C2005/1835, Transcript of Proceedings [2005] AIRCTrans 920 (18 April 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11160-1

COMMISSIONER SIMMONDS

C2005/1835

APPLICATION BY THE AUSTRALIAN WORKERS' UNION
s.113 - Application to vary an Award
(C2005/1835)

MELBOURNE

10.13AM, THURSDAY, 07 APRIL 2005

PN1

MR S WOOD: I appear on behalf of the Australian Workers' Union.

PN2

MR S BROWN: I appear on behalf of Civil Contractors Federation.

PN3

MR R CALVER: I am from Master Builders Australia and this morning I represent my members who are respondent to the award. That is Master Builders' Associations of Victoria, Tasmania and South Australia. I also indicate to the Commission that Master Builders' Association of New South Wales has instructed me to act on its behalf, given it has members individually responded to the award. Sorry for the long appearance Commissioner. I am today also entering an appearance on behalf of Mr Peter Ryan of Employers First.

PN4

MR D SULLIVAN: I appear on behalf of the Australian Industry Group.

PN5

THE COMMISSIONER: Yes, thanks Mr Sullivan. I have listed this matter for mention and programming. As part of the award simplification process, the AWU subsequently wrote to the then Senior Deputy President Williams and I understand from the file that copies of that correspondence would have been forwarded to all of you and you all, I think all of you have replied or at least in some form have replied to that correspondence. Then the upshot of that was that the Commission wasn't prepared to act on the basis of the correspondence that the Australian Workers' Union had forwarded in proceedings, most recently on 7 February that issue is the subject of discussion.

PN6

And transcript of those proceedings was made available I understand to the parties but if anyone doesn't have that transcript, it is available on the net or my associate can make arrangements to have it emailed to you. The upshot of that is that the AWU has lodged an application to vary the award along the lines, as I understand it and Mr Wood you can confirm this, proposed in that original correspondence to the then Senior Deputy President Williams. That is correct? Okay. Given that there was some opposition, some considerable opposition to what was being proposed in correspondence, I thought it was best to list this matter for mention and programming to see where we want to go. Are there any views that people want to put on the record or should we just go off the record and have a discussion?

PN7

MR CALVER: I have a number of submissions to make, Commissioner.

PN8

THE COMMISSIONER: Yes. Certainly.

PN9

MR CALVER: The first one is a couple of remarks about service because from our perspective it has an unfortunate history. The role of the Master Builders was ignored in respect of the prior proceedings, Commissioner, as you have indicated, appear to be a catalyst for this application.

PN10

THE COMMISSIONER: I am sorry. You will need to speak up. There is a bit of conflict.

PN11

MR CALVER: The acoustics here are difficult are they?

PN12

THE COMMISSIONER: No, it is not the acoustics. It is the - - -

PN13

MR CALVER: What I am saying, Commissioner, is that the prior proceedings that were, as you indicated, the catalyst for this application it seems. We were not served with the papers, in fact we had no notice of the hearing on 7 February even though fundamental to those proceedings was a written submission that Master Builders Australia had made. I remark upon the situation not to be churlish, but to reinforce with the AWU that it has not yet formally responded to my request that Master Builders Australia acting on behalf of those who I have indicated this morning be served with correspondence and all of the documentation relating to this.

PN14

And I would ask that the Commission direct Mr Wood to include Master Builders Australia in relation to any other documents arising in these proceedings that are required to be seen by the AWU. I would like to hear from the AWU in that regard, Commissioner, if it please the Commission. I now turn to the AWUs application and we say the application is deficient. The union must establish compelling reasons for the variation or any variation at all. It must establish a special case in due course.

PN15

It must overcome the fact that the award simplification process has occurred and that the grounds of its application, that is grounds 2, 3 and 4 are otiose and do not constitute a basis upon which the Commission, we say, is able to vary an award. The water has flowed under that bridge some two years ago despite any - - -

PN16

THE COMMISSIONER: I will just interrupt you. Is this a matter that goes to mention and programming? I mean, what I am hearing from you is that you intend to raise these issues if they press the application.

PN17

MR CALVER: What I am doing, Commissioner, is reaching a point where I can explain to you why it is we are going to seek written submissions from the AWU so we can respond on how the principles apply in this matter and we think that these are introductory remarks in relation to that particular submission that I will be making to you in a moment. If it please the Commission.

PN18

THE COMMISSIONER: Yes, certainly.

PN19

MR CALVER: We contend that the AWU must show that the changes are proposed to have merit not merely that it alleges a mistake was made during the simplification process. Our submission is simply from your remarks this morning, Commissioner, and from the transcript in C1998/640 of 7 February this year. We say there is an insufficient ground for the Commission to act, to hearing the matter. The various elements of the union's application represent a radical departure from existing award conditions and the test case standard regarding redundancy.

PN20

How does the union intend to overcome the issue of this application seeking to vary the award above the safety net? This is not an application countenanced by principle 2(b) whereby the union is seeking to incorporate test case standards in accordance with principle 4. We believe that principle 10 applies here. We also believe that if conciliation is unable to resolve this matter, and we contend that conciliation is not over, then a Full Bench would be needed. We say that the application does not further the objects of the Act and would pose a serious risk to competitiveness and remove the focus from the enterprise level.

PN21

We say that where it purports to be based upon the application that is giving effect to Commission decisions regarding the construction industry, comity alone is not of assistance in overcoming the hurdle established by principle 10. Further the proposed variation as reflected in the draft order pits an argument about the utility of the redundancy provisions under the National Building and Construction Industry Award against the utility of the test case standards for redundancy as being appropriate for this award or for the construction industry.

PN22

This is a matter of such weight that we would submit that a Full Bench should be convened if conciliation is unable to present a resolution. In summary then, Master Builders will seek further discussions with the AWU which really only commenced this morning. It would ask that if the matter was to be arbitrated the Commissioner directs the AWU to submit in writing the manner in which its application should be dealt with under the principles, with employers being provided with the right of reply in that regard. The President should then be given the opportunity to express a view as contemplated by the principles on this matter pursuant to principle 10 that in the light of fully developed submissions, regarding those principles and regarding the basis of the application. If it please the Commission.

PN23

THE COMMISSIONER: Yes. Thanks, Mr Calver. Mr Brown and Mr Sullivan?

PN24

MR BROWN: If the Commission pleases, we would certainly strongly support the MBA's position in regards to this matter and I would also just reiterate our concerns about the conciliation and look forward to further conciliation regarding this matter before proceeding further.

PN25

THE COMMISSIONER: Yes.

PN26

MR SULLIVAN: If the Commission pleases we would certainly support the .....

PN27

THE COMMISSIONER: Do you say it is open to me to conciliate and I put this to the three of you. Do you say it is open to me to conciliate pending what I think is necessary and that is the reference of the matter to the president for the purposes of principle 10?

PN28

MR CALVER: You are, under the Act, able to conciliate Commissioner but it may well have implications for the carriage of this matter as you are well aware, Sir, if the matter is then referred to you as a single member based upon the president exercising the discretion which he has under .....

PN29

THE COMMISSIONER: I am not sure I understand that.

PN30

MR CALVER: It may well be that, I think 106 might come into effect.

PN31

THE COMMISSIONER: I see.

PN32

MR CALVER: I don't believe that, without in any way wishing to seem impertinent towards you, I don't think we are seeking the assistance of the Commission in conciliation at the moment, I think - - -

PN33

THE COMMISSIONER: No, I just don't think as a matter of course that it is appropriate that I consider that prior to the president considering the matter under principle 10.

PN34

MR CALVER: I see.

PN35

THE COMMISSIONER: Because it may be that the matter is going, you know, it would go to a Full Bench. If he decides to send it to a Full Bench and it is for the Full Bench to determine whether or not conciliation is appropriate or not, I don't think I should foreshorten that process. It is the attitude I would take anyhow, subject to what Mr Wood might have to say and what further submissions you might have to say in the matter.

PN36

MR CALVER: Thank you, Commissioner.

PN37

THE COMMISSIONER: Mr Wood?

PN38

MR WOOD: If the Commission pleases. I want to say first of all that it is a sad day for the Commission here today, I have been involved in industrial relations for many years and it just appears that whether it is the change of government or it is the change of attitudes of the employers, they want to be gracious and say there is still a picture of truth. In terms of the papers that have been served, Senior Deputy President Williams gave me a list of people that I had to serve the documents with and that was the Victorian Employers' Federation, the ACTU, the Australian Industry Group, the Victorian Trades Hall Council, that is the first one.

PN39

As well as the Australian Industry Group in North Sydney, the Australian Industry Group in Melbourne, Master Builders Association of Tasmania, Master Builders Association of Victoria, the CCFQ, the Victorian Employer's Chamber of Commerce and Industry in Melbourne, the Master Builders Association of South Australia, Business SA Employers' First, all of which I did. When I was seeking a correction order, I believe that the Senior Deputy President on his own motion, advised, I think there was about four people. Four organisations I should say. When he did that, those were the people that I would have also corresponded with.

PN40

In relation to the recent notice, the MBA South Australia had registered post, RP18234574. The MBA in Tasmania was RP18234578 and the MBA in Victoria was RP18234577. We have complied and we have got copies of the registered post. We have got copies of what had been sent to the employers for those registered businesses. I admit that when we made the application to vary the award, employers had over many years complained to the union about the late notice that they got.

PN41

So what I did, to be thorough in this exercise was, at the same time making the application I sent the draft orders and the application and all the supporting documents to the employers at the same time I made the application before I got the substitution of service. Once I did get the substitution of service I didn't see a need to send the whole, the ..... documents again but I did advise those who were added to the substitution of service that the Commission had, which was the ACTU and the VTAC because this was a common law award, I added those to the list and sent the additional material and the notice of change.

PN42

So whatever the Master Builders are saying, I suppose the problem either lies with Australia Post or the MBA but it certainly doesn't lie with the AWU. In relation to the submissions made regards to a Full Bench, we say that it is not necessary. We say that there is ample evidence to show why this variation - - -

PN43

THE COMMISSIONER: Mr Wood, I need to interrupt you there. As I understood the submission, it was that they wanted you to provide or - and this had the support of the other two organisations as well - wanted you to provide reasons as to why the award should be varied above the safety net given that the award as it currently exists is presumed to meet the requirements of the safety net. They wanted to have those arguments put in writing so they could respond, so that the full argument would then be before the president when he considered whether or not to refer it to a Full Bench or leave it with the Commission as presently constituted. But I guess really what I am asking is do you object to that course of action?

PN44

MR WOOD: I do object to that for the first reason, this isn't above the safety net, matter of fact it is below the safety net.

PN45

THE COMMISSIONER: No, I am not going to get into an argument about that. The principles are very clear. The award is taken as being the safety net and if you seek to vary the award to provide something better and it is clear this does, then it is taken to be an application to which principle 10 applies.

PN46

MR WOOD: Even if the test, I am asking a question, Commissioner. Even if the test case has established what the redundancy system is. You see our application is varying below that so I - - -

PN47

THE COMMISSIONER: But it is not for me to decide. I mean the issue has been raised, it is a matter for the president. He may come to the view that it isn't an application to vary the award, you know, just as you are arguing. But it is better that you have that argument presented in such a way that he can make that decision.

PN48

MR WOOD: Yes, I understand what the Commission is saying there and it is our submission that it only needs someone to look at the application to see that it is not a variation above the safety net. We want to put to this Commission, to yourself, not only the grounds for the application, why the award should be varied and quite frankly we don't rely upon any one particular ground. We leave it up to the Commission to decide that but certainly we will put all of the argument, it is our intention to put all of the argument as to why, how this happened, including the process of simplification including conversations that had been made with the Senior Deputy Vice President Kevin Marsh, with submissions before
Senior Deputy President Williams in the ..... case and including submissions that were made in relation to Commissioner Merriman in the National Building and Construction Award.

PN49

It was our intention that we would, by submission today, that we were going to have one witness, one witness statement. We would provide the parties with all the authorities we were relying upon. It was our expectation that the matter would take us no more than two hours with our submissions. We oppose the decision that it goes to a Full Bench. We say this is, firstly it is an application just to rectify what shouldn't have happened in the first place but in order for completeness I am under instructions from the National Secretary to put all of the arguments, whether there is jurisdiction, whether there was an error made by the Commission, whether there was an error made by myself, whether all the supporting material about why the application should be made.

PN50

We thoroughly support that. The recent test case. Because this only really comes down to one issue and that is the definition. Because all the others has been decided by the Full Bench of the Commission already. And the definition has been all the way to the High Court and back and adopted by all the employers as well as them having the audacity to agree on every other construction award. Agree, not an issue. But when the error has been made, they get here and they turn around and say, look, no that is not right. They even fabricated a position to say that we actually asked for this. We have got mountains of evidence to say they have never even asked for it.

PN51

MR CALVER: If it please the Commission, the allegation of a fabrication is quite a serious matter. Mr Wood should be not making such an allegation in the course of these proceedings.

PN52

THE COMMISSIONER: I think you invited it, Mr Calver, because you invited them to present their case as to why the matter should proceed and that is what he is doing. And he said he has got the evidence to back it up. I think he has got that entitlement to make the allegation if he says he has got the evidence.

PN53

MR WOOD: So it is our submission, Commissioner, that we oppose being referred to the Commission. We oppose going to the Full Bench. We are going to provide one witness statement and one witness. We have got all the material supporting this and we will give a copy to the employers and we have come here today with the expectation of being given a date and a time, as this has gone on for quite some time now. Might I point out, not one member of ours has not been paid redundancy despite what the award says. And I believe that's mainly because of the Incolink fund here and all the employers have agreed to contribute into these funds which operate nationally.

PN54

That they have got no answer to that, as to the deed of..... all the employers have signed. We have got all the lists of people. We sit on all of the funds right across the country, they have no answer for that. I don't think they have got an answer for anything. If the Commission pleases.

PN55

THE COMMISSIONER: Yes. Okay, well.

PN56

MR CALBER: Do you want to hear from us again, Commissioner?

PN57

THE COMMISSIONER: I will in a minute. I just want to be clear about this. You have got documented the full submissions that you, and you are in a position to provide those to the employers that are represented today. Is that the position?

PN58

MR WOOD: I have all the documentation other than, I haven't a written submission but I have made points about all the issues.

PN59

THE COMMISSIONER: You have got an outline of submissions, yes. But I take it from what you have said that you have no outline of submissions or submission that goes to the, other than what you have said today, that goes to principle 10?

PN60

MR WOOD: That is correct.

PN61

THE COMMISSIONER: How long will it take you to prepare something on that for the president to consider and for the other side to consider too, I think.

PN62

MR WOOD: I will talk to the National Secretary today. If I do it, it will take me, I could have it ready by the middle of next week to give to the president
and - - -

PN63

THE COMMISSIONER: Well, I don't think they'll be able to respond to
that - - -

PN64

MR WOOD: But if it is going to be done, it is my advice to the National Secretary would be that we get someone like Richard ..... QC to..... If the Commission pleases, and he might need a bit more time.

PN65

THE COMMISSIONER: Well, he will get what time I give him. Would you see a need to come back and argue that issue or would it be sufficient to put written submissions in to go to the president? I would have thought written submissions would be sufficient.

PN66

MR CALVER: It is our request of the Commission that this matter be - that this preliminary threshold matter be done - - -

PN67

THE COMMISSIONER: I didn't understand that. I thought you said by submission to the Commission.

PN68

MR CALVER: Excuse me, sir?

PN69

THE COMMISSIONER: By verbal submission, or?

PN70

MR CALVER: By written submission, yes.

PN71

THE COMMISSIONER: Yes, okay.

PN72

MR CALVER: And the only other point that, while I am on my feet, it appeared to us that from what Mr Wood is saying that he was disagreeing that, in this case, the standard was a matter that was in contention. In other words, he was saying that this is a for the construction industry equivalent to a test case standard firstly for them would apply and the second sentence of principle 4 says, we disagree it exists as to whether a claimant... was a test case standard as it appears Mr Wood is putting, a party decision that does, must make and justify an application pursuant to section 107. So, in the end,- - -

PN73

THE COMMISSIONER: It goes to the president either way.

PN74

MR CALVER: It goes to the same issue and accordingly, despite Mr Wood's protestations, I believe the best course is as you recommended, Commissioner, with the submissions in principle to you. If it please the Commission.

PN75

THE COMMISSIONER: I think there is probably agreement about that. Reluctantly albeit from the point of view of the AWU but the inevitability of it is there. We might just go off the record to discuss timing.

OFF THE RECORD

PN76

THE COMMISSIONER: The Australian Workers' Union is directed to file in the Commission and serve on the Master Builders Association of Australia, Civil Contractors Federation and the Australian Industry Group and Employers First in New South Wales at the addresses that were discussed off the record its submissions in respect to the issue of the principles and their application to this application for consideration by the president by noon on 14 April. The employer representatives, I don't intend to enumerate them again, they know who they are will, if they wish, file in the Commission and serve on the AWU their submissions on the same subject by the 21st.

PN77

And if there are any submissions in reply that the AWU seeks to rely on, they should serve them and file them in the Commission by close of business on
26 April. I would also encourage the AWU to serve on the employer representatives the outline of submissions, witness statements and other material it seeks to rely on in respect of the application generally by 14 April but I don't intend to make a direction in respect of that matter. As I have indicated off the record, if the president is minded to leave the matter as it is with the Commission as presently constituted, then I would anticipate listing the matter on 23 May 2005.

PN78

If that happens, directions will be sent to the parties along the lines that I discussed in conference. I don't put that too high, however, because it is entirely a matter for his Honour. Is there anything further anyone wishes to raise in regard to the further conduct of these proceedings? If not, the proceedings are adjourned to a date to be fixed.

<ADJOURNED INDEFINITELY [10.51AM]