The Union understands that Tabcorp has had further meetings with you about using the General Retail Award for the Better Off Overall Test (BOOT) against your EBA.

The USU has all along indicated that the Clerks Private Sector Award should be used for the BOOT due to the type of work that you do and the industry that your part of Tabcorp falls into.

Prior to the Howard Government’s WorkChoices, most companies across the country were using state awards. The Howard Government forced all trading and financial corporations into using federal awards by changing the Corporations Act 2001.

Your last EBA used the old state TAB Clerical and Administrative Staff PhoneTAB Operators Award 2004 for the BOOT as there was a transitional period where state awards were still in operation until all were “modernised” to become federal Awards. These state awards are no longer legal or in operation and not every state award was modernised.

In 2014 our national union, the Australian Services Union, applied to the Fair Work Commission to make a modern award to replace these old state awards that covered wagering:

  • Racecourse Totalisators (State) Award;
  • TAB Clerical and Administrative Staff PhoneTAB Operators Award 2004; and
  • TABCORP Wagering Employees Award 2003

The full bench of the Fair Work Commission of Senior Deputy President Acton, Deputy President Hamilton and Commissioner Lee Melbourne heard the ASU’s application but did not agree to modernise any of the wagering awards mentioned above. The full bench concluded that:

[100] The Clerks Award contains some terms and conditions of employment which are more beneficial and some which are less beneficial for employees than those in the Wagering Award and, consequently, some which are less beneficial and more beneficial for THL. The content of the Clerks Award is not such that its provisions are not capable of application in respect of the wagering business covered by the Wagering Award. In such circumstances, we think the content of the Clerks Award tells against the making of the replacement modern enterprise award.

Parts of the decision are important in determining what BOOT we can use for our current EBA as we no longer have any old state awards to use nor do we have any modern awards that replaced the wagering awards.

The important items [*] that need to be looked at in regards to the full bench decision [2014] FWCFB 7989 are as follows:

[50] “Clerical work” is defined in clause 3.1 of the Clerks Award as follows:
“clerical work includes recording, typing, calculating, invoicing, billing, charging, checking, receiving and answering calls, cash handling, operating a telephone switchboard and attending a reception desk”.

[51] In making the Clerks Award, a Full Bench of the AIRC stated:

[224] At this stage we have not excluded cash processing or wagering from the Clerks private sector award. We have included a definition of clerical work to make it clear that it is a term of broad application and includes cash processing. Clerks involved in wagering also fall within the scope of the award.

[66] Such acceptance of bets and paying out of money does not fall within the “general retail industry” as defined in the Retail Award in that it does not fall within the constituent parts of that definition. It is not the “sale or hire of goods or services”. THL {Tabcorp Holdings Limited} maintained its wagering business did come within the “general retail industry” as “a bet, is the provision of a ‘service’ for ‘personal consumption’.”17 However, as the evidence before us indicates, it is not THL who provides a bet, rather they accept a bet.

[67] Moreover, having regard to the nature of the definition of the “general retail industry” as a whole in the Retail Award, it cannot sensibly be said that such acceptance of bets and paying out of money is in the “general retail industry”.

[69] We add that the employees covered by the Wagering Award are those engaged in the “Head Office Administration Business Group”, engaged in the “Operations and Data Processing divisions”, employed as “branch clerks, Account Sales Operators and head office clerks”, and employed “on course in or in connection with the operation of a totalizator”.

Members as you can see from the above, the USU has not been trying to halt or hinder the bargaining of your EBA. Given the full bench decision to not make a modern wagering award it is very unlikely that the General Retail Award would pass the FWC’s BOOT when applying the test, as a precedent has been set whereby the FWC anticipated that the Clerks Award would cover those in the wagering industry.

Negotiations with Tabcorp have stalled but it is not because either party is not bargaining in good faith. It is simply because we disagree on the Award for the BOOT in the absence of any modern wagering award.

The Union will let you know when we will come to your workplace on a Saturday in the near future.