C2001/330, Transcript of Proceedings [2001] AIRCTrans 1317 (28 June 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HARRISON

C2001/330

NATIONAL BUILDING AND CONSTRUCTION
INDUSTRY AWARD 2000

Application by the Construction,
Forestry, Mining and Energy Union to
vary re public holiday entitlements

SYDNEY

10.04 AM, WEDNESDAY, 6 JUNE 2001

Continued from 26.4.01

Adjourned sine die

PN50

THE COMMISSIONER: Are there any changes in the appearances?

PN51

MR BODKIN: I appear in addition to those organisations which I previously named I appear for employers first and its respondent members.

PN52

MR M. PARUBOTCHY: If the Commission pleases. I appear for the Housing Industry Association, the respondents in relation to the National Construction Industry Award.

PN53

THE COMMISSIONER: Mr Bodkin?

PN54

MR BODKIN: Commissioner, since the last hearing there have been discussions between the union and employer organisations and in particular if I could take you to exhibit CFMEU1, which is the draft order. The employers had a particular problem with item 3, which we propose a new clause 36.16 and one of the difficulties from the employers point of view seemed to be the interaction between that and existing clause 27.22 of the award which provides that:

PN55

An RDO will be taken on the fourth Monday except when it falls on a public holiday, in which case the next working day shall be taken in lieu.

PN56

There is opinion amongst the employers in particular that 36.16 would merely duplicate that. From the union's point of view we considered there is some merit in that argument of the employers, although we still think that there is something in the test case decision which could go into the award, and that is item 2, which is the proposed provision where substitution occurs, that is where Christmas Day falls on a Saturday or Sunday and substitution occurs and when a worker actually works on 25 December well that worker should be paid an additional loading of half a normal day's wage.

PN57

The union believes that, we are of the view that, that variation ought to be made and we are supported in that by the various Full Bench decisions that I took you to at the first hearing, in particular the major Full Bench decision on this matter was the SDA case in print K5429, that is the Full Bench decision on 1 June 1999 and in that particular decision at paragraph 50 - I should say in paragraph 49 they refer to the public holidays test case decision of December 1994 and then in paragraph 50 they refer to what is generally known as the fourth decision in print L9178 where the Full Bench of the Commission in that case decided that the loading for work on Christmas Day, when it falls on a Saturday or Sunday, should be 50 per cent and not 100 per cent.

PN58

Then in the decision I am quoting from, that is the SDA case, if you go to paragraph 52 the Full Bench says that:

PN59

The Bench clearly identifies Christmas Day as a public holiday of special significance and a higher penalty is provided for working on this day than would apply to work on another public holiday falling on a Saturday or Sunday.

PN60

Paragraph 53:

PN61

This part of the SDAs application is clearly consistent with the public holidays test case standard and we will grant the variation sought.

PN62

And I believe I have handed up a copy of the actual variation that went into the SDA Award. If I could take you back to the CFMEU exhibit 1, item 2 of the draft order:

PN63

...would vary the National Building and Construction Industry Award in accordance with that Full Bench decision.

PN64

And being a Full Bench decision, which has applied the public holidays test case, we say that under the existing principles of the Commission there is no difficulty in the Commission as presently constituted in making a variation as proposed in CFMEU1 items 1 and 2. The reason why we say this is clearly we are seeking merely to implement a test case decision, so it is not a matter of varying the award above or below the safety net under the principles, it is permissible for the Commission as presently constituted to vary the award because it merely implements a test case decision and when you read the SDA case that I have taken you to clearly the proposed variation in item 2 would simply be implementing a test case decision.

PN65

So what I would propose today, Commissioner, is that we would seek a variation of the award in the terms of CFMEU1 but with the deletion of item 3. Now, we do that without prejudice because I think in item 3 there is a difficulty with the way that the proposed variation is worded anyway and it may be that at some time in the future we may seek to make a further application in relation to those circumstances but for the purpose of this application we seek to amend the application and to amend CFMEU1 by deleting item 3.

PN66

So that the award would be varied by, firstly, renumbering existing 36.2 as 36.21 and then adding 36.22 as per the draft order and the effect of that, Commissioner, would be that where substitution occurs, that is when Christmas Day falls on a Saturday or Sunday and a public holiday is to be observed on the following week and where an employee is actually required nevertheless to work on 25 December, well then that employee gets an additional loading of half a normal day's wage and if the award were varied that way, Commissioner, I don't see how the employers would have any difficulty with that because, as I say, it merely implements a test case standard. So it should be a matter that is capable of being agreed to by the employers.

PN67

THE COMMISSIONER: Mr Bodkin. Mr Murray?

PN68

MR MURRAY: Thank you, Commissioner. Mr Bodkin has I think summarised what has taken place since we were last here and that is that there were discussions between the employer representatives, and there were some brief discussions between the employer representatives and Mr Bodkin including a discussion that I had with Mr Bodkin last week and we did it is true point out that we would oppose item 3 of exhibit CFMEU1 but in the case of the organisations I represent at least that items 1 and 2, we would agree were implementation of a test case decision.

PN69

I would understand that there is some consensus amongst the employers on that point. I must say we weren't entirely expecting what has just been put to you in respect of the modification of the draft order, the modification to the extent that item 3 is deleted. If I understand correctly Mr Bodkin is pressing only items 1 and 2 in this application and withdrawing the item 3. That being the case it would seem, and we have had some very brief discussions I must say, very brief discussions while Mr Bodkin was finishing his submissions, it would seem that the employers may well be in a position to consent to that and have this matter dealt with. If you were so minded, Commissioner, perhaps my friends here on the bar table might care to comment, from the point of view of the organisations I represent that would seem to be an appropriate resolution to this application. If the Commission pleases.

PN70

THE COMMISSIONER: Mr Warren?

PN71

MR WARREN: We have the same position, Commissioner.

PN72

THE COMMISSIONER: Yes, Mr Warren. Mr Vale?

PN73

MR VALE: If it please the Commission. Yes, we adopt the same position as the other employer organisations in this matter.

PN74

THE COMMISSIONER: Thank you. Mr Fletcher?

PN75

MR FLETCHER: Commissioner, we too adopt the same position as the other employer associations in this matter.

PN76

THE COMMISSIONER: Thank you. Mr Parubotchy?

PN77

MR PARUBOTCHY: Yes, Commissioner, unfortunately we weren't party to the negotiations on the prior occasion, and certainly we would be seeking some additional time to discuss these matters. It would appear that there may be some opportunity there for consensus but I'd certainly have to seek some instructions in relation to that, considering that the application's been varied today in that particular manner. So, certainly I would be looking for some time, Commissioner.

PN78

THE COMMISSIONER: Would 7 days be sufficient?

PN79

MR PARUBOTCHY: Well, in relation to putting it to members I think we'd probably need a little bit more than that.

PN80

THE COMMISSIONER: Well, I'm faced with overwhelming consensus except for HIA and I don't, although this matter won't have immediate effect until later this year, if at all, depending - what day does Christmas Day fall this year? Doesn't matter. I might indicate then that subject to the HIA advising my office within 3 weeks of that, I will vary the National Building and Construction Award 1990 in the terms sought by the CFMEU and as outlined in exhibit CFMEU 1, with the deletion of item 3. The operative date for the variation shall come into force from the first pay period on or after today's date and remain in force for a period of six months but the issuing of the order will be delayed for the period I have indicated to allow the HIA to consult with its members. If there is nothing further, these proceedings will stand adjourned.

ADJOURNED INDEFINITELY [10.16am]

PN81