C2005/521, Transcript of Proceedings [2006] AIRCTrans 832 (22 June 2006)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 15207-1

COMMISSIONER BLAIR

C2005/521

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

ADELAIDE

9.27AM, FRIDAY, 09 JUNE 2006

Continued from 1/2/2006

PN49

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

PN50

MR J MORLEY: I seek leave to appear on behalf of Australian Business Industrial, respondents to the award, and also Business SA.

PN51

MS J WILLIAMS: I appear on behalf of the Timber Trade Industrial Association.

PN52

MS E WATT? I seek leave to appear on behalf of the Timber Merchants Association.

PN53

MR A MARKIEWICZ: I appear on behalf of the Australian Industry Group, also for Laminex Industries and the Victorian Association for Forest Industries.

PN54

THE COMMISSIONER: Thank you. Ms Lester, do you have any objections to those seeking leave?

PN55

MS LESTER: No, Commissioner.

PN56

THE COMMISSIONER: Thank you. Leave is granted, thanks. Yes, Ms Lester? Firstly, let me apologise for the late cancellation last week. I understand, I think, Ms Williams, you had already left. I'm terribly sorry for any inconvenience.

PN57

MS WILLIAMS: Commissioner, if I might say on behalf of the parties, we wish our condolences, and you should no further reference to what happened last week.

PN58

THE COMMISSIONER: Thank you. Yes, Ms Lester?

PN59

MS LESTER: Commissioner, as you are aware this original application to vary to the Timber and Allied Industry Award was lodged on 13 December 2005 in accordance with section 113 of the Workplace Relations Act. Since this application was made the Workplace Relations Act and the Workplace Relations Regulations have been amended by the Workplace Relations Amendment or the Work Choices Act 2005, and the Workplace Relations Regulations 2006 which became effective on 27 March 2006.

PN60

The effect of these amendments has been to impose limits on the Commission's power to vary an award in a number of specified circumstances. In these proceedings, Commissioner, the union submits that the Commission has the power to vary the terms of the Timber and Allied Industries Award on the grounds that the public holiday clause, a late payment clause and the definition of estimator clause are ambiguous and/or uncertain.

PN61

Commissioner, in the first instance I'm not 100 per cent sure if the parties wish to cross-examine the witnesses that we have provided today, but if that is the case the union seeks to tender the affidavits of Mr Scott McLean and Mr Luke McCrone as evidence that the current terms of the additional public holiday clause and the late payment clause are ambiguous or uncertain, and I'd like to call both these parties to attest to the evidence given in their affidavits.

PN62

THE COMMISSIONER: All right. There was an issue raised by a couple of parties in regards to the late lodgement of the documents so we might hear from anyone who wishes to raise that as an issue. Does anyone wish to press the point of the late lodgement? Ms Williams?

PN63

MS WILLIAMS: Thank you, Commissioner. Commissioner, I probably raised the original objection in this on behalf of my association because of time limits or directions set by the Commission ought to be followed. Now, the directions that you gave were given in March and provided the parties with quite ample opportunity to provide their witness statements and outline, and it's very clear in your direction that it does say that parties should provide to the other parties their outlines and witness statements by the date 23 May.

PN64

I note that one of the witness statements indeed was actually drafted on 30 May, which was presumably the day before the original hearing was to go ahead, and that does raise some concern with us. I'm not saying anything about the probative value or the merits of these statements. My issue was however that your directions were clear, they were given early enough. There doesn't appear to be anything in those statements that points to an issue arising or an event arising some time after the original date for lodgement and now, so I fail to understand if they were going to be relied upon why they couldn't have been lodged prior or, sorry, on the date which you originally gave.

PN65

THE COMMISSIONER: Right, thank you. Does anyone wish to raise anything further? No. Ms Lester?

PN66

MS LESTER: Commissioner, I agree and understand that these pieces of evidence were lodged after the date specified by the Commission, but given the importance of the evidence and at the request of the parties, which was provided for in each of their submissions, that the union provide evidence of ambiguity in the clauses they were seeking to vary, it was mandatory first to round up the evidence and, secondly, to actually get it through was another issue.

PN67

So I do sincerely apologise to the Commission and to the parties for the late submissions, however, I do feel that everyone has had ample opportunity and time to look through the content of the documents. They're not in depth statements. And given the - I mean, of this is a difficult way to prove that ambiguity or uncertainty exists in the clauses, I would then, you know, the opinion that I have and the opinion that the parties have, and the Commission's discretion obviously on how the clauses are to be applied. These were the only means of evidence that I could round up in the short timeframe to provide for the parties to prove that there are ambiguity on searching these clauses.

PN68

So I do sincerely apologise for their late lodgement, but I just didn't have anything at the time or prior to the last hearing for, or at the date on 23 May that the Commission had set aside for the evidence to be submitted.

PN69

THE COMMISSIONER: All right, thank you. Is anybody particularly disadvantaged - and I appreciate what Ms Williams says in regards to the parties complying with the directions that had been issued. Is anybody disadvantaged if the documents were tendered and they were given the opportunity to cross-examine Mr McLean and Mr McCrone about their content? Ms Williams?

PN70

MS WILLIAMS: Commissioner, no. My only problem with having documents that are lodged so late, or another problem that I had, is that if I decided that I needed also to get some evidence to counteract that evidence it can - I note that both the witnesses are employees of the union and so it is a little easier for them to be required here, whereas if I was going to tender such evidence I would actually have to contact members, and that can be a little bit more difficult given the time limit that I had to produce people in South Australia. But, you know, I don't want to make any more of an issue than that.

PN71

THE COMMISSIONER: Would it be of assistance if Mr McLean and Mr McCrone swore their affidavits, and anything that arose out of that either through reading of the affidavits or maybe in cross-examining Mr McLean and Mr McCrone, the respondents in the matter felt that it might be appropriate for them to submit further information if that was available to them, would that be of any assistance?

PN72

MS WILLIAMS: That would certainly be of assistance.

PN73

THE COMMISSIONER: Okay. All right. Well, what we'll do is, Ms Lester, we'll allow the affidavits of Mr McLean and Mr McCrone. They need to be of course sworn, and then the ability to be able to be cross-examined and, as you've heard, if arising out of that the respondents feel that they need to put in additional information then that will be available to them, okay?

PN74

MS LESTER: Thank you.

PN75

THE COMMISSIONER: Okay, who do you want to call?

PN76

MS LESTER: I'll call Mr Luke McCrone in the first instance, only on the grounds that Mr McCrone's evidence relates to one of the clauses.

PN77

THE COMMISSIONER: Right, thank you.

<LUKE MCCRONE, AFFIRMED [9.36AM]
<EXAMINATION-IN-CHIEF BY MS LESTER

PN78

MS LESTER: Mr McCrone, where do you currently work?---I currently work for the Forestry Division of the CFMEU Victorian Branch.

PN79

And what's your position in the Victorian Branch?---I'm an organiser.

PN80

An organiser. And what does that involve?---Shop visits, dealing with member disputes and negotiating agreements, recruitment.

PN81

And how long have you worked in that position?---About two years I'd say.

PN82

What industry did the workers that you assist work in?---The timber industry.

PN83

How are the workers that you deal with, how are they normally paid?---Generally by electronic funds transfer into their bank accounts.

PN84

What awards that you're aware of regulate the terms and conditions of employment in the timber industry?---Mainly the Timber and Allied Industries Award, but there are a number of agreements based on the forest and building products, the prestripped award.

PN85

Okay, thank you. Have you been involved or witnessed any disputes arising from the implementation of the terms of the Timber and Allied Industries Award?
---Yes.

PN86

Yes. Are you familiar with clause 26.5 of that award?---Yes.

PN87

Have you experienced or witnessed difficulty in implementing the terms of that clause?---Yes, I have.

PN88

Can you recall any specific instances where there has been a dispute over the implementation of the late payment clause?---Yes.

PN89

Did these disputes relate to the application of the late payment clause with respect to payment of wages by electronic funds transfer?---Yes.

**** LUKE MCCRONE XN MS LESTER
PN90

When did the dispute occur?---The dispute occurred in 2005, early 2005, 27 January.

PN91

Okay. And what were the circumstances in which this dispute arose?---There was I believe a public holiday on the Tuesday. The pay was due to go into workers' bank accounts on the Thursday. Because of the public holiday the company hadn't transferred the money across as they normally do. This resulted in, for workers with the Commonwealth Bank, I think they got their money before 5 o'clock on the Thursday so they got it in time. There were a number of workers with other bank - with all the other banking institutions didn't get theirs until later, depending on which institution they were with, with some of them receiving it at 8 and 9 o'clock on the Thursday night, and some of them didn't receive their money until the Friday. So that caused a big problem. I mean, workers were having direct debits coming out of their bank accounts on Thursday evening or Friday morning, were getting dishonour fees for not having them, having the money there, people were going to put petrol in their car, filling their car up and going to pay for it on card and having no money in their account to settle the bill, you know, lining up at the supermarket with trolleys full of groceries and having to put it all back on the shelves because they didn't have the money. So we sat down with the company to say look, here's this clause in the agreement, the money wasn't there when it was supposed to be there, you owe the workers three hours of overtime pay. The company had received some advice to say that that clause only applied to cash payment. So we had several meetings. The workers were all pretty pissed off about it. So eventually the company sat down and said, all right, we'll pay it provided we work out a policy on how this will be handled in the future, and we'll only pay it for workers who can provide us with proof from their bank that the money has gone in late.

PN92

Okay. So in this instance was it the fault of the employers that the money didn't go in on time?---Yes.

PN93

It wasn't the bank's?---No.

PN94

So what gave you the understanding about that late payment clause related to, or actually did refer to electronic funds transfer?---What gave me the understanding it did?

PN95

Yes?---It didn't say that it didn't.

**** LUKE MCCRONE XN MS LESTER
PN96

And was there any other clauses in the award, prestripped?---There was. When you look at the prestripped agreement there was - it actually went into a little bit more detail about electronic funds transfer and specifically included it. So yes, it was obvious that the intention of the clause was to include electronic funds transfer because that's what it had been before.

PN97

Thank you. So did the company involved eventually pay the workers under the late payment clause?---Yes. It took them a while, in fact didn't get the money till June, so months later, but yes, eventually most of it. There were a couple who were banking with, I think the ANZ, I think it was the ANZ, who the ANZ wouldn't provide workers with the exact time that the money went in, but I think workers with Bendigo and Westpac were able to provide that proof and got the money. It happened on one occasion since then as well where the money was in late, and then all the workers got their - the new policy worked out with the company was followed.

PN98

Okay. So did the company actually change its mind from initially rejecting that it should make payment in respect to late payment of electronic funds transfer?
---Yes, it did change its mind.

PN99

Was the payment made by the company to the workers under the late payment clause, which is clause 26.5 of the award, on the basis of the condition?---Yes, there were some conditions imposed upon us, that we had to agree to a new policy that would, in our view, probably wasn't as strong. It didn't allow for many workers to get paid out and, as I say, a number of workers who were unable to provide proof, that the union had to agree that they wouldn't get their money, so yes, there were a couple of concessions on our part.

PN100

Okay. And did that new policy, did that clarify the original terms of the Timber and Allied Industry Award?---Yes.

PN101

In what way?---It's quite clear that, okay, where it's a banking fault that the workers won't receive their money. Where there's a public holiday on a Tuesday, Wednesday or Thursday the company has to process the pays on a Monday, which is earlier than they would normally process it. The company would send notices to all employees indicating that a public holiday is coming up and be made aware that there's a possibility of a delay in payment, to inform all employees with direct debits that they would be advised to have these processed on a Friday as opposed to a Thursday, and where the company fails to follow the conditions that they will pay out the late payment or wages clause.

**** LUKE MCCRONE XN MS LESTER
PN102

And was that directly to avoid the problems that they had in the past?---Yes, which just makes it clear because the award - a lot of misunderstanding about what that clause actually means.

PN103

Thank you. No more further questions, Commissioner.

PN104

THE COMMISSIONER: Thank you. Are you tendering his statement, Ms Lester?

PN105

MS LESTER: Yes, I'm sorry. I'd like to seek to tender that one.

EXHIBIT #CFMEU1 STATEMENT OF LUKE MCCRONE

PN106

THE COMMISSIONER: Does anybody wish to cross-examine?

PN107

MR MORLEY: If it pleases the Commission I'd like to cross-examine Mr McCrone.

PN108

THE COMMISSIONER: Yes, Mr Morley?

<CROSS-EXAMINATION BY MR MORLEY [9.45AM]

PN109

MR MORLEY: Mr McCrone, you've stated that you're familiar with the award, the Timber and Allied Industries Award, is that correct?---Yes.

PN110

And you've said you were also familiar with the late payment clause, is that correct?---Yes.

PN111

And in this case we're referring to subclause 26.5?---Is that the clause number?

PN112

Perhaps I can provide the witness with a copy of clause 26.5?---Thanks.

PN113

Can you just take a moment to read very carefully through subclause 26.5 which is in front of you.

PN114

MS WILLIAMS: Commissioner, do you have a copy of that clause? I can provide you with one.

PN115

THE COMMISSIONER: Thank you.

PN116

MR MORLEY: Mr McCrone, do you understand what that clause refers to and means?---Well, mine, or the union has an interpretation of what that clauses means.

**** LUKE MCCRONE XXN MR MORLEY
PN117

A simple yes or no?---Yes.

PN118

Does the clause mention at all late payment in respect of electronic funds transfer?---No.

PN119

So there's absolutely no mention of the situation of what happens with a late payment if it was electronic funds transfer?---No.

PN120

So it would appear there's no entitlement to electronic funds transfer penalties if there is late payment, is that correct?---Sorry?

PN121

The clause doesn't provide for the situation of when late payment is made by electronic funds transfer, is that correct?---Well, I disagree with that.

PN122

Well, you've just stated to the Commission that there is no reference to electronic funds transfer in that clause?---It doesn't specifically allow for it, no. But I don't believe that that means that it specifically disallows for it either.

PN123

Well, Mr McCrone, I'm not asking your view in that respect. What I'm asking for you to state to the Commission is whether or not there is a provision in that subclause which provides for the situation of electronic funds transfer payment which is made late by electronic funds transfer?---I believe this clause does allow for payment that was made late due to electronic funds transfer.

PN124

But there's no reference at all in that subclause?---It's not specifically named, no.

PN125

Thank you, Mr McCrone, that's all.

PN126

THE COMMISSIONER: Thanks, Mr Morley. Does anyone else wish to cross-examine Mr McCrone? All right, Ms Lester?

PN127

MS LESTER: Sorry, can I redirect and ask a few questions of Mr McCrone, if that's okay?

PN128

THE COMMISSIONER: As long as they arose out of your primary questioning, unless the parties don't object.

PN129

MS LESTER: I just wanted to ask just about the late payment clause, the terms of that clause, and this is referring to electronic funds transfer.

**** LUKE MCCRONE XXN MR MORLEY
PN130

THE COMMISSIONER: Does anyone have any objections? Ms Lester?

<RE-EXAMINATION BY MS LESTER [9.48AM]

PN131

MS LESTER: Mr McCrone, does that clause there you're reading, does it mention - does it provide for late payment by cash specifically?---No, it doesn't specifically allow for it, no.

PN132

Does it relate to late payment by cheque?---No.

PN133

Does it relate to late payment by electronic funds transfer?---No.

PN134

On your understanding of the terms of the award how are employees entitled to be paid?---How are they entitled to be paid?

PN135

How are they entitled to receive their wages?---They're entitled - to be honest I'm not 100 per cent sure in the different ways. I know they're entitled to receive it by electronic funds transfer, that's the primary mode that people are paid in the industry. I'm not familiar with anyone who is paid differently.

PN136

Thank you, Commissioner.

PN137

THE COMMISSIONER: Thank you. Thanks, Mr McCrone, you can step down.

<THE WITNESS WITHDREW [9.49AM]

PN138

THE COMMISSIONER: Yes, Ms Lester?

PN139

MS LESTER: Commissioner, I seek to tender the affidavit of Mr Scott McLean, and also I would like to call Mr McLean to give evidence.

PN140

THE COMMISSIONER: Thank you.

<SCOTT MCLEAN, AFFIRMED [9.49AM]
<EXAMINATION-IN-CHIEF BY MS LESTER

PN141

MS LESTER: Mr McLean, what's your current position?---I'm the State Secretary of the Forest and Furnishing Products Division of the Construction, Forestry, Mining and Energy Union in Tasmania.

PN142

And how long have you worked in that role?---I commenced with the union on 9 September 1990.

PN143

And what's involved in your position with the union?---Well, I look after the industrial issues that affect our members and affect the forest products industry in Tasmania along with resource issues and the general day to day running of the union and the welfare of the members of the union.

PN144

Do you have any workers that you represent in the timber - do they work in the timber industry?---Absolutely. The majority of our membership works in timber.

PN145

Okay. And are your other workers who are your members, or the members that you assist covered by the Timber and Allied Industries Award?---They certainly are.

PN146

Have you ever witnessed or been involved in any issues enforcing the entitlements under the award?---Over the last 16 years lots.

PN147

Have you ever witnessed or been involved in issues enforcing entitlements under section 42.3 of the Timber and Allied Industries Award which relates to additional payments?---Yes. This last - in February, 24 February this year, and the preceding years back to about 1999 a question of a half day public holiday for Launceston Cup was an issue to our members that are paid under the federal award, and yes.

PN148

What is the Launceston Cup Day?---It's probably the biggest day of celebration in Tasmania I think. In excess of 30,000 people finish work halfway through their day, get dressed up in their best bits and go to the Launceston Cup to see Tasmania's premier race take place.

PN149

And is the Launceston Cup recognised as a half day holiday in Tasmania?---There is a great deal of confusion about it. We have people who are respondent to the federal timber award, or the Timber and Allied Industries Award, who recognise it. We have a number who do not. We have another, a greater number that are not sure, so we have a great deal confusion about that particular holiday or half public holiday.

**** SCOTT MCLEAN XN MS LESTER
PN150

But it's a locally - is it a local public holiday?---It certainly.

PN151

Thank you. What issues have you observed in enforcing that clause of the Timber and Allied Industries Award in relation to the Launceston Cup public holiday?
---Yes. The award says that public holidays declared for the local area. It doesn't talk about half day public holidays. So I've got companies that have operations in every state in Australia that do observe the public holiday, and there are a number of those. I have had advice from the Tasmanian Chamber of Commerce and Industry from their senior industrial barrister saying that it applies and then they later withdrew that. So there's a great deal of confusion about what actually happens on the Launceston Cup public holiday.

PN152

Okay, thank you. So do you know why some employers observe the half day holiday and others do not?---Well, as I understand it, it all comes down to interpretation because the award doesn't specifically mention half day public holiday. So I've got, well, for instance, Coppers, which operations in - Coppers Logs, a preservation business, have operations in New South Wales, Queensland, Western Australia and Tasmania, they observe it. Gunns Limited observe it for the people who are in their hardware business but not necessarily in their timber business, but there again it depends on which part of the timber business you work in. So there's a great deal of confusion about whether it actually applies or it doesn't.

PN153

Do you have or do you look after the workers who are employed in the furnishing industry?---I do so.

PN154

You do. And are they covered by half day public holidays?---It's never been an issue for them. They have always - I don't know whether it's official or unofficial because I'm reasonably new to the furniture side of the industry, but having predominantly dealt with timber and harvesting for a number of years. But in furniture because of the way - well, I'm not sure what it is, the way they operate, whether it's the bed manufacturers or brass people or the furniture manufacturers, have always observed it, and I understand the award has been varied to reflect that.

PN155

Thank you. I'd just like to ask you a few questions now about the late payment of wages for the Timber and Allied Industries Award. Do you recall or can you recall any specific instances - sorry. Have any of the issues related to late payment clause which is clause 26.5 of the Timber and Allied Industries Award, arisen in Tasmania?---The union in Tasmania is currently dealing with one in fact, a timber and engineering firm on 22 or 23 December last year, what they describe as forgot to press the button. We had seven workers who bank with the Commonwealth Bank who weren't paid anything over the Christmas break. We were unable to contact the company. We helped out where we could. We have since approached the company and talked to them about that, and they've received advice, whether written or verbal I'm not sure, from the Tasmania Chamber saying that it doesn't apply to electronic funds transfer, that there is no late payment. We had the matter up until recently listed with the Commission. The employer has taken a bit of a different view now, that they would like to settle and resolve the matter rather than take it through the auspices of the Industrial Commission, so we've got a meeting scheduled for next week in fact to progress this.

**** SCOTT MCLEAN XN MS LESTER
PN156

Thank you. So how long was it in total that the employees went without wages on that occasion?---They actually got paid on the 3rd - no, 4 January. They received nothing for the Christmas/New Year break.

PN157

Within the forest and timber industry in Tasmania how are workers normally paid?---The majority of people are paid by electronic funds transfer. We still do have some sites, which are the smaller country sites if you like, that are paid by cheque, and some have cash.

PN158

Okay. Sorry, you've stated that - sorry, do any enterprises observe and pay under the late payment provision of the award in relation to electronic funds transfer?
---We've had instances where people who were businesses that have mucked it up and admit that they mucked it up have paid. I mean, the classic example would be Boral Industries. At the time they had 234 workers and didn't pay any one of those 234 workers, and didn't pay them for three days, but they paid the late payment clause as well. But now there's a whole series of confusion about whether it applies to electronic funds transfer and so there's some argument about that.

PN159

Why do you think that confusion has come about?---I don't think the award clearly defines it. People have to understand that electronic funds transfer arrangements came about through the two tiered wage structuring system from 1986 through till about '88 and '99, that there was 1.5 per cent super and another 1.5, so the whole history of the thing. So by industrial standards I guess it's a relatively new thing from sort of like, through the award restructure and the minimum rates adjustment clauses of the timber award, and that whole process which brought about electronic funds transfers. So I guess it's been around for about 10, 12, 13 years, which is not a long time in industrial terms to get that custom and practice established. So the award doesn't reflect.

PN160

Were you aware of, in terms of the prestripped Timber and Allied Industries Award?---Yes. We sort of had the FBN, Forest and Building Products and Manufacturing Merchandising General Award '96. Yes, most of our agreements refer to that award and certainly refer as far back as we can get agreement with the employer about that to - it was seen to be a lot clearer in that as opposed to what's come now.

PN161

Thank you. Would you say that, or are you aware of any confusion on behalf of employers as to whether clause 26.5 of the Timber and Allied Industries Award applies to payment of wages by electronic funds transfer?---Yes.

**** SCOTT MCLEAN XN MS LESTER
PN162

You've had specific employers come to you and say yes?---There is no question about it. It appears that the award doesn't follow for anything. It doesn't necessarily refer to anything, but it says that this is a late payment clause for wages. It doesn't particularly refer to cash, cheque or EFT but, you know, there is a great deal of confusion about where and when it applies.

PN163

Okay, thank you. No further questions, Commissioner.

PN164

THE COMMISSIONER: Thank you. Are you tendering the statement of Mr McLean?

PN165

MS LESTER: Yes, Commissioner.

EXHIBIT #CFMEU2 STATEMENT OF SCOTT MCLEAN

PN166

THE COMMISSIONER: Does anybody wish to cross-examine Mr McLean in regards to any part of his evidence? Ms Williams?

<CROSS-EXAMINATION BY MS WILLIAMS [10.00PM]

PN167

MS WILLIAMS: Thank you. Thank you, Mr McLean, thank you for coming up this morning. Commissioner, if I might, I'm going to deal with just the public holiday aspect.

PN168

THE COMMISSIONER: Thank you.

PN169

MS WILLIAMS: So if I might just hand that up to you.

PN170

Now, Mr McLean, in your affidavit you say that there's a number of companies in Tasmania who apply the half day public holidays and others that don't?---That's correct.

PN171

And I would say or put to you that there's a number of companies who, for example, give a Christmas bonus and another that don't?---Quite possibly, yes.

PN172

And there's a number of companies in Tasmania who pay production bonus and a number that don't?---Yes. Most of those things would be subject to some form of agreement, but yes.

PN173

Or a company may provide a benefit for its employees that others don't?---Quite possibly, yes.

**** SCOTT MCLEAN XXN MS WILLIAMS
PN174

Now, if I might just show Mr McLean the clause from the award in relation to public holidays?---Yes.

PN175

Down the bottom of that extract is the additional public holidays that we're talking about, and it says:

PN176

Where in a state, territory or locality public holidays are prescribed on days other than those set out, those days shall constitute additional public holidays for the purposes of the award.

PN177

?---Yes.

PN178

And this is the sentence that's confusing?---Yes.

PN179

So would it be less confusing, it would get rid of the ambiguity in your mind if we put full public holidays?---Whilst that may very well be a view, if it refers specifically to public holidays and half day public holidays then - - -

PN180

No. The question is if we put the word full would that remove the ambiguity as far as you were concerned?---Yes.

PN181

Thank you. No more questions.

PN182

THE COMMISSIONER: Thank you. Anybody else with to cross-examine Mr McLean? No? Mr Morley?

<CROSS-EXAMINATION BY MR MORLEY [10.03AM]

PN183

MR MORLEY: Mr McLean, you've stated that you're familiar with the award in this case?---Yes, I am.

PN184

And you've also mentioned that you're familiar with the clause or subclause in relation to late payment. Can I refresh your memory by providing you with a copy of that clause. Mr McLean, is there any reference to electronic funds transfer in that subclause?---No, there is not.

PN185

So it doesn't mention it at all?---No.

**** SCOTT MCLEAN XXN MR MORLEY
PN186

That's all.

PN187

THE COMMISSIONER: Thank you. Ms Lester?

PN188

MS LESTER: Thank you, Commissioner. I have no other questions for Mr McLean. I'd like to proceed with our submissions.

PN189

THE COMMISSIONER: You have no further questions?

PN190

MS LESTER: No.

PN191

THE COMMISSIONER: Okay, thanks, Mr McLean, you can step down thanks.

<THE WITNESS WITHDREW [10.04AM]

PN192

THE COMMISSIONER: Yes, Ms Lester?

PN193

MS LESTER: Commissioner, under the amended legislation the Commission has power to vary an award if it considers that the award or a term of the award is ambiguous or uncertain. Regulation 4.5(2)(a) of Division 4, Part 4 of Chapter 7 of the Workplace Relations Regulations 2006 states that:

PN194

Subject to subregulation 2 in a proceeding at first instance begun before the reform commencement that it is to be determined under these Regulations ...(reads)... of the Act.

PN195

Subregulation 4.2(8) of Division 4, Part 4 of Chapter 7 of the Regulations states that:

PN196

If a proceeding for the purpose of section 113(2) of the pre-reform Act was begun prior to commencement ...(reads)... removing ambiguity or uncertainty.

PN197

Section 554(1) of the new Act is now in the following terms:

PN198

The Commission may, if it considers that an award or a term of an award is ambiguous or uncertain make an order varying the award so as to remove ambiguity or uncertainty.

PN199

The matter before the Commission today concerns an application pursuant to section 113 of the pre-reform Act which was lodged with the Commission on
13 December 2005. The proceedings concerned the appropriate terms to give effect to the variation sought arising from the application, and the ambiguity and uncertainty of the terms of clause 4.1, 26.5 and 42.3 of the Timber and Allied Industries Award.

PN200

Section 541(1) of the Act clearly provides that the Commission has the discretion to determine whether the terms of the Timber and Allied Industries Award 1999 are ambiguous or uncertain, and this was exercised by Senior Deputy President Cartwright in ASC Pty Ltd v AMWU, and I've got the print number for that which is PR970989. Accordingly the union submits that the application did not lapse with the commencement of the Work Choices legislation on 27 March 2006, and that the Commission has jurisdiction to vary the award and that the Commission proceeds to deal with this application pursuant to section 541(1) of the Act.

PN201

It was held by Steven J in R v Gough ex parte Key Meats [1982] HCA 12; (1982) 148 CLR 582 at 591-2, and it was also recited in Colonial Mutual v FSU, 113 IR at 167, that the existence of an ambiguity or uncertainty in an award is determined from the terms of the award and the factual situations to which it is to be applied. It's not to be determined on a party's belief as to what the term means.

PN202

On the application of this principle it's clear that the terms of the Timber and Allied Industries Award sought to be varied in this application are ambiguous or uncertain when applied to the factual situations within the industry. Commissioner, I'd like to deal with each clause we're seeking to have varied individually in support of our submission that these clauses are ambiguous or uncertain.

PN203

With regard to the public holiday clause which is clause 42.3, and the first additional public holidays, this variation was sought on the grounds that the clause was ambiguous or uncertain with regard to the provision of half day public holidays. The Timber and Allied Industries Award contains a public holiday test case model clause but does not specifically provide for half day public holidays. This issue was addressed in Frank Topics v Duncans Holdings Limited trading as Boral Timber on 24 July 2002, where the issue between the parties related to the entitlements of the applicant for payment under clause 42.3 of the Timber and Allied Industries Award for half day public holidays.

PN204

In this case Chief Industrial Magistrate Miller suggested that a person bound by this award is entitled to be told clearly in an unambiguous language where a half day public holiday is granted. He further stated at page 122 that:

PN205

It's sensible and fair that a person on a whom an award imposes an obligation should now with certainty and clarity what the obligation is because a failure to comply may result in a penalty being imposed.

PN206

Chief Industrial Magistrate Miller finally determined that he could not extend the meaning in that case, the meaning of public holiday, to include a half day public holiday under the clause that existed in the Timber and Allied Industries Award. In the public holiday test case which is print L4534, the Commission accepted that a declaration of public holidays was a state prerogative and that there is a need to reconcile with the Commission's safety net function with the authority of the governments.

PN207

The Commission explained that local holidays exist by reason of governmental instruments and that the Commission ought not assert the function of declaring such days to be public holidays. The Commission held that the public holidays are - that if public holidays are prescribed by state law then the award can provide for it as well. The Commission further explained that it's not open to the Commission to prevent a state or territory from creating extra public holidays and that where this is done the existence of a lesser standard in the Commission's awards would be a likely source of industrial unrest.

PN208

The Commission held that in effect their decision allows for state or territory autonomy subject to meeting a minimum safety net criteria. The variation sought by the union does not create a new obligation on employers as the obligation already exists by virtue of state legislation. Half day public holidays are gazetted in the ACT, New South Wales and Tasmania, and the fact that the additional public holiday clause does not clearly and in unambiguous terms specify that half day public holidays are included in the application of the additional public holiday clause of the Timber and Allied Industries Award, creates a lesser standard in the award that exists in the state legislation.

PN209

While this safety net standard does not specifically provide for half day public holidays it is not the understanding of the union that the public holiday test case model clause was meant to be limited in the way claimed by Chief Industrial Magistrate Miller. The fact that the additional public holiday clause is ambiguous or uncertain with regard to half day public holidays is further evidenced by the testimony of Mr Scott McLean. It's been explained to the Commission that the application of the terms of the additional public holiday clause within the timber industry causes confusion and uncertainty among both employers and employees.

PN210

In some instances the employer interprets the clause to provide for all public holidays including half day public holidays, and in others the employer does not recognise the state's half day public holidays as a legitimate entitlement under the award. On application of the test to determine if ambiguity or uncertainty exists as held by Steven J in R v Gough ex parte Key Meats, the uncertainty in how to apply the clause within the industry clearly indicates that the clause is ambiguous or uncertain.

PN211

In any case, Commissioner, since the decision of Chief Industrial Magistrate Miller in 2002 it has been recognised that ambiguous or uncertainty exists in the additional public holiday clause. As you are aware, Commissioner, an application was made by this union to vary the additional public holiday clause of the Furnishing Industry National Award 2003 in June 2005, and on the same grounds that we're seeking to vary the Timber and Allied Industries Award here today, that is, to remove the ambiguous and uncertainty with regard to half day public holidays.

PN212

I seek to tender the original application to vary the Furnishing Industry National Award and the order handed down on 24 October varying the Furnishing Industry National Award additional public holiday clause to provide for half day public holidays.

PN213

THE COMMISSIONER: Do you have copies for the others?

PN214

MS LESTER: I have.

PN215

MS WILLIAMS: Is this a copy of the order?

PN216

MS LESTER: Yes.

PN217

THE COMMISSIONER: Has everyone got those? Yes, okay, thanks.

PN218

MS LESTER: Some of the respondents of the current proceedings present here today were party to the application to vary the Furnishing Industry National Award, and in those proceedings agreed to vary the public holiday clause to remove ambiguous and uncertainty relating to half day public holidays. Commissioner, the application also seeks to vary clause 26.5, late payment, to update and clarify the award with regard to the rights and obligations of the parties when wages are paid late by electronic funds.

PN219

Payment by electronic funds transfer is provided for in clause 26.2 of the Timber and Allied Industries Award. The variation sought in this clause merely seeks to specify in unambiguous terms that employees paid by electronic funds transfer are entitled to the provisions of the late payment clause. The re-drafted variation updates the current provision to address modern standards, and the vast majority of employees in the industry are paid by electronic funds transfer rather than by cash or cheque.

PN220

The award itself provides for wages to be paid in this way. The variation of the draft order seeks to update the late payment clause to address all forms of payment that are already referenced in the award. The issue of whether late payment of wages for electronic funds transfer is provided for where the award doesn't specifically provide for such late payment was addressed in - now, excuse my pronunciation of this, I never get it right - I think it's Bunge, B-u-n-g-e, Australia Pty Ltd v Federated Millers and Manufacturing Grocers Employees Association of Australia, which is a decision handed down on 2 April 1990, and the print number is J2154.

PN221

In this case it was determined by Commissioner Donaldson that electronic funds transfer was not a consideration when the clause was introduced into the Metal Industry Award 1978, and that the late payment of wages clause was designed and intended to cater for situations involving employees waiting at their workplace for wages. In this case the Commission ruled that the provisions of subclause 35(e) of the Metal Industry Award 1978 did not provide entitlements in circumstances of delayed electronic funds transfer for wages, transfer or transaction of wages.

PN222

This case is distinguished on the facts of the present case, Commissioner. Prior to the Timber and Allied Industries Award simplification in 1999 the Timber and Allied Industries Award, then known as the Forestry and Building Products Manufacturing and Merchandising General Award 1996, specifically provided that where wages are paid late by electronic funds transfer at the fault of the employer the affected employees were entitled to the penalties applying to the late payment as set out in the late payment clause.

PN223

This provision was then removed from the award as a result of the simplification process. Commissioner Merriman held that:

PN224

The Commission believes that clauses 45.5 and 6 as proposed by the union go into unnecessary detail and have been deleted.

PN225

That's at paragraph 22. The print number there is R4683. Commissioner, it seems as though at the time of the award simplification process the clauses which specify the entitlement to late payment penalties were wages paid by electronic funds transfer were removed as they provided for unnecessary detail. Unfortunately the removal of such detail has rendered the clause uncertain with regard to late payment of wages by electronic funds transfer.

PN226

On review of the history of the award it's evident that late payment of wages by electronic funds transfer was meant to be included in the Timber and Allied Industries Award and in the simplification process the clause became ambiguous or uncertain with regard to late payment by electronic funds transfer. It's on these grounds that the decision in Bunge does not apply to the current proceedings. Furthermore the testimony of Mr Luke McCrone and Mr McLean emphasises a difficulty that exists in applying the current clause within the industry as a result of the ambiguous and uncertainty of its terms.

PN227

Commissioner, the variation sought seeks to update and clarify the late payment clause in the award which is clause 26.5 to provide in unambiguous terms that the provision for late payment of wages applies when such payment is made by electronic funds transfer. The variation sought clearly specifies the rights and obligations of the parties when wages are late and when they are paid by electronic funds transfer. It does not create an extra entitlement.

PN228

Commissioner, the definition of estimator which is contained in clause 4.8 of the Timber and Allied Industries Award has also been sought to be varied so as to update the definition and bring it in line with industrial reality. At present the clause is uncertain with regard to specifying the duties in estimator clause, and the union seeks to remove the uncertainty of the provision. The introduction of computer based systems of estimating patterns and materials for truss and frame manufacturing has changed the way the estimator performs their duties. The estimating work is now carried out through software programs that apply the regulations, the actual requirements and et cetera designs, but they are also connected to the manufacturing plant of the jigs and cutting equipment effectively and can be estimated to the shop floor.

PN229

The definition of estimators sought in this application is appropriate given the technological advances that now govern the role of estimator. The maintenance of this position in the award is necessary to provide employees with career paths and provides employees in the truss and frame manufacturing process the opportunity to develop their skills and progress through to a higher level within the industry. It provides a good incentive for the workers to stay in the truss and frame industry sector that is otherwise notorious for its high turnover.

PN230

The respondents submit that if the clause is ambiguous or uncertain the definition of estimator is effectively a classification which forms part of the preserved Australian Pay and Classification scale and therefore cannot be changed by the Commission. The classification of employees governed by the Timber and Allied Industries Award 1999 are contained in the appendices of the award. The union submits at clause 4.8, which is the definition of estimator, is just that, it's a definition of estimator and it's not included as classification.

PN231

On the grounds that this clause is ambiguous or uncertain the union submits that the Commission has power to vary the terms of the definition in clause 4.8 of the award. Commissioner, on submissions provided and the evidence educed today it's the union's submission that the additional public holiday clause, the late payment clause and the definition of estimator clause of the Timber and Allied Industries Award 1999 are ambiguous or uncertain. On these grounds the union submits that the Commission has power to vary the award in accordance with section 554(1) of the Workplace Relations Act 1996. If it pleases the Commission those are my submissions.

PN232

THE COMMISSIONER: Thanks, Ms Lester. Mr Morley do you wish to lead off from the respondents?

PN233

MR MORLEY: Commissioner, there appears to be agreement between the parties about the actual scope of the Commission's powers to deal with the application to vary an award commencing prior to the Work Choice Act coming into effect on 27 March 2006, so I will not dwell for any length of time on the specific Regulations in the sections. Nonetheless it's certainly worth pointing out that as a result of the Work Choices Act and the accompanying Workplace Regulations 2006 there are very significant limits on the Commission's power to deal with such applications, and these limits are dealt with in our outline of submissions at paragraphs 3 to 10.

PN234

As the union has highlighted, the only potential and relevant basis today to activate the Commission's jurisdiction to continue to hear each of these three aspects of the application is that of ambiguity or uncertainty. The law on this is very clear. There is no general power to vary an award under the former section 113(1). There is a specific power for the Commission to vary an award if - and I quote from the Regulations:

PN235

If a proceeding for the purpose of subsection 113(2) of the pre-reform Act was begun.

PN236

And in other words, that is, that if a proceeding for the purpose of removing ambiguity or uncertain was begun. And so we need to bear this in mind in respect of each of the variations sought, that the union needs to demonstrate that its purpose when the application was begun was to remove ambiguity or uncertainty. The union has cited R v Gough, as have we in our submissions, and the relevant quote there was as follows, that:

PN237

The existence of an ambiguity or uncertainty in an award is determined from the terms of an award and the factual situations to which it is to be applied. It is not to be determined on a party's belief as to what the terms mean.

PN238

And that's important because today we've already heard what various beliefs about the application of each of these provisions is. Commissioner, you are tasked with looking on an objective basis whether there is any uncertainty or ambiguity in any of the terms to which I'll turn shortly. It is a matter for the Commission to construe the relevant parts of the award and to determine as an objective fact whether those parts are capable of more than one meaning and more than one credible arguable meaning.

PN239

Now, it may well be that the parts of the award give rise to circumstances which the union feels is unfair in respect of certain employees, and it's possible that those parts may even be unfair. That's not what we are looking at today, and it's certainly not the task of the Commission today. The jurisdiction of the Commission is so limited by the legislation that it's not entitled to look into the fairness or otherwise of these aspects of the award, and that's largely what the evidence which I'll turn to shortly was about, whether employees had suffered as a result of late payment. That's not what we're looking at today, and it's certainly not what we should be looking at today, and it's not the Commission's role.

PN240

I'll turn to the variation which the union is seeking to the definition of estimator in subclause 4.8 of the award. And I do note that the union hasn't called any evidence in relation to that subclause, and I think that's simply because the union couldn't call any evidence in relation to that subclause because on its face it is incredibly clear that it has been unable to identify any specific ambiguity or uncertainty in the terms of the subclause. And I will quote subclause 4.8:

PN241

An estimator means an employee who has served an apprenticeship to any of the buildings trades ...(reads)... builders, architects or other plans.

PN242

The union has had an ample opportunity to identify any ambiguity or uncertainty in that clause, in that subclause. It simply hasn't, and I submit that it hasn't been able to because there isn't any ambiguity or uncertainty in that subclause. The union said today that the variation it's seeking to the definition of estimator is to update it to bring it into line with industrial reality. Put simply, the union is expressly acknowledging that this aspect to this application is attempting to change subclause 4.8 of the award to reflect its perception or belief of a change in industrial reality.

PN243

This is not ambiguity or uncertainty at all, Commissioner. Changing a term of an award to bring it into line with industrial reality is not a ground as specified in the current legislation which would allow the Commission to exercise it's jurisdiction to vary this term in the award. Now, we would be prepared to accept that the duties of the estimator may have changed, that almost none of the estimator's work in the truss manufacturing industry in 2006 have completed an apprenticeship. The work of the estimator has changed over time and the work methods have changed. We may be prepared to accept that, but that is irrelevant to today's proceedings. It doesn't equate to any ambiguity or uncertainty in that term.

PN244

In paragraph 16 of the union's outline of submissions the union states that subclause 4.8 of the award is uncertain with regard to specifying the duties an estimator performs. This is patently incorrect, and I've cited subclause 4.8, because it clearly states that duties an estimator performs. The union hasn't identified any uncertainty or ambiguity in those duties. There is none. Now, if we look at the definition of estimator which the union is proposing to insert into the award, it is an entirely new definition from that of the current clause, subclause 4.8.

PN245

And if we look at the proposed subclause 4.8, at the outset it states that an estimator means an employee who for the majority of their time. The majority of their time, that's simply a phrase which doesn't exist in the current subclause 4.8. The duties which are then specified in two bullet points also are substantially different from the current subclause 4.8. And similarly there's no requirement in the proposed subclause 4.8 for an employee to have served an apprenticeship for any of the building trades as a draftsperson. Therefore the definition the union proposes to insert into the award is far broader than that in the current clause 4.8.

PN246

And I think it's easy for us to see essentially what the union is trying to do, is introduce new obligations on employers in respect of a wider category of estimators as it defines and as it wishes for it to be defined in accordance with it's perception of the change in industrial reality. And as I've said, we accept that the industrial reality may have changed, but that's irrelevant when considering the question of ambiguity or uncertainty.

PN247

In our submission the Commission simply doesn't have the jurisdiction to hear this aspect of the union's application, as on an objective basis looking at subclause 4.8 as it's currently worded there isn't any ambiguity or uncertainty in its terms. At any rate, Commissioner, our alternative submission is found in paragraphs 23 to 27 of our written outline of submissions, and that is that in fact even if the Commission were to find ambiguity or uncertainty in the terms of subclause 4.8 of the award, as the estimator is a classification which forms part of the preserved Australian Pay and Classification Scale under Part 7 of Division 2 of the Workplace Relations Act, the Commission simply does not have the power to change the definition of estimator. And that is because an estimator does constitute a category or classification of employees despite what the union has said as defined under subsection 181 of the Act.

PN248

And if the Commission were to refer to subsections 182(a) and (c) of the Workplace Relations Act they go on to refer to, or define further what classification and category mean and they include a reference to the nature of work performed by employees and their experience. And this is exactly what subclause 4.8, and the definition of estimator does refer to the nature of work performed by that kind of employee.

PN249

Under the Workplace Relations Act the definition of estimator therefore becomes a preserved Pay and Classification Scale which, according to subsection 208(1)(b) of the Workplace Relations Act can only be changed by the Australian Fair Pay Commission, and I reference section 216 of the Act. In conclusion the Commission doesn't have the power to make an amendment to subclause 4.8 to change the definition of estimator.

PN250

Commissioner, I turn to the second issue of late payment and the union's proposed variation to replace subclause 26.6 of the award. I would remind the Commission that the wording in Regulation 4.2(8) states that:

PN251

If a proceeding for the purpose of subsection 113(2) of the pre-reform Act was begun.

PN252

In other words if a proceeding not for the purpose of section 113(2), or a proceeding not for the purpose of removing ambiguity or uncertainty was begun then the Commission doesn't have the power to make an order to vary the award and to remove ambiguity or uncertainty. The union's purpose, and that's what we need to look at now, is patently clear in respect to this matter and can be discerned in its application, in its original application to vary the award, which refers to updating and clarifying the late payment provision, and also refers to this in paragraph 13 of its outline of submissions.

PN253

What the union is seeking to do is make a leap of flawed logic, that because there is no provision currently in the award for late penalties when payment is made late by electronic funds transfer of wages, then this somehow equates to ambiguity or uncertainty. This simply doesn't. A different union spent a considerable amount of time in one of the very recent cases which we've cited in our outline of submissions trying to make exactly the same flawed leap of logic. And I refer the Commissioner to a decision on transcript by Senior Deputy President Acton regarding applications to vary the Vehicle Industry Repair Service and Retail Award 2002, and the C numbers are 2004/1986, 2004, 2001 - sorry, 2004/2011 and 2004/1345 on 26 April 2006. And I'll provide a copy of the decision to the Commission.

PN254

THE COMMISSIONER: Thank you.

PN255

MR MORLEY: Now, while I don't propose to run through that decision in detail, I do wish to refer to one of the three applications in that case was seeking to vary that particular award to insert an entitlement in respect of toilet breaks. The SDA attempted to show that in the absence of a toilet breaks clause in that award there was ambiguity or uncertainty as to whether an employee had an entitlement to take a toilet break. The union argued this point for some time, essentially really going round and round in circles before Senior Deputy President Acton at paragraph 936 of the decision actually concluded, and I'll quote from paragraph 936:

PN256

It's not a right, it's not an entitlement. It simply does not exist. It's not uncertain, it's not there.

PN257

And in doing so Senior Deputy President Acton really hit the nail right on the head with these simple statements:

PN258

Merely because an entitlement does not exist in an award does not mean that any part of the award is uncertain or ambiguous.

PN259

It almost goes without saying that awards cannot provide for every circumstance or situation under the sun, and that's not the purpose of an award. Now, the same is what Senior Deputy President Acton stated at paragraph 936, could also be said in the case before us in relation to the issue of the union's attempts to insert penalties for late payment when it is made by electronic funds transfer, and also I'll turn to the issue of part day public holidays shortly.

PN260

Penalties for late payment by electronic funds transfer are not a right. They simply don't exist in the award. Its not uncertain. They're not there, to paraphrase Senior Deputy President Acton. The considerable amount of case law which we refer to in our written outline of submissions at paragraph 32 is quite clear that there's no ambiguity or uncertainty in terms of the same kind of wording to that in subclause 26.5 in other awards which also have similar wording. And the case law does go back indeed a very long way to 1947, to a decision of Cranford Webster and McFarlane (1947) South Australian State Reports at page 162.

PN261

And this is well before electronic funds transfer - as this was well before electronic funds transfer, nonetheless it's an important decision because it does look at similar wording as to that in subclause 26.5, and whether such wording is ambiguous or uncertain. And the specific wording which it looks at is the issue of - is the phrase, waiting for wages. The issue in that case was whether the late payment clause prescribed by the relevant award which specified "waiting time" was activated when employees did not receive their payment on Friday when it was due, and in fact received their payment the following Friday.

PN262

The appellants had attempted to argue as waiting time was a penalty it should extend until payment is made. And this is effectively what the union is trying to do in the case before us, replace the current waiting time provision or when employees get waiting for wages with a provision which imposes a penalty on late payment when it is made by electronic funds transfer in attempting to insert a new right which simply doesn't exist.

PN263

And I refer the Commissioner to page 170 of this decision very close to the bottom of the page on page 170 where Mayo J says:

PN264

Nor do I regard the clause as equivocal. Such a connotation is not in my opinion a reasonable construction to put on the phrase.

PN265

He's talking about the phrase, waiting time:

PN266

If waiting time is ambiguous I will reject the interpretation preferred by ...(reads)... service.

PN267

The most relevant case on point that's already been cited by the union, and that's Bunge Australia Pty Ltd v Federated Millers and Manufacturing Grocers Employees Association of Australasia, print J2154. Commissioner Donaldson's task in this case was to decide whether late availability of wages in employees' bank accounts was a situation catered for by the late payment clause in that case, which stated an employee kept waiting for his wages on pay day for more than six minutes after the usual time of ceasing work shall be paid overtime rates after that six minutes.

PN268

Commissioner Donaldson held that this provision could not apply to a situation where the employee had received late payment by electronic funds transfer, as it was meant to compensate employees where they were physically kept waiting for payment of wages. And I'll refer the Commissioner to paragraph 34 of our written outline of submissions which quotes the relevant part of Commissioner Donaldson's decision. The fact is that EFT was not a consideration when the clause was introduced into the award. The clause was designed and intended to cater for situations involving employees waiting at their workplace for wages.

PN269

The intent is established not only by the actual wording of the clause and the cases referred to by the company in relation to clauses with similar wording, but in other decisions of the Commission. Does the Commissioner have a copy of that decision?

PN270

THE COMMISSIONER: Yes, I do.

PN271

MR MORLEY: So the fact is that electronic funds transfer wasn't a situation under consideration when the wording which is now in clause 26.5 was introduced into the award. Now, whether the current state of affairs is unjust or unfair to employees is not relevant. We should recall Senior Deputy President Acton's words as I've already cited:

PN272

It's not a right, it's not an entitlement. It simply doesn't exist. It's not uncertain. It's not there.

PN273

Mr McLean's evidence on the issue simply didn't assist the Commission at all to decide whether subclause 26.5 is ambiguous or uncertain. His evidence is encapsulated today and also in his affidavit and is irrelevant and vague. At paragraph 4 of his statement, of his affidavit, Mr McLean states that it's ambiguous, the relevant clause is ambiguous on the grounds that it does not clearly specify whether the entitlement of the late payment provisions available to employees being paid by electronic funds transfer.

PN274

The operative part in that statement is that it does not really specify. Well, Commissioner, it doesn't specify at all. And that was clearly admitted by Mr McLean today in acknowledging, when asked about subclause 26.5, whether it refers to electronic funds transfer. His only answer, and it's the only answer he could give, was that it doesn't. It's not there. It's not specified at all. There's no ambiguity there.

PN275

THE COMMISSIONER: What's the relevance of 26.2, clause 26.2?

PN276

MR MORLEY: The relevance is just to prescribe a way in which the wages shall be paid.

PN277

THE COMMISSIONER: Wages?

PN278

MR MORLEY: That's right.

PN279

THE COMMISSIONER: The term wages is used in 26.5. So why can't one say in determining or using the term wages one can relate to cash, cheque, EFT?

PN280

MR MORLEY: Commissioner, but it's not wages in isolation we're looking at in subclause 26.5. It's where an employee is kept waiting for wages. Now, the case law is defined over a fair degree of time that this is in reference specifically to kept physically waiting for wages.

PN281

THE COMMISSIONER: So what is an employee doing when they're waiting for wages to go into a teller machine and they can't get access to it because it's not there, is that not waiting?

PN282

MR MORLEY: Well, Commissioner, I'm looking at the actual intention of the drafters in this award, that was later defined in the case law to mean that if they're physically in a line waiting for wages that - - -

PN283

THE COMMISSIONER: But when that was drafted EFT was not the thing.

PN284

MR MORLEY: And that's precisely my point, Commissioner.

PN285

THE COMMISSIONER: Yes. But EFT now is the thing, and EFT is now referred to in 26.2.1 as a method of payment along with cheque, along with cash. So why doesn't the term wages under 26.5 cover cash, cheque or EFT?

PN286

MR MORLEY: Well, Commissioner, the point of the proceedings today isn't to look at the change in industrial reality. We accept that payment is now made by EFT, that the purpose is actually to look at whether the terms are ambiguous.

PN287

THE COMMISSIONER: Or uncertain.

PN288

MR MORLEY: In that particular clause. Our submission is that subclause 26.5 is that kept waiting for wages means physically waiting for wages to be paid.

PN289

THE COMMISSIONER: I understand that's your submission and I understand that very clearly. But I asked the question, what is the difference between standing in a line waiting to get paid in cash as opposed to waiting at a teller machine or in a bank queue waiting to get moneys that aren't there, or wait getting in? What's the difference?

PN290

MR MORLEY: Well, Commissioner, I acknowledge that there's probably not a lot of difference, but my submission is still that that doesn't go to the question of ambiguity. If it's accepted that that's a new situation which is catered for by this clause then it would require a different power for the Commission to be able to pay it than ambiguity or uncertainty.

PN291

THE COMMISSIONER: Why isn't there uncertainty? Why doesn't uncertainty apply in that? I mean, the employee says to the employer, I was kept waiting for my wages, am I entitled to late payment? The employer says, well, clause 26.5 doesn't refer to EFT. But clause 26.5 doesn't refer to cash either and it doesn't refer to cheque. It simply says wages. And the employee says, yes, well, I was kept waiting for my wages through the EFT, am I entitled to late payment? And the employer says, well, I don't know.

PN292

MR MORLEY: We would submit, Commissioner, that they're not entitled to late payment.

PN293

THE COMMISSIONER: I understand what you're saying. Okay.

PN294

MR MORLEY: If there's nothing my colleagues wish to say I'll proceed with my submissions.

PN295

THE COMMISSIONER: Yes, thanks.

PN296

MS WILLIAMS: Commissioner, if I might just say something?

PN297

THE COMMISSIONER: Yes, Ms Williams.

PN298

MS WILLIAMS: Now, in relation to - there's also an issue between the difference of waiting in a queue and the payments just not turning up and getting your pay envelope, as I remember in my days, to a problem with the bank. You know, if there's a problem with the bank, which this doesn't address either, it may go in at no fault of the employer.

PN299

THE COMMISSIONER: No, I accept that. I accept that, and I don't believe that an employer should be held responsible if there is a difficulty at the bank's end. The question I suppose is whether the employer should be held responsible if the difficultly is at their end, whether it be by cash, cheque or EFT.

PN300

MS WILLIAMS: Well, we'd still say that if there's a - - -

PN301

THE COMMISSIONER: In short, no.

PN302

MS WILLIAMS: We support the thing that that's not the issue today.

PN303

THE COMMISSIONER: Yes. Yes, Mr Morley?

PN304

MR MORLEY: Thank you, Commissioner. Mr McLean has also talked today about the employees in question referred to in paragraph 5 of his affidavit suffering through their Christmas period without wages. The truth that if - the action of the employer in this instance may have been unfair, but once again, Commissioner, we say that this doesn't go to the issue of ambiguity or uncertainty. Commissioner, if there has been a breach of the award in terms of an employer breaching it's obligations to make payment by the prescribed time then the employees are entitled to pursue an action against the employer for such breach.

PN305

Mr McLean referred to a number of issues that are currently outstanding in Tasmania. However we would submit that this evidence is so vague as to be rendered meaningless. How employers apply the terms of the award or how they are advised is not relevant to the question in today's proceedings, whether or not a provision of the award objectively speaking is ambiguous or uncertain. We do not dispute that employers provide awards incorrectly at times or receive incorrect advice or are ill advised about the application of terms of the award. This doesn't mean that a particular term of the award is uncertain or ambiguous.

PN306

Mr McCrone's evidence was very similar in talking about the distress to workers and discontent of the workforce in relation to issues of receiving late payment, but these are irrelevant considerations on the question of ambiguity or uncertainty. Commissioner, I turn finally to the union's proposed variation to subclause 42.3 of the award. In our submission the union is seeking to impose a new obligation on employers to grant half holiday or part day holidays where declared or prescribed by state and territory or locality.

PN307

Similarly the union would be creating - if the application was granted would be creating a new entitlement in the award for employees in these circumstances. The union raises the public holidays test case, or at least one of the decisions, print L4534. There were, as the Commission is aware, additional decisions which all dealt with the issue of public holidays, prints L7799, 7971 and 9178. The safety net which was established and incorporated into the modern order was essentially the clause 42 of the award including subclause 42.3.

PN308

Despite exhaustive consideration for safety net by the Full Bench of the Commission, the Commission did not find it necessary to specifically provide an entitlement in respect of half or part day public holidays. Rightly or wrongly so, it simply didn't provide for such an entitlement for safety net. And this very point was recognised in the only case which considers the very issue being argued before us today, that of ambiguity or uncertainty, in the very same subclause of the very same award with one of the parties being the very same union. And that is of course Frank Topic v Duncans Holdings Limited trading as Boral Timber (2002) New South Wales Chief Industrial Magistrate Court Reports at 117 on
24 July 2002.

PN309

Commissioner, this is the only relevant authority we have on the point. Accordingly it must be treated as being highly persuasive if not determinative of the issue before us today. The issue in that case was whether the applicant had an entitlement under the subclause 42.3 to public holiday penalty rates for work performed on a number of part holidays which had been prescribed in this instance by the Grafton locality. Now, the Chief Industrial Magistrate Miller held clearly that subclause 42.3 of the award did not extend to the situation of half holidays, and he considered in full the submissions made by both parties and made his reasons very clear, and they were on a number of fronts, Commissioner.

PN310

The Chief Industrial Magistrate - does the Commissioner have a copy of that decision?

PN311

THE COMMISSIONER: No, I don't think I do. I know that it's referred to in a number of submissions.

PN312

MR MORLEY: His Honour referred firstly to the fact that in New South Wales under the Bank Holidays Act 1912 there is capacity for either and expressly public holidays or half holidays to be declared in New South Wales, and it makes this distinction in the relevant sections referred to in the Act. That half holidays are specifically referred and four day public holidays are specifically referred to. But in fact in the award before us subclause 42.3 makes no provision for half holidays. The absence of doing so when the parties initially could have specified half holiday certainly goes against what the union is claiming, that the provision in subclause 42.3 does provide for half holidays. It simply doesn't refer to half holidays.

PN313

Similarly his Honour drew on the fact that there are a number of other industrial instruments which expressly provide for half holidays. The award doesn't do so in subclause 42.3. Without specifically or expressly providing them in subclause 42.3 we'd submit that it's terms do not provide for a half day public holiday. His Honour also examined the other parts of clause 42. For example, subclause 42.4 which speaks of public holidays being replaced by an alternative or another day. There are no references throughout clause 42 to half day or part day public holidays.

PN314

Finally, and as cited in paragraph 44 of our written outline of submissions, and I turn to the bottom of the page of our submissions on page 9 of our written outline of submissions, and this is on page 5 of the decision. The Chief Industrial Magistrate Miller says:

PN315

It seems to me that the terms of clause 42.3 do not suggest an obligation to grant a half holiday ...(reads)... half holiday as submitted by the applicant.

PN316

It seems to me somewhat astounding and surprising that the union referred to this decision in support of its application, the original application, when it clearly goes against their application and refutes their arguments. Turning to the evidence given by Mr McLean. In our submission Mr McLean's evidence simply doesn't assist the Commission at all in its task of determining whether subclause 42.3 of the award is ambiguous or uncertain.

PN317

He states generally that there have been issues of enforcing the entitlement throughout the award as there is ambiguity. This is a spurious assertion. Mr McLean has stated there's ambiguity without identifying or telling us what it is. In essence he's assuming that there's an entitlement in the award when it simply does not exist. The union has also referred to the Furnishing Industry National Award 2003, and the fact that it now includes a similar clause in the same terms as at subclause 42.3.

PN318

Commissioner, we would accept that in that case for one reason or another the parties consented to this variation being made by way of conciliation. But this does not provide any precedent or authority as there is no dispute or arbitration over subclause 42.3. It was unchallenged at the time. The issue of ambiguity or uncertainty wasn't raised. It's merits were simply not argued. Therefore it cannot be taken as anything other than an interesting aside which does not have any real bearing on the issue before us today.

PN319

Once again I would draw the attention of the Commissioner to Senior Deputy President Acton's statement that it's not a right, it's not an entitlement, it simply does not exist. It's not uncertain. It's not there. This is exactly the situation we have before us in relation to the union's proposed variation to subclause 42.3. In summary, in our submission the Commission does not have jurisdiction to vary the award in respect of all three aspects of the union's application on the basis that there is no ambiguity or uncertainty in the meaning of the three separate clauses to which the application pertains, and therefore accordingly the union's claims should be rejected in their entirety.

PN320

THE COMMISSIONER: Thanks. Ms Williams?

PN321

MS WILLIAMS: Thank you, Commissioner. Commissioner, I don't want to deal with all of my submission. I would suggest that you've probably read it.

PN322

THE COMMISSIONER: Yes.

PN323

MS WILLIAMS: But there's just a couple of things that I wanted to speak to in relation to the public holiday issue, and also to fully support the submissions of Mr Morley as he's given them this morning. If I can just start off with his Honour, the Chief Industrial Magistrate Miller's decision. As my friend has pointed out this was totally on point. It was this award, it was this union, it was this cause. Mr Miller had the advantage of having senior counsel submitting to him, Queen's Counsel on one side and senior counsel on the other. Mr Miller looked at the Banks Act.

PN324

Now, in that Act it makes a distinction between half days and public holidays. It's very clear that a public holiday is a full day and that a half day is a half holiday. It makes that distinction, so that very easily in his conclusion he's able to say if it's not there, it's not there. Half days are not mentioned. There is no right to a half day. There's no obligation to grant a half day. Now, in New South Wales, Commissioner, this is a fairly significant issue. We have 20 half days and seven full days. Now, these are additional public holidays to those set out, you know, Christmas Day et cetera, these are the extra days. And if I might just hand up a list of those days. And I'll just hand a set to my friend.

PN325

THE COMMISSIONER: Thank you.

PN326

MS WILLIAMS: Now, there's some localities which get three of these half days, there's some localities which get none. The township or the locality of Grafton gets three. Now, the document that I've provided for you, Commissioner, is, you will note, from the New South Wales Industrial Relations, Office of Industrial Relations, the New South Wales Department of Commerce. It's from their website. And on page 2 of 5 it says:

PN327

What are local public holidays? Local public holidays in New South Wales are gazetted under the Banks and Bank Holidays Act 1912 ...(reads)... discretion of individual employers.

PN328

Now, Mr Miller in his decision also refers to agreements which do confirm that right. He talks of the Woolworths - Shop and Distributive Allied Employees Union v Woolworths Ltd, which specifically deals with half holidays as well as public holidays. Ms Lester points to the Furniture Award which specifically deals with half days. This award does not. I know that I said before that I wasn't going to deal with it any further, but I might just seeing as I'm standing.

PN329

THE COMMISSIONER: That's fine, thanks.

PN330

MS WILLIAMS: In relation to the late payment, the proposed change to the application does not - our issue of course was that it's created a new right and, you know, specifically what I brought up before is, what about if it's not our fault? Well, there's nothing in the proposed change that even deals with that, well, what about if it's not our fault? It says that if it's late we have to pay, the employers have to pay. Unless there's any further questions?

PN331

THE COMMISSIONER: No, thank you, Ms Williams. Ms Watt, do you wish to add anything?

PN332

MR WATT: Commissioner, I'm not going to add anything in particular. I would just like to say that I support the submissions that Mr Morley has raised, to rely on those submissions.

PN333

THE COMMISSIONER: Yes, thank you, which I've read. Thank you. Mr Markiewicz?

PN334

MR MARKIEWICZ: Thank you, sir. Sir, perhaps if I could seek some clarification to begin with. Unless I misunderstood Ms Lester, she was seeking to tender a document for the application under the Furnishing Industry Award, is that correct?

PN335

THE COMMISSIONER: She indicated that there were two documents that she wanted to tender. One was a proposed order.

PN336

MR MARKIEWICZ: And the other one was the decision?

PN337

THE COMMISSIONER: Yes.

PN338

MR MARKIEWICZ: And the other was the application?

PN339

THE COMMISSIONER: Yes.

PN340

MR MARKIEWICZ: I'm wondering whether that was accepted by the Commission or not?

PN341

THE COMMISSIONER: They weren't given an exhibit number.

PN342

MR MARKIEWICZ: Sir, like my friends, the Australian Industry Group and also in respect to Laminex Industries and the Victorian Association of Forestry Industries, they would support the written submissions and the submissions made by the other employer organisations opposing the application before the Commission, and submit that the Commission lacks the jurisdiction to vary the award in the manner sought by the union. And without going through the written submissions of Australian Industry Group, that would be the submissions, unless the Commission has any further questions.

PN343

THE COMMISSIONER: Thank you. Yes, Ms Lester?

PN344

MS LESTER: Commissioner, I might seek to just clarify some issues, in particular just to begin with, Mr Morley was referring to the union as re-drafting a totally new clause to broaden the scope of the definition of estimator in clause 4.8 of the Timber and Allied Industries Award. Now, that clause was actually drafted by the Timber Merchants Association, and we adopted that and agreed that because the position had changed in the roles and duties and the way you define an estimator has changed, we agreed that the only issue, the only point of disagreement with that clause was the fact that the parties wished to put a limit on when that clause would apply, so there would be - so that definition of estimator only applied to - is that - - -

PN345

MS WATT: Yes, it is correct. The definition that you've put into your draft order largely did come from the Timber Merchants Association as you correctly pointed out. We had originally said that we would only agree where the scope of that definition was limited to people who were just starting out on their careers as estimators or detailers. But it's not - we still submit that even though the change in the definition - the change in the wording was agreed, the basis on which the application was made was not to clarify ambiguity or uncertainty. It was to update the award because of the change in industrial - - -

PN346

MS LESTER: To update the position, yes, that's correct. Thank you. I just wanted to make that provision clear. Secondly, Commissioner, I've just cited Senior Deputy President Acton's transcript, her decision in that case. I have heard about it but I haven't been able to get a copy of the transcript since the last meeting that we've had. Now, the union submits that comparing toilet breaks with the entitlement of late payment of wages to employees is a completely different issue.

PN347

The late payment of wages clause is there and has been there for a number of years. The award provides that employees can be paid either by electronic funds, cash or cheque. The ambiguity or uncertainty with that clause relates to - and this is on practical application of that clause - the fact that it doesn't clearly include the way that late payment for EFT is entitled to a penalty under that clause. The other issue, Commissioner - and I'll give you a copy of these documents which I refer to in my submissions - was the pre-simplified award, so that's the clauses in the simplification decision. I'll give my friends a copy of the award.

PN348

In the prestripped award, Commissioner, the award clearly provided for circumstances in which a late payment by Electronic funds transfer, and it made that definition between making it only would apply where it's at the fault of the employer. That was removed not because there was no entitlement to that provision. Those clauses were removed in the simplification process on the grounds that they were too specific and unnecessarily detailed, and that's in Commissioner Merriman's decision.

PN349

So we disagree with the proposition that, as stated by the Senior Deputy President in that case, that the entitlement doesn't exist, it's not there. The entitlement is there and has been there. It's just now not clearly or unambiguously determine that the entitlement is there. Furthermore, with the half day public holiday clause, again the entitlement is there. The award doesn't clearly state that half day public holidays are available, but they are gazetted in both New South Wales, the ACT and Tasmania. Furthermore, and I have just been informed that the Work Choices hotline, when you give them a call and ask, say that the Launceston Cup is a public holiday. And it is a public holiday. Despite the duration of the day it's still a public holiday, and that's recognised by state legislation in those three states and also by the Work Choices hotline, Commissioner.

PN350

I understand that the submissions of the variation of the Furnishing Industry National Award, it's been stated that it's of no relevance to these proceedings. We submit that it is, Commissioner. It clearly - that that clause in that award was varied on the exact same terms and on the exact same grounds as what we're seeking to vary here, on the grounds of ambiguity or uncertainty, and that the parties agreed to vary that clause, and the order has been granted.

PN351

So since the original - since the decision of Commissioner Merriman the parties have recognised that there is ambiguity in those clauses and have agreed to vary the award. I think that's all. Thank you, Commissioner.

PN352

THE COMMISSIONER: All right. The Commission will reserve but it will reserve on two points. It will reserve on the issue of late payment and it will reserve on the issue of half day public holidays. The Commission in regards to the claim for variation of the estimator, the Commission upon reading the material provided by the parties adopts the submissions of the employers where the union seeks to actually re-write the definition and create a new classification rather than remove any ambiguity or uncertainty, so therefore in that regard the Commission will strike out and says that it has no jurisdiction in terms of varying the estimator provision. So it will reserve though on the other two matters. The Commission will stand adjourned.

<ADJOURNED INDEFINITELY [11.16AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

LUKE MCCRONE, AFFIRMED PN77
EXAMINATION-IN-CHIEF BY MS LESTER PN77
EXHIBIT #CFMEU1 STATEMENT OF LUKE MCCRONE PN105
CROSS-EXAMINATION BY MR MORLEY PN108
RE-EXAMINATION BY MS LESTER PN130
THE WITNESS WITHDREW PN137
SCOTT MCLEAN, AFFIRMED PN140
EXAMINATION-IN-CHIEF BY MS LESTER PN140
EXHIBIT #CFMEU2 STATEMENT OF SCOTT MCLEAN PN165
CROSS-EXAMINATION BY MS WILLIAMS PN166
CROSS-EXAMINATION BY MR MORLEY PN182
THE WITNESS WITHDREW PN191