PN1

VICE PRESIDENT HATCHER: Can I take the appearances, please? Firstly, Mr Moore, you appear with Mr Ushakoff for Clubs Australia Industrial?

PN2

MR R MOORE: I do, your Honour.

PN3

VICE PRESIDENT HATCHER: Mr Kenchington-Evans, you appear for United Workers' Union?

PN4

MR J KENCHINGTON-EVANS: Good morning, Vice President.

PN5

VICE PRESIDENT HATCHER: Mr Cooper, you appear for Club Managers Australia? Your microphone is off, Mr Cooper.

PN6

MR P COOPER: Yes, I do, your Honour. And with me is Peter Ember.

PN7

VICE PRESIDENT HATCHER: Thank you. And Ms Crowe, are you there? You appear for Professional Golfers Australia? Ms Erin, is Ms Crowe meant to be here?

PN8

THE ASSOCIATE: Sorry, Vice President, that's my mistake. She's not in attendance this morning.

PN9

VICE PRESIDENT HATCHER: All right. Thank you. Who is going to start off this morning?

PN10

MR MOORE: I see no one is rushing. I'll start off, Moore.

PN11

VICE PRESIDENT HATCHER: Mr Moore, can I just ask you to do two things as you go along, firstly, we've noted that in the submissions it appears to jump around between references to the current award in terms of clause numbers and references to draft determination, which is a little bit confusing, so insofar as you're referring to clause numbers in your submissions, can you make all the references consistently with the draft determination?

PN12

MR MOORE: Yes, I'll check those over, but I thought that we had, your Honour. I thought that we were referring to the right sections, or clauses I should say, of the exposure draft, but if there's been ‑ ‑ ‑

PN13

VICE PRESIDENT HATCHER: I'm sorry, I said draft determination, I meant the exposure draft.

PN14

MR MOORE: Yes. If there has been a - as we go through and if there has been an error made we'll correct it, but insofar as the three, I think, clauses that have an issue arising today, that is clause 25, the annual leave, clause 18 and the minimum rates, and the definitions clause, I think clause 2, I mean, they're correctly described within the submissions. But, yes, we'll correct that as we go through.

PN15

Can I just also just ask, your Honour, when we had the directions hearing last Friday I indicated that there was a large amount of consent, and that's been indicated in the submissions that have been filed, and in the most recent submissions we filed on 25 July, two thousand ‑ ‑ ‑

PN16

VICE PRESIDENT HATCHER: That conveniently brings me to my second request, Mr Moore, and that is can you start off by identifying which matters are of concern, which matters are consented to at least between your client and Club Managers Australia, and then we'll turn to the issues that are in dispute?

PN17

MR MOORE: Yes. Perhaps the most convenient way of doing that, your Honour and the Bench, is that we if you go to the final submissions that we put on, on 25 July, and I invite you to go to paragraph 64 on page 12. There is an agreement reached in relation to all of those matters that are identified within that paragraph as between my client, the Clubs Australia Industrial, and the CMAA.

PN18

VICE PRESIDENT HATCHER: Are they all matters that are discrete to the interests of club managers?

PN19

MR MOORE: I'm sorry, your Honour, I just missed that.

PN20

VICE PRESIDENT HATCHER: Are they all matters that are discrete to the interests of club managers, or do they have any further application?

PN21

MR MOORE: If I can just put it this - the first one in terms of the definition of club manager of course solely relates between the club managers and the employing clubs. In terms of the shift worker definition that is a matter that would have general application because the definition to be included, and the further refinements, if I put it that way, in clause 25, would apply cross the board, if I can put it that way, to all employees depending on their category as identified in clause 25(1).

PN22

VICE PRESIDENT HATCHER: Let's pause there. So, Mr Kenchington-Evans, is that change opposed by the UWU?

PN23

MR KENCHINGTON-EVANS: It is.

PN24

VICE PRESIDENT HATCHER: It is opposed? All right. Yes, go on, Mr Moore.

PN25

MR MOORE: In terms of the meal break clause that is one that applies generally. That is the increase from fewer than 10 to fewer than 15. It's consented to by the CMAA, I understand. It may be an issue with the other parties.

PN26

VICE PRESIDENT HATCHER: Is that opposed by the UWU?

PN27

MR KENCHINGTON-EVANS: No.

PN28

VICE PRESIDENT HATCHER: Yes.

PN29

MR MOORE: In terms of the next - fourth dot point down, your Honour, clause 18.3, that is a matter that solely relates to the club managers, and in terms of the level 6 employee, there was a level 6 employee club manager identified, and really the change is to insert an annual rate for that such that the exemption provisions can apply to all club managers from level 6 to level 13. And as between my client and the CMAA I understand that has been consented to in terms of inserting an annual rate against the level 6 club manager, which is the small clubs, I think under 500,000K in revenue.

PN30

VICE PRESIDENT HATCHER: There may be a drafting issue about that insofar as level 7 and above are all manager classifications, whereas level 6 contains other classifications, so it might be confusing as to working out annual salary with those other job functions.

PN31

MR MOORE: Without cutting across, your Honour, in the first submissions that were filed, when I say the first submissions, the submissions that were filed back on 25 June, we identified this is an issue and suggested that the table might want to be split as between 1 to 6 that were wages employees that did not have an annual rate, and then from 6 to 13 in terms of the club managers where the annual rates would be shown, and in order to obviate the confusion that you have alluded to. Because there is, I think, and without going to the award, one of the levels in club 6 I think is one of the cooking levels or the chef levels, and so there's a duplication where the club manager has been included in that. It's a level 6 employee because it's been treated as a wages employee up to now, if I can put that terminology on it, and did not have an annual rate, but we suggested that the table might want to be split between not managerial or managerial employees and to show the annual rates for level 6 to level 13 managers separate as a sub-table, if I can use that description.

PN32

VICE PRESIDENT HATCHER: Yes. So I think I might've - now I think I understand what was proposed. So that the club manager would be put at the bottom, there'd be a separate line above it.

PN33

MR MOORE: Yes.

PN34

VICE PRESIDENT HATCHER: And you'd have the 9, 41, 10 the 24, 77 and then the salary. Is that the idea?

PN35

MR MOORE: Yes, to separate that. As I said, I think it's a cook level without getting an award in front of me, in terms of the exposure draft. But, yes, to just make a clear delineation between those two level 6 type of employees in some way for the reason your Honour has stated.

PN36

VICE PRESIDENT HATCHER: That's not opposed by the UWU, is it?

PN37

MR KENCHINGTON-EVANS: No.

PN38

VICE PRESIDENT HATCHER: No, all right.

PN39

MR MOORE: The other matter, I go to the next dot point, 18.5(a), that's just the change that needs to be made to the heading consequent upon the variation we've just discussed, your Honour.

PN40

VICE PRESIDENT HATCHER: Yes, I understand. Yes.

PN41

MR MOORE: In terms of the next dot point, clauses 18.5(a)(i) and 18.5(a)(ii), that is a matter that solely relates between the CMAA and ourselves, and there's been consent in regard to 17.2, meal breaks, as its inclusion, as one of the excluded matters that is obtained from the award, on the payment of the salary rate identified. And that's a matter that only relates to the CMAA and ourselves.

PN42

VICE PRESIDENT HATCHER: So am I right in saying that your client had also sought an exclusion of annual leave loading?

PN43

MR MOORE: Yes, and that's still pressed, your Honour. That's one of the remaining matters that are in dispute, and that's opposed by the CMAA, and it's one of the matters that form the subject of the hearing today.

PN44

The final dot point on that page 12 that relates to the uniforms for the club managers is just between the CMAA and CAI, and has been agreed.

PN45

VICE PRESIDENT HATCHER: Yes.

PN46

MR MOORE: Over the page, the top dot point in page 13 relating to clause 22.8 is a matter that only relates to the club managers and that's been consented to by the CMAA.

PN47

And then in regard to clause 25.1 there is a new clause 25.1(c) to be inserted for club managers. In the award as exists currently, and within the exposure draft, club managers were added as a final part of the definition behind shift workers, and they actually have the right to the five weeks' leave independent of their working of shifts or independent of the working of the hours, and so what has been agreed between the parties of CMAA and CAI is that there will be a separate paragraph, split away from shift workers, that acknowledges the five weeks' leave of the club manager employees as an issue not arising under the NES but an issue arising under the award. And historically from the award, if we go back before the award modernisation, it was a position that applied to the three transitional awards that were mainly the New South Wales NAPSA, the ACT Award, and the Federal Award that applied in relation to Victoria and Queensland. And so one of the issues we've raised with theses submissions and to the Bench today is there is a need for a clear identification of the sources of the annual leave entitlement, when I come to address clause 25 in some detail, your Honour. But ‑ ‑ ‑

PN48

VICE PRESIDENT HATCHER: Where do we find the draft determination for that variation?

PN49

MR MOORE: And when you say 'that variation', the final bullet point, your Honour?

PN50

VICE PRESIDENT HATCHER: Yes.

PN51

MR MOORE: Just bear with me a moment, because there were some draft determinations filed with the submissions, and I'll just turn to it if I can. In fact, your Honour, it probably - unless it was filed on an earlier occasion, can I just direct your Honour back into the submissions that we're currently reading from, and if I can take your Honour back to paragraph 22 of the submissions, page 5.

PN52

VICE PRESIDENT HATCHER: Yes.

PN53

MR MOORE: And in terms of the variations that are suggested by CAI first of all your Honour and the Bench will note there's the commencement by way of the note which is standard across all of the reviewed awards now. Then 25.1(a), which reads, 'Annual leave is provided for in the NES' there's no change from the existing award or the exposure draft. But in regard to (b) and the subparagraphs identified as (i), (ii), they are the shift workers provisions that we will discuss today a bit later or make submissions about, and then your Honour asked the specific question about the club managers, what we proposed is that variation at the top of page 6 under the heading, Additional Paid Annual Leave for Club Managers. And 25.1(c) would read:

PN54

A club manager who is classified at level 6 to level 13 of clause 18.3 will accrue annual leave under this award based on an entitlement of five weeks paid annual leave.

PN55

And that would, as I say to the Bench and to your Honour, who has asked the question, that would remove the club manager from being deemed to be a shift worker under the award to have a right quite separate and identifiable as an award right to five weeks' leave. And then there are the two issues, and I notice the opposition of the UWU to the change in the definition of a shift worker, and I take it that applies both to the definition in clause 2, and also its use in 25.1(b). But in answer to your Honour's specific question of that final dot point, the variation, we did not put a draft determination in but dealt with them in the submissions because this was a matter that arose from those discussions that were held between the CMAA and CAI in the period between 25 June and 23 July when the submissions were filed.

PN56

VICE PRESIDENT HATCHER: All right.

PN57

MR MOORE: And we probably refrained, could I just put it for completeness, your Honour, from putting an exposure draft and a definition in because of the issues surrounding the shift workers as well and the annual leave loading, and so we've incorporated in the submissions what we seek, and that is in regard to the three clauses which are 25.1, 25.2 and 25.3 and I'll come and address those a bit further with the Bench as the submissions go through.

PN58

The only other matter, if I can return to that paragraph 64 on page 13 of the submissions of 23 July 2020, at 65 there was an issue that solely related between the UWU and my clients in terms of the tool allowance, I think, for the chefs. That's been consented to, your Honour, in terms of the exposure draft 19.3(c)(i). And there's a draft determination which was included at the time of the filing of those submissions that shows the - and if your Honours have the full - I think it was about a 32-page document that included the submissions, Mr Ushakoff's witness statement, and then there were a number of draft determinations attached. It's the third draft determination from the end. Sorry, I stand corrected on that, I've led your Honours astray, I'm thinking of the other one that revolves around it. That variation is found in the UWU's, I think, submissions that were made about the change that was sought, and they filed a draft determination and we're consenting to it.

PN59

I'm sorry to lead your Honours astray in that regard.

PN60

VICE PRESIDENT HATCHER: No, no. No, just hold on second. I mean, is the UWU draft determination the one that was filed on 5 October 2016?

PN61

MR KENCHINGTON-EVANS: If I might jump in, your Honour, I believe the draft determination we're discussing is in the UWU's submissions of 1 July ‑ ‑ ‑

PN62

VICE PRESIDENT HATCHER: Just hold on a sec. So is the text of the proposed variation that contained at paragraph 7 of that submission, is it? Is that what's agreed?

PN63

MR MOORE: There's actually a draft determination that I have attached in my submissions.

PN64

VICE PRESIDENT HATCHER: All right,(indistinct).

PN65

MR MOORE: It starts on page 4 of our submissions, your Honour, when I printed it out.

PN66

VICE PRESIDENT HATCHER: Yes, all right.

PN67

MR MOORE: And it's that draft determination on page 5 that is consented to, your Honour.

PN68

VICE PRESIDENT HATCHER: Thank you. Yes? So, Mr Moore, just so I can understand now, so that the claims you are pressing, which are contested, are the three matters in paragraph 8 of your latest submission.

PN69

MR MOORE: Just bear with me a moment, your Honour, and I'll just turn to paragraph 8. Yes, they're the affected clauses, your Honour.

PN70

VICE PRESIDENT HATCHER: The casual fitness instructor matter referred to in paragraph 67?

PN71

MR MOORE: Yes, and which was addressed in the earlier submissions on 25 June.

PN72

VICE PRESIDENT HATCHER: So is that all the matters that are now pressed by your client?

PN73

MR MOORE: They are the matter, yes, that are in dispute. There's one matter I suppose I should've referred to in passing, and I think it was in relation to horticultural and maintenance employees, and it's just an adjustment in the table similar to a position that we discussed with the level 6 managers. It was just separating out. If I can go to the exposure draft, it's in the exposure draft at clause 24.2.

PN74

VICE PRESIDENT HATCHER: Just hold on. Yes.

PN75

MR MOORE: There is a draft determination which is consented to, I understand, which leaves the first part, if I can put it that way, of 24.2 down to where it's got full-time and part-time employees as is. And then there's an insertion of a new clause which is to be 24.3 which splits the casual away as a separate table and then the re-numbering of the balances of the clauses, 24.3 becomes 24.4, et cetera, and that was an earlier determination that was filed and I understand that's been consented to and is not an issue, but I should have pointed that out further when we were going through the consent issues. But in terms of your Honour's questions of the three issues in dispute, yes, they are the three that we press today, plus the fitness instructors.

PN76

VICE PRESIDENT HATCHER: So just going back to 24.2 of the exposure draft, so insofar as there's that additional reference as to percentages that's that group of employees. Is that what you're talking about?

PN77

MR MOORE: Yes.

PN78

VICE PRESIDENT HATCHER: And to be absolutely clear, because this might need clarification, the percentages for Saturday afternoon, Sundays and public holidays, they're taken to be inclusive of the casual loading?

PN79

MR MOORE: They are.

PN80

VICE PRESIDENT HATCHER: Yes, all right.

PN81

MR MOORE: I think by doing that we come to the position of what the outstanding issues are as identified in 8, 9, 10, 11 and 12 ‑ ‑ ‑

PN82

VICE PRESIDENT HATCHER: Can I ‑ ‑ ‑

PN83

MR MOORE: ‑ ‑ ‑of those submissions. But I pause there because you may want to ask the other parties as to whether there's any issues that they have.

PN84

VICE PRESIDENT HATCHER: Yes. I just want to check with the other parties whether, leaving aside the Professional Golfers, of course, whether there's any other claims they have advanced which we have forgotten about or which have not been addressed. So starting with the UWU, Mr Kenchington-Evans, was the tool allowance the only claim being pressed by the UWU?

PN85

MR KENCHINGTON-EVANS: That's right. And just for completion part of that claim is a change of how it's being indexed.

PN86

VICE PRESIDENT HATCHER: And that's in the draft determination?

PN87

MR KENCHINGTON-EVANS: That's in the draft determination.

PN88

VICE PRESIDENT HATCHER: Yes, all right. Thank you. And, Mr Cooper, have we covered all the matters which the CMAA wishes to advance? That is, are your matters encompassed by the consent matters?

PN89

MR COOPER: In our submission of 23 July we attached a number of draft determinations, and that was following successful meetings between the parties held early in July, and I've numbered those and correspondingly number 1 of our ‑ ‑ ‑

PN90

VICE PRESIDENT HATCHER: Mr Cooper, I just want to cut to the chase, are there any matters that the CMAA is pursuing that was not covered in the consent matters that have just been identified by Mr Moore by reference to the Clubs Australia most submission?

PN91

MR COOPER: No, the consent matters are clearly identified. The matters in dispute do affect club managers as identified in clause 25.18 and two definitions.

PN92

VICE PRESIDENT HATCHER: Club Managers don't have any more claims of ‑ ‑ ‑

PN93

MR COOPER: No. No, I'm sorry, your Honour. Yes, no more claims.

PN94

VICE PRESIDENT HATCHER: So all we need to deal with is the three club managers matters and the fitness instructor matters advanced by Clubs Australia; is that correct?

PN95

MR COOPER: Yes, I agree with that. Yes.

PN96

VICE PRESIDENT HATCHER: We'll go back to you then, Mr Moore.

PN97

MR MOORE: Yes. Your Honour, does your Honour have that submission in reply from the CMAA that you've just taken Mr Cooper to?

PN98

VICE PRESIDENT HATCHER: Yes, I do.

PN99

MR MOORE: Can I just invite your Honour to go to page 17 of 19.

PN100

VICE PRESIDENT HATCHER: Yes.

PN101

MR MOORE: And Mr Cooper made reference to the draft determinations which were there, and if I can just indicate to your Honour it's really those determinations which are on page 17, 18 and 19 that remain in dispute between my client and the CMAA, and in order just to give greater definition to that in terms of that can I invite your Honour to go back to page 17 of 19. It is the inclusion of the words at the end of that which commence and continue with 'will be calculated on the 20 per cent exemption rate of pay' because those words currently are not within the exposure draft.

PN102

VICE PRESIDENT HATCHER: So whose claim is that?

PN103

MR MOORE: That is a matter I understand that was discussed between my client and the CMAA and my client did not consent to the 20 per cent. It was raised in the discussions by Mr Cooper and not agreed to by the CAI.

PN104

VICE PRESIDENT HATCHER: Let's stop there. Mr Cooper, has that been a CMAA claim that you need to pursue?

PN105

MR COOPER: No, it's not. We're not happy with the additional wording. That additional wording came from a draft arising from our discussions with Clubs Australia Industrial, so number 7 I think can be dropped out altogether. We're happy with the existing wording in clause 18.5(a)(i) of the exemptions.

PN106

VICE PRESIDENT HATCHER: Let me just check that. All right, so we can just strike that out then? There's no change required to the exposure draft, is that the position?

PN107

MR COOPER: That is correct, yes.

PN108

VICE PRESIDENT HATCHER: So that's resolve, Mr Moore?

PN109

MR MOORE: Can you just bear with me one moment, and I - there is an issue that relates to that in terms of what the payment is to be made on that rate, and if I can just take you to the submissions that we filed, and just bear with me a moment, I'll just see if I can just get the correct page for your Honour. It goes to this whole question of the ordinary hourly rate. Yes, if I can invite your Honour to go to page 8, paragraph 38, of the submissions of 23 July 2020. There's an issue that relates to the payment of the club managers to whom that provision applies and what we understood was the wording that had been in that draft, that Mr Cooper has just clarified that they're not pressing, was their solution to the problem.

PN110

What we say is that there should be an identification that it is paid in fact at the minimum rate in clause 18.3. Now, this ties in, your Honour, with, if I can take you back to Mr - sorry, the CMAA's submissions, and it's probably the next draft determination. I'm sorry to move the Bench around between the two submissions, but if you go to 18 of 19 and the draft determination there, you'll see that there is a claim pressed by the CMAA to change the definition of ordinary hourly rate which is within the exposure draft and the current award in the way that is set out in the draft determination. Now, that is opposed by CAI.

PN111

And just ‑ ‑ ‑

PN112

VICE PRESIDENT HATCHER: Let's pause there. So, Mr Cooper, the variation on page 18, is that a claim pressed by your organisation?

PN113

MR COOPER: Yes, it is.

PN114

VICE PRESIDENT HATCHER: So there is another claim?

PN115

MR COOPER: I thought we identified the three matters we were pressing. In our application there are two matters we flagged as being in. We're pressing the ordinary hourly rate changes.

PN116

VICE PRESIDENT HATCHER: That's why I wanted you to identify ‑ ‑ ‑

PN117

MR COOPER: Yes, sorry, I ‑ ‑ ‑

PN118

VICE PRESIDENT HATCHER: I want you to identify the matters ‑ ‑ ‑

PN119

MR COOPER: ‑ ‑ ‑misunderstood you before.

PN120

VICE PRESIDENT HATCHER: ‑ ‑ ‑your organisation is pressing that are opposed by CAI.

PN121

MR COOPER: I think it's just the one on page 18. Yes.

PN122

MR MOORE: And without cutting across Mr Cooper, Your Honour and the Bench, in that same submission where the draft determination was found, if the Bench turned to page 5 of 19 and paragraph 7 you will in fact see the two issues that are raised by the CMAA, one being their claim for the ordinary hourly rate, and the second one being the opposition to our claim to remove the annual leave loading from club managers, or, in fact, more correctly, to include it as an exempted item. And so I think with that, your Honour, we probably identified what the issues are between the CMAA and ourselves, and that is there's a change in the ordinary rate proposed which has impacts going further down the line in terms of how the exempted club managers are paid, because there would be no impact caused by the proposed change in the ordinary hourly rate to a club manager who is just paid under clause 18.3 of the exposure draft, and in regard to 18.5(a)(iii) that is made clear, and so what the ordinary hourly rate provision issue is, is to seek to have the ordinary hourly rate of the exempted club managers increased by the exemption rates which we say, I think in our submission, is misconceived to a degree, but we'll come and argue that at an appropriate time, but I'll say no more. That's as I understand the issues that arise, your Honour.

PN123

VICE PRESIDENT HATCHER: Thank you. All right, Mr Moore, let's turn to your disputed issues.

PN124

MR MOORE: Yes. And it's probably most convenient, your Honour, just to go back to the 23 July submissions that we put forward and there's the three issues that are identified concerning clause 25, annual leave. And I took your Honour and the Bench to the matters that were set out regarding the annual leave clause, and if I can invite the Bench to go to page 5 of the submissions and paragraph 22, we've already addressed the inclusion of the note which we view to be non-contentious and noted that there is no change made in 25.1(a) in relation to the overall source of the annual leave entitlement being the NES. But we say that there needs to be some greater clarification made concerning the entitlements for shift workers.

PN125

And in terms of that what the issue is essentially it's a two-fold issue, if I may address it this way, your Honour and the Bench, the first issue is the only persons who, under the award currently, have an entitlement to five weeks annual leave, leaving the club manager position to one side, are people who are identified within the current exposure draft in terms of the definition, and if I can just take your Honours to the definition of shift worker and then come back to the provision in regard to annual leave as reproduced there. The current definition of a shift worker in the exposure draft on page 5 in clause 2 reads:

PN126

Shift worker means a seven day shift worker who is regularly rostered to work on Sundays and public holidays, and includes a club manager.

PN127

The club manager position has been addressed by the inclusion of the separate clause which I took your Honours to earlier. And so the real issue comes down to the definition of a shift workers means a seven day shift worker who is regularly rostered to work Sundays and public holidays, and in the earlier submission that was made and also in the draft determination we seek to have the words 'regularly rostered to work on Sundays and public holidays' more defined by the inclusion of 34 Sundays and six public holidays, and this stems, your Honour and the Bench, from the decision, and the decision is referred to in O'Neill v Roy Hill Holdings Pty Ltd, which we referred to in the earlier submissions, where Williams C in answering the first question that was posed carried out a review of the case law about how the entitlement to additional week's leave arose in relation to shift workers.

PN128

Initially the position is that in regard to shift workers, and you find expression of that we refer to in the submissions in regard to the award agreement for employees, the pattern of shift work, which is seven-day shift work that attracts the extra week under the NES is a pattern of work that is continuous shift work, that is, if I use a very simple way of describing it, 24-7, 365, and so 24 hours a day, seven days a week, every day of the year.

PN129

VICE PRESIDENT HATCHER: Apart from - what clubs operate on that basis?

PN130

MR MOORE: What the position is that is not the only pattern of seven day shift work one can work. And what we say is if you look at a source of the shift work entitlement who are entitled to the NES provision when you look at the reviewed awards, and as we note there, the wording that we have included there in 25.1(b)(i) are the wordings that were uniformly utilised, we say, across a number of the reviewed awards to identify a pattern of work as continuous shift work that attract the entitlement to five weeks leave, or the additional week's leave under the NES.

PN131

Quite apart from that when one tracks back through the history of the making of the award at the time of the award modernisation the award clause and the award definition that went in, and I think we address it in a bit more detail, your Honour and the Bench, in the earlier submissions that we put on, on 25 June, it drew from a provision in the Victorian Clubs Award where it did not identify the pattern of work as continuous shift work. And so what we say with the definition is if you look at the case law that is reviewed in the Roy Hill Holdings case, in order for people to have an entitlement as seven day shift workers who work various patterns of work, and can I describe it this way, your Honour, that you could have people working fixed shifts, you could have people working rotating shifts, which is the continuous shift work pattern, or you could have people working alternating shifts. Now, what seems to be the issue, and we say it's a definitional issue, and we don't seek to take anyone's entitlement away, we say that - and it's discussed in Roy Hill, the whole question of how do you give an interpretation to the words 'regularly rostered to work on Sundays and public holidays'? And in that decision we say you find support for the proposition that it's 34 Sundays and six public holidays.

PN132

And so what we say is that in terms of the entitlements of the persons under the award who currently have five weeks leave entitlement, they are drawn in one of two ways. As we've done with the club managers, we say they are drawn from the transitional instruments and relate to an award condition that was pre-existing the making of the 2010 award, and does not depend on anything to do with the NES, and that's why they have been separated away from the definition that's in the current exposure draft as a separate clause.

PN133

We say that in relation to the people who are defined as seven day shift workers under the current definition, which I read out to the Bench from the exposure draft, that in relation to the words 'regularly rostered to work on Sundays and public holidays' the bracketed words should be added, 'on 34 Sundays and six public holidays'.

PN134

And then there is the question of the source of the entitlement when we come to the annual leave clause, and what we say is there are two sources of entitlement to seven day shift workers under this award. The first is a group of people that would get it as of right if they work a continuous shift work pattern which has been recognised, as I say, by a number of the review benches in the form of the words in (b)(i) as proposed in the submissions.

PN135

The second group, because the entitlement and the descriptor of shift worker that is used in the award currently comes from the Victorian Clubs Award, and obviously comprehended a pattern of work other than continuous shift work and so that exists as an award entitlement that was carried over in 2010. And all that we seek is a clear delineation because there is a requirement that the Commission identify those classes of shift worker that have the entitlement arising under the NES. And we say that class of shift worker is generally recognised as those that work a continuous shift work pattern as identified within the Act for people who are award agreement free employees as was discussed in Roy Hill.

PN136

The Commission also has the ability to make an award, and as an award matter everything arising under - I hope I get the right section - 139 of prescribing conditions for annual leave. And what we say is that there are two requirements to be met, we say on the review. The first is the statutory requirement to identify those shift workers who get the extra week's leave under the NES, and for the second class of shift worker who does not satisfy, we say, that definition from the NES, but would satisfy the definition if they are regularly rostered where that phrase is interpreted consistently is that they would be seven day shift workers not working a continuous shift pattern, but who worked the rosters, one or more rosters, over a period of 52 weeks where they work on - they're rostered on their ordinary hours for 34 Sundays or six public holidays.

PN137

And that's the issue that surrounds the definition and the inclusion in clause 25.1, and the distinction between the definition and clause 25.1(b)(i) and (ii) is that the pattern of work for the seven day shift work is clearly identified and delineated between continuous shift work and any other form of seven day shift work other than continuous shift work which continues as an award entitlement but not drawn from the NES. So that's the ‑ ‑ ‑

PN138

VICE PRESIDENT HATCHER: So if I work in a golf club and I currently work 35 Sundays and five public holidays a year, do I lose an extra week's leave?

PN139

MR MOORE: For a start, your Honour, I don't know whether there is anyone that fits that pattern but there is no definition generally of shift work, and so consequently you would have to be capable of being rostered on seven days of the week and work your rosters consistent with your ordinary hours in accordance with the hours clause of the award. I think for anyone - for all of the workers that are full time they are periods of four week rosters, and so you would have to have a replicating roster where people would be allocated across the seven days of the week where ‑ ‑ ‑

PN140

VICE PRESIDENT HATCHER: Let's say I'm on a roster where I work every Sunday.

PN141

MR MOORE: Yes.

PN142

VICE PRESIDENT HATCHER: And I only work six public holidays a year, will I lose an entitlement?

PN143

MR MOORE: The question - that's an interesting question in this regard, and I don't seek to dodge it, because there is no delineation of what a shift worker is under this award. There's a question as to whether that person would then be a seven day shift worker. It depends on the hours you're working, your Honour, because there's no - the span of hours in this award is not defined within a period.

PN144

What I'm just saying, your Honour, is this, that if you were working - it's possible to work a day work pattern, as your Honour describes under this award on my reading of it. There is nothing that says that if you work a day work pattern, on the type of rostering your Honour has just put to me, that you are regarded as a shift worker. The only definition that's included within the award is that definition of shift worker referable to seven day shift work and there is no further identification in the award of, as your Honours would be familiar or the Bench would be familiar, a delineation between people who work day work and people who work other than day work.

PN145

What the award is structured around is work can be organised on any of the days of the week and then there are spreads of hours identified within the award that they can work for a particular span within a particular period. But your Honour's question is an interesting one but one that I can't give your Honour a direct answer to at the moment because of the way in which the clause is structured, because there is no clear identification of what a shift worker is for a start.

PN146

VICE PRESIDENT HATCHER: But what do your clients actually do, that is, what's the practice?

PN147

MR MOORE: Can you bear with me a moment and I'll get some instructions on that?

PN148

VICE PRESIDENT HATCHER: Yes.

PN149

MR MOORE: On the question you asked me, your Honour, if you work 35 and five I'm instructed the current practice would be he does not get it.

PN150

VICE PRESIDENT HATCHER: If I work 52 Sundays and five public holidays, what, I don't get it?

PN151

MR MOORE: Just hang on a minute. You wouldn't work the 52 Sundays, because you would have a period of annual leave, your Honour.

PN152

VICE PRESIDENT HATCHER: Just taking out annual leave. If you ‑ ‑ ‑

PN153

MR MOORE: Yes, take out the annual leave, because that is how you get the 34. The answer to your Honour's question is under the current way that the award is applied, in the example you gave of 52 weeks plus five public holidays, the answer would be no, you would get four weeks.

PN154

VICE PRESIDENT HATCHER: Why is that? Why does that not make you a seven day shift worker?

PN155

MR MOORE: Well, this is the problem. This is why the definition we say has to come about with it, because there is no clear delineation of the pattern of what the words 'regularly rostered to work' mean. And it is in combination, because it says 'on Sundays and public holidays'. Now, all that we've described in the submissions and sought to include within the definition, your Honour, is the 34 Sundays and six public holidays in terms of the submissions.

PN156

In terms of the position you put to me, your Honour, if there was to be some consideration of the matter further if a person satisfies, at the moment it says, Sundays and public holidays, the key requirement we say would be the requirement to work at least the 34 Sundays, and so in terms of the question that your Honour put to me where the person was rostered every Sunday except when he was on annual leave or sick, let's just put that proposition down, if you were going to follow that pattern where he was rostered on every Sunday and he was going to get five weeks leave, if you just take 52 less the five weeks that he would be away as the Sundays, he would work a minimum of 47 Sundays in the period, he or she.

PN157

There's a question then if you say that those people, and when I say 'those people' those employees that are working that pattern of work, satisfy a condition that would warrant, not under the NES, but warrant under the award a five-week leave arrangement, well, that's the matter that we sort of are addressing by the splitting of the NES entitlement, continuous shift work.

PN158

There's a number of, I suppose, ways of looking at it, your Honour, but one position is in terms of the NES, and just take that proposition for a start, the position that appears to be applied within the reviewed awards, and we identify a number of those, is that the pattern of work that gives rise to the extra week's leave under the NES is the same pattern of work that is described for the award agreement free employees under the Fair Work Act.

PN159

What your Honour then raises really is an issue as in regard to the various ways in which patterns of work may be arranged within this industry and within this award.

PN160

VICE PRESIDENT HATCHER: Mr Moore, I'm really trying to find whether this variation will add or subtract to anyone's current entitlements.

PN161

MR MOORE: What we have said, your Honour, in the submission is that no employee - if you go to paragraph 20 of the submission that we made we say CAI does not seek to remove any existing entitlement to a period of five weeks annual leave from any employee to whom the award applies but does seek the clear identification of the source of the entitlement, namely whether it arises from the NES or otherwise from the award. Now, what we're really saying there is anyone who has the entitlement now, because the interpretation of 'regularly rostered' we say is that where that's applied is the one that I've quoted back to you, your Honour, from Roy Hill, and in order to provide definition if there is the query that arises from an employer I understand the advice that's given is along these lines, that the term 'regularly rostered to work' has been interpreted in a number of the case law, and most recently the Roy Hill, and so consequently anyone that satisfies the 34/6 is entitled to the extra week's leave.

PN162

VICE PRESIDENT HATCHER: I can understand why someone who works 34/6 would be entitled to the extra week's leave. What I'm trying to explore is where somebody works a lot more Sundays and maybe one less public holiday is for some reason not entitled, and what is the distinction we're talking about?

PN163

MR MOORE: It's a question of that whole question of the combination of them though, your Honour, and what regularly rostered means. Now, if you were to say that you were going to look at 34 plus six as being a number of days that are - I hate using the phrase but I will - special days, identified days, Sundays and public holidays, if the matter that was of concern of your Honour was that someone who was working 40 days but it happened to be, for example, two public holidays and 38 Sundays, was not going to get five weeks, but someone who worked 34 plus six was, well, I suppose that can be accommodated because you would change the word 'and' to 'or' and you would maximise the number at 40. And so what you would say is that any other shift worker working a seven day pattern other than a continuous shift who works a combination of Sundays and public holidays that together combined to be 40 is entitled to the extra week's leave under the award as an award condition but not under a condition derived from the NES.

PN164

That would overcome a concern that your Honour has that if you say - and it was the example that you and I were discussing previously, your Honour, you've got a guy that's on every Sunday except when he's on annual leave, and that's 47 Sundays and he might never work a public holiday, should he got the five weeks or not?

PN165

The position we suggest is that if the entitlement now is to be disconnected from the NES entitlement and is to be included as a specific award entitlement, which is the same as what has been done with the club managers, then the days that would suggest in terms of number would be 40, and they would be a combination of Sundays or public holidays. Now, public holidays are finite, and so consequently there's a limitation in that regard, and so Sundays over a period of 52 weeks, there's 52 of them. If your Honour was to say that there is a requirement to work on either Sundays or public holidays, and where an employee is rostered to work greater than 40 in any combination they get the five weeks leave, that's a possibility of overcoming the issue.

PN166

VICE PRESIDENT HATCHER: All right.

PN167

MR MOORE: I won't say any more about it, your Honour, but that's really where we draw it from, and your Honour would be aware of the manner in which - how those workings arise in term of continuous shift work patterns of work, so I won't say any more about it, but that's the reason that we say there's the delineation that's required.

PN168

VICE PRESIDENT HATCHER: Mr Moore, just so we keep track of this, I think it might be appropriate to deal with each issue sequentially, that is, we'll hear you about the issue then we'll hear the responses and then we'll move on to the next issue.

PN169

MR MOORE: Yes, that's all right. I'll wait now, your Honour.

PN170

VICE PRESIDENT HATCHER: Yes, all right. So I might turn to you, Mr Cooper about this issue. So, do you want to say anything about it?

PN171

MR COOPER: No, just our reaction is that 40 seems a bit high. I like the idea of 34 Sundays and/or six public holidays, but ‑ ‑ ‑

PN172

VICE PRESIDENT HATCHER: I mean, as I stated, because there's the separate paragraph (c) about club managers this doesn't affect your interest either way?

PN173

MR COOPER: No, it really doesn't, yes.

PN174

VICE PRESIDENT HATCHER: Yes, all right.

PN175

MR COOPER: Thank you.

PN176

VICE PRESIDENT HATCHER: And what about the UWU, Mr Kenchington-Evans?

PN177

MR KENCHINGTON-EVANS: Thank you, Vice President. I just want to take you to and sort of order my comments through our submission in reply from 24 July. I'll just take you to paragraph 10 to 13.

PN178

VICE PRESIDENT HATCHER: Hold on a sec.

PN179

MR KENCHINGTON-EVANS: The UWU currently opposes the removal of the club manager in the proposed definition. We no longer oppose that because of their inclusion separately, provision of the five weeks' annual leave entitlement separately. So I just put that on the record that the only opposition on this issue now is to the proposed change of the definition of a shift worker by adding the 34 and six.

PN180

So we oppose it, and I want to maybe speak to the exchange between your Honour and the CAI's representative just now. We say in the exposure draft that the definition of shift worker at clause 2 as a seven day shift worker regularly rostered to work on Sundays and public holidays is sufficient and clear and that amending it would introduce unnecessary confusion into the award and a moral hazard for employers to avoid it by - and I think, your Honour, you may have identified this hazard by gaming the system by reducing the number of days beneath the 34 Sundays, beneath the six public holidays to avoid the payment of entitlements.

PN181

And I think this is telling, in the exchange with your Honour the CAI has now made the comment that, well it could be amended to, instead of 34 and six, 34 or six, but I think that speaks to why reliance on case law to amend the test of regularly is inadequate, the 34 and six is proposed because of a case, but in this exchange it's been demonstrated that, well, it's not quite right and you could have 34 and/or six. We say that - and I'm not sure if now the proposed change is 34 and six or now 34 and/or six, but it unnecessarily limits the Commission's sort of - the concept of regularity by adding in a sort of quantity or a number into the award.

PN182

VICE PRESIDENT HATCHER: I think where Mr Moore landed was the possibility of a total of 40 Sundays or public holidays.

PN183

MR KENCHINGTON-EVANS: And if that became 39, you know, there's a - the risk then is no longer, is it 33 and seven or 35 and five, but rather cumulatively 39, does that mean that that worker has lost an entitlement? And we say that that shouldn't be accepted, and that let the case law guide, in each decision, the meaning of shift workers who regularly work on Sundays and public holidays, and if there's a prevailing body of law that accepts a number, well, that can inform the concept of regularity, but it shouldn't conclude - it shouldn't be conclusive or incorporated into the definition itself.

PN184

VICE PRESIDENT HATCHER: There must be a point at which you cease to be regular. I mean, do you identify any such point?

PN185

MR KENCHINGTON-EVANS: No, we say that the - that's the concept that should be worked out on the facts.

PN186

VICE PRESIDENT HATCHER: I mean, at the end of the day for an employer applying and for an employee understanding their entitlements it shouldn't even be necessary should it to start looking up cases on industrial law to find out what the answer is?

PN187

MR KENCHINGTON-EVANS: This I think is the great balance of there needs to be some guidance but it can't be so prescriptive that avoidance becomes simply a matter of lining up a certain day and one person who loses one Sunday or one public holiday's work losing five weeks of annual leave. And a concept of regularity as guided by - you know, with the assistance of case law is sufficient certainty for employers.

PN188

VICE PRESIDENT HATCHER: In the current award what do you say the meaning of the expression 'seven day shift worker' is? So the current provision is in the award itself, not the exposure draft, is 30.1(b), and that there's in effect two requirements: (1) you have to be a seven day shift worker; and (2) you have to regularly be rostered to work on Sundays and public holidays. So what do you say the first requirement means?

PN189

MR KENCHINGTON-EVANS: Sorry, Vice President, I'm just looking at the current award.

PN190

VICE PRESIDENT HATCHER: I'm sorry, yes, it's 30.1(b).

PN191

MR KENCHINGTON-EVANS: Vice President, sorry, I don't have a conception of the union - I don't know if the union does have a concept that it applies informally. I think we would take a case by case basis of that. Thank you.

PN192

VICE PRESIDENT HATCHER: I think the point being raised by Mr Moore was on one view a shift worker means somebody working in an enterprise with continuous shift work.

PN193

MR KENCHINGTON-EVANS: I don't think I've got anything to add to that, Vice President.

PN194

VICE PRESIDENT HATCHER: Is there anything else you want to say about this issue?

PN195

MR KENCHINGTON-EVANS: No, that's it, thank you.

PN196

VICE PRESIDENT HATCHER: Is there anything you want to respond to, Mr Moore?

PN197

MR MOORE: Only just that it goes to the point, I think your Honour made, and that is there needs to be some certainty provided particularly when you look at the other position that can arise, and that is in relying on the words 'regularly rostered' you create an uncertainty, if I can put it that way, within an instrument which has to be complied with by my client's members. And, you know, I don't want to take the Bench to it at length, but just in terms of the Roy Hill decision, after all of it is reviewed, the Commissioner there in paragraph 35 says:

PN198

Consequently it is appropriate that I have regard for these earlier decisions and so determine that an employee 'regularly works on Sundays and public holidays' if they have worked at least 34 Sundays and 6 public holidays in a year.

PN199

And then to deal with the particular worker that was involved and recognising the worker was an award agreement free employee, going on in 36:

PN200

Given that interpretation and the fact that Mrs O'Neill will in due course work on average 31.35 Sundays and 6 public holidays in a year and not work more than 33 Sundays in a year the answer to the first question is - No.

PN201

She does not qualify for the additional week's leave. Now, what we suggested, and we did not want the word 'and/or' in it, your Honour, what we suggested was there be a certainty about the number of days, and we suggested 40, because that is the combined 34/6, and what we said was a person who is rostered, and that would be seven days of the week, other than on a continuous shift work basis, but where they are rostered to work on a combination of Sundays and public holidays that give rise to at least the working of 40 such days in the period of 52 weeks, that person is to be regarded, for the purposes of the award, as having an entitlement to an additional week's leave, not derived from the NES but just derived from the operation of the award. Because the other matter that's clearly identified, and without saying much more about it, is the issue when you ask what is the version of what is a seven day shift worker for the purpose of the award no one can really say. The definition says a shift worker is a seven day shift worker, so the only shift worker that's comprehended under the award on one view is a seven day shift worker, and, as your Honour would know and the Bench knows, that that can be done in a number of different ways in terms of the pattern of work, and so what we say is that if the pattern of work is continuous shift work they can't have an entitlement from the NES, but if there are patterns of work in the industry that would warrant an award entitlement similar to the club managers, it needs to be identified clearly, and we can't continue to rely on this 'regularly rostered' because otherwise you'll finish up with a continuous possibility of matters being either taken back to the Commission to have it interpreted as to whether a person has been weekly rostered, or to another court.

PN202

And that's why say there needs to be a definition within it relatable to days and related to those two days which are identified within the case law as special days as being days on which seven day shift workers do work. And, you know, I suppose there's the further complicating factor, without going into further detail, but under the NES it comprehends continuous shift work, but there's also certain other provisions in relation to public holidays, but I don't want to go there. All we say is that for our members we seek a clear definition of who actually gets the five weeks' leave, and we can gain that from the continuous shift work pattern from the NES because that's consistent with Roy Hill, and we can get it from the club manager's change that we've introduced, which is the five weeks, and we just want the clear definition as well, based around the way in which the phrase 'regularly rostered' has been interpreted, as I say, by Roy Hill and others.

PN203

Can you just excuse me a moment, your Honour?

PN204

VICE PRESIDENT HATCHER: Yes.

PN205

MR MOORE: The other matter that has been raised, and of course the position, if you think of a traditional day worker, or even a seven day shift worker, if they are rostered on a public holiday they normally are entitled to the public holiday off, where a seven day shift worker would not be. They have an obligation to work traditionally. But, you know, it's a special type of employee that works on the seven day, so it's someone who can be rostered on any seven days of the week for ordinary hours under the award, and if they get a certain number of the days rostered under one or more rosters they get an entitlement. Just excuse me a moment, your Honour.

PN206

COMMISSIONER BISSETT: You're on mute, Mr Moore.

PN207

MR MOORE: Sorry about that.

PN208

COMMISSIONER BISSETT: You were muted.

PN209

MR MOORE: I was. I was just getting some instructions from my solicitor. I muted myself if I could say that.

PN210

COMMISSIONER BISSETT: I thought you were addressing the Bench.

PN211

MR MOORE: I wasn't, I asked could I just be excused for a moment to get some instructions. I'm sorry, your Honour. Yes, it really goes to the - there has to be a rostering of the work, and I think if you go back through the award without going at length, in accordance with clause 15, hours for full-time employees, there's no specific shift work clause included within the award. And so the patterns of work replicate under that clause 15 type of operation for full-time employees being 38 hours averaged over essentially the four weeks, and so what you normally would have, if people are on a standard type of rostering, as the Vice President suggested to me, of someone working every Sunday, his remaining days would be scattered between the other six days, Monday to Friday, some of which may or may not be public holidays and that's why, when the question was raised with me by the Vice President, I said, well, look, if there's something special about the number of days, the first thing to look at is the combination of those days, and then if the combination of the days get over a combined number, which we suggested were 40, there's a decision as to whether or not those persons should have an entitlement under the award, independent to the NES, to have the five days because there seems to be an issue about whether or not those persons are or are not regularly rostered to work on a Sunday or a public holiday, because at the moment you might have a view that they may not be rostered on any public holidays, but they're rostered on a day other than a Sunday, which may by declaration become a public holiday, and then there's the obligation as to whether they have a requirement to work it, and so really that was the only issue that we flagged there, that there needs to be certainty of what regularly rostered means under this award.

PN212

Can I just be excused again for a moment?

PN213

VICE PRESIDENT HATCHER: Just very quickly. We need to move on to the next issue.

PN214

MR MOORE: Yes, I know that, your Honour. Yes, thank you for that indulgence from the Bench. My instructions are that in terms of if there were to be any definition of what regularly rostered means it would be the 34 and six public holidays and not a combination thereof. I apologise for that. And if that was not the view of the Bench we would adopt the same position as the UWU, and that is that it would remain as identified within the award in terms of regularly rostered for people who have an entitlement other than an entitlement under the NES.

PN215

VICE PRESIDENT HATCHER: I mean, you might have a small club, like a small golf club, where somebody is just permanently rostered Wednesday through to Sunday, and for that reason they miss all the public holidays which fall on Mondays which means that they might work at least every Sunday, they're not getting leave, but not work many public holidays.

PN216

MR MOORE: On the public holiday, as I understand it, that under the exposure draft in clause 31 - I'm being directed to clause 31.4 and the additional arrangements for full-time employees, and what I think I'm being pointed to there is that they be paid an extra day's pay if they're normally rostered off on a public holiday such that they're compensated for the public holiday.

PN217

VICE PRESIDENT HATCHER: Yes, all right.

PN218

MR MOORE: And it's for that reason that, as I say, when I sought the indulgence of the Bench to get some instructions, that we were talking about the combinations it's been pointed out that in relation to that particular clause the combination may give rise to more problems than it resolves, and so consequently my instructions are that CAI would pursue in the context of the review what it had proposed, that is, the 34 Sundays and the six public holidays, and that there's no consideration of any combination. If the Bench was against us on that, it just means that regularly rostered needs to be defined on a case by case basis. The only clear definition in the case law of regularly rostered is the 34/6.

PN219

VICE PRESIDENT HATCHER: There's no evidence of any factual problems in relation to the current provision, is there? And this has caused difficulties or disputes or ‑ ‑ ‑

PN220

MR MOORE: No, I think if it was 34/6 it won't cause any difficulties at all, your Honour.

PN221

VICE PRESIDENT HATCHER: That wasn't my question. It was, is there anything before us which suggests that the current provision has been conducive of confusion, disputes, anything of that nature?

PN222

MR MOORE: No, because I understand the position that's been relayed is that regularly rostered means 34 and six, and that's why we sought the specific definition. I won't say anything more about it. That's the position that I'm advised is the current position and why those words were first put into the award at our suggestion.

PN223

VICE PRESIDENT HATCHER: Nonetheless the alternate idea may have planted seeds in our brains, but, in any event, can we move to the next issue, so is this the inclusion of annual leave loading of managers?

PN224

MR KENCHINGTON-EVANS: Can I just make an additional comment?

PN225

VICE PRESIDENT HATCHER: Yes, quickly.

PN226

MR KENCHINGTON-EVANS: I've just been looking at the definition of shift worker in the Restaurants Award and the Hospitality Industry Award, they both refer to the annual leave provisions, and I'll just read them out. So the ‑ ‑ ‑

PN227

VICE PRESIDENT HATCHER: I have had a look at them myself.

PN228

MR KENCHINGTON-EVANS: Yes.

PN229

VICE PRESIDENT HATCHER: But they require 24-7 shift work, don't they?

PN230

MR KENCHINGTON-EVANS: They do. So I just wanted to draw your attention to a different definition there but one that nonetheless doesn't have a public holiday and Sunday ‑ ‑ ‑

PN231

VICE PRESIDENT HATCHER: Yes, I think that's the definition that's contained in the first part of the CAI's proposal as I understand it.

PN232

MR MOORE: That is correct, your Honour.

PN233

VICE PRESIDENT HATCHER: I mean, not - so that's in the - if you go back to 22 of the submission, it's what they've put in (b)(i) which reflect what's in the number of the awards you referred to. It's in Hospitality, it's in Restaurants and Retail, I think too. Bu I wouldn't have thought there'd be many clubs that operate continuous shift work of that nature. There might be some. Some of the larger clubs might, but ‑ ‑ ‑

PN234

MR KENCHINGTON-EVANS: Yes, I suppose what I was trying to identify, Vice President, was just the absence of a numbered Sundays and public holidays, and I haven't looked at the history of those awards, but it to date doesn't appear to have been an issue where it's needed to be amended, and notwithstanding some dissimilarities with the 24-7 limit or definition in those awards, they are making do with the concept of regularity, and I think that should inform how the Clubs Award, you know, should define shift worker.

PN235

VICE PRESIDENT HATCHER: Thank you. So next issue, Mr Moore, is the annual leave loading being added to the excluded provisions for club managers; is that right? Your microphone is off, Mr Moore.

PN236

MR MOORE: There's one issue before that. It's the one in paragraph 23, before I come to that. It's just the general provision in relation to the payment of the annual leave loading. So the current - or the exposure draft makes it on the same basis as the NES. We say that that should not be the provision. We say that the provision that should be there, it should be on the minimum rate, which is actually put forward in the award and in clause 18 for all the classifications.

PN237

VICE PRESIDENT HATCHER: So is this a consent provision?

PN238

MR MOORE: I don't think we've heard from the unions in regard to 25.3.

PN239

VICE PRESIDENT HATCHER: Mr Moore, I need really to understand what are the issues and is it an additional issue.

PN240

MR MOORE: It's the issue that's been bound up with the whole question of the annual leave clause, and it may be, your Honour, and I apologise for it, it may be an additional issue because we did identify in the submission there were three parts to the annual leave: one was the amount; one was the basis for the payment; and the third was the question of how the annual leave loading be paid in relation to all employees generally. And I think when you asked me the question in terms of the issues, I identified with you that the definition of shift worker had a particular impact upon the way in which the annual leave clause applied generally. I apologise for that if I've ‑ ‑ ‑

PN241

VICE PRESIDENT HATCHER: So clause 30.3 of the award currently says the loading is payable upon the amount that's payable under the NES.

PN242

MR MOORE: Yes. And we say the concern ‑ ‑ ‑

PN243

VICE PRESIDENT HATCHER: But if I recall it correctly would mean that because over award payments are included in the leave calculation under the NES, then the loading would be payable on top of that.

PN244

MR MOORE: Yes.

PN245

VICE PRESIDENT HATCHER: So this proposes a reduction in an entitlement?

PN246

MR MOORE: It's not a reduction in an entitlement. They've got an over award payment. Their over award payment does not translate, we say, into - or should not translate into an award entitlement. It would be an entitlement that would be given under contract.

PN247

VICE PRESIDENT HATCHER: Be that as it may, Mr Moore, it's a reduction of what they're currently entitled to under the award; correct?

PN248

MR MOORE: It may or may not depending on how the NES is calculated in terms of base rate of pay, your Honour. See, the NES requires the annual leave to be paid on the base rate of pay in clause 16.

PN249

VICE PRESIDENT HATCHER: Yes. So, that definition, subject to the exclusions, would include an over award payment.

PN250

MR MOORE: Yes, but, if you're getting paid an over award payment, your Honour, you're not getting an award entitlement.

PN251

VICE PRESIDENT HATCHER: No, just stay with me.

PN252

MR MOORE: Yes, okay.

PN253

VICE PRESIDENT HATCHER: The NES entitlement to leave requires over award payments to be excluded in the payment you receive when you take annual leave unless it falls within any of the excluded matters in section 16.1(a) to (e); correct?

PN254

MR MOORE: Yes, your Honour.

PN255

VICE PRESIDENT HATCHER: And then an award entitlement is to receive the loading calculated by reference to the same leave amount.

PN256

MR MOORE: Yes.

PN257

VICE PRESIDENT HATCHER: So to the extent that somebody currently receives an over award payment that is not within one of the excluded provisions they get the loading calculated on that; correct?

PN258

MR MOORE: That would be correct under the award at the moment, yes, your Honour.

PN259

VICE PRESIDENT HATCHER: And then you propose to reduce that by having the loading calculated by reference to the minimum rate of pay prescribed by the award?

PN260

MR MOORE: Yes, your Honour, because for persons other than getting an over award payment the base rate and the minimum rate are identical.

PN261

VICE PRESIDENT HATCHER: Yes, that's true. Yes. So why doesn't the current provision meet the modern awards objective?

PN262

MR MOORE: It comes down as tied up, your Honour, with the whole question of what then happens with people who are under excluded rates and really they are not excluded rates or salaries, the salaries are contract payments. The only rate that's prescribed by the award for any employee is the rate that is in 18.3 plus the - I think there is one allowance which is an all-purpose allowance, which is a first aid allowance which becomes an all-purpose rate.

PN263

And so what we say is that what is able to be done is that there is able to be made a clear definition of what are the base rates for the purposes of the award, and we say that would be identified by making them the rates in clause 18.3.

PN264

If someone is getting paid an over award payment first of all annual leave loading is not an entitlement of the NES. And there is no need to link the payment of the annual leave loading to the NES. The only entitlement that a person has to payment for annual leave is for the annual leave proper and that is in accordance with the base rate of pay.

PN265

VICE PRESIDENT HATCHER: Yes, but you still haven't answered my question. Why doesn't the current provision meet the modern awards objective?

PN266

MR MOORE: It doesn't meet the modern award objective, in my submission, because it ties the rate to a rate which is not determined by the award. Now ‑ ‑ ‑

PN267

VICE PRESIDENT HATCHER: That's true. But, again, why does that mean that the modern awards objective is not met?

PN268

MR MOORE: Excuse me, your Honour. Yes, thank you. There's two parts to this, and I suppose it comes down - and they are linked, but it's better to enter it through this first up. And it comes down to a question, and I think we identified in the submission, and I'll come back to your Honour's question in a moment, we identified the provisions in sections 55 and 56 of the Act in terms of the interaction between an award and the NES.

PN269

One of the problems, and it comes down - I suppose there's two ways of approaching the issue on the annual leave loading, and there's a number of issues that are related to it, one of which is the question of the club managers that are within the exclusionary range. As we pointed out in the submission, and your Honour agrees with me, is that for most employees their base rate and the award rate, absence an over award payment, would be the same.

PN270

The problem is, I suppose we've just - and I don't want to jump around, but I'll just go to the issues that arise, how does one determine a base rate for the exempted club managers? You have to first of all have an identified set of hours because it's a requirement under the Act, I think it's section 147, that all employees covered by an award have to have an identification of their ordinary hours. And then on the basis of those ordinary hours, it's a question of what they get paid for their ordinary hours becomes a question of the base rate.

PN271

What we say is, in approaching it, is there's two ways of looking at it, your Honour. Now, your Honour is right in what you say to me, under the current award provision, if an employee had an over award payment, that's a combination of the effect of section 16 and section 90 to pay the annual leave, under the current award that says the same rate will be used for the calculation of the annual leave loading. But if you look at the thing that is called annual leave loading that is a creature of the Commission, not a creature of the NES. If I put it this way, it's a creature of the modern award safety net as opposed to a requirement for all employees regardless of whether they are award covered or not.

PN272

And so the first proposition we've sort of come to, and why we made the suggestion for the variation is that in regard to the payment as to - and their facilitating is to identify quite clearly what is the base rate of pay for all persons who are covered by this award.

PN273

VICE PRESIDENT HATCHER: I mean, that means that for the purpose of calculating the annual leave entitlement inclusive of the loading for a person with an over award entitlement you'd have to do two calculations, the first calculation would be the base annual rate which will be done including the over award payment, and the second would be the annual leave loading which would be exclusive of the over award payment. I mean, that just makes it more complicated, doesn't it?

PN274

MR MOORE: Only for those people who are getting over award payments and only if those over award payments are not identified as being for a reason other than the ordinary time, because it depends on their contracts then. In terms of- and I suppose if you look at the requirement and you look at what the exercise is, the exercise is to set a minimum safety net. It's not to preserve over award positions or contracted positions because those persons and those employees can enter into arrangements under contract. For example, if someone wants to give annual leave loading on a rate that includes an over award rate that is a matter between the two parties, not something we say that the Commission should involve itself in. The Commission involves itself in setting a minimum safety net which safeguards all employees. And if there is a view that annual leave loading should be paid to employees it's a clear identification that when you go on a period of leave you get annual leave loading based on the minimum rates of pay in the award otherwise you don't get it.

PN275

VICE PRESIDENT HATCHER: That's your organisation's position now. But this provision has now been in the safety net for 10 years. I'm trying to get an understanding of what's wrong with it, that is, why is it such that it doesn't now meet the modern awards objective? Like, what is different now from 10 years ago, or what's gone wrong with this provision that we need to change it? I mean, you might have some issue of principle about it, but beyond that what's the problem we're trying to rectify?

PN276

MR MOORE: The question of - see, the problem with I suppose if you're trying to rectify it, and it's a mater I suppose if I put it this way, your Honour, of perspective. It's a question of what the award is meant to do. Now, if it ‑ ‑ ‑

PN277

VICE PRESIDENT HATCHER: How is the position now different from when the modern award was made 10 years ago and this provision was introduced by consent? What has happened that would suggest that this should no longer apply?

PN278

MR MOORE: I think one of the real issues that has come as a problem is the question of people and how you actually class the payment as to whether they're over award payments or not of the excluded positions for a start. If I ‑ ‑ ‑

PN279

VICE PRESIDENT HATCHER: Yes, but, Mr Moore, you already need to do that to calculate the NES entitlement. That is, changing the clause won't remove the necessity of working out what the person's base rate of pay is under section 16. You'll still have to do that. And that may involve some difficulty.

PN280

MR MOORE: Yes.

PN281

VICE PRESIDENT HATCHER: But currently at least if you do that then you'd simply say that's the rate plus 17 and-a-half per cent of that. You're now requiring a double calculation which doesn't remove the difficulty of having to identify what the section 16 base rate of pay is.

PN282

MR MOORE: Yes, but there's no difficulty in that regard if you had the entitlement to an annual leave loading based on your contract, on your contracted rate. It's a question of where the entitlement arises from. And what we say is it should not arise from the contracted positions that are made in between individual employers and employees because those are unaffected by this change. What really is the purpose of the award is to create the minimum conditions for a person under the award, and we say why would one want to be interested in over award payments, and indeed in some of the transitional instruments over award payments were excluded from the calculations.

PN283

I know what your Honour is saying to me, and I know the way in which the current award operates. What we say is there's issues that arise with that, and you come back, starting from a basic proposition, and that is, if you are going to create an entitlement to annual leave loading, what is the first entitlement that you would make? You would make the entitlement to annual leave loading on the minimum rates of the award, or if there's an all-purpose rate, the all-purpose rate of the award, or the ordinary time, however it's described, because it is not an entitlement that arises from the NES. It's something quite separate.

PN284

What we're saying is there's no restrictions on people paying more than minimum rates, and there's no restrictions on people paying more than the minimum rate on annual leave loading if that is what they contract, but at the current point of time it utilises the contract position to define the entitlement under the award, and then we come down to - you take that as a basic principle, and that's why the change is suggested. You've then got to go further than that and have a look at all of the issues that arise in relation to club managers and the like or indeed any employees.

PN285

VICE PRESIDENT HATCHER: We'll come back to (indistinct). I mean, all I'm going to raise with you beyond this point, is to say that you raise it effectively as an issue of principle, and if that was upheld as an issue of principle it affects a whole range of awards, because I'm just looking, for example, Hospitality and Restaurants have the same annual loading provision. If the same principle applies then we'd have to vary those, wouldn't we? And I might add, the Hospitality Award was an award which your client was keen to get into not so long ago, but, that is, if this is an issue of principal it applies to every award, not just this one.

PN286

MR MOORE: Yes. And what it's tied up about is a question as to the whole calculation of how base rate of pay comes about under the award. Because really you can look at it from the two perspectives, if I put it that way, and I'm not seeking to avoid the issue you've raised. It's raised, it is a matter of principle. It's a matter of first principle and how you build from there, but what I'm saying to the Bench is really what it comes down to is a question of how you determine the base rate of pay of persons under this award, and I think your Honour agreed with me, that if there were over award payments the base rate and the minimum rate of the award should be identical, that is, the minimum rate specified for the ordinary hours should equate back to the base rate for ordinary hours in the NES, and they would be at one unless there is an over award payment. The only way a person gets an over award payment is that they get it by way of contract.

PN287

What I'm saying is if you go to first principles you say that the two rates start off as one unless there is good reason to change or come to another position hence the position that you find in section 55 of facilitative positions. In fact, facilitative positions and supplementary positions have been used by the Commission in the areas, for example, as we identify, annualised salary provisions in order to define what the base rate of pay is for those provisions when it comes to assess entitlements similar to the entitlement we're dealing with, which is the annual leave loading.

PN288

The real issue that comes down right across the board, and without being coy about this, is really how do you calculate the base rate of pays for various persons, in particularly the higher echelon classifications of the Club Managers Award, because the combination of matters that are exempted there are matters that are identified within section 16 that would not give rise to that rate being utilised for the purposes of annual leave loading.

PN289

VICE PRESIDENT HATCHER: That's right. But that's not a problem within our control. That's something people have to grapple with because it's in the Act.

PN290

MR MOORE: There's a number of grapplings with it, if I can put it this way. For a start, it's a question of grappling, what in fact is in the exemption and the salary rate when we jump forward, because these two issues are related?

PN291

VICE PRESIDENT HATCHER: Let's turn to this now. So club managers, what's the issue?

PN292

MR MOORE: In the club managers there is only one rate in the award, and that is the rate in 18.3.

PN293

VICE PRESIDENT HATCHER: Yes.

PN294

MR MOORE: The minimum rate for a club manager is in 18.3 and there is nothing in 18.5 that creates a rate of pay for them. It's a quite distinct position than what applied in any of the pre or prior transitional instruments, because the transitional instruments did not create weekly wages or hourly wages, they were salaries. And indeed when you look at the annual leave loading provisions within two of the transitional instruments, one being the Federal, Queensland, Victorian Award, it was capped at a 20 per cent level salary scale in the same way which we're having this debate now about whether this be capped to exclude over award payments. Because it was an identified sum, and in the New South Wales provisions it identified the two, not the one. In other words, there was a clear delineation of what rate the calculation was made for annual leave loading. And all that we're saying when you get down to principle on this, is if you do go to the annual leave loading rate, in principle, you get to clause 25.3, and then you have to determine what is the base rate for club managers.

PN295

VICE PRESIDENT HATCHER: Yes, but that's what section 16 requires you to do.

PN296

MR MOORE: That's right. And at the present point of time you can't because there is no rate for them other than 18.3 in the award, because the exemption rates take them outside of ordinary hours of work. You see, what you've got is the two sources, as I'm describing to the Commission, coming together. You've got an award source and you've got a contract source. The contract source gets you outside of the coverage provisions, the exclusionary provisions, on certain matters in the award; the submission we made earlier in the first set of submissions about awards within awards.

PN297

It's the position that there is no other rate prescribed in the award for a club manager other than the rate in 18.3.

PN298

VICE PRESIDENT HATCHER: So are we talking about the award or the exposure draft now?

PN299

MR MOORE: We're talking about the award as exists and the exposure draft as exists, that's 18.3, your Honour, of the exposure draft.

PN300

VICE PRESIDENT HATCHER: Which reflects clause 17.

PN301

MR MOORE: Seventeen I think.

PN302

VICE PRESIDENT HATCHER: Seventeen. Yes, I think it's ‑ ‑ ‑

PN303

MR MOORE: Point 3, I think is the ‑ ‑ ‑

PN304

VICE PRESIDENT HATCHER: ‑ ‑ ‑17.2 that sets the rates.

PN305

MR MOORE: Yes.

PN306

VICE PRESIDENT HATCHER: So, I mean, again, 17.2 has been there now for 10 years.

PN307

MR MOORE: Yes.

PN308

VICE PRESIDENT HATCHER: And how have people been calculating annual leave by reference to those rates?

PN309

MR MOORE: In terms of the calculation of the annual leave is distinct from the issue I thought that we're on to now which is the calculation of the annual leave loading. The annual leave has to be calculated in accordance with the NES.

PN310

VICE PRESIDENT HATCHER: Yes, and how as a matter of practice do they - that says what is the base rate in respect of people who are paid the club managers' salaries in what is currently levels 7 through to 13. But is leave paid on the salary rate?

PN311

MR MOORE: It would depend on the individual contracts. It would depend on the individual contracts, your Honour, and, you know, it would be many and varied depending on what the individual contracts are.

PN312

VICE PRESIDENT HATCHER: Leaving aside contracts, if one of your members is trying to work out what the section 16 base rate is for a club manager paid under levels 7, 8, 9, 10, 11, 12 or 13 currently, what do they do?

PN313

MR MOORE: First thing would be to go to section 17.2 and divide it by the hours of work, 38 hours divided by the weekly rate under the award for a start, and then they've got to go to the contract. Award compliance would be that they have to be paid the minimum rate for their classification for five weeks' leave, so 190 hours at the hourly rate. That would ensure award in compliance.

PN314

VICE PRESIDENT HATCHER: So, they're in effect - - -

PN315

MR MOORE: The question being - - -

PN316

VICE PRESIDENT HATCHER: That's the same paying them at the salary rate, is it?

PN317

MR MOORE: If we come back to the issue that we are talking about now, your Honour, if you take the person that is totally reliant, and can I go to the exposure draft, your Honour, 18.3, and on page (a)(iii) of the exposure draft the levels currently identified level 7 through to 13. They are the minimum rates for club managers unless there is a contractual position that applies above it.

PN318

VICE PRESIDENT HATCHER: Yes.

PN319

MR MOORE: I have already made reference to it, but over the page, your Honour, in terms of 18.5(a)(iii):

PN320

To avoid doubt where a club manager is not paid in accordance with either clause 18.5(a)(i) or clause 18.5(a)(ii) above the club manager would be entitled to the benefits of all relevant provisions of this award.

PN321

So, in the absence of an over award payment the position I put to your Honour is the correct one, what does a club manager get paid for their annual leave under the award. They get paid the hourly rate identified for the classification in 18.3 times 190 hours for the five weeks leave. You then said to me what does the club employer do in respect of those people that are covered by the - and I will just call them the exemption provision - the question is they could be many and varied depending upon the terms of the individual contract.

PN322

VICE PRESIDENT HATCHER: Let's assume they're paying the minimum exemption rates; do they include for example - when you get to the 20 per cent level do they pay the 20 per cent on annual leave?

PN323

MR MOORE: It's an interesting question because it comes down to the whole question of what 18.5 creates, your Honour, because there is no creation of salaries under the award.

PN324

VICE PRESIDENT HATCHER: I mean I think we found the annualised salaries, the Full Bench found that this was not an annualised salaries provision.

PN325

MR MOORE: That's correct.

PN326

VICE PRESIDENT HATCHER: It's a provision where you get a higher minimum rate and certain clauses of the award don't apply to you, so we don't need to talk about contracts. Let's say the minimum rate in the lower category is up by 20 per cent and these clauses don't apply to you.

PN327

MR MOORE: And this is the problem that has existed ever since the award was made, your Honour, because it applied a quite different set of rates and structuring of the provision for these type of employees than what applied under the transitional instruments, because if you go to the transitional instruments they didn't create weekly rates of pay, they created salaries. So the salaries was a creation of the award, and then if you go to for example the issue that we are talking about on annual leave loading, if you went to the Victorian/Queensland award if there was not an exemption otherwise obtained but someone paid under the award when it came to calculate their annual leave loading they were calculated on the 20 per cent level as an award prescription.

PN328

There are no salaries created in this award, and this is the reason why the ordinary pay is defined the way it is and why we are objecting to it as well, to the changes, because section 18.5 does not create a salary. 18.5 says these are people who have salaries created by their individual employees - employers who are then not subjected to various provisions of the award in terms of paying them.

PN329

VICE PRESIDENT HATCHER: It increases the minimum salary payment required by 20 per cent.

PN330

MR MOORE: No, it doesn't do that when you read the words. What the words say it will not apply to a club manager receiving a salary. So first of all they have got to be a receiving a salary, not an over award payment, and a salary is a quite different concept to an over award payment on a weekly rate. What they get is a standardised payment every week, month, however it has been described, as a salary, and if that salary is over the annual rate, which is not a pay rate, it's just a rate used for the purposes of 18.5, they are exempted from these provisions of the award. In the same way - can I put it this way to the Bench, and it's a way of illustrating the principle that's involved - if someone had written a clause that said anyone who earns a salary higher than the high income threshold is not covered by this award that is the way this clause operates. What it says is you have two things; there is a safety net which is an award safety net created as a minimum, and there is an ability of employers who are covered by this award with their employees to make contracts with them.

PN331

VICE PRESIDENT HATCHER: I am not sure that this submission is consistent with what was put to the annualised salaries Full Bench, because you're making it sound like an annualised salaries provision, in which case if it is we should put in the standard clause.

PN332

MR MOORE: No, it's not that, and I was involved as your Honour knows in the cases - I think there were the two cases that ran - one was the casual case which was before your Honour chaired the Full Bench, and I think then there was this invitation out as to whether this clause and the clause within the hospitalised award were annualised salary clauses, and the answer is they're not, and they're not because you go back to the provisions that were made at the time and we refer to it in the decisions, or in the submissions the decisions that were made in the clerks case and the banking case when the ministerial reference came in, and then the exemption rates in the clerks award by way of example was removed and the annualised salary provision came in.

PN333

No such similar position applied in relation to this award, and nor should it have been, because what it was dealing with was employees that are, and this is the relevance of Mr Ushakoff's witness statement and set in the remuneration survey, there is a large number of employees at this level who are protected by an award for other reasons - when I say for other reasons, unfair dismissals - that are essentially high income earning employees. They're quite different than people in the clerks award, and what is the issue here, we are not arguing that there is a need for an annualised salary provision. What there is however is this; if you have a look at the levels that are created you could actually, and we refer to it in the submissions, your Honour, for someone who is paid at a minimum rate and then if you wanted to pay them a salary you could identify various parts of it, of the salary, to go against award provisions, one of which could be annual leave loading, and I think your Honour in the case of where this issue arose as to whether these were annualised salary provisions or not had a discussion I think with the representative of the AiG about the application of Ray v Radano and principles such as that against an award clause that gave rise to annualised salary, and I think your Honour put forward a position that it provided more certainty by having an award type clause of excluding certain things, because otherwise you are left with the issues that arose more recently in WorkPac v Rossato as to what was covered and what was not.

PN334

What we say it's quite possible for people to actually go and create salaries with their employees at a level between zero and 20 per cent and identify amounts against award amounts, including annual leave loading, and that would be applied in the principles of Ray v Radano, it would not be a breach of the award because they're not excluded from annual leave loading but they can actually get a salary over and above to compensate them for incidences of the award and have that clearly defined. That's why I say it's a contract issue, your Honour.

PN335

But when you look at the clause there all it says is that if there is an employee that is a club manager as defined in the award who is paid a salary we say under contract over and above 20 per cent of the annual rate they are excluded from the operations of those provisions that are identified. It does not create a salary for these people at a 20 per cent of 50 per cent level. That's the problem. That's the issue that was created in the translation between the former transitional instruments and this instrument which we say in the review needs to be remedied, because there's a misconception that there is actually a pay rate that says you pay 20 per cent over and 50 per cent over. It's not.

PN336

There is no annualised salary clause in the award. These are not annualised salary provisions. They are provisions that identify an exclusion from certain award entitlements based on the amount of remuneration that is being received by the individual employee, and that's why we go back to first principles in regard to the annual leave loading, because you have got to go back to first principles about what everyone covered by the award gets before you then come to a view as to whether it should go in and be excluded within clause 18.5 as an excluded matter, because the issue as we saw it I have identified in the submissions, and I don't want to go over them at length, but I will just raise them, is that it's quite possible to do a calculation to a person who is not at the 20 per cent level but paid them an amount. Whether it's described as over award or a salary it says I will pay you this amount of money to compensate your annual leave loading, and if you do the calculation for a club manager with five weeks leave that is 33.25 hour or 1.683 per cent. So if I take the minimum rate and pay an employee 1.683 per cent higher and say that's your annual leave loading for the purposes of the award under the principles of Ray v Radano that's permissible.

PN337

The problem that has been created here, and I will go to the issue about the annual leave loading, I am conscious of the time, your Honour, is at the present point of time what you can do for someone between zero and under 20 per cent you can't do for any of the employees 20 per cent and over. You can never pay enough money to them under the award by way of a salary and say it's compensating them for their annual leave loading, and that ties in with the issue that you raised with me, and depending on how you calculate the base rates if the award clause stays the same in 25.3 in terms of how annual leave loading is calculated, and if it is on the rate which is the base rate of pay under the NES, you have got all of these matters coming in and colliding with one another creating a set of award conditions that we say are inappropriate for the class of employee involved, because these employees from the material which Mr Ushakoff has put forward in the remuneration survey are well able to look after themselves in terms of their salary, because that's how they get their salaries that give rise to the exemptions.

PN338

VICE PRESIDENT HATCHER: They are not able to look after themselves?

PN339

MR MOORE: The problem that the clubs have got at the moment even if they could look after themselves there is no way with a 20 per cent and over employee who can buy out annual leave loading, and yet in any annualised salary provision of the reviewed awards you could. In any individual flexibility agreement under this award you could, but you can't do it for the excluded club managers under the way the award is currently structured.

PN340

VICE PRESIDENT HATCHER: So what was the percentage you referred to before, 1. something per cent, 1. - - -

PN341

MR MOORE: It's a calculation, your Honour. I just did it this way.

PN342

VICE PRESIDENT HATCHER: What was the - - -

PN343

MR MOORE: 1.683 per cent.

PN344

VICE PRESIDENT HATCHER: I am just trying to understand this. If I am in the 20 per cent category and I am paid 20.6 whatever it is - 8 per cent above - what's the difficulty?

PN345

MR MOORE: It literally becomes this; (a) it's not their base rate, this is not defined. The position is whatever their base rate is under the award at the moment unless it's exempted under the current award provision I have to pay the annual leave loading on it.

PN346

VICE PRESIDENT HATCHER: Yes.

PN347

MR MOORE: So what we have said, your Honour, that's why the first change has to be made as a matter of general principle in regard to 25.3, because you have to break the nexus between the base rate coming from the NES being utilised for the annual leave loading. The only other way you could continue to utilise the provision we say if you wanted to leave the annual leave loading provision unchecked is to put annual leave loading into the excluded matters. Because on the reading of the transitional awards they never had an entitlement in New South Wales to any payment above the 50 per cent salary that was in the award unless they had a higher rate of pay guaranteed to them under contract.

PN348

VICE PRESIDENT HATCHER: Mr Moore, but that's now over ten years ago.

PN349

MR MOORE: The position is this was a four year review, your Honour, that was supposed to be undertaken.

PN350

VICE PRESIDENT HATCHER: Sure, but I am asking you to demonstrate what's the evidence of practical difficulty that has arisen with respect to a provision which the organisation consented to ten years ago? Not only consented to, but prepared the drafts of these awards.

PN351

MR MOORE: If you take the consented to on the award matter the only thing that was consented to on the award matter in terms of rates were the rates that are currently found in 18.3. The problem I think that no one appreciated is, looking back in hindsight, although the Bench may have, because when you look at how they defined ordinary hours for the purpose of the new award, is this whole question of the connection between base rate and minimum rate and ordinary hours, and that's really what the issue I suppose distils to, your Honour, if I put it in a nutshell.

PN352

If you look at what the Bench has done with the modernisation process, if you go to what they define the ordinary hours of pay as, is quite specifically pointed to clause 18.3. It says:

PN353

The ordinary hourly rates means the minimum hourly rate for the employees classification specified in clause 18.3, plus any all purpose allowance to which an employee is entitled.

PN354

The only all purpose allowance under this award that I could find is the first-aid allowance. So what is clear then there is nothing beyond clause 18.3 in the creation of ordinary hours and ordinary rate of pay, and that's when the question about whether they were annualised salary arrangements they're not. That's why the answer came back the way it was and there is nothing inconsistent about it. They have a totally different operation to an annualised salary amount, but it does affect the way in which the NES interacts with the award.

PN355

VICE PRESIDENT HATCHER: If I have a club manager who is say grade 7 I pay them a base salary of 20 per cent above the award, and in the exemption provision, that's their rate for ordinary hours and that's their base rate for the purpose of the NES. Correct?

PN356

MR MOORE: It might. I am sorry to cut across, it's a question of what interpretation you give any other separately identified amount.

PN357

VICE PRESIDENT HATCHER: That's all right. Anyway let's assume you have done that and let's assume the employees are prepared to accept that, the salary rate, the 20 per cent salary rate is the base rate, can I do that just by way of arrangement without any particular written contract?

PN358

MR MOORE: Yes.

PN359

VICE PRESIDENT HATCHER: What I am struggling to understand is why the employer can't then say in addition to that salary rate I am going to pay you an additional 2 per cent that will buy out your entitlement to annual leave, and that won't be part of your base rate because it is clearly a separately identified amount which falls in within section 16.1(e).

PN360

MR MOORE: Yes, but it's a question of where would you apply the 20 per cent, your Honour. You could only apply it to the weekly amount or you could only apply it to the hourly amount. You can't get it on an annual rate. If you look at 18.3 and you say take the rate in 18.3 and increase it by 20 per cent it's a defined amount over the weekly rate. If it's a weekly rate and it's an hourly rate the base rates and the minimum rates are identical, which is the proposition I put. It doesn't alter the annual rate, and it means that the exemption provision doesn't apply because it's not identified as a salary.

PN361

VICE PRESIDENT HATCHER: All right. We better hear from the other parties in response. Mr Cooper?

PN362

MR COOPER: Thank you, your Honour. I have listened to that with great fascination and annoyance because this is purely an attempt to remove entitlements, long standing entitlements from club managers, and a lot of errors have been made in the submission made by Mr Moore. Straight away there is the two issues that are intertwined. If you were looking at what you pay the annual leave loading on and come up with some sort of base rate to calculate that on and you excluded separately for someone's real annual salary it would be a nightmare for a payroll staff to work that out.

PN363

In custom and practice, which has been quite successful for the last ten years without issue and long standing, conditions for both the exemption rates for managers and the payment of annual leave loading. The simple fact of the matter is how in real practice it's worked at there's three calculations. You have the annual salary rate as one based starting point and the managers through from level 7 to 13 have an annual rate applied to them. That's the starting point. You then have those people who are paid in excess of 20 per cent, in excess of, and then you have those in excess of 50 per cent. So when you come to do your payroll purposes or whether you're calculating annual leave or annual leave loading or other considerations you simply - - -

PN364

VICE PRESIDENT HATCHER: Just to clarify that, it's 20 per cent in excess of, not - - -

PN365

MR COOPER: In excess of.

PN366

VICE PRESIDENT HATCHER: It's not in excess of 20 per cent, it's 20 per cent in excess of.

PN367

MR COOPER: Yes. Yes, sorry.

PN368

VICE PRESIDENT HATCHER: Yes, go on.

PN369

MR COOPER: That becomes your salary. You divide it by 52 and you divide it by 38. So that becomes your minimum hourly rates, which is in accordance with the section 16. It's not one of the excluded amounts. Those amounts are not identified as separate salary amounts. They're all inclusive, and this is the argument we had during the annualised salary debate, that it was not categorised as an annualised salary, but it was an all inclusive rate applicable to club managers. For the 20 per centers it could mean you're paid one dollar above in excess of 20 per cent or up to 49 per cent that captures that group. You don't have to be contracted to receive that. We don't like the term 'over award payment'. That purely becomes your salary, because the words used - that's the whole purpose of distinguishing between club employees having weekly minimum rates and hourly rates, only club managers have minimum annual rates.

PN370

So we know that in practice how it is applied by the clubs in our industry, and I stress the point that there has not been an identifiable issue where this has not met the modern award objective. It has been place under the modernised award since 2010, but from the evidence that we put on to the Commission that it's also a long standing provision in our pre-reformed Federal awards as well as the NAPSA. So the two issues are intertwined. I just make the submission if they call it an in principle position to remove an entitlement, well I don't think it washes. It may be a philosophical point of view.

PN371

VICE PRESIDENT HATCHER: Can I just make sure I have understood what you're saying. So you say the practical way to work it out is if I am in the lower category, say level 7 - - -

PN372

MR COOPER: Yes.

PN373

VICE PRESIDENT HATCHER: - - - the club will pay me - I am just going to the current rates - will pay me a salary which is 20 per cent above $50,307.

PN374

MR COOPER: Yes.

PN375

VICE PRESIDENT HATCHER: Once you have got that higher salary you can divide that into a weekly amount which will operate for the purpose of the annual leave entitlement under the NES.

PN376

MR COOPER: That's correct.

PN377

VICE PRESIDENT HATCHER: And then you simply add the loading to that weekly amount.

PN378

MR COOPER: That's correct. You work backwards on the annual salary rate, and for the purposes of our member that exempt you gave when we advised members of the minimum wage, annual minimum wage review, we put down level A, level 7 under the award, $50,307. Then plus the 20 per cent which is $60,368.40. Then you have got the 50 per cent which is $75,460.50. So what I was saying before the example with a level A manager you may elect to pay that person to buy out some award provisions no less than $60,368, but you may decide to pay that person $65,000, which still puts them within that 20 per cent exemption range. They are not getting the 50 per cent, but they get the 20 per cent buy out. It's not a contracted rate, it's not an over award payment. It then becomes their salary for market forces to attract the right staff and other considerations. But once you have agreed to a salary you work backwards. So whether you want to pay the minimum 20 per cent in excess to buy out the provisions or you pay $65,000 you then work out your hourly rate by dividing it by 52, then 38 hours a week, and that's your hourly rate, and that's - - -

PN379

VICE PRESIDENT HATCHER: Perhaps (indistinct) this proposition, that again using level 7 as an example you can tell somebody your salary is $60,000, and I think it was 368, is that - - -

PN380

MR COOPER: That's right, yes.

PN381

VICE PRESIDENT HATCHER: That's your salary, and then in a separate arrangement they could say, look we're going to pay you say $2,000 a year to buy out your annual leave loading.

PN382

MR COOPER: I hadn't seen that, no. No.

PN383

VICE PRESIDENT HATCHER: I mean why can you not do that?

PN384

MR COOPER: No, you can't do that.

PN385

VICE PRESIDENT HATCHER: Why not?

PN386

MR COOPER: Because you have agreed to a salary in excess of 20 per cent and that's your salary.

PN387

VICE PRESIDENT HATCHER: No, I am saying the salary you have agreed to is $60,368. Then the employer says in addition to your salary I am going to make you a special payment of $2,000 a year which will buy out your annual leave loading. Why couldn't an employer do that? But it's not part of their salary, it's a separate identifiable payment, just like they might give them a car allowance or a car or a phone or something like that.

PN388

MR COOPER: The only areas we see that in practice is people who are very high income earners who are still classified correctly as general managers at a certain classification level, but the parties have done a contract that sits on top of the award and says we have calculated 17 and a half per cent in the salary we are going to pay you, but I have not come across an instance where someone on a 20 per cent exemption is given a separate identifiable amount to compensate them for a 17 and a half per cent loading. I believe that could not be done.

PN389

VICE PRESIDENT HATCHER: I am just trying to understand why could it not be done, if it's clear that the payment is not part of your salary but as a separate amount?

PN390

MR COOPER: Because the whole idea of in excess of, the 20 or 50 per cent, is that the parties have agreed to a monetary amount that's in excess of that, and whilst there's some clubs in the different jurisdictions that may sit strictly with the minimum of the 20 per cent other jurisdictions, particularly in New South Wales, pay a lot higher to attract level 7 managers for example.

PN391

VICE PRESIDENT HATCHER: It wouldn't have to be 20 per cent. Let's say level 7 they said your salary is $75,000 a year, plus we're going to give you $2,000 a year special payment to buy out your annual loading. Why couldn't you do that?

PN392

MR COOPER: I could see if it was clearly written as a variation to their conditions of employment it may be achievable, but I am giving an honest answer, I haven't seen it, only for high income earners.

PN393

VICE PRESIDENT HATCHER: All right. Thank you. Anything else, Mr Cooper?

PN394

MR COOPER: We were going around and around in circles, but I honestly believe that these conditions should not be removed from club managers, the payment method of the annual leave loading or the exemptions as such. They're the two issues. As I say again they're long standing conditions and should not be removed just because the employers have taken a view that in principle we don't like people getting those conditions, and it has worked effectively for the last ten years.

PN395

VICE PRESIDENT HATCHER: Thank you.

PN396

MR COOPER: Thank you.

PN397

VICE PRESIDENT HATCHER: Mr Kenchington-Evans, do you want to say anything about this issue?

PN398

MR KENCHINGTON-EVANS: Yes, I do, thank you, Vice President. I will try and give the perspective of non-managerial employees. The intention as I understand it of CAI here is to avoid paying above award base rate, of having the loading applied to above award base rates, and I am looking at the proposed amendment, the proposed alternative clause 25.2. For non-managerial employees on the award that wouldn't have - few if any of them, I think it's unheard of, have wages paid above the award. They don't contract above the award. So being paid an NES base rate of pay, or having their rate of pay be determined - referred to the award wouldn't lead to, I think, a reduction in wages. So I don't conceive of how that would reduce their pay. However, it is a confusion and a different test to add into the mix that I think goes against the intent of the award in how it incorporates the NES into the leave provisions.

PN399

So just looking at this award and the hospitality and the restaurants award (indistinct) annual leave, personal leave, paid parental leave, there's a consistent reference to the NES, and losing that I think would confuse employees. To require them to be paid their annual - be mindful of an NES base rate of pay their annual leave payments, but then to apply - to need to look up a different test and be (indistinct words), that's confusing, and where I am getting to is this; I think that introduces a mischief into the award that isn't the intent of this CAI. I think that their anxiety is that they're paying - again above award rates of pay are being incorporated into a loading.

PN400

I think a different wording would be more appropriate so that it doesn't affect non-managerial employees, and if there's a contest between CMAA and CAI about that let that be had, but here the amendment would just affect the way the award is read for non-managerial employees, which I don't think is the intent of the CAI, but it does add - compared to the other leave provisions in this award it changes a reference to the NES. Compared to the other awards that are similar to this award it removes a reference to the NES, and I don't think that's the intent of the CAI, but it is a sort of a mischief they introduce into the award.

PN401

VICE PRESIDENT HATCHER: All right. Thank you. So, Mr Moore, have we finished this issue. We have essentially now covered in that last long submission the definition issue of (indistinct).

PN402

MR MOORE: Yes, but in terms of - can I just follow up what the representative of the UWU just mentioned at the moment, your Honour, in the last set of submissions, and that is that in one part he is right in what he's saying is that if we are going to have an annual leave clause that applies to everyone we do need to make changes that are there to accommodate the position of the club managers. Your Honour really when you were in the discussion with Mr Cooper about whether it could be bought out has really identified the issue, and that's the issue that we raised. There is no way currently under the operation of this award that with the exemption rates club managers you can reach a position of buying out annual leave loading, because they get annual leave loading on exactly the same basis as they get paid their annual leave.

PN403

VICE PRESIDENT HATCHER: No, because if annual leave is specified as a separate payment then it falls within section 16.1(e).

PN404

MR MOORE: Yes, but what I am saying to that, your Honour - - -

PN405

VICE PRESIDENT HATCHER: (Audio malfunction) the calculation of annual leave and it's not included in the calculation of the loading.

PN406

MR MOORE: Yes. This is the issue of the perspective and how you look at it. There's no problem in an administrative sense if I went into a contract with someone of paying them in my pay office because I know what I have agreed to. An example that was given you just take the salary and divide it by 52 divided by 38. That oversimplifies things and really it's a tail wagging the dog type of argument. You come to the position from the contract perspective and try to fit the award to it. It's not the other way - the proper way of dealing with this is you come from the award position and you go and deal with the contract position. There is no salary in this award, and while that was all happening I had a look at the provisions that applied in the transitional instruments. The transitional instruments concerning annual leave loading, and I have made mention of the Victorian and Queensland position, under the clause that applied there - this is the provision for annual leave for the exempted rate people:

PN407

Prior to commencing a period of annual leave the employee shall receive a loading of 17 and a half per cent, calculate the appropriate ordinary time rate of salary prescribed in clause 13.2.1 classifications and wage rates.

PN408

I pause there - the minimum rate.

PN409

VICE PRESIDENT HATCHER: But, Mr Moore, what's the relevance of this? The (indistinct) Bench decided ten years ago not to adopt that provision.

PN410

MR MOORE: What we are saying is that when the Bench adopted the position it did there was a cap on annual leave loading payments for club managers across the three awards that applied; that is the Federal award in Victoria and Queensland, and the New South Wales NAPSA and the ACT award. In fact the provision that was made in the Federal award that applied in Queensland and Victoria said that the deemed rate for annual leave loading if you are an exempted person was the 20 per cent level and not the 50 per cent level. It goes on:

PN411

Or where applicable the salary rate payable is prescribed in 13.5.1.

PN412

And that was the 20 per cent level, because at a second one 13.5.2 which was for the 50 per cent level, and so whether you were on 20 per cent or whether you were on 50 per cent you got paid when you were on your annual leave under the award as an annual leave loading the 20 per cent exemption rate. It was capped. What the Full Bench did and what the objection of CAI is at the moment is that the Full Bench didn't take account there was a cap, such that if there was a cap, and take it this way, your Honour, take the top grade of level 13 with 50 per cent on it - - -

PN413

VICE PRESIDENT HATCHER: Why should we assume that the award modernisation Full Bench failed to take account of something?

PN414

MR MOORE: In terms of it - when you say that they failed to take account of it the whole question of this is a review of the operation, and what we're saying is a review of the operation consistently tells us that when we deal with the higher level club managers such as identified in the remuneration survey for the reason that Mr Cooper answered you the way he did we can't buy it out because it's not an excluded matter. We could have paid over the award before because it was capped. We could have paid a capped amount in the salary and it would have satisfied, but they just left it open, and what it says it's almost like the Hotel California clause, you can check out any time you look, but you can't leave.

PN415

I could be paying these people - when I say I my client could be paying these people through their members a level, at the high income threshold level which would be 140 per cent or more above the maximum rate for a level 13, and they would still be obligated under this award to pay to them an annual leave loading based on the NES payment, and they could never buy it out because it's not an excluded matter, and so that's the chain that is created.

PN416

VICE PRESIDENT HATCHER: Mr Moore, if an excluded matter why would they buy it out, it's already gone?

PN417

MR MOORE: What they would do is if you have got - if it is the 1.68 per cent figure that I have identified to your Honour, and someone was getting paid the higher threshold, which I think at the moment, what, is 150,000-odd plus, we would still have to pay 17 and a half per cent loading, so that employee could never buy it out.

PN418

VICE PRESIDENT HATCHER: That's not true because the award wouldn't apply to you.

PN419

MR MOORE: The award would apply to us in terms of annual leave loading, and it applies to us in terms of high income threshold people, because there's no exclusion of them. What I am saying, your Honour, is this; when you go back and look at the transitional awards there are three levels and scales of salary. There is the base level. There was originally in the Queensland and Victorian award the 20 per cent level and there was the 50 per cent level. In the New South Wales and ACT transitional instruments they were respectively 30 and 50, and there was a transitional means of adjusting from 30 down to 20. That was given by the Bench.

PN420

VICE PRESIDENT HATCHER: Just deal with these high income people. Unless I am very much mistaken section 47(2) provides that the modern award does not apply to a high income employee.

PN421

MR MOORE: I am sorry, your Honour, I was just getting some instructions, could you just repeat that again.

PN422

VICE PRESIDENT HATCHER: I am just drawing your attention to section 47(2) of the Act.

PN423

MR MOORE: Yes. Thank you, I will just get that. Yes, and I think you're right what you point out there, your Honour, but there is no way these managers can be high income employees under the definition that you find in the Act, I think it's at 320 - - -

PN424

VICE PRESIDENT HATCHER: 329.

PN425

MR MOORE: 329. Let me just go there, because I think this is the problem. It comes about, I think it's a combination when I looked at it, your Honour, between the operation of 329 and 332, earnings. Is your Honour waiting for me to come back?

PN426

VICE PRESIDENT HATCHER: You made the proposition that it's impossible for a club manager to be an employee to which section 47(2) applies. I just asked you to explain why that was the case.

PN427

MR MOORE: Let me just - - -

PN428

VICE PRESIDENT HATCHER: I am only raising this because you kept on saying you have got these high income people above the threshold who we can't buy annual leave for, and unless you persuade me otherwise I would have thought those persons are persons to whom a modern award does not apply, so that there's no obligation buying any leave out. You're muted again, Mr Moore.

PN429

MR MOORE: No, I have just - in terms of it you can, but it's a very convoluted process I think in terms of it because you have to give guarantees.

PN430

VICE PRESIDENT HATCHER: Yes, like a salary.

PN431

MR MOORE: Sorry?

PN432

VICE PRESIDENT HATCHER: Like a contracted salary. That's the guarantee.

PN433

MR MOORE: In terms of it it would be even clearer in the award if you actually said that it does not apply to club managers paid in excess of the high income threshold, because you would achieve the same result and then it would be on a certain basis. See at the moment you're depending on the individual clubs - - -

PN434

VICE PRESIDENT HATCHER: You advanced the proposition the clubs can't have managers to whom section 47(2) applies. I am asking you to explain why that is the case.

PN435

MR MOORE: I'm just looking at it now, your Honour, in terms of it. You would have to give the annual guarantee, but it's a question as to whether - it's a way in which, and I looked at it before, it's a question of how the overtime provisions are guaranteed because they're taken out of the overtime provisions. It's not as clean - what I am saying, your Honour, there's an able way you might be able to do it, but it comes against a way because it requires an interpretation to be made about how the earnings are calculated because you can't calculate any amount that has not been specified at the moment, or determined in advance.

PN436

In terms of it you say to me this is salary, you can do it, but you're well below the high income threshold when you're dealing with even the top level, level 13, plus 50 per cent of the award, because the high income threshold comes up to something like 140-odd per cent. You're talking about reaching - again it's a question of perspective and I don't say this in any other way - it's a question if you look at the contract working backwards as opposed to the operation of the award setting a minimum safety net provision, you may be able to on an individual level do it within the clubs.

PN437

I will just accept that proposition for the moment for the purposes of the argument, but if your Honour was putting to me all people who are paid at a high income threshold are outside the coverage of the award, well that can be made absolutely certain in the award, even if that is the operation of the Act, by taking all the high income employees out of the coverage, but where the salary paid is above the high income threshold there is no entitlement to the provisions of the award, and then they left the contract above. But the other position that I was saying to your Honour was when you look at all the transitional instruments in the way it which it's gone on - - -

PN438

VICE PRESIDENT HATCHER: That submission ignores the difference between coverage and application.

PN439

MR MOORE: Yes.

PN440

VICE PRESIDENT HATCHER: We can determine the coverage of the award, we can't determine its application which is a matter of the Act.

PN441

MR MOORE: Yes. What I'm saying - I might have used the phrasing wrongly, your Honour, in terms of you could have made a coverage clause in this award, the total exclusion of anyone who was paid higher than the high income threshold. You're correct in what you're saying to me, there was an exemption within the award previously for people who were in small clubs under $500,000. Yes, you could exclude from coverage, but - - -

PN442

VICE PRESIDENT HATCHER: (Audio malfunction) of their unfair dismissal rights.

PN443

MR MOORE: Yes, it would apply to them for unfair dismissal if the Act applied to them, but it would not apply to them if they were not covered. The question you raised - I did look at the position that your Honour raised with me, but it comes down to the more lower levels as well. There's a high number of people that are over, but if the annual leave loading was an excluded matter for people who are getting 20 per cent and over the practicalities that they get those things under contract now is they suffer no loss. The real issue is not to try and protect the contractual or over award positions, but to set a standard in the award that is the minimum safety net. You know, it seems strange that in the example that I can give quite easily that you can actually buy out someone between zero and 20 per cent if you apply (indistinct) under Ray v Radano, but you can't buy out anyone above the 20 per cent.

PN444

VICE PRESIDENT HATCHER: Mr Moore, I simply don't understand the proposition that you can't buy it out.

PN445

MR MOORE: If you go - perhaps I go back this way, your Honour, and it tracks this way. If annual leave is paid on the basis of what the NES is and annual leave loading under the award is paid at the same rate as the NES you can't buy it out because you're under the award, you are obligated to pay to all employees an annual leave loading equal to whatever they get paid their annual leave in NES, and that includes the exempted managers. The only way you would be removed from that obligation would be for annual leave loading to be exempted in the exempted managers.

PN446

VICE PRESIDENT HATCHER: Why would you but it out if you were exempt from paying it?

PN447

MR MOORE: The position is you buy it out in essence this way in the award, because you say that a person at a 20 per cent level is getting a sufficient amount of salary to not have annual leave loading as an award entitlement.

PN448

VICE PRESIDENT HATCHER: I could understand that submission if you said we will add annual leave and we will increase it 20 per cent to 22 per cent or something like that. That would be a submission, but it seems to me you want effectively something for nothing.

PN449

MR MOORE: No. The position is there is nothing - the first question comes and it replies to a position, are we going to have any credence to the transitional instruments or not. If we are not going to have any credence to the transitional instruments then there is no argument that can be put that when the modern award was made there was a cap in place for annual leave loading. That cap was removed by the annual leave provision in terms of the payment of annual leave loading.

PN450

VICE PRESIDENT HATCHER: Mr Moore, they're only relevant if you were able to persuade us that the award modernisation Full Bench made an obvious mistake or didn't intend to do what it did, but absent any detailed examination of those proceedings the presumption would be that the modernisation Bench knew all these things and took into account the transitional instruments and deliberately did what it did.

PN451

MR MOORE: Yes, but what they're saying is where the error has occurred is this whole question of a difference between wages and salaries. There are no salaries in the award. There were in the transitional instruments. There were caps in the transitional instruments. There are no caps in the award.

PN452

VICE PRESIDENT HATCHER: Mr Moore, I think we have done this to death, we need to move on to casual fitness instructors.

PN453

MR MOORE: Which one was that, your Honour?

PN454

VICE PRESIDENT HATCHER: We need to move on to casual fitness instructors. Do you want to say anything about that?

PN455

MR MOORE: Really we don't want to say much more on casual fitness instructors than what we have said in the submissions of 25 June where we track the history of the provision back, and really when you look at the transitional instrument it's not a casual employee's rate it's an hourly rate on hourly hire.

PN456

VICE PRESIDENT HATCHER: What's the distinction you are making for an hourly hire and casual employment?

PN457

MR MOORE: Well, the distinction is that an hourly hire employee was not a casual in the transitional instruments, your Honour. The casual employment provision in the transitional instruments from where this particular classification arose from required a minimum engagement of three hours, which is not part of this particular provision. It's an all up rate that is on the basis of each hour worked, and that's the historical part in the transition back that we trace and that's identified in the 25 June submissions, and really what we say is it's always been an all encompassed and all wrapped up rate, because in the variation that was made by, I think it was Deputy President Watson in 2010 when the provision was clarified by way of the notes, he describes it as an all purpose rate, it covers everything, including any inclination of the casual loading.

PN458

VICE PRESIDENT HATCHER: Yes.

PN459

MR MOORE: So what we say is when you track the history of this provision it was in some ways a strange provision, a provision that was used, and it didn't class an employee as a casual, it didn't class them as part-time or full-time, it just put them in the rate of pay, an all inclusive rate of pay for each hour worked, and so in terms of what we say is there's no question of getting loadings or overtime loadings on top of the rate that's in the award which is currently in the order of, I think it was $40-odd per hour.

PN460

It has been accepted from the time of the making of the award and also then the subsequent variation by way of the notes in 2010 that it's an all inclusive rate covering everything, and so that's why I use the description, your Honour, when you track back, it's an hourly higher type of rate in other words, and I think there was a cap on that they could not do more than 15 hours in a spread. As I say, your Honour, it's something that we don't address further than probably what is in the written submissions. It exists and it doesn't have any loadings or anything applied, it exists as an all purpose rate. That's why we say there's two ways of approaching it, but really its genesis is in relation to its creation as an hourly hire all up rate when you look at the transitional instrument from which it came, and that's the club employees state award which became the club employees NAPSA in the workplace relations work choices agreement.

PN461

VICE PRESIDENT HATCHER: Mr Moore, clause 70.6 doesn't say it's an all inclusive rate, it simply says includes special loading.

PN462

MR MOORE: Yes, and that's why we say that it's got to be - when you go to the actual variation that was made at the time of the modern award in the proceedings, and I think the transcript of the proceedings 2010 FWA transcripts 1588, the Vice President there said in paragraph 59:

PN463

'Yes. You say it is clearly the intention that has been an all up figure?' 'That's right, your Honour, encompassing all allowance and at least encompassing the casual allowance.'

PN464

And that was the way that it was - it's really discussed in a very short passage, Your Honour, between PN58 to PN63 of that transcript.

PN465

VICE PRESIDENT HATCHER: That clarified then what you were saying, or your client was saying, but is there a decision? Sorry, you have gone on mute, Mr Moore.

PN466

MR MOORE: I don't know whether my instructor wants to talk to me. Can you bear with me a moment, your Honour?

PN467

VICE PRESIDENT HATCHER: Yes.

PN468

MR MOORE: The issue that arises, your Honour, is that the notations that appear in the award have been taken out of the exposure draft as an all inclusive amount.

PN469

VICE PRESIDENT HATCHER: What notation? The current note says the hourly rate specified in this clause is inclusive of the 25 per cent casual loading in clause 10.5.

PN470

MR MOORE: Yes, and in terms of the current exposure draft at 18.4, your Honour, you don't find any references - - -

PN471

SPEAKER: The 25 per cent casual loading in 18.4(a), and that's not what we're talking about, we're talking about penalty rates.

PN472

VICE PRESIDENT HATCHER: I heard that comment, and it's perfectly obvious that the award never excluded penalty rates for these employees, does it? The inclusive of the loading is incorporated in 18.4(a) (indistinct), so you don't change in that respect.

PN473

MR MOORE: Yes, but the provision that comes with it is that it was only ever - you know, you reach a bizarre position, your Honour, that you've got a $49.15 rate, hourly rate, but you don't apply penalty provisions to it when it was never the intention of doing it because the intention from the original instrument was - - -

PN474

VICE PRESIDENT HATCHER: But, Mr Moore, what's the intention you're talking about? There was a specific decision made about this which was altered in specific variation. Where is this intention coming from?

PN475

MR MOORE: Before there was no entitlement if you say they were casuals, your Honour, to any overtime or the like or anything.

PN476

VICE PRESIDENT HATCHER: Perhaps there was or there wasn't, but we're talking about the awards that existed for the last ten years. That is it seems to me that there was a deliberate variation to, and a note which made it clear that it included the casual loading, but beyond that I don't understand why you say anything else was intended.

PN477

MR MOORE: In terms of it - I have looked for it, but the transcript that I identified to your Honour is at PN99, the Vice President does say:

PN478

I will issue a determination in my chambers reflecting those changes (indistinct) opportunities. These proceedings are now adjourned.

PN479

And I looked for the determination and one cannot find it, but he's quite clearly of the view it covers all purposes, it's an all purpose payment.

PN480

COMMISSIONER BISSETT: Mr Moore, didn't the Full Bench, the finalisation Full Bench deal with the transcript from that proceeding and suggest that Vice President Watson didn't actually say what you claim he says?

PN481

MR MOORE: I can't comment one way of the other, Commissioner, on that at the moment. You're in a much better position than I. You know what was or was not said at that time. I can't assist - - -

PN482

COMMISSIONER BISSETT: No, I mean the Full Bench that has been sitting over the last six or eight months to try and wrap up the majority of the awards under review.

PN483

MR MOORE: Excuse me a moment, I am getting some further instructions. Commissioner, in answering your question Mr Ushakoff was I think involved in the proceedings that you're referring to and advises me that the whole of the history of the provision was tracked, and in earlier submissions that were filed on behalf of my client on 31 January 2020 the full gamut of the history of the clause was identified, including the various omissions that were made to various notations and the like, and really the position that was expressed. It was clear that there was no discussion of penalty rates before the Vice President in 2010, but I understand it was also clearly identified that it was intended to be an all inclusive rate.

PN484

VICE PRESIDENT HATCHER: Intended by who?

PN485

MR MOORE: Intended by the modernisation - - -

PN486

VICE PRESIDENT HATCHER: Where do you get this intention, that is the intention - the award says diametrically the opposite. Clause 10.5(e) makes it clear that all casual employees (indistinct) overtime in specified circumstances. Where do we get this contrary intention from?

PN487

MR MOORE: Rate of pay, the minimum all up rate of pay should be set out in table 1 rates of pay. No penalty or weekend payments of any type will apply. The actual hourly rate shall be negotiable on a club by club basis from the transitional instrument.

PN488

VICE PRESIDENT HATCHER: What has that got to do with it?

PN489

MR MOORE: It appeared in the first sets of drafts and exposure drafts in the modernisation award and then dropped out.

PN490

VICE PRESIDENT HATCHER: Yes. Presumably somebody intended for that to happen. That is you would have to demonstrate that there was some (indistinct) error, distinct from something that somebody in the award modernisation Bench deliberately did.

PN491

MR MOORE: It's not a matter of deliberately did, it's a question of tracking through as to what the intention of the payment, why is the payment $49 and something odd in the award. It was designed to be an all inclusive all purpose payment.

PN492

VICE PRESIDENT HATCHER: Designed with respect by who?

PN493

MR MOORE: By the parties to the award when the notation was omitted in the award drafting. That's what led to the second set of proceedings in front of Watson, the Vice President.

PN494

VICE PRESIDENT HATCHER: Yes, but with respect a notation is added and it only talks about the casual loading. There's no reference in the notation to anything to do with overtime.

PN495

MR MOORE: It doesn't say that it's just the casual loading, he said it includes everything including the casual loading.

PN496

VICE PRESIDENT HATCHER: You have already said that, Mr Moore. I am not sure repeating back what people say in transcript is meant to be taken as demonstrating the intention of the decision-maker.

PN497

MR MOORE: The other points that we made, and we did make other submissions on and they're referred to, which is in the submissions that were filed on 31 January 2020 where it's all tracked through. All that I am just saying to you, your Honour, is this, that the best that we have got to date, we have gone back and had a look at what the transcript and what the intention was as to what that rate is supposed to compensate, and the history of it is quite clearly identified in those submissions. I can't say any more than what I have said to your Honour in that regard.

PN498

VICE PRESIDENT HATCHER: All right. Thank you. Does anyone want to say anything further about this issue? Mr Kenchington-Evans, are you still there?

PN499

MR KENCHINGTON-EVANS: Thank you, Vice President. I will refer to our submissions by my late comrade Steve Bull from 31 January and 14 February, but if it assists just in terms of tracking that earlier award, the creation of the award, there's an alternative sort of - there's a timeframe that's provided in our 14 February submissions where - maybe one thing that I will draw your attention to is that Clubs Australia Industrial has made an application after the creation of the award where they address ambiguities and errors, and at that point there was explicit contemplation of this issue and - sorry, one moment - - -

PN500

VICE PRESIDENT HATCHER: You say this is the 14 February submission?

PN501

MR KENCHINGTON-EVANS: Yes. At paragraph 11 - I think we - - -

PN502

VICE PRESIDENT HATCHER: I can see that.

PN503

MR KENCHINGTON-EVANS: I will just repeat - I won't read it out to you, but some of the observations in that paragraph I think are a response to some of the - CAI trying to draw some inferences from what did or didn't happen, but I think it's as possible to draw alternative inferences that there was an intention for the status quo.

PN504

VICE PRESIDENT HATCHER: Yes, all right. Thank you. All right, so we are finished with that issue?

PN505

MR KENCHINGTON-EVANS: Yes.

PN506

VICE PRESIDENT HATCHER: All right. Thank you. Have we addressed all the outstanding issues, Mr Moore? Your microphone is off, Mr Moore.

PN507

MR MOORE: I apologise for that. I am still getting used to the new world, your Honour.

PN508

VICE PRESIDENT HATCHER: Yes. Have we addressed all the issues now?

PN509

MR MOORE: I think we may have. The only other matter was that matter concerning the payment for the public holiday which we identified in the CMAA that it was not pressed, and we had made submissions about it in writing, and I think that might be the only other matter. If you can just bear with me a moment, your Honour, I will just go through. We have discussed the annual leave, we have discussed the minimum rates, and we have discussed the definition. The only other definition is this whole question, I don't know whether it has been ventilated to a sufficient degree on this question of the ordinary hourly rate change put forward by the CMAA. We say there shouldn't be a change for the reasons that's stated within the submissions. I don't know whether that has been fully ventilated, but it seems quite straightforward in line with the other submissions that we have made elsewhere about what the effect of 18.5 is.

PN510

VICE PRESIDENT HATCHER: Yes, all right. Mr Cooper, do you want to say anything more about that?

PN511

MR COOPER: Yes, just briefly. I think how it's being interpreted now without the clarification of including the exemption payments works quite well, because as I indicated before how you calculate the minimum hourly rate is by working backwards. I just put that in there as a submission or a suggested - to put it beyond doubt that when you're looking at the minimum hourly rate that it's inclusive of those all inclusive salary rates. So it was just for clarity purposes. There hasn't been any significant problem in that regard. We have had one club that questioned it, but that was quickly sorted out. That was the purpose, to assure people of clarity of how that was to be applied. That's all I say on that point.

PN512

VICE PRESIDENT HATCHER: Thank you. All right, if there's nothing further we thank the parties for their submissions and we will reserve our decision and adjourn.

PN513

MR COOPER: Thank you.

PN514

MR KENCHINGTON-EVANS: Thank you.

PN515

MR MOORE: Thank you.

ADJOURNED TO A DATE TO BE FIXED [1.15 PM]