C0050/498, Transcript of Proceedings [2001] AIRCTrans 251 (15 March 2001)

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TRANSCRIPT OF PROCEEDINGS


O/N 6147

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

JUSTICE MUNRO

C NO 00504 OF 1998

TIMBER INDUSTRY - BROWN AND
DUREAU BUILDING MATERIALS
PROPRIETARY LIMITED, MORWELL
- CFMEU AWARD 1996

REVIEW UNDER SECTION 51, ITEM 51,
SECTION 5, TRANSITIONAL WROLA ACT
1996 RE AWARD SIMPLIFICATION

MELBOURNE

10.20 AM, FRIDAY, 23 FEBRUARY 2001

Continued from 6.7.00 (Not transcribed)

PN1

HIS HONOUR: This is matter C number 00504 of '98. It was an item 51 review instituted on 5 August 1998 into the Timber Industry - Brown and Dureau Building Materials Pty Limited, Morwell - CFMEU Award 1996. The matter was first before the Commission on 23 October '98, Commissioner Simmonds. A note of 26 August 1999 indicates that at a conference chaired by Commissioner Simmonds in Melbourne on 30 November 1998, the parties were given the opportunity to be heard on issues such as why the Commission should not set aside the award under section 111(1)(f) of the Workplace Relations Act or what the intentions the parties had regarding simplifying their award. The parties indicated they would continue to have further discussions and advise the Commissioner of the outcome of these discussions.

PN2

That note appears to have been a preliminary to a further hearing before Commissioner Simmonds on 30 November 1999, and in or around that time the CFMEU wrote to the associate to Commissioner Simmonds on 14 September in which they responded to inquiries as to the progress and award simplification with regard to this and other awards. That letter stated:

PN3

The CFMEU is currently preparing drafts of the two remaining awards and will distribute the drafts to the parties for comment prior to 30 September 1999. I anticipate discussions on the drafts will occur during October and hopefully consent draft orders can be sent to the Commission by 29 October 1999.

PN4

The matters were transferred to me from Commissioner Simmonds and I listed the matters on 6 or 7 July 2000 at which time, on behalf of the CFMEU, it was indicated that a draft award would be forwarded. I think it was indicated it was hoped that the Commission could make a decision, subject to a consent draft order being delivered: and that I undertook to do. On 31 July Mr Ryan, on behalf of Brown and Dureau, wrote that:

PN5

At the hearing on 6 July it had been indicated that the parties have to have a consent order to present to the Commission within seven days of the hearing. Unfortunately, that has not eventuated. In the absence of hearing from the union further, I thought it necessary to advise your office of the current situation.

PN6

Acting on that letter of 31 July, my associate on October 3 contacted the parties. Apparently a draft had been sent to the company in the second week of August. The draft was unacceptable to the company and substantially different to the document that was agreed in principle by the parties.

PN7

On October 31 I asked that the company and the union establish if a consent position was still possible and if the matter needed to be relisted for mention and directions. Mr Kentish, my associate, spoke to Mr Hartman and asked for an update. Mr Hartman advised on October 30 the wrong document had been sent to the Victorian branch - by the Victorian branch of the union to the company and that had caused a breakdown in the matter being finalised. Mr Hartman said he had sent another copy of the proposed draft award to Mr Ryan that week with a view to having a draft award ready to lodge with the Commission in the following week, the week beginning 6 November 2000.

PN8

On November 14 my then acting associate contacted Mr Hartman who phoned in preparation of the draft award. He stated that the company had now indicated they did not want this award; they would rather rely on the industry award, the Timber and Allied Industries Award. Mr Hartman was to get back about the outcome within two weeks from that date.

PN9

On 5 December my then associate phoned Mr Hartman to check on the progress of the matter. The union was then to check the difference between the two awards to see if there was any disadvantage for members. There were talks going on with the company and they would contact chambers prior to 15 December to update the situation. On 21 December my associate again phoned Mr Hartman to check on the progress of the matter. He stated he would be taking accrued leave until mid-February 2001 and would look again at the matter at that time. He said relations with the company are very good and that there is not too much of concern from them.

PN10

On 7 February my associate again contacted Mr Hartman who said that he would be having a meeting in Melbourne by 9 February with a view to having the award set aside and rely on the Timber and Allied Industries Award, but his only problem was that there were some provisions in the Brown and Dureau award that are not in the Timber and Allied Industries Award and they will be trying to reach agreement on incorporating those in an enterprise agreement.

PN11

My associate spoke with Mr Hartman again on 12 February. He said that at the meeting with the company in Melbourne the company said that the representative they were using at Victorian Chamber of Commerce and Industry had left to go on to private consultancy and they may use him which may occasion further delay. The union undertook to prepare a paper that compared the award with the Timber and Allied Industries Award and set out the differences and show which of the particular provisions they needed to protect. He was sure that this could be done by the end of this week, 16 February.

PN12

At that stage I indicated that the matter should be listed for hearing today, and it might be indicated to the union that it would need to be in a position either to finalise the matter or to show cause why the award should not be set aside. Could I have appearances, please?

PN13

MS C. BURFORD: I am from the Victorian branch of the CFMEU.

PN14

MR P. RYAN: I am appearing on behalf of the company, Brown and Dureau Building Materials Proprietary Limited.

PN15

HIS HONOUR: Yes.

PN16

MS BURFORD: Commissioner, I believe that Mr Hartman from our national office has actually e-mailed you some submissions for today's proceedings which includes the award provisions in the old Brown and Dureau award which differed to that of the Timber and Allied Industries Award.

PN17

HIS HONOUR: Well, you have got that wrong.

PN18

MS BURFORD: Okay. I have got the copies of that then to hand up to you.

EXHIBIT #CFMEU2 DOCUMENT HEADED: SIMPLIFICATION OF TIMBER INDUSTRY - BROWN AND DUREAU BUILDING MATERIALS PTY LIMITED, MORWELL - AWARD

PN19

MS BURFORD: The document you have in front of you, Commissioner - or Justice, is those award clauses in full which do differ slightly from the Timber and Allied Industries Award. In most cases there is only a difference of a bit of wording, but the company wanted to include that as an attachment to the current enterprise agreement which, unfortunately, hasn't been certified yet, although it was agreed to in 1999, simply because we had a change of organisers in the area and then a - - -

PN20

HIS HONOUR: What has all this got to do with me?

PN21

MS BURFORD: Only in that that is the - what Mr Hartman is intending to do is to rely on an order you made in relation to the Metal and Engineering Associated Industries Award in 1998 which actually deferred deletion of their current award until such time as they could incorporate the better conditions, I guess, into an enterprise agreement. And we would be seeking a similar order from you, Commissioner.

PN22

HIS HONOUR: Well, I think Mr Hartman and perhaps the Victorian branch have a positive gift for getting things a bit wrong.

PN23

MS BURFORD: Okay, I apologise there, Justice Munro.

PN24

HIS HONOUR: And what I am doing is simplifying under item 51 this award. Now what aspirations you have or have had since 1999 are matters that are best left between you, Mr Hartman and whoever else. But I had my associate say to Mr Hartman what he said advisedly, you are going to have to show cause to me why this award isn't set aside. Now, I will give you a month. If you have got an agreement in 1999 that you haven't got around to certifying, well, that is your problem, not mine.

PN25

You are going to have to persuade somebody that if you couldn't get your act in order between 1999 and 2001, that the Commission should allow you to come in. If you have taken this long to work out the difference between the award that is about to set aside or to be simplified and the other award, then that is an affliction with which you must put up but I don't have to bear.

PN26

MS BURFORD: Yes, certainly.

PN27

HIS HONOUR: The proposal that is based upon it is said the order made in relation to the Painters and Dockers Award, wasn't it, or - - -

PN28

MS BURFORD: I think - - -

PN29

HIS HONOUR: - - - Shipbuilders and Joiners Award 1965 - - -

PN30

MS BURFORD: Yes, that is the one.

PN31

HIS HONOUR: - - - has served to draw to my attention the probability that that award should not ever have been made in those terms. I don't know whether you are in a position to defend this proposition but so far as 9.4.1 is concerned, I wouldn't have a great deal of difficulty in setting aside this award and including that as more or less the gist of it as a provision; that no right, obligation or liability accrued or incurred under the award set aside is to be affected by the supersession. But I do have great difficulty with 9.4.2 and, had I read more closely the variation of the Metal Engineering and Associated Industries Award, I would have had great difficulty with clause 11.2. The reason is that it reads as follows:

PN32

Despite the preceding provision and subject to the Act, employees shall continue to be entitled to any terms and conditions to which employees were entitled under the Timber Industry, etcetera, Award where those terms and conditions are more favourable than those under this award.

PN33

Well, in effect, when I examine that clause closely what it says is that the award that is set aside is going to continue indefinitely and ingloriously into the future, whatever it may mean. I am very grateful to hear that Mr Hartman has finally worked out what he thinks it may mean, and I assume that the attachment setting out all the clauses is based upon an understanding of the difference as distinct from a demonstration of word processing skills. So if he understands the difference, then that should make it a lot easier to explain to the company or to somebody in due course what it is that you are seeking to preserve.

PN34

But there is no way you will get as consistent with the Act a repetition of the clause that says whatever is in this award that we have just set aside is going to meander on by virtue of a provision in the Timber and Allied Industries Award. If the precedent is relied upon, although I did it by consent, I would say the precedent is wrong and should not have been made. The only excuse I could make is that it was done just before Christmas. It was sent out to all the parties of the Metal and Allied Industries Award who are usually pretty sophisticated.

PN35

And I would say, finally and quite importantly, that the device was used in relation to an award, the Shipbuilders and Joiners Award, which was a superseded award within the compass of Metal and Allied Industries. It had a fairly long history. It was an industry award and I think there were multiple parties to it, most of whom had gone the way of Australia's shipbuilding industry long since. And it was not easy to bring it to an end in the absence of any living parties and that seemed a device whereby nobody objected except Western Australia who detected that there might have been a covert attempt to have the Western Australia Chamber of Commerce and Industry to have the application of the Metal Industry Award applied to Western Australia. The situation here is different. This is a single company award, as I understand it, operating in relation to the site at Morwell.

PN36

MS BURFORD: Yes, it is. Yes, that is right.

PN37

HIS HONOUR: I see no basis upon which the Timber and Allied Industries Award should be varied to keep alive in this form a single site award. If you have got matters and it has got a bit of a relationship with the company, well, just reach an agreement.

PN38

MS BURFORD: Yes.

PN39

HIS HONOUR: Incorporate the bits that go out of the superseded award that you treasure.

PN40

MS BURFORD: Yes.

PN41

HIS HONOUR: And perhaps put appendix A in as - if you want it I suppose, as part of the conditions that apply. But you are going to have to get agreement from the employer for that course.

PN42

MS BURFORD: Yes. I think from my understanding, Justice Munro, we do have agreement from the employer. I think they would like a bit of time to just consider that document. But it was intended, from my understanding, that that document was to be an attachment to the EBA; that we get that certified as soon as possible and then we can then delete this Brown and Dureau award. I think Mr Hartman's intention of holding off on the deletion until such time as that was certified was just to ensure that there wasn't a period in which the workers weren't covered by the improved conditions under their current Brown and Dureau award. So that once that agreement is certified, then there is no problem with the deletion of the current Brown and Dureau award.

PN43

HIS HONOUR: Well, I can understand Mr Harman's intentions and we will come back to those. Perhaps, Mr Ryan, you can tell me what the score is.

PN44

MS BURFORD: Certainly.

PN45

MR RYAN: Thank you, your Honour. I have got to say, your Honour, it is with some trepidation that I address you, given the history of this matter. In fact, what I would be seeking today - in fact, my instructions from the company, your Honour, are in fact to see if we could seek an adjournment of 28 days to finally resolve this issue once and for all. The reason for that, in essence, your Honour, is effectively the documentation which has been tabled today by Ms Clare Burford was received by the company at 7.20 pm last night and clearly we haven't had the opportunity to examine whatever is contained within that document at this point in time.

PN46

It is on that basis, your Honour, that we would seek to have a four-week period in which to finally determine a position in relation to it. That four weeks will give us the opportunity to consider the documentation forwarded last night and then deal with it as we see fit.

PN47

Your Honour, I am certainly very conscious of the point you have made in relation to the way this matter has dragged on. There have been some extenuating circumstances, and whilst it is a one-company award, it is certainly more complex than appears on the face of it as a result of the interrelationship between the company's respondency with the existing Timber and Allied Industries Award with the company site award, compounded even further by the existence of an enterprise site agreement, a site agreement that refers back to three previous registered site agreements as well.

PN48

So it is on that basis, your Honour, that I would seek if possible that the matter could be stood over for four weeks, which there is very clearly an undertaking from the company's point of view that a final position will be arrived at. There is no question that the intention of the company through this is to basically nail down once and for all and clarify the provisions that apply on site because of the fact of instances in the past where conflicts have arisen as a result of which provisions, whether it be from the Timber and Allied Industry Award, whether it be the site award or the actual site agreement.

PN49

So on that basis, your Honour, given the documentation was only received last night, I would request that the parties do have an additional four weeks in which to finally resolve this matter once and for all.

PN50

HIS HONOUR: Well, I think, Mr Ryan, that I do have some difficulty with that course. The reason is firstly that I am, to put it bluntly, fairly cynical about the procrastination that has occurred in this matter. At the outset of the proceedings I went through the rather tedious litany of efforts by the Commission to treat seriously the assurances that seemed to be forthcoming from the parties. I haven't gone to the transcript on 6 July last year, but at that stage I was to get a consent award in a week or thereabouts. Each time that the matter is prorogued, the Commission and indeed the public incur expense. These proceedings are being recorded. The whole effort of getting you both here today costs us money, too. I greatly regret that it costs you money, but my view about this matter is that the pitcher has been to the well a few too many times to continue to have much tolerance from the Commission.

PN51

I accept that there may be something of a mare's nest of overlapping conditions at the Morwell site that need to be sorted out. This file gives one a pretty good idea why that might be the case. If you are going to clean an Agean stable then somebody has got to get down with the broom and apply their mind long enough to what it is that they want to put into an agreement, and if you have got two overlapping awards, one of which hadn't been varied since I think 1996 apart from inducing Commissioner Huxter to put in the 1999 safety net adjustments, then almost certainly you have got problems, particularly if you have got a certified agreement that has been around since 1999 that nobody has got around to certifying.

PN52

What I propose to do is this, that I will provisionally determine that the award will be set aside from 6 April. That gives you something of the order of seven weeks to get your house in order. The terms on which it would be set aside will incorporate a provision to the effect that the union is seeking in 9.41 of its draft order; that is, it will be set aside with effect from that date, but no right, obligation or liability accrued or incurred under the award set aside is to be affected by it being set aside, that is accrued rights will stay, but any prospective operation of the clauses will die from that date.

PN53

The question of picking up the points that are in attachment A is a matter that I think the parties themselves had best attend to. If you can get a certified agreement up and running by that time, well and good, it is simply a matter of attaching that appendix if it makes any sense to do so, but I don't know that that is particularly my problem. What I will allow is an opportunity for you to show cause in writing by perhaps the week before that - that I think is 30 March - as to why the award should not be set aside from 6 April in the manner in which I propose.

PN54

I have no difficulty about reciting in the preamble that the basis upon which the award is set aside is that it is a single site award that has been effectively superseded in relation to minimum terms and conditions by the Timber and Allied and Industries Award which has been simplified and that the parties have in contemplation reaching an appropriate certified agreement. The essential reasons on which I would set aside, and I can indicate those to you, are that this is a single site award operating more or less in parallel with a simplified Timber and Allied Industries Award and the attempts to simplify it that have been going since October '98 have simply become too protracted and are obviously beyond the ready capacities of the parties to finalise.

PN55

Now, if you can come up with an acceptable alternative in the meantime, then I suppose I will consider that, but it won't want to be too complex and it certainly won't want to be in a form that brings into a simplified award an unsimplified one and says that whatever it means it is going to keep on meaning that by virtue of a clause in the simplified award. If anybody finds out about that in the Metal Industries Award, then from what I have said it obviously wouldn't be too difficult to persuade me that that provision shouldn't be there.

PN56

MR RYAN: Thank you, your Honour. I just merely comment that I saw that proposal last night for the first time at 7.30 pm and I haven't had a chance to examine it and clearly the company haven't, and certainly we take on board your comments in relation to your position in relation to such a clause being attempted to be utilised.

PN57

HIS HONOUR: Well, it simply would compound your problems; I mean, you wouldn't know which award until you went and found a copy of this one which would probably be no longer in print - - -

PN58

MR RYAN: Thank you, your Honour.

PN59

HIS HONOUR: - - - and then when you compare - I don't know how the classification structure compare, but it is very awkward trying to read two awards together. My suggestion to you, indeed to the union, if you are wanting the content of appendix A to be worked through, would be to go through it carefully and identify the components that you wish to incorporate as part of a certified agreement, and they then become site specific provisions which, because they have long been used, have an understood basis and you keep them alive for purposes of your site, and if necessary distinguish them from the Timber and Allied Industries Award, but otherwise just use the conventional device that anything that is not dealt with specifically in the agreement is dealt with by the award.

PN60

I would, judging by the look of this, think that this is far too long a document for that purpose because it is covering everything from annual leave through overtime and each variation you have got from the award, some of which might not be beneficial to employees, is likely to result in disputation.

PN61

MR RYAN: Thank you, your Honour, I will certainly take on board your advice in relation to that.

PN62

HIS HONOUR: Yes, Ms Burford, did you wish to say anything against that proposal?

PN63

MS BURFORD: I don't believe so, your Honour. I think the reason why that is a long document was at the request - my understanding is that it was at the request of the company in order that they didn't have to keep referring to two different documents, that they would have the whole clause incorporated at the back of the enterprise agreement. That was my understanding of it, so that is why it is such a long document. In actual fact in a lot of those clauses there is only a sentence or two perhaps that have been changed from the Timber and Allied Industries Award. I think it was the company's request that they have it like that. Mr Ryan might be able to enlighten us.

PN64

HIS HONOUR: That is something that I will leave to you to sort out. If there is a convenient way to get your agreement certified and expedited, then that can be looked at, but presumably you are going to have to have a vote of employees - - -

PN65

MS BURFORD: Certainly.

PN66

HIS HONOUR: - - - and go through those processes, so it is partly the reason why I have given you until 6 April to effectively complete the process, and that is against the backdrop that if I don't hear anything by 30 March showing cause why I shouldn't do that, then an order will issue. What I will do as best I can is send you a copy of the provisional order and I won't issue a separate direction. Effectively, the Commission's order provisionally is that the award be set aside from that date, it be set aside in a way that preserves any accrued rights up to that date, and it recites that the reason for doing so is the availability of the Timber and Allied Industries Award and the intent of the parties to ensure that there is an appropriate certified agreement of an ongoing nature, that you are to show cause by 30 March, if you seek to do so, why that order should not be made with effect from 6 April. That is roughly what will be sent out. All done? Very well, the Commission will adjourn without fixing a date.

ADJOURNED INDEFINITELY [10.52am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CFMEU2 DOCUMENT HEADED: SIMPLIFICATION OF TIMBER INDUSTRY - BROWN AND DUREAU BUILDING MATERIALS PTY LIMITED, MORWELL - AWARD PN19