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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 25636-1
VICE PRESIDENT LAWLER
AM2010/32
s.158 - Application to vary or revoke a modern award
Application by WA Local Government Association (WALGA)
(AM2010/32)
Local Government Industry Award 2010
(ODN AM2008/89)
[MA000112 Print PR991079]]
Melbourne
11.04AM, WEDNESDAY, 12 MAY 2010
THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA
VIDEO CONFERENCE AND RECORDED IN MELBOURNE
PN1
MS C PULLEN: I appear on behalf of the LHMU.
PN2
MR K HARVEY: Your Honour, I appear on behalf of the Australian Services Union.
PN3
THE VICE PRESIDENT: Thank you. I think in Perth we have some appearances. Can Perth hear?
PN4
MR S WHITE: Yes, sorry. From Perth I appear for and on behalf of the applicant, the West Australian Local Government Association.
PN5
THE VICE PRESIDENT: Thank you Mr White. I think Mr Malloch-Smith?
PN6
MR A MALLOCH-SMITH: I appear for the West Australian Local Government Association.
PN7
THE VICE PRESIDENT: Thank you very much indeed, and in Brisbane I think Mr Cooney?
PN8
MR COONEY: That’s correct, your Honour.
PN9
THE VICE PRESIDENT: Now, can we just make sure we are all on the same page here. This is an application pursuant to section 158 of the Fair Work Act, and it is an application that seeks to invoke the power conferred by section 157 which empowers Fair Work Australia to make a determination varying a modern award otherwise and to vary modern award minimum wages on the basis that the Tribunal is satisfied that making the determination outside the system of 4-yearly reviews of modern awards is necessary to achieve the modern award objective. That is the basis upon which we are here today Mr White?
PN10
MR WHITE: Yes, that is correct your Honour.
PN11
THE VICE PRESIDENT: Fine. Now, is there any evidence that you propose to call Mr White?
PN12
MR WHITE: Only that we have, through Mr Cooney, who has prepared a statement which has been presented to the application website, and just for Mr Cooney to attest to the accuracy of that statement.
PN13
THE VICE PRESIDENT: Fine. So I have from you at the moment a submission of five pages, including annexures, dated 16 April 2010, and the statement of Mr Cooney. So that is the material you seek to rely upon?
MR WHITE: That is correct your Honour.
EXHIBIT #WALGA1 WRITTEN SUBMISSION OF THE WA LOCAL GOVERNMENT ASSOCIATED DATED 16/04/2010
PN15
THE VICE PRESIDENT: I recognise that it is strictly a submission rather than evidence and it will be treated as a submission. Is there any objection to the tender of Mr Cooney’s statement?
PN16
MR HARVEY: No, your Honour.
THE VICE PRESIDENT: There being no objection to the tender of Mr Cooney’s statement I will mark it as an exhibit.
EXHIBIT #WALGA2 WITNESS STATEMENT BY MR S COONEY
PN18
THE VICE PRESIDENT: I note that that statement, and there is no criticism of Mr Cooney in this at all, but it is as much an argument for submission as it is evidence and I will treat those parts of it which are argumentative or clearly matters of submission in that fashion.
PN19
MR COONEY: Yes, your Honour.
PN20
THE VICE PRESIDENT: Now, is that the end of the evidence for the applicant?
PN21
MR WHITE: Yes, that is so your Honour.
PN22
THE VICE PRESIDENT: Fine, thank you. Who is it convenient to move to next, you Mr Harvey?
PN23
MR HARVEY: Yes, I think so. Your Honour, the ASU has filed written submissions in this matter in accordance with the Tribunal’s directions.
THE VICE PRESIDENT: Yes, I’ll mark those submissions.
EXHIBIT #ASU1 WRITTEN SUBMISSIONS FROM THE AUSTRALIAN SERVICES UNION
PN25
MR HARVEY: Yes your Honour, and attached to that are three attachments.
PN26
THE VICE PRESIDENT: Yes.
PN27
MR HARVEY: Attachment A is an extract from a book entitled “Troubled Waters. Confronting the Water Crisis in Australian Cities”, which deals with the current institutional frameworks for water and wastewater in this country. Attachment B is extracts from a number of Local Government Awards with regard to allowances for the work under consideration. Attachment C contains two extracts from websites, one from the Northern Territory Power and Water Corporation and one from the Water Corporation of WA. That is the material that the ASU would seek to rely on.
PN28
THE VICE PRESIDENT: Yes.
PN29
MR HARVEY: I don’t know if it is helpful to say at this point your Honour, but I didn’t intend to seek to cross-examine Mr Cooney as to the contents of his witness statement, but I agree with your Honour’s characterisation of it and I just seek to make some brief submissions about the content of his witness statement.
PN30
THE VICE PRESIDENT: Of course Mr Harvey. I think just at the moment I’m just trying to deal formally with evidence and then move to submissions.
PN31
MR HARVEY: Yes, your Honour.
PN32
THE VICE PRESIDENT: Mr White, or Mr Cooney for that matter, there are a number of factual matters which are asserted in the ASU submission. Is there any challenge to those matters of factual assertion?
PN33
MR WHITE: Your Honour, yes there are some challenges that we have to several of the assertions made in the submissions.
PN34
THE VICE PRESIDENT: Yes, and what are they?
PN35
MR WHITE: In relation to the Northern Territory in attachment C, with Power and Water, on their website, sole provider of water supply and sewerage services we submit that although Power and Water provide these services solely in the main towns and cities in the Northern Territory, there is over 50 communities where the local government is contracted by Power and Water to provide these services and this relates to towns as large as Jabiru where the local government is providing these serves, so we would submit that in the majority of cases - - -
PN36
THE VICE PRESIDENT: Thank you Mr White. Let me just hear from Mr Harvey. So the challenge is to the factual assertion in the first sentence of paragraph 15 of your submission, and Mr White is saying that it is not as comprehensive as is asserted there, and that about 50 communities, including a community such as Jabiru have sewerage services provided by local government contracted to the Northern Territory Power and Water Corporation. Is there any acceptance that that is so, or do we need to worry about an evidentiary fight?
PN37
MR HARVEY: We dispute that your Honour in the sense that I think it is now clear that Northern Territory Power and Water has the sole responsibility for it. The fact that they may contract that to somebody else doesn’t change the underpinning nature of it.
PN38
THE VICE PRESIDENT: I understand, but that is sort of a confess and avoid argument rather than a denial. I think that says well even it is true, what Mr White submits it rather doesn’t matter because it is still the Power and Water Corporation who are doing it.
PN39
MR HARVEY: No, your Honour, with respect, I don’t think it is a confess and deny from our part.
PN40
THE VICE PRESIDENT: No, rather than a rejection of what Mr White has asserted as a matter of fact I understood your response to be, well, even if what he says is correct that doesn’t change the fact that it is the Power and Water Corporation that is responsible for it.
PN41
MR HARVEY: Yes.
PN42
THE VICE PRESIDENT: The fact that they may contract it out is rather here nor there.
PN43
MR HARVEY: Yes, that can contract it out to the local plumber or anybody they like, but as I understand it the award coverage for that is not affected by this, or the agreement coverage of it, however it is done by Northern Territory Power and Water, it is their responsibility and they can contract it out, but it would not be being performed as I understand the position - - -
PN44
THE VICE PRESIDENT: Mr Harvey, I am only concerned at the moment about what the status is of the factual assertions that the parties are making and therefore the fact finding that may occur in the context of decision, and is there to be a factual fight over whether local government does have some involvement in the provision of water and sewerage services in the Northern Territory, sewerage services in particular, as a contract to the Power and Water Corporation in a number of communities?
PN45
MR HARVEY: I have been advised by our branch, the South Australian, Northern Territory Branch your Honour, that local government has no role as a provider in its own right for that. If they do anything, it would be as a contractor like any other contractor, but it is not part of their core business or any ancillary part of their business other than any other contractor who might be engaged off the street by Northern Territory Power and Water whose responsibility the work it solely is.
PN46
THE VICE PRESIDENT: Yes. Mr White, are there any other challenges to the factual contentions in the ASUs submissions?
PN47
MR WHITE: We obviously believe that point 7, that the claim by the ASU that the situation in local government is distinguishable from the water industry is incorrect in that the duties to be carried - - -
PN48
THE VICE PRESIDENT: I think that is a matter of submission rather than an assertion of fact.
PN49
MR WHITE: Then there is no other error of fact that we challenge at this stage your Honour.
PN50
THE VICE PRESIDENT: It would seem inefficient and probably wasteful to adjourn the hearing of this application in order to try and get to the bottom of the residual factual dispute about the state of affairs in the Northern Territory. Perhaps we could proceed in this way, that you Mr Harvey take some further instructions from your South Australian, Northern Territory branch to see whether or not they can confirm what has been asserted by Mr White about the role of local government as a contractor to the Northern Territory Power and Water in relation to a number of communities which is being said to be numbering about 50, and advise my Chambers, with a copy to Mr White, and in the event that this becomes a critical factual issue I will cause the matter to be re-listed. Hopefully it is not something that needs to occur.
PN51
MR HARVEY: Yes, I’m happy to do that your Honour.
PN52
THE VICE PRESIDENT: Ms Pullen, your evidence, and you have a short submission of about a page?
PN53
MS PULLEN: A short submission your Honour, and I’m afraid my oral submission will be even shorter.
PN54
THE VICE PRESIDENT: That’s fine.
PN55
MS PULLEN: Simply to say that it is still only the beginning of the dry and some of the factual content that we have just been discussing, which I may have been able to ascertain by going to the Northern Territory, I can’t get to the communities in question to actually find out what our members do and what sort of work they do, so unfortunately there is nothing to add at this stage.
THE VICE PRESIDENT: I’ll mark the LHMUs submission.
EXHIBIT #LHMU1 WRITTEN SUBMISSION OF THE LIQUOR, HOSPITALITY AND MISCELLANEOUS UNION
PN57
THE VICE PRESIDENT: I think that that is the end of any evidence, or any consideration of evidence, which brings us to submissions. Yes Mr White?
PN58
MR WHITE: Thank you, your Honour. It is simply obviously that we won’t be repeating the written submission that we have place in, other than that we submit that on the basis of this application being under section 177 that there has been an error in the categorisation of the correct loading or allowance for this type of work, that we argue that the work performed is not distinguishable between the water industry and the local government industry and obviously the close alignment between the two awards and the creation of it supports that argument. Other than that your Honour, we rely upon the written submission to outline the application.
PN59
THE VICE PRESIDENT: So there is nothing you want to say in particular in response to the ASU submission beyond that which you have already indicated in relation to the discussion we had about factual matters?
PN60
MR WHITE: On the factual matters we are obviously if need be your Honour, prepared to provide evidence in relation to that matter.
PN61
THE VICE PRESIDENT: No, that’s fine. I think we have deal with that adequately. The question is whether there is any other response you wanted to make to the ASU submission, and I am inferring from what you have said, no.
PN62
MR WHITE: That is correct.
PN63
THE VICE PRESIDENT: All right, thank you Mr White. Mr Cooney, are you appearing separately, and I think you are, for the Queensland Local Government Association? Is there anything you wish to say by way of submission?
PN64
MR COONEY: Thank you, your Honour. Primarily I will just make a few observations in respect of the submissions that have been made by the ASU and the LHMU, and also in reference to the submission that the ASU made in respect of the Water Industry Award. We acknowledge that the Local Government Industry Award may currently have limited application at the present time due to the decisions of the Commonwealth and State Parliaments. However, both the unions and the employers represented by the Local Government Associations and other employer associations participated in the development of a modern award for the industry in good faith.
PN65
We recognise that it could eventually be the standard for most if not all employers and employees in the industry. Therefore the limited application to which the LHMU and ASU refer, whilst we accept that as the situation at the moment, we do consider this award sets a precedent for other developments of award regulation in the states in the coming years and that we could end up in the federal system in the future. In its decision on 4 December, the Full Bench of the Australian Industrial Relations Commission observed at paragraph 135 that:
PN66
On the other hand the major parties appear to accept that over time the practical effect of the making of a modern award for local government will be that the terms of that modern award will come to determining the award safety net in a growing proportion of the local government industry as we have defined it.
PN67
We are concerned in Queensland because whereas in states such as Tasmania, Victoria and South Australia local government no longer has a direct role in the provision of water and sewerage services. In Queensland, local government is the primary and principal provider of such services to the whole state. We are in the process of reform, particularly in the south-east where the water services are in the process of being extracted out of the councils and into separate entities. However they will still operate in the State system and will still be owned and controlled by their local governments.
PN68
In our internal discussions, Local Government Associations, this is our internal discussions for the development of the Local Government and Water Industry Awards submissions earlier on, last year, in our internal discussions the Local Government Associations noted that water and sewerage services are no longer provided by local governments but by separate entities owned by local governments, or the relevant state government, or operate under a commercial contract with a licence from the state government. That is the situation in Adelaide and some of the other states.
PN69
However, it was acknowledged that in Queensland and some parts of New South Wales, and the remote parts of Western Australia and the Northern Territory that these services are provided by local governments or local government owned entities. So in these states the people actually working in the conditions expressed under the adverse condition level 3 in the modern award, have either no award provision, 25 per cent in the case of the building trades in Queensland, or 50 per cent for the majority of Queensland operational employees who will be exposed to the conditions described in the level 3 adverse conditions allowance. The 100 per cent rate for supervisory professional white collar employees referred to in the ASU submission, that is, those supervisory and professional employees in Queensland, very few if any of those people actually are subject to the adverse condition.
PN70
For example, Brisbane City Council employs about 25 per cent of local government employees and provides the water and sewerage services to the city of Brisbane of over a million people. No white collar employees, no salaried employees in Brisbane City Council have been paid that allowance this financial year, and experienced payroll officers cannot recall that having been paid to a salaried employee in the last 30 years. So even though it may be in the award - - -
PN71
MR HARVEY: Your Honour - - -
PN72
MR COONEY: - - - it is not actually paid.
PN73
THE VICE PRESIDENT: Mr Cooney, just one moment. Yes Mr Harvey?
PN74
MR HARVEY: Your Honour, I very rarely and infrequently and without any desire object to submissions being made by somebody else, but I understood that Mr Cooney’s statement was being provided on behalf of the West Australian Local Government Association to support their - - -
PN75
THE VICE PRESIDENT: I think Mr Cooney is wearing two hats. He is here wearing a hat as a witness, and he is also here wearing a hat as a representative of the Queensland Local Government Association.
PN76
MR HARVEY: Well, I’m not sure about that your Honour, because your Honour marked his statement with the number WALGA.
PN77
THE VICE PRESIDENT: That is right, because his statement has been submitted by the applicant, the West Australian Local Government Association, but that doesn’t mean that the Queensland Local Government Association doesn’t have an interest in the application. It does.
PN78
MR HARVEY: Perhaps your Honour, then my second line of concern about the statements that Mr Cooney is now making is that your Honour quite clearly asked each of us to indicate whether there was any other evidentiary material in this process and there was none.
PN79
THE VICE PRESIDENT: Yes, Mr Harvey, I understand your concern.
PN80
MR HARVEY: And Mr Cooney is now - - -
PN81
THE VICE PRESIDENT: You have a very simple option available to you which is to say that you challenge the factual matters in the oral submissions of Mr Cooney, and then pursuant to the principle articulated by the High Court in Melbourne Metropolitan Tramways, I am not entitled to take any account of those contested factual submissions.
PN82
MR HARVEY: Yes, well I will do that your Honour when I address the Tribunal.
PN83
THE VICE PRESIDENT: Yes Mr Cooney?
PN84
MR COONEY: Thank you, your Honour.
PN85
THE VICE PRESIDENT: I think you were saying that although the entitlement for the white collar workers is in the Queensland award, it is a purely hypothetical entitlement because it has never actually been paid to anyone.
PN86
MR COONEY: Well, it may rarely have been paid to local government officers. I do not have that information from all of the 74 councils in Queensland, but from Brisbane City Council which has a significant representation in the state I understand that no salaried employees have been paid that allowance. However, operational employees do get paid the 50 per cent allowance provided under the Local Government Employees Award and the Brisbane City Council Construction, Maintenance and General Award.
PN87
So in both of those awards there is the 50 per cent allowance, that is, the majority of people who are exposed to that condition, and in the instance of Brisbane City Council, that allowance or penalty is a benefit to employees in the vicinity of $500,000 per annum. So moving to 100 per cent penalty if that were to be applied in Queensland, in Brisbane City Council, that would double Brisbane City Council’s costs for this allowance to $1m. Therefore, we consider that to be a significant consideration that we bring before the Tribunal.
PN88
THE VICE PRESIDENT: You are asserting factually - Mr Harvey is going to challenge that and therefore I won’t be able to base any reliance upon it.
PN89
MR COONEY: That is understandable.
PN90
THE VICE PRESIDENT: Mr Cooney, let me say that that is a fair outcome because the point of giving people an opportunity to lead evidence before moving to submissions is to ensure that other parties have an opportunity to respond. Correct me if I’m wrong, but the Brisbane City Council has got a budget of some billions with a B, annually?
PN91
MR COONEY: Yes, your Honour, it is a significant organisation, it has a $4b budget, but in terms of the water business which is being separated from Council at the moment, that is a significant potential impost on their costs. If I can move on, and I accept the comments that your Honour made and that Mr Harvey has made - - -
PN92
THE VICE PRESIDENT: I’m sorry Mr Cooney, but if the water business is being separated so that it is going to be a standalone business it will no longer be in the local government industry it will be in the water industry will it not?
PN93
MR COONEY: Your Honour, at the moment the entities that are being created in the south-east area of Queensland, the northern area of south-east Queensland, Brisbane and four other councils, will be owned and controlled by the local government stakeholders, so in terms of the - - -
PN94
THE VICE PRESIDENT: It is a situation similar to the arrangement in Tasmania then, where - - -
PN95
MR COONEY: Your Honour, sorry, however they won’t be like the ones in Tasmania because the ones in Tasmania are first of all corporations. The entities in south-east Queensland will not be corporations, at least at this stage, and secondly, both local government and the water entities have been declared by the state government to be in the state industrial relations system for the present time.
PN96
We are concerned that as the State Queensland Industrial Commission commences a review of the awards applicable in Queensland following the referral of powers that there could be further variations to the applicable awards which could rely to some extent on developments at the national level, and that is why we are most concerned about this particular allowance.
PN97
THE VICE PRESIDENT: Yes, thank you. I think I was interrupting you some minutes ago, or some time ago now in the middle of your submission.
PN98
MR COONEY: That’s fine, I’m just recovering my position and where I was up to on the paper here. I would just like to mention, in the ASU submission, in the Water Industry Award, with which these following statements we would wholeheartedly agree, and that is if the reduction in the adverse conditions allowance level 3 in the Water Industry Award was granted by the Tribunal, it would mean that the equivalent allowance in the Local Government Award would remain at 100 per cent, and the Modern Water Award would be 50 per cent for exactly the same disability, working in raw sewage.
PN99
The ASU is strongly opposed to two different percentage rates applying for precisely the same allowance as follows, 50 per cent level 3 adverse conditions in the Modern Water Award, and 100 per cent level 3 adverse conditions allowance in the Local Government Award. It just does not make rational sense to have two different percentage rates for the same allowance in the closely related modern awards of local government water industries. It is on that basis that we support the application by the Western Australian Local Government Association.
PN100
Can I also make a submission on the LHMU exhibit LHMU1 regarding the no disadvantage and the potential for take home pay orders if required, to protect employees who may be affected by the transition to a modern award? I am concerned that the modern award does not create a precedent or potential to impose significant additional costs on Queensland local government employers now, or at some future time. Your Honour, those are the primary concerns and submissions of the Local Government Association of Queensland.
PN101
THE VICE PRESIDENT: Thank you. Mr Pullen, I think you had a very short submission?
PN102
MS PULLEN: Very short, necessarily I’m afraid as I indicated earlier. It is only just now the beginning of the dry and I am scheduled to go to the Northern Territory in three weeks when it is accessible, and hopefully this is one of the issues I will be able to look into depending obviously on what the decision of this Tribunal is. We would say that the Local Government Award is like all the modern awards that we have dealt with in that it is a package and that everyone more or less ends up equally unhappy with the outcome. I think in this case certainly we would suggest that the unions are a little unhappier than the employers but not everyone got everything they wanted in every case.
PN103
There are to our minds particularly unsatisfactory outcomes to the allowances, particularly for our members in the Northern Territory which goes to the diversity of the activities that local government bodies undertake and this is particularly of note for us for those remote communities that are not covered by enterprise bargaining, where one person will do the picking up of the dead animals, will drive the truck, will attend the national park, opens and closes the Scout hall, and all of those allowances have now been compacted into the range of the three allowances that we have.
PN104
At the moment we are satisfied with the package as it stands because on balance with think it works out about the same, that there is no loss to the employees and no additional cost for the employers in that the allowances are more or less coming together. However, should this application be successful I don’t see that we would have any other alternative but to seek take home pay orders for a range of disadvantage employees and certainly to our mind easier just to leave the award as it is as it is part of a package that was agreed to by all parties. They are my submissions, thank you.
PN105
THE VICE PRESIDENT: I don’t know that the 100 per cent is agreed. Yes Mr Harvey? I think I understand your submissions, your written submissions well and it is just a question of what you want to say by way of supplementation.
PN106
MR HARVEY: I’m sorry your Honour?
PN107
THE VICE PRESIDENT: I understand your written submissions. It is a question of what you want to say by way of supplementation.
PN108
MR HARVEY: Yes, thank you, your Honour. Your Honour, I think as a result of this morning’s proceedings there has been some clarity produced around these issues but there is also another degree of confusion that has crept in as a result of the submissions that have been made. I think we do have some clarity about in whose interests this application has been made, and I think that is now clear from the submissions that have been made by Mr Cooney. Before I go to that my confusion which now exists your Honour, is the exact basis on which this application has been made in the first place, and the second question is in whose interests is the application being made?
PN109
I think, and I stand to be corrected, that your Honour at the outset of the proceedings, asked the parties, asked the applicant to confirm the basis on which the application was being made, and I think your Honour referred to section 158, I’m sorry, 157 of the Act - - -
PN110
THE VICE PRESIDENT: Yes, the application is made 158 but it seeks to invoke the power of 157 which is an exceptional power to make as it were exceptional orders. I use that word in a descriptive sense because the theory is that the system is supposed to be stable as between the 4-yearly reviews.
PN111
MR HARVEY: Yes, your Honour.
PN112
THE VICE PRESIDENT: In the case of the first review it is a 2-yearly review because of the transitional legislation, and this is a sort of a reserve power to fix up critical problems, if I can put it that way, which really need to be addressed in a context outside the 4-yearly reviews.
PN113
MR HARVEY: Yes, your Honour, and that is how I understood your characterisation of the application, and the ASU did not in its submissions that the applicant had not characterised the application or indicated under which section of the Act they were proceeding in this matter and we said that that left some doubt and uncertainly on behalf of people wishing to respond to this application. That the applicant agreed with your Honour’s characterisation that this was an application under section 157, as allowed for in section 158, and my recollection of 158 is that that is an application made to vary the award necessary to fulfil the award modernisation objective.
PN114
THE VICE PRESIDENT: Yes, the modern awards objective.
PN115
MR HARVEY: Yes, your Honour. Now, I understood when the representative from the West Australian Local Government Association - - -
PN116
THE VICE PRESIDENT: I might need to point out that there has been not a single submission directed towards the modern awards objective and how the granting of this application is necessary to achieve the modern awards objective.
PN117
MR HARVEY: Yes, that is my first point your Honour. My second point was that I understood when the representative of the West Australian Local Government Association got up, he characterised this as an application under another section of the Act because he said it was to correct an error in this award which I think would be an application under section 160 of the Act and not under section 158 at all, which is a different matter, and which they also have not addressed at all other than by asserting that there is some sort of error in this award which we would say is not the case.
PN118
THE VICE PRESIDENT: Look, neither the Australian Industrial Relations Commission nor this Tribunal is a court of strict pleading and therefore we don’t stand on the formalities of the section number that has been identified on an application for example, unless there is also substantive unfairness in a party being permitted to vary the basis of its case during the course of a hearing. Now, I don’t understand you are pointing to any particular prejudice you suffer beyond a prejudice arising from uncertainty as to which basis was being advanced.
PN119
MR HARVEY: I think that is a prejudice to us your Honour. Our submissions have dealt with that in the sense that we say that well don’t the basis on which we are proceeding, but if we treat it on a merit basis we don’t think they have got an argument, and I am happy to continue in that line.
PN120
THE VICE PRESIDENT: Well, just for the purpose of the record let me make it clear that the question I asked at the outset about the statutory basis of the application was informed by a recognition that there are different potential bases on which the application may have been advanced and there are particular considerations that apply in relation to the ground in section 157, which you have adverted to already, and the - just pardon me one moment. It is not entirely clear from the face of the application which of the provisions have been relied upon, but the Registry had divined that it was section 158 which seemed to be the appropriate basis, but I could see how and argument might be contrived in relation to section 160.
PN121
MR HARVEY: Your Honour, I only make the point that, yes, it is a fair assumption to make that that is the basis on which the applicant was proceeding, but that was varied by the fact that the applicant then got up and said the purpose of the application was to correct an error which is a different section of the Act, and which I think - while your Honour is right about characterising this Tribunal and how it operates, but I don’t think the Tribunal can act to do something under one section of an Act which is not supported by that section of the Act.
PN122
With respect, we think the applicant has a difficulty in its submission, having agreed that it was an application under section 157 with regard to the powers that are available under 158, and then getting up and characterising the application as being another heading altogether, and that does, we say, prejudice in some respect any person wishing to oppose that application because it has not been clear, and maybe it is not clear now, what they are trying to do, ask for a variation of this award to fulfil the modern award objective or to correct what might be perceived an error in it. It is too different bases of an argument.
PN123
I don’t wish to delay the Tribunal’s consideration on this matter other than to point this fact out, but also to indicate that - - -
PN124
THE VICE PRESIDENT: Mr Harvey, I think it only fair that you understand the case it is that you are entitled to lead, and my uncertainty about the basis from which the application was advanced, as I say, was the motivation for asking the question at the outset.
PN125
MR HARVEY: Yes, your Honour.
PN126
THE VICE PRESIDENT: Can I just then perhaps come back to you Mr White. You have heard what Mr Harvey has had to say. Do you want to clarify in any way the basis upon which the application was advanced?
PN127
MR WHITE: Yes, thank you, your Honour. I apologise if my use of the word error has misled Mr Harvey into thinking that the application was under section 160. The application was intended to be under 158 and - - -
PN128
THE VICE PRESIDENT: Yes, thank you Mr White. Yes Mr Harvey? And you don’t need to make any further submissions about that issue.
PN129
MR HARVEY: Yes, thank you your Honour, which leads me to the next point which is in whose benefit this application is being made, because the Act clearly says who can apply to vary the award under 157, and of course it has got to be somebody who is affected by the operation of the award which is clearly why the Local Government Association of Queensland did not make this application, because they are not currently affected by the terms of this award since all local government employees in Queensland have been declared, by the Queensland Government, in accordance with the provisions of the Fair Work Act not to be federal system employees.
PN130
If I might be so bold as to say your Honour, this is slightly a back door approach to the application that is currently before the Tribunal, filed by the Western Australian Local Government Association on behalf they say of their members in Western Australia and the Northern Territory, but passionately supported by way of a witness statement come submission from Mr Cooney, apparently on behalf of the Local Government Association of Queensland who says they are going to be - - -
PN131
THE VICE PRESIDENT: For practical reasons that are obvious to us all. I think the ASU also acknowledged didn’t it, during the process of the making of the main award that whilst there may be only limited application, I hesitate to use that word given that it seems to have been banished by the legislature, but the limited application was rather beside the point because all the parties, including the ASU appeared to accept that it was more likely than not that in the long term the content of the modern award for local government would in fact have a predictable influence, or impact on, or practical application in the local government sector throughout Australia. So Mr Cooney could hardly be accused of anything improper or - - -
PN132
MR HARVEY: No, your Honour, I’m not - - -
PN133
THE VICE PRESIDENT: - - - underhanded or inappropriate in having an interest in the outcome of the application, and vigorously supporting it.
PN134
MR HARVEY: I just think we should understand how this application came to be before the Tribunal your Honour. It is certainly true that Mr Cooney has been a passionate opponent of the 100 per cent allowance for employees performing this very obnoxious work in the local government industry, or for that matter, the water industry as he has alluded to already, and she he has passionately put that view, but the applicant has not passionately put the view, and in fact what is now clear is there is only two elements of dispute I think about the evidence, and - sorry, there is one element of dispute about the evidence and that is with regard to the application of this award to water and wastewater or sewerage services in the Northern Territory, and your Honour has indicated a means for addressing that.
PN135
The applicant has not contested our assertion that in the main, as far as we can see, water and wastewater services are not provided by local government in Western Australia to a substantial degree. It is also provided there by the Water Corporation of WA and a number of regional water authorities around the state. So in terms of the assertion that they have made with regard to both Western Australia employers having a significant impost as a result of this, and there - - -
PN136
THE VICE PRESIDENT: Mr Harvey, implicit in this I take it, although you have been sufficiently sensitive and courteous not to make the submission explicitly, but implicit in this is that the Full Bench in the application to vary the water industry modern award that resulted in the decision in matter number 2010/957?
PN137
MR HARVEY: The decision of February?
PN138
THE VICE PRESIDENT: Yes, that the Full Bench actually got it wrong, again, in terms of its assessment of the critical mass of the underlying awards because it mistook, or failed to appreciate the absence of local government having a role in the provision of water and sewerage services in the west and the Northern Territory, this wrinkle with respect to communities.
PN139
MR HARVEY: Yes, your Honour, I was going to come to that and I wasn’t going to be afraid to say it. No, I don’t think the Full Bench got it wrong again, they only got it wrong once and that was the decision in February with regard to the water award. They got it right the first time and were persuaded to think that they had got it wrong as a result of the application with regard to the Water Industry Award and certain submissions made in those proceedings, including I think by Mr Cooney’s organisation and others, to indicate that there wasn’t a critical mass of awards in the water industry, but also in the local government industry which had this particular rate of 100 per cent.
PN140
Yes, your Honour, and with the greatest respect to the Full Bench, I think they got it wrong the second time. They got it right the first time and that is why we have gone into it in a little more sort of forensic detail in this, particularly with attachment A to our submissions, to indicate how the water industry is conducted in this country, and I think that is at least confirmed by Mr Cooney’s statement that it is New South Wales and Queensland where local government has a major role in it today, and it used to also be the case in Tasmania until very recently where the local government authority ran the water and the wastewater services.
PN141
So there are three states where local government undeniably has, or has had until very recently as in the case of Tasmania, a role in water and wastewater services. Then when you look at those three states you find that in Tasmania the rate for the allowance - - -
PN142
THE VICE PRESIDENT: The fundamental point you make is, just so that I understand the argument correctly, is that in those other states it is not surprising that there is no equivalent allowance in underlying awards for local government because local government didn’t have that function.
PN143
MR HARVEY: That is our submission your Honour.
PN144
THE VICE PRESIDENT: Therefore, to put the absence of such an allowance in those local government awards in the other states into the equation for the purposes of trying to ascertain a critical mass is a mistaken or inappropriate loading of the scales?
PN145
MR HARVEY: Yes, your Honour, that is precisely our submission. I couldn’t have put it any better myself your Honour so I won’t repeat that. That is the situation in South Australia, Western Australia as agreed, and the Northern Territory, with that dispute. In Victoria there were, and I want to be completely frank with the Tribunal, there were water authority respondents to the Victorian local authorities’ award, but that work is now covered as I understand by the water award or for a long period of time enterprise awards covering regional water authorities and enterprise awards covering the other water entities. Our submission is that in the three states where it mattered the rate of 100 per cent was a fair rate. It is 200 per cent in some circumstances in New South Wales, and 100 per cent as I said in Tasmania, and there were two awards in Queensland and Mr Cooney has touched on that so I would like to say something about in reply.
PN146
Firstly, we do challenge the statements he made in verbal evidence this morning, but part of that evidence was going to the fact to say that, yes, well in the ASUs Local Government Officers Award in Queensland there is a 100 per cent rate, but nobody gets it paid. Well, that may well be the case, I don’t know, but the allowances are not something that gets paid automatically. An allowance is something that gets paid when the work that attracts that allowance is being performed by somebody, and if our local government officers in Queensland haven’t been required to do that work then they haven’t been paid the allowance and I have got no argument with that.
PN147
The fact is the underpinning safety net says that if they are required to do that work then it is a 100 per cent rate, so the only relevant award or NAPSA that Mr Cooney or anybody else can point to with having a 50 per cent rate for this sort of work is in the Queensland blue collar award, so we certainly say your Honour that the critical mass lies elsewhere for the relevant awards in the relevant states where this work is being performed by local government. Your Honour, I think in answering your Honour’s questions I have dealt with the other verbal submission.
PN148
Also in regard to Mr Cooney’s statement, he does confirm that this is important in Queensland and New South Wales, this particular sort of work, and was also the case in Tasmania where the 100 per cent - he notes in his statement that awards in Western Australia and the Northern Territory don’t have the allowances, but I have dealt with that point. He confirms that Western Australia and South Australia, and now Tasmania which did operate water and sewerage services, have separated that from local government so in our submission the award conditions are not relevant. He quotes the Full Bench in support of his position.
PN149
I was leading up to say something about that but your Honour has enticed me into saying already that we disagree with the conclusions of the Full Bench in the water industry matter, and we say that the safety net for local government, and we bear in mind obviously the fact that the Full Bench has changed the position with regard to the water industry, but we say when you drill down, almost use a water analogy, but to get to the bottom of this particular matter then, these industries now are distinguishable. We argued that the water authorities in Tasmania should continue to be covered by the modern Local Government Award.
PN150
The Full Bench found against us on that point and moved them over to the Water Award, and the effect of the creation of the Water Award makes it clear in Victoria and anywhere else where there is a water authority doing this work who might be a constitutional corporation or not, are for some other reason excluded from the operation of the modern Water Award. It is the Water Award over there but it remains now, at least in Queensland and New South Wales, in local government, and the modern Local Government Award does not apply in either state at the moment, as we know.
PN151
If we are looking for the critical mass, if we are contemplating a variation to this award, the purpose of which is to fulfil the modern award’s objective, then we say quite strongly your Honour that the Tribunal should maintain the critical mass of underpinning entitlements because that is what the modern award objective says, that that is the object of the exercise and that is how the Full Bench interpreted that exercise as all relevant periods that I am aware of over the last two glorious years of award modernisation.
PN152
That is how they went about their task, appropriately in our submission, and if you apply the principle of that approach then the answer in this industry, in the local government industry, where people are doing this sort of work that attracts this allowance, then the critical mass is 100 per cent or more, it is 200 per cent in some circumstances in New South Wales, and there is only one award or NAPSA which has the 50 per cent rate which is now argued should be standard.
PN153
They are our submissions your Honour, but if we are looking at this from the modern award objective principle we say it should stay where it is. If we are looking at it from - - -
PN154
THE VICE PRESIDENT: So an agreed hesitation in the two-year period?
PN155
MR HARVEY: Well, there is that possibility, but there is no - the other part of the award modernisation objective of course was that it wasn’t to increase costs for employers, notwithstanding submissions by Mr Cooney which we challenge, there has been no other evidence produced to this Tribunal that there is any additional impost in Western Australia I think it has been agreed.
PN156
THE VICE PRESIDENT: Correct me if I’m wrong but even in relation to Mr Cooney’s submissions about the Brisbane City Council - - -
PN157
MR HARVEY: He is worried about some future - - -
PN158
THE VICE PRESIDENT: Yes, the fact that it has no impact at the moment because of announced positions of the Queensland State Government to ensure that local government is kept outside of the federal IR system.
PN159
MR HARVEY: Yes, your Honour, they have declared the whole of the local government industry, including Brisbane City Council to be out of the federal system, so he has no impost, Western Australia has no impost. The Northern Territory has no impost that we understand.
PN160
THE VICE PRESIDENT: It does not and just correct me if I’m wrong Mr Harvey. It does not matter that the Brisbane City Council is maybe a trading corporation in certain - - -
PN161
MR HARVEY: No.
PN162
THE VICE PRESIDENT: Because the amendments to the transitional awards that put in place the revised referral regime conferred a power on a State to exempt various aspects of its economy from the federal system. Local government is one of them and that is the power that has been exercised by the Queensland Government, so irrespective of whether the Brisbane City Council might otherwise have been regarded as a national system employer, it is not now.
PN163
MR HARVEY: Correct, your Honour. Previously Queensland Government, as we understand it, de-corporatised all local government in Queensland.
PN164
THE VICE PRESIDENT: Except for the Brisbane City Council.
PN165
MR HARVEY: Except for the Brisbane City Council, your Honour is perfectly right, but in the declaration declaring certain local government employers and therefore employees not to be federal system employees we understand, well, it is, I have seen the documentation, that Brisbane City Council was included in that declaration excluding them from the federal system.
PN166
THE VICE PRESIDENT: Yes.
PN167
MR HARVEY: That is the position your Honour, so if we look at the award modernisation objective from both hands, maintaining the minimum safety net for employees and not imposing additional costs on employers, we can do that by maintaining this allowance at 100 per cent, and we can’t do it - - -
PN168
THE VICE PRESIDENT: How does the not imposing of additional costs on employers arise? I don’t see that. It’s in section 134.
PN169
MR HARVEY: Sorry, I’m - - -
PN170
THE VICE PRESIDENT: The modern award’s objective is to provide a fair and relevant minimum safety net, terms and conditions, taking into account the fact that - - -
PN171
MR HARVEY: Your Honour is right. I was thinking of the Minister’s award modernisation request.
PN172
THE VICE PRESIDENT: That is history now.
PN173
MR HARVEY: Which is history, so yes, I was trying to be even handed in this, but point out that we can’t identify any additional costs. If there is any matter in dispute in the Northern Territory which we will clear up in the way that your Honour has suggested, but in any case I don’t think any burden is imposed - - -
PN174
THE VICE PRESIDENT: In the Northern Territory, particularly in that context of communities, it is just unthinkable that there would be people working full time. I think Ms Pullen has already indicated that the jobs would involve a range of duties like opening national parks, dealing with road kill and the like, and the incidence of this, the adverse working conditions allowance in the context of local government workers in remote communities, it is hard to see how the incidence of the allowance could be substantial.
PN175
MR HARVEY: We would submit that your Honour, and in any case it would be something that local government is contracting to the Northern Territory Power and Water, if they are doing it at all. They are not doing it in their own right and I don’t think they would be doing it under the terms of the modern Local Government Award, they would be doing it under some other contractual basis, so I don’t think it would apply anyway, but I could be wrong about that and I will advise your Honour further on that.
PN176
THE VICE PRESIDENT: Well, I think the industry of local government has been defined pretty broadly to encompass all the activities of local government. If they choose to start doing that sort of contracting work it is hard to see that it wouldn’t be seen as being within the ambit of the local government industry. It was your case Mr Harvey, so I will - everything that local government did should be in the local government industry.
PN177
MR HARVEY: Yes, but I don’t think we impose on the local plumber, this allowance, if he contracts to do it, but your Honour right. We say contractors to the local government should pay local government award wages and conditions, but in this case this it is local government who is the contractor. I’m not exactly sure as I stand here what the legal position would be on that, but I am happy to advise.
PN178
THE VICE PRESIDENT: It doesn’t sound like it could be a substantial impost in any event.
PN179
MR HARVEY: Not big bikkies we would suggest your Honour.
PN180
THE VICE PRESIDENT: All right. Anything further Mr Harvey?
PN181
MR HARVEY: No thank you, your Honour.
PN182
THE VICE PRESIDENT: Any submissions in reply from you Mr White?
PN183
MR WHITE: Yes, your Honour. We have just had the ASU, the union submit that the award currently has coverage in the Northern Territory and then argue whether it has any impost. We would agree with your observations your Honour that the allowance would not be an allowance that would be paid to employees on a fulltime basis, most likely it is in the repair and maintenance of equipment that it would be paid, but we obviously submit that the Full Bench was correct in its assessment - - -
PN184
THE VICE PRESIDENT: Mr White, I would like to understand exactly what motivates your application and why it made sense for the application to be made. It is not at the end of the day critical to the outcome one way or the other as to whether or not the impost in respect of employees of local government in the Northern Territory who may work occasionally as a contractor to the Power and Water Corporation in the Northern Territory.
PN185
MR WHITE: Yes.
PN186
THE VICE PRESIDENT: The fact that that impost is X or Y probably doesn’t have a huge bearing on the outcome in this application.
PN187
MR WHITE: Yes, we understand your Honour that that is the basis that local government employees are performing these duties in the Northern Territory. We agree that it is a minimal activity in Western Australia, but not so in the Northern Territory, and as a result local government employees are entitled to this allowance. We agree it is not all local government employees because there are some workplace enterprise agreements in place but that is the basis behind the application.
PN188
THE VICE PRESIDENT: Thank you. Mr Cooney, a submission in reply from you?
PN189
MR COONEY: Thank you your Honour, only two comments. In the modern awards objective my understanding was that one of the objectives was about fairness and equity, and we are simply seeking to align the Local Government Award rate for this condition with that determined by the Full Bench in respect of the Water Industry Award. Secondly, in respect of contractors, when a council contracts with an external construction company, for example to build a new road or a pipeline or some other bit of infrastructure, that contracting company pays their people under their own industry award, own enterprise agreements and other instruments. They do not adopt the local government rates.
PN190
By the same token however, when local government engages an employee through a labour hire agency to work with and under the supervision of the local government, then the local government conditions do apply to that employee. I would just like to make that distinction so I can understand - and certainly Mr White and Mr Harvey can make their own submissions and clarification later on, but I would understand that if a local government in the Northern Territory is contracting to another organisation to provide certain services, that the local government pay their employees under that local government’s employment arrangements. They are the only comments that I wish to make thank you, your Honour.
PN191
THE VICE PRESIDENT: Thank you Mr Cooney. The Tribunal will reserve its decision in relation to this application.
<ADJOURNED ACCORDINGLY [12.06PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #WALGA1 WRITTEN SUBMISSION OF THE WA LOCAL GOVERNMENT ASSOCIATED DATED 16/04/2010 PN14
EXHIBIT #WALGA2 WITNESS STATEMENT BY MR S COONEY PN17
EXHIBIT #ASU1 WRITTEN SUBMISSIONS FROM THE AUSTRALIAN SERVICES UNION PN24
EXHIBIT #LHMU1 WRITTEN SUBMISSION OF THE LIQUOR, HOSPITALITY AND MISCELLANEOUS UNION PN56