C2006/3992, Transcript of Proceedings [2006] AIRCTrans 1333 (28 December 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 16307-1

COMMISSIONER RAFFAELLI

C2006/3992

BORAL CONSTRUCTION MATERIALS GROUP LIMITED
AND
THE AUSTRALIAN WORKERS’ UNION
cl.17 Sch. 8 - Appl’n to vary preser’d State agmt to remove ambiguity or uncert.
(C2006/3992)

SYDNEY

10.35AM, FRIDAY, 15 DECEMBER 2006

PN1

MR CHADWICK: Sorry, your Honour, I presume - I haven't been announcing my appearance with each application so I assume that that's a given.

PN2

THE COMMISSIONER: Yes, it is a given, that is why we don't have to repeat that. It will be a running transcript because the comments we make in one area does carry over. Yes?

PN3

MR CHADWICK: Thank you, Commissioner. Could I hand up a draft order in relation to the application. I'll take the Commission to that in a moment. Commissioner, I can report in relation to this application, perhaps I can put it this way. This application breaks the monotony somewhat in relation to the others and I'll just explain what I mean by that in a moment. Commissioner, this is an application to vary the Boral Concrete Sydney Joint Development Agreement 2004, again, pursuant to schedule 8, clause 17.

PN4

Why we submit to the Commission that it falls into a slightly different category compared to the others is that this particular agreement, which is also known as PSA under Work Choices, is in fact underpinned by a common rule State award known as the Cement Mixers and Concrete Workers Essential Batch Plants (State) Consolidated Award. So in effect, and it's outlined in our application, by virtue of clause 13(2) of schedule 8, part 2, division 2 of Work Choices, which is found at paragraph 4 in the application which says:

PN5

If immediately before the commencement a term of the State award would have determined in whole or in part term or condition of employment of a person who would have been bound by or whose employment ...(reads)... as enforced at that time, is taken to be a term of the preserved collective State agreement.

PN6

So in effect, Commissioner, the whole of the Concrete Batch Plants Award is in effect subsumed into the joint development agreement and - - -

PN7

THE COMMISSIONER: And that award has been made a preserved State agreement, hasn't it?

PN8

MR CHADWICK: Sorry, which, the Concrete Batch Plants award?

PN9

THE COMMISSIONER: Yes.

PN10

MR CHADWICK: I think it's now a NAPSA, which is a Notional Agreement Preserving a State Award. However, can I just indicate to the Commission, we're not seeking to do anything with the NAPSA.

PN11

THE COMMISSIONER: Yes, that's right.

PN12

MR CHADWICK: What in fact we're purporting to do, and this is our application, Commissioner, you'll see that - perhaps if I take the Commission to the particular provision in the Batch Plants Award. Does the Commission have a copy of the Batch Plants Award, Commissioner?

PN13

THE COMMISSIONER: Yes, it does.

PN14

MR CHADWICK: If I take the Commission to clause 16(v)(e), in that subclause the Commissioner says this, "Where there are more than three full time employees engaged under this award in any establishment, the ratio of full time employees to non full time employees (including casual and permanent part time employees) shall remain four to one." If I could just end the reference there. Commissioner, the parties are submitting that that particular provision of the Batch Plants Award, which is now incorporated into the agreement, is ambiguous and/or uncertain and we say that in this respect, after the words "non full time employees" the words appearing in brackets, and this is where the uncertainty lies, is whether in fact the reference to casual and permanent part time employees is meant to be an exhaustive description of the types of non full time employees that could be engaged.

PN15

In other words, it's unclear as to whether other forms of classifications would be adopted. For example, fixed term employees, employees engaged for a specific task or project based reason, and for that reason we would submit to the Commission that that provision is ambiguous. Commissioner, the way we've dealt with it is we're seeking to remove the ambiguity by the addition of a form of words within clause 5 of the Boral Concrete Sydney Joint Development Agreement 2004, and I don't know whether the Commission has a copy of that agreement, because I certainly have copies of it to hand up.

PN16

Commissioner, in handing up that agreement, also in that bundle of documents is a copy of the Batch Plants Award.

PN17

THE COMMISSIONER: Yes.

PN18

MR CHADWICK: Commissioner, in the Joint Development Agreement at clause 5 is the - the Commission would be aware, it's a very familiar type of clause commonly referred to as Relationship to Parent Award, and to resolve the differences between the parties and to remove the ambiguity and the uncertainty, we're seeking the inclusion of the following words in clause 5, they being:

PN19

to avoid any doubt and uncertainty clause 16(v)(e) in the award is not a term and condition of this agreement and shall be excluded from this agreement.

PN20

And we would submit to the Commission that that is an appropriate form of words to remove the ambiguity and those are out submissions in relation to the application, Commissioner.

PN21

THE COMMISSIONER: The other thing that strikes me about that clause, Mr Chadwick, is this. It seems to suggest, and this I think was part of the controversy, there was also the issue that even if you didn't have the words "including" and it just said "to non full time employees" and it's defined as "enclosed as casual and permanent part time employees", the problem I have with this clause is that - it's not ambiguous but it's uncertain because does that mean that if you had 20 employees, or let's say, make it easier, 16 full time batch workers, or mixers, the employer would have to engage another four part timers, even if the employer didn't want to have part timers? That's what - because it says, "shall remain four to one".

PN22

MR CHADWICK: Commissioner, I think the answer to that is unclear and hence another reason for - I thank the Commission for highlighting that for the parties. That is obviously another reason as to why the application has been made before the Commission.

PN23

THE COMMISSIONER: Yes, thank you. Mr Falconer?

PN24

MR FALCONER: Thank you, Commissioner. The AWU consent to the variation as handed up by Mr Chadwick to vary clause 16, 16(e). It's probably a classic case of ambiguity and confusion, that clause. We support the consent, by consent the draft order in this matter and also rely on, as we did in other applications, this morning, rely on section 554 of the Workplace Relations Act providing the Commission with the ability to vary and remove ambiguity or uncertainty.

PN25

THE COMMISSIONER: Yes. Well, I think the application is probably best done and probably under schedule 8, clause 17. I'm not sure, although we've focused on clause 16(v)(e), I think it is definitely uncertain, but the variation is not strictly to that. The variation is to clause 5 of the agreement and that will be that the adoption of the award will continue accepting 16(v)(e) won't be adopted into the agreement. I guess that poses a problem for all other parties to the award, but I guess that's not Boral's immediate concern.

PN26

So the proposed draft order will take the form of the order and it will come into force on 15 December 2006 and will remain in force for a period of 12 months and that deals with that application. Thank you.

<ADJOURNED INDEFINITELY [10.46AM]