Australian Industrial Relations Commission

Dec  1316 /96 M Print N5455

          AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

                 Industrial Relations Act 1988
                s.113 application to vary award

Australian Liquor, Hospitality and Miscellaneous Workers Union
                     (C No. 22695 of 1996)
                     (C No. 20341 of 1996)
                     (C No. 22694 of 1996)

              HARD ROCK CAFE (INTERIM) AWARD 1995
                   (ODN C No. 11390 of 1995)
                     [Print M8256 [H0395]]

           LIQUOR AND ACCOMMODATION - RESTAURANTS -
                     VICTORIA - AWARD 1996
                   (ODN C No. 20529 of 1995)
                     [Print M8142 [L0289]]

Various workers                               Catering industry

COMMISSIONER MAHON                   MELBOURNE, 10 OCTOBER 1996

Roping-in award

                           DECISION

These  matters, in essence, all relate to applications by  the
Australian Liquor, Hospitality and Miscellaneous Workers Union
(the Union), pursuant to s.113 of the Industrial Relations Act
1988  (the Act) for the making of an award to be known as  the
Liquor  and  Accommodation Industry - Restaurants  -  Victoria
(Roping-in  No.  4) Award 1996 (the Roping- in Award)  binding
upon Hard Rock Cafe (HRC), and the setting aside of the extant
Hard Rock Cafe (Interim) Award 1995 (the Interim Award).

    Ms  O'Neill, for the Union, submitted by way of background
that:

   "the  interim  award,  as you are aware,  was  made  on  22
   December  1995 and has now been in operation  for  some  10
   months.   That  interim award was made in  essentially  the
   same terms as the defunct state Restaurant and Catering and
   Accommodation Industry Award." [transcript, p.2]

   Ms   O'Neill  provided  a  detailed  chronology  of  events
   [exhibit O1] and indicated:

   "We  now find ourselves some 10 months down the track still
   a very long way apart, and with no certainty or belief that
   the  negotiations  will  be able to  be  concluded  in  any
   reasonable  period  of time.  Furthermore,  the  wages  and
   conditions  that  are contained in the  interim  award  are
   substantially   inferior   to  those   contained   in   the
   Restaurants - Victoria - Award 1995, and in our view  those
   employees  have  been  comparatively  disadvantaged  for  a
   significant period of time." [transcript, p.4] [see exhibit
   O4]

   In further submissions, Ms O'Neill indicated:

        the  relevant  awards  and rates  applicable  in  the
         hospitality  industry, except for the Interim  Award,
         are consistent and uniform, and arise from arbitrated
         decisions - exhibit O2

        the  application  is consistent with the  requirement
         that  awards  are suited to the efficient performance
         of   work  according  to  the  needs  of   particular
         industries  and enterprises, and the roping-in  award
         would  provide  flexibilities that are not  available
         under the Interim Award - exhibit O3

        the  granting  of the application would not  preclude
         enterprise   bargaining,   and   approval   of    the
         application  would  provide  a  more  consistent  and
         relevant  base for such discussions and  negotiations
         to take place

        the application is consistent with the objects of the
         Act, particularly the objects in Part VI and s.88A

        if  granted, the Roping-in Award should apply from 16
         May  1996,  the date of the last report back  to  the
         Commission   regarding  the  award   and   enterprise
         bargaining negotiations

   Ms Allaway, for the Hard Rock Cafe, indicated that meetings
to  discuss  a  new award and enterprise bargaining  had  been
difficult to organise, but not all delays should be attributed
to Hard Rock Cafe.  Ms Allaway submitted:

   "We do not seem to have been able to gain a lot of areas of
   common  agreement  and the timing has been  difficult.   It
   also  concerns  me that because we are not  progressing  we
   have a workforce that is lacking the certainty of where  do
   they stand and that is causing concerns with stability  and
   just  ongoing  tension,  I guess,  between  management  and
   employees.   So where do we go from here?  We are  prepared
   to  continue  negotiating if the union was  willing  to  do
   that, however we leave with you, Commissioner, the decision
   on the roping-in to the award" [transcript, p.9]

    and further:

   "...  as I said I am concerned about the reaction that  all
   this  has  on  the workforce, and certainly our  preference
   would  be  to  get  some  sort of stabilised  situation  as
   quickly as possible."  Also, "I just wanted to say that  we
   oppose any application for roping in to be retrospective to
   the 16 May." [transcript, p.11].

    The Commission notes that the Interim Award was made on 22
December 1995 in part settlement of an industrial dispute in C
No.  11390 of 1995.  That decision in Print M8597 at  page  11
states:

   "... it must be emphasised that the Commission regards  the
   interim  award  as  a  temporary "first  step"  measure  to
   provide  a  base  from  which negotiations  and  enterprise
   bargaining can take place.

   The  parties are encouraged to use the interim award as  no
   more  than a stepping stone, and to immediately focus their
   attention  and efforts in establishing a final position  in
   accordance with the objects of s.88A of the Act.

   With  this  in mind the Commission will re-list the  matter
   during  late February 1996 so that the parties can  provide
   the Commission with a progress report including a timetable
   to   bring   this  matter  to  a  meaningful   conclusion."
   [decision, pp. 11, 12]

    Report back hearings occurred in February, April and  June
of 1996, with the Commission encouraging the parties to give a
high  priority to their discussions and timetable of meetings.
During  the  report back on 12 June it was  suggested  by  HRC
that:

   "...  rather  than  the Commission set  dates  for  further
   report  backs if you like, that the Commission   remain  on
   standby,  if  that  is the appropriate word,  and  let  the
   parties   conduct   the   meetings   and   continue   their
   negotiations  with liberty to either party to approach  the
   Commission  perhaps  on short notice, to  have  the  matter
   listed  before  yourself if a party finds  itself  in  some
   difficulty"  and  "... if you have not heard  something  by
   September  /  October this year, it might  be  a  different
   matter proceeding before you." [transcript, p. 132]

    There   can  be  no doubt that the parties understood  the
temporary short term nature of the Interim Award and the  need
to  focus  on  developing  a  more  relevant  employment-based
relationship within a reasonably short period of time.  Indeed
the  comment by HRC on 12 June that if the Commission has "not
heard something by September/October this year, it might be  a
different  matter proceeding before you" was conjecture  which
progressively became reality.

    In  reaching  a decision in this matter the Commission  is
inclined  to accept the argument advanced by the Union  which,
to some extent, is indirectly supported by Ms Allaway's stated
desire  "to get some sort of established situation as  quickly
as possible".

    The making of the Roping-in Award would be consistent with
the objects of the Act, particularly:

s.88A(a)   employees are protected by awards that set fair and
       enforceable minimum wages and conditions of  employment
       that are maintained at a relevant level; and

       (c)awards  are  suited to the efficient performance  of
       work  according  to the needs of particular  industries
       and  enterprises, while employees' interests  are  also
       properly taken into account.

    The  Commission  is  also  mindful  of  its  duties  under
s.90AA(2) which requires the Commission to:

       (a)ensure, so far as it can, that the system of  awards
       provides for secure, relevant and consistent wages  and
       conditions of employment; and

       (b)have  proper regard to the interests of the  parties
       immediately  concerned and of the Australian  community
       as a whole.

    Furthermore,  the  Roping-in Award would  provide  a  more
relevant  and  appropriate base on  which  the  parties  could
continue their workplace or enterprise discussions, as well as
removing  one  of  the  major impediments  identified  by  the
parties.

    For  all  of  the foregoing reasons, and as  indicated  in
transcript  on 24 September 1996, the Commission approves  the
making  of  Liquor and Accommodation Industry - Restaurants  -
Victoria - (Roping-in No. 4) Award 1996.

   In the Commission's opinion the Union has not substantiated
their  claim  for  a  retrospective  operative  date  and,  as
indicated  in  transcript on 24 September 1996, the  Roping-in
Award  will apply from the first pay period commencing  on  or
after  24 September 1996 and will remain in force for a period
of three months.

   Finally, consistent with the making of the Roping-in Award,
the  Hard  Rock Cafe (Interim) Award 1995 will be  set  aside.
Orders reflecting this decision will be issued in due course.

BY THE COMMISSION:

COMMISSIONER

Appearances:

B.   O'Neill   with  C.  Leach  for  the  Australian   Liquor,
Hospitality and Miscellaneous Workers
Union.

S. Allaway for the Hard Rock Cafe.

Hearing details:

1996.
Melbourne:
September 24.

Award  - roping-in award various workers, catering industry  -
application  by union to replace interim award with  roping-in
award - interim award made in part settlement of an industrial
dispute  -  interim  award of temporary short  term  nature  -
making  of roping-in award consistent with objects  of  Act  -
roping-in  award  provides more relevant and appropriate  base
from  which parties can proceed - roping-in award  made  -  no
retrospective operation - interim award set aside.

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