C2001/5464, Transcript of Proceedings [2002] AIRCTrans 1829 (24 May 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT ROSS

C2001/5464

NATIONAL BUILDING AND CONSTRUCTION
INDUSTRY AWARD 2000

Application under section 113 of the Act
by The Master Builders' Association of
New South Wales to vary the above award
re part time employment

SYDNEY

10.05 AM, FRIDAY, 10 MAY 2002

Hearing Continuing

PN95

THE VICE PRESIDENT: Can I have the appearances, please.

PN96

MR M. SANDON: If the Commission pleases, I appear on behalf of the Master Builders Association of New South Wales.

PN97

MR I. WARREN: If the Commission pleases, I am from the Building Industry Specialist Contractors Organisation of New South Wales.

PN98

MS M. BASS: If the Commission pleases, I am from the Civil Contractors Federation.

PN99

MR S. SHERMAN If the Commission pleases, I am from the Australian Industry Group.

PN100

MR R. NUSS: If the Commission pleases, I am from the Australian Business Industrial on behalf of respondent members.

PN101

MR S. MAXWELL: If the Commission pleases, I appear on behalf of the Construction, Forestry, Mining and Energy Union.

PN102

THE VICE PRESIDENT: The purpose of today's listing is to hear from the parties with a view to setting down a program for the future determination of this matter. I received correspondence from the MBA on 28 March indicating that it was undertaking a national survey in respect of the claim and as a result have not had sufficient time to collect and collate the data on which you wish to rely and asking that the timetable that had been in place at that stage which provided for the filing of material from 8 April and onwards be suspended with a report back in early May in order to reprogram the matter for hearing a determination and that's the purpose of today. It might be best if we hear from you, Mr Sandon, it is your application.

PN103

MR SANDON: Yes, Commissioner, I do apologise for changing the dates there have been unseen circumstances. The survey that had gone out was meant to go out in the previous run of monthly magazines and it missed that. We would be seeking to move the dates through till and filing through to about August or September just due to other unforseen circumstances.

PN104

THE VICE PRESIDENT: If you take the first date because in some ways the rest of them will follow because there are set times from - the idea in the amended directions was the MBA would file by a certain time on everybody - then the other employees would have a week within which to file whatever material they wished to file and then there was a period of another I think roughly three weeks and the CFMEU would respond then the MBA and the other employers would respond a week after that, something of that nature. So the key date is the first one, when would you be in a position to file your written submissions and any material upon which you wish to rely.

PN105

MR SANDON: Mid August.

PN106

THE VICE PRESIDENT: The rest would just follow from that.

PN107

MR SANDON: That's correct.

PN108

THE VICE PRESIDENT: Does anyone have any objection to that course, is everyone happy with the current structure. Mr Maxwell?

PN109

MR MAXWELL: Your Honour, perhaps if I can maybe elaborate on some of the problems that the industry is facing at the current time and I'm sure you're aware of the Royal Commission that's taking place.

PN110

THE VICE PRESIDENT: I'm afraid so.

PN111

MR MAXWELL: And that is taking a lot of the time of all the parties. As you may or may not be aware from the directions issued by the Royal Commission earlier this week, I think on Monday, the Commission intends publishing a number of discussion papers, I think it was about eight being released next week and then some more later in the year and most of the I suppose industrial staff of the organisations are tied up in doing various submissions for that.

PN112

It appears from what Mr Sandon is saying that there is no urgency with this application especially given that the application was lodged in November last year. Our preferred position would be to not look at dates until after the Royal Commission is due to hand down its report, I think it is 6 December, so I would expect that in August/September there will be a flurry of activity from all the parties in making final submissions to the Royal Commission.

PN113

THE VICE PRESIDENT: Do you have a date for when the final submissions are due.

PN114

MR MAXWELL: I don't think the Royal Commission has set a date for those but they are due to report by 6 December.

PN115

THE VICE PRESIDENT: No, I appreciate that, but presumably some time before 6 December there would be the opportunity for final submissions, so my point in asking the question is really that to address your concerns why would we need to wait until 6 December why couldn't we look at a program that commenced this case sometime after the filing of the written submissions which might be August or September.

PN116

MR MAXWELL: Your Honour, that quite possibly could be that the submissions have to be in by say October, however, given that we're not sure at this stage what those dates will be whilst it is I suppose a bit messy one option would be to have a further report back maybe in August and hope by that time we would have a clear indication of when any final submissions are to be in to the Royal Commission. If the Commission, pleases.

PN117

THE VICE PRESIDENT: Thanks, Mr Maxwell. Perhaps, Mr Sandon, that if I hear from you in relation to that and then from the other employees. It seems to me there is and if I could make this observation, there is a balance between the applicant's obvious right to prosecute its claim with the demands on everyone, including the applicant, in relation to the Royal Commission matter. One option may be to deal with it in one or two ways.

PN118

The first is that as soon as it is known when the submissions of the parties are to be filed then my chambers can be advised and then I would issue directions taking that into account which provided for the MBA to file some couple of weeks perhaps after those final Royal Commission submissions and then the rest of it would flow from that, that's one way, well, there are three ways really.

PN119

The second way is to go ahead as the MBA is suggesting pick mid-August and run through and then the parties being at liberty to apply to vary those. The third is that we list it for report back probably late July in which case we may know the Royal Commission's time frame and then in the meantime there would be nothing to stop, certainly the applicant from preparing its case and it may not in that sense result in a loss of time. I'd seek the views of the parties about those options.

PN120

MR SANDON: Commissioner, the applicant in these proceedings would probably prefer the third option, that's the report back in July and once those dates can be clarified we would be seeking that third option, your Honour, just to ensure that we can program the matter at that time and we can commence finalising our case.

PN121

THE VICE PRESIDENT: The other employers.

PN122

MR WARREN: We would agree with that, your Honour.

PN123

THE VICE PRESIDENT: Mr Warren.

PN124

MS BASS: Your Honour, we would also agree to a further report back in July.

PN125

MR SHERMAN: Your Honour, given the circumstances we also think a report back in July would be the most beneficial for everyone.

PN126

MR NUSS: We also agree.

PN127

THE VICE PRESIDENT: I take it from what you said earlier, Mr Maxwell, that you're not opposed to that course either and we will come back late July and hopefully we will know. I'm reluctant to drag people back unless we need to. Can I leave it to Mr Sandon to have discussions amongst the employers but if you can contact Mr Maxwell in the event that you know when the Royal Commission is requiring it there is no need for you to come along here and tell me and then I'll set dates and you can simply communicate in a joint way or sought out between yourselves the amended directions and send them to me for consideration and we can deal with it that way and avoid coming back. But in any event I'll list it for late July in the hope that we don't need to actually have it because you can advise me beforehand.

PN128

What about Thursday, 25 July, 10am and hopefully you will be able to sort it out between yourselves and it won't be necessary to have that report back, but if there is a difference between you then we will go ahead on that day. Nothing else, all right, thank you, I'll adjourn.

ADJOURNED UNTIL THURSDAY, 25 JULY 2002 [10.15am]