AM2010/98, Transcript of Proceedings [2010] FWATrans 1379 (2 September 2010)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 27343-1

COMMISSIONER HARRISON

AM2010/98

s.160 - Application to vary a modern award to remove ambiguity or uncertainty or correct error

Application by Silverback Properties Pty Ltd & Muscillo Holdings Pty Ltd
(AM2010/98)
Amusement, Events and Recreation Award 2010

(ODN AM2008/35)
[MA000080 Print PR988940]]




Brisbane

10.05AM, TUESDAY, 10 AUGUST 2010

PN1

THE COMMISSIONER: Thank you. Can I have the appearances, please?

PN2

MR HERBERT: Yes, good morning, Commissioner. My name is Herbert, initial A, counsel. I seek leave to appear on behalf of the applicants of these proceedings. I'm instructed by McColm Matsinger solicitors.

PN3

THE COMMISSIONER: Thank you, Mr Herbert.

PN4

MR HERBERT: Thank you. I don't think there's any objection.

PN5

THE COMMISSIONER: No, permission is granted.

PN6

MR HERBERT: Thank you, Commissioner. We've taken the liberty to lodge, with the application, a substantial written submission detailing the nature of the changes that are sought. Could I just very quickly address the question of power and the jurisdiction of the tribunal. Section 157 empowers Fair Work Australia to vary modern awards if necessary to achieve the modern award's objective and that power is granted if Fair Work Australia is satisfied the making of the determination or modern award, outside the system of four-yearly reviews of modern awards, is necessary to achieve the modern award's objective.

PN7

Those objectives, principally, are set out in section 134. Section 134(1)(g) appears to be apt. That is, one of the objectives is the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards, and that objective is the objective that underpins the making of this application, because it does appear that there is some difficulty in interpretation in relation to the way that the web of modern awards was made in respect of a facility such as that conducted by Silverback Properties, which is one of the applicants.

PN8

Silverback Properties, as the submission discloses, conducts the zoo operations in the sense of the feeding, caring and displaying of the 1200 animals and all the associated circumstances that surround that. The first difficulty that's encountered is that Australia Zoo, as it is known nationally and internationally, is not a facility which appears to be readily covered by the application or the coverage clause of the Amusement, Events and Recreation Award 2010. It does appear, inferentially, from the other facilities which are set out in the coverage clause - do you have a copy of the award, Commissioner?

PN9

THE COMMISSIONER: Yes, I do.

PN10

MR HERBERT: It does appear, inferentially, from clause 4 that it is intended to cover facilities of a like kind, but it was - in the course of looking at this matter, the applicants determined, amongst other things, it's not at all clear that a zoo is covered and, given that the coverage clause intends, or does, go to a fair bit of detail about a range of other specifically designated facilities, the leaving out of the word "zoo" might be, down the track, considered significant in some way and, therefore, it was apprehended that it would be a very simple, easy thing to put the word "zoos" in clause 4.2(a)(vi) in association with animal parks and aquariums, and I hasten to say that, in the industry in which my client operates, an animal park and a zoo are not necessarily the same thing.

PN11

An animal park is generally considered to be something like the Western Plains facility at Dubbo where there are wide open spaces and animals allowed to roam free and they lock the people up, as opposed to a zoo which tends to work a bit the other way where the people walk around freely and the animals are in enclosures, and it may be a fine technical point but it wouldn't be as technical as some of the arguments we've seen in this jurisdiction over the years to deal with questions of coverage, and the simple submission is: it is such an easy, simple thing to do to put the word in there and it will avoid any possibility of arguments down the track, that we ask that the tribunal dispose of any future arguments in that regard by putting the word "zoos" in there.

PN12

The genesis of the award seems to have had something to do with why the word "zoos" was not included, because it does appear that none of the awards or NAPSAs, to which regard was had, actually refer to zoos as a facility. That is, none of the NAPSAs to which regard was had in the making of this award. The NAPSA which did previously cover my client's operations in south-east Queensland was the - it was called the Tourism Industry Zoological Gardens Award South-Eastern Division 2004. Does your Honour have a copy of that?

PN13

THE COMMISSIONER: I do, yes. No, I don't have a copy of that.

PN14

MR HERBERT: Could I just hand that up for the purpose of illustration. That state award was specifically tailored for the purposes of what we'll call "Zoological gardens". It appears that, in the way the modern award process is undertaken, that firstly, the words "tourism" were fastened onto as - and that that NAPSA, on our research, popped up in the making of the Tourism Marine Charters Award which, of course, it has really nothing to do with, and there was - it popped up in the research but apparently it wasn't a burden to - in any way because it doesn't really have anything much to do with marine charters.

PN15

Secondly, however, the word "gardens" seemed to have caused that NAPSA to be dispensed to stage 4 and it was put in with the awards to - which were considered and the NAPSAs that were considered in the making of the garden services awards. But again, it really doesn't have much to do with gardening and landscaping and things of that kind either. It was the state award which regulated facilities such as Australia Zoo and there are a couple of other privately owned zoos in south-east Queensland that it regulated and it was tailored to that, but it seems to have been lost in the wash. It was pushed from pillar to post in the modernisation process and that theme park-type awards and things of that kind were apparently picked up and utilised, and we've added, as an attachment to the submission, a list of the awards and that that we use.

PN16

That historically seems to explain why the word "zoos" doesn't appear anywhere in the coverage clause because it was otherwise a fairly comprehensive attempt to gather together all the type of facilities which might be regulated in the awards and the NAPSAs, to which regard was had. But, as I say, the zoological gardens award didn't seem to score a mention when it came to the making of this award. So the first submission that's made in relation to this application is to avoid any possible argument about whether a zoo is an animal park or a leisure and recreation facility or centre or anything else, and to put the word "zoos" in.

PN17

The second big issue in relation to the question of coverage is the question of the extension of the coverage of the award so as to - and we do this by way of the change of the definition under clause 4.2 by including a reference to operations of the kind conducted by Muscillo Holdings. Muscillo Holdings, as the submission indicates, is confined in its business operations. It's a related corporation to Silverback but Silverback operates the zoo. Muscillo Holdings operates all of the food and catering and operations of that kind and the retailing operations within the zoo and merchandising and things of that nature.

PN18

Whilst it doesn't operate a zoo as such, in the sense that Muscillo doesn't look after any of the animals, its business is confined, in that sense, to the provision of material support to and facilities which are comprehensively devoted to the overall experience of visiting Australia Zoo, without which it would just be a lot animals in enclosures. The question then - and we deal with this in paragraph 29 in this submission on page 6:

PN19

All of the activities carried on by either Silverback Properties or Muscillo Holdings are directly integrated within the overall experience of visiting Australia Zoo and/or a part of its overall nature conservation role and purpose as such, principally for the avoidance of future doubt. Reference to such activities should be expressly referred to as being activities included within the definition of amusement, events and recreation industry.

PN20

Further, in paragraph 32:

PN21

Muscillo is confined in its business activities to the provision of food and beverages and merchandising within the Australia Zoo complex. It does not operate a zoo in the sense of being an operator or employer in respect of the housing welfare of animals -

PN22

as it presently appears to be required by clause 4.1 of the award -

PN23

but it does conduct a range of other essential and related facilities within the primary zoo venue which is operated by Silverback.

PN24

The separate submission that is made is that the definition, to avoid any doubt, should be extended to make reference to activities of that kind being conducted within, as it were, the business of a zoo, in case it be thought that a business which is conducted within the overall zoo business is not, itself, within the industry, and that's really the simple proposition that we put, and the submission we make commences on paragraph 28. I've read a couple of passages from that, and the new clause, subclause 4.2(d), is set out in bold in the draft that we've provided. The new clause that we seek is set out in paragraph 3A subclause (b) of the application and it involves the inclusion of the new subclause 4.2(d):

PN25

For the purposes of this clause, the amusement, events and recreation industry also includes the provision of services within the primary venue such as photographic services, the sale of food and beverages and merchandising.

PN26

Now, that's the first part of it and that's the Muscillo Holdings situation. That's what it does within the zoo, and it does appear that there was an intention on the part of the full bench, in making this award, to, as it were, put a rope around and an umbrella over the operations of the facilities which are named in clause 4.2, as the concluding words of clause 4.1 are, "To the exclusion of any other modern award", so that the industry is intended - the award is intended to cover employers throughout Australia in the industry, and their employees, to the exclusion of any other modern award.

PN27

Again, that's consistent with the objective to which I referred earlier in subparagraph (g), namely to prevent the overlapping of awards. One could easily imagine, in circumstances of a polyglot facility such as a zoo which was retailing and merchandising and fast-food and animals and animal care and all the other - transport of tourists and things of that kind, even in the modern era, one could imagine - on the counting we've done there would be six or eight, arguably, modern awards that would apply to the facility. The clear intention of the full bench, in making this award, was to throw a fence around the facility, and everything in it is to be covered by that award.

PN28

The question as to whether a separate employer within that fence is also part of that industry is a matter that - it was apprehended with quite some clarification. That's the Muscillo Holdings case and that is contemplated in those first four lines of the new clause to which I've referred. That is the new clause 4.2(d). The second part of clause 4.2(d) is to deal with a slightly different issue and that is, as is mentioned in the submissions, that Silverback, in the course of conducting the zoo, is required to, and does, engage in a whole range of activities away from the primary site. It engages in all sorts of catching, specimen collecting, research and things of that nature, which are technically not part of the operation of the zoo in many respects.

PN29

They contribute to the sum total of what it does - of the human knowledge in relation to these matters. They do extraordinarily valuable and well-regarded research in relation to those matters. That work is, by and large, done by zoo staff. That work is done by persons whose primary employment is with zoo but the work, itself, is not necessarily a facility which - or, the work, itself, is not necessarily work that might be described as being technically part of the operations of the zoo. The reference to that is in paragraph 28. In the second sentence in paragraph 28:

PN30

It is a world-renowned leader in wildlife research and animal welfare and conservation. Zoo staff are also regularly engaged in research, nature conservation and collection of display animals away from the zoo itself.

PN31

So the second part of the proposed new definition, clause 4.2(d), is intended to deal with those issues. That is, activities undertaken by an employer covered by this award which are ancillary to the conduct of the primary venue, such as road or water transport at, to or from, or away from the primary venue; site-seeing tours; travel arrangements; and wildlife research, conservation and collection conducted away from the primary venue. Now, I've dealt with the question of research, conservation and collection. The zoo operates research vessels which - and the details of what they do are set out in the submission. It also conducts a fleet of eight buses.

PN32

The zoo - Commissioner, I'm not sure if you're familiar with where it is? I was going to say we could arrange a couple of passes but that would be the wrong thing to say. Commissioner, it's about 80 kilometres north of Brisbane off the major Pacific Highway, to the west of the Pacific Highway by a few kilometres. It is, in that sense, about 20 or 30 kilometres inland from the Sunshine Coastal strip. As befits the nature of what it is, it's a little bit away from the tightly populated coastal strip. As such, in order to get the vast bulk of people to the zoo, bus transport is provided, generally from the Brisbane tourist traffic and the airport and from Sunshine Coast through to the facility, because it's generally somewhere between an 80 or a 30 kilometre journey, depending on where you're coming from.

PN33

For that purpose, the zoo conducts a fleet of eight buses which are based at the zoo but which travel either down to Brisbane, or to the Sunshine Coast, or to other locations to pick people up and bring them back. They're all very spectacularly liveried and they have a group of about six persons who are, more or less, full-time engaged in driving those buses and another - other zoo staff who are appropriately licensed who can step up into that role. That is the primary basis for the reference to the road or water transport at, to, from or away from the primary venue. That's the road transport.

PN34

The water transport aspect is referred to in the submission and that is that they conduct whale watching and other marine research operations in a couple of vessels, which are very substantial vessels that are operated primarily out of the Sunshine Coast. Whale watching and various kinds of marine research are generally very seasonal in their nature. I think we're in the peak of the whale watching season as we speak but it's from, from memory, about April through to about September, October each year. Staff are taken on regular rotation from the zoo, itself, to - as hosts and hostesses and tourist guides and advisers, and there are some marine science experts also, who help out with educating the tourists on the whale watching vessels.

PN35

Their primary employment, again, is within the zoo. They do, during the whale watching season, quite often spend substantial periods of time on a vessel, the largest of which is based at Mooloolaba on the Sunshine Coast, which goes out on whale watching tours. It's based some 30 or 40 kilometres away from the zoo, itself. That is, the vessel is. The staff would work on that vessel, going out to sea and coming back to Mooloolaba; may or may not turn up at the zoo premises on any particular day, depending on their work roster, but are regularly rotated on that vessel and back to the zoo. When the whale watching season is over they return to their full-time position within the zoo itself.

PN36

One could easily apprehend an argument being mounted at some point that persons who, for months of a year, turn up at a vessel on the Sunshine Coast 40 kilometres away from the primary zoo, go out to sea with the tourists and come back again, may be not necessarily part of the zoo operations, itself, even though they're employed by Silverback Properties and that's the way that the operation is conducted. In order to avoid any doubt about that and to avoid the possibility of multiplicity of award coverage in relation to those operations, the proposed clause 4.2(d) includes reference to water transport at, to or from, or away from the primary venue; site-seeing tours; travel arrangements; and wildlife research, conservation and collection conducted away from the primary venue.

PN37

Some of the collectors, for example, and the research and conservation people travel around Australia and around the world to do their work. We would seek that all of those matters be included within the coverage clause of the award so that there can be no doubt that those persons are - or their employers - remains engaged in the industry in respect of those employees or that this award covers those employees because they remain within the industry, despite the fact they may not be turning up at the zoo every day of the week.

PN38

The limiting factor on that coverage is that it is intended to cover activities undertaken by an employer covered by this award which are ancillary to the conduct of the primary venue, so that, in order to be the beneficiary of the coverage of the award in relation to activities conducted away from the zoo, the employer in question would need to be covered by the award in the first place. That is, they would need to be engaged within the industry in a substantive sense and it would need to be that the activities concerned would need to be ancillary to the conduct of a primary venue. If the employer isn't conducting a primary venue then this additional coverage will not apply to them.

PN39

So if someone was up in the Gulf of Carpentaria running around with a frog-catching boat and that's all they did, this award would not apply to them because they don't conduct a primary venue. That activity would not be ancillary to the conduct of a primary venue, it would be their only business. So it's self-limiting in that way and it's not intended to run the rope out around anything other than employers who conduct businesses of this kind. I should have mentioned one matter in relation to the question of power: that section 158 of the act - and we've referred to this in the written submissions - indicates who may make applications and in what circumstances.

PN40

We've made the submission that, if Muscillo Holdings is not currently covered by the award because it doesn't actually conduct a zoo or any of those other facilities - it conducts food and merchandising operations - then the application in relation to Muscillo would fit within item 3 of section 158(1). That is:

PN41

An application to vary or include coverage terms of a modern award to increase the range of employers, employees or organisations covered by the award.

PN42

Muscillo Holdings is entitled to make that application because of subclause (a) of item 3. That is:

PN43

The application may be made by an employer that would become covered by the modern award.

PN44

That's certainly what Muscillo is. Muscillo is an employer who wishes to become covered by the award. It is seeking an extension of the coverage clause so that it would be covered. Once it is covered, it is able to join in, as it were, with Silverback in the primary application for variation of terms, and that is item 1. I omitted to mention that earlier, Commissioner: that is the complete basis upon which Muscillo and Silverback are able to bring these applications in the way that they do. So to recap, Commissioner, the new clause 4.2(d) is sought for the purposes of ensuring that a wide range in facilities such as Australia Zoo - with everything it does both on premises and away from the premises, with the use of zoo staff, and the away premises activities - are conducted as ancillary activities to the primary venue.

PN45

The objective of that subclause is to ensure that the rope that the full bench originally ran around these kinds of facilities, by the terms of clause 4.1, runs a little wider and it definitely incorporates, within the coverage of the award, all of the matters that one might find generally being conducted in a facility of this kind. The alternative would be that there is a possibility - if that doesn't apply, if that's not the case - that a restaurant award, a fast-food award, a general hospitality, some of the veterinary awards and a range of other awards of that kind would all intrude into this operation and, as I say, I think the count was between - six and eight awards would apply within the boundaries of the facility, simply because Muscillo Holdings and Silverback have divided, between the two companies, the overall functions.

PN46

Were the functions of conducting these fast-food sales and the merchandising and things of that kind all conducted by Silverback, there would be no doubt that they would be covered by this award. The fact they're conducted by another employer for organisational reasons should not make any difference to the coverage of the award is what we say. At the moment, it may well, and we seek the matter to be rectified in the way that we've put in the application, for the purposes of clarification. They are the primary matters in respect of which the application is brought. We've then gone to the further matters in the application and that is those matters which relate to the indicative classifications.

PN47

Now, the submission we make about that is in paragraph 35 to 37 in our written submissions on page 7. Fundamentally, it would appear that, because the zoological gardens NAPSA was not trawled through, as it were, for the purposes of the making of this award, there are a range of classifications which exist at Australia Zoo today, which have been developed and operated in accordance with the NAPSA which has applied to them, which have been, as far as one can tell, left out of the classification grades in the award. Again, the simple proposition is: we would ask that those matters be put into this award so that there be no difficulty in relation to identification of the existing classifications as they apply at Australia Zoo and as they have applied for many years.

PN48

The matter has been confined down to the point, so far as the application is concerned, where, as we speak, there are persons engaged in working, in classifications that meet each of the additional descriptions that we've put in, at Australia Zoo and that the added classifications will do no more than to recognise and acknowledge that such indicative classifications do currently exist and are currently being worked in things called "zoos" and that, if this award is to cover zoos, then it should cover the classifications which are currently being deployed at the largest zoo in Australia - or, the largest privately owned zoo in Australia, certainly.

PN49

The applicant seeks no more than that its current structure, of the way that work is done derived from a NAPSA, to which regard perhaps should have been had in relation to this matter, be included and observed. One understands the enormity of the task that the tribunal was confronted with in gathering together the 5000-odd awards that were necessary to be brought together to make the few modern awards and it's a source of amazement and wonderment at this side of the equation that the tribunal was able to accommodate as many as they did and down to the small number they did. It's not surprising (indistinct) something of this kind might have fallen through the cracks, and I say that without making any excuses at this side of the record.

PN50

My clients were not - they were distracted by their business and some other things that were going on at the time that made national headlines in relation to one of the - Steve Irwin, of course, is internationally known. My clients were a bit distracted by other matters during a period that this exercise was being undertaken and they did not advert to the fact that their NAPSA was not being brought into the equation and they did not attend at the tribunal to make submissions as, in the perfect world, they perhaps should have. But I suppose we're here on the basis of the well-known legal maxim, "Better late than never", Commissioner, so that's - here we are, as it were.

PN51

A little bit late but, we hope, sufficiently organised and able to explain the matter, that my client is actually furiously trying to put themselves under this award and to cooperate with what's going on in relation to this award modernisation process, but they only seek that it be done in a way that would avoid the possibility of there being any arguments at all down the track as to whether their very diverse activities, both on and off the zoo premises, are, or are not, covered within the scope of the award, the coverage of which they welcome. That's the short version of the submissions that I intended to make, Commissioner. It probably didn't sound like it, but it was.

PN52

THE COMMISSIONER: Well, everything is relative. It's very short for you, I understand.

PN53

MR HERBERT: Yes, thank you. I don't get paid to come second, Commissioner, so if the bench isn't getting the message, sometimes they need to be told it a couple more times in a few different ways, so that's - it's all to the good of somebody. But, Commissioner, are there any other matters in respect of this - we have put this material in in advance. Are there any other matters in respect of the application that I can assist you with?

PN54

THE COMMISSIONER: Mr Herbert, I've had the benefit of reading the submissions which were prepared by Mr Devine, and I've found those submissions quite helpful as a preliminary to today's proceedings. Today's proceedings were, essentially, to hear any further matters that you might want to put on the record but also, importantly, to invite other interested parties to express a view.

PN55

MR HERBERT: Yes.

PN56

THE COMMISSIONER: I think the absence of any other interested party is an indication that - their absence is a sign of consent.

PN57

MR HERBERT: Yes, we would take it as that.

PN58

THE COMMISSIONER: Yes.

PN59

MR HERBERT: Thank you, Commissioner. So that we - and I think also, one could say that the changes are so, if I can say with respect, obviously sensible that we're not surprised that there would be nobody here to object to them because there appears to be no basis on which objection would sensibly be taken, because they really only reflect uplifting it - a few more bits and pieces out of (indistinct) and clarifying possible conflicts, and we couldn't imagine anyone would have an objection to that.

PN60

THE COMMISSIONER: Yes, thank you, Mr Herbert.

PN61

MR HERBERT: Thank you, Commissioner.

PN62

THE COMMISSIONER: I'm in the position to indicate that the application to vary will be granted. In the formal sense, this is an application to vary the Amusement, Events and Recreation Award 2010. I'm satisfied that the application meets the jurisdictional requirements, particularly in respect of - the application is consistent with the objectives of modern awards, as set out in section 134 and 157 of the act. I'm also satisfied the application is within jurisdiction in respect of section 158 of the act and it's consistent with the modern award objectives set out in 134 and 157. As I indicated, I've had the benefit of reading the submissions from Mr Devine.

PN63

The application, essentially, seeks to vary the definitions clause and the classification structure to remove any potential ambiguity and any future doubt about the coverage and the relevance, in particular, of the classification structure within the industry. I'm satisfied that the variation should be granted in its form presented in the application and an order giving effect to this decision will issue. Thank you, all.

PN64

MR HERBERT: Thank you, Commissioner.

PN65

THE COMMISSIONER: These proceedings stand adjourned.

<ADJOURNED INDEFINITELY [10.39AM]