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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1032814-1
VICE PRESIDENT WATSON
AM2012/4
s.158 - Application to vary or revoke a modern award
Application by Pollard
(AM2012/4)
Social, Community, Home Care and Disability Services Industry Award 2010
(ODN AM2008/79)
[MA000100 Print PR991066]]
Sydney
3.34 PM, TUESDAY, 14 FEBRUARY 2012
THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN SYDNEY
PN1
THE VICE PRESIDENT: Can I have the appearances, please? Commencing in Adelaide?
PN2
MS D POLLARD: Good afternoon, my name Danielle Angelique Pollard. I'm the applicant and (indistinct)
PN3
THE VICE PRESIDENT: Thank you, Ms Pollard. Any other appearances in Adelaide?
PN4
MS L HARRISON: I'm sorry. If Fair Work Australia pleases, Harrison, initial L, on behalf of United Voice.
PN5
THE VICE PRESIDENT: Ms Harrison.
PN6
MR A RICHARDS: Thank you, Vice President, Richards, initial A, appearing from South Australia Employers Chamber of Commerce and Industry trading as Business SA. I have also DONALD, initial M, here with me today.
PN7
THE VICE PRESIDENT: Thank you, Mr Richards.
PN8
MR RICHARDS: Sorry, your Honour, just to point out that Business SA, also appears on behalf of ABI of New South Wales for this afternoon's mention.
PN9
THE VICE PRESIDENT: Yes. And in Melbourne?
PN10
MR COONEY: Cooney, C-o-o-n-e-y for the ASU.
PN11
THE VICE PRESIDENT: That's Mr Cooney, is it?
PN12
MR COONEY: Yes, your Honour.
PN13
THE VICE PRESIDENT: Yes.
PN14
MS J FORWARD: Forward J, for Jobs Australia and with me is Rachel (indistinct) also from Jobs Australia.
PN15
THE VICE PRESIDENT: Thank you, Ms Forward. And in Sydney?
PN16
MS A RIZKALLAH: If it pleases, your Honour, Rizkallah, initial A, on behalf of the Aged Care Association of Australia, New South Wales. We also appear on behalf of Aged and Community Services New South Wales and ACT.
PN17
THE VICE PRESIDENT: Thank you, Ms Rizkallah.
PN18
MR S FORSTER: Thank you, your Honour. If the Tribunal pleases, Forster, initial S of AFPI.
PN19
THE VICE PRESIDENT: Thank you, Mr Forster. I haven't missed anyone? Any other appearances? No. Thank you. Well, I've called this matter on for mention and programming really to ascertain which parties wish to participate in the hearing of the matter and also the nature of the case that the parties would propose to present. Ms Pollard and Ms Harrison, could I ask you - perhaps, Ms Pollard first what evidentiary case do you propose to present in support of your application?
PN20
MS POLLARD: At this stage, I don't have an evidentiary case. Particularly that - particularly in South Australia, with regards to this award, there seems to be a number of instances where the circumstances relating to casual employees where they simply work without a delegated or proposed meal break and are expected to work for no money remuneration or compensation. Therefore, I am unsure if this is a test case or not, but I would like it reviewed because it seems that there are far too many employees that I'm aware of who - who are subject to this.
PN21
THE VICE PRESIDENT: So you would simply wish to elaborate those arguments in due course at hearing of the matter?
PN22
MS POLLARD: Yes, that's correct.
PN23
THE VICE PRESIDENT: Well, perhaps, I could ask each of the parties represented here today the nature of the case and the length of time they would anticipate? Ms Harrison?
PN24
MS HARRISON: Thank you, sir. In relation to this matter it would be our submission that whilst we would be happy to tender evidence from workers that fall under this award and who are affected by this provision. We would also seek to rely on a decision that has already been handed down by Fair Work Australia on 23 March 2010 in relation to the Aged Care Award and a very similar provision which would be, on our submissions, that the drafting of the overtime provisions in a Social Community Home Care and Disability Services Award is oversight as part of the award organisation process and that is a drafting error based on the interactions between the primary meal break provision in the Social Community Home Care and Disabilities Services Award, its references to overtime and the fact that casuals are included in the (indistinct) provision but excluded from the overtime penalty provisions.
PN25
So, I guess, in summary we would be looking at making - we're happy to make oral or written submissions depending on what Fair Work Australia is seeking.
PN26
THE VICE PRESIDENT: Yes. Well, it's essentially a matter for you to present whatever case you wish, Ms Harrison. Perhaps, after understanding what extent of agreement or disagreement might exist, that will assist you further as well. Mr Richards?
PN27
MR DONALD: May it please the Tribunal, Mr Donald, sir, appearing with Mr Richards. Your Honour, I think there's a bit of confusion I guess in the perspective of the employer associations represented here in Adelaide. It would appear as though the first part of the application deals with the issue of meal breaks. And I've discovered the application - sorry, which has been handed up just before - deals with section 28 Part Time Employees. So we'd be seeking some clarification between the issue of meal breaks which, as I understand, is covered by section 27.1(c) in this particular, and also of the relationship to the overtime provisions for part time casual employees - or rather part time employees of the award.
PN28
And, sir, in the absence of the further information about the application from the employer perspective, what we'd be seeking is time to view that further information plus, of course, both Business SA and ABI on behalf of the New South Wales Chamber have extensive member representation covered by this award, we'd be seeking sufficient time to enable us to seek instructions from our perspective members and be able to formulate a response to the application, sir.
PN29
THE VICE PRESIDENT: What sort of clarification are you seeking?
PN30
MR DONALD: Well, such (indistinct) a relationship between the application, but (indistinct) primarily to section 27 of the award which deals with meal breaks. And in that case we say that the situation Ms Pollard is confronted with is dealt with on - under section 27.1(c) of the award, and the issue of the part time employees - - -
PN31
THE VICE PRESIDENT: Have you spoken to Ms Pollard about this to get clarification? I'm asking you, Mr Donald, have you spoken to Ms Pollard to get clarification
PN32
MR DONALD: Your Honour, no. This is the first time we've had the opportunity to meet and converse about this particular application. We've only just come in the last few minutes.
PN33
THE VICE PRESIDENT: Would you have that opportunity then once we adjourn today, perhaps, to - - -
PN34
MR DONALD: Absolutely, sir. As I understand - this is only for mention only and programming. It's obvious that there will be further discussions take place as to the nature of the application and further information required.
PN35
THE VICE PRESIDENT: Well, I stand to be corrected, but my understanding from reading the application is that the ambiguity is said to arise from whether casual employees receive overtime when they work through a meal break in accordance with clause 27 because - the ambiguity arises because clause 28 does not contain any overtime rates for casuals. It only has overtime rates for full time or part time employees. That's the extent of my understanding. As I say, may be - it may be incorrect, but I offer that for whatever assistance it is.
PN36
Anyway, you'd be seeking to have some clarification and then some time to consult with employees affected. What - - -
PN37
MR DONALD: Well - - -
PN38
THE VICE PRESIDENT: - - - Mr Donald.
PN39
MR DONALD: It depends on the nature of the evidence to be led from the applicant. But, sir, perhaps, I didn't make myself as clear as I should have to the Tribunal. Sir, we also point out the existence of 27.1(c) of the award, which we feel has application here, and it says:
PN40
PN41
And, your Honour, we understand from talking to the employer who is mentioned in this application that that particular provision applies to Ms Pollard's employment. So that might be a point of confusion and, perhaps, further clarification which we'd, perhaps, seek the applicant's view on.
PN42
THE VICE PRESIDENT: Yes. And there may or may not remain of the view that there is ambiguity in the provisions. If you have the opportunity to have those discussions.
PN43
MR DONALD: Yes.
PN44
THE VICE PRESIDENT: Okay. Well, can I turn then to Melbourne. Are the parties represented there able to indicate the nature of their provisions and time estimate for their respective cases. Mr Cooney?
PN45
MR COONEY: Thank you, your Honour. The ASU wouldn't be seeking to make any submissions in this matter. We'd simply reserve our rights in relation to what might be - down the track, but at this stage, I guess you'd say that we would just like to be maintained on the listing notices, but we don't seek to put in any material at this stage before your Honour.
PN46
THE VICE PRESIDENT: Thank you. Ms Forward?
PN47
MS FORWARD: Jobs Australia would also - hasn't a formed a position at this point in time. We'd also be seeking further information as it sees, but perhaps, 27.1(c) may apply in the situation, but this might be more of an issue for the Ombudsman than for this particular process. But at this point we don't have a particular position and we'd be seeking further information.
PN48
THE VICE PRESIDENT: Yes.
PN49
MS FORWARD: Thank you.
PN50
THE VICE PRESIDENT: Ms Rizkallah?
PN51
MS RIZKAHLLAH: Your Honour, at this initial view, Work Associations, do oppose the application but we do need an opportunity to review the application and we will be filing written submissions in response.
PN52
THE VICE PRESIDENT: Yes. Mr Forster?
PN53
MR FORSTER: Yes, thank you, your Honour. The Australian Federation of Employers and Industries does intend to oppose the application. I must say at this point that I've also not been privy to any of the information with respect to the application in clause 27.1(b) of the modern award. With respect to references to potential variations to 28.1 and the insertion of a new paragraph (c) to make reference to an entitlement for casual employees to receive overtime, we would say that there is no basis for such an application to vary, to be granted, your Honour.
PN54
In our view, there's been ample opportunity for this to be addressed - this particular issue during award modernisation. There was no change between the publication of the exposure draft and the ultimate publication of the award. Having said that, we do maintain a very significant interest in this particular award, we have a significant base, and we would also appreciate the opportunity to go away, like our friends, consult our members, and come back, having further consideration of the basis for the variation as sought and also the submissions of the applicant, your Honour.
PN55
THE VICE PRESIDENT: Yes. Thank you. Well, it does appear to me from what the parties have indicated that it is desirable in the first instance that there be some discussions between the parties represented to obtain clarification and explore the avenues for agreement. I also think it would be desirable for parties who seek to be involved to indicate in advance of the hearing an outline of their submissions. The matter - that outline can be brief, but I think it serves to assist all parties in advance of the hearing.
PN56
It appears to me that the parties could make their submissions and lead any evidence within the course of one day, and I would propose to list the matter in approximately a month's time to enable both discussions and also consultation with employers that may be affected.
PN57
I'm looking, therefore, to list the matter on 14 March unless there's any particular difficulties any party has. I propose to hear the matter in Sydney but to enable participation by video if any party wished to participate in that way.
PN58
What I'll also do is ask any parties supporting the application to file an outline of their submissions by Wednesday, 29 February, and any party opposed to the application to file an outline of their submissions by Wednesday, 7 March. I'll list the matter for 10 am on 14 March in Sydney, as I say, with a video link to other locations. The requirement to file an outline also carries with it a direction to serve on all parties represented today - an outline of those submissions.
PN59
Are there any other matters any parties wish to raise? Thank you, very much. We'll adjourn on that basis.
<ADJOURNED UNTIL WEDNESDAY, 14 MARCH 2012 [3.50PM]