C2002/4229, Transcript of Proceedings [2002] AIRCTrans 4067 (14 October 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER McCUTCHEON

C2002/4229

TIMBER AND ALLIED INDUSTRIES AWARD 1999

Application by Construction, Forestry, Mining
and Energy Union to vary re clause 43 - Mixed
Functions

ADELAIDE

9.51 AM, MONDAY, 30 SEPTEMBER 2002

PN1

THE COMMISSIONER: Yes, I will take the appearances, please.

PN2

MS E. ADLAM: I appear on behalf of the CFMEU, together with MS E. SIAMI, also for the CFMEU.

PN3

MS S. KRAEMER: I appear for the South Australian Employers' Chamber of Commerce and Industry trading as Business SA.

PN4

MS J. WILLIAMS: I appear for the Timber Trade Industrial Association. I'm also appearing on behalf of the Victorian Association of Forest Industries.

PN5

MR T. HALLS: I appear for the Australian Industry Group, Laminex Industries and on behalf of the respondent members.

PN6

MS E. WATT: I appear on behalf of the Timber Merchants' Association of Victoria and I also seek leave to appear or to make interim appearance on behalf of the Victorian Employers' Chamber of Commerce and Industry.

PN7

THE COMMISSIONER: Thank you. Yes, Ms Adlam, your application.

PN8

MS ADLAM: Commissioner, I understand that our application today is being opposed by at least one employer group and consented to by, we understand, two employer groups. The remainder as at close of business on Friday, 27 September 2002 were silent on the matter. Before I commence my submissions to you today I would like to provide you with the evidence verifying service of documents in relation to matter 2002/4229 and then provide a brief summary of this matter before commencing my full submission, together with a range of exhibits in support of that submission. I will also just indicate to you that there may be a necessity for calling of witnesses given that the matter appears not to be one of consent. That is a matter of which we became aware as of 4.15 on Friday afternoon.

PN9

THE COMMISSIONER: Right. Well, that may cause some problems given the Commission's schedule today.

PN10

MS ADLAM: Yes.

PN11

THE COMMISSIONER: But you proceed in any event.

PN12

MS ADLAM: Commissioner, I would just like to hand up one exhibit that I have had the opportunity to provide my colleagues here with today but those on video conference would have received this when it was originally sent out. What it is is a copy of an E-mail of 4 September 2002 that went to all respondents on the substituted service list for the Timber and Allied Industries Award. It contains the E-mail plus two attachments that were sent out, one is a letter from National Secretary of the CFMEU Forestry and Furnishing Products Division, Trevor Smith, dated 4 September 2002, enclosing the draft correction order and a brief outline of the fact that it was a drafting error. The other attachment is the draft correction order as proposed at that time.

EXHIBIT #CFMEU1 COPY OF E-MAIL DATED 04/09/2002 PLUS TWO ATTACHMENTS

PN13

THE COMMISSIONER: Mr Halls and Ms Watt, have you received this material, letter dated 4 September from Mr Trevor Smith, National Secretary?

PN14

MR HALLS: If the Commission pleases, I believe that documentation has been received by our office.

PN15

THE COMMISSIONER: Good, thank you.

PN16

MS WATT: The Timber Merchants' Association has received that, yes.

PN17

THE COMMISSIONER: Thank you. Likewise?

PN18

MS KRAEMER: Yes.

PN19

MS ADLAM: Commissioner, my next document is a statement verifying the service of documents for C2002/4229. This is a statement verifying the service dated 24 September 2002 and it encloses correspondence again from Mr Smith, the notice of listing and this also went to the substituted service list respondents, a copy of our application to set aside or vary the award, a copy of the draft order or draft correction order, we haven't quite been sure what to call it, the application for substituted service and the substituted service list.

PN20

THE COMMISSIONER: Thank you.

EXHIBIT #CFMEU2 STATEMENT VERIFYING SERVICE OF DOCUMENTS

PN21

THE COMMISSIONER: Is any point being taken on the issue of service of this application?

PN22

MR HALLS: No, Commissioner.

PN23

MS WATT: No, Commissioner.

PN24

MS ADLAM: It just has been raised with us, Commissioner, that there was some concern about lateness of notice of this matter or lack of discussions or consultation and I would also say that before that registered post was sent out I also put the notice of listing and other documents on to the facsimile machine and sent it out to the substituted service parties so they could get it as quickly as possible and that notification was also received by us on 24 September, so it was both faxed and posted on the same day.

PN25

MS WILLIAMS: If the Commission pleases, I have not received any of those documents that went to you today, just now. I got a phone call from my office this morning - I'm from Sydney - saying that they had received a fax this morning at 9.20 Sydney time or 8.50 Adelaide time, saying that there were documents in an overnight post. I haven't received any of those documents.

PN26

THE COMMISSIONER: Do you have the application to vary before you?

PN27

MS WILLIAMS: Yes, I do. I haven't got the documents - whatever documents everyone else has got, I haven't got them.

PN28

THE COMMISSIONER: All right. Well, basically they are the substituted service and notice of listing. I will pass them to you to have a look at.

PN29

MS WILLIAMS: Thank you.

PN30

MS KRAEMER: Commissioner, if it pleases, my friend from the CFMEU has - yes, we have raised some concerns this morning about the notification of this matter, such that in terms of the facsimiles and also postal information we have received everything. However, it is our understanding and we were informed this morning that an E-mail was actually sent through at an earlier date. Unfortunately that E-mail was in fact sent through to another person in our office who was actually on leave and has been for some time on extended leave. As such we had not received notification until last week. We apologise.

PN31

MS ADLAM: Commissioner, clearly that was a matter of which I was certainly unaware and there was no E-mail returned to us to say that it had not been received, so as far as we were aware all parties received that E-mail on 4 September. We received an amended notice of listing on 25 September and distributed that also to the parties for substituted service. We did that, sir, by facsimile and there is a facsimile confirmation attached to that documentation.

EXHIBIT #CFMEU3 DOCUMENTATION

PN32

MS ADLAM: Sir, also on 27 September 2002 we sent by registered post a range of exhibits. We became aware that the matter perhaps was going to be contested on Friday. We were able to have access to the Commission's files, some of them only on Friday morning. We came down and photocopied them and got them out to the parties as expeditiously as we were able to. It is clear to me that perhaps not everybody has received them but we did send an E-mail as well saying that we were sending them and please could they look out for them. I have a copy of the postal receipts for those documents. It was a voluminous list so I haven't re-photocopied them and attached them to that but I'm more than happy to identify them. They are comprised of all the exhibits that I would intend to produce to you today.

PN33

THE COMMISSIONER: Right, okay.

PN34

MS ADLAM: We do apologise for that late service but in the circumstances there wasn't a lot more that we could do. Commissioner, I'm unaware of whether you would have received a copy of correspondence from the Victorian Association of Forest Industries whereby the Association disputes the union's position in regard to this matter.

PN35

THE COMMISSIONER: I'm just looking at the file now. No, there's no letter on the file.

PN36

MS ADLAM: I do have a copy. I would like to tender that letter dated 27 September 2002.

PN37

THE COMMISSIONER: Thank you.

PN38

MS ADLAM: I haven't brought copies for my friends.

PN39

MS WILLIAMS: No, I'm just appearing for the that Association and I have a letter saying that the position of the Association was that their - do not consent to the variation.

PN40

THE COMMISSIONER: This is the letter from Mr Murray.

PN41

MS WILLIAMS: This is a letter from Mr Murray to my CEO, Ms Beecroft, giving me authority to act on their behalf.

PN42

THE COMMISSIONER: Right. Well, let me just read that. I have just received a communication from the Furnishing Industry Association of Australia in New South Wales, a Mr Ross Nassif, indicating consent to the making of the variation in the terms proposed in the union's draft correction order that we received by fax on Tuesday, 24 September. Now, we don't have an appearance for that group at all, so we will just take the letter to indicate their position. I will just have a look at this other letter. This is from Mr Murray indicating a lack of consent and disputing some of the facts, I think, that might be relief on. Yes?

PN43

MS ADLAM: Yes, sir, I don't have a copy of the letter that Ms Williams has referred to.

PN44

MS WILLIAMS: I don't know if it is going to help my friend. It is a letter from Mr Murray to my CEO authorising me to act on behalf of that Association.

PN45

THE COMMISSIONER: Yes, and there is not a problem with that.

PN46

MS ADLAM: Thank you, sir. If it please the Commission, on 20 March 1995 the parties to the then Timber Industries Award 1990 gave a commitment to the Industrial Relations Commission in relation to the second safety net adjustment. The commitment was that we would review the award consistent with section 150A of the Australian Industrial Relations Act 1988. The key parties to the award met on 27 April 1995 and developed a process for that review. The process involved a drafting committee which reviewed the award consistent with the commitment given to the Commission by the parties. It was a lengthy and detailed task which, from perusal of the available documents and discussion with the participants from that time, proved to be a complex task.

PN47

One aspect, however, of the task is very clear. From both the documents I seek to tender and witnesses that I would intend to call there were some general principles adopted. Among these were that the award should be reviewed with the aim of ensuring that it is as user friendly as possible, consistent with national wage case principles and significantly, that throughout this review the award would retain all existing conditions and that the review was not concerned with enhancing or detracting from the then present range of conditions.

PN48

The general principles are contained within my exhibits and I will provide them in the course of my submission together with documentation regarding the review of the award and the series of drafts and re-drafts of the working party and lists of deletions and clauses to be revised. The exercise culminated in the Forest and Building Products Manufacturing and Merchandising General Award 1996 which was itself transformed into the Timber and Allied Industries Award 1999.

PN49

In my submission, in between drafts of February 1996 and August 1996 of the Being Reviewed Award changes inadvertently occurred in the drafts. Despite careful proofing of the drafts a change was certainly made from the mixed functions clause of the Timber Industry Award 1990 to the Forest and Building Products Manufacturing and Merchandising General Award 1996 and this change was not picked up by the parties.

PN50

Despite assertions which may be made by those opposing this application, the union at no time, at no time, consented to any variation to the mixed function clause, nor was there arbitration on this matter. Yet the clause dramatically changed from providing for higher duties payment for time so worked up to 2 hours and providing for higher duties payment for time in such day or shift in excess of 2 hours. So the provision under the Timber Industry Award 1990 provided that if you were doing a higher level function for less than 2 hours you were paid the higher level for the time so worked. If you were in excess of 2 hours you were paid for the whole of the day or shift.

PN51

The change then provided a clause that provided just for payment for time so worked where it occurs for 2 hours or more, a significant change, Commissioner. In the Timber and Allied Industry Award the change was from a payment to an allowance but the substance of the clause when the Timber and Allied Industries Award was made in 1999 carried forward the inadvertent change. Probably part of the reason that the drafting error continued undiscovered is that the practice of payment of higher duties in the industry has continued consistent with the old Timber Industry Award 1990 until very recently with the advent of a new employer who has raised the wording of the award as an issue and thus bringing it to our attention.

PN52

This occurred, I understand, late in August and the union sought advice immediately from the Commission in regard to how this matter should best be dealt with in correspondence of 23 August. Unfortunately, the Commission was unable to assist us in terms of advice so we have made the section 113 application to restore the wording of the mixed functions clause of the Timber and Allied Industries Award 1999.

PN53

As you have seen from the documents so far tendered, the union sent out advice of our application to the respondents named in the substituted service list by E-mail on 4 September 2002 and again with the notice of listing on 24 September 2002. Before Friday, 27 September, the only response was from the Timber Merchants' Association who asked for and received information to satisfy them to consent to the application. I don't have their correspondence as yet, Commissioner, but they advise me such is on the way.

PN54

At 4.15 pm on 27 September the union received a response from Mr Nick Murray from the Victorian Association of Forestry Industries indicating that they do not accept there was a drafting error and thus will oppose our application. Thus, Commissioner, the union appears before you today prepared to proceed to present our case and seeking that you issue an order in the terms sought which will restore the Timber and Allied Industry workers their minimum rights in terms of the mixed functions payment.

PN55

Commissioner, I would like to commence the chief part of my submission today by tendering the exhibit which is a memo of 2 May 1995, signed by Trevor Smith, National Secretary of the CFMEU Forestry Division, which went to the major parties in the Federal Timber Industry Award 1990.

PN56

MS WILLIAMS: We haven't seen any these documents, Commissioner. These are the documents that apparently, I think - - -

PN57

MS ADLAM: Were bagged.

PN58

MS WILLIAMS: - - - were bagged and supposed to be at my office at some point today, which is in Sydney. I haven't had an opportunity to read any of these documents.

PN59

THE COMMISSIONER: Well, given that situation, what do you suggest is the best way for this matter to go forward?

PN60

MS WILLIAMS: Well, I would have thought that at least the parties should have the opportunity of looking at the documents that are being sought to be relied on. I know that my friend has an application that she feels it is a substantive change to the award and therefore needs to deal with her members, but certainly I haven't - none of the documents here before - and Ms Adlam says that she is going to provide witnesses. I think that the matter may proceed to a full hearing but we also would have to provide witnesses and we didn't realise that that is where we were at this conference today.

PN61

THE COMMISSIONER: Ms Adlam, it appears what I thought was going to be a relatively straightforward matter is now no longer straightforward. What do you suggest is the best way to deal with it? For me to adjourn it and direct the parties to confer and then re-list it?

PN62

MS ADLAM: That might be of some assistance, Commissioner. I mean, we were somewhat astounded that earlier communications received absolutely no response at all and to only hear that we had opposition on the matter on Friday afternoon wasn't helpful. We're very concerned that our members not be disadvantaged by delay in the matter but, you know, we appreciate that the parties haven't obviously got the documents. I'm not sure whether there is disputation from Ms Williams about receiving the E-mail on 4 September or not.

PN63

MS WILLIAMS: I have an E-mail but that is what I have. I have the E-mail and I have a document dated 25th of the 9th but I don't have any of the other documents that even my friends have.

PN64

THE COMMISSIONER: Well, I'm thinking a couple of things. One, I think it is going to be useful if the parties do confer because it may be that you are able to show them on the documents of how this scenario developed. Have you had access to the history file of the Commission?

PN65

MS ADLAM: Yes, sir, in fact all my exhibits were taken from the Commission's file on Friday, yes. I understand though that the opposition comes from very - the position that - certainly Mr Nick Murray is stating that my predecessor, Mr Hartman, agreed to the provision so we have a very basic disagreement about the facts. It may be that that significant amount of time that has transpired since that occurred has affected Mr Murray's memory, I don't know, but it may be that discussion would help.

PN66

THE COMMISSIONER: Does the transcript of proceedings give you any guidance?

PN67

MS ADLAM: The transcript is absolutely absent of any kind of reference to the mixed functions clause, sir.

PN68

THE COMMISSIONER: Yet an order was made.

PN69

MS ADLAM: Sorry, no, the order was made for the new award that incorporated the voluminous changes that the parties had agreed to and somehow this mistakenly occurred.

PN70

THE COMMISSIONER: Right. Well, I think the safest thing to do is to adjourn it and allow the parties to confer. I'm just wondering what the most effective way of doing that is, but I guess I'm in your hands there. Mr Halls and Ms Watt, what is your view? Were you intending to consent or were you opposing?

PN71

MR HALLS: Commissioner, as far as the Australian Industry Group is concerned, it could be made clear that from the outset it appears that we are unlikely to oppose this variation. However, given that we have been advised also on Friday that this documentation would be arriving in the mail this morning we would certainly appreciate some time to peruse that documentation before forming a position on the issue.

PN72

THE COMMISSIONER: Right.

PN73

MS WATT: Commissioner, the Timber Merchants' Association received the documentation this morning and I managed to review it prior to the hearing and it does not change our position. We consent to the variation in the absence of concrete evidence of an agreement to vary that specific clause, and in the absence of any explanation, lack of section 113 application to vary at the time, the Victorian Employers' Chamber of Commerce and Industry has asked for 14 days to review the documentation that they will be receiving later this morning. They haven't had an opportunity to review the documentation and comment on the position.

PN74

THE COMMISSIONER: All right, thank you. I think the best thing is to re-list it in a fortnight's time. My associate is nodding her head. I think we should set it down for a day, shouldn't we, just in case it is a full scale argument.

PN75

MS WILLIAMS: If it please the commission, as I'm from Sydney would it be appropriate that we have a Sydney - - -

PN76

THE COMMISSIONER: Video? Yes, I was going to suggest that. I don't - the airlines are making enough money already. My associate tells me we have got nothing available until 28 October. Would you like me to ask Munro J to re-assign it?

PN77

MS ADLAM: Well, sir, I'm just concerned about what happens in the interim in terms of the provisions of the clause.

PN78

THE COMMISSIONER: Well, it would seem to me that the problem has arisen with one employer raising the issue.

PN79

MS ADLAM: Yes.

PN80

THE COMMISSIONER: The others, from what you are telling me, have gone on.

PN81

MS ADLAM: Yes.

PN82

THE COMMISSIONER: I think you would have to monitor what is going to happen. Those who are consenting are hardly likely to be instructing their members to change anything.

PN83

MS ADLAM: No.

PN84

THE COMMISSIONER: So that confines it to Mr Murray's organisation who are what, paying the clause as it stands, do you know?

PN85

MS WILLIAMS: I have no instructions on that.

PN86

THE COMMISSIONER: Well, all I say is this. I encourage all the parties to make sure careful records are kept of any higher duty functions. This matter is now alive and it may be the subject of an operative date down the track. I think that is the best I can do, Ms Adlam, it is not like a stay order.

PN87

MS ADLAM: No, thank you, sir, that is helpful.

PN88

THE COMMISSIONER: I will get my associate to put out fresh notices of sitting. Can we make sure everybody has all the documents that are necessary for that next sitting in the event that those documents persuade one or other to change positions. I'm quite happy to accept from the parties a letter to that effect. I mean, if we end up with a consent variation it can be done without the attendance. All right?

PN89

MS ADLAM: Thank you, sir.

PN90

THE COMMISSIONER: Thank you.

ADJOURNED ACCORDINGLY [10.17am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CFMEU1 COPY OF E-MAIL DATED 04/09/2002 PLUS TWO ATTACHMENTS PN13
EXHIBIT #CFMEU2 STATEMENT VERIFYING SERVICE OF DOCUMENTS PN21
EXHIBIT #CFMEU3 DOCUMENTATION PN32