awards at that time considered the minimum standards to be Monday to Friday and that there shouldn’t be a revision within what is in reality one year or two years of that spread of days. We would say that if the minimum standard in 2007 and the minimum standard in 2008 considered by the AIC was Monday to Friday, then with respect it should also be considered Monday to Friday for the purpose of these proceedings.

PN178

Thirdly, just in relation to allowances, and the submissions of the funeral associations, we understand that the association claims that we've relied merely on cherry picking for our allowances, that's not entirely the case. We're relying on the principal federal award, which was considered by the Commission, and I again say in 2007 and which provided for a comprehensive list of allowances that are relevant to the industry and represent that minimum standard. So we would say that for the purpose of these proceedings, the principal federal award should be considered the standard, should remain the standard and the status quo should be preserved. Unless there's anything further, those are our submissions.

PN179

THE COMMISSIONER: Thank you.

PN180

MR NELSON: Commissioner, I'm sorry to have another bite of the cherry, if you'd indulge me?

PN181

THE COMMISSIONER: Yes.

PN182

MR NELSON: What Mr Costa says is true, that in fact there are a recent precedent in the way in which awards have been structured. However, the way that this Commission operates, as you well know, is that they take submissions, Commissioner, and we don't know in those decisions that he's referred to that resulted in the making of awards whether or not this issue of social and economic change have been canvassed and whether or not that was brought to the Commission's attention or whether the Commission informed itself upon that situation. The only way we would know that is by reading the decisions that accompanied those awards or by going through the transcript.

PN183

So I think it draws a long bow to say that because it happened in 2007 and 2008 that it was necessarily something that should again be taken as gospel for the Commission's position because after all that's what an award is, it's the Commission's position relayed through its decision as to what a situation should be. I say that with an abundance of caution, only to inform the Commission. If the Commission pleases.

PN184

THE COMMISSIONER: Thanks, Mr Nelson. Anything further from New South Wales, Mr Keats?

PN185

MR KEATS: Nothing further from me, Commissioner.

PN186

THE COMMISSIONER: Thank you very much. Thank you for your input this morning from both north and south. I look forward to your forward input following the release of the exposure draft and I just make the observation that if the parties are included to have some discussions amongst themselves, I think that would be most productive also. Thank you. These proceedings stand adjourned.

<ADJOURNED INDEFINITELY [12.18PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #N1 LETTER FROM VICTORIAN GOVERNMENT FUNERAL INDUSTRY MINISTERIAL ADVISORY COUNCIL ENTITLED VOLUNTARY CODE OF PRACTICE FOR THE VICTORIAN FUNERAL INDUSTRY PN107