TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 56967-1

SENIOR DEPUTY PRESIDENT WATSON

AM2010/103

s.160 - Application to vary a modern award to remove ambiguity or uncertainty or correct error

Application by
(AM2010/103)
Restaurant Industry Award 2010

(ODN AM2009/10)
[MA000119 Print PR991086]]




Melbourne

10.01AM, TUESDAY, 5 JULY 2011

PN1

MR C. DIXON: I appear for Restaurant and Catering Association.

PN2

THE SENIOR DEPUTY PRESIDENT: Yes, very well. This matter has been brought on. I think we all know the history. The history has been placed on the website in any case. It's a variation that was made to the award by the President on 20 May 2010 to amend the definition of food, beverage attendant grade 2. Mr Parkes from your association, Mr Dixon, wrote to the President seeking to enquire as to the basis of a variation and indicating that it involved a substantive change, but are since they're seeking information as to what action might be taken. The President responded 23 July indicating that the variation was made to correct clerical error, and subsequently we have had a submission from United Voice which confirms the proposition of an error being corrected and the matter has been listed now to obtain any other views.

PN3

It appears, Mr Dixon, that your association is the only interested party which has expressed a view. So I'll hear from you. Yes, Mr Dixon.

PN4

MR DIXON: Yes. As Greg made clear, your Honour, that we believe that the exposure draft which was published in late 2009 which had the original wording, who has achieved the appropriate level of training, to be the correct wording. I note that the submission by United Voice suggests in paragraph 7 that there was some change the occurred after that period of time. But it's our view, and looking at the exposure draft which is publically available, that the wording has always been that way since the first exposure draft.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes. That's correct. That the exposure draft omitted the word as well.

PN6

MR DIXON: It is our feeling that the wording that was in the exposure draft was very deliberately chosen after considerable discussion between the parties. That if you look at the then LHMU, now United Voice, draft party submission, draft parties award that was produced before that from which the Bench decided to make their exposure draft, you can see that there has been a considerable amount of polishing of the words and deliberate choosing of particular matters. In terms of substantively, we believe that food and beverage attendant grade 2 is affected when you do change the wording. Essentially it means that school based trainees with no experience essentially become grade 3. We belie that discourages  - - -

PN7

THE SENIOR DEPUTY PRESIDENT: Sorry. Become grade 3? Why would that be? In the amended, or current version there's a requirement for the appropriate level of training, is there not, of grade 3?

PN8

MR DIXON: Well, as is my understanding that a school based trainee acquires that level of appropriate training as per the definition in the award. And therefore without any experience in the workplace would therefore be reclassified as a food and beverage attendant grade 3, as opposed to a food and beverage attendant grade 2.

PN9

THE SENIOR DEPUTY PRESIDENT: And how does the variation to grade 2 change that if the trainee, or the person who has been a school based trainee, has the relevant qualification? Does that not activate grade 3 in any case?

PN10

MR DIXON: Well, under the wording as it would have stood, they would have come under the food and beverage attendant grade 2.

PN11

THE SENIOR DEPUTY PRESIDENT: I'm sorry. You are saying these persons who are school based trainees have the relevant training?

PN12

MR DIXON: Once they have completed the relevant training, without any further experience they would go straight to a grade 3.

PN13

THE SENIOR DEPUTY PRESIDENT: Yes. But doesn't grade 3 say a person who has the appropriate level of training is engaged in any of the various duties should be classified a grade 3? The issue doesn't arise from grade 2 definition, does it?

PN14

MR DIXON: As my understanding is, in terms of classifications, it's the most appropriate classification that an individual comes under. And in terms of that a person who is a school based trainee and has that relevant qualification would have, under the old wording and the wording that stood until 20 May, come under the food and beverage attendant grade 2. Whereas now they will need to be reclassified.

PN15

THE SENIOR DEPUTY PRESIDENT: Why would they come up at grade 2?

PN16

MR DIXON: Well, in terms of if they have achieved the appropriate level of training, in that case they would be classified as having that appropriate level of training. Whereas under the new wording  - - -

PN17

THE SENIOR DEPUTY PRESIDENT: Well, they could be then classified at 2 or 3, could they not, because it's the same other than the taking of reservations, greeting and seating guests? So if both classifications were having achieved the classifications, then it would make no sense, would it? You could be graded under either 2 or 3 if you are supplying, dispensing, mixture liquor, assisting in the cellar, et cetera.

PN18

MR DIXON: And I think it's also in terms of their appropriate level that they operate at. That an individual would classify between grade 2 and grade 3. And obviously it's to my understanding that there was a great deal of discussion over this and that from the perspective of Restaurant and Catering Association, that these words were set upon deliberately. And that the word 'not' was a deliberate omission, as opposed to being an omission by accident.

PN19

THE SENIOR DEPUTY PRESIDENT: Did not the Full Bench indicate that it was adopting the structure from the Liquor Accommodation Industry Restaurants Victoria Award?

PN20

MR DIXON: I understand that they did.

PN21

THE SENIOR DEPUTY PRESIDENT: Well, wasn't that the intention of the Full Bench?

PN22

MR DIXON: I understand that that in terms of the structure was the case. But in terms of particular wording, that after adopting that structure that particular wording and issues like that were addressed. And that's how the ultimate wording was decided upon.

PN23

THE SENIOR DEPUTY PRESIDENT: But isn't the effect of that to make grade 2 and 3 the same if there is no issue about taking reservations, greeting or seating guests, so if someone is supplying, dispensing, mixing liquor, assisting the cellar, or any of the other duties in A(1)(1) then on the proposition you're advancing they could be either a grade 2 or a grade 3?

PN24

MR DIXON: And that would be what I would suggest. That implicit in the way that's structured, that a grade 2 would be operating at a different level to a grade 3 even though their tasks and responsibilities were of a similar or same nature.

PN25

THE SENIOR DEPUTY PRESIDENT: What do you say about the definition of appropriate level of training and the concluding sections for clarity that for food and beverage attendants grade 2, the classification at grade 3 is subject to the employee having completed an AQF certificate 2 qualification relevant to the grade 3 grade? Does that not indicate that there is a distinction intended on the basis of the completion of training between grade 2 and 3?

PN26

MR DIXON: There is obviously two ways of actually reading that. And that in terms of an AQF certificate 2 to being relevant to the grade 3 classification, it would also mean that they were at that level. And as expressed before, if they've got no practical experience and they're a school based trainee essentially, then there is a situation where employers will be discouraged from employing those individuals because they have to be employed at a grade 3 level, which obviously means more cost to the business for a person that potentially doesn't have the experience. And that's generally the point. That this change will mean that there are significant cost increases for businesses that need to move individuals like school based apprentices to the level 3.

PN27

THE SENIOR DEPUTY PRESIDENT: What of the other employees who aren't school based trainees?

PN28

MR DIXON: Well, in that case I would imagine that reading the differences between the grade 2 and the grade 3, that it would be suggested that a person with the relevant experience would be fitting into a grade 3 nonetheless.

PN29

THE SENIOR DEPUTY PRESIDENT: But you don't get to a grade 3 unless you have the appropriate level of training, as defined.

PN30

MR DIXON: But under the previous wording before the change on 20 May, that wording was also part of the grade 2.

PN31

THE SENIOR DEPUTY PRESIDENT: Yes. So unless and until the person obtaining the relevant training, someone who might have been working in the industry for a considerable time, they couldn't proceed beyond grade 2.

PN32

MR DIXON: Well, I would imagine that in the case of particular individuals possessing the particular skills and carrying out the particular functions, that they would still be able to fit within the scheme of the classifications. If you look at further down the track, that I think it's not just about the appropriate level of training, but it's also about the actual task that they perform. And obviously classifications in a lot of situations aren't perfect fits. So in that case it will be a case of the best fit, the classification that best meets what the job or the task that the individual is doing.

PN33

THE SENIOR DEPUTY PRESIDENT: Very well. Anything further, Mr Dixon?

PN34

MR DIXON: Perhaps just to address your attention to the fact that in the Restaurant and Catering Association submission on 16 October 2009, paragraphs 95 to 105, I believe, this issue is raised after the first exposure draft came out. So it obviously received significant attention. The issue wasn't so much about the particular wording of this at the time, but it did receive particular attention. And for the fact that to suggest that this was a mere admission and then to have Bissett who was representing the ACTU at the time, now a Commissioner, on 4 November 2009 in transcript to further go into this in detail, it would be a strange situation where with some much attention on these particular clauses in the schedule, that no one would realise that there was a mistake.

PN35

It is our view that there is no mistake there. That these were the words intended. That they were carefully drafted through conference discussions, through parties meeting at the minds, I suppose. And that this to be a mere omission that wasn't picked up for the best on two years seems unlikely.

PN36

THE SENIOR DEPUTY PRESIDENT: Yes. Anything further?

PN37

MR DIXON: That's it, your Honour.

PN38

THE SENIOR DEPUTY PRESIDENT: Okay, very well. Thank you for that, Mr Dixon. I will adjourn and I'll issue a decision in due course.

<ADJOURNED INDEFINITELY [10.17AM]