PN1

THE DEPUTY PRESIDENT: Good morning. It's Deputy President Clancy on the line. Could I confirm I have on the line, please, Mr Rose.

PN2

MR P ROSE: Yes, Deputy President.

PN3

THE DEPUTY PRESIDENT: Thank you. Mr Monroe?

PN4

MR J MONROE: Yes, Deputy President.

PN5

THE DEPUTY PRESIDENT: Thank you. Ms Keogh?

PN6

MS E KEOGH: Yes, thank you.

PN7

THE DEPUTY PRESIDENT: Thank you. The Commission has called this matter on for conference. It's an application to vary the Fitness Industry Award 2020, an application that has been made by Mr Rose, and it concerns the operation of primarily clause 13.4 of the award.

PN8

In line with usual Commission processes for applications to vary awards, the President has constituted a Bench, he has constituted a Full Bench for this matter, of which I'm the presiding member. And we have established - the Commission has a designated page on the Commission's web site for this application, to keep parties with an interest in the operation of this award informed of the application.

PN9

This conference today is to have an initial discussion about the application; hear from firstly Mr Rose, then Ms Keogh, then Mr Monroe in relation to the application; and then from there we will have a discussion about the process moving forward for the further management of this application.

PN10

The Commission has before it the application that was made by Mr Rose. It concerns the length of the span of hours of ordinary hours of work. And whereas the award currently allows for the span lasting 12 hours from the start of the first part of the shift to the end of the second part of the shift, and this is in the circumstances where a broken shift is worked, that's currently 12 hours. The application that has been made by Mr Rose is that that 12 hours be increased to 13 hours.

PN11

What I would do now is ask Mr Rose just to speak to the application that he has made, and then I will ask for any comments from Ms Keogh, and then Mr Munroe. The Commission has notified parties that have previously been involved in the review of this award as part of the four-yearly review of modern awards, and it has also notified parties that are subscribers to the awards and the four-yearly review through the Commission's website.

PN12

We're recording the conference today for transcript purposes again so that the transcript can be available to anyone who wasn't available to attend today, so they can be appraised of what's being discussed. I will ask now Mr Rose to make any comments he wants to make in addition to those which are contained in the application that he has filed. Thank you, Mr Rose.

PN13

MR ROSE: Thank you, Mr Deputy President. Yes, so I have explained most of it in the application form that I've submitted, but (indistinct) the discussion I guess. In my experience with hiring staff, the expectation, I think, of employees, or even in the fitness industry be it contractors or employees, feel they often come into the industry expecting to work before and after, you know, the typical 9-to-5 days.

PN14

I feel personal trainers and group fitness instructors understand that the realm of the industry, which it is, you know, your 5 am boot camps, your 6 am classes, and personal training clients; and of course on the other end of the day it stretches into, you know, the p.m. hours as well, so talking 6 pm, 7 pm sort of hours.

PN15

For me as an employer, I've been in the industry for 16 years now. I've been running my current facility for over 10. I've got 13 employees with me currently, and I guess hiring - being able to offer a job - I could rephrase that, sorry. If the span was to increase to 13 hours or beyond, it would allow myself and other employers to be able to offer more permanent full-time work.

PN16

At the moment because it's only a 12 hour span it's not actually covering the peak hours of our industry, which is typically 5 am, 6 am and 7 am; and likewise in the evening as well, all those again p.m. times, 5, 6 and 7 pm. So that sort of puts employers in a position where we have to look for - we can't really offer many full-time jobs because they are our peak hours, we have to break it up into either two part jobs or generally casual hours.

PN17

In my experience when I do do that, you don't get many people apply for jobs, it makes finding applicants harder; whereas if you could just turn around and offer one full-time position that could handle the span of the peak hours, good for employers, we get more applicants; good for employees, they get more stable work. I feel that probably - I guess that's quite expected in the industry too, that the trainers come out of their courses expecting to work such hours.

PN18

Again in my experience I often have to turn down requests for more hours where a trainer may in the morning pick up some clients for personal training in the evening and, you know, they may run a 6 am class, and then a person has requested through that trainer directly if they could do personal training in the night-time, be it a family member or themselves. I have to say no, they can't do it, because of the span of day.

PN19

So I think it's very expected that employees want to work more hours, but I have to say they can't at the moment. So yes, increasing to 13 hours would be, yes, a minimum request; 14 would be brilliant, because then it could cover the true peak hours of our industry. But yes, that's my comments so far, Mr Deputy President.

PN20

THE DEPUTY PRESIDENT: Thank you. Ms Keogh.

PN21

MS KEOGH: Thank you, Deputy President. Just to note that United Workers Union is an interested party in this application as we're an organisation duly registered in accordance with the Fair Work Registered Organisation Act and is eligible to cover employees engaged in the fitness industry. The union has existing members who are covered by the Fitness Industry Award, and it's on that basis that we're an interested party here today.

PN22

My comments are that in the first instance the union intends to oppose the application for any expansion on the span of hours applicable for broken shift arrangements. We would note that currently there are only 18 modern awards that provide for any split or broken shift arrangements, because it is generally understood that continuity of hours under awards appears to be a core expectation.

PN23

Of the 18 awards that do provide for a split shift or broken shift arrangement, the Fitness Industry Award provides an exceptionally broad entitlement with relatively low remuneration. Currently the split shift arrangements applicable allow an employer to, over the course of the 12 hours, only schedule an employee to be engaged for three hours, exclusive of meal breaks, and in up to two periods of work.

PN24

This capacity to schedule employees for only three hours of work over a 12 hour duration is an exceptionally low bar for the 18 awards that provide for split shift arrangements. We would also note that the compensation applicable to broken shifts in this award is relatively low. There is compensation of $14.16 per day, with a small fare expense-related allowance of $1.95 per day.

PN25

We say that on this basis that any expansion of the span of hours applicable for a broken shift arrangement in the first instance are not necessary to meet the modern award objectives underpinning any variation to an award; and further are in fact contrary to the modern award objectives underpinning modern awards, because we say any expansion to the timeframe would fail to recognise the needs of low-paid workers.

PN26

We would be talking about an instance where an employee would have to in effect become vulnerable to the risk that they're available for a 13 hour period, they only work three hours in that 13 hour period, and they may not have the capacity because of that broad range of hours to engage in any secondary employment.

PN27

We also say that it negatively impacts the social inclusion and workforce participation. Requiring an employee to be available for over a 13-hour period may exclude particular kinds of workers from engaging in the workforce. And we would also say that it fails to meet the modern award objective of appropriately compensating employees for working unsociable hours, and to be properly remunerated for that work. So the union intends to oppose the application.

PN28

THE DEPUTY PRESIDENT: Thank you. Now, Mr Monroe.

PN29

MR MONROE: Thank you, Deputy President. I confirm I appear on behalf of Gymnastics Australia, which was also a participant in the four-yearly review of this modern award, and that it is a representative body that represents a number of gymnastics clubs throughout Australia, many of whom are covered by this award.

PN30

I've got instructions that Gymnastics Australia supports the variation proposed by Total Training and brought by Mr Rose; that it believes that it is consistent with the needs of the industry and the needs of employers who are covered by this modern award; and also, as Mr Rose has very well put, the needs of employees in this industry, and the expected work pattern of employees within this industry.

PN31

I don't have instructions to make any further comments at this stage, simply to indicate Gymnastics Australia's supports the variation, and to participate in any conference around the setting of times and so forth for the progress of this matter.

PN32

THE DEPUTY PRESIDENT: All right. Thank you. In terms of the relevant provisions, and there may be others that emerge during the conduct of this matter, it's noted, and I think the parties are well across this, that there's - in clause 13(1) of the award - 13.1, I beg your pardon:

PN33

The span of hours for Monday to Friday being 5 am to 11 pm, and then 6 am to 9 pm on Saturdays and Sundays.

PN34

Clause 13.2:

PN35

Ordinary hours of work must not exceed an average of 38 per week over a four week period.

PN36

Then clause 13.3:

PN37

Ordinary hours of work must not exceed 10 hours in any one day.

PN38

And then 13.4, and there are a couple of points here and Ms Keogh has alluded to one of them, but in 13.4, dealing with broken shifts:

PN39

Shifts not to be broken into more than two parts.

PN40

That subclause (a); subclause (b):

PN41

The total length of the shift is not less than three hours, exclusive of meal breaks.

PN42

And then thirdly, and this is the focus of the application, that:

PN43

The span of hours from the start of the first part of the shift to the end of the second part of the shift is not more than 12 hours.

PN44

And there's then related, in terms of the mechanics of how these shifts would work and what might come into focus with the application, is clause 19.3, which deals with breaks between shifts, and it provides that:

PN45

An employee is entitled to a minimum of a 10-hour break between shifts.

PN46

And there's then overtime penalties that arise if that doesn't occur. And then there was the reference that Ms Keogh made to the broken shift allowance of clause 17.2(b) of the award, and it provides for a broken shift attracting an allowance of $14.16 extra, and for excess fares, an expense-related allowance of $1.95 a day.

PN47

From what has been discussed so far, or at least raised, the application is contested. It wouldn't appear, based on what everybody said, is that there's much room for movement between the two respective positions. I say that because the application is made in fairly clear and simple terms. It's where the current length of time is 12 hours, it's proposed to extend it to 13.

PN48

Whether or not there are other changes that would arise if for example that application was granted, any consequential changes to the other clauses of the award or provisions of the award is not immediately apparent.

PN49

But Ms Keogh has touched on a number of elements that lie behind the intention to oppose the application which would suggest that the respective positions that have been outlined this morning are fairly stark in their difference, and that what we might be best doing at this stage is talking about a process for the further conduct that involves parties expanding upon the submissions they've made and bringing any evidence they wish to bring in support of their respective positions.

PN50

I suppose I should ask the parties whether they think there's any basis in discussing the proposals further in a conference-type setting. Today might have been the first time that parties are getting a bit more of an understanding of the issues at play in the application. But for my part it seems as though the two positions are relatively clear, and I'm not sure if there's fertile ground for bridging the gap.

PN51

If for example the proposal was maybe more broad in compass, there might be some opportunity to do so. And I also accept that the parties may be still going through a stage of consideration of the issues raised by the application, and there may be some consultation as well such that for example Ms Keogh, if it was ultimately the intention of the union to perhaps seek to have the broken shift allowance addressed if the span was to increase, for example, or something like that, that may add - you know, if that was - or if there were some other things that you wish to discuss.

PN52

I would be interested to know whether, you know, at this stage what might be the way to move forward is to open this up for parties to put forward some material in support of their respective positions, the Full Bench can consider it. In other applications such as this we have then put out a background paper, and in some cases we might express a provisional view, but in other cases it's reliant on us - you know, taking the matter forward is reliant on us hearing some evidence about it and proceeding in that way.

PN53

So in the circumstances probably what I will do is firstly ask Ms Keogh: have you had any thoughts - given the position that you've outlined, have you any thoughts on perhaps the optimum way to proceed in a process sense?

PN54

MS KEOGH: Thank you, Deputy President. In our view, as I said, broken shift arrangements under modern awards are relatively rare. Additionally we are only aware of one modern award which provides for a 13 hour span for broken shift arrangements. So at this stage we intend to oppose the application as it stands, and we would be keen to proceed to hearing as in our view a variation to a modern award must not simply be desirable to achieve the modern award objectives, it must be necessary to achieve the modern award objectives.

PN55

And although we've heard very clearly the position of the applicant, we would seek for them to demonstrate how this change would be necessary, particularly considering the rarity of broken shift arrangements and rarity of such a long span of a broken shift arrangement, so we don't - unless a position is put, we don't really see any utility in an informal conference discussion. We would suggest that if the application is pressed, that we proceed with presenting further submissions.

PN56

THE DEPUTY PRESIDENT: All right. Thank you. Sometimes the presentation of material gives rise to some discussions, so they can't be ruled out. It is sometimes the case that the filing of material raises matters that others involved in the proceeding may not have considered before, and prompt some discussions. But time will tell. Mr Monroe, any comments about the process going forward?

PN57

MR MONROE: Thanks, Deputy President. Gymnastics Australia would not oppose that sort of informal conference between the parties, but in the circumstances where, as the Deputy President has said, there is a quite stark difference in positions, we would be comfortable to proceed with submissions on the way to hearing.

PN58

THE DEPUTY PRESIDENT: All right. Mr Rose, what's being alluded to here is in the event of an application being opposed, the Commission needs to give all interested parties an opportunity to fully outline their case and make submissions in support of that case.

PN59

That is a process that involves them putting on material that outlines the basis of the application that's made; how it would work; some witness evidence in support; for example, you made some comments that go to your example, having operated in the industry for 16 years; and there may be others who you are familiar within the industry who could also speak to the rationale behind the change that you are seeking in this application. So there would be witness statements from people involved in the industry, for example.

PN60

And you will have heard Ms Keogh refer to what's described in the Fair Work Act as the modern awards objective, which is set out in section 134, and it would be necessary for the parties to address those elements and take the Commission to any one of those in particular that they say have particular relevance to this application. There are a number of those elements, some of those have been specifically referred to by Ms Keogh. But it would be necessary for you in maintaining the application to engage with that.

PN61

So what I think I will do is I will confer with the other members of the Full Bench around a timeline, which will involve giving the parties a period of time within which they are to file with the Commission any material they want to rely upon that is in support of the application or that is opposing the application.

PN62

As I said, that would involve witness evidence in the form of statements; any other documentary material upon which the parties would rely; and then an outline of submissions or an outline of your arguments, having particular regard to the modern awards objective and various other provisions of the Fair Work Act that are brought into focus by this application. So we would set out a timeline for that, and then a hearing, an opportunity for hearing.

PN63

At this stage it's perhaps a little difficult to be able to predict what sort of a time period would be needed for a hearing and how many witnesses there might be, but I will give that some thought. Are there any other matters that the parties want to raise, or any questions about that before we perhaps conclude this morning?

PN64

Firstly from you, Mr Rose, anything that I can provide you some information with, noting that perhaps of anyone on the call, you're the least familiar with how these applications are conducted in the Commission.

PN65

MR ROSE: Thank you, Mr Deputy President. Ms Keogh brought up some interesting points too, that I would be happy to discuss. I would like to proceed. Yes, I think the interesting point was that, you know, potentially when looking at the fitness industry and comparing it to all of the other industries, I think we're a different industry. Our hours are a big span, just the industry itself, so to somewhat maybe lump it all in with the way peak hours are in other industries, I would suggest is somewhat unreasonable.

PN66

I would like to suggest that I'm trying to create jobs and I'm trying to create more hours for employees, but I can't change the nature of my industry. When customers come, it's when they come, and I need to be able to have the ability to create full-time positions in those hours. So yes, that's probably all I would like to add to it, really, is that yes, the heart is in the right place.

PN67

We're trying to create jobs for people to suit our industry, and our industry is unique. We do operate, you know, in much further span of days than I would say any other industry that I can think of - or most industries, rather. And that in regards to somewhat - maybe some minimum entitlements that employees get, I pay well above the award rate. I think the award rate at the moment is 23.68, I believe. There's no one on my team under 30 an hour.

PN68

And I would be more than - Ms Keogh's point about the split shift allowance, I think that's some $14; I actually agree with her, I think that should increase. And yes, we should be fair, because at the end of the day I want happy employees that want to work and that they are energised. But, you know, if they're only getting a handful of hours every week, sometimes that's hard on them so, you know, if you can offer them stable employment, that's kind of what it's all about.

PN69

I don't think increasing the span of hours from 12 to 13 is a huge change to the award, and it is to suit our actual industry itself. So yes, that would be all my comments, Deputy President.

PN70

THE DEPUTY PRESIDENT: All right. Thank you. It strikes me that once the parties have perhaps had the chance to expand upon some of the matters that they've raised this morning, and the other parties get a chance to read that, that that may give rise to everybody seeing their case slightly differently. It might prompt some discussions. But even if it doesn't, it will certainly focus the application for the Full Bench's further consideration of it.

PN71

Mr Rose, in terms of what would be required, is it relatively clear what would be involved from here from your perspective as the applicant?

PN72

MR ROSE: Yes. Thank you, Deputy President, yes, I do think so. I think - and please anybody can correct me if I'm wrong, but I believe probably just hearing from some employees themselves would be of great benefit. Hearing, you know, some experience that they've actually got where they're actively requesting more hours from me, but I can't give it to them because it's - you know, the clients aren't in at the time of the day.

PN73

The clients don't span inside 12 hours, the clients span over, you know, 15 hours, if I'm honest with you. That's the span. So yes, I think that would be the evidence I would need to bring to the table, is some employees' perspectives, and maybe even some RTOs that we work with as well who are actually educating these young adults who are coming into the industry with the expectations of what the hours are in the industry. So there are plenty of RTOs that know the game, and other like-minded businesses, I guess, yes.

PN74

THE DEPUTY PRESIDENT: All right. Then of course you will need to have reference to section 134 of the Fair Work Act, and there may be other sections that come into focus. Just so that you're aware of that as well. All right?

PN75

MR ROSE: Okay. Thank you.

PN76

THE DEPUTY PRESIDENT: Any comments, anything further from you, Ms Keogh?

PN77

MS KEOGH: No thank you, Deputy President, other than to indicate that just for your consideration in forming the timeline, that we suspect in our submissions in reply that we may have one to three witnesses included, just to give you a sense of scale of our intended response.

PN78

THE DEPUTY PRESIDENT: Thank you very much. Thank you, that's most helpful. Mr Monroe, any comments from you?

PN79

MR MONROE: Nothing further at this time, Deputy President.

PN80

THE DEPUTY PRESIDENT: All right. Thank you. As I've outlined, I will confer with the other members of the Bench, we will decide upon a process for the further conduct of this application, and we will issue directions in relation to that. You will all be notified of those directly, but we will also notify through the web page that the Commission has established in relation to this application.

PN81

There being nothing further this morning, I will just thank everybody for their contribution to this morning's discussions. It has been very helpful from my perspective. And we will otherwise adjourn. Thank you very much.

ADJOURNED INDEFINITELY [10.42 AM]