C2006/174, Transcript of Proceedings [2007] AIRCTrans 78 (21 February 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 16511-1

JUSTICE GIUDICE, PRESIDENT

C2006/174 C2006/176 C2006/178 C2006/180 C2006/182 C2006/184 C2006/187 C2006/190 C2006/192 C2006/196 C2006/200

APPLICATION BY CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Clause 29 Schedule 6 - Variation of transitional awards - general
(C2006/174)

APPLICATION BY CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Clause 29 Schedule 6 - Variation of transitional awards - general
(C2006/176)

APPLICATION BY CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Clause 29 Schedule 6 - Variation of transitional awards - general
(C2006/182)

APPLICATION BY CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION
Clause 29 Schedule 6 - Variation of transitional awards - general
(C2006/184)

MELBOURNE

10.58AM, TUESDAY, 13 FEBRUARY 2007

PN1

MR S MAXWELL: I appear on behalf of Construction, Forest and Mining and Energy Union in all matters.

PN2

MR J STEWART: I appear for and on behalf of the Employment and Workplace Relations.

PN3

MR R CALVER: I appear for the Master Builders Australia in respect of its registered affiliates particularly in matter C2006 174, 176, if it please the Commission.

PN4

JUSTICE GIUDICE: Sorry which of those two, Mr Calver?

PN5

MR CALVER: Your Honour, I have instructions in respect of the National Building and Construction Industry Award C2006/174 and I have instructions in respect of C2-006/176 in relation to the National Joinery and Building Trades Products Award 2002. In respect of matters under other awards your Honour, generally a lot of the issues will be resolved once those matters are resolved in the C2006/174 in relation to the National Building and Construction Industry Award. If it please the Commission.

PN6

JUSTICE GIUDICE: Yes certainly. Yes Mr Barklamb?

PN7

MR S BARKLAMB: I appear for the Australian Chamber of Commerce and Industry seeking to continue the appearance and intervention noted at paragraph 10 of this matter from the transcript of 20 November, if it please the Commission.

PN8

JUSTICE GIUDICE: Yes. Mr Maxwell your union’s objection in relation to these matters was indicated fairly early on. Without pre-empting anything you want to say, I had in mind that firstly it might be possible to establish whether there were any objections to the wage rates and allowances in the transitional awards that still remain? In accordance with the Full Bench’s decision last year, subject to anything anyone wants to say today, it might be possible to issue orders varying in relation to the matters that aren’t in dispute. It would then be a question perhaps of trying to identify how long the argument on issues might take and then looking at some programming issues. How do you see it?

PN9

MR MAXWELL: Well your Honour perhaps if I can deal with the National Building and Construction Industry Award first.

PN10

JUSTICE GIUDICE: Yes.

PN11

MR MAXWELL: Because I think that is the award where there is possibly the greatest divergence of opinions on the rates included.

PN12

JUSTICE GIUDICE: Yes, I see.

PN13

MR MAXWELL: Your Honour, the CFMEU sent an email, following the issue of the latest draft order by the Registry, the CFMEU sent an email to the parties saying that we objected to a number of the rates contained in that draft order. Now I understand that the AIG also emailed the Commission and on 19 January this year and in regard to that email, we are in agreement with the AIG on I think 90 per cent of the rates that they sought a correction to. There are one or two that we disagree on and I understand there are disagreements. There was a further email sent by the Master Builders on around 18 January where they had a difference of opinion on the rates.

PN14

JUSTICE GIUDICE: But these differences are only 10 cents or something aren’t they?

PN15

MR MAXWELL: Well your Honour perhaps if I can – there are some minor differences which I think are based on just differences of calculation, which I think we can resolve. However, there is to some extent a more fundamental difference between the Master Builders Association and ourselves, on how the hourly rates are to be calculated and contained in clause 18.1.2 of the award. To I suppose to try and summarise the position it is our understanding that the Master Builders Association are concerned as to whether or not the calculation of the hourly rates in accordance with clause 18.1.2 – sorry I just want to make sure that is the correct – sorry the method of calculation is set out in 18.3 and the rates are contained in 18.1.2.

PN16

My understanding is that the Master Builders Association are concerned as to whether or not the calculation in accordance with 18.3 of the award is totally allowable in terms of the method of the calculation. We say it is because we say that the calculation determines the wage rates and wage rates are an allowable matter. I don’t want to put any words into Mr Calver’s mouth at this stage, so perhaps it is best if I let him explain what their position is.

PN17

JUSTICE GIUDICE: Yes.

PN18

MR MAXWELL: My understanding is that the parties are prepared to discuss the matter further with a view to see if we can resolve our differences. If not then it may require some arbitration by the Commission. Hopefully it won’t need to get to that stage.

PN19

JUSTICE GIUDICE: Can you give me an indication of the magnitude of the amounts involved here?

PN20

MR MAXWELL: The amounts involved are approximately $20 per week.

PN21

JUSTICE GIUDICE: I see so they are - - -

PN22

MR MAXWELL: The difference in the 10 cents per hour.

PN23

JUSTICE GIUDICE: Yes, I follow.

PN24

MR MAXWELL: So they are quite significant differences. Perhaps if I just leave that there, on this issue of the wage rates.

PN25

JUSTICE GIUDICE: Very well, of course. So that’s the – just a moment – that’s the main award, is that so? That’s the National Building and Construction Industry Award?

PN26

MR MAXWELL: That’s correct your Honour.

PN27

JUSTICE GIUDICE: Does the resolution of that issue have effect in some of the other awards as well?

PN28

MR MAXWELL: Not in this regard your Honour. The calculation of the hourly rates for daily hire employees is a unique matter to the National Building and Construction Industry Award.

PN29

JUSTICE GIUDICE: Yes, well just before I call on the others, leaving aside that award are there issues of substance in the remaining awards that are listed today?

PN30

MR MAXWELL: Your Honour not in terms of the – there is an issue in regard to the trainee rates of pay which is – the trainee rates of pay in the NBCIA, or National Building Award, could have an impact in regard to the National Joinery Award – well there’s question about whether we actually have transitional awards in the Northern Territory which we – I’ve had a brief discussion with Mr Calver about that issue and it’s not an issue we naturally turned our minds to find a definitive position on, but that maybe something that the Commission can rule on.

PN31

JUSTICE GIUDICE: Well there’s two questions. There’s one whether they exist and two, whether they have any operation? They might be separate questions, but that is going to come up more generally I suspect in relation to the ACT as well?

PN32

MR MAXWELL: Yes. Your Honour in regard to the other awards, they are of a more general nature about the inclusion of the supported wage clause, the school based apprentices and the school based trainees. They are I would perhaps categorise them in terms of minor issues, because some of them such as the inclusion of school based apprenticeship clause, we are arguing against them on the basis – just as for example the Clay and Ceramics Awards, there are no apprenticeship provisions, so it’s inappropriate to include them. So it is our belief that a lot of those issues, perhaps would be dealt with by the parties here today and we could perhaps resolve a number of those issues.

PN33

JUSTICE GIUDICE: Yes well as I indicated earlier, what I have in mind, so far as it’s possible to make orders on an agreed basis in relation to matters which aren’t substantial matters, if I put it that way, I’d like to be able to do that, but ultimately I’m in the hands of the parties I suppose on these outstanding differences. What do you say in relation to what I could describe as the main issues? That is the trainee provisions, the apprentice provisions and supported wage provisions, how do you propose that the disagreement on those matters should be dealt with?

PN34

MR MAXWELL: Your Honour, we are hopeful that a couple of them can progress here today.

PN35

JUSTICE GIUDICE: I see.

PN36

MR MAXWELL: Hopefully by having agreement from the Commonwealth and the ACCI those matters may be able to be resolved and then the appropriate orders for those awards can be issued. In regard to the issue of the trainee rates of pay, that may be an issue that we would – that can be dealt with separately but would not prevent the rest of the order being issued in the meantime so that we can give the employers and the employees out there some certainty as to the wage rates to apply.

PN37

JUSTICE GIUDICE: But as to the question of whether the supported wage should appear in the awards, school based trainee and the apprenticeship arrangements, are you suggesting that further discussions might resolve those matters entirely.

PN38

MR MAXWELL: In regard to 70 per cent of the awards before the Commission today, we believe they could be, yes.

PN39

JUSTICE GIUDICE: I see, well one possibility is that I can simply adjourn into conference and recommend that you have those discussions before we get any further on this hearing so that we might be able to reduce the area of disagreement and have a better idea of what might ultimately need to be arbitrated.

PN40

MR MAXWELL: Yes your Honour we have no objection to that course of action.

PN41

JUSTICE GIUDICE: All right I might ask the other representatives. Mr Calver, perhaps you first, you’ve heard what’s been said?

PN42

MR CALVER: Your Honour, the first point that I’d make in relation to the wage rates is that we are hopeful that there is a high order of consonance between the transitional award rates and those which appear in pay scale summary when the allowances that have been increased pursuant to the transitional award are added together. That means that the pay scale summary that emanates from the decision of the Australia Fair Pay Commission is quite critical.

PN43

JUSTICE GIUDICE: But is there a pay scale summary from the Fair Pay Commission?

PN44

MR CALVER: No, it’s published by the Australian Government as a summary of the pay scales that derive from particular awards.

PN45

JUSTICE GIUDICE: Yes and that’s used generally as a proxy, if you like, is it by parties?

PN46

MR CALVER: That’s the case your Honour, it was tabled in the principle proceedings the CFMEU won, the first iteration. We are now at the third iteration of that particular document given there have been negotiations between parties like AIG, ourselves, ACCI, the CFMEU with the relevant department and it may well inform the Commission for its assistance to have a copy of that version on the file. It also illustrates some of the areas where we are in disagreement because the pay scale summary rates do not contain a calculation based upon, that follow the job loading, which is part of the calculation in clause 18.3 of the award which was the subject of some discussion in the principle proceedings and amounts to, as Mr Maxwell indicated, quite a substantial element of the wage rate for daily hire employees, 3 per cent. So there is some large part of that calculation in contention.

PN47

As for the other matters that devolve to methods of calculation, we have managed, the CFMEU and ourselves, to come to some resolution in that regard and reach agreement. We had prior to the proceedings, tentatively proposed another meeting on that issue, next week and that is yet to be confirmed. So there is ongoing resolution of that issue. However, the sticking point is the one that Mr Maxwell articulated and I just articulated. As for the issue of the clauses to be inserted, we do not stand in opposition in any respect in regard to the position of the Commonwealth, but as there are tailored provisions in relation to school based apprenticeships in the National Building and Construction Industry Award, we would have no objection to those proceeding into other building industry awards, so long as there is a provision about school based apprenticeships.

PN48

As far as school based traineeships are concerned, your Honour, we have a disagreement with the CFMEU about the intent of clause 39.3 of the award. We say that that regulates adult trainee rates and that the provisions sought by the Commonwealth should be inserted in any respect in relation to the NBCIA and the other awards. The CFMEU I believe differs in that regard about the intent of clause 39.3 and the extent of those it regulates. It’s a view based upon the manner in which clause 20 of the award relating to junior employees does or does not cover the field of their engagement. So that is an issue that I think unfortunately I have to report, there’s a fundamental difference about and that does impinge upon the idea of inserting those school based trainee rates and other awards. So if it does assist the Commission I’ll hand up the latest version of what was CFMEU (l)(1).

PN49

JUSTICE GIUDICE: Yes, thanks Mr Calver. I just remind you that obviously these matters are still before the Full Bench, I’m only sitting to save five of us sitting to see whether as a sort of as a procedural matter, we can get around to resolving these issues and so I don’t want you - - -

PN50

MR CALVER: Yes, your Honour, I’m sorry if I gave an opposite impression.

PN51

JUSTICE GIUDICE: No, not at all. I’m glad and it will be useful to have that summary of position for the transcript.

PN52

MR CALVER: We also have some doubts as was foreshadowed by Mr Maxwell in relation to the notion of a territory award. Maintaining the status of a transitional award, I’m not sure that I am in a position to do other than identify the somewhat confusing wording of clause 4 of section 6 as governing this matter and whether or not, if you’re a non excluded employer then those transitional awards in respect of the territories, would remain. I believe it relates very much to the point you made earlier as to whether or not they remain in force, albeit binding no one which would seem an extraordinary proposition to put, not from your mouth, but from mine. But it does seem that on an ex facie reading of that wording, it could lead to that conclusion. So I do believe that that’s a matter about which some guidance, or substantive comment from parties - - -

PN53

JUSTICE GIUDICE: Yes, look it’s been before a number of members of the Commission actually and I think some have taken the view that just in case they’d make the variation to the transitional, or they’d treat the transitional award as existing. There is a reserve decision I think by Vice President Lawler – I’m not sure in what industry – where there was quite a bit of argument about the point. So we’re aware of it but I suppose if the parties in this case want it dealt with authoritatively then at least they’ve got five members of the Commission. I’m not sure at the end of the day how much actually turns on the issue and it varies.

PN54

MR CALVER: Thank you, your Honour, and that essentially we are trying cooperatively trying to reach a summary solution with the CFMEU, but I believe that there are the sticking points as indicated by Mr Maxwell and some of them are quite fundamental to the whole structure of Work Choices, if it pleases the Commission.

PN55

JUSTICE GIUDICE: All right thank you. Mr Barklamb?

PN56

MR BARKLAMB: Thank you, your Honour. Our principle concerns in this matter and indeed, the basis for our appearing before you today remain those relating to the application of the Full Bench’s general decision in relation to the supported wage system and the school based apprentice and trainee clauses. Having heard my colleagues today I can perhaps briefly add, we would of course, as would be consistent with our status in the matter not in any way stand in the way, or seek to detract from any discussions that may occur today at an industrial level.

PN57

Indeed the main determinant of some of the principles matters your Honour has questioned us on this morning about the capacity to issue particular wages matters, as an interim, and other matters dealt with later is really an industry matter for others here today. Consistent with what we’ve discussed perhaps two matters upon which we’d indicate may attract our further interest, is this question of whether existing provisions of the award relating to apprenticeships and traineeships obviate or in whole or part, the need for the standard clause and we would want a chance to examine that in detail. Indeed examine anything that the CFMEU may be contending in detail, one stands in place of the other or removes the need for the other.

PN58

The final matter on which we are akin to reserving a right to say something in due course if this is required, would be the question of allowability of some of the particular provisions of the file of the job, if that moves to a status where that’s more fully examined. But with just those brief words, we are very happy to participate in our own minor way in any further discussions amongst the parties today.

PN59

JUSTICE GIUDICE: Yes, thank you. Mr Stewart?

PN60

MR STEWART: The basis for our appearance this morning is to become aware of the scope and nature of the issues that might outstanding and might be dealt with further, so that we can then be in a position to decide what, if any, further Commonwealth involvement there would be in the proceedings. If the Commission pleases.

PN61

JUSTICE GIUDICE: Yes, thanks Mr Stewart. Well Mr Maxwell and perhaps other people can comment on this as well. It’s obviously undesirable that this should drag on in the way that some proceedings involving this industry have dragged on in the past, and I say that without any disrespect to anybody. What I’ve got in mind is perhaps to set a program for the filing of written submissions but a reasonably generous program which will allow some discussion in the meantime and some refining of the issues and the – could I suggest perhaps Mr Maxwell that filing of an outline of submissions on the remaining matters by 2 March with responses two weeks later, so 16 March? Is that allowing too much time?

PN62

MR MAXWELL: Your Honour, if the issue becomes an arbitration in regard to the calculation of the hourly rates under the MBCIA, no I don’t think it’s too long because ultimately we will want to take the Commission through the whole history of the wage rates under the National Building Award which go back to the first award by Justice Higgins, Builders Labourers in 1916.

PN63

JUSTICE GIUDICE: That should be interesting.

PN64

MR MAXWELL: That’s just to show the breadth of the issue and history we would be taking you to. So that is just in regard to the issue of calculation of hourly rates. When you go to the issue of the trainee rates of pay, we would submit that there are two I suppose important decisions that we would need to take the Commission to, or cases. The first is the application to insert the trainee rates of pay which I believe was in 1994, before Commissioner Gay and we would need to access that file from the Commission. The second would be the junior rates inquiry because there was substantial raising of these issues during those proceedings. So as I say it’s not going to be, we believe, a very simple process that we do need to go to arbitration on it.

PN65

JUSTICE GIUDICE: Will there be other union submissions do you think Mr Maxwell in relation to it?

PN66

MR MAXWELL: Sorry your Honour?

PN67

JUSTICE GIUDICE: Will there be other union submissions? Nobody else has turned up, but?

PN68

MR MAXWELL: Save for any submissions that the ACTU may wish to make in regard to the matter, we don’t believe there will necessarily be any other unions that would - - -

PN69

JUSTICE GIUDICE: You are not aware of any at the moment?

PN70

MR MAXWELL: Any other unions that would – perhaps the AWU to the extent that they impact on some of the areas, I’m not sure.

PN71

JUSTICE GIUDICE: Yes, anybody else have any comment about the timetable. What I’m refining it a little, if the direction was that the CFMEU or any other union or intervenor in support, file and serve an outline of submissions on outstanding issues by 2 March and any other submissions in response be filed by 16 March. That pose any problems, no?

PN72

MR CALVER: We would have no objections your Honour to the timetable.

PN73

JUSTICE GIUDICE: If it’s broadly worded I think it leaves scope for people to make submissions if they wish to. If they chose not to then they don’t all right?

PN74

MR CALVER: Can I just get a clarification please your Honour, is that in respect of the National and Construction Industry Award only, or all of the awards that are subject to the proceedings this morning?

PN75

JUSTICE GIUDICE: All of the matters listed today, yes.

PN76

MR CALVER: Thank you.

PN77

JUSTICE GIUDICE: In the meantime that obviously leaves scope for agreement about some things. There’s time available today if you are able to confer about those matters today. If you wish I could list this for a report back when the parties are ready later this morning to see whether there’s sufficient agreement to be able to make variations pending the resolution of the outstanding matters.

PN78

MR MAXWELL: Your Honour, could I suggest that there may be an adjournment for approximately 20 minutes, or whatever time suits the Commission.

PN79

JUSTICE GIUDICE: Yes, very well I can adjourn to 12 and see if that yields any results. I’ll adjourn now until 12 o’clock.

<SHORT ADJOURNMENT [11.27AM]
<RESUMED [12.03PM]

PN80

JUSTICE GIUDICE: Yes Mr Maxwell.

PN81

MR MAXWELL: Your Honour, thank you. During the adjournment the parties have conferred and the union is prepared to not oppose the inclusion of the supported wage clause in all of the awards that are currently before the Commission. Whilst we don’t necessarily think they’ll ever be used, those provisions, we – it’s not an issue that we think is worthy of arbitration. So we are prepared to concede inclusion of such a clause. If I can perhaps just deal with – we have reached agreement on a number of the awards in regard to what should and should not be included. Perhaps I can deal with the Clay and Ceramic Industry Awards first and deal with C2006/180, which is the Clay and Ceramics Industry – Pottery Manufacture Victoria Award.

PN82

JUSTICE GIUDICE: Yes, thank you.

PN83

MR MAXWELL: The only concern that the union had with the draft order issued by the Commission is the inclusion of the school based apprentices clause. Our concerns because there were no apprenticeship provisions in the award and the parties have agreed that it would not be appropriate to include the school based apprenticeship clause in that award. So on that basis an amended order with removal of the school based apprenticeships clause could issue by the Commission.

PN84

JUSTICE GIUDICE: Yes, thank you.

PN85

MR MAXWELL: In regard to C2006/190, which is the Clay and Ceramics Brick and Terra Cotta Tile Manufacture Victoria Award, the issue is the same as the Pottery Manufacture Award in that there are no apprenticeship provisions within the award, so therefore it is not appropriate to include the school based apprenticeship clause, and the parties have reached agreement on that provision being removed from the draft order. On that basis the order would then be issued for that award.

PN86

JUSTICE GIUDICE: Yes, thank you.

PN87

MR MAXWELL: In regard to the Mobile Crane Hiring Award, again there are no apprenticeship provisions in the award and there will be no school based trainees employed in regard to the work covered by that award. The parties have however agreed to include the supported wage clause. It is on the basis that the reference to the national training wage award and the reference to school based apprenticeship clause are removed, then the parties are in agreement that a revised draft order could be issued in those terms.

PN88

JUSTICE GIUDICE: So there are no apprenticeship provisions?

PN89

MR MAXWELL: No, your Honour.

PN90

JUSTICE GIUDICE: I understand that, what about the trainees?

PN91

MR MAXWELL: Your Honour, there are currently no trainee provisions within the award and because of the nature of the work, there would be – the parties have recognised that there would not be any school based trainees employed on the work covered by the award.

PN92

JUSTICE GIUDICE: Yes, all right thank you.

PN93

MR MAXWELL: If I can deal with the Engine Drivers’ and Firemen’s General Award which is C2006/200. The parties have agreed to include the supported wage system clause and the relationship to the national training wage award. However, there is no need to include a school based apprenticeship clause within that award, because there are no apprenticeship provisions within the award. On that basis that order could be issued for that award.

PN94

Your Honour the final award where there is agreement, is the Roof Slaters and Tilers Victoria Award in C2006/196. Your Honour the draft order issued by the Commission to include a school based apprenticeship clause, which we have no objection to. The union removes its objection to the inclusion of the supported wage clause. However, the parties have agreed it is not relevant to include the clause in regard to the national training wage award, because the award only covers apprentices.

PN95

JUSTICE GIUDICE: So the agreement there is not the national – not the trainee provisions, but the supported wage and the apprenticeship provisions?

PN96

MR MAXWELL: That’s right. Your Honour, at this stage the parties have not discussed or reached a final position in regard the ACT and Northern Territory Awards. We decided to leave those awards to one side for the time being because one of the parties wanted to seek further instructions as to their positions on whether or not they believe there should be transitional awards in the two Territories and perhaps we are mindful of the matter before Vice President Lawler that may assist the parties in our deliberations.

PN97

But there are similar issues in regard to those awards about whether there is apprenticeship provisions in the award or whether there is any trainees, but we decided to put those to one side for the time being. It may be appropriate that we make submissions on that issue in regard to – when we file our outline of submissions if required.

PN98

JUSTICE GIUDICE: Yes.

PN99

MR MAXWELL: So that would then leave us with the National Building and Construction Industry Award and the National Joinery and Building Trades Products Award. Perhaps if I can deal with the National Joinery and Building Trades Products Award first, which is C2006/176. The only issue we had with the draft order issued by the Registry was the inclusion of the clause for the relationship to the National Training Wage Award 2000. The CFMEU’s position is that we believe that matter is tied in with the National Building and Construction Industry Award. There are currently no traineeships applicable to that award and there are a number of complicating matters which I won’t take the Commission to at this stage.

PN100

However, the parties have discussed the matter and are in agreement that an interim order could be issued for that award with all the matters save for the relationship to the National Training Wage Award and then that matter could be dealt with in the arbitration of the other matters. Which would then just leave us with the National Building and Construction Industry Award matters, which we will deal with, I think, in our outline of submissions unless there is some agreement reached between the parties before then.

PN101

JUSTICE GIUDICE: Yes, very well, thanks Mr Maxwell that makes quite a bit of progress anyway. Any other submissions about that? Well what I’ll do is issue directions, they’ll be sent to the parties that were notified of today’s hearing and they will also appear on the website. With so many parties, it’s a little difficult to know the extent to which we should send this information around. But in any event, through the various affiliated bodies one way or another, the word should get around that these matters are going to be dealt with.

PN102

I’m not sure whether there are other awards in which similar objections are being taken. If any emerge then obviously the Bench will give consideration to try and consolidate the hearings, subject to any views of the parties, so that we don’t have to deal with the same sorts of arguments in more than one case. All right thank you for your assistance, if there’s nothing else I shall adjourn.

<ADJOURNED ACCORDINGLY [12.15PM]