TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 63727-1

VICE PRESIDENT WATSON

AM2011/37

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

Application by P & P Holdings P/L
(AM2011/37)
General Retail Industry Award 2010

(ODN AM2008/10)
[MA000004 Print PR985114]]




Sydney

10.02AM, MONDAY, 10 OCTOBER 2011

PN1

THE VICE PRESIDENT: Can I have the appearances, please, commencing in Sydney.

PN2

MR P. ELLIOTT: Peter Elliott, P and P Holdings, your Honour.

PN3

THE VICE PRESIDENT: Yes, Mr Elliott, thank you. In Melbourne?

PN4

MS D.  DE MARTINO: Danielle De Martino, SDA.

PN5

THE VICE PRESIDENT: Yes, thank you, Ms De Martino. Yes, Mr Elliott, it's your application.

PN6

MR ELLIOTT: Yes.

PN7

THE VICE PRESIDENT: Do you wish to make submissions?

PN8

MR ELLIOTT: We have lodged the submissions which you would have received. Did you want me to go through the reason why we're here if that's the appropriate way or - - -

PN9

THE VICE PRESIDENT: Yes. What I might do is mark as an exhibit in the proceedings the outline of submissions that you have filed. That's the letter of 12 September?

PN10

MR ELLIOTT: Yes, your Honour.

PN11

THE VICE PRESIDENT: Yes. I'll mark that exhibit E1 in these proceedings.

EXHIBIT #E1 OUTLINE OF SUBMISSIONS DATED 12/09/2011

PN12

THE VICE PRESIDENT: The matter is listed for you to make whatever submissions you wish to in relation to your application.

PN13

MR ELLIOTT: All right. Well, I mean, why we're here, this represents small family bakers and pastry shops. As of January 2010 at the commencement of the National Employment Standards 10 minimum conditions were put in place. I won't go through all the 10. It's quite easy to know. When this happened we were told from Fair Work that we then now had to pay two paid 10-minute breaks which we previously didn't have in our award. We were under the Bakery Industry Award in Tasmania and these took place as of 1 January with no phasing-in period whatsoever. At that time it was a very stressful time as Fair Work couldn't tell us what award we should be under. We were told we could be in the wholesale award, hospitality award, or the retail award. On 9 January we got a letter - - -

PN14

THE VICE PRESIDENT: Mr Elliott, you're referring to the Fair Work Ombudsman, are you?

PN15

MR ELLIOTT: Yes. Well, when we ring up the Fair Work I think it's the Fair Work Ombudsman. Sorry.

PN16

THE VICE PRESIDENT: Yes. It's a different body to this one.

PN17

MR ELLIOTT: Yes, but we were ringing them up to clarify what we should paying under - - -

PN18

THE VICE PRESIDENT: Yes.

PN19

MR ELLIOTT: - - - because there was a lot of confusion prior to this of what award we were going to be under. There was very little negotiation with bakers and the Baking Industry Association of Australia tried to put in a submission to say that we needed our own award because of the differences in our businesses. Now, our businesses don't just start at 10 o'clock at night. Some start at 10 o'clock at night and some start at 12 o'clock. Some start at 2 o'clock in the morning. Some start at 4 o'clock in the morning and some start at, you know, 5.00 in the morning. Previously under the award I had my baker starting at 6 am in the morning.

PN20

When I found out that we couldn't work them until 7 o'clock in the morning, for the first part, when the awards came in, I said, "Look, we've got to pay a penalty on the whole shift," which is outrageous, when they're only working one hour. To pay 12.5 per cent, okay, it was 2 and a half per cent first, but on the whole shift for that one hour of work it was quite costly. After discussions with them they got back to me and they told me in 2011 that we could start them at 6 o'clock in the morning but there was a provision we could start them at 5 o'clock. At that stage we changed it to 5 o'clock under the conference call we had with Fair Work, and they were high up people, Catherine Haines and Curtis Brown from Fair Work.

PN21

THE VICE PRESIDENT: This is Fair Work Ombudsman?

PN22

MR ELLIOTT: Fair Work Ombudsman, sorry.

PN23

THE VICE PRESIDENT: These people were the ones who were going to administer the award and we wanted to make sure that we were paying under the right award, and so I sort of said to them, "Look, the Baking Industry of Tasmania are saying I can pay under the cafe or the hospitality side of the award," and with that I said, "Well, we do serve coffees but it's only a small proportion of our business," and they said, "No, definitely," Catherine Haines wrote back to us and said, "No, you're definitely in the retail award," so that's where we came with that. So we started paying the bakers at 5 o'clock in the morning. As of 1 July 2011, we rang up to clarify the rates of pay for overtime and Saturday penalties, so we were paying our staff the correct wage.

PN24

They then stated that we could not work the baker at 5 o'clock in the morning without paying penalties. So I rang Curtis Brown and say, "Look, you're head of this department. It's not good enough that we're not getting the right information. If my staff want to ring up and find out the rates to pay, or I want to find out the rates of pay, we should be getting the correct information. So he said to me that he couldn't - I said to him, "Can't you do something about it because it's confusing for your people on the phones and for yourselves, and it puts you under a lot of stress and businesses under a lot of stress to find out what award should they be under." So as of that, he told me to put an application in to you, which I have done.

PN25

Now, there is a precedent for newsagents to start at 5 o'clock in the morning under the award which we work under. Now, every person I have spoken to in Australia, and I have said that, "Newsagencies start at 5 o'clock, but if you're a baker you've got to pay 12.5 per cent loading." They just can't understand it. They just think we're in a different world. Now, my point was I did ask the SDA, I did put it to them after our first discussion in August, I think it was, that we just had a 12.5 per cent loading per hour. So that would mean if someone just started at 5 o'clock you're only paying per hour for that time, not on the whole shift. So just say, for instance, a newsagent just working over the road from me, starting his staff at exactly the same time, under the same award, I'm paying 12.5 per cent more than him in five years' time. At the moment it's 5 per cent, and I can't understand why I should be paying my staff more money than the people just over the road when they're doing a similar job.

PN26

The other thing is that our industry is not just retail. We are manufacturers. We get flour, water, yeast, make bread, meat pies and things. 90 per cent of our stuff is manufactured on the premises. We are actually manufacturers being placed into a retail award which doesn't suit us. A newsagent doesn't have to print the papers. The papers come already printed to them. They're not manufacturers, they're just straight retailers, so we have been placed in award that really doesn't suit us, and all I'm asking, if either we could have a 12.5 per cent loading per hour instead of the whole shift, or at least be able to start our staff at 5 o'clock, like I stated in my first application to you, Monday to Friday, and Saturday at 5 o'clock as well with no penalties, because I just think that would be fair, the fair thing to do.

PN27

I understand there was all these issues of all bakeries and that starting at different hours, but about 60 to 70 per cent of bakeries would start prior to 4 o'clock in the morning without paying penalties or per hour. Now we've been penalised for giving our staff good hours of work conditions. I put it to you, if you start work at 2 o'clock in the morning for two weeks, see what it affects your family life, your social life and all that. If you start at 5 o'clock in the morning, see the difference. The guy who is starting at 5 o'clock, the pastrycook, he has now actually split up with his fiancee. He now can go home, the kids are there when he gets home from school, and it's his family - he likes working those hours. But I then have to pay a penalty, even if we have an agreement.

PN28

The Fair Work Ombudsman told me I had to pay all the penalties on it, even if he agreed to starting work at 5 o'clock in the morning for his own family time, and he enjoys finishing work probably 12 o'clock on a Saturday for going, "Well, I've got all the jobs done," so he can have time with his family. Great family time. A great life. So he can see his children grow up, have time with his family. But we're being penalised. I really think I'll have to start him at 6 o'clock in the morning if things don't change which will make him work til 2 o'clock on a Saturday afternoon - later in the thing. He might not have a shower and get home by the time the kids get home from school.

PN29

So, you know, it's a - and the industry has changed in so many ways over the years. Many years ago the baking industry in Tasmania - probably about 20 years ago, we had to rewrite the whole award because there was bakery - bread things - bread awards, pastry awards, all different things. There were stupid things like after 4 o'clock in the afternoon you had to pay double time. At one stage we were working a guy 9.00 til 5.00 and we found out we had to pay double time on some of that because, hey, he was supposedly working bad hours, and I thought 9.00 til 5.00 were good hours. But - and that's when the award changed. There was provisions in this award to start at 3 o'clock in the morning without any penalty. We had higher rates of pay.

PN30

At the moment as of today we are paying $16,830.80 per annum more just on the implications of this loss of the two 10-minute breaks and the other Fair Work rules that have came into place, and that is a lot of money for a very small family-operated business who have worked their butts off for 26 years, and we would like to keep going further, but at this rate I think our future is very hard to obtain because we're just - people don't want us to put prices up. Coles are selling bread for a dollar, milk for a dollar. We can't compete. We have to be on a level playing field.

PN31

The other thing I asked Curtis Brown, the Fair Work Ombudsman, I said, "Look, there is a big confusion in the industry of what rates - what awards they should be paying under." I know there's a lot of bakeries in Tasmania who are paying the hospitality award because they've got some tables, but I don't believe there would be 80 or 70 per cent of their sales in coffees, or coffee table service. So they would be paying under the rosters, and they're doing that because they can get a 15 per cent loading per hour instead of 12.5 per cent on the whole shift.

PN32

I've asked him to audit all the bakeries in Australia to make sure we know what award they should be paid under so we've got a level playing field because at the moment we don't and it's very important that we do have a level playing field because if I'm making a pie at Elphin Continental Cakes and I'm making a pie at Sunrise Bakery, which is a wholesaler, and we're both starting at 5 o'clock in the morning and the wholesales can start without paying 12.5 per cent penalty, but I have to, I find that outrageous, doing exactly the same job.

PN33

THE VICE PRESIDENT: Don't the wholesalers commence baking much earlier?

PN34

MR ELLIOTT: They can, but it is their option that they can start at 5 o'clock in the morning if they wish.

PN35

THE VICE PRESIDENT: But don't they then need to transport their product to - - -

PN36

MR ELLIOTT: They can bake their stuff during the day and transport it the next day if I'm making pies. That's what a lot do.

PN37

THE VICE PRESIDENT: But the application that was made to the full bench - - -

PN38

MR ELLIOTT: Yes.

PN39

THE VICE PRESIDENT: - - - in late 2009, in December 2009 - I think it was December 2009.

PN40

MR ELLIOTT: Yes, it was December 2009, your Honour, I think, yes. I've got a copy here.

PN41

THE VICE PRESIDENT: Yes. The decision handed down in March 2010 - - -

PN42

MR ELLIOTT: Yes.

PN43

THE VICE PRESIDENT: - - - led to the 12.5 per cent loading - - -

PN44

MR ELLIOTT: Yes.

PN45

THE VICE PRESIDENT: - - - and enabled shifts to be worked after 2 am with that loading in line with the manufacturing sector, and the decision of the full bench was to align that shift and that shift allowance to the manufacturing sector for that reason.

PN46

MR ELLIOTT: Yes, your Honour, but - - -

PN47

THE VICE PRESIDENT: Your point is that it doesn't go far enough. It doesn't allow the flexibility of a start at 5 am - - -

PN48

MR ELLIOTT: I mean - yes, what I'm trying to say - - -

PN49

THE VICE PRESIDENT: - - - without the shift allowance. Is that the point?

PN50

MR ELLIOTT: Yes. Realistically it doesn't give us - if someone wants to start at, like, 4 o'clock in the morning, it's a lot better than 2 o'clock in the morning. I've worked those hours and they're bastards (indistinct) language, but they are, and they're not good for you socially. If I was doing those hours, I wouldn't have been married for 26 years, brought up my kids and had a great home life. I would not. I would be divorced, probably more stressed than I am now, and in a mental institution because it is unfriendly hours. But working people at friendly hours and be penalised on the whole shift, I find it quite absurd, and I really think we have to take into account that we are manufacturers.

PN51

People want - when you go and buy a loaf of bread, you want a fresh loaf of bread. You don't want bread from the day before, do you, for most people. So that is the reason why we're here. I mean, you know, there's just the cost I mean and just the misguiding information we've been given. I mean in some parts of this in our application it shows where - one time we got told to pay a certain rate of pay, then we got a letter saying, "Hey, it was the wrong rate of pay. You have to adjust it, but you can't back pay it." Again it was the 5 o'clock in the morning. Look, I think they got muddled up with the Wholesale Act.

PN52

THE VICE PRESIDENT: Can I just say that whatever may have happened with the functions of - - -

PN53

MR ELLIOTT: Yes.

PN54

THE VICE PRESIDENT: - - - the Fair Work Ombudsman, that's really not a concern - - -

PN55

MR ELLIOTT: Right.

PN56

THE VICE PRESIDENT: - - - for me here today.

PN57

MR ELLIOTT: Okay.

PN58

THE VICE PRESIDENT: You need to make out your application within the terms of the Act to vary the award. If there has been some confusion or mistakes, that might be unfortunate but I can't see how it really bears on the task that I have to consider your case against the tests in the Act.

PN59

MR ELLIOTT: Right, because, well - yes, look, I really think there's a precedent set from the newsagents starting at 5 o'clock in the morning and we're under the same award in the Retail Award and in your decision previously on 10 March it says butchers could start at 4 o'clock in the morning and they have their own award. You sort of stated that the pastrycooks association or the bakery association didn't put up a strong enough case for us. Well, probably in that case - - -

PN60

THE VICE PRESIDENT: Don't think they didn't put up any case. They weren't involved at all in these matters during the entire award modernisation process.

PN61

MR ELLIOTT: Well, they told - some people told - I mean this is the thing. It was very limited. I mean the SDA states in their case there was a lot of consultation. You are now stating there wasn't a lot of consultation with the bakeries.

PN62

THE VICE PRESIDENT: No. Opportunities were provided over an extended period for submissions to be put - - -

PN63

MR ELLIOTT: Well, I never got a letter or nothing.

PN64

THE VICE PRESIDENT: - - - and none were received - - -

PN65

MR ELLIOTT: Well, I never got a letter (indistinct)

PN66

THE VICE PRESIDENT: - - - by anyone in the baking industry, and the baking employers associations didn't - and they admitted this when they made their later application. They didn't participate in the award modernisation process and make any of these submissions. It was only after the award was made that they made the application to vary the award at the end of 2009.

PN67

MR ELLIOTT: Because when they had the sessions on what award you're going to be before January 2010 in 2009, no-one could tell us what award we were going to be under at those times, which I thought was quite bizarre when a new lot of awards were coming in and even on 1 January 2010 when it came into place they really still couldn't tell us firmly what award we would be under and I felt that was very bad, and on 1 July 2010 they couldn't even tell us the right rates of pay we should be paying, which I felt was bizarre when they had so much time and you just had so much time to organise your things, I felt that very disheartening that we couldn't even work out what price we should be selling our goods at because we didn't know what we were meant to pay under.

PN68

But I go back to the case, is I believe there is room for a 12.5 per cent loading to pay per hour instead of thing, especially if you're only working two hours or three hours, you know, into the shift I really believe there is a case. Even now when we go onto some of the web site it's stating on some 7 o'clock in the morning start, on the other it states 6 o'clock in the morning start. All those should be rectified so people know exactly what they are getting paid. If they want to look it up, they can work out.

PN69

THE VICE PRESIDENT: So what section of the Act are you relying on for your application?

PN70

MR ELLIOTT: Look, your Honour, I'm not a lawyer. I'm a frustrated baker who's been put in this place. I know the bakery association now has become a national association. They've got everyone on board, they've rebuilt, and we're going to be a lot stronger force now, and I think this is from what's happened to the industry and what's happened to us under the new Fair Work awards. You know, when I put my application in, I didn't realise that we had to say what part of the Act it was coming under. I just thought we were putting an application in, and no-one told me that I should have to go into Act such and such or something, which would have been helpful if that's the case. As I say, I'm not a lawyer. I'm a pastry cook.

PN71

THE VICE PRESIDENT: How can I consider the application and how can the SDA respond to it if you cannot - - -

PN72

MR ELLIOTT: We're not going to the section of the - - -

PN73

THE VICE PRESIDENT: - - - identify what the power is and what the test is and the relevant considerations? The application mentions sections 157 to 160 but there's a number of different provisions there with different tests, and neither the application nor your submission makes it clear what your application is under.

PN74

MR ELLIOTT: I'm sorry, your Honour, I wasn't notified that I had to find the exact application. If I did, I would have found the right application that suited. I'm sorry. I just thought I had to put the application in. I didn't realise, and it would have been nice to know prior to this that we did have the application thing in. If it wasn't going - - -

PN75

THE VICE PRESIDENT: There's nothing wrong with the form of the application. It's the submissions you make.

PN76

MR ELLIOTT: Yes.

PN77

THE VICE PRESIDENT: You need to convince me that the change you seek is justified under the provisions of the Act, and I'm not too sure - and maybe you're not too sure - what provisions you're relying on.

PN78

MR ELLIOTT: Really I was just looking at the precedent of the newsagents starting at 5 o'clock and I just thought this is a precedent. The award usually carries on to everybody, not just to one organisation.

PN79

THE VICE PRESIDENT: Yes, I think that was in the award when that was originally made in 2009.

PN80

MR ELLIOTT: I think that came out from the newsagents having a very strong voice and probably some politicians (indistinct) newsagents and knew what was happening and no-one had bakeries I think.

PN81

THE VICE PRESIDENT: The Newsagents Association did participate in the award modernisation process.

PN82

MR ELLIOTT: I mean, as a small person, I had no chance of putting any submissions in at that stage as we got no notification, and even when the award on 1 January - we got no notification. Like, everyone knew I was paying under the Baking Industry Association of Tasmania. We should have got a letter to say, "You are now going to be under the Retail Act," or what's going to happen. We got no notification whatsoever at any time.

PN83

THE VICE PRESIDENT: But these - - -

PN84

MR ELLIOTT: We had to find everything out ourselves.

PN85

THE VICE PRESIDENT: The notification - - -

PN86

MR ELLIOTT: (indistinct)

PN87

THE VICE PRESIDENT: Notification of the processes is given in a general sense. They're all public processes. The whole award modernisation process has received widespread publicity. It was widely known that opportunities were available to put submissions in, to appear at consultations, and a large number of employers and their representatives and unions did so doing that process, and the awards were published, made available, but - - -

PN88

MR ELLIOTT: I was told - - -

PN89

THE VICE PRESIDENT: - - - letters were sent to every employer in Australia, advising them of these things. It was a matter of general public processes, but anyway, you've made an application. I need to consider it under the terms of the Act, and the difficulty I'm having is understanding what you rely on. The SDA has responded in relation to the tests under the Act, but do you have further submissions you wish to make? I'll give you a right of reply after I hear from the SDA.

PN90

MR ELLIOTT: Yes, look, I'm sorry. If I had have been told and known what I had to put in, I would have looked up something, but I'm sorry, I wasn't told that, and as being not a lawyer - and I didn't receive this till last Monday and I had to have my submissions in till 12 September, and I got no notification from you guys to say, "Hey, you really need to have a part of the Act which you should be attacking," and I find that quite bizarre, but still, I'll hear from the SDA. Thank you, your Honour.

PN91

THE VICE PRESIDENT: Thank you, Mr Elliott. Ms De Martino?

PN92

MS DE MARTINO: Good morning, your Honour. If your Honour pleases, the SDA's submissions - we rely upon our written submissions.

PN93

THE VICE PRESIDENT: I'll mark those written submissions dated 3 October 2011 exhibit D1.

EXHIBIT #D1 WRITTEN SUBMISSIONS OF SDA DATED 03/10/2011

PN94

MS DE MARTINO: Thank you, your Honour. Just to make a few points further to our written submissions, your Honour - and you've made a number of those yourself but we just wanted to pick up on a few things. The applicant claims that in Tasmania we were already paying some of the highest wages for our industry in Australia. Now we have a claim that the wages are higher than they have been before. We would actually like to see some evidence for the claims to support these. We understand that casual rates on a Saturday are transitioning down to the modern award rates as well but the full adult rate without penalties is not transitioning at all. That's our understanding of the matter at the moment, but probably more importantly, it's a case of swings and roundabouts here.

PN95

I've made a few comparisons between the Tasmanian Baking Industry Award versus the General Retail Industry Award, and just for these few points. The NAPSA had higher conditions or rates of pay for employees compared with the modern award. For example, part-timers and casuals - the maximum - sorry, no. For ordinary hours - were seven hours and 36 minutes per day, after which overtime was payable, and five consecutive days could be worked, after which overtime was payable. Under the General Retail Industry Award the maximum hours are nine hours per day including one day of 11 hours per week at ordinary rates. Furthermore, an employee is entitled to two consecutive days off each week or three consecutive days off per fortnight, but this can actually be varied with agreement between the employee and employer.

PN96

Overtime Monday to Saturday was paid at time and a half for the first two hours under the NAPSA and double time thereafter. Under the General Retail Industry Award, overtime is payable Monday to Saturday at time and a half for the first three hours and double time thereafter. Again that's another condition that was better for employees under the NAPSA. In terms of part-time employees, they received a 50 per cent loading on a Saturday and a Sunday penalty for casuals was 110 per cent. Under the General Retail Industry Award, permanent employees, both full and part-time employees, receive 25 per cent for the Saturday penalty and the Sunday penalty for casuals is 100 per cent.

PN97

So in this very brief example, the prior award which Mr Elliott was employing his staff under had higher conditions for their employees in these terms, so it is a case of swings and roundabouts, and we know that the full bench, when determining the modern award, had to take into account the awards around the country and find that middle ground. So in some instances employees would be better off and in others employees would not be better as well off, and it was just a balancing act. We understand that that occurred, and due consideration was also given to this matter. All the arguments Mr Elliott makes were raised before the full bench prior to this time, which we refer to in our written submissions, and it's been given due and careful consideration.

PN98

We don't believe it should be re-litigated, your Honour, and the consideration of the matter was from a national perspective and, as I say again, striking the right balance amongst all the states, and some states, as your Honour would be aware, actually paid up to 36 per cent shift penalty for all hours worked in the shift. In WA and South Australia that was for the entire shift, so employees there previously had a 36 per cent shift penalty. They've gone to 12.5. Obviously in Tasmania employees did not enjoy a shift penalty after 3 am, but once again it's a balancing act. We understand that the applicant has been given some conflicting information from the Fair Work Ombudsman. We are aware that there can be difficulties obtaining clear and correct advice but we don't believe this is the forum for this discussion and we don't believe changing the award is the solution either.

PN99

Furthermore, your Honour offered the option for the Baking Manufacturers Industry Association of Australia in matter AM2009/180. You offered the option to them to consider varying the starting of ordinary hours for bakeries rather than adjusting the penalties, which we've covered in your written submissions. This was considered by the parties including Fair Work Australia and the resulting change was a shift penalty reduced from 30 per cent to 12.5 per cent for baking production employees. The SDA believes that to now allow a further expansion of ordinary hours or a reduction in penalties, will erode away another entitlement to employees across the country and decrease the take-home pay of many baking production staff.

PN100

The bakery association, just to pick up on another point, they did make a submission for a separate award, not for retail of food, during the award modernisation proceedings for the Food, Beverage and Tobacco Manufacturing Award and this was not granted. So a case hadn't been made out for them there, but the full bench did see fit to provide a baking production employee shift penalty of 12.5 per cent and we think - sorry, I'm getting some feedback through now - and we believe that that was sufficient. So, your Honour, we respectfully ask Fair Work Australia to not grant the application.

PN101

THE VICE PRESIDENT: Thank you, Ms De Martino. Mr Elliott.

PN102

MR ELLIOTT: Yes, your Honour, in response to that, the figures which quoted, the 16,000, is a current pay now to what we have to pay more with the 5 per cent loading plus a loss of the two paid 10-minute breaks, that's where that comes from (indistinct) wholesale act, I don't have to give them two paid 10-minute breaks, doing exactly the same jobs, but in the retail baking industry. So we're 20 minutes worse off per day in work than they are in the wholesale division. Now, I find that absurd.

PN103

How we can we be on a level playing field when we're both making pies, both selling to the public, where one is 20 minutes per person better off than the other, I find that outrageous. I find it outrageous that, you know, we are paying more money, I find it outrageous that there is a part of the award, and we're all under the same award retail award and newsagents who traditionally started early can start at 5 o'clock in the morning, so should bakers because we traditionally always started - and that just gives people the opportunity, if you want to give people fair, good working hours, you're not being penalised from doing that.

PN104

I really feel that is that situation, that, you know, I really don't want to have to - I just want a clear award where I can look at it and say, "Look, you start at 5 o'clock in the morning, that's your pay and that's it." I don't want to have to sit down with each employer and do a negotiation process which all takes time and costs money every time I put on a new employee. I just want it nice and simple and there's a lot of bakeries in the small of the scale, like me, who haven't been represented, who are just frustrated by being placed into this - a lot of people wouldn't be paying any of this at all, and no-one seems to be addressing it. I find that absurd, when we have a law in place and (1) they just don't want to audit all the bakeries - and the SDA should be applauding me for bringing this up because I feel that we all should be on a level playing field and I'm fine by that.

PN105

I just want to be able to pay the same rate of pay as someone else doing exactly the same job, and I just really find it absurd when (indistinct) you know, working (indistinct) in a retail market exactly like them, but we're being penalised for starting our work at 5 o'clock in the morning when the newsagent doesn't. I don't know what part of the Act that comes under, but there should be some common sense in here that there is a precedent set for newsagents to start at 5 o'clock in the morning.

PN106

Everyone I've spoken to just can't understand it and it's just very frustrating as a worker to say, "Hey, I'm paying 12.5 extra on my staff for giving them good hours," I would just have to go back now, start them all at 6 o'clock and say, "Stuff you, nice family life, bad luck, this is what the Fair Work and the SDA" - the SDA aren't even charge of the manufacturing workers in the industry. That used to be the Miscellaneous Workers' Union, which are called something else now, which I'm not sure what they're called, but they're something else now.

PN107

They haven't even come to represent the case of saying, "Hey, we shouldn't have" - it's only SDA - I don't know any dress shops who want to open up at 5 o'clock in the morning. I don't know of any, you know, of those sorts of shops who are under the same award, who want to start at 5 o'clock in the morning. But bakeries have traditionally started early hours to get the stuff out - fresh produce for the customer.

PN108

THE VICE PRESIDENT: There's no issue about starting early, it's simply - - -

PN109

MR ELLIOTT: Well, it's a cost that the whole shift makes. It's a lot of money. It's a lot of money. 16,000 per annum I think is a lot of money. If you're having to employ someone you have to find $16,000, it's a lot of cash. When people - and just giving your staff good hours. I mean, I don't know. I was told we had to pay. Can we then change and pay under the hospitality industry award which would be cheaper for me. I mean, this is the thing. I wanted to know what we were going to be looked at, if someone came and audited my business. But the Fair Work Ombudsman, Curtis Brown, I told him, "It has to happen," because there is too much confusion. It shouldn't be now. I mean, I thought there was meant to already be a review of the retail thing which hasn't happened - this year.

PN110

THE VICE PRESIDENT: The review is next year.

PN111

MR ELLIOTT: I thought it was meant to be a review this year.

PN112

THE VICE PRESIDENT: No.

PN113

MR ELLIOTT: But, you know, I really think we have to look at it because we are general retailers, we're manufacturers and we've been placed in a thing where we're just not in it properly. I mean, of our staff, there's more staff in production and retail, but we're paying retail rates, where - I mean, we really should be paying, you know, it's just wrong how we have to be forced to put two 10-minute breaks in which we're paying a higher rate of pay, we got no money back for that at all. If it wasn't (indistinct) we had to start that before, that was - I was told from Catherine Haines that I had to start that of as 1 January 2010 before it even came into place.

PN114

So we were losing 20 minutes per day then at the start. My wife (indistinct) that as soon as we found out about that, and that was very stressful because it would be just like now, because I said to them, I said, "Can we just say, 'Look, you can have a coffee while you're working.'" "No, that's not good enough." We would have to just, like now, we're going through an organisation, we're trying to get this through - stopping, everyone walking out for 10 minutes and having a coffee so we're all well rested.

PN115

THE VICE PRESIDENT: You've made no application about those breaks.

PN116

MR ELLIOTT: But, yes, okay. Well, that was part of it in the thing when we were bringing it in. I mean, I'm just saying that's what happened when we - because they're all the costs being added on to us from the thing. I mean, the thing was - I had to accept that, because that's in the award, we couldn't get rid of that, we've just been placed into that. But that's part of that costs we've been associated by changing from the Tasmanian Baking Industry Award into a national - well, I'm just trying to get you to understand that how come the wholesale blokes don't have to give two 10-minute breaks as well?

PN117

So they're well rested, they don't have to be well rested but we do. I find that quite bizarre. Because it's not a level playing field at the moment. Really what I'm here for is - my thing was, that because there was a precedent set by the newsagents I thought we could have a precedent set, because of the precedent that's what I'm (indistinct) about, the precedent, that the (indistinct) that everyone in Australia can read and see the newsagents - and even worse, video shops can work until midnight at normal rate of pay and to say that the baking industry could set hours of start of work is quite bizarre because there are so many different variations.

PN118

A lot of bread bakers used to start at 10.00, some started at 12.00, some started at 2.00, now the bakery cake manufactures who just have the small shops staff them anywhere from 3.00 to 7 o'clock in the morning, all different times depending on when there staff come in, when there business comes into their shop. So people on the lower end like me who are trying to give good working hours are being heavily penalised - I maybe should start my staff at 2 o'clock in the morning or 12 o'clock at night or 2 o'clock in the morning and say, "It's 12.5 per cent," and okay, we'll get stuff out early.

PN119

They don't have a home life, but so be it. Or should I change my staff to part-time, have part-time hours, three hours prior to that (indistinct) 12.5 per cent loading on that and start the rest at 6 o'clock. I don't want to do that, I like employing people at full-time rate, so they can actually go and buy a house if they want. If they're part-time they can't do that. So all it's doing is encouraging us to be able to, if you had a big enough staff book, is to put more part-time people on early in the shift, they don't pay the penalty on the whole shift, simple.

PN120

I think that's wrong, your Honour. I think we should be encouraging people - and I have seen letters in the paper only last week to say people are wanting - the unions are wanting people to put people on full-time work but here we are really putting an impost on people who want to give people good hours just because of the new changes in the award. I really believe - I personally wouldn't mind 12.5 per cent loading per hour up until 7 o'clock in the morning if it is. I would pay that but I really despise the 12 bit on the whole shift because I don't think it's fair.

PN121

It says in the thing it's Fair Work, it was going to be fairer for everyone; I cannot see that, your Honour, I'm sorry. I'm sorry I can't give you the right part of the legislation just where I should be, I don't have a copy of that, I'm sorry, your Honour. If I had have been told I would have most certainly got it. I could have been told when I put this application in to you and we wrote it and I thought that's all we had to do, if I had have told - look, "Sorry, sir, you don't have the thing," I would have tried to find the information if I could.

PN122

I do apologise for that and I apologise to the union for that but, you know, I am really trying to make it fair for everybody - let's call it fair work and let's be fair about it but there is, you know, parity between newsagents and bakers - all they say is butchers start at 4 o'clock in the morning you state in your previous statement, they can start because you put them in their own award with the wholesale party. But we didn't manage to do that with bakers even though we were told of concerns previously brought to the full bench's attention and we understood there was all these different sorts of hours. So if it's not just a straight - like in the retail usually it's, you know, 8.30 start to 5.30 at night pretty well respectively. Some work Saturdays and after hours but in the baking industry it is totally different. Thank you, your Honour, I can't say much more. Thank you for your time.

PN123

THE VICE PRESIDENT: Thank you, Mr Elliott.

PN124

MEMBERS OF THE TRIBUNAL: I'm sorry for wasting your time and not having the right thing. If I had have known I would have bought the legislation but I do apologise for that.

PN125

THE VICE PRESIDENT: Thank you, Mr Elliott. I am in a position to indicate my decision in this matter. The application before the tribunal is made by P and P Holdings Pty Ltd trading as Elphin Continental Cakes. The application is made under sections 157 to section 160 of the Fair Work Act, it is an application to vary the General Retail Award 2010 by amending the ordinary hours of work for the baking industry to enable ordinary hours to commence at 5 am Monday to Friday and also 5 am on Saturday.

PN126

The application or the submissions before the tribunal indicate which of the sections between section 157 to 160 are relied on in support of the application. Section 160 of the Act enables Fair Work Australia to vary a modern award to remove an ambiguity or uncertainty or to correct an error. In my view that provision enables errors to be corrected of an unintended or procedural nature or to otherwise remove ambiguities or uncertainties. I am not satisfied that there is any ambiguity or uncertainty or error of the nature contemplated by that section and therefore there is no basis for considering the application under that section.

PN127

Section 157 of the Act provides an avenue for varying awards outside of the reviews of the awards which are provided every four years under the Act. In addition to the four-yearly reviews there is a further review scheduled for 2012 under the transitional legislation, the Fair Work Transitional Provisions and Consequential Provisions Act 2009, that review is required to be undertaken by the tribunal next year, 2012. Section 157 provides that a variation outside of the period of reviews can be only made where the tribunal is satisfied that the variation is necessary to achieve the modern awards objective.

PN128

In my view, that really is the test that must be met by this application and it requires a compelling case essentially that the modern awards objective is not being achieved by the operation of the award and a variation is necessary to ensure that the objectives are achieved. Because the applicant was unaware of - or unable to point to the provisions of the Act relied on or to make out a necessary case against the relevant test in the Act, I have not been able to find that the variation is necessary to achieve the modern awards objective.

PN129

I consider that many of the concerns expressed by the applicant may well have validity but considered against the test that is required to be met I find that the case is insufficient to justify the test in the circumstances of this matter. I note the previous consideration of the issue of commencing hours and early start allowances for the baking sector covered by the general retail award and the decision of the full bench of Fair Work Australia handed down on 19 March 2010 dealing with an application by the Baking Manufacturers' Industry Association of Australia which deals with matters related to this application.

PN130

As that decision made clear, these matters were not raised during the award modernisation process, but they were considered as part of that application and the variations were made by the tribunal at that time in an effort to reflect the concerns that were raised. The application here by one employer across the entirety of Australia where no doubt many other employers are affected covered by the award and may have similar concerns or issues in my view is not a satisfactory way of reviewing the operation of those provisions given the processes that have been undertaken to date and also the process of award review that will enable a consideration of these matters in more detail during the course of next year.

PN131

A number of other matters have been raised as to the advice received by the applicant from the Fair Work Ombudsman and also issues of compliance with the award by other employers in the industry. These are not matters that relate to the task of this tribunal in this application however I will ensure that a copy of the transcript in this matter is sent to the Fair Work Ombudsman for the attention of that body. In all of the circumstances I find that the case has not been made out to vary the award under sections 157 to section 160 of the Act. The application is therefore dismissed. As I have indicated earlier, that does not preclude these matters being considered further and in my view more appropriately during the review of awards next year, 2012, under the transitional Act. These proceedings are now adjourned.

<ADJOURNED INDEFINITELY [10.50AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #E1 OUTLINE OF SUBMISSIONS DATED 12/09/2011 PN12
EXHIBIT #D1 WRITTEN SUBMISSIONS OF SDA DATED 03/10/2011 PN94