TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1033126-1

COMMISSIONER BISSETT

AM2012/10

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

Application by Jennings
(AM2012/10)
Pastoral Award 2010

(ODN AM2008/14)
[MA000035 Print PR986377]]




Melbourne

10.12AM, WEDNESDAY, 21 MARCH 2012

PN1

THE COMMISSIONER: Thank you, I'll take appearances.

PN2

MR DUGGAN: If the commission pleases, Duggan, initial B, on behalf of the National Farmers' Federation.

PN3

THE COMMISSIONER: Thank you, Mr Duggan. Mr Duggan, as you would have noticed, the applicant, Mr Scott Jennings, isn't here and attempts by my associate to contact him have been unsuccessful. I have - there are a couple of things to say to you though, and that's fine. Firstly, in your correspondence you indicated that you thought that this application was part of the award review system, or had started as part of the award review system. There's nothing that we've got in correspondence from the applicant that suggests he intended this to be dealt with as part of the two-year review of the modern award.

PN4

So I don't know whether he was aware of the review of modern awards or not, but there's nothing that we've received from him that indicated he intended that the matter be dealt with through that process and the application was made on the general form for a variation to the modern award, but not the specific form related to the 2012 review. In terms of the application itself, I'm not particularly - it's a bit difficult without the applicant being here, but my reading of his application suggests to me that he's just a bit confused about the operation of the award and two particular clauses in the award.

PN5

The clauses that he referenced is the clause that deals with the payment of meal allowances when working overtime and then the specific clause with respect to when overtime will be paid in the industry that he's specifically interested in, which if I recall was the poultry sector. On my reading of it, there doesn't seem to be any conflict between the two clauses such that you might suggest there was any confusion in them. Clause 17.3(g) just says that you get a meal allowance if you've worked more than one and a half hours of overtime and clause 42 just says when you get overtime. I'm not quite sure what the conflict was between those two clauses that he sought to have resolved by his application, except that clause 42 doesn't say what your daily ordinary hours are.

PN6

But I would have to say that that's not, in my experience, necessarily unusual in any modern award. It varies from award to award. So that's where I'm at on it. Do you want to say anything or tell me what you think I should do with the application?

PN7

MR DUGGAN: Commissioner, could I address you on the modern award review process?

PN8

THE COMMISSIONER: Certainly.

PN9

MR DUGGAN: Initially I saw this application listen on the web-site and I'm unaware how it was transferred into a listing for hearing today. That's the reasoning behind my letter yesterday. On the substantive case before us, I'd like to address you this morning on standing under the Act. We are of the position that there's not an ambiguity or uncertainty in relation to clause 41 of the poultry act, but in relation to standing itself can I refer, Commissioner, to form 46, application to vary a modern award. If I refer you to page 2 under the signature block dated 21 February, Mr Jennings signs this application in the capacity of ex-farm hand.

PN10

If I could now refer the commissioner to section 158 of the Fair Work Act, subsection (1) item (1), it specifies in column 2, "An employer" - in column 1 it states, "An application to vary, omit or include terms (other than outworker terms or coverage terms) in a modern award." Then column 2 specifies who can bring an application. Part (a) reads, "An employer, an employee or the organisation that is covered by the modern award". On the application that is before us, it's quite obvious that Mr Jennings does not meet the criteria specified in column 2 part (a) of section 158 subsection (1). We would seek that this matter is discontinued today on these grounds.

PN11

I note that the applicant is not here and I am aware of procedural fairness, but on the legislative bar, to commence such an application, leaving aside the form of the application as it stands, we would submit that the application lacks substance to be brought before this commission.

PN12

THE COMMISSIONER: The question of course, which only Mr Jennings can answer, is what is he employed as now? It may well be that he is employed in the industry in some way or another, but he's not here so it's a little bit difficult to determine that matter. But I understand the application that you make and it's my intention to write to the applicant following this hearing today and send to him a copy of the transcript from today's hearing and see if he has any submissions to make or anything to say with respect to those things that you've raised. Putting aside the question of standing, do you have any other matters that - - -

PN13

MR DUGGAN: To assist you, Commissioner, I have prepared a document.

PN14

THE COMMISSIONER: Yes.

PN15

MR DUGGAN: I haven't had the opportunity - I don't have the address for the applicant to serve such a document.

PN16

THE COMMISSIONER: Thank you.

PN17

MR DUGGAN: If I refer through - the document which I've just tendered is four pages, Commissioner. Page one effectively outlines the various awards that may have applied pre-modern award time. The predominant award was, over the page on page 2, a Poultry Industry Award 1999 which was a federal award and I've reproduced the clause 19.2, which is the meal allowance. Without the benefit of the circumstances of where the applicant comes from, quite obviously there was a meal allowance payable under the poultry award at that time pre-modern awards.

PN18

THE COMMISSIONER: Yes.

PN19

MR DUGGAN: Over the page on page 3 and 4, I've effectively reproduced the allowances and how they interact in the modern award. It is an unusual award. It has a long history, as no doubt, Commissioner, you are aware. The part 4, the broad acre farming and livestock operations, has no meal allowance payable, effectively because it's an averaging of 152 hours over a four-week period. Whereas the pig breeding, which the applicant refers to, does have a meal allowance payable. On page 4, the current drafting of the poultry farming is not ambiguous and does not have a meal allowance payable because it has the averaging provisions of 152 hours. Finally, the - - -

PN20

THE COMMISSIONER: Why do you say that a meal allowance isn't payable? Don't the general conditions in the Pastoral Industry Award apply where there's no specific condition within each of the industry groups?

PN21

MR DUGGAN: This is why I wrote to you yesterday, Commissioner. If that was the interpretation of the award, it would have implications across the industry. The industry has a long history of seasonal demands and fluctuations in labour requirements and I refer you to the next part, part 7, which has no meal allowance because shearing is effectively - the employees are found, meaning that meals and accommodation are provided. But referring back to your particular point, Commissioner, the poultry farming section of clause 41 has 152 hours that are averaged over a four-week period based on a 38-hour week, as per the National Employment Standards.

PN22

There is a provision in there that the employee can choose to have time in lieu of overtime provisions. It's the applicant's possibility to run such a case if there is an ambiguity, there is an oversight in the modern award drafting process - - -

PN23

THE COMMISSIONER: What's the purpose of clause 17 in the award?

PN24

MR DUGGAN: Commissioner, without having the benefit of going back to the transcript of the full bench, I would say there is a combination of awards - if I refer you back to page 1. 19 awards that were combined into the Pastoral Award and various elements had a meal allowance and various elements did not. The agricultural industry did not have - - -

PN25

THE COMMISSIONER: Yes, but what's the purpose of clause 17 in the award today?

PN26

MR DUGGAN: It's an overarching provision and I would submit to you, Commissioner, that it's in relation to part 5, pig breeding, where it specifies that a meal allowance is payable. This is our concern: that if the interpretation of this matter resulted in a decision being handed down that any hours in excess of 152 hours, which are averaged, whether that's on a daily basis or a monthly basis, it would have ramifications for the industry.

PN27

THE COMMISSIONER: Not much, one would think, given that up until two years ago they were paying a meal allowance.

PN28

MR DUGGAN: Specifically in the poultry industry, yes.

PN29

THE COMMISSIONER: Yes. This question is about the poultry part of the award.

PN30

MR DUGGAN: But the application currently in its form could have ramifications for the interpretation of clause 17 and the various parts of the Pastoral Award. That's our primary concern.

PN31

THE COMMISSIONER: If it was confined to the poultry part it wouldn't have much of a ramification because they have been paying a meal allowance.

PN32

MR DUGGAN: That may be the case, Commissioner, but the application - - -

PN33

THE COMMISSIONER: Well, I hope it was the case, they had an award that required them to.

PN34

MR DUGGAN: The application that we have on foot is essentially a clarification on operation or interpretation. Without a - - -

PN35

THE COMMISSIONER: With respect to clause 41 and 42 and clause 17, I would think.

PN36

MR DUGGAN: But the wording of clause 41 is reproduced in other elements of the Pastoral Award. If I may expand my submissions, if the application was drafted specifically for the poultry sector, it would be a reproduction of pre-modern award terms and conditions, but as it's drafted at the moment it has possible implications for - if an interpretation was handed down it would affect the industry-wide practices. That is our principle concern.

PN37

THE COMMISSIONER: Yes, okay. So is your submission that people in the poultry farming sector are not entitled to any meal allowance regardless of how much overtime they work?

PN38

MR DUGGAN: That is not my submission because I have not been instructed on the custom and practice of the sector.

PN39

THE COMMISSIONER: I wasn't asking for custom and practice; I was asking about the award.

PN40

MR DUGGAN: On the reading of the clause, you could take that a meal allowance is not payable until 152 hours are payable.

PN41

THE COMMISSIONER: Well, that's my question. Either the provisions of clause 17.3(g) have some application to poultry farming or they don't. My question is when does it - are you saying that it does have application in certain circumstances?

PN42

MR DUGGAN: I'm unclear on that, I would submit, Commissioner. The drafting of the clause does not assist the parties in their implementation or compliance with the clause so I'm unable to actually answer that or give you an industry position without having the opportunity to consult with the poultry sector.

PN43

THE COMMISSIONER: Thank you. Is there anything else that you wanted to say to me?

PN44

MR DUGGAN: No, Commissioner. Thank you.

PN45

THE COMMISSIONER: Okay. What I intend to do, Mr Duggan, as I indicated earlier, is to correspond with the applicant in this matter. I will send him a copy of the transcript of today's hearing and ask him if there are any other matters that he wishes to raise with respect to his application. I will ask him if he does have any further submissions that he wishes to make with respect to the matter and, pending the receipt or otherwise of correspondence from him - which will be posted to the web-site and you will be advised via the normal processes - I'll make a decision on the application.

PN46

I have to say that, at this point, the application doesn't seem to have such a great sense of urgency that it requires immediate attention. On top of that, I am not clear exactly what it is he is seeking from the application. I'm not clear that he's seeking a variation to the award or whether he's just seeking some form of clarification and this was how he thought that he got his conditions of employment clarified, but we'll see what he has to say in correspondence back. You will be given an opportunity, if you've got anything to say in response to what he puts to me, to provide that information to me as well.

PN47

MR DUGGAN: If I could place you on notice, Commissioner: it's possible, if this matter does proceed, that we would seek that it be convened through teleconference as I am based out of Canberra.

PN48

THE COMMISSIONER: Yes, certainly. Not a problem.

PN49

MR DUGGAN: If the commission pleases.

PN50

THE COMMISSIONER: Okay. We'll adjourn.

<ADJOURNED INDEFINITELY [10.30AM]