C0055/299, Transcript of Proceedings [2002] AIRCTrans 3849 (27 September 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WILLIAMS

C No 00552 of 1999

ROOF SLATERS AND TILERS (VICTORIA)
AWARD 1995

Review under Item 51, Schedule 5,
Transitional WROLA Act 1996 re
award simplification

C2002/4164

ROOF SLATERS AND TILERS (VICTORIA)
AWARD 1995

Application under section 113 of the Act
re safety net review - wages May 2002

SYDNEY

9.32 AM, FRIDAY, 13 SEPTEMBER 2002

Continued from 9.7.02

THIS PROCEEDINGS WERE CONDUCTED BY VIDEO CONFERENCE IN SYDNEY

PN113

THE SENIOR DEPUTY PRESIDENT: I've called both these matters on at the same time because as I recall on the last occasion when I had the item 51 matter before me, it was said that everything had been agreed to, but I was asked to await for the next safety net review application to be made before the revised award was issued so I could incorporate that review. So that's the reason why I've called them both on together. Could I have the appearances starting with the union?

PN114

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

PN115

THE SENIOR DEPUTY PRESIDENT: And in Melbourne?

PN116

MR J. HOY: If the Commission pleases, I appear for the Australian Industry Group.

PN117

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Maxwell?

PN118

MR MAXWELL: Thank you, your Honour. Your Honour, perhaps if I can deal with the safety net adjustments issue first and then go onto the item 51 review. The application to vary the Roof Slaters and Tilers Award 1995 in regard to the safety net adjustment allowable under the safety net review wages decision of May 2002 found in print PR002002, the union seeks to increase the wage rates by $18 as allowable under that decision and to increase the wage related allowances by a percentage of 3.5 per cent which is in accordance with the formula annunciated in that decision and applied to the other building industry awards.

PN119

Your Honour, we also seek to increase the expense related allowances in accordance with the same decision and in particular principle 5A which is found on page 72 at print PR002002 which allows for existing allowances which constitute a reimbursement of expenses incurred may be adjusted from time to time where appropriate to reflect the relevant changes in the level of such expenses.

PN120

Your Honour, I should perhaps hand up a copy of a calculation schedule which shows how the new expense related allowances were arrived at. Unfortunately, I haven't sent a copy of this down to Mr Hoy. However, I did speak to a Mr Toby Halls from the Australian Industry Group in Melbourne yesterday and did email him down a copy showing how all the new wage rates were calculated.

PN121

In regard to the wage rates, I've not prepared a separate draft order because I've sought to incorporate them in terms of the item 51 review draft order. Before handing that up, if I can perhaps deal with the principles in regard to the wage increase. In regard to the requirement set out in principle 8A, the operative date we would be seeking would be the first pay period to commence on or after today's date. It's my understanding and unfortunately, your Honour, I haven't brought the previous order when the award was varied for the previous safety net adjustment but I believe it's 12 months.

PN122

THE SENIOR DEPUTY PRESIDENT: I think it's actually, the last occasion was the pay period commencing on or after the 25th of this month last year.

PN123

MR MAXWELL: Well, in that case, your Honour, we would seek the first pay period on or after 25 September to make sure that the 12 month period is complied with. In regard to the requirements of principle 8D in regard to the commitment in regard to absorption, I'm authorised on behalf of the union to give that commitment to the Commission that we give a commitment to the absorption of the increase of the safety net adjustment to the extent of any equivalent amount of over award payments.

PN124

In regard to principle 8E, the draft order which I will hand up soon contains the required clause to be inserted into the award. So on that basis, we believe that the requirements of the safety net review decision wages May 2002 have been complied with. Your Honour, perhaps if I can now hand up a copy of the draft order which seeks to incorporate those increases and the safety net adjustments.

PN125

THE SENIOR DEPUTY PRESIDENT: Yes. I first of all will mark the document and because I'm hearing both matters at once, I'll mark the calculation schedule as CFMEU5 and the draft order as CFMEU6. Because

EXHIBIT #CFMEU5 CALCULATION SCHEDULE

EXHIBIT #CFMEU6 DRAFT ORDER

PN126

MR MAXWELL: Thank you, your Honour. Your Honour, I think you may recall that on the last occasion when Mr Bodkin appeared on behalf of the union, we tendered a draft order at that stage which was marked as exhibit CFMEU4, but also our response to the matters raised by the simplification unit of the Commission and our response was marked CFMEU3.

PN127

In the draft order presented today in CFMEU6, we have reflected the changes that we identified were necessary in CFMEU3, but perhaps if I take you just briefly to identify what those changes are. On page 2, your Honour, in regards to the arrangement, we have deleted 18.3 from the arrangement and then renumbered the rest of clause 18 accordingly. In regard to clause 3, anti-discrimination, in 3.3.2, we have deleted all the words after "junior rates of pay".

PN128

In clause 4.4, the reference there to clause 13 has been changed to clause 14. In regard to clause 5, I've included the date of 13 September, but I believe that should be 25 September. In regard to clause 14.1 which is the weekly rates, we have updated the rates to take into account the safety net adjustment that we seek today and the same in 14.2. In 14.4.1, we have updated the clause to make reference to the safety net review wages May 2002 decision.

PN129

In 14.5 we have changed that to now read:

PN130

A special allowance of $7.70 should be paid to compensate for excess travelling time incurred by employees in the building industry and with the removal of loadings from the various building industry awards.

PN131

In 14.7 we have updated the leading hand rates of pay in accordance with the safety net adjustment. In clause 15 which is the piece work rates, we have updated all those for the safety net adjustment. In clause 15.3.13, we have just done a minor grammatical change by deleting the word "additional" which was repeated but within that clause. In clause 17.3 which deals with payment of wages, we have deleted the date and changed that clause which required the agreement of the union so that now reads:

PN132

Wages may be paid fortnightly by agreement between the employer and an employee and any failure to reach agreement should be dealt with in accordance with clause 10 Dispute Resolution Procedure.

PN133

In clauses 18.1 and 18.2, we have increased the allowance in accordance with the application that was made today. In 18.2.2, I should point out that in CFMEU4, what are now 18.2.2 K, L and M were 18.2.3, 2.4 and 2.5, but because of the way the clauses were raised that was wrong so I've changed that to K, L and M and then renumbered the rest of clause 18 accordingly.

PN134

I have deleted the old 18.3 which dealt with employee by ability. In regard to the new 18.3 which deals with multi storey allowance, the rates of pay have been increased in accordance with the application that was made today. Again, the new 18.6 which deals with meal allowance, we increased the amount in accordance with today's application and also with clause 19 which deals with special rates, we have increased the appropriate allowances.

PN135

I should point out that in regard to 19.4.1, we have deleted the rest of that clause after the allowance in accordance with what was proposed in CFMEU3. I should point out in regard to clause 20, superannuation, 20.1.2 which deals with the definition of ordinary time earnings, that has been varied to that that was contained in CFMEU4 on the basis that as you may be aware, the issue of ordinary time earnings, the definition of ordinary time earnings in superannuation clauses of the building awards has been a matter that was before the Commission.

PN136

Initially Commissioner Jones varied this award and the parent, the National Building Award effective from 1 April 2001. That matter was appealed and a stay was issued. However, the Full Bench handed down their decision, I believe in May of this year where they refused leave to appeal. Therefore, the original order of Commissioner Jones stands. I have a copy of that order, if necessary.

PN137

THE SENIOR DEPUTY PRESIDENT: I'm aware of that, Mr Maxwell.

PN138

MR MAXWELL: Sorry, your Honour, I varied that clause in accordance with that decision. In regard to the old 21.8 which dealt with the programming of RDOs, that has now been rewritten. It just says:

PN139

The parties will meet at state level to determine the RDOs for the following year.

PN140

In regard to 21.14 which deals with early starts, again that has been changed to remove the requirement that the union be involved. It now reads that:

PN141

Where an employee is a member of a union and requests the involvement of the union, the union will be entitled to be involved in the consultation.

PN142

In regard to 24.2.5 which deals with the method of taking annual leave, that has just been changed to state that:

PN143

Any dispute will be in accordance with the dispute settlement procedure.

PN144

Again in 24.6 which was a related matter, we've added that where it's referred to the Board of Reference, that's the Board of Reference established under clause 10 Dispute Resolution Procedure and a similar variation was done to 25.3.4 and 24.4.2. We've deleted the old 25.5.3 which dealt with carer's leave because it was a duplication with 25.5.1 and so we then renumbered them accordingly under 25.5.

PN145

In 26.11.11 (d) there was a wrong reference there. That reference has now been changed to 26.11.2 (a). In 28.1.3, it's just really a formatting change. That has been done. In clause 29.3 which deals with living away from home, the 29.3.1 and 29.3.2, the order has been reversed from the previous draft order that was supplied to show that the allowance comes first and also that the allowances within that have been adjusted in accordance with the calculation schedule handed up today.

PN146

29.4.1 is an updated allowance or the amount of the allowance. 30.4.2 (b) has been changed to refer to the correct clause number which is now clause 14 and the same with 30.5.2. In regard to 30.7, the "s" has been removed from provisions and the last proviso there that any transport be equipped with suitable seating has been removed. Also on the last page, again the date there will have to be changed to reflect the new operative date.

PN147

Your Honour, we believe that with those changes that that on our submission completes the simplification of this award and we would seek that the award be varied in accordance with the amended CFMEU6 with an operative date being the first pay period on or after 25 September this year.

PN148

THE SENIOR DEPUTY PRESIDENT: Mr Hoy?

PN149

MR HOY: Thank you, your Honour. I haven't had the opportunity of examining the draft order in any detail, nor speaking to Toby Halls in my Melbourne office and I'd request that we be given seven days to review the draft order and respond accordingly. I would note that as the variation being sought is prospective, the seven days would not give any disadvantage to the parties. I also raised the issue in respect to the variation in regard to the definition of ordinary time earnings for superannuation. It would be my position, your Honour, that that is a matter outside of the simplification exercise and also outside of a safety net review and I'd submit that it should be the subject of a separate application to vary the award.

PN150

THE SENIOR DEPUTY PRESIDENT: What's your position on that, Mr Maxwell? I thought this award, you indicated this award had been included amongst those awards that were varied by Commissioner Jones.

PN151

MR MAXWELL: It has, your Honour. I would seek to hand up a copy of the order issued by Commissioner Jones on 9 October 2001 which is found in print PR910125 and I will arrange to have a copy of that sent to Mr Hoy but the Roof Slaters and Tilers (Victoria) Award 1995 was indeed varied by Commissioner Jones and therefore once the appeal bench, although the order was stayed by Senior Deputy President Harrison in November 2001 following the decision of the Full Bench and I can find the reference to that at a later date if required where they refused leave to appeal, that then meant that the original order of Commissioner Jones stood.

PN152

So therefore the 1995 award was already varied to include the reference to the inclusion of the fares and travel allowance in accordance with print PR910125. So therefore we are doing nothing new in including it in the draft order for the item 51 review because the order itself already contains that definition.

PN153

THE SENIOR DEPUTY PRESIDENT: Mr Hoy?

PN154

MR HOY: Your Honour, I apologise. I now recall that there were, I think, three awards varied at that time: The Building and Construction Industry Award, The Building and Construction (ACT) Award and I am reminded that it was The Roof Tilers and Slaters Award so I withdraw that objection, your Honour.

PN155

THE SENIOR DEPUTY PRESIDENT: In any event, you'd seek another seven days to come back to the Commission on whether CFMEU6 is now an accurate depiction of the review and the safety net adjustment?

PN156

MR HOY: That's correct, your Honour, yes.

PN157

THE SENIOR DEPUTY PRESIDENT: If the Commission doesn't hear from you by the end of business next Friday, you understand the Commission will probably proceed to issue an order in those terms?

PN158

MR HOY: Yes, I accept that, your Honour.

PN159

THE SENIOR DEPUTY PRESIDENT: Is that satisfactory to you, Mr Maxwell?

PN160

MR MAXWELL: It is, your Honour. I should apologise to Mr Hoy for not sending him down a copy but I was actually still working on it yesterday afternoon but I will endeavour to email him a copy as soon as I get back to the office today.

PN161

THE SENIOR DEPUTY PRESIDENT: You'll also send him a copy of CFMEU5 which is the calculation schedule?

PN162

MR MAXWELL: I will.

PN163

THE SENIOR DEPUTY PRESIDENT: Are you in a position to forward to the Commission by email or an electronic copy of CFMEU6?

PN164

MR MAXWELL: I am, your Honour.

PN165

THE SENIOR DEPUTY PRESIDENT: Would you send that to my associate?

PN166

MR MAXWELL: Yes, your Honour.

PN167

THE SENIOR DEPUTY PRESIDENT: Well, we'll adjourn the matter on that basis in the hopeful anticipation that neither of these matters will have to be relisted but I'll await advice from Mr Hoy. Failing receipt of that advice by the close of business next Friday, the Commission will more than likely proceed to issue an order in the terms of CFMEU6. If Mr Hoy has any comments, no doubt he'll forward them also to Mr Maxwell and if they're matters of calculation, they may well be able to be sorted out before the end of next week in any event.

PN168

Both matters are adjourned on that basis. The Commission itself is adjourned.

ADJOURNED INDEFINITELY [9.49am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CFMEU5 CALCULATION SCHEDULE PN126
EXHIBIT #CFMEU6 DRAFT ORDER PN126