AM2014/69, Transcript of Proceedings [2015] FWCTrans 198 (7 April 2015)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
SENIOR DEPUTY PRESIDENT HAMBERGER
COMMISSIONER BISSETT
COMMISSIONER BULL

AM2014/69

s.156 - 4 yearly review of modern awards

Four yearly review of modern awards - Award stage - Sub groups 1A & 1B - Exposure drafts - Cleaning Services Award 2010
(AM2014/69)

Melbourne

2.01 PM, TUESDAY, 24 MARCH 2015

PN317

JUSTICE ROSS: Could I have the appearances, please; firstly in Melbourne?

PN318

MR B FERGUSON: If the Commission pleases my name is Ferguson, initial B, for the Australian Industry Group. I have Ms R Baht with me.

PN319

JUSTICE ROSS: Thank you Mr Ferguson, and in Sydney?

PN320

MR M VANCE: Vance M, for United Voice.

PN321

JUSTICE ROSS: I’m sorry, could you just repeat that please?

PN322

MR VANCE: Vance, V-a-n-c-e, initial M, for United Voice.

PN323

JUSTICE ROSS: Thank you Mr Vance. Anybody else?

PN324

MS J GHERJESTANI: Gherjestani, initial J, for the Australian Workers Union.

PN325

JUSTICE ROSS: Thank you.

PN326

MR K SCOTT: If the Commission pleases, Scott, initial K, seeking permission to appear on behalf of Australian Business Industrial from the New South Wales Business Chamber.

PN327

JUSTICE ROSS: Anyone else in Sydney?

PN328

MS J LIGHT: If the Commission - - -

PN329

JUSTICE ROSS: Yes, okay?

PN330

MS LIGHT: Sorry. If the Commission pleases, Light initial J for the Australian Federation of Employers and Industries.

PN331

JUSTICE ROSS: Thank you. Nobody else in Sydney? In Adelaide?

PN332

MS K VAN GOGH: If it pleases the Commission, Van Gogh initial K, from the South Australian Chamber of Commerce and Industry trading as Business SA, and with me is Ms Danielle Harris.

PN333

JUSTICE ROSS: Thank you. Anyone else? No? We have received submissions from Ai Group, Australian Business Industrial and Business SA in relation to this matter. Who would like to - you can take it we've read the submissions. It's really if there was anything you wanted to say by way of elaboration and to provide anyone who wishes to say anything to make a submission in response. Do any of those who have filed a submission wish to add to it in any way?

PN334

MR FERGUSON: Yes.

PN335

JUSTICE ROSS: Mr Ferguson?

PN336

MR FERGUSON: I might just take a seat if that's okay?

PN337

JUSTICE ROSS: Certainly.

PN338

MR FERGUSON: Just so I can refer to various documents. I think one thing that might be helpful, if I could just take the Bench to page 51 of our submissions.

PN339

JUSTICE ROSS: Yes.

PN340

MR FERGUSON: And there we make a number of observations in relation to clause 15.5 of the exposure draft. Now as we've looked at it further it seems that some of the source of our concern might be a tension that's in the existing award, and I don't know if the Bench has a copy of the existing award?

PN341

JUSTICE ROSS: Yes.

PN342

MR FERGUSON: But if we go to clause 29 of the annual leave provisions.

PN343

JUSTICE ROSS: Yes.

PN344

MR FERGUSON: It seems to provide for two rates of pay, if you will, or it refers to numerous ways of calculating the rate of pay and there seems to be at least a tension in those. If you look firstly at 29.3 it talks about:

PN345

For the purposes of payment of annual leave an employee's ordinary pay means remuneration for the employee's normal weekly number of hours of work calculated at the ordinary time rate of pay. In addition it will include -

PN346

and then it specifies various amounts. But then at 29 - - -

PN347

MR VANCE: Your Honours, I'm sorry, we're having some trouble hearing the proceedings in Sydney.

PN348

MR FERGUSON: I'll speak up, Mr Vance, if that helps?

PN349

MR VANCE: Yes. Thank you.

PN350

MR FERGUSON: So I was just saying at 29.3 - - -

PN351

MS GHERJESTANI: Yes, that's better.

PN352

JUSTICE ROSS: Sorry, did somebody say something?

PN353

MS GHERJESTANI: I just said that was better.

PN354

JUSTICE ROSS: Good. All right.

PN355

MR FERGUSON: Yes. SO 29.3 refers to how it's calculated. It refers to various amounts. Then at 29.4 it says:

PN356

The terms of the NES prescribe the basis of payment of annual leave including payment for untaken annual leave upon the termination of employment.

PN357

So 29.3 seems to supplement it but then 29.4 refers back to the NES, which might take us to the base rate, and I'm not sure that some of the - - -

PN358

JUSTICE ROSS: So in other words the current - the clause 15.5 in the exposure draft repeats a degree of ambiguity or uncertainty that already exists in the existing award?

PN359

MR FERGUSON: Or it might have tried to cure it and it might have taken a view as to how that was done.

PN360

JUSTICE ROSS: Well, which do you think it is?

PN361

MR FERGUSON: I think there's perhaps some uncertainty in the existing clause.

PN362

JUSTICE ROSS: Right.

PN363

MR FERGUSON: What I was going to suggest is that - and this just came to us upon further reflection in preparing for today, and I don't know if this is going to be possible but I understand there's going to be some further conferencing done by Commissioner Cribb in relation to this award, and I don't know what the process going forward is, and I don't know whether this - so the three issues we raised in paragraphs 170, 171 to 173 might not be - collectively just refers to that process for some further consideration. I'm not sure what the resolution to the issue is.

PN364

JUSTICE ROSS: When is the next conference expected?

PN365

MR FERGUSON: I don't know that it has been listed. I haven't been personally involved in these.

PN366

JUSTICE ROSS: All right.

PN367

MR FERGUSON: But I understand - - -

PN368

JUSTICE ROSS: Look, we'll make some inquiries of the Commissioner but on the face of it, it would be better if there's further discussion between the parties about that issue.

PN369

MR FERGUSON: Yes.

PN370

JUSTICE ROSS: And see if you can arrive at a resolution between yourselves.

PN371

MR FERGUSON: Yes. Thank you.

PN372

JUSTICE ROSS: Is there anything you wish to say about the balance of it?

PN373

MR FERGUSON: No, your Honour. We're otherwise content to just rely on - - -

PN374

SENIOR DEPUTY PRESIDENT HAMBERGER: Can I just clarify, the provisions in relation to the overtime for part‑timers and casuals, are you satisfied with the clauses with the clauses in the exposure draft, because there had been some issues raised? I think it will make sense but

PN375

MR FERGUSON: If we haven't raised anything - - -

PN376

SENIOR DEPUTY PRESIDENT HAMBERGER: But it is a kind of complicated set of provisions, but I think they all make sense. But I just wanted to check that you are - - -

PN377

MR FERGUSON: Yes, yes.

PN378

SENIOR DEPUTY PRESIDENT HAMBERGER: - - - you consider that they work and that you don't have any problems with them.

PN379

MR FERGUSON: Yes.

PN380

JUSTICE ROSS: I think the only issue you raised was an amendment in one of the examples.

PN381

MR FERGUSON: That's right. We haven't identified any other difficulties ourselves apart from that perhaps error in the example.

PN382

SENIOR DEPUTY PRESIDENT HAMBERGER: And just to be clear, there's this issue that was raised by United Voice with minimum period of engagement and broken shifts. Is this something that you understand - and I think you've said that - - -

PN383

MR FERGUSON: Yes.

PN384

SENIOR DEPUTY PRESIDENT HAMBERGER: - - - this issue is supposed to be, as you understand it, the subject of further discussions and a conference - - -

PN385

MR FERGUSON: Yes, as I understand arrangements around broken shifts are to be.

PN386

SENIOR DEPUTY PRESIDENT HAMBERGER: Yes.

PN387

MR FERGUSON: Now I'm not sure if it's the issue flowing from the United Voice proposal. I think we advanced a proposal around broken shifts and that was going to be the subject of further conferencing.

PN388

SENIOR DEPUTY PRESIDENT HAMBERGER: Okay.

PN389

JUSTICE ROSS: Do any of the other parties who have made submissions in relation to the revised exposure draft, that's ABI and Business SA, wish to add anything to their written submissions?

PN390

MR SCOTT: No, your Honour.

PN391

JUSTICE ROSS: Okay.

PN392

MS VAN GOGH: No, your Honour.

PN393

JUSTICE ROSS: All right. Do the unions wish to say anything in response?

PN394

MR VANCE: Thank you, your Honour. United Voice does not agree with all of the submissions being made. It's our understanding that they are matters that would be discussed in a further conciliation conference before Commissioner Cribb.

PN395

MS GHERJESTANI: Also the AWU, we've been through the submissions by the employer representatives and there are a number of issues, specially in the submissions of the AIG, that we do not agree with. I'm not sure if your Honours would want me to go through them now or leave them for the conference?

PN396

JUSTICE ROSS: Look, I think if there's going to be a conference about it that might be the - I don't wish to cut anyone off if they want to say something but it appears there is going to be a further conference and those - we'll make sure that the three submissions I've referred to go to Commissioner Cribb, and they can be the subject of some discussions between the parties at that conference. Is everyone happy with that course? Does anyone - - -

PN397

MR VANCE: Yes thank you, your Honour.

PN398

JUSTICE ROSS: Does anyone wish to say anything - - -

PN399

MS LIGHT: Thank you, your Honour.

PN400

JUSTICE ROSS: Does anyone wish to say anything further about this award at this stage?

PN401

MR FERGUSON: No.

PN402

JUSTICE ROSS: All right, then we'll adjourn. We'll come back at 2.30 to deal with the Security Award - just before we do that, who is here now that will be here for the Security Award?

PN403

MR FERGUSON: We will.

PN404

JUSTICE ROSS: Okay, anybody else?

PN405

MR VANCE: I will be.

PN406

MS GHERJESTANI: We will be.

PN407

MR SCOTT: The parties in Sydney will be.

PN408

JUSTICE ROSS: Yes, so in relation to the Security Award in AIG's submissions there's a submission about clause 13, penalty rates, which was discussed at a conference. Having checked, it appears that a variation was drafted arising out of that conference which for some reason somewhere didn't make its way into the exposure draft. So I'm just distributing copies of what was drafted. The formatting is slightly wonky but the words beginning in underlining is meant to define what a permanent night shift is. There are copies in Sydney which can be made available I hope, but unfortunately - - -

PN409

MR VANCE: Yes, they have been. Thank you.

PN410

JUSTICE ROSS: Yes, but unfortunately we don't at the moment have any copies in Adelaide, so. We can organise for that during the break, yes.

PN411

MS VAN GOGH: Thank you.

PN412

JUSTICE ROSS: We'll adjourn till 2.30.

ADJOURNED TO A DATE TO BE FIXED [2.12 PM]