C2002/5801, Transcript of Proceedings [2003] AIRCTrans 429 (10 February 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N VT1330

A 7.2.03

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT ROSS

C2002/5801

AUSTRALIAN WORKERS' UNION
CONSTRUCTION AND MAINTENANCE
AWARD 2002

Application under section 113 of the Act
by the Australian Workers' Union to vary
the above award re casual loading,
etcetera

MELBOURNE

12.07 PM, THURSDAY, 16 JANUARY 2003

THIS HEARING WAS CONDUCTED BY VIDEO CONFERENCE IN AND RECORDED IN MELBOURNE

PN1

THE VICE PRESIDENT: Can I have the appearances, please. Firstly in Melbourne. Just retain your seat, Mr Wood, otherwise the camera is going to have trouble following you about.

PN2

MR S. WOOD: I appear for the Australian Workers' Union.

PN3

MR B. NEILL: I appear for the Australian Industry Group.

PN4

MR SHELL: I appear for the Civil Contractors' Federation.

PN5

MS M. PEKAR: I appear for the Master Builders of Victoria and the Master Builders of Tasmania.

PN6

MR P. EBERHARD: I appear for the Victorian Employer Chamber of Commerce and Industry.

PN7

THE VICE PRESIDENT: And in South Australia?

PN8

MR M. HOWARD: I appear for the Master Builders Association of South Australia Incorporated.

PN9

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

PN10

THE VICE PRESIDENT: Thank you. Mr Wood.

PN11

MR WOOD: Yes. If the Commission pleases, the union has made an application to vary the award in respect to two issues, one being casual loading and the second being the definition of ordinary time earnings to include travel. The application was made, we say, in support of two Full Bench decisions: first a Metal's decision, Print Q2257; and another Full Bench decision on appeal from Commissioner Jones, PR918001. Also the union made the application on the basis that some other awards have also been able to be negotiated and reached agreement with the same employers that appear before the Commission today.

PN12

Agreement with the CFMEU was reached at varying their award and notices went out on 25 June and 8 July, by Victorian Employers Chamber of Commerce and Industry, to support that - those changes in the award. The union, after seeing those notices, had gone out - and reading the decisions of the Commission in respect of those two matters, had informal talks with the CCF, Mr Doug Huett, and agreement was reached in principle to this variation. It was suggested that a meeting be set up between the unions and the employers to reach formal agreement.

PN13

In and around the same time, in July, the Metals Union also started talks with the Australian Industry Group regarding another construction award, the Metal Engineering On-Site Construction Award. And agreement was also reached in principle but details had to be worked out. That was also confirmed on a letter by the the Australian Industry Group on 23 September 2002. A meeting was arranged by the AWU on 12 August to hold such a formal meeting.

PN14

Unfortunately I took ill on that and was admitted into hospital and there had been some time that that lapsed from there until a second meeting was organised on 11th of the 10th, 2002 for a meeting on the 14th of the 11th, 2002 at Trades Hall. And that was attended by Mr Terry Lee. On the 3rd of the 12th, 2002 we got a letter from the CCF notifying us that they were going to object to the variation. And they informed us they were writing on behalf of the employers. This came as a bit of a surprise to the union because we had originally reached agreement with Mr Huett, as I have already submitted, and he was a national executive officer of CCF.

PN15

The union wasn't exactly sure exactly what position the employers in this matter was going to take so decided to file the application on 28 November and sent a copy of the application and the draft order to the Commission. On the 20th of the 11th, 2002 there was also a meeting held between the AIG and the unions about the MECA Award. They indicated that there were some problems that they wanted to talk through and we held that meeting. And, as I understand it, some agreements have been reached since that time but there are some concerns that the employer raises, again.

PN16

But we say the concerns in relation to that matter are not the same concerns in relation to this application. The Commission granted, on the 17th of the 12th, 2002 a substitute service and we notified the parties in accordance with that notification. We then, on the 13th of the 1st, 2002 (sic) - after I had returned from leave - notified the parties of the hearing as well as - the draft order had been sent at the same time on the 28th of the 11th, 2002. We were informed on the 14th of the 1st, 2003 that some of the applicants did not receive the draft order so we faxed, again, to all the parties on the 14th of the 1st, 2003 to indicate what the draft order was seeking to do.

PN17

At 5.12 on the 14th of the 1st, 2002 we received a letter from the Master Builders Association in South Australia. Basically in principle agreeing to the application but seeking some amendments. They also indicated in their facsimile that they had sent a copy to your Honour. I can foreshadow that the AWU hasn't got any problems with the suggestions being made by the Master Builders Association. Basically the application was made to ensure that our members who work in the construction and maintenance industry get paid no less than other union members.

PN18

It is consistent with two Full Bench decisions. It is consistent with the approach the Commission has taken in relation to the family of construction awards. It is in line with the provisions of the Act and the union submits that it has complied with all the elements in the Act. The draft order that was amended to take into account the concerns raised by the AIG have been incorporated in this draft order. Basically, your Honour, we would take it upon ourselves to re-submit a draft order because of the timing.

PN19

Our original draft order asked for the payment to be on 1 January 2003. The union appreciates the Commission gave the union the opportunity to have the matter heard before then and it was our decision that - because I was on leave, once again - that it would be heard now. So there needs to be amendment about that. We agree with the Master Builders in respect to the operative date being the date on which the order was made. We also with the Master Builders Association that consistent with the Metals decision, the 25 percent should outline what the 25 percent is paid for and it will incorporate at clause 15.2.3 in the draft order.

PN20

I understand that there are still some objections by the employers. I don't want to make their submissions for them, they can make them themselves, but I can foreshadow to the Commission that if agreement can't be reached on this application the union will reserve its right to press the matter. And in pressing it may very well seek to provide the Commission with a new draft order that goes further than this one. We have accommodated a number of people and a number of concerns that haven't been incorporated in other awards and other agreements.

PN21

But if we are forced to present a full case, and if we are in for a penny we may as well be in for a pound, and we reserve our right to submit any future amendments to that original draft order. If the Commission pleases.

PN22

THE VICE PRESIDENT: Right. Mr Wood, we also received correspondence from Ms Kraemer indicating, in essence, because of the late provision of the draft order that she hasn't had sufficient opportunity to consult with the members of Business SA.

PN23

MR WOOD: Yes. I had received one formal complaint that the draft order hadn't been forwarded to the Master Builders Association of South Australia. No other person had complained to us about that. But I don't discount that they may not have got it, given someone has readily raised it, so I am happy that some time be given to the employers if they haven't already got some instructions on whether to accept or oppose the application, your Honour.

PN24

THE VICE PRESIDENT: There is one other matter. That is because the application seeks to vary the award above the safety net I am obliged by the principles to draw the application to the President's attention so that he may make a decision as to whether or not the issue should be dealt with by a single Member or a Full Bench. My normal course in matters such as this is to invite comment from the parties as to whether or not they believe the matter should be dealt with by a single Member or by a Full Bench. Do you have a view on that at this stage?

PN25

MR WOOD: Our preference is that given that these two matters have already been dealt with by a Full Bench, and their own decision about it, it is in our submissions more than adequate for your Honour to deal with this sitting alone.

PN26

THE VICE PRESIDENT: All right. Thank you. Unless there is any preferred view about dealing with it perhaps we might just work our way along the bar table and if I can hear from each of the employer organisations, firstly in Melbourne and then in Adelaide. Mr Neill?

PN27

MR NEILL: Vice President, as Mr Wood has indicated we have met with the union on 14 November and had some discussions about the draft proposal. We indicated at that time that there was - we did have some concern about aspects of the application. And in particular we are - the casual loading was affected where it limited the period of engagement. And that was an area of concern we discussed at that time and it is still a matter that is of concern with us.

PN28

THE VICE PRESIDENT: What, the variation seeks to limit the period of engagement?

PN29

MR NEILL: That is my understanding.

PN30

THE VICE PRESIDENT: Not in the draft order that I have. All it seeks to do - there is a minor amendment and there is an amendment that deals with fares and travel. And there is simply the amendment which seeks to increase the casual loading from 20 to 25 percent. And I apprehend from what Mr Wood said there would be the amendment proposed by the MBA dealing with clause 15.2.3.

PN31

MR NEILL: Your Honour, it might be helpful if Mr Shell commented further on that because I understand at the meeting of 14 November the AWU submitted a more comprehensive document. I wasn't personally in attendance at that meeting but I think he might be able to help the Commission in that regard.

PN32

THE VICE PRESIDENT: Certainly. Well, just before we deal with that, am I right, Mr Wood, in as far as what you seek is in essence an increase in the casual loading from 20 to 25 percent and you have indicated you are prepared to accommodate the MBAs proposition that would amend - put a new sub-clause in, 15.2.3, as outlined in their correspondence?

PN33

MR WOOD: That is correct, your Honour. Just for clarification, on the 14th of the 11th we did have a meeting and a number of concerns were raised. We believe that this draft order, subject to that other change from the MBA that it put forward, accommodated the concerns raised at that meeting. Now, it would pay the parties to have a look at it, what we have actually done with the draft order rather than what we did at the meeting. If the Commission pleases.

PN34

THE VICE PRESIDENT: Sure. Yes. We will just focus on the order that is proposed that I make, at this stage, Mr Shell.

PN35

MR SHELL: Yes. If the Commission pleases, the first thing I would like to raise is that the Commission issued an order for substituted service in this matter back on 13 December, and a direct notice of hearing was dated 17 December by seal of the Commission. My organisation received this notice that this hearing was on on the 14th, this week, about two days ago.

PN36

THE VICE PRESIDENT: Yes.

PN37

MR SHELL: It is - - -

PN38

THE VICE PRESIDENT: Well, that is a point Ms Kraemer makes in her correspondence and I think there is substance to that.

PN39

MR SHELL: Yes. And I think it is very difficult to expect that a national organisation that I represent would have a response in two days for something that could have been arranged prior - I could agree that there could be difficulties over the Christmas period but a bit of notice would have been helpful

PN40

THE VICE PRESIDENT: Yes.

PN41

MR NEILL: And it is certainly not helpful in our situation at the present time. And perhaps just to - there are two aspects to this particular application that has now been lodged. However in the past we were just dealing with one particular matter and that was the casual loadings, or casual - and it is correct that I attended a meeting along with a representative of AIG on 14 November with a representative from the AWU. And on that occasion, in respect of the casual employment provisions, we were given a draft which went to some nine points which effectively was a duplicate version of the insertions that went into - as I would understand it - the National Building and Construction Industry Award.

PN42

And we are asked to comment on all of those aspects. And I did subsequently follow that up with correspondence back to the AWU, saying that we objected to the casual loading change. I submit copies of that. At that time, your Honour, I thought we were dealing with a wide ranging nine issues and I did seek instructions from my organisations in their States - States affected and was told to opposed the application. And I still oppose the applications. My understanding, sir, is that the National Building and Construction Industry Award Variation was reached for very different reasons than what are sought here today.

PN43

My understanding from my previous involvement with the National Building and Construction Industry Award, was it had constraints on the period of time that employers could employ casuals. It was limited. My recollection is to nor more than a week and then the employee had to be a daily hire employee in accordance with the award. So in that particular award the employers were seeking, as I understand it because my organisation was involved in those national discussions, the employers were seeking greater flexibility in their ability to hire casual employees under their particular award. And that is why we ended up with a consent matter that was ratified by the Commission.

PN44

So I was somewhat confused by the shot space of time prepare for this; somewhat confused by being asked to comment on a nine point variation back in November an then being advised this morning that, "No, we are only seeking the 5 percent increase in the loading. However if you don't agree to that then we will run a full blown case and we might have to try out some other variations. I certainly need some more time and I will be looking for an adjournment from the Commission in this particular matter to seek instructions on the casual loading.

PN45

The second issue and the overtime, ordinary time earnings for superannuation purposes as never been a matter that has been discussed, to my knowledge, with my organisation. And it is a surprise to me that it has been joined with the casual provision one because I thought that they were separate issues. mr Wood made some comment about a previous in-principle verbal agreement reached with Mr Huett, our former national executive director who is no longer with us.

PN46

I did do a hand over, sir, of all national matters which I have now been given responsibility for, including these issues, and was given no such undertaking by Mr Huett that he had in fact agreed to a variation. I find that deliberately difficult - difficult for him because we do have a national industrial relations committee and which I am now in constant discussions with, and they would have told me that Mr Huett had - well, they had instructed - they have instructed me to oppose both aspects of this application. But in the short term, sir, I think we need a little bit more time to respond adequately.

PN47

I do say that there were quite significant differences in the decision in the National Building and Construction Industry case in relation to the casual loadings. I am not as equipped at the present time to talk about the ordinary time earnings. But the actual changes that went into the Commissioner Jones' orders included three other major allowances as well as the fares and travel provisions. And I seem to understand now that Mr Wood has cleaned up a little bit of confusion that I had, that he is not seeking those other three allowance inclusions but rather is seeking just the inclusion of the fares allowance for the various national capitals and other regional centres as outlined in his application. That being said, sir, we seek an adjournment.

PN48

THE VICE PRESIDENT: Okay. You can take it that I am sympathetic to the fact that all of the employer parties received notification of a hearing and the draft order within an inadequate timeframe, given the hearing. As you have already indicated, the substitute service order and the notice of listing was issued in mid-December and in the normal course I would have expected it to have been served at that stage. Before I turn to deal with the other employer organisations, do you have a view about whether or not the matter should be dealt with by a single Member or a Full Bench?

PN49

MR SHELL: I have no view, sir, but I would think that - and once again it is this inadequate time to consider such a matter - but I would think that the matter could adequately be dealt with by a single Member of the Commission. But I have no preference at this stage.

PN50

THE VICE PRESIDENT: All right. I should have asked you the same thing, Mr Neill.

PN51

MR NEILL: We wouldn't oppose a single Member dealing with this matter, your Honour.

PN52

THE VICE PRESIDENT: All right. Thank you. Yes?

PN53

MS PEKAR: Yes, sir. The position of the Master Builders Association of Victoria and Tasmania has been clearly expressed by our counterpart in South Australia. There were certain stipulations which were going to be met by the Australian Workers' Union. Accordingly there is no objection.

PN54

THE VICE PRESIDENT: No objection to the - assuming the draft order that has been submitted is amended?

PN55

MS PEKAR: Correct. As long as they meet the requirements.

PN56

THE VICE PRESIDENT: All right. On that basis do I take it you have got - well, what is your view about whether or not the matter should be dealt with by a single Member or a Full Bench?

PN57

MS PEKAR: If it proceeds further we have no objection to it being heard by a single member.

PN58

THE VICE PRESIDENT: Okay. Thank you, Ms Pekar. Mr Eberhard?

PN59

MR EBERHARD: Your Honour, probably we are like the AIG and CCF in the sense that we only received the notification fairly recently.

PN60

THE VICE PRESIDENT: Yes. No, you - - -

PN61

MR EBERHARD: And, unfortunately, we really haven't had the opportunity to put anything out to the membership to seek any instructions. On that sort of basis I think it would be helpful if Mr Wood had indicated that he would provide a revised draft order. It may also be helpful if we could get copies of the other correspondence that he has referred to today in the proceedings so just as we can have a look at that information. We will then need to correspond to our members in respect to the application. I would anticipate that taking probably at least a couple of weeks. So if the Commission pleases, we would be asking for any matter that is brought back on that it not be brought back on for - probably four weeks would be an appropriate time because it may well give us the opportunity then to meet with the AWU and discuss any concerns that we do have.

PN62

With respect to a further hearing, with respect to whether it be a single Member or a Full Bench, we would have no objection to a single Member of the Commission dealing with the matter. If the Commission pleases.

PN63

THE VICE PRESIDENT: All right. Thank you, Mr Eberhard. And can I go to Adelaide, Mr Howard.

PN64

MR EBERHARD: Yes, your Honour. I had discussions with Mr Wood regarding this application because we had not received it. My understanding, and the undertaking given to me by Mr Wood, was that the superannuation clause would include the daily travelling allowance - which is consistent with the decision of Mr Commissioner Jones and the Appeal Bench led by Senior Deputy President Harrison. We would have no objection to that because it is in line with a decision of the Commission. Similarly with the casual application, Mr Wood gave me an undertaking that there would be no limitations as in other awards on the employment of casual employees and that current provision would not change in the award.

PN65

However, my letter to Mr Wood makes it clear that if we are going to increase the 20 to 25 percent which has taken place in the Metal Industry Award and also in the National Building and Construction Industry Award, then we would want the details that we have given to both the Commission and Mr Wood to be inserted into that particular clause so that people are aware of what the 25 percent is payable for. And there would be no dissension between employers and employees as to what the meaning of the 25 percent loading was.

PN66

On that basis we have no objection if the award was varied in the terms that we agreed with the AWU. I understand other people are seeking adjournment and I have no objection to that because people have had insufficient time to rediscuss the issue with their membership. In respect to the matter of a single Member, we have no objection to a single member hearing this matter - as was the case in the Metal Industry Award casual clause, as was the case in the National Building - both the superannuation and the casual clause. If the Commission please.

PN67

THE VICE PRESIDENT: Thank you, Mr Howard. Ms Kraemer?

PN68

MS KRAEMER: If it please the Commission. Your Honour, as indicated by our letter of yesterday, Business SA obviously didn't receive notification of this matter until very late in the piece and as such we have asked for an adjournment so as to seek instructions from our member respondents. I believe that the other parties are obviously in a similar position. I would note, just for the record, that it wasn't simply - in our case it wasn't simply a case that the order for substitute service doesn't actually contain Business SAs details, full stop.

PN69

And that this is a problem that Business SA has been having with a number of unions in regards to receiving notification of award applications. Having said that, essentially is that the matter be adjourned to allow time for consultation with our members. In relation to the application being above the safety net, obviously subject to the President's discretion we would have no problem with this matter being heard by a single member. Thank you.

PN70

THE VICE PRESIDENT: Thank you, Ms Kraemer. Mr Wood, what do you say about the general views that have been expressed regarding the adjournment of this matter to allow for, firstly, you to file an amended draft order incorporating the agreement with the MBA of South Australia and providing copies of relevant correspondence to the various employer organisations and to provide an opportunity for them to consult with their members and to meet further with you to seek to resolve any of the matters that are outstanding?

PN71

MR WOOD: Yes, your Honour. I haven't got a problem in the employers having the ability to do that, providing that - my experience has been that this has been around since the middle of last year and the times I have been able to get people to the table and get them to attend meetings and all have been very poor, so as long as it didn't go for a long period of time. I raise issue about Mr Huett with the CCF. I have never been known to tell untruths to the Commission or employers, in fact.

PN72

I did have an agreement about that, albeit informal. And it was their suggestion, the CCF, to hold the meeting and that is why we did. I also raise issue that on 11th of the 10th the notice that was sent out, it also included the definition of ordinary time earnings for the purpose of superannuation. People were aware of that. So I believe that - and agree that people should be given time. I should provide a new draft order. I accept, on behalf of the union, some blame that, yes, I did point out in number eight of my submissions that the substituted service was granted by the Commission on 17th of the 12th, 2002.

PN73

I was actually on leave at that time. I didn't receive an correspondence from the office about that. I returned to work on the 13th this month and noticed it was in my drawer and immediately sent out, as quickly as I could, the notice of this hearing. It was then I was advised that some people did not get the original draft order which I say was sent on the 28th of the 11th, so I re-sent that. I can't prove that I sent out on the 28th of the 11th so I accept what the employers say, that they didn't get it. We are all before you now with all the information.

PN74

I agree that I will submit a new draft order. I will agree on taking copies of the correspondence that I have had and send it to the parties as well. I will accommodate South Australia Business but I ask that whatever time is - that is put aside, it is not a great deal of time.

PN75

THE VICE PRESIDENT: All right. I propose to grant the adjournment. The matter will be adjourned until 10 am on Friday, 7 February. I will provide a video conference facility between Melbourne and Adelaide. And the purpose of the adjournment is, as I have indicated, for the union to as soon as possible send copies of the amended draft order to all parties and for the parties to consult with their members and meet and confer with the union. I will confer with the President in relation to the application, given its nature, and I will convey the views that have been expressed to me about the future carriage of the matter. There being nothing further, I will adjourn.

ADJOURNED UNTIL FRIDAY, 7 FEBRUARY 2003 [12.40pm]