C2005/521, Transcript of Proceedings [2006] AIRCTrans 198 (16 February 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 14096-1

COMMISSIONER BLAIR

C2005/521

APPLICATION BY CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
s.113 - Application to vary an Award
(C2005/521)

MELBOURNE

9.32AM, WEDNESDAY, 01 FEBRUARY 2006

PN1

MS A LESTER: I appear on behalf of the applicant, the Construction, Forestry, Mining and Energy Union. Forestry and Furnishing Products Division.

PN2

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

PN3

MS E WATT: I am from the Timber Merchants Association.

PN4

MR P RYAN: I seek leave to appear on behalf of the Victorian Association of Forest Industries.

PN5

MR G PELS: I appear on behalf of the Australian Industry Group.

PN6

MR J MORLEY: I seek leave to appear on behalf of employer member respondents of Australian Business Industrial.

PN7

THE COMMISSIONER: Thank you, Mr Morley. Does anybody have any objections to Mr Ryan and Mr Morley seeking leave? No? Leave is granted thanks. Ms Lester, how are you? I heard you weren't too well at one time.

PN8

MS LESTER: Yes had a bit of a - - -

PN9

THE COMMISSIONER: Okay now?

PN10

MS LESTER: Fine now.

PN11

THE COMMISSIONER: Bouncing off the roof?

PN12

MS LESTER: Nearly.

PN13

THE COMMISSIONER: Okay.

PN14

MS LESTER: Not quite but nearly.

PN15

THE COMMISSIONER: Right. Thanks.

PN16

MS LESTER: Commissioner, this application seeks to vary the Timber and Allied Industries Award 1999. A copy of the amended draft order has been emailed to your associate and a copy has been faxed to the substituted service list on 31 January 2006. It has come to my attention this morning that the parties wish to confer with regard to the variation sought in this application. However I would like to proceed with my submissions as planned.

PN17

THE COMMISSIONER: And what do they wish to confer about?

PN18

MS LESTER: I'm not 100 per cent sure at this point. I am informed that there is a few issues. Which ones I am not 100 per cent clear on.

PN19

THE COMMISSIONER: Let's find out what the issues are, maybe. Okay?

PN20

MS LESTER: Yes well the - just to summarise, the variations sought in this application are to insert the award reference in clause 4.7 of the award, to change the definition of estimator in the award, to delete the transitional rates in Victoria for common rule employees which expired on 1 August 2005. To change the provisions of clause 26.5 relating to late payment to ensure that late payment of wages by electronic funds transfer are addressed. To vary clause 42.3 additional public holidays to provide for half day public holidays.

PN21

To increase the expense related allowances in accordance with the Reserve Bank of Australia Consumer Price Index increase as per the December 2005 quarter and it also addresses a number of anomalies in the appendices including incorrect award names, incorrect formula and a leading hand allowance which has not been increased by safety net adjustments since 1990. The increase to the leading hand allowance has been made by the same method as provided for in the Furnishing and Glass Industries Allowances decision [Print M9675].

PN22

So my understanding is at this point the issues that the parties wish to confer on are with regard to the late payment clause and to the definition of estimator, is that correct? And also to the variation to the additional public holidays clause.

PN23

THE COMMISSIONER: What's the issue? Who would like to lead? Ms Watt?

PN24

MS WATT: If it pleases the Commission the Timber Merchants Association has held discussions with the Forestry division of the CFMEU over the last two years off and on about the issue of particularly estimator. The definition of estimator and the late payment of wages clause.

PN25

There were some - we had some correspondence and I think the last correspondence with the union was probably in June last year making suggestions and the draft order doesn't reflect what we were willing to agree to and under those circumstances the Timber Merchants Association would seek an opportunity to confer with the union about what the actual wording will be. I also need to have an opportunity to properly check the allowances. If the Commission pleases.

PN26

THE COMMISSIONER: Mr Ryan?

PN27

MR RYAN: Commissioner, similarly the position of the Victorian Association of Forest Industries is basically confined to items 1 to 10 of the proposed draft order. An issue which relates to the main body of the award the - that we have no direct interest in the appendices. In relation to the proposed variations to the main body of the award, Commissioner, it is items 3 which is the estimator issue.

PN28

Item 5 the late payment of wages issue and also item 9 in relation to additional public holidays. They are three particular matters which we would seek to have further discussions with the union about prior to any variation being dealt with at this point in time and also we would reserve our right in relation to checking the allowances which were received late yesterday.

PN29

THE COMMISSIONER: Right. Thank you. Mr Pels?

PN30

MR PELS: Yes Commissioner, well I concur with my former two colleagues. They are the issues that I have got as well.

PN31

THE COMMISSIONER: Former two colleagues?

PN32

MR PELS: Sorry, should I say made their submissions - my previous two submissions, I support those.

PN33

THE COMMISSIONER: I thought you may have been discarding them - - -

PN34

MR PELS: No. Sorry.

PN35

THE COMMISSIONER: Mr Morley?

PN36

MR MORLEY: Commissioner, we are in a similar position and would require some time just to check the revised calculations of the allowances. In respect of the other substantive issues the estimator, late payment and also additional public holidays clauses do place some issue for us and we would like to both confer with our colleagues and also with the union about those clauses. Thank you, Commissioner.

PN37

THE COMMISSIONER: Mr Eberhard?

PN38

MR EBERHARD: I think I would support the submissions of my colleagues. Commissioner, there is one other matter that in regards to primarily the late payment application to vary, I think the Commission needs to refer the matter to the President for under the wage fixing principles in accordance with the principles in the sense that the application could be construed as an application above the safety net so should we come back to the Commission and have an agreed position with regards to that at least if we had the matter referred to the Commission in the first instance or to the President in the first instance, that wouldn't delay any future proceedings from VECCIs point of view. We wouldn't oppose the matter being dealt with by the Commission as currently constituted. If the Commission pleases.

PN39

THE COMMISSIONER: Ms Lester?

PN40

MS LESTER: Commissioner. Can I just clarify please. This is a little difficult for me to pick up the issues in this case but according to the information that I have on file my predecessor, Ms Siami did have correspondence with the Timber Merchants Association in regard to the definition of estimator and the - sorry, excuse me - - -

PN41

THE COMMISSIONER: Public holidays.

PN42

MS LESTER: We have got the date as well.

PN43

THE COMMISSIONER: And late payment.

PN44

MS LESTER: Just with regard to the definition of estimator, the union - we did consider the clause proposed by the Timber Merchants Association and have adopted the majority of the re-drafted clause in accordance with what the Timber Merchants Association has provided.

PN45

The only thing that the union does not agree with and will not agree with is to limit the definition of estimator to apply to people - sorry, to not. So basically the draft that was provided to us by the Timber Merchants Association said that beyond two years the award definition would not apply to estimators because they are above - they are being paid above award rates beyond two years so the union doesn't agree with that position and my understanding is correspondence was had with the Timber Merchants Association about that in July through August of last year. And we have made our position clear that we would not accept that provision.

PN46

THE COMMISSIONER: Well. It appears that there are three outstanding issues - estimator at clause 5, late payment and the public holidays issue which is the 42.3, the additional public holidays. I think they are the main three and also the question of checking whether the allowances have been correctly calculated. What I would propose is this. That the parties make themselves available now and we will see whether we can find a conference room for you because if you notice on the listings I have got a reasonably busy day.

PN47

And see whether you can reach an agreement on the outstanding matters and if you can collectively try and reach an agreement on the calculations. In regards to the issue of the late payment, Mr Eberhard in terms of referring that to the President, that normally is a simple matter. What I would prefer to do is, if the parties can see whether they can reach some understandings first and then I can quickly take that to the President if need be to ensure that we are within the guidelines – within the framework. So, have your conference now.

PN48

Have your discussions now. If you can reach an agreement that is fine. If you can't and it doesn't look like that you are going to then it might be that the Commission sets some time aside in the very near future to deal with submissions in terms of outcomes. Okay? My associate will try and find a conference room for you. Thank you. The Commission will stand adjourned.

<ADJOURNED INDEFINITELY [9.43AM]