C2002/5801, Transcript of Proceedings [2003] AIRCTrans 611 (25 February 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N VT1567

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

10.01 AM, FRIDAY, 7 FEBRUARY 2003

Continued from 16.1.03

THIS HEARING WAS CONDUCTED BY
VIDEO CONFERENCE IN MELBOURNE

PN76

MR S. WOOD: I appear for the National Office of the Australian Workers Union.

PN77

MS M. PEKAR: I appear on behalf of the Master Builders Association of Victoria and the Master Builders Association of Tasmania.

PN78

MR P. EBERHARD: I am from the Victorian Employers Chamber of Commerce and Industry.

PN79

THE VICE PRESIDENT: And in Adelaide.

PN80

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

PN81

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

PN82

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

PN83

MR WOOD: Yes, the last time we were before you, your Honour, was on 16 January 2003. The union undertook to do a number of things and that was to send out a new draft order to all the parties, including the Commission and apart from the substitute of order we also undertook to send out the material also to Business South Australia. We did that the day after the hearing. The union also accompanied the material with a note basic outlining what the agreement that the union said it would do.

PN84

It also in that note included that it also relied on two Full Bench decisions for its application. It indicated that it wished that the parties to this dispute indicate their agreement or otherwise to the union before the next hearing that is on today. The union can report to the commission that to date - I will put it in a positive sign - I haven't got any people rejecting our claim, but then again to be honest with you I haven't had anyone get back to me other than those that have already indicated their support for the application.

PN85

We therefore come here today on the expectation that the parties, after seeing the material and the agreements of other employers, the support of the Full Bench in two of those matters, have decided to withdraw their objection to the variation and are agreeing, but that is supposition on my part. So basically that is the report, your Honour, and the issues that we said that we would deal with we have complied with. If the Commission pleases.

PN86

THE VICE PRESIDENT: Okay. Who would like to go first reporting their position? Ms Pekar?

PN87

MS PEKAR: Sir, we have no objection from the Master Builders Association of Victoria and Tasmania because the stipulations have been met by the Australian Workers' Union.

PN88

THE VICE PRESIDENT: So the draft order meets your concerns in relation to the matter?

PN89

MS PEKAR: Yes, it does.

PN90

THE VICE PRESIDENT: Okay. Mr Eberhard?

PN91

MR EBERHARD: Your Honour, we received the documentation from the AWU and following that we put a little article in an electronic communication that the organisation puts out to its people called "CO Update". In that we advised the members that the AWU had applied to vary the award in the two purposes that we are here today for and we had asked members to contact myself should they have any concerns. No contact has been made and based upon that situation and based upon the MBAs position, we would not be opposing the application by the AWU in this particular instance.

PN92

THE VICE PRESIDENT: And in South Australia, Mr Howard?

PN93

MR HOWARD: If it pleases the Commission the Master Builders Association of South Australia Incorporated consents to the AWU's Construction and Maintenance Award being varied in the terms sought by the union as set out in the draft order the issues following the previous Commission hearing. We don't believe that occasion contravenes the current national wage - state wage - national wage principles and believes that there has been precedents in other decisions of the Commission for the award to be varied in the terms sought and we agree to the date of operation being on or from the pay week commencing on or after 7 February 2003. If it pleases the Commission.

PN94

THE VICE PRESIDENT: Ms Kraemer?

PN95

MS KRAEMER: Yes, if it pleases the Commission, Business SA has received a copy of the draft orders from the union as instructed and we thank the AWU for recognising that this - the involvement of Business SA on behalf of respondent members. Commissioner - sorry, your Honour, we have no instructions to oppose this application and further to that we would be satisfied with the operative date being first full pay period commencing on or after 7 February this year. Thank you.

PN96

THE VICE PRESIDENT: Well, I will take your optimism as well founded, Mr Wood. Look notwithstanding that the application is either not opposed or by consent, I will still seek from you a submission in support of the application. Perhaps given the views of all the parties, the easiest way to do that is to provide you with a short opportunity to do so in writing and would 4 pm by next Tuesday suffice?

PN97

MR WOOD: That is fine, your Honour. Next Tuesday did you say?

PN98

THE VICE PRESIDENT: Would you - I am content to give you whatever time you need. It was just a suggestion, not a - - -

PN99

MR WOOD: Well, I am just mindful of the operative date of the 7th in the draft order that we put in there.

PN100

THE VICE PRESIDENT: Yes, well - - -

PN101

MR WOOD: As long as that doesn't cause anyone any heartache. I do have next week Monday, Tuesday and Wednesday three days in Western Australia with the oil industry. There is a dispute raging over there that I need to attend to, but I have got a laptop that I can take over and providing the expectation of the Commission isn't some hundred page submission or something that - we did certainly have in mind the arguments that we were going to put forward if there was going to be opposition in this and we are happy to give that to the Commission and the parties of this application.

PN102

THE VICE PRESIDENT: Yes. Okay. Well, perhaps if we deal with it on that basis. Can I ask the parties this? If Mr Wood gets his material to me by 4 o'clock on Tuesday and that will be copied to you, I will make a decision in relation to the matter at 12 noon on Wednesday, 12 noon Eastern Standard Time. If there is anything that concerns you or your position alters you should let my associate know before then and I will hand down the decision in the afternoon on Wednesday.

PN103

Now I will be in Sydney so my associate will send you contact numbers just in case anything arises. In the event that I granted the application would there be any objection to the operative date that is in the draft order, that is the 7th?

PN104

MS PEKAR: No objection from us.

PN105

MR EBERHARD: No, your Honour, no.

PN106

THE VICE PRESIDENT: Mr Howard?

PN107

MR HOWARD: No, your Honour.

PN108

MS KRAEMER: No, your Honour.

PN109

THE VICE PRESIDENT: Okay. Thank you. Is there any additional appearance?

PN110

MR P. SHELL: If the Commission pleases, I do apologise for my lateness. I was delayed by another matter. I appear for the Civil Contractors Federation. In the last matter it was listed as representing the Victorian Branch. Perhaps that came from my card, but I am representing CCF nationally on this matter.

PN111

THE VICE PRESIDENT: Okay.

PN112

MR SHELL: If the Commission pleases.

PN113

THE VICE PRESIDENT: Well, Mr Shell, just to bring you up to date. The position in respect of all of the other employer organisations is that they either consent or do not oppose the AWUs draft order which was sent on - well, we received it on 21 January - 22 January, that I have asked Mr Wood to file a written submission in support of his application with the Commission by 4 pm Tuesday. If the position of any employer organisation changes or they have something that excites their interest in the submission, they should let my associate know that by 12 noon on Wednesday.

PN114

If I don't hear anything I would issue a decision on Wednesday afternoon. In the event that I issue a decision I have just asked whether there would by any opposition to the operative date in the draft order, which is 7 February and the indication has been no, there would not. What is the position of the CCF?

PN115

MR SHELL: The CCF continues to - - -

PN116

THE VICE PRESIDENT: If you just sit down because otherwise the - - -

PN117

MR SHELL: Sorry. The Civil Contractors Federation, sir, continues to oppose the order - draft order as amended, but I think I would take the opportunity of being able to put that in writing in accordance with your suggestions and belief.

PN118

THE VICE PRESIDENT: Well, I would need to provide you with more time I think. If that is the case. If Mr Wood files by 4 pm Tuesday, when do you think - when would you be in a position to respond to that?

PN119

MR SHELL: You were talking in terms of Wednesday. Perhaps Friday.

PN120

THE VICE PRESIDENT: Right. Right. All right, Mr Wood, you have got until 4 pm, Tuesday.

PN121

MR WOOD: Yes.

PN122

THE VICE PRESIDENT: You have until 4 pm, Friday to respond. If there is anything in reply, Mr Wood, by 4 pm the following Tuesday.

PN123

MR WOOD: No, I won't need time to reply, your Honour. I will put our submission. If the CCF, as they have indicated, want to oppose that, well, that is going to be their business. We will wait on the decision. I am mindful of the employers that have agreed to this application and if we were to be unsuccessful I can indicate that we wouldn't do anything that would harm those who have agreed to the application, but we would reserve our right to put in a fresh application as it relates to the CCF.

PN124

THE VICE PRESIDENT: Okay. Perhaps if we deal with it this way. If you can get yours in by 2 pm on Friday, then, Mr Wood, that will give you - and you will have until 4 o'clock to put in any - to advise as to whether you do want to reply or not.

PN125

MR WOOD: Yes.

PN126

THE VICE PRESIDENT: I think you really need to see the submission before you make an assessment about that.

PN127

MR WOOD: Yes.

PN128

THE VICE PRESIDENT: If you don't want to put one in, that is obviously your prerogative. As for the other parties I am not suggesting it is necessary for you to put in a submission, you have placed on the record the position of your organisations, but if you wish to do so then similarly you should file anything by 2 pm on Friday. Okay? And obviously anything filed should be copied to the other parties. Does anyone have any questions about the process? No? All right. Being nothing further I will adjourn.

ADJOURNED INDEFINITELY [10.15am]