C2005/3447, Transcript of Proceedings [2006] AIRCTrans 1057 (12 September 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12364-1

COMMISSIONER BLAIR

C2005/3447

APPLICATION BY CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
s.113 - Application to vary an Award
(C2005/3447)

MELBOURNE

9.53AM, TUESDAY, 12 JULY 2005

PN1

MS E SIAMI: I appear for the CFMEU

PN2

MR M SHEEHAN: I appear on behalf of Business SA in this matter.

PN3

MR W WEST: I represent the FIAA in Victoria and Tasmania.

PN4

MR V EBERHARD: I appear for the Victorian Employers' Chamber of Commerce and Industry.

PN5

MS V OKNO: I appear for the Australian Industry Group.

PN6

MS E WATT: I appear for the Cabinet Makers Association and I seek leave to appear on behalf of those members.

PN7

THE COMMISSIONER: Leave is granted.

PN8

MR P KHOO: I appear for the Furnishing Industry Association of Australia.

PN9

MR J PAGACS: I seek leave to appear for Australian Business Industrial on behalf of its respondent members.

PN10

THE COMMISSIONER: Ms Siami?

PN11

MS SIAMI: A copy of this draft order was sent to the ..... Services by fax on
24 June 2005 and a copy of the latest draft order was sent to your associate by email yesterday. ..... sought in this application as a whole are quite ….. and classifications available to them, safety net increase, CPI increase, public holiday, apprentice rates and reasonable overtime. After some discussion with the parties and also with the ….. of this years ..... slightly delaying ….., the union seeks only to deal with part of the entire application at this hearing. The parts which the union seeks to deal with today are the safety net increase, CPI increases, the allowances clause and reasonable overtime.

PN12

THE COMMISSIONER: Can you go through that with me again please. Safety net increase - - -

PN13

MS SIAMI: CPI increase, allowances clause and reasonable overtime. In relation to the allowances clause, what is being sought, Commissioner, is a new format essentially so the award is easier to understand and it's also the style of a more standardised approach so that the same allowances will apply in the different states and territories. At the moment it's quite piece meal. By no means, Commissioner, does this draft order address all of the problems of the allowances clause, however, the union does see it as a good compromise position to ..... The safety net review of wages can be dealt with today and be operative from today's date.

PN14

The draft order updates the format of the allowances clause and standardises some allowances, which effect is mainly the New South Wales and ACT employers, but also re-word the reasonable overtime clause, so that it makes reference to the ability to take time off in lieu overtime payment in NSW only, because that's the only state where time off in lieu is allowed under the award. It also includes the wage rate and work related allowances by the safety net increase and to the extent that .....

PN15

The unions' understanding that the FIAA, both in NSW, VIC and TAS component consent to the variation, but VECCI consent, AIG consent and ..... consent. I have had an indication that Australian Business will not be consenting to the variation. The union does question the standing of Australia Business, because they are not a registered organisation to the award. It is the union's submission that it's undesirable to employ parties who are not bound by the award to make submissions to the Commission, unless it is on behalf of their members who are respondent to the award. The union has no indication of which businesses Australia Business represent, and I did speak to my friend Mr Pagacs yesterday to let him know that the union will be seeking a production of authority for Australian Business ..... The union submits that new increases in the wage rates and work related allowance is in the award, consistent with the national wage case decision and safety net review wages June 2005.

PN16

The increase to the expense ..... CPI and those particular allowances are meal, tool insurance, tool allowance, travelling time and motor vehicle allowance. It is also the union's submission that this application is consistent with the rules and regulations of the Australian Industrial Relations Commission. The union would seek that the Commission varies the award under section 113, consistent with the submissions made today under the proposed draft order, with the only change being to the reasonable overtime clause. At 31.6.1, there has been agreement that rather than say this clause and at clause 31.9, so that every January, subject to 31.6.2, an employer may require an employee to work reasonable overtime at overtime rates or as otherwise provided for in clause 31.9. Just to make it a bit more specific your Honour,

PN17

THE COMMISSIONER: Ms Siami, have you a draft order that simply reflects the clauses that you wish to vary today?

PN18

MS SIAMI: No, that was the draft order that was sent to your associate by email on yesterday's date.

PN19

THE COMMISSIONER: Ms Siami, can you identify specifically, the clause numbers that you intend to vary please. I must say, I'm a bit unease at varying particular clauses or you seeking to vary particular clauses when I have before me a draft order that is quite extensive, and now you again this morning, seek to clarify some wording which I don't have in front of me.

PN20

MS SIAMI: I didn't realise Commissioner, I apologise for that. The clauses that we would be seeking to vary are the clauses in the award and would be clause 2 arrangement by inserting 22(a) Transitional Wage Rates for the employer.

PN21

THE COMMISSIONER: Because I'm uncomfortable with this, I think what you need to do is provide very clearly, a draft order outlining the clauses and the wording that you require, rather than this document that I've got before me. I think in all fairness to the parties, I need to understand very clearly and quite specifically what you do intend to seek, and then what you intend to do with the other clauses. Now, I'll hear from the other parties as to whether they have an objection to that cause. If you provide the draft order and there are no objections to it, then I'm happy to vary it without having a further hearing, but if there are objections, then obviously then I would have to consider whether or not I have another hearing on the matter.

PN22

Now, I'll hear from the other parties as to whether they have any objections to that course, then I'll deal with Mr Pagacs on what his position is.

PN23

MS SIAMI: Thank you Commissioner.

PN24

THE COMMISSIONER: Thank you. Mr West, what do you say?

PN25

MR WEST: Sir we've had discussions and talks with them over the last week, and as far as the FIAA Tasmania, the revised orders that we've got served are true and correct, and we would certainly endorse that draft order.

PN26

THE COMMISSIONER: Right, Mr Eberhard?

PN27

MR EBERHARD: Commissioner, we wouldn't be opposing the application. I'm not allowed to use the C word, so we don't mention that, but we don't oppose the application with respect to the variation for the 2005 safety net adjustment for the variation to the allowances, and also for the variation as being proposed today for reasonable overtime.

PN28

There is one other matter in regards to the reasonable overtime that I had advised the CFMEU on previously, and that related to 31.6.2, and that was just the insertion of the word "which" between the word "ours" and "are", so that the clause then read "an employee may refuse to work overtime in the circumstances where the working of such overtime would result in the employee working hours which are unreasonable, having regard to". And then it continues on, but with regards to that, I hadn't seen the draft order that actually included that, but we wouldn't be opposing the draft if it reflects what we have at the moment.

PN29

With respect to the other components of the application that had been advised to the Commission, VECCI would be reserving its rights with respect to any matter that comes back before the Commission. But as I said, with regards to the SMO, with regards to the allowances and with regards to reasonable overtime, we are not opposing those components of the application, if the Commission pleases.

PN30

THE COMMISSIONER: Thank you. Ms Okno?

PN31

MS OKNO: If the Commission pleases, we have checked the amended draft order which was served on AIG on 8 July, and we believe that the wages and allowances have been varied in accordance with the SMO decision 2005. So we don't oppose those variations in terms of the reasonable overtime clause, subject to the wording being changed as has been discussed this morning.

PN32

THE COMMISSIONER: Right, thank you. Ms Watt?

PN33

MS WATT: Thank you Commissioner. The Cabinet Maker's Association received a copy of the revised draft order by e-mail on the afternoon of 8 July. We checked the order and it reflects those matters which the Cabinet Maker's Association is able to consent to today, and that is the increase in the wage rates for the modification of allowances and the changes to the reasonable overtime clause, but the amendment proposed by VECCI regarding clause 31.6.2, the preamble, the Cabinet Maker's Association does not oppose that either.

PN34

THE COMMISSIONER: Thank you, Mr Sheehan?

PN35

MR SHEEHAN: Thank you sir. Sir, Business SA doesn't have an issue with the draft order, the revised draft order was forwarded to Business SA on 8 July. In relation to the draft order that relates to the safety net adjustment, we believe it's consistent with the safety net review wages decision in relating to the changes sought by the union in relation to reasonable overtime and the allowances, we don't have an issue with that either sir. I've got nothing further to add if it pleases the Commission.

PN36

THE COMMISSIONER: Thank you. Mr Khoo?

PN37

MR KHOO: Thank you Commissioner. The FIAA has been working on the draft order forwarded to us on 8 July 2005. We don't have an issue with the variation sought by the union. We note the proposed changes to the reasonable overtime clause, especially 31.6.1 and 31.6.2 which were mentioned this morning. We would consent to this document in general, and we don't oppose to your proposal Commissioner for the union to provide all parties with a single document that sets out what the union intends to do with this application Commissioner. Thank you.

PN38

THE COMMISSIONER: Thank you. Mr Pagacs, what's your position? You've heard what the union says in terms of your appearance.

PN39

MR PAGACS: Yes Commissioner, if I can perhaps first just address the issue of appearing before the Commission today. The Australian Business Industrial has had a strong history of showing an interest in this award, and we have appeared in several matters, similar in nature to this matter concerning this award, by that I mean particularly section 113 variations to the award, such as last years safety net review and expense related allowance variations. In each of these matters, Australian Business Industrial has appeared unopposed by the parties, and we say that we have a contribution to make, and that we are in a position to assist the Commission today in the exercise of its powers under the Act. Thank you Commissioner.

PN40

THE COMMISSIONER: And by what way would you be assisting the Commission?

PN41

MR PAGACS: Commissioner, I have a number of matters that I would like to bring to the Commission's attention regarding the variations that are sought. The variations sought in the amended attachment 8 of the application seek to disturb the existing regime of allowances that operate in the award. The changes sought are contrary to the consent position that was reached by the parties when the allowance regime was last reviewed by the Commission. Commissioner, there are employers in NSW who have always been paid - who have always paid their employees under the allowance regime that’s in the award at the moment. These employers will be adversely affected if the Commission grants the variation on the terms sought. We say that there would need to be a compelling case to change the regime of allowances in the award put forward, and there certainly needs to be substantial grounds and reasons for making that variation.

PN42

Commissioner, we are not persuaded that there are adequate grounds and reasons to make the variation on the terms sought, and particular, we are not persuaded that there is any confusion over the payment of the allowances in the current form, or that a uniform national system is necessary for the working of the award. Better we submit that the existing award represents its fair minimum entitlement for workers under the award.

PN43

Commissioner, we note that Australian Business Industrial is not opposed to a variation to the award to pass on the safety net increases starting from the June 2005 safety net review, subject to the requirements of Act and the relevant principles being met. We have stated this to the CFMEU, however we are opposed to the aspects of the variations sought, which are unrelated to the June 2005 safety net review, and seek to disturb these small regime of allowances. With respect Commissioner, we submit that if this application in the terms sought is pressed by the CFMEU, then the Commission should hear argument of the merits of the variation sought. Commissioner, that’s the position of the Australian Business Industrial.

PN44

THE COMMISSIONER: Those that are governed, do you directly represent those that are parties to the award Mr Pagacs?

PN45

MR PAGACS: Yes Commissioner, a large number of our members are directly respondents to the award. Commissioner however, I am not in a position where I can go through the list of our respondent members this morning.

PN46

THE COMMISSIONER: Right. Why is that? I understand Ms Siami has made it clear to you that they would be seeking for Australian Business Industrial to identify those parties that they say they are representing.

PN47

MR PAGACS: Yes, Commissioner, Ms Siami made that clear to me yesterday, and I simply haven't had the time to seek instructions from our members to name them before the Commission today.

PN48

THE COMMISSIONER: Right, thank you. Ms Siami?

PN49

MS SIAMI: Thank you Commissioner. It's the view of the CFMEU that this allowances clause has been drafted after some considerable negotiations, a number of meetings and quite closely with the FIAA, who are the head employer organisation in the furnishing industry and have a very large membership as I understand it in New South Wales. And Commissioner if ..... consent to the restructured allowances clause without question. So we do not believe that the Australian Business do represent a large number of employers under the furnishing industry of NSW. I do not that whilst they have appeared in a number of s.113 applications to this award, they also in relation to the TCI test case last year, the furnishing award went to the Full Bench on the issue of the redundancy of less that 15 employees.

PN50

And at that stage, the union did ask Australia Business to provide a list of who they were representing, and SDP Acton who was hearing those directions hearing was ..... to address those and they refused and they were not allowed to give submissions at that hearing. So whilst they have appeared in a number of section 113 hearings, it has only been when there has been no request to provide any indication of who they do represent. So the union is still unsure as to and how many it is they are talking for. As to whether the clauses are misleading, I have a number of organisers frequently where employers and employees are .....

PN51

Currently Commissioner in the award, 27 and it is 27.1 that applies only in the ACT, 27.2 is in New South Wales and 27.3 is in South Australia, Victoria, Tasmania and in a couple of instances New South Wales. So there is a number of clauses that are repeated two maybe three times, and because - it was about 20 pages I think the award ….. and so people just flick through and they come across this figure, and that's the figure that's applied. It's not the fault of the employer or employee .....

PN52

It's very unfair and confusing and this address not only in the format where it puts everything in alphabetical order, and clearly labels where it's going to apply. It also does bring about some standardisation across the industry. The award when it was consolidated had different apprentice rates for New South Wales as they did for the other states. That was changed on 7 June this year, because the union and the FIAA and the other employer organisation came to an agreement to apply the same clause across all states, with special provision for employees in the
New South Wales kitchen industry. Whilst when the award was consolidated, it may have been by consent, it was always raised at the allowances and the apprentice clauses were issues because they needed to have a more manageable application for the award to be truly fair within the safety net for all employees.

PN53

In relation to the rest of the application Commissioner, which deals with the classifications and ..... the other matters, the union would be seeking your assistance in that, and we will perhaps have a conciliation conference to be set down in the next two or three weeks with your assistance and the parties all perhaps in the same room, and hopefully that will bring about some agreement or compromise position ..... But as to the matters that the union seeks to be dealt with today, we would still be pursuing the draft that was e-mailed to the parties on 8 July, and I apologise that you haven't got a copy. I would have hoped you would, but I can send that to you within the next 20 minutes, half an hour.

PN54

THE COMMISSIONER: All right, thanks Ms Siami. I've got the draft that you furnished to the parties, but it's the comprehensive one as I understand it, it's
16 pages of 16. Now as I understand, what you want to do this morning is move away from the draft document as a whole and vary certain clauses. Have I misunderstood it?

PN55

MS WATT: If I can assist the Commissioner in this please. The draft order that the parties were provided with on Friday is 16 pages, and that's largely because of the requirement of clause 22(a) to reflect the common law situation in Victoria. I think the only thing missing from the draft order that we have, is the word "which" in the reasonable overtime clause at 31.6.2 and 31.9, sir.

PN56

THE COMMISSIONER: Mr West?

PN57

MR WEST: Commissioner, the CFMEU and the union agreed to that I think last Friday, sir.

PN58

THE COMMISSIONER: 31.6.2. Mr Eberhard, I'm sure you're going to help the Commission?

PN59

MR EBERHARD: It's on page 15 of my version anyway, under "Reasonable Overtime 31.6.1". That I understand, is the only area that needs to be amended from today's proceedings, because it needs to have in 31.6.1, it needs to have the word "this" as it appears and the second last word deleted, and then 31.9 inserted after "clause". So it would then read, "or as otherwise provided for in clause 31.9, and then in 31.6.2, the word "which" needs to be inserted between the word "hours and "are", and that would then read, "resulted in the employee working hours which are unreasonable, having regard", etc. That as I understand it are the only changes that are required through the version of the draft order that was distributed to the parties last Friday.

PN60

THE COMMISSIONER: Sorry, I misunderstood it. Because I understood that the draft order that was provided, which I've got, wasn't going to be the whole document that they wanted to vary, that's why the CPI, the allowances and reasonable overtime clauses.

PN61

MR EBERHARD: It is the whole document in the sense that it does contain the variations to the 2005 safety net for the variations in accordance with the glass industry decision for the allowances. So whether that's in accordance with the CPI or whether it's in accordance with the $17.00 over the key classification. It also contains the variation in regards to the reasonable overtime, but it also contains the variation that Ms Siami's just been talking about, which is the alphabetising of the allowances clauses and the variation from instead of whatever it is, the .1, .2 and .3 just the alphabetising and then if this particular allowance applies in this particular state, it references that.

PN62

You might have on file other orders that contained a whole raft of other variations, but at this stage the CFMEU are no longer pursuing and that's where they may have been some confusion because it was on about Wednesday or Thursday where those issues were raised, the CFMEU then said let's deal with the safety net and those applications. We'll deal with that and deal with that now, but we'll reserve the right to pursue. That's why Ms Siami is now asking for a conciliation conference. I think with regards to the other components of the applications that are before you, and that's why we indicated that we would be reserving our position with respect to those components of the application.

PN63

THE COMMISSIONER: Sorry, my apologies then, it was my misunderstanding, sorry. So Ms Siami, you will provide a draft order with those two minor modifications in terms of the overtime, is that right?

PN64

MS SIAMI: Yes Commissioner, I will do that.

PN65

THE COMMISSIONER: Ok, Mr Pagacs, is there anything that you wish to add?

PN66

MR PAGACS: Thank you Commissioner. Yes, I would just add that just taking out a number of the points that Ms Siami's raised this morning that firstly the size of the clause is irrelevant. The clauses are large, but that's entirely manageable within this award. Commissioner, I would also say that we have found anomalies and inconsistencies in the draft orders that the CFMEU seek this morning, and these anomalies and inconsistencies mean that the allowance changes that are sought, do not merely reflect the safety net increases, but go beyond that, and will adversely effect employers in New South Wales.

PN67

I note the CFMEU's comments regarding the apprenticeship rates changes, however Commissioner, I would say that the apprenticeship rates changes has absolutely nothing to do with the nature of the allowances that have been sought to be varied before you this morning, and I would still press our opposition to the variation on the terms sought.

PN68

THE COMMISSIONER: Thank you. Has anyone else identified any inconsistencies? No? All right. Thank you. Subject to receiving a clean draft order with the two minor modifications, the Commission has heard the argument for Mr Pagacs and rejects that argument and is prepared to vary the award in the terms sought, which is the Furnishing Industry National Award 2003. The variation, correct me if I'm wrong, because I've made a mistake this morning
Ms Siami. With respect to items A1 and A4 from the beginning of the first pay period commencing on or after 12 July 2005 and shall remain in force until the beginning of the first pay period commencing on or after 1 August 2005. Is that right?

PN69

MS SIAMI: Yes, Commissioner.

PN70

THE COMMISSIONER: With respect to items A2-3 and A5.7, the first pay period commencing on or after 12 July 2005 and shall remain in force for
12 months. Then for employers in the state of Victoria who were previously not bound by this award, but are now subject to the award by virtue of having been declared a common rule under section 141 of the Workplace Relations Act1996, from the beginning of the first pay period commencing on or after 1 August 2005 and shall remain in force until 11 July 2006. Is that correct?

PN71

MS SIAMI: Yes, Commissioner.

PN72

THE COMMISSIONER: Good, thank you. Now before we adjourn, the parties wanted a conciliation conference as I understand it. Can we deal with that now and maybe set a time. I'd indicate to you that I'm on leave until the week ending
5 August beginning the end of this week. Now, firstly is the week beginning
8 August, except for 11 and 12. 8th, 11th and 12th are out for me, I've got the 9th and 10th, and secondly where do you want the conciliation conference?

PN73

MS SIAMI: Commissioner, 9 August will be fine for me. The union will prefer it in Adelaide, but we are quite happy to run wherever the parties want it to be.

PN74

THE COMMISSIONER: Right, is everyone content with 9 August?

PN75

MR SHEEHAN: Yes, Commissioner

PN76

THE COMMISSIONER: Right and where's your preferred location?

PN77

MR SHEEHAN: Sir, we would certainly prefer it in Adelaide, but we'll hear what the other parties want to say about it.

PN78

THE COMMISSIONER: Well, considering that I was judicial this morning, what about I make a judicial decision and advise the parties.

PN79

MS SIAMI: We would be very happy with that, Commissioner.

PN80

THE COMMISSIONER: All right. So if we said 9.30 Adelaide time?

PN81

MS SIAMI: Yes, thank you.

PN82

THE COMMISSIONER: That’s a good time to start, and I'll contemplate my ..... over then next hour or so, and determine where we are going to have it.
Thank you, the Commission will stand adjourned.

<ADJOURNED INDEFINITELY [10.25AM]