C2002/926, Transcript of Proceedings [2003] AIRCTrans 2301 (13 June 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N 2864
A: 4.6.03

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SMITH

C2002/926
C2002/5778

METAL, ENGINEERING AND ASSOCIATED
INDUSTRIES AWARD 1998

Application under section 33 on the
Commission's own motion re school
based apprenticeship clause

NATIONAL BUILDING AND CONSTRUCTION
INDUSTRY AWARD 2000

Application under section 33 on the
Commission's own motion re school
based apprenticeship clause

MELBOURNE

4.37 PM, TUESDAY, 27 MAY 2003

Continued from 13.3.03

PN87

THE COMMISSIONER: It has been a long time. We have been doing these bit by bit. I think I will take appearances and in no particular order. I might start with the unions bound by this award, if I may, Mr Maxwell?

PN88

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

PN89

MR M. ADDISON: I appear on behalf of the Australian Manufacturers and Workers Union.

PN90

THE COMMISSIONER: Thank you. The employers, Mr Calver?

PN91

MR R. CALVER: I appear for Master Builders Australia and its registered affiliates.

PN92

MR C. HARRIS: I continue my appearance on behalf of the Metal Industries Association of Tasmania, Victorian Employers Chamber of Commerce and Industry and I continue my intervention on behalf of the Australian Chamber of Commerce and Industry.

PN93

MR J. STEWART: I appear for and on behalf of the Minister for Employment and Workplace Relations, intervening, with MR A. STEPHENS from the Australian National Training Authority.

PN94

THE COMMISSIONER: Thank you very much. Now, as you know gentlemen, for some period of time now I have been dealing with the issue of school based apprenticeships and I have called matters on of my own motion, and this is the - probably the last of the major awards, I think, that we have to deal with and conciliation has taken place, but as I apprehend it, conciliations are not going to resolve the matter. Would that be an accurate reflection? Mr Maxwell, thank you.

PN95

MR MAXWELL: Yes, Commissioner.

PN96

THE COMMISSIONER: So, what do I do now? Do I say thank you for coming, or does anybody has a view as to how this matter should be disposed of? Mr Calver. Thank you.

PN97

MR CALVER: I rise to assist the Commission. We had some preliminary discussions with Mr Maxwell before the hearing, Commissioner, and we have agreed, subject to anything that you might consider appropriate, Commissioner - - -

PN98

THE COMMISSIONER: Yes.

PN99

MR CALVER: - - - that we would provide the CFMEU and the AMWU with some award architecture, to use a phrase, the clauses that would facilitate school based apprenticeships in the context of providing school based apprenticeships for those apprenticeships which are, in fact, countenanced by the award. We would hope to do that - now this is an indicative date and I have not discussed these dates with Mr Maxwell, but the time frame fits in with the broad discussions we have had, so these are, as I say, highly indicative. We would suggest that perhaps by the week ending 30th - 13 June with a response by the CFMEU and others, the week ending 4 July at the same time as they gave their response on that architecture we would hope to have agreed common exhibits in accordance with your suggestion during the prior conference - - -

PN100

THE COMMISSIONER: Yes.

PN101

MR CALVER: - - - and hearing, and then we would convene a short hearing and have submissions lodged by no later than the week ending 15 August with witness statements filed contemporaneously with written submissions. Those filings would not be in exchange - those filings because no one bears the onus in this matter would be contemporaneous and replies would either be short and in writing, or would be part of the oral hearing depending on numbers of witnesses.

PN102

THE COMMISSIONER: Yes.

PN103

MR CALVER: Now I have taken it to quite a level of detail. As I say, it is only indicative but I hope they assist the Commission and my colleagues. If it please the Commission.

PN104

THE COMMISSIONER: Thank you. Would it assist if the parties were able to - I am content with that timetable, if the parties were able to draw up an agreed timetable for the lodging of materials and then I can advise you of some dates possibly in September for the hearing of the matter. Now, I will leave it to you to draw up a timetable in between that and just advise me. I will give you some dates. We will go off the record briefly.

OFF THE RECORD

PN105

THE COMMISSIONER: I had asked the parties to confer and to seek to agree upon a program for the provision of information, and witness statements, and any contentions and replies to those contentions. I will sit on 23 and 24 September to hear submissions and any evidence that might be necessary in this matter, and it would be helpful if, in the draft directions that people would send to me, if all of the material could be in by no later than Friday the 12th, which gives everybody a full week, including me, to read the materials in preparation for the case. Is that appropriate? And you can send to me at an appropriate time the draft directions which I will simply issue. Mr Maxwell?

PN106

MR MAXWELL: Commissioner, there is, I suppose, a preliminary issue which I think needs to be addressed by the Commission. As you are aware, this award does not contain any part time provisions and the only employment for apprentices under this award is by way of weekly hire. This issue seeks to substantially change that and we will contend that, accordingly, that then becomes an application where, by the Commission's own motion or whatever, it is to vary the award below the safety net, given that the existing award is a safety net.

PN107

I just raise the issue that under the existing national wage case principles, principle 10 provides that any such application should be referred to the President to decide - - -

PN108

THE COMMISSIONER: For his consideration?

PN109

MR MAXWELL: His consideration whether it should be dealt with by a Full Bench.

PN110

THE COMMISSIONER: Do you have a view about that, that he can take into account if I pass it on? Do you have a view as to whether or not three or five members, or seven members of the Commission should exercise their mind on this matter?

PN111

MR MAXWELL: Well, at this stage, Commissioner, we are not opposed to the matter being dealt with by yourself, but we still would argue that it is an application below the safety net, or to vary the safety net, but we believe that just to conform with the principles that that issue should be addressed by the Commission in the meantime.

PN112

THE COMMISSIONER: Sure, I can raise with the President and give him the opportunity. Does anybody have a view on that, if it is below the safety net, the matter must be raised with the President and, out of an abundance of caution, I raise all of these matters with the President if somebody suggests it is. Does anybody have a view as to how the Commission should be constitute to hear the matter?

PN113

MR CALVER: Sorry, Commissioner, I had thought you had recognised me when you nodded. I apologise.

PN114

THE COMMISSIONER: Yes, sorry.

PN115

MR CALVER: Yes, we do have a view. The first point I would make is that this is not an application, therefore one could argue a technical basis that the matter does not need to be referred to the President because, on a pedantic reading of the principle, it is outside of its ambit. The second point is that if there is a concern about the notion of part time aggregation in apprenticeships, then the very nature of apprenticeships is that part of the job involves time away from work, and school based apprenticeships are no different in that sense. So, again, one can say that there is only a slight alteration of the safety net.

PN116

Further, it is not below the safety net. It is in fact an alteration of that safety net and on that basis one could argue that the principle 10 did not apply. So there are three reasons there that we believe that the matters contended to by the CFMEU might be able to be opposed. However, we certainly are not wanting to stand in the way of this matter being discussed and referred to the President.

PN117

I believe that in that regard this could be a matter that parties provided submissions to the Commission about at the same time as the award architecture is considered, and we would offer to make written submissions on that point by 13 June, in the same manner that we had offered to provide the nature of the clause proposed, to the CFMEU. If it please the Commission.

PN118

THE COMMISSIONER: All right. Thanks, Mr Calver. Does anybody else wish to say anything on this matter? Very well. Well, subject to any discussion I may have, I will simply adjourn until 10 o'clock on 23 September and the 24th will be put aside, as well. Yes, Mr Maxwell?

PN119

MR MAXWELL: Commissioner, can I just raise whether that will be in Sydney or Melbourne?

PN120

THE COMMISSIONER: Is there a view?

PN121

MR MAXWELL: Commissioner, I would have a preference for Sydney, of course.

PN122

MR ADDISON: And I would have a preference for Melbourne, of course.

PN123

THE COMMISSIONER: Well, the unions are united. We will sit in Melbourne. Thanks, Mr Maxwell. The matter is adjourned to Melbourne on the 23rd.

ADJOURNED UNTIL TUESDAY, 23 SEPTEMBER 2003 [4.50pm]