PN1

JUSTICE ROSS: Could I have the appearance, please? Firstly in Melbourne.

PN2

MR P RYAN: May it please the Commission, Ryan, initial P. I'm appearing for the Australian Hotels Association and with me at the Bar table is Zammit, initial K also for the AHA.

PN3

JUSTICE ROSS: Thank you. And in Sydney?

PN4

MS N DABARERA: If it pleases, Dabarera, initial N, for United Voice.

PN5

MS K THOMSON: Thank you, your Honour. Thomson, initial K, for ABI and the New South Wales Business Chamber.

PN6

JUSTICE ROSS: Thank you.

PN7

MS DABARERA: Your Honour, before we proceed, the microphone is a little bit soft from Sydney.

PN8

JUSTICE ROSS: Can you hear me now?

PN9

MS DABARERA: That's better, your Honour.

PN10

JUSTICE ROSS: All right. Thanks. We published a statement on 7 October in which we noted that in relation to the breaks issue in clause 32 of the restaurant award, it seemed that based on the submissions filed by the AHA an and United Voice's earlier submissions that most of the matters were agreed, save for the issue in redrafted clause 32.4 about the introduction of the facilitative provision.

PN11

We attached an amended draft variation determination as attachment 1 to that statement, which was intended to reflect what our understanding was of the agreed matters between the parties. The statement noted that at the hearing today parties would be asked to confirm whether the agreed matters are accurately reflected in the amended draft variation determination and then to make submissions in respect of the provisional view regarding the insertion of the facilitative provision.

PN12

Can I go to the first matter and ask whether the parties agree whether the matters upon which they agree are accurately reflected in the amended draft variation determination attached to the statement of 7 October. I might begin with you, Mr Ryan.

PN13

MR RYAN: Yes, your Honour. The answer to that is yes, with one exception and that was a matter that was raised in our submission dated 30 September. And in our submission of 30 September there were a number of Roman numeral points and in relation to the meal break not rostered or not given penalty provision. The previous proposed variation referred to the penalty as 150 per cent of the minimum hourly rate.

PN14

JUSTICE ROSS: Yes. Thank you. Can you just take me to - - -.

PN15

MR RYAN: It's expressed the same in the draft determination attached to - - -

PN16

JUSTICE ROSS: No. If you can just take me to where in your submission you are talking about?

PN17

MR RYAN: Yes. It's the submission dated 30 September by way of letter correspondence, page 2.

PN18

JUSTICE ROSS: Yes.

PN19

MR RYAN: Roman numeral (iii). It should be titled 'Meal break not rostered or given.'

PN20

JUSTICE ROSS: Okay.

PN21

MR RYAN: And we've suggested or submitted that the meal break penalty should be expressed as an additional 50 per cent of the ordinary hourly rate.

PN22

JUSTICE ROSS: All right. And if we go to attachment 1 to the statement and we go to the bit dealing with breaks, where would the - what would you want to change about that?

PN23

MR RYAN: Yes. If we go to the statement issued on 7 October, your Honour, page 9.

PN24

JUSTICE ROSS: Yes.

PN25

MR RYAN: Clause 32.5.

PN26

JUSTICE ROSS: 'Employer to pay higher rate if break not allowed.' Yes.

PN27

MR RYAN: It is also replicated in 32.6. It's the reference to 150 per cent of the employee's minimum hourly rate.

PN28

JUSTICE ROSS: Yes.

PN29

MR RYAN: It doesn't express that it's additional or in lieu of what would otherwise be worked. It's still a penalty provision as in the Hospitality Award where it's the rate of the day, plus 50 per cent of the base rate. If it's convenient, your Honours and Commissioner, I can hand up - - -

PN30

JUSTICE ROSS: I am just struggling to - sorry, Mr Ryan, I haven't looked at this for some time, but what's the difference in the concern? It is expressed here as 150 per cent of the minimum hourly rate and you are suggesting it should be, what, the rate payable on the day? Because they might be working ordinary hours on a Saturday or Sunday.

PN31

MR RYAN: Sunday.

PN32

JUSTICE ROSS: Plus 50 per cent?

PN33

MR RYAN: Of the ordinary hourly rate. What might become clearer, your Honours and Commissioner, if I hand up an extract of the Hospitality Award exposure draft.

PN34

JUSTICE ROSS: Thank you. Yes.

PN35

MR RYAN: And if I can take you to the second page.

PN36

JUSTICE ROSS: So this is - just for the benefit of those in Sydney, this is the plain language exposure draft of the Hospitality Award, published on 29 March 2019. Yes. I see.

PN37

MR RYAN: Yes. If we go to clause 16.6 on page 25.

PN38

JUSTICE ROSS: Yes.

PN39

MR RYAN: The page numbers are in the bottom right-hand corner. You will see there that there is an example given.

PN40

JUSTICE ROSS: Yes and the text in the lead up is different. So is the essence of it that if the employee is not allowed the unpaid break in accordance with the clause, then the employer is obliged to pay the employee 50 per cent of the employee's ordinary hourly rate extra. Is that how it works?

PN41

MR RYAN: That's how I understand it.

PN42

JUSTICE ROSS: And is that - - -

PN43

MR RYAN: And that's how it flows down. With the example, if it's $20 an hour and a break is not given you get 50 per cent which is an additional 10.

PN44

JUSTICE ROSS: Yes.

PN45

MR RYAN: And it is our submission that that is the way in which the Restaurant Industry Award has operated and in the current proposed terms of having 50 per cent of the employee's minimum hourly rate would only lead to confusion and that - - -

PN46

JUSTICE ROSS: Well, it actually may mean they'll get less.

PN47

MR RYAN: It may mean they will get less.

PN48

JUSTICE ROSS: They could get less than they would under a provision such as that applies in hospitality. All right.

PN49

MR RYAN: So it's our submission that the penalty provision for not providing a meal break should be replicated as it is in clause 16.6 of the Hospitality Award.

PN50

JUSTICE ROSS: All right. So subject to that change, you are content with the - - -

PN51

MR RYAN: Yes, your Honour.

PN52

JUSTICE ROSS: Okay. Thank you. Can I go to Sydney and Ms Thomson first?

PN53

MS THOMSON: We support the submissions of Mr Ryan, your Honour, but have nothing else to add.

PN54

JUSTICE ROSS: Thank you. Ms Dabarera?

PN55

MS DABARERA: Your Honour, we would agree that the way that AHA has suggested that it be phrased is clearer than what is currently presented. We think the substantive effect of what is currently in the Restaurant Industry Award is the same in that you would get that additional 50 per cent, but when you say 150 per cent of the minimum rate it could imply that it's a lower rate. So we would support the change.

PN56

JUSTICE ROSS: All right. Thank you. Do I take it that each of you in Sydney, with that change are content with the rest of the draft variation determination, save for the issue that's in dispute between you are regarding the individual facilitation?

PN57

MS THOMSON: Yes, your Honour.

PN58

MS DABARERA: Yes, your Honour.

PN59

JUSTICE ROSS: Thank you. Can we then go to - just bear with me for one moment. Can I note now before we get to the issue around individual facilitation in the breaks clause in the Restaurant Industry Award, can I just cover off on the AHA's submission in relation to the revised draft determination for the Hospitality Award? The AHA identified two typographical errors. They appear uncontentious and we attach to our statement of 7 October an amended draft variation determination incorporating the AHA's suggestion at attachment 2. Are there any issues about any of that? Are you content with that, Mr Ryan?

PN60

MR RYAN: Yes, your Honour. There were two, I suppose, new issues in relation to the Hospitality Industry Award and I am happy to park those two until after we deal with the facilitative provision.

PN61

JUSTICE ROSS: Yes. Let's do that. All right. We will leave the hospitality issue until we've dealt with the restaurant matter.

PN62

All right. Well, there's a dispute about the provisional view regarding the insertion of the facilitative provision. The United Voice has made a previous submission in respect of that matter.

PN63

MS DABARERA: It was on 30 January 2018, your Honour.

PN64

JUSTICE ROSS: Yes. That's from paragraphs 14 and onwards. Just while I've got you, Ms Dabarera, and I'm not suggesting that you are the one that does this, but in the future, for submissions for United Voice can you put the date of the submission on the front page?

PN65

MS DABARERA: Yes, your Honour.

PN66

JUSTICE ROSS: Because I've noticed this in the exposure draft reviews, it's almost impossible to find out what the reference is, because they all look the same from the front page.

PN67

MS DABARERA: No problem, your Honour.

PN68

JUSTICE ROSS: Thank you. It's easier to track. Was there anything you wanted to add or anything you wished to say by way of elaboration to that submission of 30 January?

PN69

MS DABARERA: We are content to rely on that submission.

PN70

JUSTICE ROSS: All right. Are there any - the submissions advanced, if I can put it this way, sort of on an all or nothing basis; are there any safeguards or additional protections or changes that you would propose in the event that we confirm our provisional view and go ahead and insert an individual facility provision?

PN71

MS DABARERA: Your Honour, I guess I would have to consider that, but I suppose our view is that with the IFAs, we do support the Commission excluding breaks from the IFA provisions. However, IFA do theoretically provide some protection to the employee in that they are meant to be better off overall. So with the facilitative provision, where the break can be pushed backwards, our concern there is that there is already a mechanism within the current award to push the break backwards. It's just that there is a minor penalty for that and that there is no requirement that the employee be better off overall. But I haven't considered any other protections that may be afforded to the employee at this stage.

PN72

JUSTICE ROSS: Well, when you say 'at this stage', this is the only stage. So we're going to deal with this issue and determine it. You are not going to get another go at it. So if there's anything that you want to suggest, this would be the time to do it.

PN73

MS DABARERA: Your Honour, we would be content to rely on our submissions in respect of that matter.

PN74

JUSTICE ROSS: All right. Mr Ryan, anything you wish to say?

PN75

MR RYAN: Yes, your Honour. Only that we don't place it any higher than what was in our submission on 30 September. That is that given the removal or the exclusion of meal breaks from being able to be varied through an IFA, the facilitative provision provides a limited degree of flexibility and in our view that meets the modern award objective through section 134(1)(d), the need to promote flexible modern work practices and efficient productive performance at work. So that's as far as we can put it, your Honours and Commissioner.

PN76

JUSTICE ROSS: Thank you, Mr Ryan. And Ms Thomson?

PN77

MS THOMSON: Just to note for the record, your Honour, that we support the submission of the AHA and do see it as desirous to have the clause inserted in the absence of the provision in the flexibility clause.

PN78

JUSTICE ROSS: Thank you. Speaking for myself, there is one matter I wanted to raise. At the moment, the clause proposed at 32.4 says in (c), 'The agreement may be reviewed at any time.' On reflection, I think there's some lack of clarity about what that might mean.

PN79

My understanding of the intention was that an employer and employee can agree that an unpaid meal break is to be taken at some different time, as expressed in (a), but (c) was intended to be a safe guard in the event that, for example, the employee becomes fatigued and needs a break, then they could essentially change their mind for that reason and revert back to the default position, which is the award provision for when you are entitled to an unpaid meal break.

PN80

I am not sure that intent is fully captured in (c), so wanted to raise that with the parties and give you an opportunity to say anything if you wish to about that point. Is there anything any party wanted to address on that issue?

PN81

MS DABARERA: Your Honour, we would support your view in regard to that. There could be some clarification on (c), because that is not necessarily how it would be read at this stage.

PN82

JUSTICE ROSS: No. I suppose the converse would apply too. If the parties agree at an earlier point, but then either wishes to withdraw from that agreement for whatever reason, then they would be entitled to do so. Maybe there is an operational reason that comes up that doesn't suit the employer then for the agreement to take effect and that the break should be taken in accordance with the default award provision.

PN83

Anything either AHA or ABI wish to say?

PN84

MR RYAN: I suppose, your Honours and Commissioner, the termination - if it was able to be terminated at any time, there would have to be a cap on that, in the sense that there would have to be a cap on the time framing to the shift at which it could be terminated. Otherwise then if it was terminated beyond five hours - - -

PN85

JUSTICE ROSS: No. I follow. If it's terminated after when it was due to be taken under the award- - -

PN86

MR RYAN: Exposing penalty or additional 20 minute paid-breaks.

PN87

JUSTICE ROSS: Yes. All right. So it would need to say something like an agreement reached under 32.4(a) may be terminated by either party within x hours of the commencement of work or something like that.

PN88

MR RYAN: Yes, your Honour. I am just trying to work out in my head whether it is four and half or five. I suppose it depends on whether it's rostered or not.

PN89

JUSTICE ROSS: Well, if we said within the first four hours of work - - -

PN90

MR RYAN: It covers both situations.

PN91

JUSTICE ROSS: Yes. All right. Anything further on that before we go to the hospitality draft determination? No. All right. Mr Ryan, you had some issues you want to raise about that. So here, we are looking - or at least I am looking at attachment 2 to our statement.

PN92

MR RYAN: Yes, your Honour. I suppose the first matter I wish to draw isn't dealt with in the draft determination, but I suppose it's the corresponding amendment that was addressed in our submissions of 30 September in relation to the restaurant draft determination.

PN93

On page 2 of those submissions, at (iv), we made a submission about the break following overtime and to add clarity we suggested an amendment to column 1 of table 2, by inserting the word 'ordinary' in front of - - -

PN94

JUSTICE ROSS: Yes. So that's at - bear with me for a moment.

PN95

MR RYAN: It's in the draft determination attached to the statement of 7 October. It's on page 8.

PN96

JUSTICE ROSS: Page 8. I've got the Hospitality Award draft determination starting on page 12.

PN97

MR RYAN: Sorry, your Honour. I was referring to the draft determination of the Restaurant Industry Award. So our submission was in relation to that table on page 8, at the heading or the title of column, to insert the word 'ordinary' before - - -

PN98

JUSTICE ROSS: Yes. Just hang on a second. Yes. There is no table on my page 8. On page 9 there is a table 2. Is that the one you are talking about?

PN99

MR RYAN: Table 2. Yes, your Honour.

PN100

JUSTICE ROSS: And whereabouts on table 2 does it appear?

PN101

MR RYAN: Column 1. The heading of column 1 says, 'Ordinary hours worked per day'.

PN102

JUSTICE ROSS: Yes.

PN103

MR RYAN: In our submission dated 30 September, we suggested the word 'ordinary' be inserted to provide to clarity as to whether - and this goes to - - -

PN104

JUSTICE ROSS: Just a moment. Column 1, in the heading, you want it to read what?

PN105

MR RYAN: It reads 'ordinary hours'.

PN106

JUSTICE ROSS: Yes.

PN107

MR RYAN: That was addressed as part of our submission on 30 September.

PN108

JUSTICE ROSS: Yes.

PN109

MR RYAN: In the decision of 6 September, column 1 was just titled, 'Hours worked per day', and our submission was that - - -

PN110

JUSTICE ROSS: I know, but that's been reflected in the - - -

PN111

MR RYAN: It's been reflected. Our submission now in relation to the Hospitality Award is that a commensurate amendment be made to proposed clause 16.2. So in terms of the document which I handed up earlier today.

PN112

JUSTICE ROSS: Yes. Just a moment.

PN113

MR RYAN: In terms of that extract of - - -

PN114

JUSTICE ROSS: Yes. No, just wait until I've got it.

PN115

MR RYAN: Sorry.

PN116

JUSTICE ROSS: So the draft determination in respect of the Hospitality Award, it's attachment 2 didn't deal with this at all?

PN117

MR RYAN: It didn't deal with this. It's a new - as I foreshadowed earlier today, your Honour.

PN118

JUSTICE ROSS: All right. The easiest way then to deal with that, is to file a variation determination reflecting exactly what you want.

PN119

MR RYAN: Yes. It's the same - - -

PN120

JUSTICE ROSS: I understand. I know what you want. It's just that I don't think we can sort of deal with it on the run when it hasn't been the subject of a decision or parties put on notice. It's a fairly simple proposition. I am not suggesting that there would necessarily be any difficulty with it, but I think in order to ensure that anyone else with an interest in these is put on notice, if you file an application to vary, we will probably deal with that on the papers, publish it and invite any submissions, indicate if there are no submissions received by X, that we would be making a variation in those terms. It's probably the easiest way.

PN121

I am just conscious that I don't think we've made a decision about that issue and I understand why you would make it for consistency and we can deal with it quickly. I just think it would be best if it's done that way. It would also provide United Voice, ABI and anyone else with interest an opportunity to have a look at it. And you can, of course, discuss it with them prior to filing it. That might be the quickest way to deal with that matter, Mr Ryan. Is that all right?

PN122

MR RYAN: May it please, your Honour. And the second issue, which is a very minor issue, but it's arisen out of the draft determination being published and representatives of the Fair Work Ombudsman have contacted the AHA and I understand United Voice as well.

PN123

JUSTICE ROSS: Yes.

PN124

MR RYAN: If I can take you to page 13 and clause 20.4 of the Hospitality Award draft determination.

PN125

JUSTICE ROSS: Page 13 - - -

PN126

MR RYAN: Sorry. My page numbers must be one out. It's clause - it's item 3 of the draft determination.

PN127

JUSTICE ROSS: Yes. I've got that. The adult rates. Yes.

PN128

MR RYAN: And the clause 20.4.

PN129

JUSTICE ROSS: Yes.

PN130

MR RYAN: The table in subclause (a)(ii), the change that the Full Bench determined was to reflect apprentice wages being calculated by a percentage, referrable to the standard hourly rate.

PN131

JUSTICE ROSS: Yes.

PN132

MR RYAN: It was formerly the standard weekly rate.

PN133

JUSTICE ROSS: Yes.

PN134

MR RYAN: What has been communicated to us through the Fair Work Ombudsman is that the effect of the rounding of the weekly rate and then a divisor of 38 means that when you calculate those percentages of the standard hourly rate, the hourly rates for first, second and fourth year increase by one cent each and that then goes out to two cents on a Sunday and I think two cents or three cents for those hourly rates on public holidays.

PN135

Again, this is something that I know this is being done at short notice and it may be something that I can speak to the parties and deal with in the same manner, but we'd be proposing something along the lines of removing the table and replicating the table at clause 20.2(a)(ii) of the Restaurant Industry Award and the restaurant draft determination, which actually specifies the dollar rate, rather than a percentage. Again, it is to provide clarity. We don't see any need to adjust the (indistinct) apprenticeships, part of the Hospitality Award, but the one that's utilised quite heavily is the general apprenticeship wages provision for cooks and the like.

PN136

JUSTICE ROSS: Well it's also desirable there be consistency between me Hospitality Award and Restaurant Industry Award, to the extent we can. Perhaps if we deal with that this way; we won't proceed to finalise the hospitality draft variation determination until - if you can file the change you seek; before you file it, if you can have a discussion with United Voice and ABI and preferably reach a common position on what's to go in and then if you file that, then we will see where we go from there.

PN137

If it's an agreed position, then we'd give effect to it. If there's a dispute about it, then we'd probably have a short hearing. That would be the easiest way of addressing it. And then we'd deal with the matter that way.

PN138

MR RYAN: And in light of your Honour's comments can that be done by way of an amended submission, rather than an application of variance.

PN139

JUSTICE ROSS: That can certainly be done by way of submission, because we are already seized of the apprenticeship issue. So that's fine. We will publish the submission. Any parties with an interest can advise us.

PN140

MR RYAN: And just to clarify, your Honour, with the meal break amendment, should that be done as part of that submission or should that be done - - -

PN141

JUSTICE ROSS: No. They should be done separately. That's a separate proposition. Yes. Is everyone content with that course? You will all have an opportunity to have a discussion with AHA about what they are proposing and then to express a view on behalf of your organisations as to that proposal.

PN142

MS DABARERA: Yes, your Honour.

PN143

MS THOMSON: Yes. Thank you, your Honour.

PN144

JUSTICE ROSS: Thank you. Is there anything else?

PN145

MR RYAN: Nothing further, your Honour.

PN146

JUSTICE ROSS: Anything from Sydney?

PN147

MS DABARERA: Nothing, your Honour.

PN148

MS THOMSON: Nothing, your Honour.

PN149

JUSTICE ROSS: Thank you very much. We will adjourn on that basis.

ADJOURNED INDEFINITELY�� [10.04 AM]