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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009
COMMISSIONER CIRKOVIC
s.156 - 4 yearly review of modern awards
Four yearly review of modern awards
(AM2014/279)
Pest Control Industry Award 2010
Sydney
10.08 AM, WEDNESDAY, 29 MARCH 2017
PN1
THE COMMISSIONER: Good morning. I'll take appearances please.
PN2
MR Z DUNCALF: If the Commission pleases, Zac Duncalf from the AWU.
PN3
THE COMMISSIONER: Thank you, Mr Duncalf.
PN4
MR MILJAK: Will I be require to stand?
PN5
THE COMMISSIONER: No, of course not.
PN6
MR J MILJAK: Jakov Miljak from the Australian Federation of Employers and Industries, AFEI.
PN7
THE COMMISSIONER: Thank you, Mr Miljak. There are no other - there being no other parties and no issues as to permission to appear, I'll just make a couple of preliminary comments. This is the first conference in relation to this award. The focus is going to be on the summary of submissions that have been circulated to the parties and dated 22 February. It's a summary of submissions technical and drafting only.
PN8
MR DUNCALF: Yes. Commissioner, there is an 8 March one. Is that the one my friend's - - -
PN9
THE COMMISSIONER: Hold on a sec, just bear with me and I'll make sure that I'm looking - - -
PN10
MR DUNCALF: 8 March, your Honour, the issues - the submissions up to and including 22 February.
PN11
MR MILJAK: Right. Yes, yes, that's fine. That's fine, just making sure.
PN12
THE COMMISSIONER: Thank you. My copy didn't say 8 March. It does now. So it's 8 March, thank you. What I intend to do is first of all I'll just confirm that the conference is recorded and what I intend to do is go through the summary item by item first to confirm its accuracy or any need for corrections, errors or the like. It may be that some matters on reflection are matters that are not pressed by the parties, so they may wish to withdraw them.
PN13
Now the purpose, as I said, is to further identify and narrow the issues in dispute between the parties. That will then be recorded and the summary of submissions and exposure draft will be amended accordingly. If the parties feel another conference is warranted or helpful then I'm more than happy to facilitate that as well. Are there any preliminary matters before we start?
PN14
MR DUNCALF: No, your Honour.
PN15
THE COMMISSIONER: Thank you. Item 1, is that matter agreed?
PN16
MR MILJAK: Commissioner, that was an AFEI submission and AFEI submitted that there was just an unnecessary duplication of the definition of the pest control industry and that was unnecessary.
PN17
THE COMMISSIONER: In the actual exposure draft?
PN18
MR MILJAK: Yes, in the exposure draft.
PN19
THE COMMISSIONER: So in 4.2, is it?
PN20
MR MILJAK: We would - AFEI, that's right, AFEI proposed that a definition would only appear in clause 2 and it's not necessary in clause 4.
PN21
THE COMMISSIONER: The clause 2 definition of pest control. All right, it's their pest control industry.
PN22
MR MILJAK: Yes, Commissioner.
PN23
THE COMMISSIONER: You're saying it's duplicated in 4.2, the same thing is it?
PN24
MR MILJAK: Correct, Commissioner.
PN25
THE COMMISSIONER: Thank you. Mr Duncalf?
PN26
MR DUNCALF: We agree with the deletion, your Honour.
PN27
THE COMMISSIONER: Right, thank you. That will be recorded then. Item 2, that might be yours Mr Duncalf. Take your time.
PN28
MR DUNCALF: It is, your Honour. Our view on this is that the allowances payable when an employee is travelling to or between country work locations, and it's paid in addition to the allowance under subparagraph (c)(ii).
PN29
THE COMMISSIONER: It's in the exposure draft, is it, 17.3?
PN30
MR DUNCALF: Yes, your Honour.
PN31
THE COMMISSIONER: 17.3(c). So is it for each trip or between different country work locations. Is that in response to a question or is that something else?
PN32
MR DUNCALF: It's in response to the question.
PN33
THE COMMISSIONER: Yes. So perhaps I'll ask you to explain that better if you don't mind.
PN34
MR DUNCALF: Sure. The clause itself states that an employee sent from one place to another as prescribed in clause (c), which is the definition of country work - - -
PN35
THE COMMISSIONER: Country work.
PN36
MR DUNCALF: - - - is paid an allowance of 8.45 for each meal. We answered the question that that 8.45 is payable for all meals while an employee is travelling to a country work location or between - - -
PN37
THE COMMISSIONER: So not just between, you're saying to as well.
PN38
MR DUNCALF: Not just between, to as well.
PN39
THE COMMISSIONER: From home or from wherever, is that what you're - - -
PN40
MR DUNCALF: Yes, because we're taking the view that where it says, "an employee sent from one place to another as prescribed", in clause (c), that "another" would be the country work. We're not submitting that the meal allowance is payable travelling from country work back home to their place of residence but just between country work locations and also out to country work locations, and that it's a supplementary - - -
PN41
THE COMMISSIONER: So to the location?
PN42
MR DUNCALF: To the location.
PN43
THE COMMISSIONER: And in-between one location and the other but not from the location home.
PN44
MR DUNCALF: That's correct, your Honour.
PN45
THE COMMISSIONER: Is that the - - -
PN46
MR DUNCALF: That's correct. That the $8.45 is just a supplementary amount to the $90.44 allowance, the daily allowance per night.
PN47
THE COMMISSIONER: Mr Miljak?
PN48
MR MILJAK: Commissioner, AFEI hasn't - we haven't responded to that particular submission. We're aware that the question was asked for the parties to clarify the intention of the clause. We might have potentially an issue with I suppose - we note earlier in the clause that - in the country work clause at (ii) that an employee sent to country work will be paid an allowance of $90.44 per night to cover the cost of lodging and all meals. Now, I would be happy to see any prescribed wording that the AWU would like to maybe clarify the meaning. We haven't seen any wording but we're happy to see that, if the union believes that that might clarify the meaning of it. We haven't made a submission yet - - -
PN49
THE COMMISSIONER: Are you suggesting - I'm not sure you've quite articulated that way but are you suggesting that (c)(ii):
PN50
An employee sent to country work will be paid an allowance an allowance of $90.44 per night to cover the cost of lodging and all meals.
PN51
Are you saying the "and all meals" there is included in the 90.44, such that the extra 8.45 shouldn't be paid from destination A to the country. Is that potentially where you're going with that?
PN52
MR MILJAK: Correct, Commissioner. That may potentially be the case so there may be a different issue between travelling to the country and then between actual country locations. As I said, I don't believe either party has proposed wording so I don't know how the exposure draft would be changed.
PN53
THE COMMISSIONER: Mr Duncalf, would it be given what you've heard from Mr Miljak is it perhaps the best way forward is for you to consider this position that's been put and suggest a form of wording that then can be circulated to the parties for consideration, that that then can be subject to further discussion at the next conference?
PN54
MR DUNCALF: I can do that, yes.
PN55
THE COMMISSIONER: Is that an appropriate course?
PN56
MR DUNCALF: That's appropriate for me, your Honour, yes.
PN57
MR MILJAK: That would be great, Commissioner, thank you.
PN58
THE COMMISSIONER: Thank you. The summary of submissions will be amended to reflect the parties' positions and the fact that Mr Duncalf you will be submitting a form of wording to the AMOD team for circulation to the parties, with a view to this matter being included in the list of items for the next conference.
PN59
MR DUNCALF: Yes, your Honour.
PN60
THE COMMISSIONER: Thank you. Is 14 days sufficient?
PN61
MR DUNCALF: Yes, your Honour, that's sufficient.
PN62
THE COMMISSIONER: Thank you. Item 3.
PN63
MR MILJAK: Commissioner, I believe that was in relation - AFEI - - -
PN64
THE COMMISSIONER: Mr Miljak, yes.
PN65
MR MILJAK: Yes. Yes, that's right.
PN66
THE COMMISSIONER: Thank you.
PN67
MR MILJAK: Yes, so this was a submission by the AFEI in relation to - we had an issue with the exposure draft potentially changing the substantive meaning of the safety clothing and equipment clause at 17.4.
PN68
THE COMMISSIONER: 17.4(c).
PN69
MR MILJAK: (c), correct. Commissioner, in the exposure draft, you'll notice that the sentence has been broken up and there's a full stop and then it goes onto say that:
PN70
Reasonable facilities are to be made available by the employer for the safekeeping of such equipment.
PN71
THE COMMISSIONER: Yes.
PN72
MR MILJAK: By breaking the sentence up in the way that has been proposed in the exposure draft, that would create an obligation which doesn't exist currently. The current award doesn't read like that. It says:
PN73
If reasonable facilities are to be made available.
PN74
Commissioner, I do believe that this isn't contentious.
PN75
MR DUNCALF: It isn't.
PN76
MR MILJAK: And that the AWU has submitted some alternative wording which we would agree to potentially, so I don't think it is a contentious one.
PN77
MR DUNCALF: It isn't, your Honour. The - - -
PN78
THE COMMISSIONER: Just so I'm clear. Mr Miljak, you're putting forward that 17.4(c) as it has been expressed in the exposure draft where the sentences are broken up and the second sentence:
PN79
Reasonable facilities are to be made available by the employer for the safekeeping of such equipment imposes an obligation on employers that in fact did not exist or does not exist in the award.
PN80
Mr Duncalf, you have put forward an alternative form of wording. Is that correct?
PN81
MR DUNCALF: Correct, your Honour.
PN82
THE COMMISSIONER: Mr Miljak, you are happy to accept that alternative form of wording.
PN83
MR MILJAK: Yes, Commissioner. It seems that it's very similar and in fact has the same effect as the current award, so we would agree to that.
PN84
THE COMMISSIONER: The current award or the form of wording put forward by Mr Duncalf?
PN85
MR MILJAK: So the wording put forward by Mr Duncalf reflects the current understanding of the clause.
PN86
THE COMMISSIONER: Thank you. The summary of submissions will be amended to reflect those positions. Item 4. Mr Duncalf.
PN87
MR DUNCALF: Your Honour, this one we seem to agree in the proposition, in answering of the proposition by the Fair Work Ombudsman they gave an example of where it would be considered unfair whether the shift worker penalties would apply or dayworker penalties would apply for a shift of 10 am to 7 pm. I believe that both AFEI and AWU agree that it is dependent on the employee's ongoing engagement, whether they are a shift worker or a dayworker. The AWU would submit that the clause lacks a definition of shift worker and the whole document does, in fact. So that does create a little bit of an area, a grey area for what penalties would apply to what shifts worked as the definitions of afternoon shift and night shift are very clear. So that's why the FWO said what about if someone finished at 7 pm, would they be on afternoon shift because afternoon shift means any shift finishing after 6 pm.
PN88
Basically we suggested that it does need further clarification. We took some kind of guidance from the pre-modern award as it has - in one of our submissions we wrote the pre-modern award has a shift roster provision, and we believe that perhaps a shift roster provision in the exposure draft under clause 21 would assist someone reading the award in determining what penalties will apply to what employees on what shifts. Currently there is no specific reference to a shift worker's roster in this award, and so we believe that that's where this lack of clarity has kind of sprung from.
PN89
MR MILJAK: Commissioner.
PN90
THE COMMISSIONER: Mr Miljak. Apologies - I do apologise that I keep repeating your names. It's simply for the sake of the transcript. It is much easier if when you do say something you identify yourself first, if you don't mind.
PN91
MR MILJAK: My apologies.
PN92
THE COMMISSIONER: Thank you.
PN93
MR MILJAK: Yes, Mr Miljak AFEI. Commissioner, as my friend alluded to, AFEI and the AWU do have the same interpretation of when the shift penalty should be paid, and when the overtime penalty should be paid. We are aware - AFEI is aware that there isn't presently a definition of shift work or, you know, a shift roster isn't mentioned in the award. We would be - we're not - AFEI is not proposing any change. There may be a case for some additional clarity. We would be happy to see if there was - if the AWU wishes to propose something, we would be happy to respond to that.
PN94
THE COMMISSIONER: Is this perhaps another - I'm sorry, Mr Miljak, to cut you off but is this perhaps another item that can be addressed by Mr Duncalf by way of suggested wording that can be then considered by the parties? Is that - - -
PN95
MR DUNCALF: Mr Duncalf, AWU.
PN96
THE COMMISSIONER: Yes.
PN97
MR DUNCALF: That is correct. I have no problem submitting something. I'd like some guidance on the scope though because this is quite a vague area of the award, and I wouldn't want to walk across the substantive line.
PN98
THE COMMISSIONER: Certainly. My next point was going to be, I was going to suggest that perhaps some guidance is sought from the AMOD team, because there could be in fact a Full Bench that's already dealing with this type of clause that we'd need to factor into any consideration potentially of this clause. So perhaps as a first step some guidance is sought from the AMOD team as to the scope, question of the scope and the clause itself. That then can be circulated to the parties and at that point perhaps, Mr Duncalf, if you feel it appropriate having considered the AMOD response to putting a submission or a form of wording that can be then considered by the parties for further discussion at the next conference. Is that a suitable approach?
PN99
MR DUNCALF: Mr Duncalf. Yes, it is.
PN100
MR MILJAK: Mr Miljak. AFEI would be very happy to support that approach.
PN101
THE COMMISSIONER: Thank you. Item 5.
PN102
MR MILJAK: Mr Miljak AFEI. Commissioner, we seem to - there seems to be a slight disagreement in relation to the annual leave loading and how it may be in fact calculated. AFEI submits that the - it would be opposed to a method of calculating annual leave loading that is 17.5 per cent of the employee's minimum hourly rate, plus leading hand allowance, plus the first aid allowance, AFEI would where - so we would be against - maybe if I just start that again, Commissioner.
PN103
We would propose that the - just bear with me. I believe, Commissioner, that it has to deal with whether or not those allowances would form part of the all-purpose rates upon which the 17.5 per cent would then be calculated. AFEI's view would be that the 17.5 per cent would be working the minimum rate first and then the addition of any allowances after. So the allowances would not actually form part of the minimum - the all-purpose rate after which the 17.5 per cent would be added on.
PN104
THE COMMISSIONER: So you're not in the context of that submission, you're not suggesting an approach that's contrary to the approach suggested by the Full Bench in its September decision that deals with how the casual loading is calculated. Whether it's on the minimum rate or the ordinary rate, where there is an existing all-purpose allowance. As far as I'm aware that matter's been considered by the Full Bench and any departures from that, as I understand it, any departures from that position need to be dealt with cautiously of course, and may require submissions and evidence.
PN105
But as far as - and I recall that was the September 2015 decision and that confirmed that where the casual loading - where there is an all-purpose rate - all-purpose allowance, then the loading is calculated on the ordinary rate not the minimum rate. The question you might be though raising is whether or not in fact these allowances form all-purpose allowances. That might be another question.
PN106
MR MILJAK: Yes, Commissioner, if I just may - going to the - I think it was in response to a question asked in the exposure draft at 22.3, perhaps that might be helpful to perhaps visualise where the - - -
PN107
THE COMMISSIONER: Loading - - -
PN108
MR MILJAK: Yes. So AFEI's position was that it was - the correct interpretation would be in effect what is reflected by the first bullet point.
PN109
THE COMMISSIONER: Proposition.
PN110
MR MILJAK: Correct.
PN111
THE COMMISSIONER: So it's 17 - you would say 17.5 per cent of the minimum rate and then the allowance.
PN112
MR MILJAK: I believe that the AWU was attempting to have the position that the leading hand allowance was an all-purpose allowance, is that correct perhaps?
PN113
MR DUNCALF: Zac Duncalf. Yes, that is correct. That's taking guidance from the pre-modern award again.
PN114
THE COMMISSIONER: So the leading hand allowance forms part of - is an all-purpose allowance. Is that correct?
PN115
MR DUNCALF: Correct, your Honour, yes. Under clause 9(e) of the pre-modern award, the loading is stated to be:
PN116
The amount payable for the period at the rate per week of 17.5 per cent of the appropriate ordinary weekly time rate of pay prescribed in this award for the classification on which the employee was employed immediately before commencing his or her annual holiday, together with the leading hand allowance where applicable.
PN117
We're taking to mean that that forms part of the rate on which the 17.5 per cent is calculated, your Honour.
PN118
THE COMMISSIONER: Is this perhaps a matter that's best dealt with by submissions at this stage? Or some clarification by the parties, Mr Miljak.
PN119
MR MILJAK: Mr Miljak. It just may seem that the AWU's proposal - I understand that they are basing it off the pre-modern award but it might amount to a substantive change from the current award.
PN120
THE COMMISSIONER: So this might be an issue that needs to move to a substantive issue, rather than technical and drafting. Is that your point potentially?
PN121
MR DUNCALF: Mr Duncalf. I don't agree, your Honour. I think this is basically an issue of interpretation of current wording under 22.3(e), where it says:
PN122
An additional loading of 17.5 per cent of the employee's minimum hourly rate plus industry and first aid allowances where appropriate.
PN123
The question was raised whether those industry and first aid allowances are indeed forming part of the ordinary rate on which the 17.5 per cent is calculated, or the minimum rate has a 17.5 per cent loading and then those allowances are payable on top of that. I think - - -
PN124
THE COMMISSIONER: Are you suggesting that the industry and first aid allowances though are all-purpose allowances?
PN125
MR DUNCALF: I'm suggesting that they are, taking guidance from the pre-modern award. But that is my only area of guidance on that issue.
PN126
MR MILJAK: Mr Miljak AFEI. That is where we would note that there doesn't seem to be that guidance coming from the current award, hence we are guided by the current award as it is in determining our opinion of whether or not that would be in fact an all-purpose allowance, Commissioner.
PN127
THE COMMISSIONER: Mr Miljak, do I take it though that you are disputing that this is an all-purpose allowance? That's really what I'm - or are you - - -
PN128
MR MILJAK: Well AFEI doesn't believe that the current award says it's an all-purpose allowance. There's nothing to suggest that it is.
PN129
THE COMMISSIONER: Right.
PN130
MR DUNCALF: Zac Duncalf - - -
PN131
THE COMMISSIONER: You've heard, Mr Duncalf, Mr Miljak appears to be, as I understand him, suggesting that these are not all-purpose allowances referred to in 22.3(b). From that I take it his submission is that the 17.5 per cent is paid on the minimum rate - - -
PN132
MR MILJAK: That would be the submission, Commissioner.
PN133
THE COMMISSIONER: - - - which in answer to the question raised by the Commission in 22.3(1), the first dot point is what he says.
PN134
MR DUNCALF: Zac Duncalf, we read it to be the second dot point in that the 17.5 per cent loading is on the leading hand not industry and first aid allowance as they - - -
PN135
THE COMMISSIONER: So you'd be suggesting it's an all-purpose allowance and therefore it's 17.5 per cent, sorry, of the ordinary hourly rate, not the minimum rate.
PN136
MR DUNCALF: Yes, your Honour. That is correct.
PN137
THE COMMISSIONER: This then might be a matter that requires further submission from the parties. Would there be any benefit from some clarification being sought from the AMOD team on any of these issues?
PN138
MR DUNCALF: I'm unsure if - as I said previously, I don't think that it would amount to a substantive claim because it is a technical issue. It is interpretation - - -
PN139
THE COMMISSIONER: Well to the extent that it has the capacity to change the meaning of the allowances and the like, then it does potentially become a substantive matter, as you can appreciate, if your interpretation is as you put and Mr Miljak's is as he puts it, there is a substantial difference.
PN140
MR DUNCALF: There's a difference between the two.
PN141
THE COMMISSIONER: Yes.
PN142
MR DUNCALF: Yes, I agree, your Honour.
PN143
THE COMMISSIONER: It may be something that's raised with the AMOD team that the views of the parties will be noted now that it's clear and the question that's been asked by the Commission has - the parties have clarified their position in relation to that. So that will be noted and it might be something that the parties wish to make further submissions about and if it turns out that it's in fact a substantive matter then that will be moved from the technical and drafting and put in the substantive issues basket and it will be dealt with appropriately.
PN144
MR DUNCALF: Your Honour, Zac Duncalf. I think I'd like to send a written response submission in to clarify my position, or the union's position on this.
PN145
THE COMMISSIONER: Thank you.
PN146
MR DUNCALF: I'll do that - seven days, if that's all right.
PN147
THE COMMISSIONER: Absolutely. You have 14 days on the other one so it's up to you.
PN148
MR MILJAK: I'll do the same if that's okay, your Honour.
PN149
THE COMMISSIONER: You can do the same.
PN150
MR MILJAK: That would be fine, Commissioner. We'd be happy to have a look at all that when they're ready.
PN151
THE COMMISSIONER: Thank you. Item 6 relates to schedule D.3 does it?
PN152
MR DUNCALF: Zac Duncalf, your Honour. Yes, we answered in our submissions that we are unaware of any other training program which applies to the same occupation and achieves essentially the same training outcome as an existing apprenticeship.
PN153
MR MILJAK: AFEI at this point hasn't responded to that or it doesn't appear that either party's proposing to amend the award. We wouldn't have a position at this present time really in relation to that.
PN154
THE COMMISSIONER: Thank you. Item 7.
PN155
MR DUNCALF: Zac Duncalf, your Honour. The AWU is unaware of anything to be added and submit that the packages listed are complete and up to date.
PN156
THE COMMISSIONER: Thank you.
PN157
MR MILJAK: We wouldn't have any opposition to that, Commissioner.
PN158
THE COMMISSIONER: Thank you, Mr Miljak. That appears to conclude the issues. These matters will be raised with the AMOD team. The summary of submissions technical and drafting will be updated, the document will be circulated, the exposure draft will be updated. The only thing then that might need to be addressed is the need for a further conference. I'm in the parties' hands there.
PN159
MR MILJAK: Commissioner, Miljak AFEI. At some point after the 14 day period, once we've had a chance to have a look at those, maybe one more conference after that at some point might be - - -
PN160
THE COMMISSIONER: I'll list that now then - discuss dates with you now then if one more conference is anticipated.
PN161
MR DUNCALF: Zac Duncalf. Based on our written submissions and also the guidance we get from the AMOD team, if we believe that we can't solve it through written submissions, if we've still quite disparate views, then perhaps - - -
PN162
THE COMMISSIONER: One more conference.
PN163
MR DUNCALF: - - - one more conference.
PN164
THE COMMISSIONER: Just bear with me for a moment. How is Wednesday, 1 o'clock, on the 26th?
PN165
MR MILJAK: That suits - Miljak AFEI, that suits me.
PN166
THE COMMISSIONER: Apologies, 26 April.
PN167
MR MILJAK: That would suit AFEI.
PN168
MR DUNCALF: Zac Duncalf, yes, that would suit us too, your Honour.
PN169
THE COMMISSIONER: Thank you. If there's nothing else, the matter is adjourned until the afternoon of the 26th.
PN170
MR MILJAK: Thank you, Commissioner.
PN171
MR DUNCALF: Thank you, your Honour.
PN172
THE COMMISSIONER: Thank you.
ADJOURNED UNTIL WEDNESDAY, 26 APRIL 2017 [10.43 AM]