STATEMENT

Fair Work Act 2009
s 156 - 4 yearly review of modern awards

(AM2019/7)

Amusement, Events and Recreation Award 2010 - substantive claims – coverage and trainee classifications etc in respect to golfing – further submissions sought – directions.

[1] This Full Bench has before it, for consideration under the award modernisation (‘AMOD’) process, two substantive issues in respect to the Amusement, Events and Recreation Award 2010 (the ‘Award’), namely, proposals:

• by The Australian Workers’ Union (‘the AWU’) to include a 17.5% annual leave loading into the Award (the ‘annual leave loading issue’); and
• by the Professional Golfers Association of Australia Ltd (‘PGA’) in respect to coverage and trainee classifications (the ‘coverage issue’).

[2] We note that the Award is a Tranche 3 modern award listed for hearing before a separately constituted Full Bench on 6 and 7 April 2020. Before coming to the reason for this Statement, it is necessary to set out a brief chronology of recent events relevant to the modernisation of this Award.

1. The annual leave loading issue was listed for hearing and argued before us on 19 November 2019. There was no appearance for, or on behalf of, the PGA and no mention of the coverage issue was raised by the parties at that time given it was not the subject of the listing that day, namely the AWU, Australian Business Industrial (‘ABI’) and the Australian Entertainment Industry Association (trading as Live Performance Australia). We reserved our decision on the annual leave loading issue on that day.

2. On 3 December 2019, the PGA, under cover of the email below, filed a submission with the Presiding Member’s Chambers and the AMOD Team, in respect to its longstanding and unresolved substantive claim:

‘Dear Associate

I understand a brief hearing was held on 19 November to deal with AWU’s claim to insert annual leave loading into the Amusements, Events and Recreation Award.

The Professional Golfers Association (PGA) still have a substantive claim unresolved concerning Coverage. Our initial claim was lodged with the Commission in September 2015 and the PGA was listed in the Summary of Submissions published by the Commission in March 2017.

We respectfully seek to gain an understanding of how the Commission plans to proceed with our claim. There have been no objections that I know of, and our claim has never been withdrawn.

If it pleases the Commission, the PGA would be happy to have our claim dealt with on the papers without a separate hearing.

Our submission is attached and we would be happy to provide the Commission with further information, if required.’

3. This communication caused the Full Bench to issue the following directions on 5 December 2019, in respect to the PGA’s proposed variation to the Award:

‘[1] The Fair Work Commission (‘Commission’) directs that:

A. Any interested party wishing to make further submissions regarding Coverage in the Exposure Draft in respect to the above Award may do so by no later than 4.00pm 2 January 2020.

B. Any parties wishing to make submissions regarding the issues raised in Direction A above must do so by no later than 4.00pm 30 January 2020.

[2] The matter will be listed for a hearing, if requested by any party shortly after this later date as set out in Direction B above.’

No party filed any submission on the coverage issue or the PGA’s proposed variation.

4. On 20 February 2020, unbeknown to this Full Bench or the AMOD Team at the time, the PGA sent a submission and proposed variation to the Chambers of Vice President Hatcher.

[3] We have reviewed and compared the PGA’s proposed variation which was the subject of directions by this Full Bench on 5 December 2019 and the variation set out in the communication to the Vice President’s Chambers on 20 February 2020. It is plainly apparent that the text, in material respects, is different to that for which comment was sought from interested parties on 5 December 2019. Regrettably, this means that interested parties have not been given the opportunity to comment on the latest PGA proposed variations, notwithstanding no party did so by 30 January 2020 in respect of the earlier proposal.

[4] While we observe that the textual changes, being additional wording, may be consistent with the PGA’s original intentions, the changes are not mere typographical errors or clarifying words. They are matters of substance, such as introducing:

• a definition of ‘golf trainee’ in clause 3.1;
• the B2, Grade 1 Classification in Schedule B – Classification Structure, a ‘Golf Trainee Year 1’; and
• the B3, Grade 2 Classification in Schedule B – Classification Structure, a ‘Golf Trainee Years 2 and 3’.

The differences between the two proposals are set out in Annexure 1 to this decision and highlighted. The text of the various PGA submissions and earlier proposed variations are otherwise available on the Commission’s website.

[5] We consider the present situation to be less than satisfactory. It is unclear to us why the PGA sent the 20 February 2020 proposal to the Vice President’s Chambers and not to the Presiding Member of this Full Bench, when it previously had done so on 3 December 2019; but more significantly, there is no mention in the 20 February 2020 email that the proposed variation was different to that which was published to the Commission’s website for comment around the time we issued directions on 5 December 2019. We are prepared to assume that these unfortunate circumstances were a result of an error or misunderstanding in the PGA’s internal processes, as appears to be the case given that the 20 February 2020 PGA submission refers to filing the submission ‘in accordance with the Decision of the Full Bench on 29 January 2020’ (which we take to be a reference to [2020] FWCFB 421).

[6] Regardless of how these circumstances came about, the coverage issue is before this Full Bench and, for abundant caution, we propose to provide interested parties a short opportunity to raise any issues with the PGA’s latest proposed variation in respect to coverage, as highlighted in the Annexure to this decision.

[7] Accordingly, we make the following direction:

1. Any interested party wishing to make further submissions regarding golf-related coverage in the Award may do so to the Presiding Member of this Full Bench and to the AMOD Team, by no later than 4.00pm on Friday, 27 March 2020.

[8] We will publish our decision in respect to the two outstanding substantive issues shortly thereafter.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR717705>

ANNEXURE 1 – Current Proposals by the Professional Golfers Association of Australia

Item 3 – Definitions and Interpretation

3.1 In this award, unless the contrary intention appears:

Exhibition employees means employees of employers engaged in the supply, preparation, marking out, fabrication, installation, erection or dismantling of exhibition stands or associated componentry for the trades and public promotions industry.

golf professional means a qualified and current Full Member (Vocational) of the Professional Golfers Association of Australia

golf trainee means an individual formally undertaking the Professional Golfers Association’s Trainee Program, for the purposes of becoming a Full Member of the Professional Golfers Association of Australia.

MySuper product has the meaning given by the Superannuation Industry (Supervision) Act 1993 (Cth).

Item 4 – Coverage

4.2 Definition of amusement, events and recreation industry

(a) Amusement, events and recreation industry means the operation of:

(i) leisure and recreation facilities and centres;
(ii) sporting, exhibition, convention and amusement complexes;
(iii) theme parks;
(iv) heritage, tourism and cultural centres;
(v) museums and galleries;
(vi) zoos, animal parks and aquariums;
(vii) agricultural and horticultural shows;
(viii) carnivals and amusement parks;
(ix) ten pin bowling venues;
(x) go-kart racing venues;
(xi) amusement arcades, including video game and pinball parlours; and
(xii) golf facilities including but not limited to golf clubs, on-course and off-course golf shops and driving ranges.

…

(d) For the purpose of this clause, the amusement, events and recreation industry also includes the provision of services within the primary venue such as photographic services, the sale of food, beverages and merchandising, and also activities undertaken by an employer covered by this Award which are ancillary to the conduct of the primary venue, such as road or water transport at, to or from, or away from, the primary venue, sightseeing tours, travel arrangements, and wildlife research, conservation and collection conducted away from the primary venue.
(e) For the purpose of this clause, the amusements, events and recreation industry also includes golf facilities including but not limited to golf clubs, on-course and off-course golf shops and driving ranges.

4.3 Exclusions

(c) This award does not cover an employer bound by the:

(i) Building and Construction General On-site Award 2010;
(ii) Electrical, Electronic and Communications Contracting Award 2010;
(iii) Joinery and Building Trades Award 2010;
(iv) Registered and Licensed Clubs Award 2010;
(v) Travelling Shows Award 2010; or
(vi) Fitness Industry Award 2010.

14. Minimum wages

14.1 Adults

Schedule B – Reclassification Structure

B.2 Grade 1

B.2.3 An employee at this level may include a Cleaner, Maintenance person, Gardener, Handyperson, Animal attendant, Ride attendant, Tour guide, Customer Service Officer, Meet and Greet/Concierge, Photography attendant, Host/Presenter, Car part attendant, Parking attendant (not handling cash), Door attendant, General Attendant, Admissions/Entrance attendant level 1, Gateperson (not on major gates), Bowling attendant, Usher and Event day attendant, Golf Trainee Year 1.

B.3 Grade 2

B.3.2 An employee at this level performs work above and beyond the skills of an employee at Grade One and to the level of their skills, competence and training. An employee at this level may in addition to the roles in Grade 1 may also include an Assistant to construction technician and/or erector (including persons engaged in maintenance and utility duty) Ticket seller, Counter attendant, Security Officer, Receptionist, Programme seller, Cashier, General hand (exhibition employees), Game warden and a Golf Trainee Years 2 and 3.

B.7 Grade 6

An employee at this level may include a Head technician maintenance person, Restoration officer, Museum technician, Senior animal attendant or trainer. An employee at this level may also include an Assistant or Teaching Golf Professional who has completed the appropriate level of training and is engaged in assisting in the operation of a golf professional shop, delivery golf coaching, club-fitting and assisting in the operation and delivery of club events.

…

B.11 Grade 10

An employee at this level may include a Golf Professional who has completed the appropriate level of training and is engaged in managing stock in a golf professional shop, retail sales and advice, developing and delivering golf coaching and club fitting programs, managing golf shop staff and managing time sheets, competition fields, cart fleets and the handicap system.