AM2010/81, Transcript of Proceedings [2010] FWATrans 1236 (3 August 2010)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 26937-1

VICE PRESIDENT WATSON

AM2010/81

s.158 - Application to vary or revoke a modern award

Application by YMCA, Aquatics Down Under, Qualified limited, Royal Life Saving Society - Queensland
(AM2010/81)
Fitness Industry Award 2010

(ODN AM2008/78)
[MA000094 Print PR991059]]




Melbourne

11.40AM, TUESDAY, 20 JULY 2010

PN1

THE VICE PRESIDENT: Are there any changes in appearances?

PN2

MR R. GAGE: Mr Taylor is not present, it's just myself, Mr Gage, at this end.

PN3

THE VICE PRESIDENT: Yes, Mr Gage. Mr Diserio?

PN4

MR M. DISERIO: Thank you, your Honour. Your Honour will recall that we were before you earlier in the year and we adjourned in order to have some discussions. Your Honour will also be aware, from the email that was sent to your associate on 7 July, that, since the hearing on 21 June, there have been discussions between representatives for the applicants and representatives for Swim Australia and the Australian Swimming Coaches and Teachers Association. Following those discussions and a number of communications between respective representatives in relation to a draft, a draft determination was finally agreed to between the applicants and Swim Australia and the Australian Swimming Coaches and Teachers Association, and that was attached to the email to your associate on 7 July. Do I need to, perhaps, formally tender - - -

PN5

THE VICE PRESIDENT: No, it's on the file. I don't think you need to do anything further.

PN6

MR DISERIO: I notice it was also uploaded on the - - -

PN7

THE VICE PRESIDENT: Yes.

PN8

MR DISERIO: - - - website, so it's certainly been publicly available - - -

PN9

THE VICE PRESIDENT: (indistinct) available in that sense, formally before me.

PN10

MR DISERIO: Now, in relation to the draft determination, your Honour, if I could just briefly indicate to you: The compromised position that was reached doesn't involve referring to any organisational names, but to descriptions of competencies. The competencies referred to in the determination are those published by the National Training Information Service, or NTIS, and that is a database which is administered by the Federal Department of Education, Employment and Workplace Relations. So the references to the various competencies are references to the NTIS database.

PN11

The draft order also includes a new paragraph, and that's paragraph 4, which is self-explanatory, your Honour, but I indicate, in respect of paragraph 4, that I believe that the paragraph is incidental in terms of section 142 of the Fair Work Act and it's essential for the purpose of making the other terms operate in a practical way, and we say, of course, it's supporting permitted or required terms being those relating to skill-based classifications and career structures, in accordance with section 139 of the Fair Work Act. So I submit that the additional paragraph - there's no impediment, at least in terms of the Fair Work Act, we would suggest, in relation to the provisions. I think, unless your Honour has any further and specific questions - - -

PN12

THE VICE PRESIDENT: What's the legislative basis of the application as amended - - -

PN13

MR DISERIO: Sorry, yes. The legislative basis for it is set out in the application, itself, and I was (indistinct) for not taking your Honour to that. That is, essentially - there are two bases for the application: The first is section 157, in that it satisfies making a change to a modern award outside of the four-yearly review period, if it's necessary to achieve the modern award's objective, and I'll come back to that. The second basis is that, in the alternative, it's to remove an ambiguity or uncertainty, or to correct an error, and the basis of that submission is that, due to the specification of the existing qualification referring to a body, Swim Australia, or equivalent, that does lead to an ambiguity or uncertainty in respect of relevant people operating under the award to know what the appropriate classification is in relation to the classification structure and, of course, leading to, what is the appropriate minimum wage to be paid?

PN14

Your Honour, in terms of the other ground, we would say, in accordance with the modern award objective in providing a fair and relevant safety net in accordance with section 134, is the basis in respect of the variation to the award. I suppose, too, the history in which the - it's not relied on in - as much as it - you might recall, your Honour, there was an earlier application that was made to Fair Work Australia, which I've referred to on the last occasion. On my instructions, we sought to withdraw that application and replace it with the application that was made by employers who operated under the Fitness Industry Award. But in that earlier application, there was some material, provided by Mr Mallett from AUSTSWIM, to why the relevant organisations and employers hadn't become involved prior to the making of the modern award, and there was a number of paragraphs set out in that earlier application as to the reasons why their involvement, at that stage, wasn't concentrated on the Fitness Industry Award.

PN15

However, I only refer to that by way of background to the fact that, in the making of the modern award - of course, the Fitness Industry Award - referred to the phrase, "By way of illustration, Swim Australia Teacher or equivalent", et cetera. Your Honour will recall, from both the terms of the application and what was said on the earlier occasion, that that was grounds for uncertainty, and other grounds for complaint within the industry in relation to the way in which qualifications were set out in the modern award. Now, the effect of the agreed determination is to set out, precisely, within the award, the relevant competencies.

PN16

It may well, your Honour, assist in the consideration of the application if I hand up to your Honour copies of the NTIS competencies, which are referred to in the application and, now, in the draft determination.

PN17

THE VICE PRESIDENT: There's a large number of these documents.

PN18

MR DISERIO: Yes, well each - in order to assist your Honour, you'll see that the six documents that have been handed up - each document relates to the six competencies that are set out in the draft determination. So the first one, for example, is SRCAQU003V, and that's, "Respond to an aquatic emergency using basic water rescue techniques." That refers to the first of the - - -

PN19

THE VICE PRESIDENT: Yes, and I see the remainder - - -

PN20

MR DISERIO: Yes.

PN21

THE VICE PRESIDENT: - - - represent the relevant competency documents in relation to each of those - - -

PN22

MR DISERIO: The effect of the changes to the award - which have been agreed to by the applicants and, of course, the two parties that turned up to oppose the original application - is that those parties have each agreed that those are the appropriate competencies to form the basis of the classification in clause B2.1(viii) and then, of course, that forms the basis of the next ones that are referred to, because each of the succeeding paragraphs that are sought to be replaced then refer to a next level, with the competencies detailed in that same clause, and then who has the additional experience or competencies that are set out.

PN23

So that's how it's intended by the applicants and the other parties who we've had discussions with and that's how the competency should operate within the classification structure set out in clause B2.2. As I indicated, your Honour, that sets out the basis of clauses 1, 2 and 3 of the draft determination, and it was suggested, I understand, by, if I can call them, "the objectors", that the award ought to be amended by including paragraph 4 which sets out a link between those three and a requirement for requisite child protection checks and a provision requiring the employee who has the qualification suspended or refused, advising the employer of that loss, refusal or suspension, and my clients, the applicants, thought that that was quite an evidently sensible provision, which is why they've agreed to it and, as I indicated at the outset, your Honour, I believe that that provision is permitted by the Fair Work Act as it's an incidental provision. We say incidental to the other three, and those are the submissions in support - - -

PN24

THE VICE PRESIDENT: What operative date do you seek?

PN25

MR DISERIO: In terms of - it certainly would be - even from today's date or a prospective date. Certainly not seeking a retrospective date, for a variety of reasons, but I think that a prospective date would certainly not cause any confusion or difficulty in terms of the operation of the award. If there was any residual concern that your Honour might have, if your Honour just permits me - if it was even more convenient to people using the Fitness Industry Award, I'm instructed to say that we could have maybe a prospective date like 1 August or a date even - not wanting to push that too much but, certainly, to allow there to be enough time for people to become aware of the fact that the award has been changed.

PN26

I should indicate, your Honour, that, clearly, in terms of the applications that were made earlier, the organisations, that were required to be provided with copies of all the applications, were. I am aware, as your Honour is, that I think, on the last occasion, there was a submission that had been made by another group in South Australia. It seems to me that the web site and the Fair Work notifications to persons that are registered, clearly, do work, and I wouldn't think there would be any practical difficulty in any changes made to the Fitness Industry Award being disseminated through the electronic media, as has been done to date. So I would, certainly, not expect that there would be any, if any, employers who wouldn't be aware of the changes to the Fitness Industry Award through the normal channels. So if there was a reasonably prospective date, we would have no objection to that.

PN27

THE VICE PRESIDENT: Yes, thank you. Mr Mallett?

PN28

MR DISERIO: Mr Mallett isn't here.

PN29

THE VICE PRESIDENT: It's not a separate appearance. Mr Gage?

PN30

MR GAGE: Well, we would concur with everything that's been put forward there and, in terms of the date as well, 1 August would work fine, or anything from today's date onwards. I know we have mechanisms to inform our members, virtually straight away, what the changes will be and Mr Mallett, likewise, but we'd have those mechanisms too, to inform the industry directly, in addition to what would go up on the Fair Work Australia web site.

PN31

THE VICE PRESIDENT: Yes, thank you. I'm satisfied that, in relation to the classifications in this award, there is an uncertainty and ambiguity, and that the agreed variations are appropriate to remove that ambiguity or uncertainty. It's unnecessary, in those circumstances, that I consider the alternative basis for varying the award and whether the variation is necessary to achieve the modern award's objective. I will make a determination in terms of the agreed draft determination provided to the tribunal, and I will make that determination with an operative date of the first full pay period on, or after, 1 August 2010. These proceedings are now adjourned.

<ADJOURNED INDEFINITELY [12.00PM]