AM2014/228, Transcript of Proceedings [2015] FWCTrans 237 (22 April 2015)

	Home \| Databases \| WorldLII \| Search \| Feedback Fair Work Commission Transcripts

s.156 - 4 yearly review of modern awards

Four yearly review of modern awards
Sub group 3D

PN1

JUSTICE ROSS: Could I have the appearances, please. Firstly in Sydney, if you could indicate your organisation and the award in which you're interested.

PN2

MS J GHERJESTANI: Gherjestani, initial J. I appear for the Australian Workers Union and we have an interest in all of the awards listed for this afternoon.

PN3

JUSTICE ROSS: Thank you.

PN4

MS G VACCARO: Vaccaro, initial G, for the Australian Industry Group, your Honour. We have an interest in the Horticultural Award, the Sugar Industry Award and the Wine Industry Award.

PN5

JUSTICE ROSS: Thank you.

PN6

MS J LIGHT: Light, initial J, for the Australian Federation of Employers and Industries. Your Honour, we have an interest in Gardening and Landscaping, Horticulture, Nursery, Pastoral and the Wine Industry Award.

PN7

JUSTICE ROSS: Thank you.

PN8

MR B TYLER: If the commission pleases, Tyler, initial B, appearing for ABI and the New South Wales Business Chamber and we have an interest in the Horticulture Award, the Gardening and Landscaping Award, the Nursery Award, the Pastoral Award, the Sugar Industry Award and the Wine Industry Award.

PN9

JUSTICE ROSS: Thank you.

PN10

MR M NGUYEN: Your Honour, Nguyen, initial M, appearing for the Australian Manufacturing Workers Union. We have an interest in the Sugar Industry Award.

PN11

JUSTICE ROSS: Thank you.

PN12

MR S BULL: Bull, initial S, from United Voice. We've made a submission in relation to the Wine Industry Award.

PN13

JUSTICE ROSS: Thank you.

PN14

MR T ANGELOPOULOS: If your Honour pleases, Angelopoulos, initial T. Unless you can hear me from there, your Honour, I may come down in front of the desk. I seek leave to appear on behalf of the Nursery Garden Industry Australia for the Nursery Award, for Horticulture Australia for the Horticulture Award.

PN15

JUSTICE ROSS: Thank you. Anyone else in Sydney? No. Adelaide?

PN16

MS E VAN DER LINDEN: Van der Linden, initial E, for the South Australian Chamber of Commerce and Industry trading as Business SA. We have an interest in the Gardening and Landscaping Services Award, Horticultural Award, Nursery Award and Pastoral Award and Wine Industry Award. Thank you, your Honour.

PN17

JUSTICE ROSS: Thank you.

PN18

MR H WALLGREN: Wallgren, initial H, appearing for the South Australian Wine Industry Association, appearing in relation the Wine Industry Award.

PN19

JUSTICE ROSS: Thank you. Anybody else? Is there any appearance for the NFF? No, okay. The Commission posted on its web site last Friday a summary table in relation to each of these awards setting out the proposed variations that have been filed in submissions. I'll go through each of the awards and seek any amendments or additions to the summary of proposed variations and invite parties to say whatever they wish to say in relation to them.

PN20

The likely time frame is that following these conferences today, I'll issue a statement which will have a set of draft directions. That will indicate that it's likely that the exposure drafts in these awards are to be issued in mid-May to late May and that there will then be a directions going to the filing of comments about the exposure drafts and replies. The hearings in relation to the exposure draft issues will be likely to be held in September or October this year.

PN21

I will make an assessment as we go through about whether or not any of the awards have given the nature of the issues raise, whether they should be sent off to a separately constituted Full Bench to hear the merit argument in relation to the proposed variations. Are there any questions about any of that before we get underway? No, all right.

PN22

Can I begin with the Gardening and Landscaping Award. Business SA is indicating that they may be seeking a variation in relation to Schedule B of the award. Is there anything you want to say about that, at this stage?

PN23

MS VAN DER LINDEN: Not really, your Honour. Just that we are currently still consulting with members about the indicative tasks for the classification structure and we should have a better indication hopefully fairly soon, in order to put further submissions in, if we are going to pursue the variation. It's still very much in its infancy at the moment.

PN24

JUSTICE ROSS: Anyone else wish to say anything about that award? No, all right. If we go to the Horticultural Award, there are some six items identified. Three of them relate to coverage and can either AI Group - is AI Group represented?

PN25

MS VACCARO: Yes, your Honour. It's Ms Vaccaro.

PN26

JUSTICE ROSS: Yes, Ms Vaccaro. Can you let me know, with the Full Bench decision in C2014/7871, has that been heard?

PN27

MS VACCARO: That was heard, your Honour, in mid-February. So we are still awaiting a decision from the Full Bench and, as put in a summary, the outcome will determine the nature of our application.

PN28

JUSTICE ROSS: I see the AWU is proposing to seek a variation to clarify the casuals receive overtime.

PN29

MS GHERJESTANI: Yes, your Honour, we are and we do request that that variation be sent to the casual and full-time bench.

PN30

JUSTICE ROSS: Yes.

PN31

MS GHERJESTANI: Because it's seeking to clarify and it's an ambiguous clause, so we are just seeking to clarify that.

PN32

JUSTICE ROSS: The entitlement of casuals to overtime is a matter that's been referred to that bench more generally. So we will make sure that your submission in that regard is sent to the casual and part-time Full Bench as well. Does anyone wish to say anything about any of the other matters which are raised?

PN33

MR ANGELOPOULOS: Your Honour, we haven't filed any submissions in this matter and the reason being that the position of the Horticulture Task Force is that the award is achieving the modern award's objective. It's subject to the outcome of the Full Bench decision in that appeal. We submit that amendments are otherwise not necessary to the award, because the objectives are already being met. Thank you, your Honour.

PN34

JUSTICE ROSS: Anybody else? No, okay. Let's move to the next award which is the Nursery Award, and there are three items here. Two by Business SA and one by the FWO, that's the overtime for casuals issue seeking clarification. As I say, that matter will generally be addressed by the casual/part-time Full Bench.

PN35

Do I take it, for Business SA the consultation issue is again you are undergoing some consultation about that and the variation to part-time employment is the one that you've made or you're seeking in a number of other awards as well?

PN36

MS VAN DER LINDEN: That's correct, your Honour.

PN37

JUSTICE ROSS: Is there anything anyone wishes to say about that award? No corrections or additions?

PN38

MS GHERJESTANI: Your Honour, AWU, in relation to item 1 we would reserve our position. In relation to item 2 we do oppose the variation being sought by Business SA.

PN39

MR ANGELOPOULOS: Your Honour, just a similar submission in this regard that we make with regard to the Horticultural Award, and except that of course is no Full Bench appeal outstanding in this matter on coverage.

PN40

JUSTICE ROSS: What's the appeal decision outstanding in the earlier matter?

PN41

MR ANGELOPOULOS: In the Horticultural Award, your Honour, just the coverage issue. So outstanding in the sense that the decision is outstanding, not the actual appeal itself. That was referred to earlier by the Australian - - -

PN42

JUSTICE ROSS: Yes, but that's a Full Bench decision, is that right?

PN43

MR ANGELOPOULOS: Yes, that's correct.

PN44

JUSTICE ROSS: Anything further in the Nursery Award? No. The Pastoral Award, both the NFF and AWU have sought a range of proposed variations. Is the summary accurate or do you wish to add or amend anything?

PN45

MS GHERJESTANI: In relation to the AWU variations, the summary is accurate, your Honour.

PN46

MS McKINNON: Your Honour, the same for the National Farmers Federation. No changes are sought.

PN47

JUSTICE ROSS: All right. Have the NFF and the AWU had any discussions about any of these matters to date?

PN48

MS McKINNON: We have had - sorry.

PN49

MS GHERJESTANI: Sorry, you can go ahead.

PN50

MS McKINNON: We have had some general discussions about the proposals, but we haven't gotten into the detail.

PN51

JUSTICE ROSS: Okay. Do you have a feel at this stage for the scope - if matters are opposed - at the case is going to look like? Is it an evidentiary-based case? How long do you think it will take?

PN52

MS McKINNON: Your Honour, for the first three proposals; that is, the change in the way that the field crops are referred to in the award and the methods for calculating rates of pay, those are technical issues which really just go to how the award is expressed. So we don't see those as evidentiary issues.

PN53

JUSTICE ROSS: Yes.

PN54

MS McKINNON: The annual salaries provision probably is and evidentiary issue, but I don't think it's an exhaustive one. We will rely on previous cases on the merits of annual salaries, but the main evidentiary case in the Pastoral Award from our perspective will be the milking issue, as to whether it's related in the same way as feeding and watering of stock and therefore should be treated in the same way in the award.

PN55

JUSTICE ROSS: Yes. What about the crutching issue?

PN56

MS McKINNON: Again, it's not a change to the intention, rather than a clarification of how to calculate the rate so that it is easily understood.

PN57

JUSTICE ROSS: Yes, but I was thinking more of the AWU claim.

PN58

MS GHERJESTANI: Your Honour, I can state that on a preliminary basis we would be running a merits argument, but in relation to this - the variations we are seeking, I have been instructed to state that we'd prefer for it to go to a separate Full Bench.

PN59

JUSTICE ROSS: What, your claim 8?

PN60

MS GHERJESTANI: Our claim 4.

PN61

JUSTICE ROSS: The overtime rates?

PN62

MS GHERJESTANI: Yes, 8 and 5.

PN63

JUSTICE ROSS: Right.

PN64

MS GHERJESTANI: However, that is our preliminary position. I would like to reserve our rights to respond back in due course, just to confirm that, if that's okay.

PN65

JUSTICE ROSS: What's the NFF's view to the merit matters in this award going to a separately constituted Full Bench.

PN66

MS McKINNON: We don't understand the rationale for it being referred. I think the claim is for overtime for poultry industry employees

PN67

JUSTICE ROSS: Yes.

PN68

MS McKINNON: That seems to me to be a fairly narrow and award-specific issue. So we're happy for it to be dealt with in - - -

PN69

JUSTICE ROSS: What's happened with some other awards, which is why I was asking you the question about how big do you think the case is on the merit point. Where there are variations proposed in an award which will involve a significant amount of evidence and is going to be contested, then what we've done in the past is to refer it to a separately constituted Full Bench. All that means is that there would be a Full Bench established to deal with these merit applications.

PN70

The question of drafting issues associated with the translation of the current award to the new award format would be dealt with by the four-year review bench. The reason for that approach is this, that we're dealing with 20-odd awards in the four-yearly review bench and we normally deal with them over two or three days, to deal with drafting issues and issues associated with the translation to the new award format.

PN71

It can inconvenience a significant number of parties if we drop into that what might be a significant evidentiary case. So what we've done in a number of other awards, to give you an example, I think it was the Stevedoring Award where the employer interests were seeking to increase the weekly ordinary hours in the award from, I think, 35 to 38. That was clearly going to be a hard-fought case and that was referred off to a separate Full Bench.

PN72

It doesn't mean that the matter will - it will be dealt with in group 3. It will be dealt with in the same sort of time frame. It's just we hived those issues off because it's only the parties interested in this award that are going to want to hear them, rather than the parties to the other 19 or so awards in this group.

PN73

MS McKINNON: Yes. Thank you, your Honour. I mean, certainly the claims for additional overtime or higher rates of pay will be merits-based arguments which will be contested, so they will need to be dealt with in that way.

PN74

MS VAN DER LINDEN: Your Honour, Business SA has an interest in this matter. We've got a number of members on the Pastoral Industry Award, so I'd just like to indicate that we would be opposing the AWU's claim for the overtime, so point 4 and the point 8 as well.

PN75

The NFF and AWU have indicated that they've already had some discussions regarding these matters and if I can ask that Business SA be included in future discussions around these matters?

PN76

JUSTICE ROSS: Any objection to that from the NFF and the AWU?

PN77

MS McKINNON: No, your Honour.

PN78

MS GHERJESTANI: No, your Honour.

PN79

JUSTICE ROSS: All right.

PN80

MS LIGHT: Your Honour, we have a similar membership interest and would also oppose the claims of the AWU. I note that their claim at item 8 also appears to be a work value issue, so in our view it would be appropriate for that to be referred to a separately constituted Full Bench.

PN81

JUSTICE ROSS: Anything further? All right. Thanks very much. I will refer those matters to a separately constituted Full Bench and we will have a mention and programming hearing in relation to that in due course. Anything further in relation to that award? No, all right. Can we move to the Silviculture Award. Who has an interest in this award? We've received no award specific submissions on this award today.

PN82

Just out of interest, what is silviculture?

PN83

MS McKINNON: Forestry, your Honour.

PN84

JUSTICE ROSS: It would be too simple to call it the Forestry Award, I suppose. Does it include - is there an overlap with Nursery? Does it include seedlings and that sort of thing?

PN85

MS McKINNON: I'm not sure.

PN86

JUSTICE ROSS: In any event, there doesn't seem to be - - -

PN87

MS LIGHT: Your Honour, our understanding is that it's the growing of forests rather than the seedlings and the propagation of seedlings.

PN88

JUSTICE ROSS: Okay. Is there any reason why it's not in the Pastoral Award?

PN89

MS McKINNON: Largely historical, I think, your Honour.

PN90

JUSTICE ROSS: Is there - well, we might have a look at the conditions in each and see whether that will cause more trouble than it's worth. Is there anything anyone wishes to say about this award? No, okay.

PN91

Can I go to the Sugar Award. The Fair Work Ombudsman has raised three issue for clarification and the AMWU has an application for tool allowance for apprentices in this award. Are there any amendments or additions to the summary?

PN92

MR NGUYEN: Not from us, your Honour.

PN93

JUSTICE ROSS: Do the employer interests have a view about the tool allowance claim?

PN94

MS VACCARO: Your Honour, it's AI Group. We oppose the tool allowance claim. Just by way of background, it was something sought by the AMWU in the 2012 review in the apprentices matter. Our position remains unchanged from then really where we did oppose it and the Full Bench decided against making - against including the allowance in the award at that stage, your Honour.

PN95

JUSTICE ROSS: Do apprentices normally get tool allowances?

PN96

MR NGUYEN: Yes, your Honour. From other industries, not in the sugar industry.

PN97

JUSTICE ROSS: But in industry generally and that's why you're seeking it here, is that right?

PN98

JUSTICE ROSS: What's the nature of the case you'd be putting in support of it?

PN99

MR NGUYEN: We would be hoping to put some evidence about the experience of apprentices in the sugar industry, and also some written submissions about the similarities between apprenticeships in the sugar industry and in other industries.

PN100

JUSTICE ROSS: All right. Is there anything anyone else wishes to say about this award?

PN101

MS GHERJESTANI: Your Honour, AWU would support the variation being sought by the AMWU.

PN102

JUSTICE ROSS: Thank you. Nothing further about that award? Let's move to the Wine Industry Award. There are some seven variations sought by the South Australian Wine Industry Association and four sought by United Voice. Are there any corrections or additions to the summary document?

PN103

MR WALLGREN: Yes, your Honour. From the South Australian Wine Industry Association there is an additional variation that we are likely to seek and that is to clause 23.2, piecework rates.

PN104

JUSTICE ROSS: Yes.

PN105

MR WALLGREN: Where we receive industry feedback regarding the 20 per cent requirement that employees being paid piecework rates and at least 20 per cent more (indistinct) minimal wage and some feedback of the industry to seek a reduction to that rate.

PN106

JUSTICE ROSS: All right. In relation to the United Voice application to guarantee a minimum number of hours for part-timers and to introduce a notice requirement on variation. Those matters will be - - -

PN107

MR BULL: That's a matter, your Honour, which probably does belong in the common issue.

PN108

JUSTICE ROSS: Yes, I think so too. Those two matters - - -

PN109

MR BULL: Do you want me to go through the summary of proposed variations and state our position in relation to the ones that have been formally lodged?

PN110

JUSTICE ROSS: Yes, just if those two matters 9 and 10 go to the casual and part-time Full Bench certainly. If you go through the others.

PN111

MR BULL: In relation to number 1, that would seem to be a matter which would go to one of the common issues, Full Bench casual employment.

PN112

JUSTICE ROSS: Yes, that will go to casual and part-time employment Full Bench was well. .

PN113

MR BULL: Yes, that's the Wine Industry Association.

PN114

JUSTICE ROSS: Yes.

PN115

MR BULL: In relation to 2, that would seem to be a matter susceptible to a conference. The same with 3, the same with 4, the same with 5. 6 would appear to be a matter which I would say cannot be dealt with until the current proceedings in relation to Retail and Hospitality Awards are concluded in relation to penalty rates and in light of the fact that's going to be a thorough and authoritative review, it should be dealt with after that.

PN116

In relation to number 8, which is the Fair Work Ombudsman one, we would agree with that. I should just note in relation to the employer association variations, we would oppose 1. 2 is something that we'd talk about. 3 is something that we should talk about. And 4 and 5, to be honest, I am not familiar enough with the practice of the wine industry to get precise instructions, but I will. That's why I think a conference would be useful.

PN117

JUSTICE ROSS: Well, I will have a member convene a conference in relation to the variations proposed in an effort to see if we can narrow the difference between you. Can I ask if the Wine Industry Association can put in writing their proposed change to clause 23.2?

PN118

MR WALLGREN: Is there anything else anyone else wishes to say about this award?

PN119

MS GHERJESTANI: Your Honour, the AWU generally supports the variations being sought by United Voice to the Wine Industry Award.

PN120

JUSTICE ROSS: Thank you. Anybody else? No. Thank you very much for your attendance and I'll adjourn the conference.

ADJOURNED INDEFINITELY [3.39 PM]

*Gardening and Landscaping Services Award 2010*	MA000101	AM2014/228
*Horticulture Award 2010*	MA000028	AM2014/231
*Nursery Award 2010*	MA000033	AM2014/238
*Pastoral Award 2010*	MA000035	AM2014/239
*Silviculture Award 2010*	MA000040	AM2014/244
*Sugar Industry Award 2010*	MA000087	AM2014/247
*Wine Industry Award 2010*	MA000090	AM2014/249

Fair Work Commission Transcripts

AM2014/228, Transcript of Proceedings [2015] FWCTrans 237 (22 April 2015)