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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 27437-1
VICE PRESIDENT WATSON
AM2010/102
s.158 - Application to vary or revoke a modern award
Application by Williams
(AM2010/102)
Social, Community, Home Care and Disability Services Industry Award 2010
(ODN AM2008/79)
[MA000100 Print PR991066]]
Sydney
11.05AM, MONDAY, 9 AUGUST 2010
THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA
VIDEO CONFERENCE AND RECORDED IN SYDNEY
Reserved for Decision
PN1
THE VICE PRESIDENT: Can I have the appearances, please, commencing in Darwin.
PN2
MR R. WILLIAMS: Thank you, your Honour. My name is Robert Williams, I am employed by the Salvation Army as a human resource consultant, but this application to vary is being made on a personal basis.
PN3
THE VICE PRESIDENT: Yes, thank you, Mr Williams. In Melbourne?
PN4
MR J. NUCIFORA: Tribunal pleases, I appear for the Australian Services Union, Nucifora, initial J.
PN5
THE VICE PRESIDENT: Thank you, Mr Nucifora. Yes, Mr Williams?
PN6
MR WILLIAMS: Your Honour, with the change to the modern awards, Torres Strait Islanders are being discriminated against. The Torres Strait Islander Act of 1939 recognised Torres Strait Islanders as being a distinct group of indigenous Australians, apart from Aboriginal Australians and, if I could refer to another act, the Federal Racial Discrimination Act of 1975 section 15, where it says:
PN7
It is unlawful for an employer to afford a second person the same terms of employment, conditions of award, as are made available for other persons having the same qualifications and employed in the same circumstances on work of the same description.
PN8
I have left some words out of that section, your Honour, but that's the background to it. In the community services sector, which covers a large group of people and employees, large numbers of both Aboriginal and Torres Strait Islanders, there was a clause 28 that gave special leave for people for indigenous custom and traditional law. So that allowed people to - time off from work and paid, with the employer's approval, to participate in ceremonial activities. In the new modern award, the clause 35, "Ceremonial leave", says:
PN9
PN10
Thus, in the modern award, ceremonial leave is only granted to Aboriginal people and not to Torres Strait Islanders who, by their culture - to have a range of ceremonial activities that people are expected to attend. Therefore, the modern award, MA000100, is in contravention of the Racial Discrimination Act 1975. Thank you.
PN11
THE VICE PRESIDENT: Which was the previous pre-reform award that you mentioned?
PN12
MR WILLIAMS: It's the Social and Community Services Industry - Community Services Workers - Northern Territory 2002. So, your Honour, in that time, each of the states or territories were covered by what they call the "SACS", the acronym, and those words were very similar, but there is a separate award for each state.
PN13
THE VICE PRESIDENT: So you're saying - - -
PN14
MR WILLIAMS: The NT - - -
PN15
THE VICE PRESIDENT: - - - that there was a clause in similar terms that extended the benefit to Torres Strait Islanders - - -
PN16
MR WILLIAMS: Yes.
PN17
THE VICE PRESIDENT: - - - in each of the SACS awards that were replaced by the modern award?
PN18
MR WILLIAMS: Correct, yes.
PN19
THE VICE PRESIDENT: Was it a clause headed Special Leave, or something similar?
PN20
MR WILLIAMS: It was clause 28, Special Leave - Indigenous Custom and Traditional Law.
PN21
THE VICE PRESIDENT: That was in the Northern Territory award. What about in the other states and territories?
PN22
MR WILLIAMS: I believe it's the same wording, your Honour.
PN23
THE VICE PRESIDENT: Right. What section of the Fair Work Act is your application made under?
PN24
MR WILLIAMS: It's under 158, your Honour.
PN25
THE VICE PRESIDENT: What legislative test do you say is satisfied? 158 provides for the making of an application, but the power to vary would appear to be either 157 or 160.
PN26
MR WILLIAMS: I believe 157, your Honour.
PN27
THE VICE PRESIDENT: What's the basis under section 157 for granting the application?
PN28
MR WILLIAMS: That Fair Work Australia may make a determination varying a modern award.
PN29
THE VICE PRESIDENT: But, if you read on, FWA must be satisfied that making the determination, outside the four-yearly reviews, is necessary to achieve the modern award's objective. Do you see that?
PN30
MR WILLIAMS: Yes, your Honour.
PN31
THE VICE PRESIDENT: Why do you say that this variation is necessary to achieve the modern award's objective?
PN32
MR WILLIAMS: Because it contravenes federal legislation, your Honour, the Racial Discrimination Act 1975.
PN33
THE VICE PRESIDENT: Are all other ceremonial leave clauses - extend to Aboriginal and Torres Strait Islanders in all other modern awards?
PN34
MR WILLIAMS: Your Honour, there's only about - five of the modern awards have this special clause allowing ceremonial leave for indigenous Australians. I presume that is because those five modern awards have strong representation of indigenous people in the workforce. So it's a bit of an anomaly, on a larger scale, where some modern awards make provision for ceremonial leave and some do not. What I am presenting now is that, under the old award covering the community services sector, Torres Strait Islanders were allowed ceremonial leave, whereas they not under the modern award.
PN35
THE VICE PRESIDENT: I just wonder, by reference to what you say was the provision in all of the states and territories, whether there is, also, a basis for varying the award under section 160, in that, confining the entitlement to Aboriginal traditions and Aboriginal ceremonial purposes may have been an error.
PN36
MR NUCIFORA: Your Honour, I might (indistinct) may stay seated - - -
PN37
THE VICE PRESIDENT: Yes, Mr Nucifora.
PN38
MR NUCIFORA: (indistinct)
PN39
THE VICE PRESIDENT: Yes.
PN40
MR NUCIFORA: I concur, your Honour, with what you say about the grounds for the variation. It appears that there could have been - unintentionally by the parties and, ultimately, I guess, by the bench - an assumption that - well, unintentionally that the words were specific to Aboriginal, and we're talking about indigenous employees when, originally, there was an assumption - I would have thought (indistinct) that it covered the Torres Strait Islanders. I think, at one stage, in an earlier draft of this award, there was a definition of "indigenous" - or, Aboriginal employees did include Torres Strait Islanders. But it wasn't the intent, certainly of our union, to exclude Torres Strait Islanders and I don't know - I don't believe that that was the intent of the bench.
PN41
We're not opposed to the application. We have raised concerns about individuals lodging applications to vary this award, your Honour, but it seems that what Mr Williams is proposing could, certainly, remove, at least, an ambiguity or an uncertainty about the application of that clause. Sorry, I wasn't aware of this matter until today. We could provide further information to the applicant and, certainly, to Fair Work Australia, your Honour, in relation to the history of that clause in all the underlying awards. As I recall, not all of them actually refer, separately, to Torres Strait Islanders; a number refer to indigenous employees and Aboriginal employees, and there are, in some awards, a definition of what Aboriginal or indigenous employees were. So I'm not sure if it's of any assistance, that submission, your Honour, but we're certainly not opposed to the application being lodged.
PN42
THE VICE PRESIDENT: Well, I think the offer you've made, Mr Nucifora, is a good one. Would you be able to provide us with some of the history of the underpinning awards that have been replaced by the modern award, in terms of their position and, if there's more detail to the other submission you make about the definition in a previous draft or something of that nature, it may well assist establishing the grounds and, if the ground is under section 160, that there has been an unintended consequence that the intention of the clause - of the bench to reflect the pre-existing provisions has not been carried out, then that might be a basis for varying the award, with retrospect to give effect.
PN43
Although, I'm not too sure of the implications of that in the sense of a leave entitlement, but how long would you require - - -
PN44
MR NUCIFORA: Your Honour, I would like, certainly, to discuss that with the applicant. There's also a question of how we actually word the provision, if that's - if we find that, certainly, the underlying awards do have a particular definition for Aboriginal indigenous employees, we'd then propose a drafting of that. So I just wonder whether we can have a week to maybe - at least a week, to discuss that drafting and put together some history of this provision.
PN45
THE VICE PRESIDENT: Yes.
PN46
MR NUCIFORA: It's just the first time that we've turned our mind to this. We just, as I say, weren't aware that, in fact, that it could, certainly, be interpreted the wrong way. I just wonder - under the act, your Honour - I don't have the act with me, but there may be, in fact, a definition of "Aboriginal employee", as there originally was in this award - it's not in the definitions clause now, but I seem to recall that an earlier draft did have a definition of either, Aboriginal employees embracing Torres Strait Islanders or indigenous employees embracing Torres Strait Islanders. So that's something - we'd need, at least, a week, your Honour.
PN47
THE VICE PRESIDENT: Yes. What do you say to that, Mr Williams?
PN48
MR WILLIAMS: Yes, that is a very good offer, and thank you. I do come back to an acceptable wording, which is either "indigenous Australian" or "Aboriginal and Torres Strait Islanders". So I can not perceive how the word "Aboriginal worker" can cover both Aboriginal and Torres Strait Islanders. As I said, the Torres Strait Islander Act 1939 recognised Torres Strait Islanders as a distinct group.
PN49
THE VICE PRESIDENT: There's no provision of the Acts Interpretation Act, or anything of that nature, that expands the meaning of Aboriginal, for the purposes of legislation or similar instruments?
PN50
MR WILLIAMS: Not that I know of, your Honour.
PN51
THE VICE PRESIDENT: Okay, very well.
PN52
MR WILLIAMS: Your Honour, the Torres Strait Islanders - they are a minority group within a minority. There are possibly 6000 Torres Strait Islanders still living on the Torres Strait, another 42,000 living on the mainland, mainly in Queensland, some in Broome. So very often, legislators forget that they are a distinct group, so I can understand how this came about, but it should be remedied.
PN53
THE VICE PRESIDENT: Yes. Well, I think the offer you've made, Mr Nucifora, is something which would, certainly, assist me. I'd propose to adjourn this matter and reserve my decision. I don't see it as necessary to reconvene the hearing, but, Mr Nucifora, if you, as you foreshadow, could have discussions with Mr Williams and submit any further material in writing and, Mr Williams, if you can also confirm your position in relation to the written position of the ASU - or, if it's a joint position, well and good - I will then determine the matter on the basis of what's been said today and the written material submitted by the parties. Is there anything further anyone wishes to raise?
PN54
MR WILLIAMS: No, thank you.
PN55
MR NUCIFORA: No, your Honour. Thank you.
PN56
THE VICE PRESIDENT: These proceedings are now adjourned.
<ADJOURNED INDEFINITELY [11.21AM]