TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 25833-2

VICE PRESIDENT LAWLER
SENIOR DEPUTY PRESIDENT WATSON
COMMISSIONER SMITH

AM2010/38

s.160 - Application to vary a modern award to remove ambiguity or uncertainty or correct error

Application by Australian Municipal, Administrative, Clerical and Services Union
(AM2010/38)
Local Government Industry Award 2010

(ODN AM2008/89)
[MA000112 Print PR991079]]




Melbourne

THURSDAY, 27 MAY 2010

Continued from New

PN1

THE VICE PRESIDENT: Good morning, appearances please. Mr Harvey from the ASU.

PN2

MR P. HARVEY: Yes, Your Honour, I appear this morning on behalf of the Australian Services Union. Appearing with me today is Ms Z. Edwards.

PN3

THE VICE PRESIDENT: Thank you. Mr Dansie, you're there in Sydney.

PN4

MR A. DANSIE: Yes, thank you, Your Honour, I appear generally on behalf of the Municipals Association of Victoria, the Local Government Association of the Northern Territory, the Local Government Association of Tasmania, the Western Australian Local Government Association, the Local Government Association of South Australia, the Local Government Association of Queensland, the Local Government Association of New South Wales and the Shires Association of New South Wales.

PN5

THE VICE PRESIDENT: Thank you. Mr Malloch-Smith, there is a separate appearance for the West Australian Local Government Association.

PN6

MR A. MALLOCH-SMITH: That is correct.

PN7

THE VICE PRESIDENT: Thank you, and Mr Cooney in Queensland for the Local Government Queensland.

PN8

MR S. COONEY: Yes, simply supplementing Mr Dansie, Your Honour.

PN9

THE VICE PRESIDENT: Thank you. Could I just get an indication as to the extent to which there is opposition to the application. Mr Dansie?

PN10

MR DANSIE: Thank you, Your Honour. The position of the combined Local Government Associations is that we accept and agree that there was an agreed position that was adopted and that is expressed in the combined LGA submission of 16 October 2009, specifically on pages 42 and 43 of that combined LGA submission. We supported then and continue to support the position that we had in October and are happy to set out the key elements of that agreement. There are, however, some additional matters that have been raised in the application and specifically in relation to annual leave. Mr Malloch-Smith from the Western Australian Local Government Association will be addressing you on that particular issue.

PN11

THE VICE PRESIDENT: Very well, thank you. Mr Cooney, have you got anything else to add to that?

PN12

MR COONEY: No, Your Honour, other than we do agree that the agreement was made in the past. We just also would like to acknowledge that the Commission has made a number of statements at each stage of the award's modernisation process in respect of supplementation of NES, particularly personal leave and community services leave. However, I also note that there are a small number of awards where these items have been supplemented and obviously the Fair Work Australia Tribunal will consider the precedent that this application may establish for those various agreements that were made between the parties to other awards in the past.

PN13

THE VICE PRESIDENT: Thank you. Mr Malloch-Smith, you were going to be articulating some opposition to an aspect of the application in relation to annual leave.

PN14

MR MALLOCH-SMITH: Yes, that is correct.

PN15

THE VICE PRESIDENT: Very well, we will come back to that. Mr Harvey.

PN16

MR HARVEY: Thank you, Your Honour. Your Honours and Commissioner Smith, this application is an application by the Australian Services Union to vary the Modern Local Government Industry Award 2010. The application was dated then filed on 23 March this year. The Tribunal issued directions for dealing with the matter. The ASU filed an outline of submissions and material to be relied on in accordance with those directions on 30 April. The LHMU also filed a brief submission on that date but are unable to be represented today. As Your Honours and Commissioner Smith would be aware, no employer organisation has filed a submission in relation to the application and Mr Dansie and others have indicated their position already this morning.

PN17

However, the ASU has taken the responsibility, it seems perhaps we don't have to convince the employers of the application but we might have to convince the Bench of the wisdom of granting the application and we have prepared some additional oral submissions this morning to that end. I should say at the outset, Your Honours and Commissioner, that the ASU notes that on the amended notice of listing for this matter the application is stated to be made under section 160 of the Fair Work Act, that is, "An application to vary a modern award to remove ambiguity or uncertainty or to correct an error." However, I should point out that the union's application - - -

PN18

THE VICE PRESIDENT: It's 157.

PN19

MR HARVEY: Yes, identified both 157 and 158.

PN20

THE VICE PRESIDENT: There will be no standing on that formality, Mr Harvey.

PN21

MR HARVEY: Yes, thank you, Your Honour, I just like to tick all the boxes as Your Honour might know. If I can deal firstly with the application as it relates to section 157 matters first. Firstly, Your Honours and Commissioner Smith, the ASU concedes right from the beginning that in our submission the test as to whether a modern award can be varied under section 157 is or should be a relatively high test. The Act says the Tribunal may make a determination varying a modern award if it is satisfied that the making of a determination outside the system of four yearly reviews is necessary to achieve the modern award objective. So in our submission there are essentially two aspects to this test.

PN22

Firstly, is a variation necessary to achieve the modern award's objective; and secondly, is it necessary outside of the four yearly review of modern awards. But in this case, of course, prior to the initial review of modern awards to occur in 2012. The notion of necessity, in our submission, includes the idea that something is required or is essential for the existence of achievement of something else. In this case we would suggest necessary for the achievement of the modern award's objective. The modern award's objective is set out at section 134 of the Act and it says, but I intend only to read the preamble to this, but it says the modern award's objective, "What is the modern award objective? 1) Fair Work Australia must ensure that modern awards, together with the National Employment Standards provided a fair and relevant minimum safety net return to conditions, taking into account," and then in sub-paragraphs A to H there are a number of matters which Fair Work Australia must take into account in ensuring that those modern awards provide that fair and relevant safety net of terms and conditions. I don't propose to read them out unless any member of the bench wishes me to do so, Your Honour.

PN23

THE VICE PRESIDENT: That's fine, Mr Harvey.

PN24

MR HARVEY: Thank you, Your Honour. In the ASUs submission the key words in this section are the words in the preamble, that Fair Work Australia must ensure that modern awards together with the NES provide a fair and relevant minimum safety net of terms and conditions. Your Honours and Commissioner, the ASU submits that the modern local government award does not currently meet this objective and that the terms of the award should be varied to ensure that it does and it should be varied outside of the process of the review of this award if the modern award objective is to be achieved in this time period, that is between now and 2012. Your Honours and Commissioner, I should probably just recap a little to put this award in perspective.

PN25

As the Tribunal I think will be aware, the award modernisation Full Bench of the then Industrial Relations Commission made a modern local government award at the request of the parties despite some concerns about the likely limited coverage of the award, and that is coverage issued that has now been crystallized or resolved in large part. The modern award does not apply in Victoria or Tasmania where state referenced public sector transitional awards apply currently. The modern award does not apply in South Australia, New South Wales or Queensland where state government s have declared, as the Fair Work Act now allows, that local government employees are not federal system employees for the purposes of the Fair Work Act.

PN26

There is no local government in the ACT so at the present time the modern local government award applies to all local government authorities in the Northern Territory and to those local government authorities in Western Australia which are constitution corporations, Western Australia having neither referred its powers or any powers to the Commonwealth, nor has it excluded local government employees from the operation of the Fair Work Act. Thus at the present time the modern award is the undoubted safety net for the Northern Territory and for some employers in Western Australia, but of course its terms may also be important with respect to Victoria and Tasmania in the short or longer term, and potentially in other states if those states have a change of heart or mind about the exclusion of local government and rescind their declaration. With that background in mind I should move to the substantive issues of this application.

PN27

Again, in the award modernisation process which has already been indicated by
Mr Dansie and others this morning, the parties, being for our part the combined unions and the local government associations generally around the company, work diligently to attempt to reach agreement on the terms of the modern award. A significant amount of agreement was reached and presented to the Full Bench in the consultation process, but notwithstanding that level of agreement the Commission was still required to rule on a number of non-agreed matters. The parties, and I mean in particular here the combined local government associations and the combined unions, indicated to the Full Bench that agreement had been reached. In some cases that agreement was endorsed by the Full Bench and in other cases it was not. The ASU submits that there are key areas where the non-inclusion of certain agreed items means, in our submission, that the modern local government award does not fulfill the modern award objective and we respectfully submit that the award should be varied to ensure that it does.

PN28

COMMISSIONER SMITH: Mr Harvey, were those matters that you say the bench didn't turn their mind to?

PN29

MR HARVEY: No, Commissioner.

PN30

COMMISSIONER SMITH: What's changed?

PN31

MR HARVEY: What has changed I think, Commissioner, is that we have had an opportunity to review all the statements which I intended to take this bench to that were made about those matters and to review all the other modern awards and that we are, I readily admit, we are asking for a reconsideration of this position in the light of the material that we will present today. I think it's - Commissioner, it might help if I sort of went through what we know about it, but the - - -

PN32

THE COMMISSIONER: You're asking for a reconsideration of a seven member Full Bench decision.

PN33

MR HARVEY: Yes, Commissioner, it's a brave move, I know, but we are trying.

PN34

SENIOR DEPUTY PRESIDENT WATSON: Was that material you're about to take us to not in the knowledge of the Full Bench which made the award?

PN35

MR HARVEY: Well, I can't be absolutely exhaustive about that, Your Honour.

PN36

SENIOR DEPUTY PRESIDENT WATSON: Very well, perhaps if you go to it.

PN37

MR HARVEY: Yes, thank you Your Honour. I should say there are sort of two or three different parts to this, but I will deal with each of them in turn. The first two key areas were in fact supplementation of the National Employment Standard with regard to jury service, make up pay and supplementation with regard to personal/carers leave entitlements. Both of these matters - - -

PN38

SENIOR DEPUTY PRESIDENT WATSON: Mr Harvey, is your submission the same as the application that the modern award doesn't contain a personal carers leave provision even in the standard form, is that correct?

PN39

MR HARVEY: Yes, Your Honour.

PN40

SENIOR DEPUTY PRESIDENT WATSON: So you say that should be remedied and then you go beyond that to say there should be a supplementation in respect of today's notice or sorry a requirement to attend at doctor nominated by the employer at their cost and a transitional provision.

PN41

MR HARVEY: And supplementation to the extent of an additional two days.

PN42

SENIOR DEPUTY PRESIDENT WATSON: Yes, the 12 day issue.

PN43

MR HARVEY: Yes, we are submitting that it should be, and it appears to be an error that it's not there, there should be a substantive provision with regard to personal carers leave, it should be supplemented reflecting the agreement between the parties with regard to 12 days and there should be an additional provision.

PN44

SENIOR DEPUTY PRESIDENT WATSON: And a requirement - and the ability of an employer to require attendance at the - - -

PN45

MR HARVEY: Yes, as part of the understanding, yes Your Honour. I won't take the bench to it but the submissions by the combined local government associations on this matter were contained in their submissions to the Full Bench dated 16 October 2009 as Mr Dansie has already indicated this morning at paragraphs 113 to 116 of their submissions and I extracted those just to make it easier for the bench to review that and submitted that electronically yesterday. It is not new material, it's just so it's more convenient for the bench to see where those statements were made. The employers at the time submitted they had reached agreement with the unions on a package deal of measures and that although of course the final decision was in the hands of the then Commission, that the full package of agreed matters should be implemented.

PN46

If I can turn firstly to the question of supplementation with regard to jury service. For our part the union drew attention to the existing safety net of terms and conditions in underpinning awards in our submission. In paragraph 109 of our submissions the ASU provided the Full Bench with details of where unlimited jury service make up pay applied, noting that it applied in a majority of local government awards but that in particular it applied in both relevant Northern Territory awards, the blue and the white collar awards. The ASU submits that this provision is an important part of the existing safety net for employees in local government especially in the Northern Territory, whereas I have just indicated one of the things that perhaps has changed quite dramatically is that it's now crystal clear that this is, at least in the first instance, where this award particularly applies at the present time.

PN47

If I can take the Bench to what the Full Bench of the Commission - award modernisation Full Bench said regarding supplementation including re jury service and related matters, I would like firstly to refer to the decision of the Full Bench with regard to this award dated 4 December last year in which the Full Bench said at paragraph 144, "In relation to personal carers leave and community service leave, we have not accepted some of the agreed changes to those clauses. For reasons that we have explained elsewhere we do not regard it as appropriate to supplement personal carers leave or to provide for entitlements in relation to jury service that exceed those in the NES unless there are special circumstances." So in considering whether it was worth our while, if you like, to file this application if we look back at what the Full Bench had said or reasons that had been given elsewhere to see whether this application had any prospect of success. If you go right back to the September 2008 Full Bench decision it said
this - - -

PN48

SENIOR DEPUTY PRESIDENT WATSON: September did you say?

PN49

MR HARVEY: September 2008, that was the statement would have been with regard to the prior modern award.

PN50

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN51

MR HARVEY: At paragraph 30 with regard to annual leave the Full Bench said, and I quote part of this paragraph, "It is not appropriate to supplement annual leave entitlements provided for in the NES unless it is necessary to maintain the safety net. Depending upon the circumstances of the industry and the existing award arrangements provision may be required for a shift worker definition, annual close down, holiday pay, annual leave loading and payment on termination." In December 2008 in its decision making the priority awards the Full Bench said at paragraph 103,

PN52

We have given further consideration to whether modern award should supplement the NES in relation to the amount of jury service leave to which an employee is entitled. The NES provides that jury service leave should be limited to 10 days. As far as we know, jury service leave in awards and NAPSAs are not subject to any cap at all. If we were to maintain an unlimited entitlement it would be necessary to supplement the NES in every modern award. Such a course would be inconsistent with the NES and tend to undermine it.

PN53

The next year in April 2009, which I think was the decision with regards to stage 2 awards, I may be wrong on that, for the April 2009 decision at paragraph 48 the Full Bench said,

PN54

Turning to another matter. The ACTU submitted that the Commission has so far taken a view of its power to supplement the terms of the NES which is too restrictive. It referred to particular passages in the 19 December 2008 decision relating to concurrent parental leave, community service leave and public holidays. We adhere to those views. We think that we should give proper weight to parliament's decision to regulate minimum standards in relation to the matters covered by the NES. It cannot have been parliament's intention that the Commission should make general provisions for higher standards. We accept, however, that there may be room for argument about what constitutes supplementation in a particular case.

PN55

Your Honours and Commissioner, these are the only passages that we could identify, at least in the key award modernisation statements and decisions relating to the supplementation of the NES generally in order to discover what the reasons that the Full Bench had explained elsewhere. But it does seem to us that going through those decisions the Full Bench's position was that they had determined not to supplement the NES unless it was necessary either to maintain the safety net which was what was set out in the September 2008 statement or in a particular case, as indicated in April 2009, or if there were special circumstances as indicated in December 2009. So we do submit that there is some room to consider supplementation if a case could be made that it was necessary to make that safety net or in special circumstances or in a particular case, but that there is quite clearly a general presumption against supplementation which we obviously cannot deny.

PN56

As a result of this general presumption and position of the Full Bench most modern awards do not generally supplement the NES with regard to jury service make up pay. However, there is supplementation with regard to other matters, but that is also limited, but there are a range of clauses in modern awards that do supplement various provisions of the NES in regard to particular matters. The most common one of these, we would submit, is a provision of a 17 and a half per cent loading on annual leave which is an award provision of general application and part of a safety net although not part of the National Employment Standards. Most modern awards but not all, according to our research, supplement the NES with respect to annual leave loading, presumably on our understanding to maintain existing safety net. Even the miscellaneous award does so. So there is general supplementation with regard to annual leave loading, but particular awards do not have it.

PN57

Despite the general presumption against supplementing the NES re community service or jury leave make up pay, we have identified at least three awards that do contain supplementation with regard to jury service make up pay, they are the modern manufacturing award at clause 33.2, the mobile crane hiring award at clause 28.2 and the joinery and building trades modern award at clause 34.2. Thus there appears to be also not absolute prohibition on supplementation of the NES in this regard if, as the Full Bench had noted, there are special circumstances for particular cases or a safety net to be maintained. We assumed that in the awards noted above there must be special circumstances but we are not aware of what they are. There is no reference to jury service make up pay in the decision of the Full Bench making these awards and it may well be that the matter was agreed between the parties, but again I don't know.

PN58

The ASU submits there are special circumstances in the context of the modern local government award which would warrant a reconsideration of this matter. Further we submit that the variation proposed is necessary to achieve the modern award's objective and to maintain a fair safety net in terms and conditions for employees in this industry. Those special circumstances are, we would suggest, firstly the existence of an agreement between the parties on the matter. Whilst this is obviously not determinative in its own right, we submit respectfully that we think it should be persuasive in the absence of any compelling reasons why it should not be done in a particular case. Secondly, and as I mentioned, this award applies particularly in the Northern Territory at the present time and that is something which emerged only towards the end of last year. But in the Northern Territory where the modern award applies and thus provides a safety net of terms and conditions both of the relevant awards, that is the white collar municipal officers award and the blue collar municipal employees award, contain a provision for unlimited make up pay of jury service. We submit, therefore, that it is part of the safety net and its retention is necessary in our submission to maintain the safety net. The ASU relies on the existing safety net of terms and conditions regarding jury service in support of this application.

PN59

SENIOR DEPUTY PRESIDENT WATSON: How does that special circumstance sit against the observations in paragraph 103 of the December 2008 decision which you took us to, where the bench acted on the basis that jury leave provisions in awards and NAPSAs generally are not subject to any cap on jury leave?

PN60

MR HARVEY: Well, Your Honour, I think without putting it too strongly it appears, should I say, slightly unusual that the NES has been supplemented with regard to annual leave loading in nearly all awards which we're certainly not arguing against, but it seems that there are exceptions to the rule. The issue of jury service though I think is that when we look at the awards, not all of the awards do provide jury service leave. I think the bench was completely correct when it said when it is in an award it doesn't provide a cap, but make up pay is not in all awards, it is not even in all of the pre-existing local government awards.

PN61

So we have been trying to understand the basis by which the Full Bench made that decision but we think there is a case for reviewing it in particular circumstances, particularly where the safety net in a particular case clearly specifies or that the critical mass of the safety net at any rate specifies an unlimited make up pay and the other difference I think here is that we discussed this matter quite extensively with the employer. The employers, in this particular case being public sector employers in the local government industry, made it clear to us that this was something they supported, make up pay for jury service and they considered it part of their civic obligation to provide unlimited make up pay and therefore they were very happy to see it in this particular award, partly for those reasons. I'm not sure whether that fully answers Your Honour's question.

PN62

SENIOR DEPUTY PRESIDENT WATSON: Yes, thank you.

PN63

MR HARVEY: The Australia-wide safety net was shown in the ASUs previous submissions, an extract of which was filed yesterday and as I indicated it does apply in both the Northern Territory awards and it is an important award provision for our members. I should also say in case this becomes relevant that as I said the modern local government award undoubtedly applies in the Northern Territory. Not all municipalities and shires, as I advised in the Northern Territory, are covered by workplace agreements, so that there are at least six municipalities or shires in the Northern Territory not covered by a workplace agreement or a predecessor enterprise agreement and therefore this award would apply at the present time. But even in those cities and shires where agreements apply jury service provisions apply as part of the terms and conditions of employment for those agreement covered employees.

PN64

I mention this because on a number of occasions in award modernisation it was argue some award conditions were obsolete, not in agreement and therefore really not part of the safety net anymore. As I understand it currently five of the eight municipalities in the Northern Territory have agreements and five of the eight new super shires do as well. We haven't submitted the full text of those agreements but we could if required. But an examination of those agreements or at least those that could be found on the Fair Work Australia website show that in respect of jury service make up pay the award provision applies by reference to three of them, Darwin, Katherine and Litchfield. Full make up pay is provided for by the Alice Springs, Palmerston, Victoria Daly and East Arnhem Shire agreements and only the McDonalds Shire agreement does not appear to contain jury make up pay.

PN65

In these circumstances the ASU submits that in order to ensure that the modern local government award provides a fair safety net of terms and conditions for employment that the award should be varied as requested by the ASU to supplement the NES and to achieve the award modernisation objective in this particular award and in these particular circumstances. We would submit that without this supplementation employees in the Northern Territory are disadvantaged and disadvantaged now and this matter cannot be rectified by a review of a modern award in 2012 because the disadvantage is (indistinct) for any employee called up for jury service which extends beyond 10 days.

PN66

If I could turn to personal carers leave. Again as we have indicated, the parties agreed on two measures to supplement the NES with regard to personal leave. Firstly they agreed that the standard entitlement should be 12 days, and again that has been shown in the employer's submission and I think confirmed already today. The ASUs submissions drew the Full Bench's attention to the existing provisions regarding personal leave, noting that nearly all awards have personal leave entitlements in excess of the NES and substantially this is shown in the ASUs submissions in paragraphs 114 to 117, an extract of which has been provided. It should also be noted that the entitlement for personal leave in both the Northern Territory awards is 10 days on full pay and 10 days on half pay. The entitlement for bereavement leave, sometimes part of personal leave and sometimes not, is also significantly higher under the two Northern Territory awards than the NES provisions. In the two Northern Territory awards there are bereavement leave provisions significantly in excess of the NES as I said, depending on whether death occurs. There is either entitlement to two or three days if the death occurs in the Northern Territory and up to five days if the employee is required to travel outside the territory to attend the funeral. I have extracted for the bench's information bereavement leave provisions (indistinct) Northern Territory awards and they are on the website.

PN67

THE VICE PRESIDENT: Mr Harvey, is there any suggestion that that level of benefit is impacted upon by the proportion of indigenous Australians in the Northern Territory and the particular cultural significance that attaches to funerals in relation to First Australians?

PN68

MR HARVEY: I can't make that submission, Your Honour, it is possible that that is true, but on the other hand the awards alleged in some of the agreements also provide the sort of ceremonial leave for people of Aboriginal origin. So I'm not sure which they would actually use in those circumstances. I would suspect that it's more to do with the traveling in that traditionally, and I think currently, lots of people who live and work in the Northern Territory come from somewhere else.

PN69

SENIOR DEPUTY PRESIDENT WATSON: Those issues are intended to be addressed by the transitional provision you propose.

PN70

MR HARVEY: Yes, specifically, I mention it in this context, Your Honour, because sometimes the personal leave and the bereavement leave provisions are together, but we have a separate proposal in any case to maintain bereavement leave provisions on a transitional basis, so I am just mentioning it. It's a bit awkward to completely unpick them and say they're either all in this basket or that basket and it may well be that a transitional provision with regards to bereavement leave is a way to resolve that particular situation.

PN71

SENIOR DEPUTY PRESIDENT WATSON: What other terms and conditions of what instruments would be picked up by the proposed transitional provision?

PN72

MR HARVEY: Well, all of them where they apply but it's only the in the Northern Territory - - -

PN73

SENIOR DEPUTY PRESIDENT WATSON: I guess I'm asking do they apply in any other states which are or might become subject to the award?

PN74

MR HARVEY: Yes, the answer to that would be yes, Your Honour, but I would have to refresh my memory. It would be in the union's submissions last year as to what the bereavement leave entitlements were and I am happy to - - -

PN75

THE VICE PRESIDENT: This award has though, as a result of the further clarification by events of state of play in terms of referrals, I think there is now a greater degree of certainty about that, this award really only has a practical application in the Northern Territory doesn't it?

PN76

MR HARVEY: Well, the Northern Territory and to any local government authority from Western Australia which are constitutional corporations.

PN77

THE VICE PRESIDENT: Constitutional corporations, yes.

PN78

MR HARVEY: Yes, that's right.

PN79

THE VICE PRESIDENT: Which would be pretty limited - very limited.

PN80

MR HARVEY: I'm not allowed to make a submission on that, Your Honour.

PN81

THE VICE PRESIDENT: Sorry, if the decision of Justice Spender in Ethridge is correct then very limited in Western Australia.

PN82

MR HARVEY: Yes, I think it was in the 4 December decision last year which quite clearly specified that because the Full Bench had expressed a view, it was the view of the Full Bench that it really didn't apply in Western Australia either but that was slightly qualified by the 4 December last year decision which drew attention to the fact that if there were constitutional corporations in local government in Western Australia that they would also be covered. In terms of this application, because the application currently of the award right now between now and 2012 is clearly focused on the Northern Territory where, in our submission, there are special additional provisions and the safety net is different from the rest of the country, that is why we have brought this application to attempt to preserve those either permanently or on a transitional basis.

PN83

In regard to both personal leave and in bereavement leave, employers in the Northern Territory would be disadvantaged after the end of the transitional period by the terms of the modern award for personal leave if it's not varied, but we do have the proposal or there is already agreement on a transitional provision with regard to personal leave but not with regard to bereavement leave. But employers in the Northern Territory now would be disadvantaged with regard to bereavement leave because there is no supplementation and there is no transitional provision about it. Just going back to personal leave precisely, the Western Australian Local Government Office Award to the extent that that is always relevant, given the discussion we have just had, just note that that award has 12 days personal leave as part of the safety net depending on the length of service, so it's up to (indistinct).

PN84

The parties to the award modernisation proceedings noted there were a range of entitlements to personal carers leave, some ranging up to 40 days per annum, but settled on 12 days as a fair safety net for this matter on an ongoing basis but agreed to some transitional arrangements to protect those higher entitlements on a transitional basis. Again the ASU is aware that there is very limited supplementation of the NES in modern awards regarding personal or similar leave and we have noted really only three awards that provide supplementation in this regard, the electrical power industry modern award provides 12 days personal leave at clause 28.5; the pilots and cabin crew awards in the airline industry supplement the NES with regard to special leave relating to upper respiratory tract infections, that's in clauses 28.3 and 26.5 of those pilots and cabin crew awards respectively.

PN85

There is some additional compassionate leave also provided by the higher education awards, the academic and the general staff award, but again it's extremely limited supplementation and it's not common, in fact it's unusual if it does occur in a few awards. The additional personal leave in the electrical award was in the award at exposure draft stage. As I recall the union sought a higher standard amount but the submission was rejected. I should say also with regard to personal leave and bereavement leave, whilst we are dealing with those in the one hit, but in terms of the agreements having local government employees in the Northern Territory, those higher standards have also been maintained through the agreements, they haven't been reduced or traded off by way of agreement making and therefore they continue to be the live safety net in the Northern Territory.

PN86

Again, for example, Darwin and Litchfield municipalities agreements call up the award with regard to this respect. The Alice Springs agreement has 20 days personal leave including bereavement leave of five days. Palmerston has 15 days leave. Katherine has 17 days leave, including bereavement leave. McDonald Shire has 12 days sick leave fully cumulative and 10 days bereavement leave. West Arnhem Shire has three days bereavement leave, as does East Arnhem Shire three days bereavement leave but five if traveling outside of the Northern Territory. So those agreements tend to reflect, build up, modify in some respects the underlying safety net in the award. We would submit that agreement standards generally reflect the higher standards in the underpinning awards in our submission.

PN87

SENIOR DEPUTY PRESIDENT WATSON: But isn't that the way the current system operations, if there is an award or NES safety net and agreement making does occur generally in (indistinct) of that.

PN88

MR HARVEY: Well, yes, Your Honour, certainly and we are not disputing that but I am just mindful of the fact - although there is nothing in writing from the employers, but at times during the award modernisation process when unions drew attention to the existence of certain award terms and conditions it was argued frequently well, they were actually obsolete, that people didn't bother about that anymore and when you made an agreement, you looked in it, it wasn't there. But the purpose of this submission, Your Honour, is simply to say that not only is it an award condition, it applies where the award applies in the Northern Territory, but when you go and look at what they've done with it with regard to agreements, they have picked up those award conditions and they may vary them in some respects but they have reflected those higher standards in some way in the agreement as well. So the point of the submission is just to say that this is a real life sort of safety net that operates particularly in the Northern Territory.

PN89

SENIOR DEPUTY PRESIDENT WATSON: Yes.

PN90

MR HARVEY: So the ASU submits again that the local government award should be varied at a request to provide a minimum of 12 days personal leave in order to provide a fair ongoing safety net of personal leave and to reflect the higher safety net that combines sickness and bereavement leave in local government awards, including in the Northern Territory. Given the quantum of personal carers leave in the underpinning awards the ASU submits that the variation is necessary to achieve the modern award's objective of the fair minimum safety net. As I have indicated I think already the parties also agreed to a special transitional arrangement with regard to personal carers leave which was included in the award, although perhaps not exactly in the right space and I will come and deal with that in a minute.

PN91

It should be noted that the transitional clause was included in the modern award at 25.7 and was headed, "Transitional provision, personal/carers leave and compassionate leave," that was the heading but the substantive provision included did not in fact include any transitional provision with regard to bereavement leave which actually reflected the agreement with the employer. We agreed on the transitional arrangement with regard to personal leave but the clause we submitted didn't include bereavement leave. But the ASU now proposes that it should and the draft clause in the union's application does that. So that, I want to be perfectly clear, is an additional matter beyond that which was agreed with the employer.

PN92

So that's the first submissions with regard to those two matters relating to supplementation of the NES and we realise that a case does have to be made out for a reconsideration of that matter and we have attempted that. There is a second category of matters sought to be addressed by the ASU in the application and these are simply some transitional matters which weren't agreed with the employer. I want to make it quite clear that I am now in territory where there was no agreement. At paragraphs 181, 182 of the ASUs submissions we address special conditions with regard to annual leave in the Northern Territory and again at paragraphs 184 and 186 we did the same with regard to bereavement leave. I don't think there was anything in the decision of 4 December which commented specifically on these matters. In both cases we submit that the awards in the Northern Territory have secure provisions compared to the general provisions dealing with either annual leave or bereavement leave, and I won't go to bereavement leave because I have done that generally.

PN93

SENIOR DEPUTY PRESIDENT WATSON: Where does bereavement leave fit into your scheme?

PN94

THE VICE PRESIDENT: It's a synonym for compassionate leave.

PN95

SENIOR DEPUTY PRESIDENT WATSON: It's compassionate leave.

PN96

MR HARVEY: Yes, yes, sorry.

PN97

SENIOR DEPUTY PRESIDENT WATSON: Very well.

PN98

MR HARVEY: Yes, the terms to be used. The annual leave provisions in both the Northern Territory awards are significantly higher than those provisions which operate generally and I (indistinct) those provisions from the two Northern Territory awards and submitted them separately on a single piece of paper yesterday. At clause 30 in the Municipal Employees Northern Territory Award which provides a standard first of all 30.1.1, it provides that, "An employee as an occasional employee will be entitled to four weeks annual leave after completion of 12 months continuous service, additional provisions for a seven day shift worker," but at 30.2 it has, additional annual leave with regard to employees in certain areas, the Darwin, Katherine regional area there is an additional 10 days leave per year, Tennant Creek seven days, Alice Springs five days. In the municipal officers award a similar provision applies at 31.2 for additional annual leave. In Alice Springs an extra five days, Darwin 10 days, Katherine 10 days, Tennant Creek seven days, and Palmerston and Litchfield Shire Council 10 days as well. So the safety net in the Northern Territory is significantly higher than the NES provision for a safety net that applies to employees elsewhere. Again, as I understand it there's up to 10 days additional leave in those two awards, which is a significant entitlement, in our submission, we should be protected at least on a transitional basis. In both cases these provisions are peculiar to the Northern Territory because of the special circumstances of distance as we understand. We also acknowledge that these provisions are unlikely ever to be maintained on a long term basis since they have character differentials and can't be (indistinct) after the transitional period. However, we cannot see any reason why they could not and should not be maintained as transitional arrangements, at least until the end of 2014. This would, in our submission, represent a fair safety net for this period of time and allow for these provisions to be protected through workplace bargaining. That has been done to a certain extent already in the same way I mentioned before how the safety net provisions have been incorporated and not taken away by agreements. These additional leave provisions do apply generally in the Northern Territory where agreements apply. Again for example Darwin and Litchfield agreements simply call up the award entitlement in this respect. Alice Springs provides five weeks annual leave in their agreement which is the same entitlement as the award. Palmerston, Katherine, McDonald Shire, Victoria Daly Shire and East Arnhem Shire agreements all provide the six weeks annual leave for their employees. Thus these additional leave provisions in the Northern Territory awards form an ongoing part of the safety net of entitlements for employees. Therefore the ASU again submits that transitional provisions in the terms sought re annual leave and bereavement leave are in our submission necessary to achieve the modern award objective during the transitional period. It would fully protect existing employee entitlements during the transitional period and anywhere else the award is applied during that time.

PN99

SENIOR DEPUTY PRESIDENT WATSON: Just so I'm right on this, the bereavement leave you seek to deal with through amending the transitional provision to add a reference to compassionate leave, is that what is being sought?

PN100

MR HARVEY: Yes, Your Honour.

PN101

SENIOR DEPUTY PRESIDENT WATSON: You would reposition that in the general personal carers and compassionate leave, subject to the other supplementation that you seek?

PN102

MR HARVEY: Yes.

PN103

SENIOR DEPUTY PRESIDENT WATSON: Very well.

PN104

MR HARVEY: The ASU submits these variations could and should be made under the provisions of section 157, 158 of the Act. Alternatively variations with regard to transitional provisions could also be made under the terms of clauses 2.5 and 2.6 of the modern local government award. Those clauses are the standards award clauses providing that the transitional arrangements in the award may be reviewed by Fair Work Australia and varied either on the Tribunal's own motion or by application by an organisation of an employer or an employee. I am not sure about this submission but I will say it. It may have been possible that the Full Bench intended to include in this award a transitional clause relating to annual leave. There is no actual reference to it in the decision of 4 December 2009.

PN105

As I mentioned before, it's clause 25 which deals with annual leave and it has a special transitional provision but that special transitional provision relates to personal carers leave which is what we think is the error. So we are not saying that was really in mind, I think they really meant to incorporate the parties' agreement but it turned up in the wrong clause but we will go to that now and this is the last thing I want to say to the bench. The last variation sought by the ASU simply relates to a substantive provision regarding personal leave. There is - at least we can't find it, there is no substantial provision in the award relating to personal leave. Most of the other awards obviously it's only a heading a line referring back to the NES but that doesn't appear in this award.

PN106

As we noted previously, clause 25 which deals with annual leave contains a sub-clause 25.7 which is entitled, "Transitional provision, personal carers leave and compassionate leave." So that is clearly an error in the sense it would appear to be the wrong clause. The sub-clause may have been intended to operate in respect of annual leave but we submit it's more likely to have been intended to operate regarding personal carers leave as this was an agreed matter between the parties. The ASU submits that a clause dealing with a stand alone personal carers leave entitlement should be included in the award. Obviously in accordance with the submissions that we have made this morning we submit that this should be in the terms of the application and include the transitional provision as sought by the ASU. Desirably in our submission it should also supplement the NES in terms of the quantum of leave opposed for the reasons we have submitted, but as a minimum it should refer to the NES and include the special transitional provision currently found in clause 25.7 of the award. Those are the submissions of the AWU this morning, Your Honours and Commissioner, unless there is any further questions or assistance I can give the bench.

PN107

THE VICE PRESIDENT: Thank you, Mr Harvey.

PN108

MR HARVEY: Thank you, Your Honour.

PN109

THE VICE PRESIDENT: Mr Dansie, as I understood what you said earlier you have got no particular submissions to make at this point.

PN110

MR DANSIE: First, Your Honour, just if I could quickly recap, just to make sure we are clear on what the agreement was. Essentially the elements were that the LGA's proposed part time clause be adopted and we note that has been included in the modern award at clause 10. Secondly that the agreed personal/carers leave clause be adopted and Mr Harvey has correctly pointed out the key elements, being 12 days paid personal/carers leave and secondly, there was to be a provision that the employer may require employees to attend a doctor nominated by the employer at the employer's cost. We see that as - if there is to be a change to the clause that certainly that provision should certainly be there. Thirdly, the agreed community services leave clause should be adopted to make provision for jury service make up pay.

PN111

In relation to the annual leave, bereavement leave and compassionate leave Mr Harvey has correctly pointed out there was no agreement on those and I don't think we can agree with Mr Harvey that those items were by error. Clearly the Full Bench did consider things such as - well, as reflected in paragraph 144 of the AIRC decision of 4 December, the Commission paragraph 144 considered the personal/carers leave and community services leave, said, "We have not accepted some of the agreed changes to those clauses for reasons we have explained elsewhere. We however do not regard it as appropriate to supplement personal/carers leave or to provide for entitlements in relation to jury service." So we don't think there was an error, per se, it's more that the AIRC Full Bench did not adopt some of the agreed positions of the parties.

PN112

We also I guess would note a departure from the NES standard of 10 days personal/carers leave has the potential to raise some interesting challenges for entities such as labour hire businesses and group training providers who when performing work for a local government would be covered by the local government industry award and when performing work for other industries may be subject to a different standard of personal/carers leave. There could be some potential difficulties there, however, I am not here today to represent the interest of those labour hire/group training providers and I don't wish to make any further submission on that. So I think in summary, Your Honours, Commissioner, we can say there was an agreement between the parties, we are happy to honour the agreement. We accept the Full Bench didn't accept all of the agreed position and I don't think we wish to actively now support the ASU in going beyond what was the agreed position of the parties.

PN113

THE VICE PRESIDENT: Thank you, Mr Dansie. Mr Malloch-Smith.

PN114

MR MALLOCH-SMITH: Yes, sir, we would just like to object to the transitional annual leave clause that the union would like to have inserted on the grounds that it was firstly never agreed to, that the NES, we believe, provides for a fair and relevant standard with regard to the four weeks and the provision of an extra week for shift workers. We understand that there are some local governments in the Northern Territory that are remote that did have higher annual leave clauses but as was mentioned earlier most have collective agreements in place that maintain these on agreement.

PN115

In Western Australia there are local governments on the 26th parallel and also engineers that have received an extra week but with the introduction of the new award all the local governments in Western Australia believe they are covered by the new modern award have made movements to the new four weeks and have capped out or made agreement to remove the extra week in those circumstances, and then moving back to the transitional arrangement before would create great hardship and further complicate a matter that was to occur. So they are the principal grounds on which we would oppose the insertion of the transitional annual leave clause.

PN116

THE VICE PRESIDENT: How would it create hardship, Mr Malloch-Smith?

PN117

MR MALLOCH-SMITH: Most have had discussions already with their employees about how they are going to deal with that and a number of them have come up with alternative arrangements like shut down at the end of the year and so to be able to have to go over that again would complicate the matter or perhaps hardship wasn't the correct word but would mean that further efforts would need to be made to implement the changes that need to be made back.

PN118

THE VICE PRESIDENT: Yes. Is it the position of WA LGA that some of its member councils are constitutional trading corporations?

PN119

MR MALLOCH-SMITH: Yes, we believe that the majority of them are and they do as well. I understand the comments that were made in the Ethridge decision earlier but the majority of our local governments engage in (indistinct) which they believe would enable them to be covered by the Fair Work Act and these might include the running of golf courses, cafes, caravan parks and such that are solely run to generate income for the local government and to possibly subsidise other areas for rate payers. Without going into too much detail of that the majority (indistinct) - - -

PN120

THE VICE PRESIDENT: Thank you.

PN121

MR MALLOCH-SMITH: - - - constitutional corporations.

PN122

THE VICE PRESIDENT: Is there anything in reply, Mr Harvey?

PN123

MR HARVEY: No, not really by reply, Your Honour, but I think in response to what Mr Dansie said we didn't say there was any error other than the location or the position of the clause in regard to personal carers leave and the fact that there was no substantive clause. That was the only thing that we said - there was any other matter that we have addressed is not on the basis of an error in the Full Bench (indistinct).

PN124

THE VICE PRESIDENT: Thank you. We will reserve our decision.

PN125

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