AM2010/15, Transcript of Proceedings [2010] FWATrans 474 (22 March 2010)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 25119-1

SENIOR DEPUTY PRESIDENT RICHARDS

AM2010/15

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

Application by Simmo Pty Ltd
(AM2010/15)
Hospitality Industry (General) Award 2010

(ODN AM2008/4)
[MA000009 Print PR985119]]




Brisbane

10.03 AM, MONDAY, 8 MARCH 2010

Reserved for Decision

PN1

THE SENIOR DEPUTY PRESIDENT: Good morning everyone. Please take a seat. Perhaps if I could just take some appearances first of all, thanks. Perhaps from those who are appearing by telephone, first of all, for convenience. Could I just have the appearances from those who are on the telephone.

PN2

MR W. ASH: Your Honour, Ash, initial W., for the LHMU.

PN3

THE SENIOR DEPUTY PRESIDENT: Good. Thank you, Mr Ash. I understand there is another person who has made a submission. Mr Dale, are you on the telephone?

PN4

MR A. DALE: No, I'm present.

PN5

THE SENIOR DEPUTY PRESIDENT: Sorry, you're here. Who else is on the telephone, sorry.

PN6

MR T. HOGAN: Terrance Hogan from Hogan and Associates, with the applicant Gail Simpson.

PN7

THE SENIOR DEPUTY PRESIDENT: Good. Thank you, Mr Hogan. You are somewhat remote to us, not only physically but also in a telephonic sense. Is it possible to come a little bit closer to your speaker phone?

PN8

MR HOGAN: Is that better?

PN9

THE SENIOR DEPUTY PRESIDENT: That's much better. Here in the hearing room with me?

PN10

MS J. MINCHINTON: Your Honour, Minchinton, initial J., from the Queensland Hotels Association Union of Employers. Also on behalf of the Australian Hotels Association.

PN11

THE SENIOR DEPUTY PRESIDENT: Good. Thank you.

PN12

MR DALE: Allan Dale. I'm just here on behalf of myself.

PN13

THE SENIOR DEPUTY PRESIDENT: Good, Mr Dale. I'm in receipt of your written submission, as well. Everyone, there are no issues of leave. Leave is granted in all respects. I understand, Mr Hogan, you're a firm of accountants. Is that correct?

PN14

MR HOGAN: Yes, that's correct.

PN15

THE SENIOR DEPUTY PRESIDENT: And you're acting on behalf of the named applicant in this matter. I have all the materials before me. I've read them all. Can I just indicate, Mr Ash, I very much appreciated the work that the LHMU has put into its submission. Particularly the references to the various state Liquor Acts was particularly helpful for me. I've now had a chance to examine those for myself, but you've pointed me to each of those and to their relevant sections and, in so doing, saved me a considerable period of time; but your submissions were particularly professional and I appreciate that.

PN16

Now, that said, I've read all the submissions and want I want to do today is in effect provide the parties with an opportunity to put anything to me particularly in response to anyone else's submissions that they may wish to that they haven't otherwise had an opportunity to do. It's not an opportunity for you to restate everything you've said in your written submissions to me. It's an opportunity to put any additional material to me in response to other parties' material and in particular an opportunity for me to ask questions.

PN17

One question, if I could lead off – one questions I'd just like to be familiar with, and the parties here today are no doubt well placed to advise me in that regard - that is what is the nature of the training arrangements in this industry and do they involve the participation of persons in training in the service of liquor, if we can use that loose term for the moment, under the age of 18?

PN18

MS MINCHINTON: Your Honour, with regard to traineeships and apprenticeships, there are provisions in Queensland specifically through the order for trainees and apprentices for school based traineeships to be undertaken. In fact in a lot of hotels, particularly outside of the south-east Queensland area which have been affected by the juniors provisions in the Hospitality Industry General Award, there are traineeships that school based persons undertake. Due to the restrictive nature of clause 15.1, we have received feedback from our members indicating that they can't actually employ these people on traineeships because they can't be required to work behind the bar or in a bottle shop, which is part of the traineeship.

PN19

THE SENIOR DEPUTY PRESIDENT: What age do these traineeships commence at?

PN20

MS MINCHINTON: Anywhere from 15 upwards where they commence it.

PN21

THE SENIOR DEPUTY PRESIDENT: 15 years plus?

PN22

MS MINCHINTON: Yes.

PN23

THE SENIOR DEPUTY PRESIDENT: Okay. I presume the involvement of juniors at least here in Queensland or particularly in – well, other than in south-east Queensland, a lot of these arrangements arise in circumstances where particular hotels are owned by families and so forth.

PN24

MS MINCHINTON: Family-run hotels and also hotels in small communities are definitely affected by clause 15.1. There was no restriction placed into the Hospitality Industry Award to provide that family members were exempt from clause 15.1, so it basically covers anyone who is an employee, which includes the trainees and the apprentices. The only exclusion is if they were on a vocational placement that was unpaid, and through the traineeships and apprenticeships they are actually paid and therefore an employee for the purposes of the award.

PN25

THE SENIOR DEPUTY PRESIDENT: Okay. Thank you. Does anyone want to add anything to that at all? Mr Ash?

PN26

MR ASH: No, your Honour. That's pretty clear.

PN27

THE SENIOR DEPUTY PRESIDENT: Mr Dale, did you want to add anything to that particular point?

PN28

MR DALE: No, I think that states the position very clearly.

PN29

THE SENIOR DEPUTY PRESIDENT: Good. Thank you. That's the matter that I wanted to inform myself of. You've all read the submissions now. Does anyone want to put any submissions to me that aren't currently before me?

PN30

MS MINCHINTON: Your Honour, we'd like to reserve the ability to make submissions after we've heard from the applicant and other parties who have provided written submissions already.

PN31

THE SENIOR DEPUTY PRESIDENT: Well, look, from the applicant, Mr Hogan, do you have anything new to add beyond the terms of your application?

PN32

MR HOGAN: No, not at this stage.

PN33

THE SENIOR DEPUTY PRESIDENT: Mr Ash, have you said enough on this matter through your useful written submissions?

PN34

MR ASH: Your Honour, we don't seek to supplement the submissions. I only came across this brief on Friday and my instructions are to rely on those written submissions.

PN35

THE SENIOR DEPUTY PRESIDENT: Whoever was handling it, if you can extend them my gratitude. They did a very good job.

PN36

MR ASH: Will do.

PN37

THE SENIOR DEPUTY PRESIDENT: It really comes back to you again. Very quickly, Ms Minchinton, do you have anything new you want to add?

PN38

MS MINCHINTON: I did, your Honour. With regard to some background from the QHA perspective - - -

PN39

THE SENIOR DEPUTY PRESIDENT: Sorry, I might interrupt you. Ms Simpson, you're there, aren't you?

PN40

MS G. SIMPSON: Yes.

PN41

THE SENIOR DEPUTY PRESIDENT: Ms Simpson, perhaps if you could just for the record indicate to me what your particular circumstances are such that they prompted this application.

PN42

MS SIMPSON: I have four juniors working for me and they've been with me for over 12 months. They've had to lose their jobs, which is very hard for them. One school based apprentice chef, she's not allowed to leave the kitchen. She has to stay in there. She can't deliver meals or do anything to do with the table service any more because there's alcohol concerned. The boys in the bottle shop, they're very disappointed because they've worked for us for the last 12 months.

PN43

THE SENIOR DEPUTY PRESIDENT: I presume they're the juniors, are they; the four juniors?

PN44

MS SIMPSON: Yes, they're juniors. They're 17-year-olds. They've been given an RSA which allowed them to work in the industry, and now they're not allowed to work there. It's, you know, very hard for me to tell them they haven't got a job any more, and it's a small country town where there's not a lot of employment. They do a very good job. That's about it really.

PN45

THE SENIOR DEPUTY PRESIDENT: Okay. Ms Minchinton?

PN46

MS MINCHINTON: Thank you, your Honour. With regard to Queensland in particular, hospitality employers outside of the south-east Queensland area have been affected by the introduction of clause 15.1 from 1 January. Within south-east Queensland and other areas of Australia, the Hospitality Industry – Accommodation, Hotels, Resorts and Gaming Award 1998 that applied prior to 1 January, already contains a provision which restricted the age of juniors working as liquor service employees to 18 years of age. Outside of south-east Queensland a lot of those hospitality employers were covered by NAPSAs and those NAPSAs did not provide such a restriction.

PN47

Normally what the NAPSAs would provide – and quoting the Hotels, Resorts and Certain Other Licensed Premises Award, excluding south-east Queensland, it provided that a junior employee who is less than 18 years of age engaged in the service of liquor would be paid the 18-year-old rate of pay. That appears, your Honour, to be a fairly standard provision across many of the NAPSAs that applied prior to 1 January. Since 1 January and clause 15.1 came into place, it has affected a number of hospitality employers.

PN48

We, from the Queensland Hotels Association, undertook a survey of hospitality employers outside of the south-east Queensland area. The feedback has been quite significant with respect to having to either terminate the employment of anyone under the age of 18; try to redeploy them, which has been very difficult particularly in small community hotels; or they have had to change their recruitment practices quite significantly. Having respect to points 3(a) and (b) of the award modernisation request, the QHA and AHA submit that the retention of clause 15.1 would not serve to create jobs to protect the position of young workers as per 3(a) and (b). We would actually like to put forward an alternative clause; an alternative to what the LHMU New South Wales has put forward. That is from the Restaurant Industry Award 2010, their clause which is 15.1. I do have a copy here for the parties.

PN49

The LHMU New South Wales has put together quite a substantial position and done a lot of research, as has been indicated on various liquor laws that are in place across Australia. Queensland has different circumstances to other states and therefore for the reasons of the wording of the Restaurant Industry Award 2010 at 15.1, we believe that this would be a more appropriate alternative as it provides for recognition of the various liquor laws that may be in place at any point in time and the restrictions that may be in place as a result of those liquor laws. We believe this would satisfy clause 154 of the act with regard to not providing state or territory differentials.

PN50

THE SENIOR DEPUTY PRESIDENT: Mr Ash, you can intervene, but where in the submissions is this substantially different from the LHMU New South Wales alternative position?

PN51

MR ASH: I understand that the LHMU national office, which is the more substantive submission - - -

PN52

THE SENIOR DEPUTY PRESIDENT: Sorry, yes. That's the submission, you're right.

PN53

MR ASH: Yes. Where that differs from the liquor division of the LHMU New South Wales is in respect of an alternate position, or a secondary position.

PN54

THE SENIOR DEPUTY PRESIDENT: That's right, yes. The alternative clause 15.1 I'm just wondering what the substantive difference is between these two clauses. You're not able to look at this Restaurant Industry Award 2010, are you, Mr Ash? Do you have it?

PN55

MR ASH: I'll attempt to quickly turn it up now.

PN56

THE SENIOR DEPUTY PRESIDENT: Okay.

PN57

MR ASH: What clause is it? Sorry.

PN58

THE SENIOR DEPUTY PRESIDENT: 15.1.

PN59

MR ASH: 15.1.

PN60

THE SENIOR DEPUTY PRESIDENT: Is that right?

PN61

MS MINCHINTON: Yes.

PN62

THE SENIOR DEPUTY PRESIDENT: While Mr Ash is doing that, Ms Minchinton, why are you seeking to provide an alternative to the LHMU secondary position alternative clause?

PN63

MS MINCHINTON: Your Honour, we believe that 15.1 in the Restaurant Industry Award better reflects the differences between state legislation with regard to service of alcohol, and given that the restaurants are very similar with regard to hotels in terms of serving alcohol in a bar or a restaurant-type situation, we believe that this would allow within Queensland the small employers who have been significantly affected by clause 15.1 in the Hospitality Industry Award, the ability to employ juniors to provide assistance to young workers to give them an entry into the workplace to support the community - - -

PN64

THE SENIOR DEPUTY PRESIDENT: Yes. I'm just looking at the LHMU clause. I must admit I'm attracted to it at first – I know it's the secondary position, but just looking at the clause itself, the clause does go to some effort to articulate the full extent of the participation potentially at least of a junior within a liquor-related establishment; so it provides some added description in that regard and removes any prospect for any ambiguity, I would have thought, but it also interacts in a neutral way with the various state Liquor Acts, I would have thought. Mr Ash, is that your view of it?

PN65

MR ASH: Yes, that was the intention behind that clause.

PN66

THE SENIOR DEPUTY PRESIDENT: Yes. I mean, apart from what you've put to me, Ms Minchinton, I presume you'd argue that the effects are the same. You're more comfortable with, I think, the tried and true wording that you're familiar with, but is there any substantive difference? Will it cause some added confusion or have some application that would be problematic?

PN67

MS MINCHINTON: Your Honour, we don't object at all and we're supportive of the LHMU's alternative wording for the award. We had a look at various other awards that impact on the hospitality industry, such as the Restaurant Industry Award and also the Registered and Licensed Clubs Award. Where the Restaurant Industry Award differs to the alternative position put forward by the LHMU, that actually recognises some of the restrictions that various liquor laws put in place, such as those that have been identified in the LHMU's submission.

PN68

We have found from the QHA that there is a lot of confusion about the interaction of awards and legislation. That stems from our members perhaps not fully understanding how that interaction works.

PN69

THE SENIOR DEPUTY PRESIDENT: Okay. It has been on my mind when I read this originally, that you really need the clause to specify – or subclause – where the law permits.

PN70

MS MINCHINTON: Yes, your Honour.

PN71

THE SENIOR DEPUTY PRESIDENT: That's the clarifying point, so - - -

PN72

MS MINCHINTON: Yes.

PN73

THE SENIOR DEPUTY PRESIDENT: Just so we deal with this matter now so I can ponder it when I reserve the decision, if I do, you could for example just include that subclause at the beginning of clause 15.1 of the LHMU's draft.

PN74

MS MINCHINTON: Yes.

PN75

THE SENIOR DEPUTY PRESIDENT: That is, where the law permits then follow on junior employees, and following on as the LHMU have put.

PN76

MS MINCHINTON: Yes.

PN77

THE SENIOR DEPUTY PRESIDENT: And that would do all the work I suspect you're seeking – isn't it – for clarification?

PN78

MS MINCHINTON: Yes, we'd be quite comfortable with that, your Honour.

PN79

THE SENIOR DEPUTY PRESIDENT: Do you think that would work, Mr Ash?

PN80

MR ASH: We wouldn't have any problem with that, your Honour. Sections 27 and 28 of the Fair Work Act set out the interaction between that sort of legislation in the Fair Work Act - - -

PN81

THE SENIOR DEPUTY PRESIDENT: Yes.

PN82

MR ASH: - - - but I don't think we'd have any problem with those words at the start.

PN83

THE SENIOR DEPUTY PRESIDENT: I think, Ms Minchinton, your point is not so much what the statutory context is. It's the usability of the clause in the field, isn't it?

PN84

MS MINCHINTON: Yes, your Honour.

PN85

THE SENIOR DEPUTY PRESIDENT: Where people aren't going to the act, they're going to the instrument.

PN86

MS MINCHINTON: As part of the survey we undertook last week, there were a lot of members who actually responded saying, "Well, we don't understand so we haven't done anything in response to the change," and that highlights to us, your Honour, the need for as much clarification as possible.

PN87

THE SENIOR DEPUTY PRESIDENT: Okay. I understand. Look, does anything else need to be put to me by anyone at this point?

PN88

MR DALE: No, your Honour.

PN89

THE SENIOR DEPUTY PRESIDENT: Mr Dale, I've read - - -

PN90

MR DALE: Only to say that I support the submissions already made.

PN91

THE SENIOR DEPUTY PRESIDENT: Yes, and thank you for your submission based on your experience, no doubt. Is there anything else from Mr Hogan at all?

PN92

MR HOGAN: No.

PN93

THE SENIOR DEPUTY PRESIDENT: Good. Thank you. Ms Simpson, anything else from yourself?

PN94

MS SIMPSON: No.

PN95

THE SENIOR DEPUTY PRESIDENT: Okay. Mr Ash, anything else you want to add at all?

PN96

MR ASH: Nothing further, your Honour.

PN97

THE SENIOR DEPUTY PRESIDENT: Okay then. I think, everyone, I will just have one last look at this matter. I'm sensitive to the issue, as the parties might appreciate, of the role of training in particular and apprenticeships in the industry. I'll look at what has been put to me today and I'll write a decision promptly. When I say promptly, I'll attempt to do something within 48 hours. Thanks very much, everyone, for your attendance today. Mr Ash, if you can just pass on my gratitude, as well.

PN98

MR ASH: Will do, your Honour. Thank you.

PN99

THE SENIOR DEPUTY PRESIDENT: Thanks very much, everyone. We're adjourned.

PN100

MS MINCHINTON: Thank you, your Honour.

PN101

<ADJOURNED INDEFINITELY [10.23AM]