REVIEW OF RESTAURANT, TEAROOM AND CATERING WORKERS' AWARD SCOPE CLAUSE PURSUANT TO S 37D OF THE INDUSTRIAL RELATIONS ACT 1979 (WA)

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

COMMISSION IN COURT SESSION

CITATION : 2023 WAIRC 00801

DELIVERED : FRIday, 6 OCTOber 2023

FILE NO. : CICS 5 OF 2022

Applicant

AND

(Not applicable)

Respondent

Catchwords : Industrial Law (WA) – Commission’s Own Motion – s 37D – Variation to scope of private sector award – Replacement of outdated terms – Connected to the State of Western Australia – Express application to labour hire organisations – s 37C – Whether proposed variations extend to and bind employee and employer covered by public sector award for purpose of s 37C(3) – Criteria for reducing the scope of the Award under s 37D(5) – Award scope varied

Legislation : Fair Work Act 2009 (Cth)

Industrial Relations Act 1979 (WA)

Industrial Relations Legislation Amendment Act 2021 (WA) 

Result : Award varied

Representation:

Ms A Kothapalli and Ms M Williams on behalf of the Hon. Minister for Industrial Relations

Dr T Dymond on behalf of UnionsWA

Case(s) referred to in reasons:

Parker v Transfield [2001] WASCA 233

Reasons for Decision

COMMISSION IN COURT SESSION:

1         The Industrial Relations Legislation Amendment Act 2021 (WA) introduced a new power for the Western Australian Industrial Relations Commission to vary the scope of private sector awards of its own motion: s 37D of the Industrial Relations Act 1979 (WA).

2         Following the commencement of this new provision, the Commission invited UnionsWA, the Chamber of Commerce and Industry of Western Australia (Inc); (CCI), the Australian Resources and Energy Employer Association, formerly known as the Mines and Metals Association (AREEA), the Western Australian Local Government Association (WALGA), the Minister for Industrial Relations and other interested parties to consult with it, to identify awards suitable for scope review.

3         The Restaurant Tearoom and Catering Workers’ Award was one of the awards identified as a result of the consultation process. Accordingly, the Commission, of its own motion, commenced this proceeding for variations to the Award’s scope.

4         Section 37D provides:

(1) Except as provided in this section, the Commission may vary the scope of a private sector award of its own motion.

(2) A variation must not be made in relation to —

(a) an application under section 50(2) that does not seek the variation of the scope of the private sector award; or

(b) a State Wage order under section 50A.

(3) A variation must specify that the scope of the private sector award extends to and binds —

(a) employers of a class or classes specified in the award, whether or not the employers are also specified by name in the award; and

(b) employees —

(i) of employers referred to in paragraph (a); and

(ii) of a class or classes specified in the award.

(4) For the purposes of subsection (3)(a) and (b)(ii), the class may be described by reference to —

(a) a particular industry or part of an industry; or

(b) a particular kind of work.

(5) A variation that stops the private sector award from extending to and binding particular employers or employees must not be made unless the Commission is satisfied that another appropriate award will extend to and bind them.

(6) The Commission must not make a variation under this section until it has —

(a) published the proposed variation in the required manner; and

(b) given notice of the proposed variation to —

(i) UnionsWA, the Chamber, the Mines and Metals Association and the Minister; and

(ii) any organisations, associations and employers as the Commission may direct (being, in the case of employers, employers constituting, in the opinion of the Commission, a sufficient number of employers reasonably representative of the employers who would be bound by the proposed variation);

and

(c) afforded the persons or bodies referred to in paragraph (b) an opportunity to be heard in relation to the proposed variation.

5         The Commission published notice of the proposed variations that are the subject of these reasons, and of the opportunity to be heard in relation to them, in the Industrial Gazette and on the Commission’s website. It also gave notice to UnionsWA, the CCI, AREEA, WALGA, and the Minister. It directed that the following parties to the Award be given notice:

(a) United Workers Union (WA);

(b) Restaurant and Catering Industry Association of Employers of Western Australia Inc;

(c) Western Australian Hotels and Hospitality Association Inc.;

(d) City of Perth; and

(e) City of Stirling.

6         Additionally, a sample of employers which the Commission considered were reasonably representative of the employers who would be bound by the proposed variation, were also given notice of the proposed variations and the opportunity to be heard in relation to them.

7         No individual, organisation or employer has advised the Commission of any opposition to the proposed variations. The Minister and UnionsWA told the Commission they supported the proposed variations. WALGA sought additional variations to remove local government authorities from the scope of the Award.

8         The purpose of these reasons is to explain the rationale and intent of the proposed variations.

9         The proposed variations adopt changes drafted by Mr Brendon Entrekin and his colleagues from the Department of Mines, Industry Regulation and Safety, Private Sector Labour Relations Division on behalf of the Minister (the Department). The Commission is grateful for Mr Entrekin and his colleagues for the valuable assistance they have provided to the Commission in this regard.

10      It has not been suggested that the Award contains any obvious gaps in coverage nor that it inadequately defines who is covered by it. It is not suggested that the existing scope clause creates an unintended reduction in scope, nor that it excludes coverage of labour hire arrangements. It is not suggested it creates overlapping award coverage.

11      Accordingly, the proposed amendments are not intended to alter the Award’s coverage. They are intended to clarify and improve the area and scope provisions and in particular to align the format and form with that which it is foreshadowed will be used in other of s 37D of the Act scope reviews. That is, they are intended to introduce some uniformity.

12      Specifically, the amendments are intended to:

(a) replace outdated terms with more contemporary terms;

(b) specify that the scope extends to employees who are ‘connected to the State of Western Australia’ and their employees while performing work covered by the Award;

(c) expressly refer to the fact the Award applies to labour hire organisations that supply employees to host employers to perform work that is otherwise covered by the Award;

(d) expressly state that the Award does not apply to employers and employees who are subject to other specified state awards, where the work performed might be similar in nature; and

(e) expressly state that the Award does not apply to employers and employees that are national system employers and national system employees under the Fair Work Act 2009 (Cth).

Contemporising the terminology

13      The proposed variation adopts the term ‘restaurant and catering industry’ on the basis it is a more contemporary and inclusive term to describe the industry covered. Similarly, ‘classification’ better reflects contemporary terminology than ‘callings’. The proposed new definition of ‘restaurant and catering industry’ includes restaurants and cafes, rather than just ‘fish cafes’, tearooms rather than ‘tea shops’, canteens (which would include school canteens) and takeaway and fast food outlets excluding those covered by the Fast Food Outlets Award 1990. The proposed new definition also includes catering establishments, so that the industry definition is comprehensive.

14      The proposed new definition removes reference to grill rooms, oyster shops and hamburger shops on the basis that these establishments are captured by the definition without specific reference to them.

15      It is proposed to replace the definition of ‘catering contractor’ with ‘catering employer’, for simplicity.

Connected to the State of Western Australia

16      The Department pointed out that the words in the current scope clause ‘throughout the state of Western Australia’ appear on their face to suggest the Award coverage is limited to the geographic area of Western Australia.

17      According to the Department, Wageline frequently receives queries regarding Western Australian employers in the state jurisdiction who employ persons to perform work residing interstate or overseas.

18      In Parker v Transfield [2001] WASCA 233, the Industrial Appeal Court found that an employee who worked entirely overseas for a Western Australian business was nevertheless covered by a state award on the basis that there was a real connection with Western Australia considering:

(a) the employer’s principal business was within Western Australia;

(b) the contract of employment was made within Western Australia;

(c) payment of the employee’s salary was made in Western Australia;

(d) repatriation on completion of a project was made to Western Australia; and

(e) the employee’s dismissal occurred while he was in Western Australia.

19      The proposed new wording is intended to make it clear that the Award may have extra territorial effect with respect to interstate and overseas employees of state system employers.

20      As suggested by the Department, a guidance note will also be included to provided further information on this issue.

Labour hire organisations

21      While the existing scope clause does not expressly state that it covers employees employed by labour hire organisations, it appears that the scope of the Award is sufficiently broad to cover such employees whose labour is supplied by a third party to the extent that the employees are employed in the contract cleaning industry.

22      The proposed variations therefore do not alter the coverage of the Award nor extend its scope. However, the variations are considered desirable for clarity and consistency with the approach adopted in most modern awards under the Fair Work Act 2009 (Cth).

Other variations

23      Similarly, the balance of the proposed variations do not affect the scope of the Award in a practical way but rather are considered desirable for clarity, to make the Award more user friendly and to align with the format and form foreshowed for other awards’ scope reviews.

WALGA’s proposed further variations

24      WALGA submitted that s 37C(3) of the Act requires the Commission to make further proposed variations to expressly exclude from the scope of the Award employers and employees who are covered by the Local Government Officers’ (Western Australia) Award 2021 (LGO Award) and the Municipal Employees (Western Australia) Award 2021.

25      Section 37C(3) provides:

A private sector award must not be made or varied to extend to and bind an employee and an employer if a public sector award or enterprise award extends to and binds the employee and employer.

26      WALGA’s reasoning was that these two local government awards were public sector awards that extend to and bind employees employed in a calling specified in an award in the industry to which the award applies and employers employing those employees: ss 7(1) and 37A.

27      There is no dispute that the local government awards are public sector awards, nor that the Award is a private sector award. Section 37C(3) applies.

28      As the Minister pointed out, the word ‘vary’ in relation to an award is defined in the Act to mean to add a new provision or to add to, alter, amend or rescind an existing provision. So, when s 37C(3) refers to a variation to extend and bind an employee and an employer, it refers to altering or amending an existing scope provision in such a way as to extend to and bind an employee and employer otherwise bound by a public sector award. It is not enough to merely alter or amend the existing provision. The alteration or amendment must result in the award becoming binding on the employee and employer otherwise covered by another award.

29      The proposed variations do not extend the coverage of the Award. The variations do not result in the award becoming binding on any employer or employee not already bound by it. There is no variation with respect to the application of the award to local governments or their employees.

30      Perhaps recognising this, WALGA did not expressly argue that s 37C(3) prevents the Commission from varying the Award as proposed. Rather, it submitted that s 37C(3) of the Act requires the Commission to make further amendments to the proposed variations.

31      Section 37C(3) is only enlivened if the relevant public sector awards extend to and bind the particular employees which the Award would otherwise extend to and bind. The purpose of s 37C is to ensure that the Award is not extended to catering employees if there is a public sector award covering those same catering employees, that binds the employees and their employer: see Industrial Relations Legislation Amendment Bill Explanatory Memorandum at para 128 and para 136.

32      What WALGA sought was in substance a variation of the type mentioned in s 37D(5) of the Act, that is, to stop the Award from extending to and binding employers and employees who are bound by the local government awards.

33      In order for the Commission to make a variation that stops the Award from extending to and binding local government authorities and their employees, the Commission must be satisfied that another appropriate award will extend to and bind them: s 37D(5).

34      WALGA suggested that wait and bar staff, chefs, cooks, kitchen and catering staff, baristas and counter staff employed in local government cafes, recreation centres community dining halls and meals on wheels services were Community Service Officers (Welfare and ancillary services) and Community Service Officers (recreation) as defined in the LGO Award. WALGA did not elaborate on how such employees fell within those defined terms, or what LGO Award classification applied to them.

35      The relevant LGO Award definitions are:

4.3 Community Services Officer (Welfare and ancillary services) shall mean a person engaged by a respondent whose role is to encourage, promote or conduct community pursuits and whose aim is the maintenance or improvement of general social and living standards with regard to family support, services, income, welfare, employment, education, health, housing, children, youth, aged and domiciliary services, or who is primarily concerned with the social and living standards in the community and shall include an Assistant Community Services Officer.

4.4 Community Services Officer (recreation) shall mean a person engaged by a respondent whose role is to initiate, coordinate, encourage, promote or conduct recreational activities within a community and shall include an assistant in relation to such functions and recreation centre and swimming pool staff. Provided that this definition does not include a person employed in a clerical capacity, for example Cashier/Receptionist in a Recreation/Aquatic Centre.

4.8 Officer or Employee shall mean a person appointed by a Local Authority to one of the classifications in this award, a person engaged by a Local Authority as a Trainee in accordance with Clause 16. – National Training Wage, and any other person appointed by a Local Authority to a non‑elective office necessary to the proper carrying out of the power and duties imposed upon the Local Authority by the Local Government Act 1995, its successor and/or any other Act.

36      Whether an employee is covered by the LGO Award turns on whether the employee is employed in a classification set out in cl 15 of the LGO Award. It is not clear that hospitality employees are so employed. If the LGO Award does cover the employees as described by WALGA, it is unclear what classification would apply to them.

37      WALGA has not established that the LGO Award applies to hospitality staff, such that the Commission can be satisfied that there is another appropriate award that extends to and binds hospitality workers employed by local government authorities. Accordingly, the criteria in s 37D(5) of the Act for reducing the scope of the Award to exclude local government authorities and their employees is not met.

Conclusion and Order

38      The Commission orders that the Award be amended in accordance with the Schedule attached to these reasons, with effect from the date of the Commission’s order.

SCHEDULE

1. Delete Clause 3 Area and substitute with a new Clause 3 Area as follows:

3. ‑ AREA

(1) This Award has effect throughout Western Australia.

(2) This Award has effect with respect to employers who are connected to the State of Western Australia and their employees while performing work covered by this Award.

Note: for a non‑exhaustive list of indicators of when an employer may be connected to the State of Western Australia, see s 3(2) of the Industrial Relations Act 1979. Indicators include but are not limited to, whether the employer is:

● domiciled or resident in, or has a place of business in, the State; or

● registered, incorporated, or established under a law of the State; or

● the holder of a licence, lease, tenement, permit, or other authority, granted under a law of the State or by a public authority.

2. Delete Clause 4 Scope and substitute with new a Clause 4 Scope as follows:

4. ‑ SCOPE

(1) This Award applies to all employers (including catering employers) in the restaurant and catering industry, as defined in Clause 6. ‑ Definitions of this Award, and their employees employed in the classifications specified in Clause 21. ‑ Wages of this Award.

(2) This Award also applies to:

(a) employers that supply labour on an on‑hire basis to host employers in the restaurant and catering industry in respect of on‑hire employees employed in the classifications mentioned in this Award, and those on hire employees, while engaged in the performance of work covered by this Award; and

(b) employers that provide group training services for apprentices and/or trainees in the restaurant and catering industry in respect of apprentices and/or trainees working in one or more of the classifications mentioned in this Award, and those apprentices and/or trainees, while engaged by a host employer in the performance of work covered by this Award.

(3) This Award does not apply employers and employees who are covered by the following awards:

(a) Fast Food Outlets Award 1990.

(b) Club Workers’ Award.

(c) Hotel and Tavern Workers’ Award.

(d) Motel, Hostel, Service Flats and Boarding House Workers’ Award.

(e) The Shop and Warehouse (Wholesale and Retail Establishments) State Award 1977.

(4) This Award does not to employers and employees who are subject to the national industrial relations system.

3. Delete subclauses (1) and (2) of Clause (6) Definitions and substitute with new subclauses (1) and (2) as follows:

(1)                The restaurant and catering industry means:

(a) any restaurant, café, coffee shop, tearoom, dining or meal room, cafeteria, canteen, takeaway or fast food establishment (excluding those establishments covered by the Fast Food Outlets Award 1990); and

(b) any place, building, stand, stall, tent, vehicle or boat or part of such, in or from which food and/or drinks are sold or served for consumption on the premises, including any establishment or place where food is prepared and/or cooked to be sold or served for consumption elsewhere; and

(c) the provision of catering services where meals and/or light refreshments and/or drinks are served and provided in any building or place for weddings, parties, dances, social functions, theatres, festivals, fairs, exhibition buildings, cultural centres, convention centres, entertainment centres, racecourses, showgrounds, sporting grounds, and the like.

(2) Catering Employer means any employer whose primary business is to provide catering and ancillary services for any social, commercial, industrial or other purpose or function.