TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 49979-1

SENIOR DEPUTY PRESIDENT HAMBERGER

AM2011/17

s.158 - Application to vary or revoke a modern award

Application by Media, Entertainment and Arts Alliance
(AM2011/17)
Live Performance Award 2010

(ODN AM2008/35)
[MA000081 Print PR988941]]




Sydney

10.04AM, FRIDAY, 15 APRIL 2011

PN1

THE SENIOR DEPUTY PRESIDENT: Could I have the appearances please?

PN2

MS C. MONTGOMERY: Thank you. If it pleases the tribunal, my name is Montgomery, initial C. I appear on behalf of the Media Entertainment and Arts Alliance. With me is MR. F. CARMONA of the alliance as well.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN4

MS MONTGOMERY: Thank you, your Honour.

PN5

MR D. HAMILTON: If your Honour pleases, David Hamilton for the Australian Entertainment Industry Association trading as Live Performance Australia.

PN6

THE SENIOR DEPUTY PRESIDENT: Thank you. Ms Montgomery.

PN7

MS MONTGOMERY: Thank you, your Honour. I might just add, your Honour, I’m having major sinus issues - - -

PN8

THE SENIOR DEPUTY PRESIDENT: Oh dear.

PN9

MS MONTGOMERY: - - - and have constant ringing in my ears so you might want to speak up just a little for me.

PN10

THE SENIOR DEPUTY PRESIDENT: I’ll do my best. If you can’t hear just
- - -

PN11

MS MONTGOMERY: I’ll tell you, you don’t have to worry about that. Your Honour, you have before you an application to vary the Live Performance Award 2010 as per section 158. If I could just lay out my grounds. The alliance is seeking to vary the Live Performance Award in accordance with section 158 in order to reinstate some entitlements that had been lost in the drafting and the preparation of the modern award back in 2009. There are two clauses that we seek to vary. We have been in discussions with Live Performance Australia in relation to those variations that we’re seeking and they have indicated that they don’t oppose our variations. The two variations we seek, in relation to the transmission and recording allowance, there has been the variation – sorry, there are three. I’ll start at the top. The first variation we seek is the reinstatement of the tool allowance which was applicable to employees other than the heads of department in live theatre.

PN12

THE SENIOR DEPUTY PRESIDENT: I tried to compare the clause you’re proposing and the clauses in the award at the moment. If you could just highlight for me – no, the first one, that isn’t in there at all – hang on, this is just an extra - - -

PN13

MS MONTGOMERY: Sorry, your Honour, it appears it’s my confusion. That’s already varied. I’m just speaking to my colleague and David has just indicated to me that that variation has actually been granted in a previous application.

PN14

THE SENIOR DEPUTY PRESIDENT: This is number one, the 44.1(a).

PN15

MS MONTGOMERY: That’s right, your Honour.

PN16

THE SENIOR DEPUTY PRESIDENT: Who did that?

PN17

MR HAMILTON: Commissioner Lewin.

PN18

THE SENIOR DEPUTY PRESIDENT: When did he do it? I’ve got my copy of the Live Performance Award but I must say I didn’t know what date I had it.

PN19

MR HAMILTON: 2 or 3 March, I think, your Honour.

PN20

THE SENIOR DEPUTY PRESIDENT: It’s only just I might have printed this out before.

PN21

MR HAMILTON: Yes.

PN22

THE SENIOR DEPUTY PRESIDENT: So this is number one on the application?

PN23

MR HAMILTON: Yes.

PN24

THE SENIOR DEPUTY PRESIDENT: You say that that’s not necessary, it’s already been done.

PN25

MS MONTGOMERY: I apologise for that, your Honour.

PN26

THE SENIOR DEPUTY PRESIDENT: That’s easy then.

PN27

MS MONTGOMERY: I’ll take us to two then.

PN28

THE SENIOR DEPUTY PRESIDENT: Number two, has two been done?

PN29

MS MONTGOMERY: Which is the 44.2 transmission or recording allowance. In the existing clause contained in the Live Performance Award, what we’ve sought to do is there’s been a lot of confusion around how often that payment is made. Both my colleague and I had discussions around just clarifying that there was only one payment that is made for a recording or a broadcast allowance. I’d had a number of enquiries from members and employers in regard to the existing clause and the confusion was that it didn’t specify how many payments they would have to make if it was broadcast more than once.

PN30

THE SENIOR DEPUTY PRESIDENT: Yes.

PN31

MS MONTGOMERY: In the pre-reform award it was very clear that the technicians received a one off payment and so our variation seeks at 44.2(ii) our variation just seeks to make that very clear that only one payment will be made.

PN32

THE SENIOR DEPUTY PRESIDENT: When you say 44.2 you’re talking about?

PN33

MS MONTGOMERY: It’s near 44.2 in our - - -

PN34

MR HAMILTON: (a)(ii).

PN35

MS MONTGOMERY: (a)(ii).

PN36

THE SENIOR DEPUTY PRESIDENT: (a)(ii).

PN37

MS MONTGOMERY: I’m sorry.

PN38

THE SENIOR DEPUTY PRESIDENT: That’s alright, so 44.2(a)(ii).

PN39

MS MONTGOMERY: Yes, your Honour.

PN40

THE SENIOR DEPUTY PRESIDENT: I’m just trying to compare it. You’ve added in, “One payment will only be made under the provisions of sub-clause 44.2(a) even though the recording of a production may take place over a series of performances”, and that’s not in the modern award at the moment.

PN41

MS MONTGOMERY: No, that’s right, your Honour.

PN42

THE SENIOR DEPUTY PRESIDENT: But is the rest of it there?

PN43

MR HAMILTON: Yes.

PN44

THE SENIOR DEPUTY PRESIDENT: That’s the only thing that’s changed.

PN45

MS MONTGOMERY: That’s the only, there.

PN46

THE SENIOR DEPUTY PRESIDENT: I just wanted to make sure. Thank you.

PN47

MS MONTGOMERY: Again, as I touched on earlier, the purpose of that variation is simply to make it very clear.

PN48

THE SENIOR DEPUTY PRESIDENT: Just to be clear, you said it was clear under the pre-reform award it’s just in the drafting.

PN49

MS MONTGOMERY: Yes.

PN50

THE SENIOR DEPUTY PRESIDENT: Can I just interrupt something? I wasn’t involved in the Live Performance Award when it was being made, generally there were draft awards prepared.

PN51

MS MONTGOMERY: That’s correct, your Honour. Both my colleague and I were both involved in the organisation process, more particularly with this award and various other awards that have affected our industry. The problems with this particular clause, after award modernisation, arose only after in its draft.

PN52

THE SENIOR DEPUTY PRESIDENT: Yes, but I’m saying in the process of actually developing the modern award were there drafts prepared jointly?

PN53

MS MONTGOMERY: Yes, there were.

PN54

THE SENIOR DEPUTY PRESIDENT: There were. So what you’re saying is – let’s just be clear – the draft award that was prepared for the Commission, that was prepared jointly by MEAA and Live Performance Australia didn’t include this.

PN55

MS MONTGOMERY: Didn’t include that clarification.

PN56

THE SENIOR DEPUTY PRESIDENT: Particular line, yes.

PN57

MS MONTGOMERY: That’s right.

PN58

THE SENIOR DEPUTY PRESIDENT: That’s what I thought but I just wanted to be clear.

PN59

MS MONTGOMERY: Thank you.

PN60

THE SENIOR DEPUTY PRESIDENT: Thank you. So that’s two.

PN61

MS MONTGOMERY: Yes, so moving to three. This variation, your Honour, goes to reinserting the paid missed meal break for casual employees. Again, just touching back on your comments in relation to the draft documents that were circulating throughout the award modernisation process, again this was something that we missed – for want of a better word. This entitlement did exist under the pre-reform award so the entitlement was that if a casual employee worked for more than five continuous hours they became entitled to a paid meal break at double time.

PN62

THE SENIOR DEPUTY PRESIDENT: I see because there was a provision – which is in there – casual employees who work for more than four hours will be entitled to a minimum meal break for 30 minutes so that’s there.

PN63

MS MONTGOMERY: That was there.

PN64

THE SENIOR DEPUTY PRESIDENT: What you’re adding is - - -

PN65

MS MONTGOMERY: That if the meal break is missed, as was in the pre-reform, the casual would receive that missed penalty, that missed meal break at double time.

PN66

THE SENIOR DEPUTY PRESIDENT: Where is that in your draft?

PN67

MS MONTGOMERY: In the current award at 46.2 the clause that only goes to a break for casuals is the 30 minutes draft.

PN68

THE SENIOR DEPUTY PRESIDENT: Yes, but in your proposed variation where is the extra bit?

PN69

MS MONTGOMERY: Sorry, your Honour. At 46.3.

PN70

THE SENIOR DEPUTY PRESIDENT: So you’re adding in 46.3?

PN71

MS MONTGOMERY: That’s correct.

PN72

THE SENIOR DEPUTY PRESIDENT: This is all employees not just casuals, that’s right.

PN73

MS MONTGOMERY: Yes, your Honour. It just tidies it up.

PN74

THE SENIOR DEPUTY PRESIDENT: I don’t mind, I can sort of understand it.

PN75

MR HAMILTON: Can I?

PN76

THE SENIOR DEPUTY PRESIDENT: Yes, please.

PN77

MR HAMILTON: If I may, your Honour?

PN78

THE SENIOR DEPUTY PRESIDENT: Yes.

PN79

MR HAMILTON: If you have a look in the Live Performance Award 46.1(c), “In the event the employee is required to work more than five continuous hours without a suitable meal interval the employee will be paid for the period which should be allowed as the meal interval at the rate of double time”.

PN80

THE SENIOR DEPUTY PRESIDENT: This is under weekly employees.

PN81

MR HAMILTON: Yes, now that provision doesn’t make sense because as it stands at the present award it only applies to weekly employees, and weekly employees under the award receive a missed meal penalty of one hour at double time if they work continuously past five hours. So where it has in (c), “Will be paid for the period which should be allowed”, that was in the old pre-reform award and it applied to both weekly and casual employees because a casual’s meal break was a half an hour, whereas as a fulltime employee’s meal break was one hour. So that clause doesn’t make any sense where the casual employees are not included because it says, “For the period which should be allowed for the meal interval”. In effect, the present award applies to something that doesn’t exist and what we’re seeking to do by this variation is to reintroduce the missed meal penalty for casual employees that would be paid a half an hour at double time if they work continuously past five hours.

PN82

THE SENIOR DEPUTY PRESIDENT: So you don’t need to change (c), 46.1(c) stays the same, is that right, but the effect of it, it changed?

PN83

MR HAMILTON: Yes.

PN84

THE SENIOR DEPUTY PRESIDENT: But the words are still there, you haven’t changed this.

PN85

MR HAMILTON: The provision is still there and that can be found in the variation in MEAA’s document, your Honour, in clause 46.3 where (a) – so that provision now relates, not only to weekly employees - - -

PN86

THE SENIOR DEPUTY PRESIDENT: Just to be clear, in the proposed variation you have still got in 46.1(a), (b), you’ve still got the (c).

PN87

MS MONTGOMERY: Take that out.

PN88

MR HAMILTON: Yes, that should be taken out.

PN89

THE SENIOR DEPUTY PRESIDENT: Should that be taken out?

PN90

MR HAMILTON: Yes.

PN91

MS MONTGOMERY: Yes.

PN92

THE SENIOR DEPUTY PRESIDENT: Right, so it’s (a), (b) and then that becomes (c) and (d), is that right, just to be clear.

PN93

MS MONTGOMERY: Yes, your Honour.

PN94

MR HAMILTON: That’s correct.

PN95

THE SENIOR DEPUTY PRESIDENT: Then you’ve got 46.2 which is there now and then you add in 46.3, and then obviously you rechange the numbering.

PN96

MS MONTGOMERY: Yes.

PN97

THE SENIOR DEPUTY PRESIDENT: I’ve got to be careful because I’ll have the award modernisation team on me. Yes, so that makes sense, so 46.3 deals - - -

PN98

MR HAMILTON: May I suggest, your Honour?

PN99

THE SENIOR DEPUTY PRESIDENT: Yes.

PN100

MR HAMILTON: In the variation papers, and item 3 is by deleting clause 46 inserting the following, it should be then 46.1 weekly employees as - - -

PN101

THE SENIOR DEPUTY PRESIDENT: Hang on a minute, let me get this right. I see, as it is now, 46.1.

PN102

MR HAMILTON: As it is now in the present award, and then (a), (b), taking out (c), (d) becomes (c), (e) becomes (d).

PN103

THE SENIOR DEPUTY PRESIDENT: You’ve put the heading “46.1 Weekly Employees” but the (a) is exactly the same as it is now.

PN104

MR HAMILTON: Yes.

PN105

THE SENIOR DEPUTY PRESIDENT: The (b) is exactly the same.

PN106

MR HAMILTON: Yes.

PN107

THE SENIOR DEPUTY PRESIDENT: The (c) comes out.

PN108

MR HAMILTON: Yes.

PN109

THE SENIOR DEPUTY PRESIDENT: Then (d) becomes (c).

PN110

MR HAMILTON: (d) becomes (c).

PN111

THE SENIOR DEPUTY PRESIDENT: (e) becomes (d) and then 46.2 is the same.

PN112

MR HAMILTON: Then 46.2 is casual employees.

PN113

THE SENIOR DEPUTY PRESIDENT: Yes.

PN114

MR HAMILTON: Then 46.3 is all employees.

PN115

THE SENIOR DEPUTY PRESIDENT: In terms of the modern award it’s a whole new clause, basically.

PN116

MR HAMILTON: Yes, but it now reflects the old provisions in the pre-reform award and then it applies those words will be paid for the period which should be allowed for the meal breaks so there are two different - - -

PN117

THE SENIOR DEPUTY PRESIDENT: Yes, you’ve taken – yes.

PN118

MR HAMILTON: Then it makes sense, if your Honour pleases.

PN119

THE SENIOR DEPUTY PRESIDENT: Yes, I understand. Thank you for that. That’s it, isn’t it, yes.

PN120

MS MONTGOMERY: That is, your Honour. If it pleases the tribunal.

PN121

THE SENIOR DEPUTY PRESIDENT: I don’t know if you just want to confirm, Mr Hamilton, if you support the proposed variation?

PN122

MR HAMILTON: Yes, of course we do, your Honour. Just on the transmission recording allowance, your Honour, just for a bit of clarification.

PN123

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN124

MR HAMILTON: What can happen in a production is that the producer will film a number of segments of the one production and that filming could take over two, three or four days and that filming will result in one product; ie, an advertisement for that show. Under the pre-reform provisions it was quite clear that it doesn’t matter how many recording sessions there were of that one production, only one payment would be made to those employees.

PN125

THE SENIOR DEPUTY PRESIDENT: These are the technical employees, these are not the performers?

PN126

MR HAMILTON: That’s correct, your Honour. Under the modern award it was not clear whether the one payment should be made for a situation, as I have just described. So this clarifies that there is only the one payment where there is a number of filming sessions for the one particular production, to make sure if there is one end product then one allowance is payable. Apart from that, your Honour, Live Performance Australia supports the application and has no objection if the tribunal grants the application.

PN127

THE SENIOR DEPUTY PRESIDENT: I’ll just say something on the transcript, just to make sure it makes sense. I’ve decided to make a determination varying the Live Performance Award 2010 along the lines sought by the MEAA and supported by Live Performance Australia. I know the application to vary the award has not been opposed by any party involved with the award. On the basis of the material put before me I’m satisfied that the variations are necessary to overcome what were essentially errors made by the parties when they presented a draft award to the commission during the award modernisation process – the highly complicated and difficult award modernisation process – and the variations are appropriate having regard to section 157 of the Fair Work Act. I am satisfied that the variations are necessary to achieve the modern award’s objective and will assist in providing a fair and relevant minimum safety net in the terms and conditions in the live performance industry.

<ADJOURNED INDEFINITELY [10.22AM]