C2001/5464, Transcript of Proceedings [2003] AIRCTrans 112 (10 January 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT ROSS

C2001/5464

NATIONAL BUILDING AND CONSTRUCTION
INDUSTRY AWARD 2000

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

SYDNEY

10.04 AM, THURSDAY, 19 DECEMBER 2002

Continued from 18.12.02

PN540

THE VICE PRESIDENT: I note there are no changes in the appearances. I have received correspondence from the MBA and Bisco of New South Wales. I might mark those; the MBA document as exhibit MBA 7 and Bisco as exhibit Bisco 3.

EXHIBIT #MBA 7 CORRESPONDENCE FROM MASTER BUILDERS ASSOCIATION

EXHIBIT #BISCO 3 CORRESPONDENCE FROM BISCO

PN541

THE VICE PRESIDENT: Do you have copies of those?

PN542

MR MAXWELL: Your Honour, I have copies of the MBA correspondence but not that of Bisco of New South Wales.

PN543

THE VICE PRESIDENT: I'll just give you a moment to read that, Mr Maxwell. Perhaps we might proceed on this basis; I hear from Mr Murray in reply then if there is anything Mr Warren wants to add to his letter and anything he wishes to say in reply. Similarly, with Mr Sherman and then I'll give Mr Maxwell an opportunity to deal with the issues raised in exhibits MBA 7 and Bisco 3. Yes, Mr Murray?

PN544

MR MURRAY: Thank you. Your Honour, there are two broad issues raised here by Mr Maxwell; first of there's a section 111(1)(g) question. Would you have me deal with that separately or pick that up as I go through?

PN545

THE VICE PRESIDENT: Mr Maxwell has put it on the basis that, as I understand it, the merit argument also forms part of his 111(1)(g)(iii) case, that is that I should dismiss the matter pursuant to section 111(1)(g)(iii) on the basis of the prior proceedings and also on the basis that there is no merit in the application. That is, as I understand it, the essence of it so I am content for you to deal with them together.

PN546

MR MURRAY: Thank you, your Honour. Perhaps just briefly then in relation to prior proceedings I made some submissions in relation to those prior proceedings yesterday but to add to those, the prior proceedings are not particularly recent, we're talking about proceedings which took place in 1998 and 1999. Those were in a completely different context to this. They were, of course, the section 89A review of the entire award. Now, there was a consent position reached admittedly at that time. There were a number of reasons for that consent position being reached but Mr Warren has kindly also noted in Bisco 3 that at the time it was noted by my friend Mr Maxwell, and I'll read here from page 377, and this is Bisco 3:

PN547

We say that those advocating a change will still be able to apply to vary the award as long as they can mount a substantial case with proper evidence for it to succeed.

PN548

So, very clearly, it was not set in stone at that time, there was no agreement or position between the parties that this was the end of the part time question. It was, as I said yesterday, a question of pragmatism of bringing to a close what had been somewhat protracted proceedings in the award review. Now, in relation to the various from part 3 of Mr Maxwell's written submissions; perhaps if I go through them in turn, your Honour. First of all at 3.1 Mr Maxwell says that:

PN549

Daily hire and regular part time employment are incompatible.

PN550

He relies upon the submissions made at 2.13(f) of his written submissions. In my submission that is not the case at all. Daily hire is not incompatible with part time at all. In the National Building and Construction Industry Award there are three modes of employment; there is daily hire, weekly hire and, of course, casual. The principal difference between daily hire and weekly hire in the context of the award comes down to the period of notice for termination of employment and some detailed differences in the treatment of inclement weather and stand down.

PN551

It is wrong, however, to say that daily hire is irregular and not continuous. The definition of continuous employment of the award at clause 4.15 makes that quite clear. Daily hire is an essentially continuous form of employment terminable on a day's notice and with provision for stand downs and with provision for time off, some of it with pay in conditions of inclement weather.

PN552

THE VICE PRESIDENT: And no access to the unfair dismissal provisions?

PN553

MR MURRAY: There is in fact access to unfair dismissal provisions. The exclusion of regulation 30B(a) is in relation to the question of notice and not exclusion totally and we have any number of unfair dismissal cases that run in this jurisdiction and in the State jurisdiction under the similar provisions of the State award for daily hire employees. The one exclusion is notice and notice alone.

PN554

THE VICE PRESIDENT: Right.

PN555

MR MURRAY: It's not an hourly hire employment, it's not an irregular employment, there is provision for the accumulation of rostered days off over a 19 day cycle which of itself connotes an ongoing employment relationship. There is provision for the payment of redundancy and the redundancy scale shows that there is provision for redundancy based on length of service up to periods of over four years again indicating that the relationship is not an irregular one.

PN556

One of the awards that I noted in exhibit MBA 7, the Building and Construction (Northern Territory) Award; now, that provides for part time employment and admittedly it's for a very limited class of person; it's largely for camp cooks and people like that but It's part time employment on a daily basis so there is an award in the Federal jurisdiction in this industry which clearly provides for part time employment of daily hire employees; part time employment on a daily basis.

PN557

THE VICE PRESIDENT: Is there any evidence of the use of that clause?

PN558

MR MURRAY: I don't have evidence of the use of that clause at this time, your Honour. I'm not claiming that its use is widespread. As I say it's limited to a particular class of employee and its camp cooks and people of that ilk but it's there, it's a provision that recognises that daily hire is not incompatible with part time.

PN559

THE VICE PRESIDENT: Just while we're on the question of use, and I have interrupted you on that point, you may be coming to it anyway but you will recall I asked you a question about the extent to which the New South Wales award provisions had been utilised, whether there had been any work done on that. In Mr Maxwell's submission he deals with that point because as I understand it the New South Wales Act requires such arrangements to be registered and he goes through those that have been registered and characterises them in a particular way. Do you contest any of that?

PN560

MR MURRAY: I don't contest the fact that there is a requirement fro these arrangements to be registered and I don't contest what Mr Maxwell has gleaned from those that are registered. I will, however, come to the question of the relevance of the extent to which these provisions are used very shortly, your Honour.

PN561

THE VICE PRESIDENT: Yes, thank you.

PN562

MR MURRAY: So now, as I say, daily hire in my submission is not incompatible with part-time. Principally all that will be different is that the number of hours will be less. Rather than have 38 hours and a 19 day cycle with the accumulation of RDO, there will some lesser number of hours but the same sort of relationship. Also the provisions that we seek are not confined to daily hire. There are of course a weekly hire of employees under this award, including operators and in certain states apprentices.

PN563

Now, casual employment is a very different thing. Casual employment essentially is an irregular form of employment. It's limited by time. There's no expectation of ongoing work. Employees trade away such things as their annual holiday entitlements, public holidays, sick leave, redundancy, the protection of unfair dismissal laws, in return for a 25 per cent loading on their rate of pay, a very different creature entirely.

PN564

And therefore I say that it's wrong to equate daily hire with casual and to say that daily hire in some way obviates the need for a part-time employment provision. We would say that what we are instead asking for is something that has much more security than casual, much more regularity than casual, but a lesser number of hours per week.

PN565

In relation to 3.2, I've largely covered that this morning I think and yesterday. The context of that were very, very different. It wasn't an application to insert part-time, it was a review of the award, and there are a number of factors which led to at that time the approach being taken of consent and therefore the arbitration of the part-time was essentially moot because the parties had agreed.

PN566

At 3.3 Mr Maxwell says that the grounds on which the application is made are insufficient to justify an award being varied. Now, we would say that the extent to which the parental leave provision is being used is not relevant here. That's a different provision for specific circumstances. The parental leave provision is there for a particular reason, and it's limited in its scope to, as we've already canvassed, those with new-born children or newly adopted children. It's very limited therefore in the way in which it operates, and what we're seeking is something rather more broad. The existence of parental leave however is illustrative of the fact that part-time can in fact exist in conjunction with daily hire and weekly hire employment in this award.

PN567

Now, as to the evidence of whether employees are being hindered or excluded, well there has been quite a number of witnesses given evidence, and in particular Lukersmith, and this is at MBA4. Ms Lukersmith, an occupational therapist, gave evidence which was not subject to cross-examination of the way in which part-time provisions would facilitate, which is the converse of evidence showing the employees are hindered. If it can be said that the insertion of a provision which would facilitate part-time employment would have that effect - let me start that again. If it can be said that the insertion of part-time employment provisions would facilitate employment, the converse is that the absence of such a provision hinders employment. And we say that the reasons are set out reasonably clearly in Lukersmith's statement that part-time employment would facilitate persons who have physical limitations.

PN568

Now, we heard from Ms Mallia yesterday about the protections of the New south Wales Workers Compensation Board. But she also accepted on cross-examination that those don't extend to every case. They don't extend - - -

PN569

THE VICE PRESIDENT: So is the state of the evidence this, that insofar as employees who are engaged, Ms Lukersmith's evidence really goes to: it would facilitate the return to work of employees who had received injuries or illnesses that were not work-related, bearing in mind the employers already have an obligation in respect of work-related injuries.

PN570

MR MURRAY: Well, the employers' obligation is fairly closely confined. Their obligation is that they must not dismiss within the first six months for the reason of the injury. They may well dismiss for other reasons. A new employer therefore might be approached for work. We have a worker who has been injured in the content of work but a second employer is being approached. Now, unless that employee has full capacity there is no ability for that new employer to offer part-time.

PN571

THE VICE PRESIDENT: Yes, okay.

PN572

MR MURRAY: Also an employee injured outside the work context, a sporting injury for example, they will have no opportunities there.

PN573

THE VICE PRESIDENT: Right. So, in respect of new employers, injured workers approaching them, and in respect of injuries that have occurred outside the work context?

PN574

MR MURRAY: Yes.

PN575

THE VICE PRESIDENT: In those circumstances Ms Lukersmith's evidence is pertinent you say because her evidence is to the effect that such employees would benefit from a general part-time work provision because it would allow them to be engaged?

PN576

MR MURRAY: Yes. There's also the question of older employees and employees that have capacities limited by other factors than injury. And Ms Lukersmith gave evidence of that, and there's also evidence in the survey, MBA2, that part-time would also allow those persons to work and for their skills to be retained and transferred within the industry. If I refer you to graphs 12 and 13 of MBA2. Graph 12 shows from the survey that we carried out that some 73 per cent of respondents agreed that part-time employment would be a useful alternative for older workers unable to work full-time, and graph 13, some 71 per cent agreed that if older workers could be retained on a part-time basis this would assist in the retention and transfer of skills.

PN577

Now, of course those older workers, their workers' compensation protections have really no bearing on their situation in the same way as the workers' compensation provisions have no bearing on those injured outside the work context or outside the direct employment relationship.

PN578

Also on paragraph 3.3 of Mr Maxwell's submissions, he claims that the application would not provide a fair and reasonable framework on the basis that there would be some disadvantage done in relation to overtime. In my submission that could readily be dealt with with some minor refinement of the words of the application and need not be a barrier to the overall application.

PN579

THE VICE PRESIDENT: Sorry, can you just go over the point for me please.

PN580

MR MURRAY: Yes. If I read from 3.3 of Mr Maxwell's submission:

PN581

The draft order supplied by the MBA seeks a clause that will disadvantage ...(reads)... eight ordinary hours of work.

PN582

And he refers to clauses of the award:

PN583

Under the draft order overtime rates overtime rates do not apply until ...(reads)... a reduction in award standards.

PN584

That's not our intention, and that could readily be resolved, I would submit, by some minor refinement of the words to cover that particular question. It's not our intention that workers be engaged for longer than eight hours in an individual day at ordinary rates.

PN585

Now at 3.4 Mr Maxwell makes the submission that there is no direct evidence that the lack of general part time employment provision has acted as a barrier to the employment of more women in the industry. Well again we have evidence that the insertion of the part time provision would facilitate the entry of women and we also have evidence from both sides that the extent of employment of women in classifications of the order in this industry is exceedingly low. Percentage in single figures I think there was the Royal Commission's working papers and also the evidence of Ms Hart on that point.

PN586

THE VICE PRESIDENT: What evidence do you rely on in support of the proposition that a general part time work provision would facilitate the entry of women?

PN587

MR MURRAY: The evidence that we rely upon in relation to that is the evidence of Ms Hart. Now Ms Hart as well as being a representative of the National Association of Women in Construction is also a person who works within the industry. Has lengthy and extensive experience within the industry.

PN588

THE VICE PRESIDENT: I think she conceded that there was no, in response to a question that I put that there was no evidence by way of survey or empirical evidence to support the proposition - in relation to the construction industry to support the proposition that the provision of part time work would facilitate the entry of women. She indicated that there was some evidence from other industries but not specifically this industry.

PN589

MR MURRAY: Yes, and other industries the evidence was that the insertion of part time provisions facilitated the entry and retention of women in the workforce. There was also - I don't have that evidence but I - Ms Hart said that there is evidence so I think that is the state of where it is up to at the moment. From her position within Merrick and within the industry but there is also at least some survey evidence and that is MBA2 where we asked the question and at both 5 of MBA2 some 19 per cent of the respondents indicated that they would be able to employ more women in trades and related work if there was provision for part time employment.

PN590

THE VICE PRESIDENT: It would have been interesting to have asked the question of those who have part time arrangements how many women do they employ, was that question asked?

PN591

MR MURRAY: That data could be extracted from the survey results. The question wasn't asked itself but each of the survey responses is in the form of a form and one could easily match of say those that responded that they have part time employees with those that responded that they have female employees. I don't think that the data would enable us to extract however, whether those female employees were employed in trades and related classifications. They are female employees on sites.

PN592

THE VICE PRESIDENT: So we wouldn't be able to extract for example whether the females were employed under the terms of the award?

PN593

MR MURRAY: I don't believe so. It is some weeks since I compiled this information but I don't recall that question being asked. If I move on to 3.5 of Mr Maxwell's submission. He says there is no direct evidence that a lack of a general part time employment position has acted as barrier to the employment of other sectors of the community in the industry. Well again we say that we have evidence that the insertion would facilitate employment which is the converse of that very question.

PN594

We also have the evidence of Ms Luca Smith at MBA4. Then the MBA survey, MBA2, that part time would in fact facilitate older workers amongst others to be retained in the industry and their skills to be transferred. Now Mr Maxwell then goes on to talk of the inherent dangers in the industry. It would certainly be conceded that the building and construction industry has dangers attached to it.

PN595

The MBA would agree that it is an industry that has experience of accidents and injuries and what we are talking about is in fact people being enabled to work within their capacities. If for example we have a worker who can safely work 20 hours per week, we are saying that they should be entitled to do so, not work beyond their capacity or else have no option to work at all. Again Ms Marley's evidence really was limited to specific circumstances and also to New South Wales although - - -

PN596

THE VICE PRESIDENT: Couldn't those employees in that category work pursuant to an AWA?

PN597

MR MURRAY: Well potentially perhaps they could. But there again the award is intended to be a safety net and why therefore, should employers have to go to that extent when we say the award should provide for such an option. In relation to the question of study, the award doesn't particularly provide for study broadly, it provides in certain States for apprenticeship and there are State awards in New South Wales for example also provide for apprenticeship.

PN598

Other than that workers who wish to study, well what option do they have, they take annual leave for the purpose or do it in their own time, they work around the full time provisions or alternatively they take the much less certain, the much less regular casual employment option. There is no provision for a person for example who wants to have one day a week to study some course which is not an apprenticeship and not even necessarily related to the building industry. You might have someone who wants to do a part time university course, a part time TAFE course. There is no real ability for them to do so unless they can strike some agreement with the employer to take it as leave without pay - - -

PN599

THE VICE PRESIDENT: Couldn't they do that as part of the daily hire arrangement, they just work on a daily hire arrangement four days a week?

PN600

MR MURRAY: Well a daily hire arrangement as I said really extends principally to stand down where the employer cannot provide work due to circumstances beyond their control. It applies to inclement weather provisions and applies to notice. Those are the principal operative parts of daily hire in this industry in my submission.

PN601

THE VICE PRESIDENT: So you say that an employee and an employer could not reach an agreement in relation to the operation of the daily hire provisions that allows them just to work four days a week?

PN602

MR MURRAY: Not readily, no, Commissioner.

PN603

THE VICE PRESIDENT: I think it is either a yes or a no, whether it's readily or not, it's whether it's legally possible.

PN604

MR MURRAY: The difficulties would be posed in a number of other ways and amongst them the definition of continuous employment comes into play here. It seems to become a question of leave which the employee doesn't have an automatic right to, the employer can simply refuse. But also it would count as continuous employment. So there's a difference in the accumulation of annual leave as compared to a part time provision. Because leave with the consent of the employer is defined as continuous service and the - - -

PN605

THE VICE PRESIDENT: Yes, but leave would be an entitlement to say four weeks leave at ordinary pay and the ordinary pay would be four days per week.

PN606

MR MURRAY: Your Honour, that's not in fact the way that we would see the operation of section 4.15 of the award. It would define in any circumstance where the employee is absent with the consent of the employer as continuous service for the accumulation of such things as annual leave, redundancy and so forth.

PN607

THE VICE PRESIDENT: I am not suggesting it would break continuity of service but it is not so much the four weeks leave that's the problem. It's what are they paid for it and I am suggesting that if they had an arrangement where they worked four days a week then their ordinary rate of pay for annual leave, wouldn't that just be whatever four days pay is?

PN608

MR MURRAY: The ordinary hours of work are 38 and the ordinary hourly rate is define for each classification and therefore it would be our view that it is at least unclear if not the case that the ordinary pay in fact is 38 times the hourly rate defined by the award.

PN609

THE VICE PRESIDENT: So an employer couldn't agree to give an employee leave without pay for a day?

PN610

MR MURRAY: They could, they would be under absolutely no obligation to do so and there would be consequences - - -

PN611

THE VICE PRESIDENT: No, they are under no obligation if I put the clause that you're suggesting in to employ them on a part time basis either.

PN612

MR MURRAY: They would however be under an obligation under the provision that we propose to discuss and if there is an agreement well of course the dispute settlement procedures would come into play. Whereas in the case of leave without pay, there is no real provision. The employer simply has the call.

PN613

THE VICE PRESIDENT: But you're not suggesting that then the Commission would force an employer to take someone on on a part time basis, or are you?

PN614

MR MURRAY: No doubt the Commission would use its best efforts to conciliate the issue. Certainly if there is provision there for part time, the position of the parties would be much clearer.

PN615

MR MAXWELL: Your Honour, I don't really wish to interrupt Mr Murray but I do wish to correct one thing. Mr Murray inferred that there was no provision for training under the NBCIA. I should point out and I haven't got the latest variation since the old I suppose worldly structure division was inserted into the award. But under the previous 19.3.5 that was training and it says:

PN616

As a result of consultation in accordance with this clause it is agreed that additional training should be undertaken by the employee. That training may be taken either on or off the job provided the training is undertaken during normal working house. The employee concerned should not suffer any loss of pay.

PN617

So I just wish to point out that the availability of paid time off for training under the award is not limited to apprentices, it also applies to anyone pursuing training to do with their specific work environment as long as it is relating to work and in accordance with the classification structure.

PN618

MR MURRAY: That last sentence I think is probably the key there. As long as it is relating to work and the classification structure. That's of itself a limitation and agreed between the parties is necessary to do the particular job. That doesn't provide a broad ability for an employee to take part time work whilst doing a course outside the scope of that fairly narrow set of criteria. The clause 3.6 of the written submissions, Mr Maxwell points out the decisions of the Industrial Relations Commission of New South Wales are not binding authorities on this Commission. That is of course correct. We don't argue that they are. However, there are a number of awards already operating in New South Wales and also in certain other states and I refer to those listed in NBA7.

PN619

In this industry which provide for part time employment, that's at least persuasive of the fact that such a thing can work in this industry. There are also amongst those awards and particularly the Northern Territory Building and Construction Award, those that have part time employment for daily hire employers. At 3.7 Mr Maxwell says that:

PN620

It is not appropriate to include part time provisions and awards where the use would be infrequent.

PN621

We don't concede that the use would necessarily be infrequent or at least so infrequent as to be trivial. Our survey, NBA2 shows that there will be at least some percentage that will take on part time employment as an option. But the mere fact the use of an award provision may be infrequent, in my submission, is neither here nor there, it is not an argument against it being inserted. There are for example provisions in the award already. Site allowance for building workers on major constructions in Kosciusko National Park. Now, that would be an infrequent use provision. There is provision for an allowance for workers on Shells Refinery at Corio.

PN622

Again, an infrequently used provision. The mere fact that a provision might infrequently be used is neither here nor there and not an argument against the insertion of such a provision, an award which is intended to be a safety net. As I say we don't concede that the use would necessarily be so infrequent as to be trivial. There would, according to our survey, be a substantial percentage that would take on part time employment. Perhaps not on the largest construction sites. There are a range of respondents represented in that survey, large and small, city and regional. Of those a substantial percentage have said, they support the application 91 per cent and those respondents said, they support the application and a substantial percentage said that that would enable them to employ more people.

PN623

To move on and see the survey in part 3.9 of Mr Maxwell's submission he says:

PN624

The survey has no statistical relevance.

PN625

I am not entirely sure what he means by that. We have a survey with the response rate of 138 from our membership in New South Wales.

PN626

THE VICE PRESIDENT: That's our of 4000?

PN627

MR MURRAY: That's out of about 4000, yes. Certainly it is not the whole of our membership in New South Wales. Much less our membership across Australia. But that's not an unusual sort of response rate for the surveys that we do I have to say. The survey in question also was not confined to the part time question. In fact it was a survey that addressed a number of other issues as well. So it couldn't be said that it was necessarily a self selecting survey on the part time point. It addressed a range of issues in relation to home warranty insurance for example in the same document. It addressed questions of the awards casual provisions which have been dealt with in other proceedings.

PN628

The survey covered a range of sizes from very small to very large businesses across a range of geographical areas as he set out within its body. But 91 per cent of the respondents they surveyed, even if we accept that the numbers might allow for some spread on that figure due to the size of the response. 91 per cent or at least a substantial majority were in support of this application.

PN629

Also, of those a majority, 52 per cent but a majority nonetheless, indicated that part-time employment would enable them to employ more people. It is a survey that has validity, it - - -

PN630

THE VICE PRESIDENT: The other way of looking at that is that 70 of your members out of 4000 have said that the provision of general part-time work would facilitate the employment of women.

PN631

MR MURRAY: That is a way of looking at it, there again though - - -

PN632

THE VICE PRESIDENT: Characterising it as percentages, are you seeking to extrapolate from the survey to your general membership?

PN633

MR MURRAY: To some extent and accepting that given the size of the response, there will be some spread on that figure, it won't necessarily be 52 per cent of our entire membership but I also would submit that it would not be correct to say that none of the remainder that didn't respond would have no interest in this or would not apply the part-time provisions if such existed. Also too, returning to the Kosciusko National Park, well, the rhetorical question, how many employees and I'd suggest it is few than 70 have ever applied that provision.

PN634

Now, to move on then to 3.10 of the submissions, the current does not offend ILO convention 156 workers with family responsibilities. We would say arguably in fact it does. The provision relating to family responsibilities currently in the award is confined to infant children in their first year of life or their first year after adoption.

PN635

MR MAXWELL: Carers leave.

PN636

MR MURRAY: Yes, Mr Maxwell is also talking of carers leave which I was about to move to. Carers leave is also specific to a person who is ill and requires the care and attention of the family member. That's not a broad family-friendly provision by any means, it's quite limited in its scope, as is the parental leave part-time provision. It doesn't for example, provide for those who are responsible for the care of children generally, other than infants, it doesn't provide for those who are caring for relatives who are not necessarily ill in the sense of requiring medical attention but - - -

PN637

THE VICE PRESIDENT: Do you mean carers leave doesn't provide for that or the parental leave provisions don't?

PN638

MR MURRAY: The parental leave part-time provision only applies to infant children, the carers leave provision only applies to those who are ill, those whose immediate family or household are ill and require the attention of the employee. Now, that won't cover, for example, a parent who has children who are no longer infants but who require for example, to be collected from school, that won't apply to those that perhaps have aged parents who are not under medical attention but require assistance in their day-to-day life.

PN639

THE VICE PRESIDENT: Have the other provisions of the personal carers leave test case been inserted into the NBCIA, make-up time, for example?

PN640

MR MURRAY: There are broad provisions there in relation to carers leave.

PN641

THE VICE PRESIDENT: Single day annual leave, those provisions in there?

PN642

MR MURRAY: Single day annual leave is, well, within limits is provided for.

PN643

THE VICE PRESIDENT: The reason I asked that question is that when you say there's no application outside illness, well, that's true to some extent but the personal carers leave package, if you like, included a range of other things, like make-up time which was intended to allow, for example, parents to attend their childrens school for parent/teacher interviews, etcetera and then make up the time at an other stage. Time off in lieu of overtime was another provision that was part of the package. Are those elements of the NBCIA?

PN644

MR MURRAY: Those are not, carers leave, I'm reading now from 33.5 which refers to carers leave;

PN645

An employee other than a casual is entitled to use up to five days personal leave ...(reads)... care and support of the person concerned.

PN646

It does on then to require medical certificates.

PN647

THE VICE PRESIDENT: Yes, I appreciate that's the standard persona carers leave clause, what I'm asking is that if the other incidents of the test case have been included in this award? Does the award make any provision for annual leave to be taken as single days, up to five I think, does it make any provision for time off in lieu of overtime or for make-up time?

PN648

MR MURRAY: No, it doesn't, it provides for single days up to five but the other provisions it doesn't.

PN649

THE VICE PRESIDENT: Well, wouldn't they be a way of addressing the issues that you've raised as well?

PN650

MR MURRAY: Again, that won't address a situation where it's ongoing where it's a regular thing. A child from infancy who requires care up until, for example, they leave, it won't provide for the situation where a parent is responsible for looking after that child until they start school, for example or collecting that child after child care or after school hours. School, of course, usually finishes before the usual finishing time under this award or before the finishing time which is common in this industry.

PN651

THE VICE PRESIDENT: Are you able to tell me why those provisions were not included?

PN652

MR MURRAY: I'm not, your Honour.

PN653

THE VICE PRESIDENT: Do you know, Mr Maxwell?

PN654

MR MAXWELL: Your Honour, it's my recollection that when the award was varied for the parental test case it was agreed between the parties at that time that time off in lieu of overtime and make-up time were not appropriate, mainly because I suppose, the daily nature of employment in terms of record-keeping.

PN655

MR WARREN: My recollection isn't quite the same, I think the unions said they were not appropriate, your Honour, I don't know that the employers agreed but in the end they didn't go in the award. I think there was a philosophical opposition to time off in lieu of overtime.

PN656

THE VICE PRESIDENT: Okay, so there was an arbitrated decision by a single member refusing to implement the test case standard, is that the essence of what you are saying?

PN657

MR WARREN: I think in the end it was a consent, it was negotiated.

PN658

THE VICE PRESIDENT: You see, the problem is Mr Warren, it's either consent or it's not, if it's consent, then I can't look behind that and try ascertain - and you might say, well, we didn't really consent but you did, so if that's the position, that they weren't inserted by consent, then that explains it. That's not uncommon in other awards as well.

PN659

MR MURRAY: Just to finish that point, Mr Maxwell quotes from the document, Status of ILO Conventions and he talks about Australia - I'm reading from the third complete paragraph now.

PN660

THE VICE PRESIDENT: Yes, you don't need to read that, I know which part you are referring to.

PN661

MR MURRAY: That the application promotes family friendly employment practices. Now, in relation to 3.11 and 3.12 these really relate to submissions of Bisco and I don't want to address those in detail at all. At 3.13 there is insufficient evidence. I reiterate largely what I have already said about the evidence. There is evidence there to justify the variation we would say. There is evidence that such a variation will facilitate the entry of persons to the workforce who now are disadvantaged.

PN662

There is evidence that the part time provisions are supported by our membership and would be used by a proportion of our membership. We would say that the evidence is that such a practice would be family friendly in sense of the ILO Convention. There is essentially no evidence against it bar the union's witnesses saying that well there is some provision in relation to worker's compensation projections for certain classes of persons of which we have spoken. There is evidence from Mr Sutton that he has never really been asked about it. There is evidence from one of their committee of management saying that women want to work a full day's work for a full day's pay. We deny that many women will and many other workers will. There are workers or potential workers for whom this application will provide opportunities they don't now have. That ends my submission unless anything further for me.

PN663

THE VICE PRESIDENT: Thank you, Mr Murray. Mr Warren?

PN664

MR WARREN: Thank you, your Honour. Your Honour, you did ask yesterday if there were any alternative data available that might support the percentage of women. I did find something, I think it was actually submitted in the Award Simplification case. If I could perhaps pass that up.

PN665

THE VICE PRESIDENT: Thank you.

PN666

MR WARREN: I believe actually it is something that Mr Maxwell produced. It is an extract:

PN667

.... construction industry size of establishments.

PN668

I have marked it in the front as exhibit M4 in 1997. I think it came from that Award Simplification case.

PN669

THE VICE PRESIDENT: Exhibit Bisco 4.

EXHIBIT #BISCO 4 - EXTRACT FROM AWARD SIMPLIFICATION CASE

PN670

MR WARREN: And if I take your Honour to a back page. This is a profile prepared by Construction Training Australia based on information which has come from the Bureau of Statistics. At page 4 under the heading Profile of the Workforce it states:

PN671

The ABS has estimated that in February 1994 there had been 557,447 persons employed in the building and construction industry. 86 per cent of the workforce were males and 14 per cent are females.

PN672

THE VICE PRESIDENT: Where does that fit with the evidence of Ms Hart who said I think it was somewhere between 2, 3 or 4 per cent was my recollection.

PN673

MR WARREN: I think the difference lies in that that is the whole construction industry. So, it will take into account that, for example, numerous small contractors of a husband and wife who own it so they are employed in the industry.

PN674

THE VICE PRESIDENT: I see, and administrative staff, et cetera.

PN675

MR WARREN: Drafts people and executive staff they are all in it so there are those women - - -

PN676

THE VICE PRESIDENT: So, it is not suggesting that 14 per cent of trades or labourers are females?

PN677

MR WARREN: No, of construction workers. The other one that perhaps may assist the Commission is a document from the ABS on Australian Social Trends 1997. Perhaps I could pass that up as well.

PN678

THE VICE PRESIDENT: I will mark that Bisco 5.

EXHIBIT #BISCO 5 - AUSTRALIAN SOCIAL TRENDS 1997 - ABS

PN679

MR WARREN: Your Honour, this one is prepared by the ABS as you can see and the only relevant chart is basically the third page.

PN680

THE VICE PRESIDENT: Yes.

PN681

MR WARREN: Where there is a chart at the bottom. It does take a little while to look at this chart and try to decipher what the bureau is saying. What it is doing, in the first column it says Construction and it is talking about the number of people employed in 1995/96 and there coming up as 600,300 people. It then goes on to give figures about the changes. So, the next column where it has got Employed People 123, that is the changes that has occurred between 1985 and 1995. That would be a 5 per cent increase occurred in that 10 year period. It has got proportion or part time workers, percentage points. There has been a 3.3 per cent increase of part time workers and 1.4 per cent increase in the percentage of females in the workforce in that period. So, there has been a very small increase in that 10 year period.

PN682

THE VICE PRESIDENT: It seems that it is not other than the electricity, gas and water. The 1.4 per cent doesn't seem to be hugely out of line with other areas. Some have had a decline personal and other services et cetera. It is sort of the same order of magnitude as some of the others.

PN683

MR WARREN: Yes, your Honour.

PN684

THE VICE PRESIDENT: Similarly with the 3.3 although as you would expect retail trade is - - -

PN685

MR WARREN: Is much higher. There are others where it has increased.

PN686

THE VICE PRESIDENT: An issue here, Mr Warren, may be the way in which the ABS characterises part time employment. I think it is defined as. Yes?

PN687

MR WARREN: I think it actually states, I think it is on this document it is anything less than 35 hours.

PN688

THE VICE PRESIDENT: So, it includes casuals, you see.

PN689

MR WARREN: Right.

PN690

THE VICE PRESIDENT: That is the point I am making. I have had a look at similar material before and it is often a source of great irritation to industrial parties because you can't actually tell how many are what we would describe, or you and I would describe as regular part-time and how many are casuals because as far as the ABS is concerned if they are working less than - and you can understand the logic of their position.

PN691

MR WARREN: I do, yes.

PN692

THE VICE PRESIDENT: It is part time in that it is less than full time.

PN693

MR MURRAY: Yes, we have great difficulty with ABS figures at all times in trying to work out exactly what they are referring to. One other piece of data that I was able to obtain was from the ACTUs Work and Family Test Case, their fact sheet which may be relevant, your Honour, if I could pass that up as well.

PN694

THE VICE PRESIDENT: Thank you. I'll mark that BISCO6.

EXHIBIT #BISCO6

PN695

MR WARREN: Your Honour, this document doesn't refer to the building industry but it does give you under the second heading some of the information that the ACTU has been able to determine about families and about the percentage of women and the women in the work force. It clearly shows in about the fourth dot point down 70 percent of women in the prime child bearing age are in the work force and 60 per cent of full time mothers would prefer to work part-time work. Those two pieces of research may be of some relevance to what we talking about here.

PN696

THE VICE PRESIDENT: I suppose the difficulty is that, I mean it amounts to an assertion and they've got in brackets, I suspect that's the Australian Institute of Family Studies but I don't know the survey that they're referring to.

PN697

MR WARREN: No, it wasn't an attached document, they haven't referred to the survey there.

PN698

THE VICE PRESIDENT: I would be a bit reluctant to rely on those dot points in BISCO6 because without knowing what's behind them I don't know - why should I accept just because it is in - well with respect to the ACTU it is in an ACTU fact sheet, well I don't know that that makes it evidence of anything.

PN699

MR WARREN: Your Honour, I was referring to that in the context that I will be putting to you some submissions in a moment about the general population as opposed to some of the evidence that has been given to you and your Honour can give what weight he feels might be appropriate.

PN700

Perhaps the other thing I might just deal with in the outside is this daily hire concept and of course the award is not only daily hire there is also weekly hire and a large number of the people I'm representing, civil contractors for instance, are in fact weekly hire employees, that's the plant operators. They have quite different circumstances and I have outlined some of those in the witness statement I attach to my submission.

PN701

With the daily hire situation the employer is still liable to pay 28 days annual leave according to the award if he gives someone ongoing leave without pay. I have encountered the situation quite often. In fact I have had matters before the Chief Industrial Magistrate where the union has prosecuted as a result of an employer giving someone time off and subsequently the employer and the employee not agreeing on what the arrangement was and the matter has gone to prosecution. That is the difficulty we have in finding a way of recording the agreement that a person will take the particular amount of time off and it has arisen for a number of reasons.

PN702

THE VICE PRESIDENT: Don't they just record it in the time and wages book?

PN703

MR WARREN: Yes, the thing that tends to occur is there's a note saying Tom takes every Wednesday afternoon off. Tom will later on say look the boss made me or those sort of arguments have certainly come up and we have had a number of issues where that has arisen. There is no simple and accepted practice within the industry for people having leave without pay on a regular basis. I can't give evidence on this but I just say it has been an on going problem for us and that generally speaking we have found the union has opposed anyone having leave without pay on a regular basis unless there has been negotiations and the organiser has been involved and there has been some record kept in that form and even then we have had difficulties.

PN704

If you do have leave without pay you're still accumulate it in your redundancy of a fixed annual rate based on weeks of service. You're still accumulating your annual leave. You get 28 days per annum. There is no provision for that to be reduced. So the award expresses those 28 days per annum, which includes the weekends but being expressed that way you can't turn around and say for the whole year you only worked 4 out of the 5 days during the week therefore we are taking time off. The employee is still entitled to that.

PN705

Similarly it is common practice in the industry to pay top up insurance. That's quite common. Even the people without enterprise agreements, that's a weekly payment. There are a number of weekly payments that come up and the employer is obliged to pay, he can't reduce for someone on a part-time basis. That's one of our major problems.

PN706

I would support Mr Murray and say that the daily hire concept really is a convenience going back a long time from when people did truly move on a reasonably frequent basis weekly or monthly from project to project. There are still people in the industry who do that. There is still people who will change employers several times in one year but also have the experience of large numbers of employers who have people who have been with them for 10, 15, 20 years, a normal pattern of employment which would apply to industry generally across Australia. So we do have that pattern as well.

PN707

So there are these two categories out there, the ones who, what we get in major projects, work the duration of the project, change employers, go somewhere; and others in the specialised trades which are now the major employer body in that they most - and I think the evidence is before you, there is about 95 per cent of employers have less than 10 employees. Those smaller companies tend to keep their employees for a much longer period of time. They may boost them up for a project but generally speaking much longer period of time. So daily hire is in effect a convenience for those who are working on projects. I think it goes back to the point that people wanted to be able pack up and move, the employee wanted to be able to move towards the end of the project and not have to give a long period of notice if he had another job. On the other hand the employer wanted to give fairly short notice so he didn't have the job stretched out as it approached its end, so it was a mutually convenient way for the industry to regulate itself.

PN708

MR WARREN: I turn now to what Mr Maxwell has put to you. He seems be saying, I think Mr Murray put it this way, that there are two basic things. It's not in the public interest for part time work and that there is no demand for part time work. He also has put that the current provisions are not discriminatory. The main thrust of the union argument has been there is no demand amongst the female workforce. I think that's the main thrust of the evidence that's come to you. Perhaps I can deal with that first.

PN709

The evidence that has been put has been based on the experience of officials of the union in dealing with members. There hasn't been any real evidence, perhaps a little limited work by Ms Brokenborough, but most of their experience as put to the hearing has been related to the work at the union and saying we have not had a demand for part time work. What we're saying to you is that the Commission has to look at the much broader picture that there are people out there outside the industry who would work in the industry if part time work was available.

PN710

THE VICE PRESIDENT: Where do I get that evidence from?

PN711

MR WARREN: That is where I believe the evidence that we have put to you by way of the witness statement of my own. The New South Wales government publication, that's the Department of Industrial Relations publication which is attachment A to the Bisco submission, sets out a number of reasons why part time work is desirable.

PN712

THE D.PRESIDENT: That's making general statements. Those statements aren't made in the context of this industry. I don't read the department's statement as saying that providing a general provision for part time employment in building and construction would lead to the employment of more women in building and construction, and that there are women who would work in the sector if part time employment was available.

PN713

They're making general statements across all industries, and across all industries that may be a fair enough proposition, but we've got evidence from Ms Brokenborough where she says that there were a range of other impediments to women working in construction - the perception of the industry, that it's male dominated, that it requires heavy, physical labour etcetera - and that her experience was that those were the factors which stopped women going in, not the availability of part time work. I've got her evidence which is more specific and I've got the department's document which is a general one.

PN714

MR WARREN: Your Honour, I suppose the term glass ceiling is one of the ones I've never particularly liked but I believe we are looking at a glass wall here. Your Honour certainly has evidence that there was, from her perspective, the other barriers, but we also have to look at the industry and consider whether it's the same now as it was 30 years ago or longer. Thirty years ago it was apparent just visiting a building site there was much more labouring, much more heavy lifting, much more heavy physical work which were real impediments.

PN715

THE VICE PRESIDENT: I don't think Ms Brokenborough's evidence differs from you on that point. She's not arguing the fact that it is in fact heavy, physical, demanding work, she's saying that's the perception. It's the perception of women outside the industry that they have of the industry. You know, someone working a Kanga gun all day type of proposition.

PN716

MR WARREN: I understand her evidence and I'm very aware of the efforts the industry is making through a range of bodies to change that perception, to get out into the schools, and those things are happening. The Industry Training Board is one but there are a number of other bodies which are actively trying to promote the industry and promote that it has changed. Certainly there are still some tough jobs but there are a lot of jobs out there which are much more sophisticated and where the modern machinery has taken the really heavy aspects of it away and that has been promoted.

PN717

Even if part time work is only one element permitting women coming in, then that one element should be removed and at the moment, as Mr Murray said, a lot of people do have obligations, and the collection of children and the care of children is a major one that confronts the industry. There is no provision there now that someone can work less than eight hours in a day. There is no provision that someone can go every morning, leave their children at school or at care centres which possibly don't open until 8.00 in the morning, but their employer requires them if they're going to work eights hours to start at 7.00. There is no provision for those sort of things to happen on an ongoing basis.

PN718

There is no provision there that if someone can get someone to mind an aging parent or a permanently ill relative or a disabled relative, that they can leave early to get home and take over at 1.00 o'clock in the afternoon. That provision just doesn't exist. I think we have to put to you that yes, the Department of Industrial Relations is broad, but it does explain those reasons why people do want part time work.

PN719

THE VICE PRESIDENT: Some of the circumstances you have identified would be addressed by time off in lieu of overtime and make up time, provisions which you didn't support going into the award.

PN720

MR WARREN: Time off in lieu still required a person to be working 40 hours in the week or 38 hours in a week in the normal circumstance and in my experience of time off in lieu, and there are a number of enterprise agreements, other awards I've dealt with where that does occur, it is more generally used for a situation where My husband has become sick, I have to do something, or My wife has become sick, I have to do something, I need to have a number of days off and I will make them up.

PN721

We're talking in part time the requirement is something quite different, saying I can give you so many hours per week, I will work part time, I will be on those fixed hours, and that's the way I want to work on a permanent basis, not for a few weeks while I take care of the situation. One provision is taking care of a situation which has arisen, the other is saying, This is how I'm prepared to work for you if that can work in with your requirements for an employee.

PN722

THE VICE PRESIDENT: Yes, except that both on your submission would assist workers to reconcile their work and family responsibilities. I just find it odd that there is a reliance on the conventions, 156 for example, and yet there was no support for the make up time provision or time off in lieu which would assist in reconciling that conflict in particular circumstances.

PN723

MR WARREN: I must say, your Honour, I'm trying to remember, Mr Maxwell may, I just can't remember when the award was varied in that regard. I think it may have been part of the simplification process, I can't remember why that was the case. I still believe what we're discussing today is a different situation to that. Certainly, if I were talking to an employer about an enterprise agreement I would say, well, you ought to have these provisions in there and a number of them have. I mentioned yesterday that quite a large number have gone through with part time provisions, similarly they have provisions for time off in lieu and for make up time and those sort of things are in those agreements.

PN724

So we really have the situation, it's not simply family commitments, it is the person and it's not going to be every day but employers do get people who come to them and say, I want to convert from being a painter or a plasterer or a bobcat driver, I want to become a supervisor, or in some cases they might become a draftsman or they might want to get right out of the industry and can I have a day a week off or half a day a week off. If they can have that half day a week off, no guarantee of employment at the end of it, they might have to go to a completely different company but if the employer can accommodate them they will.

PN725

At the moment that has to be simply an arrangement which, we suggest, it can be made in writing but then that made in writing agreement can be contested and the employer still has his fulltime overheads as opposed to having a part time employee and that can be a significant factor in saying, no, I'm still up for all my obligations to you, you're having a day a week off but I'm still paying you in many regards as if you were here for five days a week.

PN726

I believe, just going back to the evidence that was put before you, that the evidence of Ms Mallia, she acknowledged that if an employer going into an enterprise agreement asked for part time work that would only be referred to her if the organiser was pushed strongly enough by the employer to come along and say, can we put it in there? She would not normally be involved in those areas so I don't believe you can really accept from Ms Mallia any more than she is not aware of any requirement from the members.

PN727

THE VICE PRESIDENT: I suppose - what she said was that, as I understand, as in the recent bargaining round in New South Wales, as far as she was aware there was no claim made by the employer organisations in that process for part time work and she says that she would've been aware of it because it would've been raised with her. Now, that's all the evidence I have about whether you raised part time work in the negotiations in the recent round. In the absence of any other evidence why wouldn't I conclude that you didn't raise it unless you've got evidence to suggest you did?

PN728

MR WARREN: I said that in a different context, your Honour. The broad negotiations were entered into by the MBA and other employers with the CFMEU and clearly concentrated on the major items of the claim.

PN729

THE VICE PRESIDENT: There was a counter claim as well.

PN730

MR WARREN: Yes.

PN731

THE VICE PRESIDENT: Did part time employment form part of the counter?

PN732

MR WARREN: That was only between the MBA and the Union, I can't answer that question.

PN733

THE VICE PRESIDENT: All right, I'll ask Mr Murray the question. We may as well tidy this up now.

PN734

MR MURRAY: My understanding is that it was not, however, I wasn't directly involved, in fact, obviously I've had less involvement than you have, your Honour, in those particular negotiations. The situation as I understand it is that there was protracted discussion of a range of issues and then the Union released a pattern document and there have been a number that have agreed to that pattern document. The part time hadn't formed part of the discussion but there again there were some far more significant issues on the table including, as you would be aware, the 36 hour week campaign which were the prime focus of discussions.

PN735

I would submit, however, that the mere fact that it wasn't discussed in that context is really neither here nor there because that's a separate issue, that's the discussion of enterprise agreements and they were enterprise agreements specifically for the commercial construction and principally in Sydney.

PN736

THE VICE PRESIDENT: My questions don't go to the significance or the weight I should attach to it, it's just that Mr Warren raised how I should characterise Ms Mallia's evidence. It seems to me that there's no contrary evidence that suggests that - in fact you've just confirmed that part time employment wasn't discussed or raised by the employer organisations in the recent enterprise bargaining discussions which is all I took Ms Mallia to be saying.

PN737

The question of whether that's significant or what weight I should apply to it is a separate issue. I'm just trying to at this stage focus on what the factual position is.

PN738

MR MURRAY: Your Honour, I can't put it as high as saying it was definitely not discussed because I wasn't a participant.

PN739

THE VICE PRESIDENT: No, but the only evidence I have is from Ms Mallia who says it wasn't as far as she knows. On what basis do I reject her evidence and conclude that it was discussed? There is no affirmative evidence. Your organisation was involved in the discussions. Your organisation is in a position to put evidence to me that it was put forward and you haven't so I'll draw the inference from that that it wasn't raised by the employer organisations unless I get some evidence to the contrary. If I can put you on notice about that issue.

PN740

MR MURRAY: I must just say this though, if I may, your Honour, two things. First of all it was quite apparent from Ms Mallia's evidence that she had no more direct involvement than I did in those discussions and, therefore, her evidence at best is hearsay.

PN741

THE VICE PRESIDENT: All right, let's sort of nail this point once and for all. I will find that the issue was not raised by the employer organisations unless you put evidence to me that it was. So I'm giving you the opportunity to put evidence that it was. If you don't then I'll conclude that it wasn't. I accept what you say that Ms Mallia's evidence is hearsay, that doesn't mean that I can't accept it particularly in circumstances where the employer organisation that was involved is the applicant in these proceedings and is in a perfect position to advise me as to whether or not they did pursue it. If you don't put anything on it it's difficult to reach any conclusion other than the one I've suggested.

PN742

MR MURRAY: Yes, your Honour, I certainly do take that on notice and will respond to that. There is also the other point that I was making and that is that those discussions are quite specific in their aim and that is to arrive at a document or a position with respect to those that participate in that pattern bargaining approach, principally those that are on large scale city construction projects.

PN743

THE VICE PRESIDENT: I understand what you're saying about the context. I'm only really talking about the factual finding of whether or not the issue was raised. I understand what you submit about, well, okay it wasn't raised but so what, more or less, that's how I'd characterise your submission, so what, given that there were bigger fish to fry, there was a 36 hour week and a substantial wages claim and in the context of the negotiations was the large projects.

PN744

MR MURRAY: Yes, I think you have paraphrased it correctly, thank you, your Honour.

PN745

MR WARREN: Mr Murray was answering you there. I do recall now, when the claim was made we did get back from Bisco New South Wales and make a counter offer to the union. I do believe we did raise the issue of the use of part time work to reduce hours. I will have to go and find the submission. I thought I did have my lap top computer but can't find it at the moment in the brief time. If I can find that I will certainly forward it to you as quickly as possible.

PN746

THE VICE PRESIDENT: Okay.

PN747

MR WARREN: I do believe, my recollection is that in those negotiations where Ms Mallia wasn't involved in those negotiations. I think her evidence as I understand it, now that the general format of the claim has been decided by the CFMEU, and there is a draft document that is handed to employers, she is saying that if an employer came to the organiser and said, I want some part time provisions in here then that would automatically be referred to her.

PN748

Once again, I haven't had time to look it up but I do believe I can perhaps produce evidence of at least one occasion where an employer asked for that at least and in discussions perhaps withdrew the claim but I will have to chase that up as well but I will come back to you on that.

PN749

THE VICE PRESIDENT: It will be difficult for me to rely on an assertion about what happened.

PN750

MR WARREN: Yes, I understand that.

PN751

THE VICE PRESIDENT: Given that it wasn't put to Ms Mallia in cross examination.

PN752

MR WARREN: I will produce to you a document that actually does have that information on it.

PN753

THE VICE PRESIDENT: Provide it to Mr Maxwell as well and if anything arises from it then Mr Maxwell will have an opportunity to address it.

PN754

MR WARREN: It's on my laptop instead of my main computer, I may be able to produce that before the end of the day. I will have a look in a moment. We also discussed yesterday the question of discrimination and you raised with me the issue of whether there was any particular part of the Act that referred to discrimination and I think that I put to you yesterday I have dealt with that in my submission in paragraph 9 of my submission, that the Act clearly requires the Commission to ensure that discriminatory provisions aren't allowed to exist.

PN755

THE VICE PRESIDENT: You say that but my question was, which sections of the Act clearly require me to do that>

PN756

MR WARREN: I take you to clause 9, or paragraph 9 of my submission, your Honour, BISCO1.

PN757

THE VICE PRESIDENT: So its essentially the HREOC process.

PN758

MR WARREN: Yes. The section 3J of the Workplace Relations Act - - -

PN759

THE VICE PRESIDENT: That's an object of the Act.

PN760

MR WARREN: Has an object. Now if the object of the Act is there then clearly we should be trying to comply with the objects of the Act. There is no specific obligation on you at this stage to remove anything that is discriminatory but then there is the provision that allows the president of the HREOC to refer a complaint that's received by the HREOC to the president of this Commission in regard to any discrimination and that would include indirect discrimination. We would say that the absence of a provision allowing part time work would be or could be - - -

PN761

THE VICE PRESIDENT: No doubt it could be but it hasn't been. HREOC has made no reference in relation to - - -

PN762

MR WARREN: It has not made that. In regard to the absence of that provision in the Act at the moment our position is that that is indirect discrimination, that is a barrier - whether there are other barriers doesn't matter, it is a barrier to persons who can only perform part time work gaining employment covered by the award. So the award is saying if you perform part time work you can't work - or anything covered by this award. That is a barrier.

PN763

THE VICE PRESIDENT: Have you approached HREOC with that proposition so that HREOC might make an application pursuant to 11A.

PN764

MR WARREN: If any person, perhaps I could put it on a hypothetical basis, if any person was to read the New South Wales DIR's publication and was to read the section starting on page 5 at the bottom, refusing to allow part time work may amount to discrimination, they would then see that they may have a case and there is a reference in there to Bogle v Metropolitan Health Services Board, EOT of WA 3/1999 and there is a cautionary note there from the Department of Industrial Relations saying that it could be discrimination so any employee who read that, applied for a job and was told you can't have part time work could lodge such an application. Now, it is not up to us to decide what the HREOC president may do about it but it's not beyond - - -

PN765

THE VICE PRESIDENT: My question was whether you had made any approach to HREOC?

PN766

MR WARREN: No, we haven't. What I am saying to the Commission is the strong possibility is there in this day and age that someone would read a publication such as this, make the complaint and we could well find that then referred back to the president; we would then have to have another hearing on exactly the issues which are before you today, is this discriminatory or not. If that's the case then I believe it would be appropriate for the Commission today to be saying, is it possible, is this discriminatory or not. If it is possible it's discriminatory it should be removed in accordance with the objects of the Act to comply and to remove the possibility later on.

PN767

THE VICE PRESIDENT: If it was discriminatory - well, Commissioner Merriman was wrong in simplification decisions and you have the option to appeal that decision.

PN768

MR WARREN: Yes, possibly.

PN769

THE VICE PRESIDENT: Not possibly, he was wrong because he was under an obligation to remove discriminatory provisions and you're saying it's discriminatory so it should be addressed and included. On your submissions he was in error and why didn't you appeal?

PN770

MR WARREN: Those issues had certainly not been considered by me at that time and as Mr Murray said we were in the throes of a very extensive review of the award. The question of an appeal also raised numerous other considerations; I think there was general agreement that we needed to get this new award out there and operating and that any thought of an appeal at that stage was going to delay further our process that had taken place and that had reached finality, whether we liked the finality or not. There were probably a number of areas that could have been appealed but people said, let's get on with the process of having an appropriate award out there which can be looked at and, if necessary, can be adjusted later on.

PN771

Mr Murray has just pointed out to me that in the Act section 94, Limitation on the Powers of the Commission relating to Discrimination and Preference, states:

PN772

The Commission does not have power to include terms in an award that require or permit or have the effect of requiring or permitting any conduct that would contravene part XA.

PN773

Also that same area deals with a couple of other quite relevant points.

PN774

THE VICE PRESIDENT: Isn't that dealing with freedom of association?

PN775

MR WARREN: Yes, but we also have in here, your Honour, section 93 and 93A.

PN776

THE VICE PRESIDENT: That I am to have regard to the provisions of the Acts mentioned?

PN777

MR WARREN: No, I won't go any further with those, your Honour. I think having had regard to those provisions clearly would imply that there's a possibility that this clause is discriminatory. Whether it slipped past Commissioner Merriman in the weight of what he had to do it slipped past us; it's probably not material. We now have a situation where the issue is before us and I submit to the Commission that it would be appropriate now for that to be considered and eliminate any possibility of a subsequent complaint having to deal with this same subject again.

PN778

Mr Murray has already pointed out to you that on transcript Mr Maxwell did indicate back in 1998 that it would be possible to amend this particular provision at some subsequent time. When I left here I could not find evidence of discussions but I think the indication that Mr Maxwell had placed on transcript his statement that at some subsequent stage amend the part time provision is significant and I think simply reflects the views of at least some of the parties to the proceedings at that time.

PN779

I reiterate that the whole proceedings before Commissioner Merriman got off to a very shaky start due to considerations that had to be taken into account also there is attached to Mr Maxwell's document some of the transcript that occurred when it was discovered that the MBA and the CFMEU had entered into an agreement in regard to the whole award simplification process and in addition to my comments as we saw yesterday I note that - and I won't take your Honour to these unless you want to - there is reference to the same problem by Mr Shinners who was representing the CCF at that stage on pages 62 and 63 of transcript.

PN780

THE VICE PRESIDENT: I understand it might have placed the organisations in a difficult position but there was no application for an adjournment.

PN781

MR WARREN: No, it did adjourn for some time, your Honour.

PN782

THE VICE PRESIDENT: Okay.

PN783

MR WARREN: Yes. What happened was the proceedings had commenced. Mr Grimsell-Jones made his presentation that day then we were allowed - I forget how much time we were allowed, I have the transcript here - time so we then had time to go and regroup and try to sort out where we were heading to. At page 120 Mr Whitmore made similar comments about having been ambushed at the pass.

PN784

THE VICE PRESIDENT: What weight do you place on that in these proceedings?

PN785

MR WARREN: The problem was that the MBAs position changed at 9.30 on the night before the hearing took place.

PN786

THE VICE PRESIDENT: No, but there was then an adjournment which allowed you to regroup, as you put it, and you had the opportunity to put the argument and you did.

PN787

MR WARREN: The arguments were then put by Civil Contractors Federation who put in a completely separate submission to that of the MBA which in the end was rejected by Commissioner Merriman but which did argue a whole range of points including the part time issue. There were some 500 pages of transcript; it was quite a long proceeding. So it was argued and in that process some things were eventually accepted, as I said a few minutes ago, in order to get this award finalised and out in a form that's acceptable. They were accepted, there were some compromises reached, there were some matters arbitrated by Commissioner Merriman. In fact on that last matter arbitrated by Commissioner Merriman eventually we had an award and it was accepted as an award we could live with but it was certainly my impression and I believe the impression of others that there were individual areas that needed attention. They could be looked at and properly considered and another application put in. That is what has happened in this particular case.

PN788

I would support Mr Murray except that things have changed. Now the submissions were made in 1998, that is four years ago now and since then we have had changes in a whole range of things regarding work patterns, making of discrimination legislation has changed - - -

PN789

THE VICE PRESIDENT: Where is the material in relation to any of that, the changes?

PN790

MR WARREN: That has been put before you your Honour because we hadn't realised that the argument that there should be no change - I will start again. That has not been put to you. Mr Maxwell has put to you that having made an award it should not be changed and has given you some references.

PN791

THE VICE PRESIDENT: Well he has also said that there is no evidence of any change between when Commissioner Merriman dealt with the issue and when I'm dealing with the issue. That is my recollection Mr Maxwell, is that correct?

PN792

MR MAXWELL: I don't recall that your Honour it may be in there but there seems to be insufficient evidence to justify any variation.

PN793

MR WARREN: Your Honour in 2.13D on page 6, the witness sent me a written submission.

PN794

MR MURRAY: If I may be of some assistance to at least some extent MBA7 canvasses some of those changes including the review of the building and construction industry State award which is subsequent to Commissioner Merriman's decision.

PN795

THE VICE PRESIDENT: Just remind me as to MBA7?

PN796

MR MURRAY: That is the letter that I sent yesterday afternoon. There is also reference to some changes to the Sex Discrimination Act which have taken place in the process. So in my respectful submission your Honour it is not true to say that there has been no change in the industry but there has been at least in New South Wales the widespread introduction of part time to State awards. I have also listed a number of awards in other States although I haven't listed - - -

PN797

THE VICE PRESIDENT: You haven't identified when they had part time work?

PN798

MR MURRAY: Yes.

PN799

THE VICE PRESIDENT: So the essence of it is that there is a New South Wales award provision and there is the amendment - the Human Rights Legislation Amendment Number 1 1999, is that right?

PN800

MR MURRAY: Yes. It is also worthy of note just briefly your Honour that there have been changes to this very award the National Building & Construction Industry Award in the time since Commissioner Merriman handed down his decision including a change to the casuals provision for example a change in the definition of ordinary time earnings for superannuation purposes. So those things have come through in the time since Commissioner Merriman - - -

PN801

THE VICE PRESIDENT: There would have been safety net adjustments too but how does that relate to part time employment?

PN802

MR MURRAY: What I'm getting at is that the award is not set in stone, there have been changes to the award and the submission that the award was set from Commissioner Merriman's decision some years ago and therefore that is a barrier to us making any change to it now simply doesn't stand.

PN803

THE VICE PRESIDENT: No, but I'm looking at changes that have occurred from the date of Commissioner's Merriman's decision to now that support the inclusion of a general part time work provision. The material I have in relation to that as I understand it is the MBA survey, the introduction of a general part time work provision in the New South Wales award, the Human Rights Legislation Amendment Act Number 1 of 1999, those are the issues you are taking me to?

PN804

MR MURRAY: Your Honour I was addressing two separate points from 2.1. I don't want to labour the point but one was the 2.13D there have been no substantial changes to the way in which the industry operates and in that respect such things as the changes to the New South Wales awards for example are examples of such changes. The other is the submission that well Commissioner Merriman has made a decision and therefore, that the award is set that there has been a recent decision and I point out that it is not particularly recent, a recent decision and that should be it.

PN805

Well Commissioner Merriman made a decision which encompassed other aspects of the award and they've since changed. Therefore what I'm saying is that - - -

PN806

THE VICE PRESIDENT: Which ones?

PN807

MR MURRAY: Well amongst other things the casuals.

PN808

THE VICE PRESIDENT: Was that changed by consent?

PN809

MR MURRAY: Yes, it was. Change nonetheless your Honour and there wasn't an argument there that well, it was dealt with back then we should leave it.

PN810

THE VICE PRESIDENT: Well there wouldn't be because you both agreed.

PN811

MR MURRAY: Yes, it is refreshing when we do that isn't it?

PN812

THE VICE PRESIDENT: Yes, Mr Warren?

PN813

MR WARREN: Thank you your Honour.

PN814

THE VICE PRESIDENT: As I understand it, what Mr Murray said what he's identified but you've said there is no evidence from your organisation's perspective as to what the changes - - -

PN815

MR WARREN: No your Honour, no. I think throughout this I've tried not to repeat Mr Murray's evidence and I am sorry I didn't quite have his grasp of what was involved. Your Honour just in regard to that New South Wales Department of Industrial Relations Guidebook, I am not in any way suggesting that it is binding on the Commission I am simply saying - - -

PN816

THE VICE PRESIDENT: No I appreciate that.

PN817

MR WARREN: - - - it is a very good document which when I went to set out reasons why we should have part time work I thought it expressed it much better than I could. I could do it myself and I believe that there is something that the Commission should be aware of and it is relevant. So in summary your Honour from my point of view we have always support part time work. I will produce to you our document in regard to the current 38 hour week and our response to the CFMEU in that area and will get as soon as possible.

PN818

We would suggest to the commission that there are good arguments as to the merit of having a part time clause, that is based on the merits of having a part time clause available to those in the general public who may wish to work in this industry but have restrictions of one sort or another. That being the case there should be no reason why that clause does not go in on those grounds. That would ensure that there is no perception that the award itself may be in some way discriminatory.

PN819

So it's just time to bring the National Building and Construction Industry Award 2000 into the 21st century and to reflect what is common in most awards of the Commission. If the Commission pleases.

PN820

MR SHERMAN: Nothing further, your Honour.

PN821

MR MAXWELL: Thank you, your Honour. Perhaps before dealing with MBA and Bisco, there are a couple of matters I just wish to address you on. One is to correct something that Mr Warren has said this morning in regard to annual leave. He claimed that there was still a requirement on employers to provide 28 days annual leave irrespective of the number of days that an employee has worked. I wish to point out that clause 32.5 of the award; clause 32 deals with annual leave, clause 32.5 deals with broken service and provides that:

PN822

Where an employee breaks continuity of service by an absence from work ...(reads)... any such absence occurs.

PN823

So it's quite clear that the award provides that if people work less than a week by whatever arrangement that when you calculate the annual leave that is taken into account in terms of their annual leave entitlement.

PN824

And, your Honour, if I can deal with, you asked yesterday whether there was nay reference to I suppose the background of daily hire work in the award. Your Honour, in the brief time available I've found a number of decisions that may assist you in understanding the situation. The first is a decision of Deputy President Webb which was commonly known as the Anthony award that was made in 1922. If I could hand up a copy of that. It's from the CAR. Your Honour, the main part I want to take you to is - - -

PN825

THE VICE PRESIDENT: Has that become known as the Anthony award?

PN826

MR MAXWELL: Because that was the first company on which the log of claims was served. I think if you look through the history of the building industry awards they're often referred to as based on the first respondent. But if I can take you to the fourth page. It's that part that deals with, under the sub-heading Wages. There's a claim for a hourly rate for all employees:

PN827

Here again I think a discrimination should be made between those who ...(reads)... employed on a weekly rate.

PN828

So that makes it quite clear that when the Anthony award was made that there was this quite clear distinction between those who work on construction sites and who were employed by the hour and those who were employed in the shop or an off-site establishment who were employed by the week.

PN829

If you turn over again where it deals with casual labour, it makes provision for casual labour and it says:

PN830

The claim is for persons employed for less than six days consecutively to be ...(reads)... 3 pounds per hour extra.

PN831

So it's quite clear that under that award there was those people who were employed by the hour and those people who were employed by the week, but there was also a casual provision which applied where they were employed for less than five days.

PN832

Another two pages further on in that decision where it deals with wages, you can see from the table set out there that carpenters employed on stock work and carpenters and joiners employed in shops or joinery mills were employed by the week and paid per the week, whereas carpenters and joiners employed on building construction were paid by the hour.

PN833

And, your Honour, another two pages into that decision where it deals with terms of employment of weekly employees. It sets out what special conditions apply to those employees engaged by the week, which includes termination by a week's notice on either side, so there's quite clearly distinction between entitlements to weekly hire and daily hires.

PN834

Your Honour, one other provision that I wish to take you to which I think is important in some respects, it's in clause 19 of the award that was made. I think it's the third-last page. Your Honour will recall that many awards of this Commission up until I think five or six years ago contained the provision allowing the employment of aged and infirmed workers, and allowed them to be paid on less than the minimum weekly rate. To some extent that has been taken over by the supported wage system, and it should be pointed out that the MBCIA does not include a supported wage clause.

PN835

This issue was discussed on the certification and it was agreed between the parties at that stage that there was no need to have a supported wage clause in the MBCIA due to the health and safety problems that that would cause on building sites.

PN836

THE VICE PRESIDENT: Was that one of those things that was consented to by the MBA but was argued that it should be in by the CCF or other?

PN837

MR MAXWELL: No, your Honour, it's my understanding that none of the parties to the proceedings sought to include a supported wage system. Everyone recognised that the extra I suppose supervisory requirements, where you have people with disabilities working on a building site to some extent make it inappropriate because of the extra occupational health and safety risks that that would place on the people working on the site.

PN838

Your Honour, the next decision - I tried to find out when the award went from I suppose an hourly hire to a weekly hire and unfortunately in the limited time it was a bit difficult. Can I hand up a copy of when the National Building Trades Award was made in 1975. My understanding of the history of the awards was that the provisions of the ..... Award virtually remain the same, even when the Carpenters and Joiners Award (1967) was made although the Carpenters and Joiners Award (1967) made quite separate provisions for on site work and off site work. But when the National Building Trades Award was made in 1975, if I can take you to - I've extracted from that award clauses 38 and 39 which deal with presenting for work but not required but also, a termination of employment.

PN839

It makes it quite clear there that termination was on a day's notice and if they turned up and worked the required that they got paid a day's pay. It's my understanding that that is where the provision of daily hire came in, that prior to that it was actually employment by the hour but rather than by the day. I should - I could be mistaken, something could have happened between 1967 and 1975 but it was during that period that the swap over occurred.

PN840

Your Honour, I would seek to hand up a copy of the decision in regard to the Vehicle Industry Repair Service and Retail Award which you asked for yesterday which was I think, one of the authorities mentioned in the MBAs written submission and which I took you to the other day. Your Honour, in regard to the issue of which building awards include part-time work and in particular I suppose, MBA7 I'm surprised that the employers have not been able to identify one significant building award that does include part-time work and that is, the National Joinery and Building Trades Products Award, part-time work was included in the part-arbitrated decision of Commissioner Grimshaw and that was found in Print K6181.

PN841

I have retrieved an extract from that that shows what Commissioner Grimshaw had to say about the issue of part-time work. But I point out what Commissioner Grimshaw was dealing there was an off size award which provided for weekly hire and during those proceedings the union actually agreed to the insertion of, other part-time clause into the National Joinery and Building Trades Products Award because it was a weekly hire, it was dealing with fixed establishments and people working in fixed establishments and the only issue between the parties was whether there should be a provision requiring the employer to notify the union of where they are introducing part-time work and that is referred to at the bottom of the page there to exhibit 1.

PN842

Now, your Honour, in regard to exhibit MBA7 in regard to the award mentioned we would point out that the Building Products, Manufacture and Minor Maintenance State Award is a mirror award to the National Joinery and Building Trades Products Award, it is a weekly hire award and therefore, that is why it includes part-time work. In regard to the Bridge Wharf and Pier Construction Award I'm not aware of that award and I cannot comment on that at this stage but I will investigate further.

PN843

In regard to the Building Trades Public Sector Award again, that award is a weekly hire with all the protections of with hire employees. In regards to the Building Trades Award Western Australia unfortunately - - -

PN844

THE VICE PRESIDENT: What about the Electrical Contracting Industry Award in the State of Queensland?

PN845

MR MAXWELL: Your Honour, I'm unaware of that award but as I say, that that is not the counterpart award to the National Building and Construction Industry Award and I point out also, that neither of the other two awards in Queensland are the State counterpart award to the National Building and Construction Industry Award. In regard to the Building Trades Award Western Australia, as I said, I'm unaware of that award, I'm seeking to clarify the position in regard to that.

PN846

In regards to the Building Trades Award Tasmania, that award has actually been replaced by the Building and Construction Industry Award. I don't have an actual copy of the Commission print but there was an amalgamation of a number of Tasmanian award and the new award that has been made by the Tasmanian Commission does not include a part-time work provision. I can seek to find an actual print of that award and supply that to the Commission and to the parties.

PN847

THE VICE PRESIDENT: Can you also ascertain whether there was a decision issued in relation to the consolidation?

PN848

MR MAXWELL: Your Honour, in regard to the other awards mentioned there, again I have no direct knowledge of them but I would also point out that they are not the counterpart awards to the National Building & Construction Industry Award. In regard to the Building & Construction Industry Northern Territory Award I just seek to hand up an extract from that award.

PN849

THE VICE PRESIDENT: I will mark that CFMEU5.

EXHIBIT #CFMEU5 EXTRACT FROM BUILDING & CONSTRUCTION INDUSTRY NORTHERN TERRITORY AWARD

PN850

MR MAXWELL: Your Honour, this is an extract from the order which I suppose simplified the award made by Commissioner Eames on 10 January 2002. Yes, it does include a part time employment provision at clause 4.4, however that is limited to people within the classification of head cook, cook, cook's offsider, mess attendant and camp attendant.

PN851

THE VICE PRESIDENT: There is also a 10 per cent loading.

PN852

MR MAXWELL: Yes, and those classifications are not classifications that are covered by the National Building & Construction Industry Award. I should point out in regard to that award, and I have not provided the whole clause, but if the full print is looked at you will find that in the parental leave clause there is no part time work provision. That was actually taken out at the request of the employers in the Northern Territory because they saw that part time employment was not appropriate in the building and construction industry in the Northern Territory. There is no reference to any transcript of that but you will find in the actual order made by Commissioner Eames of 10 January 2002 that there is no provision in there. I think that deals with MBA7.

PN853

In regard to the issue of the Sex Discrimination Act and the Human Rights Legislation Amendment Act we believe that adds nothing of weight to the employer's argument and that it is quite clear based on the decisions of Commissioner Merriman. I should also point out that in the award simplification proceedings the Commonwealth government intervened and were a major party during those proceedings and they saw nothing wrong with the ultimate decision of Commissioner Merriman that offended any of the provisions of the Anti Discrimination Legislation.

PN854

THE VICE PRESIDENT: It might be more accurate to say they elected not to make an application for a section 109 review.

PN855

MR MAXWELL: They went through the process with a fine tooth comb. Indeed, the whole reference to the superannuation clause to a Full Bench I think signifies how important the Commonwealth saw that award in terms of the over all scheme of things. Your Honour, in regard to exhibit Bisco 3, we would point out in regard to reference to page 377 of the transcript of the award simplification that whilst the union recognised that any party would have the ability to come back and seek to vary the award at any later date, if you look at the full page 377 you will see that the statement that we were making there was that we were opposed to part time work, that we saw, given the nature of the industry with high casual employment, the majority of employment being project based, that part time work was inappropriate.

PN856

We said it was up to those who sought to include it to provide a proper case. We argue that during the award simplification and the fact that the employers have failed to provide any employer or employee evidence in favour of part time work, again there was not justification to vary the award. We recognise that it is open to the parties to seek to vary an award, but in doing so it is up to them to provide a substantive case and proper evidence. We say in regard to these proceedings that we still don't believe that the employers have provided that proper evidence in that they have been able to provide one single employee in this industry who says that they wish to work part.

PN857

They may say that, well, yes, you've got this big, bad union out there that's intimidatory and whatever, but at the end of the day the unionised sector of the industry is not the whole of the industry. There are many employees out there who are not members of the union and the fact that they have been unable to provide one single employee to come to this Commission and say yes, they wish to work part time but have been prevented by the award, I think is a clear indication of the level of support for this issue amongst the employees in the industry. If the Commission pleases.

PN858

MR WARREN: Your Honour, just one point Mr Maxwell raised in regard to the award and the annual leave clause and he took you to the paragraph on broken service. In that he pointed out it says:

PN859

Where an employee breaks continuity of service by an absence from work ...(reads)... set out in 4.15 of this award.

PN860

What 4.15 does is says:

PN861

Continuity shall not be broken, notwithstanding an employee's absence from work for any of the following reasons.

PN862

It goes on to say:

PN863

Annual leave, personal leave, parental leave, illness or accident ...(reads)... appropriate board of reference.

PN864

In effect the employer would still, if he said yes, I'll give you a day off a week, he is still up for the full annual leave. If he doesn't have a satisfactory reason, what that broken service clause does is go on to say you can reduce his annual leave. For every week he is away you take 1/48th off so that would mean that if he's away for 48 days on successive weeks of the year he would get no annual leave, so the clause just simply doesn't help us at all.

PN865

MR MAXWELL: Your Honour, if I can actually read out the clause. It says, "per week or part thereof"

PN866

MR WARREN: That's right, the actual clause says:

PN867

An employee who breaks continuity of service by absence from work for any reason other than reasons ...(reads)... an absence occurs.

PN868

So if he is away for one day each week, he then has his entitlement to annual leave reduced. He doesn't get his annual leave for that week. If he absents himself illegally. It is not a clause that's commonly applied except for someone who is away for some considerable time. But it does mean as far as annual leave eventually would get a zero. But the more important point is that if the employer agrees to it, and fills in a 4157 any reason satisfactory to the employer, that does not count as broken service anyway. So he still has to pay them - - -

PN869

THE VICE PRESIDENT: Mr Warren, you indicated that you were looking for some other material. Given the closeness of the Christmas shutdown period, when do you anticipate?

PN870

MR WARREN: Your Honour, I have just been looking at my left and I find that what my response to the union said in fact was that if they were looking for a 36 hour week, then they should be having a provision where people are paid an hourly rate and therefore would be paid for the hours they work each week. I did not actually ask for a part time cause. I won't pursue that any further, your Honour.

PN871

THE VICE PRESIDENT: Anything further?

PN872

MR MURRAY: If I might just clarify. Mr Maxwell referred to NBA7 and the list of awards there. If I might just clarify the situation there. It is correct that I didn't refer to the National Joinery and Building Truck Trades Award. That's not what I was aiming to do. The question as I understood it from you was, which awards apply in any states other than New South Wales relevant to the Building and Construction Industry provide for part time employment. There are other awards that apply to this industry but those other awards don't provide for part time and therefore I have not listed them.

PN873

There are for example Counterpart Awards, the National Building and Construction Industry Award in various states such as South Australia. There are no South Australian awards listed here because none of those that I found provide for part time employment.

PN874

THE VICE PRESIDENT: Nothing further? I will adjourn and reserve my decision, thank you.

ADJOURNED ACCORDINGLY [12.05pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #MBA 7 CORRESPONDENCE FROM MASTER BUILDERS ASSOCIATION PN541
EXHIBIT #BISCO 3 CORRESPONDENCE FROM BISCO PN541
EXHIBIT #BISCO 4 - EXTRACT FROM AWARD SIMPLIFICATION CASE PN670
EXHIBIT #BISCO 5 - AUSTRALIAN SOCIAL TRENDS 1997 - ABS PN679
EXHIBIT #BISCO6 PN695
EXHIBIT #CFMEU5 EXTRACT FROM BUILDING & CONSTRUCTION INDUSTRY NORTHERN TERRITORY AWARD PN850