C2001/2001, Transcript of Proceedings [2002] AIRCTrans 889 (20 March 2002)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N VT02837
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WATSON

C2001/2001

NATIONAL BUILDING AND CONSTRUCTION
INDUSTRY AWARD 2000

Application under section 113 of the Act
by Construction, Forestry, Mining and
Energy Union to vary the above award
to give full effect to the August 1989
National Wage Case decision and to further
implement the decisions of the Commission
in regard to a new classification structure

MELBOURNE

11.10 AM, TUESDAY, 5 MARCH 2002

Continued from 29.1.02 in Sydney

THE FOLLOWING HEARING WAS CONDUCTED BY VIDEO CONFERENCE IN MELBOURNE

PN600

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Thomas, I understand that there is an application in effect to vary directions by the New South Wales MBA.

PN601

MR THOMAS: There is, your Honour. Your Honour, on 21 February last I sent a fax to your office requesting that you vary the directions made by you on 29 January last. In that fax I proposed the following schedule: that the CFMEU provide its written submission to you by noon, Monday, 29 April; each of the employer organisations to provide submissions and any evidentiary materials they intend to rely on by noon, Monday, 20 May; the matter listed for hearing, Monday, 27 May, subject to your availability. The request was made on a number of grounds. At the time we indicated to you the view of the Master Builders Association of New South Wales and other federally registered Master Builder organisations that it was appropriate that the Commission be provided with a comprehensive and reliable information base in response to the questions that the Full Bench had posed for you to report on.

PN602

We restated our view to you that a national survey provided the best opportunity for achieving that. That the Master Builder organisation was in the process nationally of conducting such a survey and that the survey information gleaned was intended for use in proceedings before the Commission in this matter but given the directions and given the nature of the questions, that it was in our view fair and reasonable in terms of the Commission's consideration of this matter that you have an opportunity to consider that material in framing your report to the Full Bench. We also expressed a view that it would be appropriate also for this to be taken into account by the CFMEU in considering any response they might want to make to employer submissions.

PN603

Now the survey that was proposed involves six separate organisations nationally with something like 14,000 members. The survey will be mailed to all members and it will contain a number of questions which bear directly on the questions posed to you by the Full Bench for report. Now if I may diverge for a moment and indicate to you the questions that we are asking bearing on this matter. We are seeking information regarding the company and its activities; what sector of the building and construction industry it works: commercial, domestic or maintenance; the main type of work carried out by the company, be it bricklaying, steel fixing, gyprocking, concreting, carpentry and joining, a builder or simply project management; in which state the company operates or in which states; what sort of area within the state the company operates: capital city, outside a capital city or region; does the company employ staff under the award or under a certified agreement of this or another tribunal and what type of agreement that is, namely direct with employees or with the CFMEU or another union entitled to enrol members within the industry.

PN604

Turning to the issues upon which you were asked to report we put a direct question, the company carried out a trial of the construction worker structure as part of the implementation of an EBA or otherwise. If the company still operates on the award structure what would be the likely impact for the company in a transition to that construction worker structure. If the company operates on the construction worker structure now what was its experience and difficulties moving employees from award structure to the construction worker structure. Describe the access which your company has to training in building and construction industry competencies and what facilities does the company have within its own organisation for competency assessment.

PN605

Now that is a cross-section of the questions that we are putting to - the Master Builder organisation nationally is putting to the whole of its membership. It has been necessary you will appreciate for discussions to take place at the organisational level in order that - to executive director level. All organisations within the Master Builder movement had commitment to the survey to ensure maximum possible response. Equally it has been necessary for cost and other logistic considerations to co-ordinate that survey with other communications, mail-out communications that we have with our membership. All Master Builder organisations are distributing the survey by mail-out.

PN606

Now when I first foreshadowed a survey in the proceedings of 29 January I indicated that the survey process would require a period of at least two months and that view has not been changed by the organisational effort that has been necessary to put together the survey, negotiate for it to be conducted as a national exercise and to plan the circulation of the survey to all members of the movement.

PN607

THE SENIOR DEPUTY PRESIDENT: There has been a period, Mr Thomas, since 29 January. That through to 26 March is almost two months in any case.

PN608

MR THOMAS: Well, your Honour, I know that. The stage that has been reached is that the final format for the survey is with all Master Builder organisations and the Master Builder movement, through the Master Builders Association of New South Wales, has proposed the schedule contained in the application made to you mindful of the scope of the exercise both before the issue of the pro forma and after the issue of the pro forma. My submission to you this morning is that the content of the survey bears directly on the matters the Full Bench referred to you for report and indeed if you read the decision of the Full Bench it is clear that in those questions which go to trialing and translation they are matters that the Full Bench has placed importance on.

PN609

We have taken the course we have because we believe it important that the Full Bench for consideration of the MBA case have as full as possible understanding of the industry as is practicable. Now I realise that this imposes a strain on the patience of Mr Bodkin's organisation.

PN610

THE SENIOR DEPUTY PRESIDENT: And the Commission, Mr Thomas.

PN611

MR THOMAS: Well, I certainly did not intend it to strain the patience of the Commission or Mr Bodkin. The fact that remains is that it is clear from a reading of the Full Bench decision that they required information on particular questions and it was equally clear that although perhaps a more time-consuming method it was nevertheless a more precise method to attempt to gain an understanding of a significant part of the industry.

PN612

THE SENIOR DEPUTY PRESIDENT: Why are you proposing dates of 20 May for the employers to put materials to the Commission in circumstances where on 29 January the issue of a survey was, well, at that time you were putting time estimates of some two months and the program set down there provided almost two months at that time but now we come back with a proposition that there, in effect, be a delay of two months in the hearing date from 26 March to 27 May?

PN613

MR THOMAS: Your Honour, at 29 January the discussions which had been held internally within the Master Builder movement had been discussions directed at the implications of the Full Bench decision and an appropriate way for addressing it. The planning and implementation of a survey had, at that particular time, not commenced and indeed the first step in that, a meeting at executive director level, to consider on conducting a survey didn't take place until after 29 January even though there were discussions at, shall I term, the officer level prior to that.

PN614

THE SENIOR DEPUTY PRESIDENT: When did that meeting occur?

PN615

MR THOMAS: I think it occurred within one or two weeks of the hearing before you, the 29th.

PN616

THE SENIOR DEPUTY PRESIDENT: Yes.

PN617

MR THOMAS: I am not sure of the date but it was a meeting of MBA executive directors.

PN618

THE SENIOR DEPUTY PRESIDENT: Yes, go ahead.

PN619

MR THOMAS: Now I can say no more than state my earlier remarks. The survey that we are proposing involves the entire Master Builder movement spread through a number of separate organisations nationally. It is not the sort of exercise that is planned, implemented and conducted in a short time. It requires a number of different organisations to be aware of what is proposed and the way in which it is proposed to carry it out.

PN620

THE SENIOR DEPUTY PRESIDENT: Yes.

PN621

MR THOMAS: Now in terms of the Commission, the report to the Full Bench and in terms of the material that the Full Bench needs to consider in discharging its role in relation to the CFMEU claim, I believe that it is appropriate to delay the proceedings in the manner that has been proposed for the very simple reason that the information sought bears directly upon the subject matter of the questions posed to you and in terms of the further progress of this matter it is appropriate that you take them into account in the context of your report to the Full Bench rather than at a later stage.

PN622

THE SENIOR DEPUTY PRESIDENT: Well, what concerns me is that the MBA seems to think the timing is a matter in its hands. I mean, frankly I am surprised that the, if the MBA intended to undertake the survey, it hasn't commenced already.

PN623

MR THOMAS: Well, I can only say, as I have said earlier, your Honour, that it is not a small undertaking. It is not a small undertaking.

PN624

THE SENIOR DEPUTY PRESIDENT: No, but - that may be so but if the MBA believed the material was pertinent and necessary one would have thought some prompter action, having regard to the directions issued on 29 January, would have occurred. Do you have a copy of the survey instrument that I could have faxed to me from Sydney?

PN625

MR THOMAS: I can certainly fax a copy to you. It is - - -

PN626

THE SENIOR DEPUTY PRESIDENT: Well, if I can arrange for someone from Registry to visit can that be faxed to me now?

PN627

MR THOMAS: Yes, your Honour, it can.

PN628

THE SENIOR DEPUTY PRESIDENT: Very well. Yes. Anything further?

PN629

MR THOMAS: I do indicate to you that it is the view of the Master Builder movement nationally that this particular avenue is the most appropriate way for dealing with the matter. I also indicate to you that the survey covers other issues that are on a, shall I say, a similar timeframe to proceedings before you. They are matters of immediate importance within the movement. I do indicate to you that it is in that context that I will have the whole of the document faxed to you so you are in a position to see the - - -

PN630

THE SENIOR DEPUTY PRESIDENT: Yes. Yes, I have just arranged for my associate to contact someone in the Sydney Registry and obtain that from you, Mr Thomas.

PN631

MR THOMAS: Thank you, your Honour.

PN632

THE SENIOR DEPUTY PRESIDENT: Can I ask, going back to 11 December when the Full Bench decision was issued, why it was the MBA didn't give some consideration then to paragraph 82 and the means by which they might address those issues?

PN633

MR THOMAS: Well, your Honour, there was certainly consideration given to paragraph 82. I can say that it was probably largely a matter of disruption of staffing arrangements over the Christmas period that caused it and the availability of - the fact that key personnel weren't available until late, very late in January, involved directly with this matter.

PN634

THE SENIOR DEPUTY PRESIDENT: Yes.

PN635

MR THOMAS: That is a factor. It is not an overwhelming thing but certainly, certainly I think it is fair to say that copies of the decision were circulated to the organisations making up the Master Builder movement and there was early consideration during January but not in a form that could have been said to be implementation of what is a reasonably ambitious survey, both in terms of its scope and resources required.

PN636

THE SENIOR DEPUTY PRESIDENT: Yes, very well. When are respondents to your proposed survey required to respond, Mr Thomas?

PN637

MR THOMAS: We were aiming, your Honour, to have the material available, having the information available back to us late April in order that we might have time to assemble it in a form that could be submitted to the Commission, and indeed to the CFMEU.

PN638

THE SENIOR DEPUTY PRESIDENT: When was the survey sent to members?

PN639

MR THOMAS: Well, the survey has not been sent to the members yet. It is with all of the constituent MBAs now and it will go out with their next mail-out.

PN640

THE SENIOR DEPUTY PRESIDENT: Why is that? Why are we sitting here today with the survey not even having been sent?

PN641

MR THOMAS: Your Honour, because it is a common practice with the Master Builder movement to co-ordinate mail-outs to members, as far as practicable, and this goes to, not only to organisational matters but a range of other matters.

PN642

THE SENIOR DEPUTY PRESIDENT: I am sorry, I don't understand that. What does that mean?

PN643

MR THOMAS: There is a cost consideration in mailing out these documents. For that reason the organisation attempts to co-ordinate mail-outs of this type with other material going to members and that is what is being done on this occasion.

PN644

THE SENIOR DEPUTY PRESIDENT: And when is the proposed mail-out?

PN645

MR THOMAS: I believe later this week.

PN646

THE SENIOR DEPUTY PRESIDENT: So respondents are being given in the order of six weeks to respond? Why is that?

PN647

MR THOMAS: Well, I believe I have explained that in terms of the consultation that was necessary within the organisation on what sort of survey would go forward.

PN648

THE SENIOR DEPUTY PRESIDENT: Well, you are telling me the survey will be sent later this week, coinciding with some other - - -

PN649

MR THOMAS: I can confirm that with you, your Honour, but I believe that it is that sort of timeframe.

PN650

THE SENIOR DEPUTY PRESIDENT: With replies being sought in late April. Why is a period of six weeks being provided for responses?

PN651

MR THOMAS: Well, because we have a membership of 14,000 it is necessary to, after these things go out, to follow up with members to attempt to get the responses in.

PN652

THE SENIOR DEPUTY PRESIDENT: So you don't think your members would treat the issue seriously enough that they would respond without badgering by the MBA?

PN653

MR THOMAS: I don't believe - I believe that they will treat the matter seriously, your Honour.

PN654

THE SENIOR DEPUTY PRESIDENT: It just seems an inordinate period of time.

PN655

MR THOMAS: It may appear to be an inordinate period of time, your Honour, but it is quite a significant exercise. It will require some time of the members concerned and a large proportion of those members are small businesses.

PN656

THE SENIOR DEPUTY PRESIDENT: Yes.

PN657

MR THOMAS: In fact a preponderance of those businesses are small businesses.

PN658

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Anything further?

PN659

MR THOMAS: No, your Honour, other than to recapitulate that I believe that the content of the survey, when you are able to examine it, will make it clear that it is focussed on the subject matter of the questions directed to you by the Full Bench and that I submit too that it will be clear to you that it would be beneficial in terms of an overall response to those questions that you have available material from the survey now being conducted.

PN660

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Mr Warren, did you wish to put anything?

PN661

MR WARREN: Just to support Mr Thomas, your Honour. Amongst our Associations, the executive committees of the Associations are the contractors and if we could just handle this amongst the paid staff we could probably speed it up but any issue like this the executive committee has to be involved in, has to be informed. They are all contractors. Over the Christmas period they are flat out before Christmas getting the Christmas workload out. The industry closes down for Christmas week, and then they come back and usually the first meeting is in February and these are people who are giving their time to come along, again some running small business, some bigger.

PN662

But getting out to the members - I think there is something like 25,000 respondents to this award, that is individually named respondents, plus the many thousands more who are members of the MBA or Civil Contractors or the Master Painters so we are talking about a massive number of employers when compared with some of the other awards where these matters can be dealt with much more quickly.

PN663

THE SENIOR DEPUTY PRESIDENT: Well, the 25,000 individually named respondents aren't being surveyed?

PN664

MR WARREN: No, your Honour, but we need to cover as many of those as we can, I think, to give the Commission a - - -

PN665

THE SENIOR DEPUTY PRESIDENT: Well, I thought the survey was going to members of the MBA. Is it also going to members represented by yourself, Mr Warren?

PN666

MR WARREN: Yes, I am just getting off Mr Thomas the actual survey and some of our members will be asking those same key questions and be able to provide the Commission with the same information when it comes back and the timeframe again is much the same. We have to get it out with the monthly mail-out and then get the responses back. So it is not an easy process but I think to give the Commission a solid basis for understanding what has happened with the construction worker concept we should be giving you - - -

PN667

THE SENIOR DEPUTY PRESIDENT: Are you telling me there is nobody has any knowledge of that within the employer organisation?

PN668

MR WARREN: Well, your Honour, it has been put on two bases to you. We have said that no one has so far got to the construction worker concept. The CFMEU has put to you that some 11,000 enterprise agreements mention the construction worker concept and therefore it has been tried. We say there has been no trial whatsoever. We must be fair and make sure that is correct and we are going out to individual members. We are unaware of any individual member who has consciously said, we will adopt the award construction worker concept. A construction worker concept does appear in enterprise agreements but it is not necessarily the same concept.

[11.39am]

PN669

It is the same name. It is like saying two books are the same because they have a similar title. That is not the case and that is what we wish to put before you by way of evidence rather than by just saying, well, there is a mention in an agreement of a construction worker therefore it is the same as the award. So we are trying to get that as solid evidence. We would like to be able to have this information to give to the Commission. We think that it would really assist the Commission and would help you to form a considered opinion rather than two competing claims which at the moment have no real solid basis to put before you. So we would support Mr Thomas in that regard.

PN670

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Mr Sherman.

PN671

MR SHERMAN: Yes, your Honour, we would only add that we also support the proposal put forward by the Master Builders. At this point in time we have nothing to add.

PN672

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Tahar.

PN673

MR TAHAR: Thank you, your Honour. Yes, we just support what has been proposed by the Master Builders as a basis to ascertain or allow yourself to have a basis on which the three questions that have been put to you have a more factual basis than the claims made by Mr Bodkin on behalf of the CFMEU. So we support it so far and we are asking our members informally and that will be forming part of our submissions.

PN674

THE SENIOR DEPUTY PRESIDENT: Yes. Can I ask who is being surveyed? First Mr Thomas?

PN675

MR THOMAS: Well, the survey is going to all members of all affiliates of the Master Builder movement. So that is the Master Builders Association of Queensland, WA, South Australia - - -

PN676

THE SENIOR DEPUTY PRESIDENT: How many companies does that involve, Mr Thomas?

PN677

MR THOMAS: In round terms, your Honour, I think there is something like 14,000 members.

PN678

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Warren?

PN679

MR WARREN: Your Honour, I am not sure about the interstate situation. The Master Painters New South Wales will be surveying 7000 members. The ..... Association is in the matter of hundreds, not that many. I am not sure about the Civil Contractors Federation. Mr Vale(?) is recovering from surgery and I haven't had a chance to discuss it with him so I am not sure whether they will be surveying their membership but that runs in the several thousand as well.

PN680

THE SENIOR DEPUTY PRESIDENT: Mr Sherman?

PN681

MR SHERMAN: Well, your Honour, I have no numbers at hand that I can give you but all I can say is that if we were to be party to this survey it would be sent out to all our members who get service from the National Building Construction Industry Award.

PN682

THE SENIOR DEPUTY PRESIDENT: How many is that, Mr Sherman?

PN683

MR SHERMAN: I would only be guessing, your Honour.

PN684

THE SENIOR DEPUTY PRESIDENT: Very well. Mr Tahar?

PN685

MR TAHAR: Yes. At the moment we were proposing to put, as I said, the questions informally to our membership committees on a national level and in addition if this survey was made available to us we would envisage a similar timeframe because, just like the Master Builders, in order to inform our members we do regular mail-outs and it would have to be attached to a regular mail-out, then returned, compiled, assembled. I can see that Mr Thomas' timeframe is quite realistic given the numbers that he mentioned.

PN686

THE SENIOR DEPUTY PRESIDENT: Pity it didn't commence in December of last year but never mind. I am sorry, Mr Harridge, I have overlooked you. Did you wish to put anything at this point?

PN687

MR HARRIDGE: Only to say that we support the submissions made by the Master Builder movement and we would not be conducting the survey ourselves.

PN688

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Mr Bodkin?

PN689

MR BODKIN: Your Honour, what you have before you, in effect, is an application to delay your report by several months to enable the MBA and the other employer organisations to gather evidence. But what is not just before you but before the Full Bench Mr Thomas' letter of 21 February specifically states that, in the second last dot point, he said:

PN690

The survey -

PN691

in his letter he said -

PN692

The survey is intended for use in the proceedings before the Commission in this matter.

PN693

And then he went on this morning to say that the survey would produce evidence for consideration by the Full Bench of the MBA case. Well, we know what the MBA case is, it is the case they have already run before the Full Bench and were unsuccessful. So what is being sought is to, in effect, re-argue matters before the Full Bench which have already been determined. Mr Warren said much the same thing. He has again said this morning that no trials have taken place. But, of course, that is contrary to the Full Bench finding in paragraph 82 at question 1 where they ask you to report on whether any further trial is necessary.

PN694

So the Full Bench has found that trialing has taken place, contrary to what was argued by the employers before them. But now the employers want to re-open that issue before the Full Bench by sending out a questionnaire. Of course, we all know that questionnaires can be structured and manipulated and designed so as to produce a particular result. Now my argument is that the employers have had this opportunity for the past nine months and at this late stage they now want you to give them the opportunity to gather further evidence. Now if you go to the questions that Mr Thomas proposes to ask of his members pretty well all of those questions are not relevant to the matters that you are required to report on, your Honour.

PN695

Mr Thomas mentioned in his submissions a number of questions including the likely impact for the company of a transition to the new structure. Well, that simply is not relevant to what you are being asked to report on. Another question which is being asked is what were the company's experiences, what is the company's access to training and to competency assessment. All those matters have been decided, your Honour. It was decided by the Full Bench that the access to training is available throughout Australia and that was determined on the evidence of the executive director of the Construction Training Australia and those questions are certainly not relevant to the three matters that you have been asked to press.

PN696

The only relevant question that Mr Thomas has mentioned in his whole speech this morning is this one, has the company carried out a trial. That certainly would be relevant. But the MBA has had the opportunity to ask their members that question from the time the union filed its application last year and indeed it is most surprising that apparently they haven't done that. I have prepared, your Honour, a chronology of proceedings to date which I have faxed down. I don't know if you have it in front of you.

PN697

THE SENIOR DEPUTY PRESIDENT: I do have it.

PN698

MR BODKIN: But I think it is pertinent, your Honour, to consider the course that this case has run so far. The application was filed on 11 April last year and on 22 May last year the parties were served with the full application and the notice for hearing before Commissioner Harrison. So on the 22nd - roundabout 22 May last year the employers had the application which was in the terms of the draft order and they were notified that there was going to be a hearing. That was in May of last year. The first hearing before Commissioner Harrison was on 1 June last year and at that hearing the employers sought and were granted an adjournment of eight weeks to allow them to consult with their members amongst themselves.

PN699

There was a conference between the union and the employer representatives on 16 July where the employers said in their view that no trialing as comprehended by Appendix S had been carried out. On 26 July there was a report back to Commissioner Harrison and all employers at that hearing opposed the application. Commissioner Harrison adjourned the matter for six weeks and directed the parties to file and serve outlines of submissions. There was an opportunity for a survey. On 4 September there was a further hearing. That was the programmed date for the hearing of the submissions before Commissioner Harrison but instead of putting submissions on the merits of the case the employers made an application under 107 for a reference to a Full Bench.

PN700

Two days later that reference was granted. That is 6 September they had a reference granted. On 10 October last year the Full Bench directed the parties to file and serve submissions and then on 13 November there was the Full Bench hearing of the application. So effectively from roundabout 22 May to 13 November the employers could have surveyed their members and indeed they had asked on 1 June for an eight week adjournment to consult their members. On 11 December last year the decision was issued by the Full Bench. Since 11 December the employers have known that they would need to make submissions on those three matters if they wish to have an input to your report.

PN701

Then the next stage was 29 January which was the programmed proceedings before yourself, your Honour. The parties were directed to file written submissions. An application then was made at that hearing by the employers for some delay in order to survey their members, even at that late stage. Effectively they got what they asked for because in your directions they had until I think it is the 30th of this month to put in their submissions. They waited three weeks after 29 January to seek a variation of your directions. From the chronology, your Honour, it can be seen that the employers have been aware of the full scope of the application since May of last year.

PN702

That in my submission they have had ample opportunity to gather, collate and present whatever evidence they may have thought to be relevant. Throughout the proceedings the employers argued that there had been no trialing and review as comprehended by Appendix S. Now significantly the Full Bench has found that trialing has taken place because they ask in the first question whether any further trialing is necessary. Your Honour, trialing, translation and requirement of the skills based classification structure did not suddenly arise with the Full Bench decision. These matters were covered in your 1995 decision to make Appendix S and they were covered in Appendix S itself.

PN703

These matters have been the subject of further discussion and debate since the first hearing of the application in June of last year. Your Honour, I would like to refer briefly to the transcript of proceedings before Commissioner Harrison on 1 June, 4 June and 26 July of last year.

PN704

THE SENIOR DEPUTY PRESIDENT: Yes.

PN705

MR BODKIN: If I could take you to the hearing on 1 June - although Auscript reported that it was before Senior Deputy President Harrison, he had not been promoted, he was still, and still is, Commissioner Harrison.

PN706

THE SENIOR DEPUTY PRESIDENT: Yes.

PN707

MR BODKIN: That was on 1 June. If I can take you, your Honour, to paragraph number 17 at page 4 of the transcript.

PN708

THE SENIOR DEPUTY PRESIDENT: Yes.

PN709

MR BODKIN: And that is the submission by myself where I say, and I quote:

PN710

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.

PN711

So there is a clear declaration by the union as to what we say the situation is. Then if I could take you to further submissions by myself and if I could take you over to page 6 where Mr O'Donnell, who at that hearing appeared for AIG, said at paragraph number 28:

PN712

Commissioner, we would agree that there is a need for discussions, organisations 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.

PN713

That was the AIG. Mr Murray appeared for Master Builders. Half-way down that page at paragraph number 31 and Mr Murray said:

PN714

If the Commission pleases I confer with what has been put by my friend for the AIG. There will need to be some discussions amongst our membership -

PN715

I stress that, amongst the MBA membership -

PN716

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 ...(reads)... for us to have our various discussions and it may well be possible for a consent position to be developed in that time.

PN717

That is on 1 June last year, your Honour, where the MBA specifically say they need two months to have discussions amongst their membership and the constituent organisations. My question is, what happened to those discussions. Then on the next page, paragraph number 38, I said I don't really see why two months is necessary but if the employers are going to insist they need two months then the union conceded they have two months and on the next page it can be seen that the matter was adjourned to 26 July. So that was the first opportunity the MBA, and indeed all of the employers, had to consult their members and to carry out a survey if they thought that was going to throw some light on matters that were to be argued before the Commission. I now take you to the transcript of 26 July before Commissioner Harrison.

PN718

THE SENIOR DEPUTY PRESIDENT: Yes.

PN719

MR BODKIN: And it can be seen on page 5 of the transcript at paragraph number 68 that there was an exhibit tendered by the CFMEU which set out the translated classifications and the new wage groups. So it was clearly on the table on 26 July; on the table since the time the application had been served. Further down that page the CFMEU amend a draft order. Then on the next page, that is page 7 and paragraph number 82, there is a submission by Mr Thomas for the MBA. He said:

PN720

Thank you, Commissioner. The position of the Master Builders Association of New South Wales and indeed the other organisations that I appear on behalf of this morning has not changed. Our position is one of opposition and indeed we believe that the application represents a quite fundamental change for what is the current status of the main body of the award post modernisation.

PN721

So clearly the MBA are saying that they oppose the application completely, that is on 26 July. Then on page 9 there is a submission at the bottom of the page by Mr Warren and if we can take you over to page 10, to paragraph number 97, in the third sentence Mr Warren says, and I quote:

PN722

There have been enterprise agreements in which the CW structure is used but it is not an identical structure. It is similar but not identical and doesn't have a lot of the features that are in this particular document. So it has never been used. So it hasn't been trialled.

PN723

So that is much the same as what fell from Mr Warren this morning and throughout the proceedings before the Full Bench. They have been running that argument all along. They didn't succeed with that argument before the Full Bench. Now they want to, at this late stage, adduce further evidence to try to prove their point. Then also on page 10 at paragraph number 98 Mr Warren continued:

PN724

We would also point out that many of our members in the traditional trades have never endorsed the construction worker concept and I know the Master Painters for example have not endorsed that concept and are not in support of that concept.

PN725

So there is a resistance. So, your Honour, what would you expect a survey of the Bisco members to produce? On page 12 of that transcript the Commissioner said at paragraph number 111 that he adjourned the matter, he directed the union to file and serve an outline of its submissions by 17 August and the employers were given until 28 August to respond and the Commissioner set down the hearing for 4 September. At the very latest, your Honour, there was the golden opportunity for the employers to gather and collate the evidence that they considered appropriate to support their case.

PN726

There was a further hearing on 4 September last year before Commissioner Harrison. That was the scheduled hearing for the - to hear the merits of the case but instead of the merits of the case being heard the employers made an application for a section 107 reference. If I could take you to page 22 of the transcript, at paragraph number 261 there was a submission by Mr Thomas where he said:

PN727

We would agree with the submission, Commissioner. Just add that the Appendix as it exists has never been implemented. There would be no evidence before you that it has ever been implemented.

PN728

So here is Mr Thomas on 4 September last year raising the question of evidence, says there is no evidence that it has ever been implemented and he continues at paragraph number 262:

PN729

So whilst this provision has been in the award since about 1990 there has never been any evidence before the Commission that any party has implemented Appendix S.

PN730

Now, your Honour, the point I take here is that if that is the assertion of Mr Thomas before Commissioner Harrison on 4 September when he was asking for a section 107 reference why then at that stage even why didn't Mr Thomas gather his evidence which he knew, he knew the point was going to be argued and he has raised the question of evidence himself but apparently did nothing about it and neither did any of the other employer organisations. So in summary, your Honour, the periods that have been available for the MBA and for the other employers to survey their members are, firstly, they had eight weeks from 1 June, that is the adjournment that asked Commissioner Harrison to grant in order to consult their members and to consult amongst themselves; eight weeks from 1 June.

PN731

They had another, a further six weeks from 26 July last year to prepare submissions for Commissioner Harrison. They had a further 10 weeks from 4 September to prepare for the Full Bench hearing. They had seven weeks between the Full Bench decision last December and your directions hearing on 29 January, they had seven weeks then to survey their members if they hadn't already done it and, of course, another four weeks now between the directions hearing and this application for an amendment of the directions. Now, your Honour, altogether that is 27 weeks from the first adjournment in June of last year to the making of their request for an extension of time to carry out this survey, 37 weeks.

PN732

Actually I point out, your Honour, almost three months have now passed since the Full Bench decision. It was clear from paragraph 83 of the Full Bench decision that the parties would be required to make submissions on trialing, translation and requirement if they wished to have an input to your report because paragraph 83 says, and I quote:

PN733

We envisage that his Honour will provide the relevant organisations of employees and employers with an opportunity to make submissions on these matters prior to finalising his report. We will list this matter for further hearing on receipt of his Honour's report.

PN734

That is on 11 December. Now even if you have a nice Christmas break of three or four weeks you have still got another 12 or 14 weeks to do your survey, so the Christmas break is no excuse. The MBA, your Honour, could have taken steps to carry out this survey when the decision was issued last December. Now in relation to this survey, your Honour, as I have said surveys can be structured and questions formulated to provide a particular result and for any weight to be given to a survey it would be proper for it to be adduced as evidence obviously and that, of course, would invite cross-examination by the union of various employer participants in the survey because the union is simply not going to take at face value the results of a so-called survey.

PN735

We would want to be cross-examining participants as well as probably the compilers of the survey and the compiler of the results. Now it is most unlikely that a lengthy proceeding involving a national survey and the taking of the evidence was contemplated by the Full Bench when it issued its direction under section 107(10) last December. It is apparent, your Honour, that the Full Bench considered that you are in a unique position to report upon the three matters subject of paragraph 83 of the Full Bench decision, that you provide the parties with an opportunity to make submissions on these matters.

[12.05pm]

PN736

Now what the Full Bench said was an opportunity to make submissions on these matters - I stress the word submissions - because the Full Bench did not direct the parties to make submissions. Indeed it is conceivable that your report could be made in the absence of any submissions if the parties decline to make submissions. Your report isn't dependent upon submissions if the parties didn't choose to make them. So what is being asked of you now is to go far beyond the parameters of the three questions. What is being asked of you is to give the employers an opportunity to put evidence to you. That was never contemplated, inn my submission, by the Full Bench when it issued its direction. Now, your Honour, the Act states that:

PN737

The Commission may inform itself in such manner as it considers just and may determine the periods that are reasonably necessary for the fair and adequate presentation of the respective cases of the parties.

PN738

That is section 110. Now in the circumstances of this case you would do no injustice to the employers if you were to inform yourself by way of submissions, as contemplated by paragraph 83 of the Full Bench decision, and within the timetable set out in your directions of 29 January. Now that is a reasonable timetable for the fair and adequate presentation of the parties' submissions. I point out to your Honour that the MBA is obviously the organisation that is - really is the only organisation that really had any intention or has any intention of attempting a survey. Of course, the MBA is not the only representative of employers in the industry. There are thousands of employers who are not members of any organisation and there is no provision there for their views to be ascertained on any of these matters.

PN739

Indeed parties to the award had their opportunity to put submissions both before Commissioner Harrison and then before the Full Bench. So what is being put to you is that you get a one-sided view of the world in order to assist an MBA case, supported by other employer organisations, that perhaps the Full Bench got it wrong and that the Full Bench ought to reconsider. Now being that you allow this survey to be done and delayed your report, there is no indication that the Full Bench would be prepared to admit further evidence. They have heard the case and made a decision. Why would the Full Bench admit further evidence going to matters that were argued before them such as the assertion that there has never been any trial.

PN740

Your Honour, it has been pointed out by the High Court and at least one Full Bench of this Commission that:

PN741

Procedural fairness requires only that a party be given a reasonable opportunity to present its case and not that the Tribunal ensure that a party takes the best advantage of the opportunities to which it is entitled.

PN742

That quote comes from a Full Bench decision in print R2804 which was a decision issued by Senior Deputy President Harrison[sic], Deputy President Drake and Commissioner Hodder on 12 March 1999 and the quote appears at the top of page 4 of that decision. It is my submission that the employers have had more than a reasonable opportunity to present their case, both before the Full Bench and before yourself. It was up to the employers to take the best advantage of the opportunity that they were given. To take best advantage as they saw fit. It is too late now, your Honour, for the survey to be started. It hasn't commenced. It is too late for it to commence for you to consider it.

PN743

There should be, in my submission, no alteration to your directions though I point out that the CFMEU has filed and served its submissions to you in accordance with your direction and it is my submission that the employers should follow those directions and put in their submissions by the appointed date. So the CFMEU is totally opposed to this idea of an alteration to your directions.

PN744

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Bodkin. Mr Thomas, anything in reply? Perhaps I could indicate I do have your survey instrument before me. Can I take you to that before you reply? The front page refers to:

PN745

Please help us to better help you by promptly completing this survey and returning it to the MBA office by the due date.

PN746

But on my examination of the document no due date is revealed.

PN747

MR THOMAS: That is correct and that will be part of the document when it goes out, your Honour.

PN748

THE SENIOR DEPUTY PRESIDENT: And you say that would be - - -

PN749

MR THOMAS: The document I have submitted was one that I brought down here. It is the final draft of the document; the document that I had available at the office.

PN750

THE SENIOR DEPUTY PRESIDENT: Yes.

PN751

MR THOMAS: Now the relevant part of the survey is page 6.

PN752

THE SENIOR DEPUTY PRESIDENT: Yes.

PN753

MR THOMAS: Page 2.

PN754

THE SENIOR DEPUTY PRESIDENT: Question 1 there, what sensible information would that be capable of eliciting? Does your company pay employees based on the award competency based CW structure?

PN755

MR THOMAS: That is the - - -

PN756

THE SENIOR DEPUTY PRESIDENT: Does it pay the rate? Does it apply the structure? It is - - -

PN757

MR THOMAS: The clause 20 of the award which is, in effect, Appendix S as it was incorporated into the main body of the - that is what that question means.

PN758

THE SENIOR DEPUTY PRESIDENT: But how would a respondent know whether you are talking about the rate or using a competency based structure but applying a different rate or - - -

PN759

MR THOMAS: There are rates in clause 20 of the award.

PN760

THE SENIOR DEPUTY PRESIDENT: So if an employer - if a company paid above the award then they would answer no to that question, is that correct? But if they utilised precisely the - - -

PN761

MR THOMAS: It would depend whether the company was paying in accordance with clause 19 or clause 20. Now the original pay structure is clause 19.

PN762

THE SENIOR DEPUTY PRESIDENT: Yes.

PN763

MR THOMAS: Clause 20 is a provision which is, in effect, Appendix S incorporated into the main body of the award following Commissioner Merriman's exercise in award simplification.

PN764

THE SENIOR DEPUTY PRESIDENT: Well, let us say a company utilised the competency based structure, had the accreditation and all the rest, but paid above the award, would they answer yes or no to that question?

PN765

MR THOMAS: They would answer yes.

PN766

THE SENIOR DEPUTY PRESIDENT: But they don't pay employees based on the structure - I just have difficulty seeing how - - -

PN767

MR THOMAS: They would - the question is designed to elicit a response based on the provisions of the entire clause, not just the rates.

PN768

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

PN769

MR THOMAS: The competencies, the method for recognition of competencies and that is the response - the issue here is making that particular clause the provision precedent in terms of rates of pay within the award and our argument all along is that - - -

PN770

THE SENIOR DEPUTY PRESIDENT: As minimum conditions, yes.

PN771

MR THOMAS: Now our, to take Mr - my colleague Mr Warren's argument one step further our submission to the Full Bench was that even if one looked at the range of certified agreements with the CFMEU that were in place there was none of them that reflected a pure adoption of clause 20. So therefore how could there be any trial of clause 20.

PN772

THE SENIOR DEPUTY PRESIDENT: Well, that was an argument already put to the Full Bench and determined by them.

PN773

MR THOMAS: And indeed that brings me to my response to Mr Bodkin's assertions and to his chronology. The fact of the matter is that our actions were prompted by consideration not just of paragraph 82 but also paragraphs 81 and 55.

PN774

THE SENIOR DEPUTY PRESIDENT: Well, 55 says that enterprise bargaining is not an inappropriate means of having tested it.

PN775

MR THOMAS: No.

PN776

THE SENIOR DEPUTY PRESIDENT: But that matter has been dealt with already.

PN777

MR THOMAS: Precisely.

PN778

THE SENIOR DEPUTY PRESIDENT: Mr Bodkin - - -

PN779

MR THOMAS: Precisely, your Honour.

PN780

THE SENIOR DEPUTY PRESIDENT: Mr Bodkin put his submissions to the Full Bench, the employers had an opportunity to respond.

PN781

MR THOMAS: And that is the response.

PN782

THE SENIOR DEPUTY PRESIDENT: Why does that matter arise now?

PN783

MR THOMAS: If I can put to you the way that it has influenced our thinking since. It says that:

PN784

The fact that a review of the type envisaged by Deputy President Watson has not yet been conducted is not fatal to the CFMEUs claim. These proceedings and the process we envisage for finalisation of the matter before us have effectively supplanted the need for a separate review.

PN785

There the Full Bench is making clear that the matter then before them not fully decided by that decision but indeed the matter including the reference under section 107(10) to you is part of the process we envisage for the finalisation of the matter. The review is not fatal. Then it says:

PN786

The contention that the trial/facilitative process envisaged by Appendix S was not pressed and was overtaken by the focus on enterprise bargaining does not provide a sufficient basis for rejecting the application.

PN787

THE SENIOR DEPUTY PRESIDENT: Yes.

PN788

MR THOMAS:

PN789

Deputy President Watson's decision did not prescribe any particular process for the trial and it is not necessarily the case that enterprise bargaining is an inappropriate means for trialing a new structure. We deal with the issue of whether there is a need for further trialing later in this decision.

PN790

THE SENIOR DEPUTY PRESIDENT: Yes.

PN791

MR THOMAS: That, of course, being paragraph 82:

PN792

The fact that the application of Appendix S was initially limited in terms of its geographic application does not create an impediment to its general application. It may suggest a need for the further trialing in some geographic locations. This is a matter to which we shall return later.

PN793

I turn now and relate those remarks with the observations made by the Full Bench in paragraph 81 and in framing the terms of their reference to you. My submission to you is that paragraph 52 invites submissions and presumably supporting evidence, and I presume that supporting evidence would be generally in accordance with the provisions of section 110 of the Act which Mr Bodkin has referred to you and particularly the general method of investigation contemplated in section 110(1) in relation to whether trials were conducted, if so what those trials were and I would also go one step further and say if there is evidence of a trial what was the result of it.

PN794

Now the Full Bench's decision does not exclude an enterprise agreement as a means for trialing a structure.

PN795

THE SENIOR DEPUTY PRESIDENT: Correct.

PN796

MR THOMAS: But the word trial presupposes that there is some understanding between the parties that there is a framework within which the trial will take place. What are the matters to be considered or monitored or measured by the parties? What levels of performance or what levels of compliance, whatever, are to be considered by the parties after and what are the options agreed between the parties if the expectations of the performance of whatever is being trialled are not to the expectations. Now the approach that we have adopted rightly or wrongly is to fill in what is, I suggest, a significant question mark raised by paragraph 55.

PN797

I hear everything of what my colleague says about the chronology. Unfortunately I put to you that in this particular case it is not relevant. We are attempting to address not only the matters referred to you in paragraph 82 but the - - -

PN798

THE SENIOR DEPUTY PRESIDENT: Well, what is the relevance in that context of questions 5 and 6 of section D of the proposed survey?

PN799

MR THOMAS: Well, that has to do - that has, once again has to do with the resources available within the company survey to apply the provision that is to become the minimum standard in the award, or certainly in Mr Bodkin's submission. I mean, our submission to the Full Bench was that if you looked at a number of different certified agreements - we draw particular attention to those in New South Wales, Victoria and South Australia - whilst they might have had rates different or structures different to clause 19 of the award, in no case was the agreement invoking the structure contained in clause 20. And I am talking now about the - - -

PN800

THE SENIOR DEPUTY PRESIDENT: Why would I be dealing at all with issues of access to training infrastructure and the like in light of the Full Bench conclusion at paragraph 72?

PN801

MR THOMAS: It has to do with the means for translating employees from the current to the proposed classification structure.

PN802

THE SENIOR DEPUTY PRESIDENT: But that is a question of the translation structure, not a question of - - -

PN803

MR THOMAS: Well, translation - well, there is also a requirement to be in a position to manage or administer.

PN804

THE SENIOR DEPUTY PRESIDENT: Not as I understand the Full Bench decision, Mr Thomas.

PN805

MR THOMAS: Well, the proposition we are putting is in relation to the overall implications of clause 20. Whether you are translating to it or managing movements from one level to another within it once translated, and that is the thrust of the question.

PN806

THE SENIOR DEPUTY PRESIDENT: Very well. Anything further?

PN807

MR THOMAS: Your Honour, I can do no more than in the very clearest terms refute Mr Bodkin's assertion that all of this goes back to a plot that started on 11 April. My most recent remarks to you have been directed to what I suggest are clear and salient questions raised by the decision of the Full Bench that became available on 11 December and it is - the matters referred to you and indeed the implications of paragraph 55 for those questions that have, in very large part, guided our decision to embark on a survey of this nature, along with a very clear impression from a reading of the Full Bench's decision that they were desirous of information as regarding what was in place on the ground and it is that that has guided our actions since December this year.

PN808

The other point that I would make is that I would assume that both the proceedings before the Full Bench and any proceedings before you for purposes of informing you on matters falling within the reference to you would be the subject of provisions of section 110, particularly those that, of 110 that require you to inform yourself on matters appropriate carefully, quickly and inquire and investigate the matters at issue. My very clear submission to you is that the questions posed in that survey are central to the matters referred to you by the Full Bench and I believe that both your consideration and that of the Full Bench would be assisted even at this late stage, as Mr Bodkin may assert, by the availability of hard information and hard evidence.

PN809

THE SENIOR DEPUTY PRESIDENT: Very well. Anything further?

PN810

MR THOMAS: No, your Honour.

PN811

THE SENIOR DEPUTY PRESIDENT: Very well. The Full - - -

PN812

MR WARREN: Your Honour, may I just make one - - -

PN813

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Warren.

PN814

MR WARREN: Just on one point Mr Bodkin has continually put to you that the Full Bench has said that some trialing has taken place and we are saying it hasn't. I think it is a fundamental thing. The Full Bench has accepted at face value the use of enterprise agreements has provided some form of a trial but the whole key to the terms of reference to your Honour are that the Full Bench has not been satisfied in its mind that that trialing has been comprehensive or that it has in fact adequately tried the construction worker concept as inserted into the award. I think that is something that is being glossed over by Mr Bodkin who is clearly saying there has been some trialing and effectively saying ..... further.

PN815

What we are saying to you is that the fundamental question we raise with the Commission into your inquiry is whether the trialing which has taken place, if indeed there has been any trialing, of course as Mr Thomas said there has been no questions posed, no answers given for that trialing that any of the employers are aware of. So we just say that it will be necessary to produce evidence to you that the enterprise agreements have not tried the same system. That is what we are saying, that the trial needs to be of the construction worker system as envisaged in the original decision and as inserted in the award clause. If the Commission pleases.

PN816

THE SENIOR DEPUTY PRESIDENT: Thank you. Anything further from the other end of - - -

PN817

MR BODKIN: Yes, your Honour. That was exactly what Mr Warren put to the Full Bench.

PN818

THE SENIOR DEPUTY PRESIDENT: Yes, very well. The Full Bench in print PR912386 has referred certain matters to me in paragraph 82 for preparation of a report to the Full Bench. The matter was listed for programming on 29 January 2002 for the purpose of the report. There, at paragraph numbers 588 to 591, I set down a program for the purpose of providing the parties an opportunity to be heard in preparing the report required by the Full Bench. At that time the employers, led by Mr Thomas for the MBA, sought a period in which, a period of some two months in which it could undertake a survey of its members.

PN819

The program set down on 29 January was set bearing that request in mind and providing a period although a slightly lesser period for the employer organisations to file materials in a period of around two months before proceedings were further listed. Now by a facsimile of 21 February 2002 the employers again, and again led by Mr Thomas for the MBA, seek a variation of those directions the effect of which would be to provide a postponement of the earlier program by a period of some two weeks, notwithstanding five weeks which have passed since 29 January. The employers still seek a two month period in which to undertake the survey.

PN820

I am not inclined to and do not vary the directions given on 29 January 2002. It appears to me that some of the matters raised by the employers and incorporated in the survey seek to re-argue matters already before the Full Bench and in respect of which it has had an opportunity to put evidence and submissions. More particularly the further application to - or the further application to vary the directions to further extend the proceedings seem directed to accommodate the requirements of the employer organisation in respect of mailing arrangements, for Christmas breaks and the like and not to accommodating the program previously set by the Commission.

PN821

There seems to have been no endeavour whatever to comply with the earlier set program which did provide a period of two months before the final hearing and a period up until 20 March for the preparation of submissions and evidentiary materials by the employers. It is trite to note, as the Full Bench did in print R2804, that procedural fairness requires the Commission to provide a reasonable opportunity for parties to present a case, not to ensure that the parties take the best advantage of that opportunity. In my view the employer parties have had adequate opportunity to obtain whatever materials they wish to put before me for the purpose of preparing a report and there is no justification for a variation to the program previously set down at this point.

PN822

I would conclude by indicating that the matters raised by me in paragraph 590 remain relevant. The matters before me for report to the Full Bench are limited in scope and are the only matters I am able to and will deal with. Submissions should be directed in that way. I will now adjourn these proceedings.

ADJOURNED INDEFINITELY [12.35pm]