TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 26014-1

VICE PRESIDENT WATSON

AM2010/26

s.158 - Application to make a modern award

Application by Baking Manufacturers' Industry Association of Australia
(AM2010/26)
Food, Beverage and Tobacco Manufacturing Award 2010

(ODN AM2008/37)
[MA000073 Print PR988932]]




Sydney

WEDNESDAY, 28 APRIL 2010

PN1

THE VICE PRESIDENT: Can I have the appearances, please?

PN2

MR A. DUC: I appear for the Baking Manufacturers Industry Association of Australia.

PN3

THE VICE PRESIDENT: Mr Duc.

PN4

MS C. ESTOESTA: I appear on behalf of the AMWU.

PN5

THE VICE PRESIDENT: Ms Estoesta.

PN6

MR W. ASH: I appear for the LHMU.

PN7

THE VICE PRESIDENT: Mr Ash. Yes, Mr Duc.

PN8

MR DUC: Thank you, Your Honour. Your Honour, this application I hope is going to be fairly simple. The application has arisen because when my association was attempting to put together some rates of pay and discuss with members the issue of the early shift, we really couldn’t answer the question about what shift rate would appear to be applicable for staff that started work between say 12 midnight and three a.m. and Your Honour I can take you to, I think it's paragraph 31 of the Food and Beverage, Tobacco Award and that award deals with special provisions for shift workers.

PN9

THE VICE PRESIDENT: Yes.

PN10

MR DUC: The award at 31.1B, C and D define what the shifts are, however it appears that because of the way it is structured there doesn't appear to be a shift loading for those who started one or two in the morning. For example, Your Honour, the night shift means any shift finishing after midnight and at or before eight a.m. That doesn’t cover the situation of baking employees that start at one or two a.m. Nor does the early morning shift, which means any shift commencing between three a.m. and six a.m. which also does apply. So really our application is just to attempt to deal with that position of what shifts apply between 12 midnight and three a.m. Some of the other submissions from the unions seem to indicate that there is an ulterior motive to what we are doing and that is to try and reduce the shift penalty down even further but I can assure Your Honour that we are not attempting to do that, all we are attempting to do is try and get some clarity and some certainty about those provisions.

PN11

Mr Ash for the LHMU has indicated an alternative position which we are happy to discuss but essentially that's all we're trying to do and the evidence that we have filed in these proceedings from two companies indicates the dilemma, and by no means did we try and get information from all members of our association on that, we just wanted to provide some evidence to show that there was some actual lack of clarity out there in the industry, Your Honour. Your Honour, our application seeks to bring the early shift back from three a.m. to midnight and I can understand why the unions are perturbed by that position and we are happy to discuss any other position but these shift provisions do need changing to cover the particular situations of the employers in any industry that start at one or two in the morning.

PN12

THE VICE PRESIDENT: Mr Duc, you are relying in terms of written material on the terms of your application to explain the grounds and the rationale and there is a written submission, I think it's attached to your application.

PN13

MR DUC: That's correct, Your Honour.

PN14

THE VICE PRESIDENT: Yes, and you have also filed two affidavits.

PN15

MR DUC: That's right, Your Honour.

PN16

THE VICE PRESIDENT: You seek to rely on those for the purpose of the proceedings?

PN17

MR DUC: Yes, Your Honour, I seek to rely on those to the extent that they indicate there is some confusion in the industry and it might be appropriate to mark those.

PN18

THE VICE PRESIDENT: Any objection to these affidavits being admitted into evidence?

PN19

EXHIBIT #D1 AFFIDAVIT OF DAMIAN KARAULA, AFFIRMED 30/03/2010

PN20

EXHIBIT #D2 AFFIDAVIT FO MARTIN SAUER, AFFIRMED 26/03/2010

PN21

THE VICE PRESIDENT: Essentially if you look at those affidavits, Mr Duc, taking Mr Karaula's affidavit, you say on the interpretation that you have just outlined, the second, third and fourth of those shifts would be early morning shifts as defined?

PN22

MR DUC: That's correct, Your Honour.

PN23

THE VICE PRESIDENT: The final one would be a day shift.

PN24

MR DUC: A day shift.

PN25

THE VICE PRESIDENT: Where there is no allowance and the first one there would be on one view no shift allowance, it's not a night shift, it's not an early morning shift.

PN26

MR DUC: That's correct and that seems to be a lacuna or gap in these provisions.

PN27

THE VICE PRESIDENT: Yes, and then the other affidavit where Sauer's Bakehouse have about 100 staff, you say that the two production shifts and the two packing shifts and the first of the other shift all have no shift allowance?

PN28

MR DUC: That's correct, Your Honour.

PN29

THE VICE PRESIDENT: Quite a big crevice, not a lacuna in that situation.

PN30

MR DUC: A crevice which I don't presume should have actually been there and I say, Your Honour, that in the proceedings last year when the flurry of Full Bench proceedings was occurring regarding settling these awards it entirely missed us that there was this particular gap, otherwise we would have addressed it then.

PN31

THE VICE PRESIDENT: I'm not sure exactly what you are saying in relation to the alternative position put by the LHMU, are you saying that your application is to resolve this matter one way or the other and one way is to do so in the way that the LHMU submits, namely that the same result, the same shift arrangements in times and allowances should be achieved as with the General Retail Industry Award?

PN32

MR DUC: That position seems to be quite an acceptable position. It draws a parallel between the General Retail Award bakers and those in the wholesale industry and therefore doesn't discriminate on that basis. So I think that that would be quite an acceptable position, Your Honour.

PN33

THE VICE PRESIDENT: Yes, thank you.

PN34

MR DUC: They are my submissions, Your Honour.

PN35

THE VICE PRESIDENT: Thank you, Mr Duc. Ms Estoesta, have I got the pronunciation right?

PN36

MS ESTOESTA: Yes, you got that right. Your Honour, the AMWU is opposed to the variation of the modern food award as proposed by the applicant and we rely on our submissions from 14 April, specifically paragraphs 6 to 11 as grounds for our opposition to their proposed variation. Your Honour, today I just really wanted to address one issue to supplement our written submissions and that is the alternative clause that the LHMU and the NUW have proposed. First of all Your Honour the AMWU is of the view that clause 31 on the special provision for shift workers already adequately addresses the issue of the allowances between 12 a.m. and - of shifts starting between 12 a.m. or two a.m. I will just quickly go through why we believe they (indistinct). The shift provisions in the modern food award in clause 31 provides for a night shift allowance for all hours worked after midnight and at or before six a.m., so the focus is on the end of that shift.

PN37

THE VICE PRESIDENT: It's eight a.m. isn't it?

PN38

MS ESTOESTA: To eight a.m., sorry. Then the early morning shift is then described as one that commences between three a.m. and six a.m., so the focus of the night shift provisions is at the end of the shift. The focus of the early morning shift provisions is at the start of the shift. So our interpretation of that clause would be any shift that starts between 12 a.m., one a.m. and two a.m. and ends at or before eight a.m. would attract the night shift allowance and those hours after eight a.m. could either be transitioned, depending on what award used to apply to those employees, or it could be that those hours after eight o'clock could still attract the night shift allowance, just taking into account whatever agreement was in the enterprise prior to award modernisation.

PN39

THE VICE PRESIDENT: But if only the award applied, and it's a matter of working out what is the entitlement under the award, and we looked at the shifts described by
Mr Sauer applying at Sauer's Bakehouse, what do you say is the current entitlement of those employees.

PN40

MS ESTOESTA: So Mr Sauer's one, so if I go to the production workers.

PN41

THE VICE PRESIDENT: Yes.

PN42

MS ESTOESTA: Say these workers start between 12 a.m. and 10 a.m., so between
12 a.m. and eight a.m. it would be a night shift allowance and then from eight a.m. to
10 a.m. there won't be an allowance there.

PN43

THE VICE PRESIDENT: How does the current wording get you that far?

PN44

MS ESTOESTA: We are relying on the transition of provisions or guidelines from the Fair Work Ombudsman that we are expecting to see in the coming months and from previous advice from the Ombudsman and from the ACTU we seem to see that there will be guidelines as to how they will address the application of shift allowances to different times that have been adopted in the modern awards which are not necessarily the same as in the previous awards and NAPSAs.

PN45

THE VICE PRESIDENT: So you cannot ascertain the entitlement from the wording of the award itself?

PN46

MS ESTOESTA: We could say that schedule A talks about transitional provisions about shift allowances and how to transition them, but the actual practical application of schedule A is still dependent on the guidelines which we expect would be handed down by the Office of the Fair Work Ombudsman.

PN47

THE VICE PRESIDENT: But that is only for a transitional period, isn't it?

PN48

MS ESTOESTA: That's correct.

PN49

THE VICE PRESIDENT: Absent the transitional period how could there be an entitlement for night shift allowance for that first production shift that starts at midnight and finishes at 10 a.m.

PN50

MS ESTOESTA: It just depends on - the way we see it is the shifts are divided into whatever time the award states the shift would fall under. So from 12 a.m. to eight a.m. it would be night shift and any hours after that would not attract the night shift allowance.

PN51

THE VICE PRESIDENT: So you deem the shift to be finishing at eight a.m. even though it runs until 10 a.m.?

PN52

MS ESTOESTA: Yes, Your Honour.

PN53

THE VICE PRESIDENT: You believe that is adequate protection for your union's members?

PN54

MS ESTOESTA: Yes, we believe it is, Your Honour, I mean in terms of the alternative that was proposed by the LHMU we believe that that would be good for our members because it only confines the application of the early morning shift clause to baking production employees and to retail dairy workers, whereas the application of the - whereas the applicant's proposed variation would apply across the food industry.

PN55

THE VICE PRESIDENT: Yes, you say whatever is done, if anything is done, it should be confined to - - -

PN56

MS ESTOESTA: The bakers and the - - -

PN57

THE VICE PRESIDENT: - - - the bakers.

PN58

MS ESTOESTA: - - - retail dairy workers. We have had a look through - most of our membership base is in the food preservers and confectionary areas and those previous awards did not contain early morning shift provisions, so if there are any changes made to the award we would adopt the LHMU position, however that's it.

PN59

THE VICE PRESIDENT: Yes. Yes, thank you.

PN60

MS ESTOESTA: They are our submissions, Your Honour.

PN61

THE VICE PRESIDENT: Mr Ash.

PN62

MR ASH: Thank you, Your Honour.

PN63

THE VICE PRESIDENT: Before you start, Mr Ash, I might mark the AMWU submissions in this matter.

PN64

EXHIBIT #E1 SUBMISSIONS OF AMWU

PN65

EXHIBIT #A1 SUBMISSIONS OF BMIAA

PN66

MR ASH: I hope those exhibits have been marked according to their grade.

PN67

THE VICE PRESIDENT: Yes, well you said that, Mr Ash.

PN68

MR ASH: Your Honour, I am not going to push for our primary submission, instead I'm going to rely on our alternative position and note that the Full Bench in the decision concerning AM2009180, variation to the general retail industry award 2010, and the Full Bench stated that, "If employees commenced," this is in paragraph 19, "if employees commenced prior to two a.m. they are not sufficiently distinguishable from night shift workers." We would agree with that and say that to confine this application to baking, it would be appropriate for the night shift penalty to apply between 12 and two a.m. and for shifts commencing at or after two a.m. for the earlier morning shift penalty to apply. I wasn't aware that this application extended to dairies and I can't address - I will confine this to baking.

PN69

THE VICE PRESIDENT: Yes, I think someone did say dairies were in a similar position but there doesn't seem to be a case put on their behalf, apart from a very brief mention. Is that the NUW?

PN70

MR DUC: Yes, Your Honour, it was the NUW at paragraph 6B.

PN71

THE VICE PRESIDENT: Yes. It seems to be put as a reason why not to grant the application or to look at the variation rather than making a case on behalf of the dairy industry, but in any event what you are submitting, Mr Ash, is that the application should be confined to baking, given they are the circumstances in which really the parties have addressed the matter.

PN72

MR ASH: That's right, I'm not aware of any other industries covered by this modern award that would have a similar shift structure and would have this problem. Although from the submissions this morning I am concerned if there was one then there is that anomaly that no penalty is applicable for shifts commencing between those hours. As a general submission I believe that should be addressed, I don't propose to make any submission on how that should be addressed but it is concerning to the LHMU.

PN73

THE VICE PRESIDENT: Yes. How can it be addressed other than to perhaps note that it might be a potential issue and if there is an actual problem rather than a theoretical one it perhaps should be drawn to the Tribunal's attention and addressed in the future.

PN74

MR ASH: I think that would be appropriate. I have nothing further, Your Honour.

PN75

THE VICE PRESIDENT: Yes, thank you, Mr Ash. Anything in reply Mr Duc?

PN76

MR DUC: Just two very quick issues, Your Honour. Firstly the AMWUs position relying on the transition from the Fair Work Ombudsman I don't think is satisfactory to clarify this issue. There needs to be certainty in the primary document, which is the award, rather than relying on a secondary position from the Fair Work Ombudsman. Particularly when they put all of their material that the material is not to be relied upon as not legal advice. So they are not an organisation that can really make these sorts of determinations, it's Fair Work Australia that is empowered to do so, so we submit that that is why it would be best for this Tribunal to vary the award. Secondly in relation to this issue of the coverage. I can only speak, Your Honour, for the baking industry, that is who I represent, but certainly it is going to be an issue for other organisations in other industries and I'm not quite sure how to either limit the Food Beverage Tobacco Award to say that these shifts only apply to the baking industry when obviously it is going to come up and I would hate for it to come up in proceedings after the award modernisation procedure has closed after 1 July as I see it. So, Your Honour, it might need to receive Full Bench attention to see if that issue can be clarified. Thank you, Your Honour.

PN77

THE VICE PRESIDENT: Yes, thank you, Mr Duc. I thank the parties for their submissions. I am in a position to indicate my decision in this matter. The application by the Baking Manufacturers Industry Association of Australia seeks to clarify the application of the shift allowance provisions of the award. In the submissions of the parties it was proposed by the LHMU that an approach consistent with the outcome of the Full Bench in relation to the general retail industry award should be considered in the alternative to the proposal of the applicant or in the alternative to simply reject the application.

PN78

The applicant has indicated that the alternative proposal of the LHMU is an acceptable way of dealing with the particular problem. I agree with that position. I believe that there is a lot to be said for consistency in terms of qualification for shift allowances and similarity in all other relevant respects in relation to shift allowances for baking production employees, whether they be engaged in a retail or a factory environment. I would propose to make an order reflecting that general position. I do not believe that the current situation of there being potential arguments as to entitlements is a satisfactory one and is best remedied in the way agreed between the LHMU, the applicant and the NUW in this matter. I will give attention to the terms of the order in issuing the order, but it will be designed to reflect generally the entitlements in the general retail award. If there is nothing further these proceedings are now adjourned.

PN79

<ADJOURNED INDEFINITELY [10.25AM

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #D1 AFFIDAVIT OF DAMIAN KARAULA, AFFIRMED 30/03/2010 PN19
EXHIBIT #D2 AFFIDAVIT FO MARTIN SAUER, AFFIRMED 26/03/2010 PN20
EXHIBIT #E1 SUBMISSIONS OF AMWU PN64
EXHIBIT #A1 SUBMISSIONS OF BMIAA PN65