TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 36797-1

SENIOR DEPUTY PRESIDENT HAMBERGER

AM2010/228 AM2010/230 AM2010/233 AM2010/243

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

Application by West Trend Hairdressing
(AM2010/243)
Hair and Beauty Industry Award 2010

(ODN AM2008/10)
[MA000005 Print PR985115]]




Sydney

2.16PM, MONDAY, 10 JANUARY 2011

PN1

THE SENIOR DEPUTY PRESIDENT: We might take the appearances. I think, basically, we'll start here in Sydney and then we'll go to Adelaide, where I think most people are. My understanding is we don't actually have anybody in any of the other locations, so we'll start here in Sydney.

PN2

MR B. BRIGGS: Briggs, initial B, from Australian Business Industrial. I am present in relation to 233.

PN3

THE SENIOR DEPUTY PRESIDENT: So that's - just to be clear, 223 is both the school based apprenticeships - - -

PN4

MR BRIGGS: It is the school based apprenticeships. We're proceeding to be heard on the school based apprenticeships. We don't have any submissions on the consecutive days - - -

PN5

THE SENIOR DEPUTY PRESIDENT: Okay. Fine. Okay. Thanks. In Adelaide, who have we got? Who wants to go first?

PN6

MS S. MORTON: My name is Shelley Morton from Hair and Beauty SA.

PN7

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN8

MS T. CRUICKSHANK: My name is Tarnya Crookshank from Business SA.

PN9

MR H. WALLGREN: Henrik Wallgren from Business SA.

PN10

MR B. CAGNEY: Brad Cagney from the SDA Union.

PN11

MR D. BLAIRS: And Donald Blairs also from the SDA Union.

PN12

THE SENIOR DEPUTY PRESIDENT: Okay. Thanks. Look, this was a report back. I'm mainly interested in whether there have been any discussions between the parties about - can you hear me? We just lost your picture for a moment - about whether there have been any discussions. I don't know who is the best person to - Mr Cagney, are you the - - -

PN13

MR BLAIRS: I can report back my understanding. If people have a different view, I'm happy to be corrected. As I understand it, we are all in furious agreement in relation to the introduction of a school based apprenticeship schedule. The agreed position is essentially that we would agree to what we refer to as the model schedule, or the schedule which was approved by Fair Work Australia on around 3 April 2009. It was left off from the original round of agreement variations - sorry, award variations - where it was inserted into any number of awards. I'm not sure why it wasn't inserted into the hairdressers' award, or Hair and Beauty Award. I think it's fair to summarise that everybody supports the inclusion of that. We would be happy to proceed today, if you were so minded, to - - -

PN14

THE SENIOR DEPUTY PRESIDENT: Yes.

PN15

MR BLAIRS: - - - have that inserted into the modern award.

PN16

THE SENIOR DEPUTY PRESIDENT: Can I just confirm that that is everybody's view on that issue? There's no - and also Mr Briggs - - -

PN17

MS CRUICKSHANK: It is.

PN18

MR BLAIRS: Yes, that's correct.

PN19

MS MORTON: Yes, that's correct.

PN20

THE SENIOR DEPUTY PRESIDENT: Okay. Good. Okay. You were saying, on the other issue - - -

PN21

MR BLAIRS: Look, I should also note, for the sake of completeness, that Kate O'Connor from the AWU contacted me this morning. She had intended to appear today but unfortunately she has come down sick, so she's asked me to express her support for the application, as well.

PN22

THE SENIOR DEPUTY PRESIDENT: Okay. I mean, I must say I was sort of hoping that would be the outcome. I can't see any reason why, even this is only a report back, given that this is already listed and - you know, I can't see any reason why I can't go ahead and actually make that variation. It does seem to have been just something that just slipped off, I'm not sure why, and I think that could be fixed up quite quickly. I don't think we need any further hearings or any further material on that question. So I'll do that. I think you can take that as - I'll have to issue a formal decision, I guess, to that effect, but I will make that variation.

PN23

On the other - obviously there's an issue about the consecutive days off, and so on. Have there been any discussions about the working time issues, or - - -

PN24

MR BLAIRS: There have been discussions. As I understand it, most of the parties appearing today have no submissions in relation to this particular issue. The SDA would still be opposed to such an application. We had some discussions with Ms Morton from the Hair and Beauty Industry Association in relation to this.

PN25

What we have suggested is if we could come up with a form which we thought was an appropriate, simple A4 one-page form that employees could use to request working on non-consecutive days, where it suited their particular individual requirements, and if that could then be used to comply with the requirements of 29.3, then perhaps there would be no need for the application to proceed.

PN26

That is a position that I think the Hair and Beauty Industry Association will need to sort out themselves if they were comfortable with that type of approach.

PN27

THE SENIOR DEPUTY PRESIDENT: Yes.

PN28

MR BLAIRS: That would certainly be our preferred position.

PN29

THE SENIOR DEPUTY PRESIDENT: Yes. So who wants to speak for the Hair and Beauty Association?

PN30

MS MORTON: Thank you. Shelley here. If we could actually have a form recognised by Fair Work, so that for employees and the employer, that that form would be recognised, so that when the Fair Work Ombudsman were to intimately select any hair and beauty salons, that the form would actually be recognised as an official document.

PN31

THE SENIOR DEPUTY PRESIDENT: Okay. I'm trying to think if there's any precedent for that. So you'd have - it would be like - it would actually need to be - it would probably need to be actually part of the award. I don't think that we've got any - you know, I don't think we've got any authority to sort of say - to give something any legal standing that wouldn't actually be, if you like, a part of the award. I'm just wondering whether there's any precedent for actually doing that. I mean, theoretically, one could have a schedule to the award that had a standard form, you know, especially if it was agreed by the parties to the award. I mean, I don't have a problem in principle. I think it's unusual. I'm just wondering whether it would be unprecedented.

PN32

MS MORTON: At this point, what happens with some employers, they could take the leeway of some wording and extend it out for their benefit rather than being for the employee's benefit. Also the problem that we initially had with the consecutive days off was, particular to the apprentice, when salons - the bulk of them are closed on a Sunday, and if you were to, say, have four apprentices of which they'd need to go individually to a training academy or to a TAFE, either on the Monday, Tuesday, Wednesday or Thursday, you wouldn't be able to have them all leave on the one, so therefore you'd have to scatter the days out.

PN33

So that's where we feel we would require something where employers weren't going to necessarily take the privileges away from the employees or the apprentice, as sometimes they - - -

PN34

THE SENIOR DEPUTY PRESIDENT: Yes, well, I - - -

PN35

MS MORTON: And they seem to be bullied.

PN36

THE SENIOR DEPUTY PRESIDENT: Yes, well - did anybody else want to make any comments on that?

PN37

MR BLAIRS: The only suggestion I could make is that - I would agree that there's no precedent from Fair Work Australia having approved a form or something along those lines. It may be dealt with via correspondence with the Fair Work Ombudsman, where this form is sent in, and we request the Fair Work Ombudsman to comment on it. If they then write a letter back, saying, "Yes, we're comfortable with this as being the appropriate form," then that might actually be a good way to deal with the issue.

PN38

THE SENIOR DEPUTY PRESIDENT: Yes. Obviously you'd still have to comply with the requirements of the act - of the award, sorry - and the - but it could be evidence that they would normally accept that it had been complied with. I guess, from my point of view here, the question is do I adjourn this for another period of time, to allow you to explore this option, or do I list the matter to actually make a determination?

PN39

I suppose what I think - I mean, I can't go on adjourning forever, but if this is an option that you want to explore - this idea of getting a form - it probably - it may make more sense were it to be something that the ombudsman sort of gives some kind of stamp of approval to, in which case it's something you'd need to take up with them. I don't know how long they'd take to actually respond, you know, and I could just leave the matter adjourned until then, or we can list it for a - and I'll make a decision on whether the award needs to be modified or indeed - yes, well, basically whether the award needs to be varied.

PN40

Look, it's the Hair and Beauty - well, there are a number of parties, but essentially it's the Hair and Beauty Association's application. Do you want me to adjourn it, or do you want me to list this for a determination?

PN41

MS MORTON: I think if you could list it for a determination. If we could - because at the moment Fair Work also have quite a few other forms, along with the NES, that maybe if we could actually insert this form into the NES rather than the award, so therefore it could be used for all awards.

PN42

THE SENIOR DEPUTY PRESIDENT: Sorry, when you say - you mean the NES - you mean the National Employment Standards?

PN43

MS MORTON: The National Employment Standards.

PN44

THE SENIOR DEPUTY PRESIDENT: But what are you referring to there when you refer to forms? When you say Fair Work, do you mean the ombudsman?

PN45

MS MORTON: Yes.

PN46

THE SENIOR DEPUTY PRESIDENT: Right. I mean, I can't make that - despite the similarity of our names, and this talk about us being a one-stop shop, the reality is we're completely independent of each other, and obviously I can't influence what they might agree to or what their timetable would be. All I can do is sort of basically adjourn this application, so you can then go on and talk to them and get this sorted out with them. Then you can let me know how that's going. If it's resolved through that process, then fine, and we can just - you can withdraw this application. Alternatively, I can list this - the original application you've got - for a hearing and make a decision on whether to vary the award itself.

PN47

MR WALLGREN: Senior Deputy President, Henrik Wallgren from Business SA. We would prefer it if that could be listed separately. The reason why is that I think there is a risk that we set a precedent to include forms in one award then we see the same development in other awards, with specific forms.

PN48

THE SENIOR DEPUTY PRESIDENT: Yes.

PN49

MR WALLGREN: I would like to think that keeping the required documentation is the responsibility for the individual business and they should endeavour to keep the documentation in any form they see fit, to be able to show compliance with the award. I wouldn’t want to see a development whereby forms are inserted in all modern awards.

PN50

THE SENIOR DEPUTY PRESIDENT: Yes. So what do you want me to do? I didn't quite - what do you want me to do?

PN51

MR WALLGREN: Okay. I would prefer it if we could discuss this, I suppose, separately; in a separate hearing, just for the form, and give everyone the opportunity to provide submissions in relation to that aspect.

PN52

THE SENIOR DEPUTY PRESIDENT: Yes. But hang on. So I'm not going to - well, I mean, I can, I suppose, but - well, it's not my - I mean, I can just adjourn this hearing - this proceeding - - -

PN53

MR WALLGREN: Okay.

PN54

THE SENIOR DEPUTY PRESIDENT: - - - while you go off and talk about the forms.

PN55

MR WALLGREN: Yes.

PN56

THE SENIOR DEPUTY PRESIDENT: Quite frankly, I mean, I could also even attempt to sort of get some - I'm a little bit worried that all this is - with no disrespect; indeed it probably is a compliment to you that all of this is coming out of South Australia, but, realistically, it's a national award - - -

PN57

MR WALLGREN: Yes.

PN58

THE SENIOR DEPUTY PRESIDENT: - - - and obviously the ombudsman will have the same view as me, which is that, you know, any agreement would need - it's going to have national implications, and he'd want to know what other people in other states think.

PN59

MR WALLGREN: Yes. I mean, as I say, if the Senior Deputy President wants to make a decision today to react the inclusion of the form, that's something we would support.

PN60

THE SENIOR DEPUTY PRESIDENT: Sorry, it is something you would support, did you say?

PN61

MR WALLGREN: Yes. If the decision is not to include it, that's something we would support.

PN62

THE SENIOR DEPUTY PRESIDENT: Yes.

PN63

MR WALLGREN: In other words, we wouldn't want to see the form included in the award.

PN64

THE SENIOR DEPUTY PRESIDENT: Yes. I guess, though - I mean, you could obviously go down that form - well, okay. Look, the question is, do you want - actually, just having a look who the - there are a number of different applicants. Basically the Hair and Beauty Association was actually the applicant.

PN65

MS MORTON: Yes.

PN66

THE SENIOR DEPUTY PRESIDENT: I guess the question is, do you want me to - what I'm trying to get from you is, do you want me to adjourn this for another period of time, while you explore some resolution with the SDA and the ombudsman, or do you want me to list the matter - your original application to actually change the award, do you want me to list that and deal with that? It's really up to you. It's your application. I mean, I'm always happy to encourage people to talk to each other, but - - -

PN67

MR BLAIRS: The position of the SDA, I think, would be that we would support Business SA in saying we would be uncomfortable with a form being inserted into the award. If there is a scope for the Hair and Beauty Industry Association being comfortable with, perhaps, correspondence with the ombudsman, saying, "Well, look, a form in this form, or a request in this form, we would consider complying with section 29(3) of the award," and that was sufficient, then we would suggest that's probably the most efficient way of proceeding with this.

PN68

THE SENIOR DEPUTY PRESIDENT: Yes.

PN69

MR BLAIRS: If what the Hair and Beauty Association are saying is that they do want something in the actual award, then I would suggest that we do need to proceed to a hearing and have the matter determined. From what I understand - and I'm not trying to put words in your mouth, Shelley - if you had something in writing from somebody, to say that they were comfortable with this form, then you wouldn't proceed with the application.

PN70

MS MORTON: Correct.

PN71

THE SENIOR DEPUTY PRESIDENT: Okay.

PN72

MR BLAIRS: On that basis it would seem to make sense that we adjourn for perhaps a month or until you are notified or the commission is notified - - -

PN73

THE SENIOR DEPUTY PRESIDENT: Yes. That's what I think, Ms Morton. Would you be okay for me to adjourn this - adjourn your application - - -

PN74

MS MORTON: Yes.

PN75

THE SENIOR DEPUTY PRESIDENT: - - - in relation to the consecutive days off, and you to then let me know whether you want the matter relisted or whether in fact you've resolve the matter, and you're happy to withdraw your application.

PN76

MS MORTON: Yes. Okay.

PN77

THE SENIOR DEPUTY PRESIDENT: Is that okay with you?

PN78

MS MORTON: Yes, we agree to adjourn.

PN79

THE SENIOR DEPUTY PRESIDENT: Okay. Now, there were some other applications that were listed. I'm just trying to - but there doesn't appear to be - there were a couple of individual hairdressers. I'm just trying to remember. There was the MDL - we don't have anybody from Perth. We did have an application - this is AM2010/228 - which was a proposal - no, actually, this covered off the issue. This is on the same issue, isn't it - - -

PN80

MS MORTON: They are around the same issue as the consecutive days off, as was (indistinct) around consecutive days off.

PN81

THE SENIOR DEPUTY PRESIDENT: Yes. Somebody else put in something about a different classification or something as well, though. I'm trying to think who that was. There was very little in it. There was very little to explain what it was they were seeking. I don't know if this is - is this from Melbourne? It was the West Trend Hairdressing. This is 2010/243. Just let me have a look.

PN82

Ms Hallinan, who - she wanted an extra pay category. I'm not entirely sure what she was after, but it did seem to be wanting an extra sort of classification for a sort of more junior - a person who had actually completed cert III but who I think she didn't think was fully qualified, basically. That's the way I read it. But she's not here, so we'll have to find out whether she really wants to proceed with that application or not. Has anyone got anything to say about that? Have you had a look at it or - - -

PN83

MS MORTON: No. Thank you.

PN84

THE SENIOR DEPUTY PRESIDENT: Okay. Look, on that basis, I think if I - I've already indicated that I'll go ahead and vary - that's really also what you're here for, isn't it, about that matter?

PN85

MR BRIGGS: It is, yes.

PN86

THE SENIOR DEPUTY PRESIDENT: I'll go ahead and vary the award, and put the model clause in, in relation to school based apprenticeships. I'll adjourn the consecutive days off issue, and I'll await notification by the Hair and Beauty Association about whether they want the matter relisted or whether they want to withdraw it, to enable you to have further discussions and explore this idea of having some kind of form agreed, I guess, with the SDA, and maybe with some kind of endorsement from the Fair Work Ombudsman. So is there anything else? Have I missed anything out? Anybody in Adelaide have anything?

PN87

MR BLAIRS: No.

PN88

THE SENIOR DEPUTY PRESIDENT: I think that probably covers everything. Okay. On that basis, then we'll adjourn.

<ADJOURNED INDEFINITELY [2.35PM]