TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1034256-1

COMMISSIONER SIMPSON

AM2012/332

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

Application by National Retail Association Limited, Union of Employers
(AM2012/332)
Fast Food Industry Award 2010

(ODN AM2008/10)
[MA000003 Print PR985113]]




Brisbane

11.12AM, FRIDAY, 27 JULY 2012

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA TELEPHONE CONFERENCE AND RECORDED IN BRISBANE

PN1

THE COMMISSIONER: Good morning. I’ll start with appearances, please.

PN2

MS G. SHARP: Thank you, Commissioner, Sharp, S-h-a-r-p, initial G., of the National Retail Association.

PN3

THE COMMISSIONER: Yes. Thanks, Ms Sharp. And we have a party on the phone, I understand?

PN4

MS S. BURNLEY: Yes, Commissioner, it’s Burnley, initial S., appearing for the Shop Distributive and Allied Employees Association.

PN5

THE COMMISSIONER: All right, thanks for that. Well, an application was filed by the National Retail Association on 22 June, an application under section 160 to vary a modern award to remove ambiguity or uncertainty, or correct error. Ms Sharp.

PN6

MS SHARP: Thank you, Commissioner. Essentially, we would submit that this is not a contentious matter. It’s merely in keeping with a number of determinations which have been made since the award modernisation process to include a superannuation fund that was a default superannuation fund in an award-based transitional instrument, which was relevant to the coverage of a modern award. In this particular instance, we’re talking about the Fast Food Industry Award. Principles were enunciated in a decision by the full bench on 19 December 2009 and I have a copy of these decisions here for you.

PN7

THE COMMISSIONER: Yes.

PN8

MS SHARP: Essentially, where it was enunciated that if a superannuation fund was named as a default fund in an award-based transitional instrument which was relevant to the coverage under a modern award, and that fund was receiving payments from employer contributions before 12 September 2008, that superannuation fund had the ability to be included as a default fund in the modern award, particularly where this is relevant in relation to the application made by Intrust was that the Cafe, Restaurant and Catering Award state including South East Queensland (2003) and the Retail Takeaway Food Award South-East Division (2003) listed Host Super who is the predecessor legal name of Intrust Super as a default superannuation fund.

PN9

As a result of the award modernisation process a number of employees who were covered by those transitional awards now are covered by the modern Fast Food Industry Award, yet the Fast Food Industry Award does not currently include Intrust Super as a nominated fund in that award. We submit that a determination should be made by Fair Work Australia just to correct error and that variation would be made to 21.4 of the Fast Food Industry Award to list Intrust Super as that default fund.

PN10

THE COMMISSIONER: All right, which decisions are you relying upon?

PN11

MS SHARP: I have two decisions here. First of all, decisions which were made at the time of award modernisation. There’s the first, the decision - - -

PN12

THE COMMISSIONER: So that was before 1 January 2010?

PN13

MS SHARP: Correct, and then there are subsequent decisions which have been made in keeping with these principles. Particularly, I have a decision here, (2010) FWA 321, full bench, which is the decision obtaining to an application made by Sun Super for amendments to be made to the Textile, Hair and Beauty General Retail and Fast Food Industry Award for the inclusion of them. Particularly, in that particular decision, the principles that I’m relying on were expressed and Sun Super were – it was determined that Sun Super had significant involvement in a number of those awards and was included in those awards. There was one particular award that the determination was not made to.

PN14

THE COMMISSIONER: All right, have you got a copy of those with you?

PN15

MS SHARP: If it assists, I have an extract up there which draws to the particular and then in relation, I do apologise – sorry, I thought this was included and I do apologise there is some particular highlighting in this one - - -

PN16

THE COMMISSIONER: That’s all right.

PN17

MS SHARP: That’s the Sun Super decision. If the Commission requires further decisions because these principles actually have been relied on, I think, in about four to five different cases, I would have to forward those immediately after this hearing.

PN18

THE COMMISSIONER: Sure. All right, there was a decision of Commissioner Lewin in a matter of an application brought under section 160 in the Road Transport Industry.

PN19

MS SHARP: Right.

PN20

THE COMMISSIONER: It’s a recent decision. I think it’s currently on appeal.

PN21

MS SHARP: Right.

PN22

THE COMMISSIONER: That’s a decision of 25 May, 2012. Are you familiar with that decision?

PN23

MS SHARP: No, I must say I’m not familiar with that particular decision. I am familiar with earlier decisions again since the award modernisation which were made by the Institute of Chartered Accountants seeking amendments made to the Clerks Private Sector Award which also relied on these principles to include the accountants’ superannuation fund. That was a default fund in South Australia. That was also amended to include them because of these principles and there’s also a decision, I believe, which was made in relation to an application made also by Westscheme, I believe as well. Like I said I will forward those decisions immediately after.

PN24

THE COMMISSIONER: All right, so just bear with me for a moment.

PN25

MS SHARP: Certainly.

PN26

THE COMMISSIONER: So is your argument that the failure to include what was Host Super at the time - - -

PN27

MS SHARP: Yes.

PN28

THE COMMISSIONER: - - - was an ambiguous, uncertain or was a correction of an error?

PN29

MS SHARP: Correct.

PN30

THE COMMISSIONER: No, no, it was specifically?

PN31

MS SHARP: Which one was it particularly?

PN32

THE COMMISSIONER: Yes, yes.

PN33

MS SHARP: It was, I suppose correcting an error at the time.

PN34

THE COMMISSIONER: Why do you say it was an error?

PN35

MS SHARP: Because they were a fund, who, in accordance with the principle which the Fair Work Australia set out in its decisions should have been included and considered to be included as a fund at that time. Look, I suppose it also is in keeping with an ambiguity, because at the time in which the award modernisation, I suppose, and the modern award sectors were considered, it’s my understanding that the Fast Food Industry Award was an award which was created at a sightly later period of time when it was originally going to be under the general retail and there was a consideration that there would be a need to divide up further.

PN36

There was some uncertainty in relation to the coverage which would be included in the restaurant award. Now Intrust are covered, are listed as a superfund in the restaurant award. From what I understand, the Retail Takeaway Food Award and particularly, the Cafe, Restaurant and Catering Award coverage got divided between the two awards. Some employees who were covered by those went to the restaurant and some went to the fast food.

PN37

THE COMMISSIONER: Yes.

PN38

MS SHARP: So at the time in which Intrust, or Host Super at that time, made their application, they made their application for inclusion in the restaurant award, I suppose, failing to appreciate that that award, due to the process in which the awards the divided in the coverage provisions, that they should also be covered and listed as a default fund under the Fast Food Industry Award.

PN39

THE COMMISSIONER: Okay, when did Host Super become Intrust?

PN40

MS SHARP: They became Intrust, I believe it was - and I must apologise for not having fully prepared to the extent of the hearing for this and I can get affidavits and statements to provide these from the managing director of Intrust. I believe it wasn’t until some time in 2011. But as I said, I must say I’m not certain on that particular date. They actually had, from what I understand, they’ve actually got two previous names which have existed over time and which they’ve been covered in the awards.

PN41

THE COMMISSIONER: Just bear with me for a minute. All right, thanks for that. Did you have anything further at this stage, Ms Sharp?

PN42

MS SHARP: No, sir. I suppose the general principle behind these, from what I understand, these decisions previously is because of the nature of employees who are covered by this award, and I suppose the high level of casualisation and the transient nature from industry to industry, especially between the restaurant and fast food industry. The reason that this determination should be made is that there is evidence which suggests that casual employees don’t tend to go through the nominated process. They turn up, they do their shifts. They would have the ability to continue with Intrust and list them as a nominated fund through the superannuation laws but they tend to turn up and move between industry and industry. So this would allow the cohesion of continuing payments into that particular fund if they were listed as a default fund under this award.

PN43

THE COMMISSIONER: Okay. Thanks, Ms Sharp. Now, Ms Burnley.

PN44

MS BURNLEY: Yes, thank you, Commissioner. Yes, the SDA is opposing the application.

PN45

THE COMMISSIONER: Yes.

PN46

MS BURNLEY: And we do this for several reasons. We think that at this stage it’s inappropriate to be dealt with as a section 160 application. It isn’t an ambiguity, error as such. At this stage also there is an award review which is being undertaken, where parties – other parties in other awards and other industries – have identified and made applications for inclusions of default funds. And in various decisions and statements which have been issued, Ross J, in a statement issued on 27 April and then repeated in a statement issued on 5 July 2012 and that’s containing in (2012) FWA 5721, decided to deal with all these applications separately by a full bench, following the approach of the commission examination and report on the issue of default funds in awards.

PN47

Now, this has currently been timetabled for stage four of the review which is next year and that’s contained at paragraph 13 of that statement. We say that’s where this matter should be dealt with. This matter is not an error. Following the making – as Ms Sharp has detailed - of the Fast Food Award there was a subsequent decision of the full bench of the Australia Industrial Relations Commission which decided on default funds and the process established for inclusion or exclusion from the modern awards and this was a decision issued in 2009, September and the reference number to that is (2009) AIRC FB 800. And that identified that there was a process to be undertaken in any application needed to be made to vary a modern award.

PN48

So it’s not as a variation, as an ambiguity, but it was a general application to vary a modern award. What we say is that that is now almost three years ago, that decision was issued and it was a process which was open to the parties to undertake. So what we are saying is that at this time this isn’t an urgent or pressing matter. There is no detriment to employees or employers as one choice doesn’t apply to employees who are covered by modern awards so they can choose their superannuation fund. So if they were already contributing to a fund and change employers they are allowed and permitted to continue with that unless there’s a separate agreement covering those employers.

PN49

And two, that any employer who had been contributing to a fund at September 2008 could continue to contribute to that fund including any new employees who came on board to that employer and that’s notwithstanding the clause which appears in the Fast Food Award. So we say there’s no detriment to employees or employers at this time. What we can say is that it is made in opportunity that Intrust is seeking to extend to new employees who aren’t defaulted at the moment to Intrust and as such, we say that it’s more appropriate that this application should be dealt with as part of the award review process.

PN50

THE COMMISSIONER: Yes.

PN51

MS BURNLEY: And that’s all.

PN52

THE COMMISSIONER: So in summary you’re saying two things. One, you’re saying that there is no ambiguity or uncertainty or error as provided for under section 160 - - -

PN53

MS BURNLEY: Yes, Commissioner.

PN54

THE COMMISSIONER: - - - whereby the tribunal can make a variation in circumstances that meet that test. And you’re also arguing that – or are you arguing that in any event the matter should proceed forward as part of the review of all modern awards after the first two years as set out in schedule 5, item 6 of the transitional legislation?

PN55

MS BURNLEY: Yes, Commissioner, they’re both arguments that we would run at this time.

PN56

THE COMMISSIONER: Yes, all right. Look, Ms Sharp, do you want an opportunity to respond to those submissions?

PN57

MS SHARP: I would in a sense that if we may be able to reply in writing. We weren’t aware of the SDA’s opposition - - -

PN58

THE COMMISSIONER: Yes, yes.

PN59

MS SHARP: - - - in relation to this application.

PN60

THE COMMISSIONER: Yes.

PN61

MS SHARP: So we have not been able to have a chance to consider the arguments which they’re raising.

PN62

THE COMMISSIONER: Sure. All right then - - -

PN63

MS SHARP: So I’m not aware of whether they’ve made a formal response or if it’s merely been an email or is this the first time which they’ve set out their reasons of opposition. So whether or not, after we’ve received a copy of the transcript, whether we may be able to provide a written response to those arguments? At this time though we’d appreciate or seek that we be able to have an opportunity to deal with those - - -

PN64

THE COMMISSIONER: All right, then, well, that would seem to be a sensible course. I wasn’t aware of the SDA’s intention to participate until just prior to the hearing so I think that’s a reasonable request. What I might do then, on the basis of your request, Ms Sharp, is obviously arrange for the transcript to be provided to both yourself and the SDA. As you would both be aware, no doubt, the notice of this application was posted on the Award Modernisation website, so parties that did have an interest should have been aware of this application.

PN65

I’m satisfied about appropriate opportunity for parties to be heard to have been given. The SDA has acted on that opportunity. So what I intend to do is obviously have the transcript provided to the parties participating today. I will also provide an opportunity to both the NRA and the SDA to provide more fulsome written submissions in support of the arguments that they wish to put. And I’d also invite you to provide any other authorities, decisions of the tribunal previously related to the matter that might be relevant for the purposes of my consideration.

PN66

As I identified a bit earlier, I am aware that there is one matter, I understand, which is AM2012/9 which was a decision of Commissioner Lewin on 25 May dealing with an application under section 160, which I understand is on appeal at the moment. I just bring that to the attention of the parties. Look, it may be the case that there is a full bench decision on point that is brought down in the near future which would obviously be of assistance to me to provide some guidance. How long do you want for the purposes of submissions?

PN67

MS SHARP: I’d request just in keeping with the nature of things which are proceeding through Fair Work Australia at the moment, and in relation to the award reviews which Ms Burnley has indicated, what may seem like a slightly longer period of time just in keeping that we’re about to go into some hearings in relation - I know that is separate from these matters – so I would request if we might be able to have a period of six weeks.

PN68

THE COMMISSIONER: Yes, is there any issue with that, Ms Burnley?

PN69

MS BURNLEY: No, Commissioner, there’s no issue.

PN70

THE COMMISSIONER: All right, I’ll get a directions order issued later today, affording both of you an opportunity to provide written submissions in that timetable. What I might also do is include in those directions that in the event that parties want to have another opportunity to make oral submissions on the basis of the material that’s provided if you direct that request to my chambers I would be more than likely agreeable to listing another hearing so the parties can speak to those submissions if they wish to. That transcript should be available I would expect by probably the 4th of next month, which is only a few days time. Any other matters before we adjourn? No, all right, thank you. We’ll adjourn on that basis.

<ADJOURNED INDEFINITELY [11.32AM]