C2006/3991, Transcript of Proceedings [2006] AIRCTrans 1345 (28 December 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 16306-1

COMMISSIONER RAFFAELLI

C2006/3991

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.
(C2006/3991)

SYDNEY

10.22AM, FRIDAY, 15 DECEMBER 2006

PN1

MR N CHADWICK: Thank you, Commissioner. Perhaps if I hand up a draft order to the Commission.

PN2

THE COMMISSIONER: Yes, thank you.

PN3

MR CHADWICK: Commissioner, before you is an application to vary the Boral Emu Plains Quarry (State) Award 2006. The application is made pursuant to schedule 8 of clause 17 of the Act. Like the two applications before this one, Commissioner, this application is to do with removing ambiguous and/or uncertain provisions that appear within this particular award and I can indicate to the Commission that the parties have sought to resolve their differences in relation to these provisions, firstly, by way of discussion amongst themselves and then secondly, their differences were sought to be resolved through the assistance of the Commission in other proceedings.

PN4

Commissioner, if I can just deal with - I take the Commission to - it might be appropriate, I think, to take the Commission to three of the four provisions. The one I won't take the Commission to, perhaps if I deal with it now. Commissioner, clause 6.2 which is dealt with, or at least part of which is dealt with in the application itself, is in identical terms to a provision within C2006/3990 and C2006/3998 relating to the issue of redundancy.

PN5

THE COMMISSIONER: Yes.

PN6

MR CHADWICK: And we rely on our earlier submissions in relation to that issue.

PN7

THE COMMISSIONER: Yes.

PN8

MR CHADWICK: I take it the Commission has a copy of the - - -

PN9

THE COMMISSIONER: Yes, I have.

PN10

MR CHADWICK: Thank you, Commissioner. Can I just firstly take the Commission to clause 4.5(e) and it says under the heading, "Part time employment":

PN11

Where agreed, you may be employed as a part time employee and (e) you and all other part time employees in the quarry cannot exceed 20 per cent of all of Boral's employees in the quarry unless the consultative committee agree.

PN12

I understand the reference to the provision there. Commissioner, we'd submit to the Commission that the uncertainty attaching to that provision, like the earlier applications, relates to the words "consultative committee agree", and the uncertainty specifically relates to whether that means that - and certainly the parties are unclear in relation to it - whether that means it requires the entirety of the committee who must agree, or whether it's simply, for example, a majority of the committee agreeing in relation to that provision, and that' - - -

PN13

THE COMMISSIONER: Or a minority of employee representatives, but together with employer representatives creating a simple majority ......

PN14

MR CHADWICK: Indeed.

PN15

THE COMMISSIONER: There's no definition in this award of how many people sit on the committee, is there?

PN16

MR CHADWICK: No, there's not, Commissioner.

PN17

THE COMMISSIONER: Yes, go ahead, sorry.

PN18

MR CHADWICK: And for that reason we'd submit that, and the draft order deals with this, Commissioner, that we're seeking that clause 4.5(e) be deleted in its entirety which will have the effect of removing the uncertainty attaching to that provision. Secondly, can I take the Commission to clause 4.6(b) under the heading, Casual Employment, and it says:

PN19

Where agreed you may be engaged as a casual and (b) you must not be employed as such for more than 90 consecutive days.

PN20

I just pause there.

PN21

Commissioner, we submit to the Commission that the term, or at least the word "consecutive" as it appears within 4.6(b) is ambiguous, and perhaps I can provide example to the Commission as to why we say that is so. That is, does consecutive mean Monday to Friday, does it mean Monday to Sunday, does it mean that a casual employee must be employed day in, day out or week in, week out? They are particular examples as to why we would submit to the Commission that the term "consecutive" as it appears within 4.6(b) is ambiguous and similarly, the draft order seeks the removal in its entirety of clause 4.6(b).

PN22

Commissioner, can I then take the Commission to - - -

PN23

THE COMMISSIONER: Was there a problem with 4.5(f)? I can't remember.

PN24

MR CHADWICK: No, there's not, Commissioner. Can I just take the Commission to skipping 6.2, which I've already dealt with, can I take the Commission to schedule D of the award. Schedule D is essentially a provision or a schedule attaching to the award, its heading is "Top Up Labour Protocol". I just want to take the Commission to one part of it which we would submit to the Commission makes the whole provision itself uncertain. The Commission will see in the heading - sorry, withdraw that.

PN25

The Commission will see under the heading "Top Up Labour Protocol" it says:

PN26

Boral will source external labour (casuals or labour hire) to meet the operational needs of the quarry.

PN27

Can I just pause there. Commissioner, the parties are at loggerheads, as it were, in relation to the meaning of that first sentence, particularly as it relates to the words appearing after "external labour", that is, those words appearing in brackets. The parties are uncertain as to whether the term "casuals or labour hire" is meant to be an exhaustive definition of the word "external labour". I can certainly think of other examples of external labour that don't fall under the heading of casuals or labour hire. To that extent we'd submit that that definition, or at least the words in brackets, are uncertain.

PN28

Secondly, we'd submit to the Commission that the words "operational needs", there's no definition attaching to those words within schedule D and despite the parties' efforts to resolve their differences when it comes to those words, we've been unsuccessful in doing that, and by virtue of the preamble, or at least parts of the preamble being ambiguous and/or uncertain, the parties have agreed that the best way forward is in fact to delete the entirety of schedule D and that is provided for within the draft order. Commissioner, they're our submissions in respect of the application before the Commission.

PN29

THE COMMISSIONER: Yes. Yes, Mr Falconer?

PN30

MR FALCONER: Thank you, Commissioner. The AWU consents to the draft order to vary the Boral Emu Plains Quarry (State) Award 2006 in the terms sought which affects 4.5(e), 4.6(b) and the variations at 6.2 and the removal of schedule D for the reasons provided in the earlier matter, Commissioner, the union believes the Commission has power under section 554 of the Act to vary awards as to remove the ambiguity or uncertainty and that can be said about part time employment at 4.5 and 4.6 and the reference to the schedule D, if the Commission pleases.

PN31

THE COMMISSIONER: Yes. Yes, thank you, Mr Falconer. Mr Chadwick, what are the other things besides casual labour hire that you could engage? Contractors, I suppose, labour hire or - - -

PN32

MR CHADWICK: Fixed term employees perhaps, Commissioner.

PN33

THE COMMISSIONER: Yes, thank you.

PN34

MR CHADWICK: There are other types of examples.

PN35

THE COMMISSIONER: Yes. Yes, it's now coming back to me that, yes, the AWU were taking a more restrictive view. I think Boral's view is that that's not exhaustive and they can do - not do whatever they like, but they should have fair flexibility in regard to that, yes. Well, I take the same approach that I've referred to earlier in that decision of the Full Bench and I'm satisfied that the provision of 4.5(e) and 4.6(b) are uncertain and/or ambiguous. Equally, the redundancy situation of course is one of the starkest problems in my view.

PN36

As to schedule D, I think there is not only a disagreement but it is unclear to me whether casual labour hire is a closed definition of the word "external" labour. In normal industrial parlance it would not normally be, but on the other hand it doesn't say, but not "including", so it is a bit - I think it's definitely certainly uncertain - certainly uncertain sounds strange - but it seems to me to be uncertain. As to operational needs, that is a term normally understood, but in some ways it is informed by the controversy over the word "external" labour and I needn't - Boral's submission in that regard is probably correct, but certainly given that earlier problems with the words, I think that overall it is a provision that causes uncertain - not only - well, it causes controversy, but it emanates from what is clearly an uncertain situation.

PN37

It is just futile to, in my view, think of a means of retaining schedule D, but redefining it because I think what would happen would be that the Commission would essentially be imposing on the parties something that's not in the agreement and we should always be very cautious about doing that and it would be - and there's really no basis for doing so. Consequently I think the most appropriate thing, and one, I think, supported by the parties, reluctantly, but I guess at least they agree on that point, is to delete the provision.

PN38

That's a long way around of saying that the draft order as proposed will form the basis of an order to vary this preserved State agreement, that being the Boral Emu Plains Quarry (State) Award 2006 and that variation will take effect on 15 December 2006 and shall remain in force for a period of 12 months. That application is now adjourned.

<ADJOURNED INDEFINITELY [10.35AM]