C2001/2001, Transcript of Proceedings [2001] AIRCTrans 1775 (2 August 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HARRISON

C 2001/2001

NATIONAL BUILDING AND CONSTRUCTION
AWARD 2000

Application pursuant to section 113 of the
Act by Construction, Forestry, Mining
and Energy Union to vary an award

SYDNEY

10.30 AM, FRIDAY, 1 JUNE 2001

Hearing continued

PN1

SENIOR DEPUTY PRESIDENT HARRISON: Can I have the appearances, please?

PN2

MR W. BODKIN: If the Commission pleases, I appear for the CFMEU.

PN3

MR M. PARABOLCHY: I appear for the Housing Industry Association.

PN4

MR B. O'DONNELL: If the Commission pleases, I appear for the Australian Industry Group.

PN5

MR D. MURRAY: If the Commission pleases, I appear for Master Builders Australia and its constituent organisations, the Master Builders Association of New South Wales and like named organisations in Victoria, Queensland, Tasmania, the ACT, Western Australia and Newcastle.

PN6

MR H. VALE: If it pleases the Commission, I appear for the Civil Contractors Federation and its respondent members. I have also been asked to mention the matter on behalf of Mr Irving Warren of the Building Industry Specialist Contractors Organisation and the Master Painters Australia. I also seek leave to intervene on behalf of the Association of Wall Ceiling Industries of New South Wales, the Metal and Roofing Cladding Association of Australia, and the Australian Specialist Contractors Association.

PN7

SENIOR DEPUTY PRESIDENT HARRISON: Thank you. Mr Bodkin?

PN8

MR BODKIN: Commissioner, this matter has a lengthy history. Following the August 1989 national wage case decision various applications were made to insert a new classification structure into the family of building and construction industry awards. When I refer to the family, basically those awards are this Award, the AWU Construction Maintenance Award, the National Metal and Engineering On Site Construction Award, the Plumbing Trades Awards, Sprinkler Pipefitters Award and I think the Plumbing Trade Southern State Construction Agreement. Those are the Awards that are usually referred to as the family of awards.

PN9

This new structure had been developed by the major industry parties for the purpose of implementing the August 1989 decision. After a number of hearings and decisions, a Full Bench partially approved the new structure and relativities and referred all aspects of the applications, other than operative date, to Senior Deputy President Watson for final hearing and determination. Senior Deputy President Watson determined that the National Building and Construction Industry Award application would be dealt with first, and that the other awards would follow afterwards. After further negotiations and hearings before his Honour, the National Building and Construction Award parties reached a consensus that, for an initial period of 12 months, the new structure should be introduced at specific work places by written agreement. This is back in 1995. That would be done by way of a new appendix to the Award. It was intended that after the appendix had been in operation for 12 months, the new structure would be given general effect throughout the Award.

PN10

On that basis, Senior Deputy President Watson proceeded to decide the matter as if the new classification structure was to be applied as a general award provision. After hearing evidence and submissions he issued a decision approving the new system on 16 January 1995, that is in print L8499, I will come to that shortly.

PN11

SENIOR DEPUTY PRESIDENT HARRISON: Sorry, what was that number again?

PN12

MR BODKIN: It is L8499. As a result of that decision, the appendix was inserted into the National Building and Construction Award in October 1995, in print M6430. That appendix became known as appendix S. It should be noted, Commissioner, that in the simplified National Building and Construction Award the appendix S provisions now appear as clause 19, under the heading of Award Restructuring in the Building and Construction Industry. However, the new structure, if it can still be called new, continues to apply by agreement rather than by general prescription. The 12 months interim period contemplated by the parties and the Commission in 1995 was obviously completed. But the foreshadowed application to fully implement the new system was put on hold.

PN13

That was due to two reasons, in the main. Firstly, the protracted award simplification proceedings in this Award, which went on for a much longer period than anyone anticipated and which, of course, took priority over most other award matters. That award simplification process was not completed until June of last year. The second main reason why the new system was not fully implemented was the widespread introduction of certified agreements, which incorporate the new classification structure. The large number of such agreements is extremely relevant because it shows the new structure has been successfully introduced across a very broad section of the industry covered by the National Building and Construction Award over the past 5 years.

PN14

According to AUSIRIS the number of certified agreements which contain a reference to the National Building and Construction Industry Award Appendix S is 11,557. It is a lot of agreements, Commissioner. The typical certified agreement provision reads:

PN15

The following classification structure, which is based on Appendix S of NBCIA 1990, applies under this agreement.

PN16

The new classification structure, the relativities and rates are then set out in the body of the agreement. Certified agreements made after the award was simplified in June 2000 of course no longer refer to Appendix S, because the appendix now appears as a clause in its own right, that's clause 19. However, our certified agreements based on the current award continue to prescribe the new classification structure. So I daresay that the figure of 11,557 is now considerably larger, following the most recent round of enterprise bargaining agreements. It is also relevant, Commissioner, that the new structure has applied as a general award provision in the Australian Capital Territory since 1997. The Building and Construction Industry Australian Capital Territory Award was varied in March of 1997, in print N8508, by the insertion of the new classifications and relativities in lieu of the old ones. This is a common rule award covering a significant number of construction workers in the Australian Capital Territory.

PN17

We say that it is quite clear that the new classification structure has had an extensive trial and is the actual system for large numbers of employees and employers performing work covered by the National Building and Construction Award and by the Building and Construction Industry ACT Award. However, Commissioner, in those work places where the new system has not yet been introduced by agreement, the old classification structure, which is essentially made obsolete by the August 1989 National Wage Case decision, continues to apply. Accordingly, the CFMEU has made this application for the new classification structure, which is currently contained in clause 19, to apply generally throughout the Award.

PN18

The application, in our submission, is fully consistent with the decision of Senior Deputy President Watson in print L8499, in which his Honour approved the insertion of the new system into the National Building and Construction Award, and that decision sets out the history of the matter in considerable detail. The application is also consistent with the Commission's current wage fixing principles. In particular, principle 3, which states that increases available under previous national wage case decisions, including minimum rates adjustments continue to be accessible. I might at this stage, Commissioner, just briefly take you to the decision of Senior Deputy President Watson. I hand up a copy of print L8499. You can see from the first two pages that listed are the awards which comprise the family of building construction awards, but this decision related specifically to National Building and Construction Award, because as I mentioned earlier, that was the first award to be done.

PN19

The decision was given on 16 January 1995. It's a lengthy decision, but I just take you to page 9, where, under the heading of decision, his Honour says, and I quote:

PN20

The applications before me are advanced on the basis of an appendix to the award ...(reads)... the need for refinement.

PN21

So there are two particularly pertinent points in that passage that I have just read. First of all, that it was intended by the parties, and by the Commission that the appendix would be given general effect after an initial period of 12 months of operation, and secondly, that his Honour decided the matter on the basis that the proposed classification and relativities and rates would apply throughout the award.

PN22

So we say, Commissioner, that the interim period, or the testing period referred to by his Honour has well and truly been given a fair run, and for the reasons I mentioned earlier, this application is somewhat belated. We say that without the full implementation of the new classifications throughout the award, there cannot be a proper safety net of fair minimum wage rates, as envisaged by the Workplace Relations Act and indeed by the Commission's principles.

PN23

That is the background to the application, Commissioner. We would not expect, in view of the history of the matter, and in view of the widespread introduction of the new classifications and relativities by agreement, we would not expect there to be any opposition to this application. I have prepared a draft order, Commissioner, which obviously I don't expect to be issued today, but I tender it for the purposes of today's hearing and for the parties to consider.

PN24

The draft order has been amended so as to include the recent safety net adjustment. The National Building and Construction Award was varied by yourself for the 2001 Safety Net Adjustment, operative from 25 May. So it's only fair and proper that any order issuing from this application, include the current wage rates and allowances where appropriate. The bulk of this draft order, which in every other way duplicates the terms of the application that's before you, the bulk of the items in it of course are simply consequential variations.

PN25

If you move the classifications, etcetera, from clause 19 of the award, into another clause, there are consequential variations that follow. So the bulk of the matters are simply those. The gravamen of the application starts at page 3, which actually sets out in clause 18, the new construction worker classification system, the translator classifications, then run through to page 6. Page 7, some consequential changes to the index of operator classifications, then there are some allowances that need to be included.

PN26

The main part of the application is the insertion of the new system in lieu of the old. It's long overdue, Commissioner, and we say that the merit of this application, is quite obvious. I don't expect the matter to be varied today, but I would expect, Commissioner, that the employers would consider this if they had any concerns to address those with the union before the next hearing, and perhaps the matter could be adjourned for a period of one month, as was the earlier matter, when I would expect that we would be in a position to have a consent variation approved by the Commission at that particular time.

PN27

THE COMMISSIONER: Thank you. Mr O'Donnell?

PN28

MR O'DONNELL: Commissioner, we would agree that there is a need for discussions, organisation with their membership and I would suggest that there is a need for the employer organisations to have discussions amongst themselves, and that there be discussions with the CFMEU about the application Mr Bodkin is pressing today. We would not see that it is as simple and straightforward as Mr Bodkin is suggesting it's going to be.

PN29

There are complications. There are, for example, things that are missing, such as the CW1(a)(b) don't appear in Mr Bodkin's application. There is only the (c) and (d) in there, so that seems to be a substantive move from what was the classification structure that was approved in the appendix by Senior Deputy President Watson. There are a number of other things that, once we have had an opportunity to fully explore the application. I think it may be it's going to need a little more than a month for us to co-ordinate and have those discussions, given this is a fairly significant application, and the general adoption of the classification structure as proposed does need, I would think probably two months.

PN30

SENIOR DEPUTY PRESIDENT HARRISON: Mr Murray?

PN31

MR MURRAY: If the Commission pleases, I concur with what has just been put by my friend for the AIG. There will need to be some discussions amongst our membership and the constituent organisations of the master builders. There will also need to be some discussions and a careful review of the draft order against the grounds and reasons that Mr Bodkin has put. As far as timetabling goes, I have no strong view as between a month or two months, but given the work load and also the difficulty of coordinating organisations that has always been the problem with these types of application, I would tend towards the two months proposed by my friend for the AIG as being an appropriate time for us to have our various discussions, and it may well be possible for a consent position to be developed in that time.

PN32

A shorter period of time may well see us back here for report back and then a further report back to get a time line. That being the case, Commissioner, while I concur with what Mr Bodkin has put about discussions and a report back, I am tending towards two months rather than one month for that process to take place. If the Commission pleases.

PN33

SENIOR DEPUTY PRESIDENT HARRISON: Thank you. Mr Vale?

PN34

MR VALE: If it pleases the Commission. Commissioner we would be opposing this application, as we have on previous occasions. There has been quite a bit of discussion relating to what was known as Appendix S, which is now clause 19 of the NBCIA 2000, during the award simplification process. There was a lot of time devoted during the simplification process to this particular matter and it could not be resolved there over that long period of time so I find it hard to understand how we can resolve it here in this matter in 4 weeks. We certainly need a great deal of time, we have great concerns about the operator classifications in this proposed variation. I would suggest that two months would be a time for report back.

PN35

SENIOR DEPUTY PRESIDENT HARRISON: Thank you. Mr Parabolchy?

PN36

MR PARABOLCHY: If the Commission pleases, I would concur with what the previous employer organisations have said in relation to timetabling and support their views.

PN37

SENIOR DEPUTY PRESIDENT HARRISON: Mr Bodkin?

PN38

MR BODKIN: I don't really see why two months is necessary, but if the employers are going to insist that they need two months I suppose there is not much one can do, because they're likely to turn up in 4 weeks and then ask for another 4 weeks. But in relation to two matters, one mentioned by Mr O'Donnell where he said that there was something missing from the draft order. The draft order simply replicates what is in clause 19 now, so nothing has been slipped in or left out. So maybe that needs a bit of closer attention by Mr O'Donnell.

PN39

In relation to the CCF, I can't really understand what Mr Hollis has said. I mean, he said they opposed it but they didn't always oppose it, unless they are repudiating Mr Hewitt's involvement in the proceedings that took place before, and the negotiations that led up to Senior Deputy President Watson's decision. Indeed there are very many of the certified agreements that I have referred to, have been made with members of the CCF and I can assure you, and Mr Vale, that many members of the CCF have agreed to the new classification structure and have done so for quite a number of years. So it will be interesting to see on what grounds the CCF would now oppose what was originally agreed in 1995.

PN40

If the matter could be set down for report back or hopefully for finalisation in two months, but on the clear understanding that the employers have substantive discussions with the union about any concerns they may have well before that two months is up, Commissioner. I would suggest that we would want to be talking to them within a period of one month. As long as that is understood, then I would agree to the adjournment for two months. But I don't want to be in a situation where one week or one day before the next hearing in two months time they finally decide that they are ready to have a meeting with the union.

PN41

SENIOR DEPUTY PRESIDENT HARRISON: I accept that point but I will assume that in this matter and also in the matter that before a report back takes place that there will obviously be in depth discussions between all of the parties, including the union to clarify respective positions and hopefully narrow any differences to the point where, being an optimist, consent. But if not at least clearly identifying where the differences might exist after the parties have conferred. I am committed early in August. How is Friday 27 July? Or Thursday 26 July?

PN42

MR O'DONNELL: Either of those dates suit.

PN43

MR MURRAY: Either would suit, Commissioner.

PN44

MR PARABOLCHY: Commissioner, those would be suitable.

PN45

SENIOR DEPUTY PRESIDENT HARRISON: I will adjourn this matter until 10 am, Thursday, 26 July in Sydney. This matter will stay adjourned until that date. I think, for the record I should mark your draft order as exhibit CFMEU1. Thank you.

EXHIBIT #CFMEU1 DRAFT ORDER

ADJOURNED UNTIL THURSDAY, 26 JULY 2001 [11.00am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CFMEU1 DRAFT ORDER PN45